IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
AND IN THE MATTER OF A UNION GRIEVANCE CLAIMING THAT CERTAIN POSITIONS OF HEAT INSPECTOR SHOULD HAVE BEEN ADVERTISED TO MEMBERS OF THE MACHINISTS’ ORGANIZATION
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
APPEARING FOR THE Brotherhood Railway Carmen:
A hearing in this matter was held at Montreal on May 17, 1988.
Although joint statements were not agreed to in this matter, the nature of the grievance is clearly set out in the Union’s Statement of Issue, which is as follows:
Assignment of "heat inspector" Positions to Carmen Helpers at Toronto Maintenance Centre, by notice dated October 16, 1986.
UNION STATEMENT OF ISSUE:
On October 16, 1986, the Corporation posted a notice at the Toronto Maintenance Centre seeking application for 13 new temporary Carmen Helpers’ Positions to act as "heat inspectors". The IAM filed a grievance, claiming that 5 of these positions ought to have been advertised to members of the Machinists’ Craft, in accordance with the letter of understanding of May 14, 1985 and Rules 49, 53 and 55 of the then applicable Wage Agreement 12.32. The Corporation declined the grievance and the matter was ultimately progressed to arbitration.
The Union maintains that the above-mentioned rules and agreements were violated by virtue of the Corporation’s improper bulletin and assignment of the work in question and requests a ruling to this effect from the arbitrator.
The Union also seeks compensation to be paid to the 5 senior laid-off employees who would have been eligible for these positions at the material times.
The parties were agreed that the Brotherhood Railway Carmen, which is bargaining agent for the employees to whom the jobs in question were assigned, had an interest in the matter, and that organization was invited to attend at and participate in the hearing. It was further agreed that the matter was to be decided under the terms of Collective Agreement No. 7, which has succeeded Collective Agreement No. 12.32, the material provisions thereof being identical. The Rules on which he union relies are now numbered, respectively, 3, 21.3 and 30.16.
Rule 3 of the collective agreement deals with the matter of deduction of union dues. It is not necessary to set out that provision or to deal with its alleged violation in any detail: if the union’s principal argument in this case is correct, and if certain of its members were entitled to be assigned to and paid in respect of the jobs in question, then the union would have been entitled to receive union dues in respect of those employees, and there will have been a violation of Rule 3. If the union’s main argument fails, then it is clear there will have been no violation of Rule 3.
Rule 21.3 sets out what is Machinist Helper’s work. That article will be set out in full later in this award. The principal issue in this case is whether or not the work here in question was required to be assigned to persons in that classification.
Rule 30.16 has the effect of preserving "the jurisdictional understanding and practices as now exist between the Union party hereto and other craft unions". The extent to which any such understandings may be involved will be discussed along with the matter of the application of Rule 21.3.
The letter of understanding of May 14, 1985 sets out the company’s undertaking to offer work, in certain circumstances, to persons laid-off from other railways. As with Rule 3, the application of this obligation will depend on the outcome of the principal issue in this case.
The bulletin of October 16, 1986 was addressed to Coach Cleaners, a classification represented by the Brotherhood Railway Carmen, and offered work in 13 positions of Carman Helper, which classification of course is also represented by the Carmen’s organization. The positions were temporary ones, expected to last from November 15, 1985 until April 15, 1987, being the anticipated length of the cold weather.
The duties of the new position known also as Heat Inspector, were set out by the company as follows:
Duties of Carmen Helpers (Heat Inspectors)
The primary responsibility of the Carmen Helpers is to ensure that all equipment in the yard is protected from the winter elements. All equipment in the yard is to be monitored to ensure that the utilities are connected and the equipment is properly functioning in layover mode. In order to perform this function, the duties are as follows:
In cases where the utility hook-up is made and there is still no protection or fuel and/or water is required, notify the Work Centre Supervisor immediately.
The responsibility for maintaining passenger equipment was transferred from Canadian National to VIA in June, 1985. During the winter of 1985-86, mechanics from various crafts, who had been dispatched from time to time to effect preliminary repairs or servicing (within the scope of their crafts) on equipment in the storage tracks during the summer and fall, were asked as well to ensure that the equipment which they repaired was properly heated so as to avoid "freeze-ups". That sort of function was incidental to the performance of proper craft functions, and it would appear was considered by the employees to be of secondary importance to their principal work. In any event, many trains froze up during that season, and as a result train delays occurred and additional work was required to be done.
For the 1986-87 winter season, the company decided to assign the work of ensuring that equipment on storage tracks was adequately heated in a new way by creating specific positions of "heat inspector". These employees were required to observe and report, not to effect repairs. The union does not, in this case, allege that the work should have been assigned to tradesmen, and it is clear that craft skills as such are not required: the work may properly be assigned to employees classified as Helpers. The allegation is, however, that some at least of this work ought to have been assigned to Machinist Helpers. The main consideration advanced in support of this allegation is that certain of the heat inspection involve, locomotives.
One argument raised by the company was to the effect that the grievance, in claiming only five of the thirteen posted jobs, was inconsistent. That would be so if the union accepted the job assignment, as a whole, as a proper one. The union does not, however, deny that some of the work being performed is proper to be assigned to Carmen Helpers. Parts of the job, however, are alleged to fall within the exclusive jurisdiction of the Machinists’ organization, and it is suggested that five jobs could be established which could effect the company’s purposes in respect of that work – which is, as I have noted, essentially that involving locomotives. The claim for five jobs only does not, I think, reveal any inconsistency or contradiction in the union position. The question is simply whether or not the collective agreement requires that work of the sort in question be assigned to persons coming within the bargaining unit represented by the Machinists’ union.
Rule 1.1 of the collective agreement recognizes the International Association of Machinists as sole bargaining agent for "all employees of VIA Rail Canada Inc. classified as machinist, machinist helper, and machinist apprentice, including lead hands, layout men and markers off of these classifications". For the purposes of the instant case, the only question is whether the work in question – at least to the extent that that work is performed wish respect to locomotives – is the work of the classification of Machinist’s Helper.
Machinist Helper’s work is described in Rule 21.3 of the collective agreement as follows:
21.3 Employees regularly assigned as Helpers to assist Machinists and Apprentices shall perform the work shown below; however, the assignment of this work shall not be construed as restricting Machinists from performing Helpers’ work as required: operating drill presses and bolt threaders not using facing, boring or turning head or milling apparatus; Craneman helpers on locomotives and car work, except as provided in Rule 21.2, attending tool room, shaft and machinery oiling; locomotive oiling; box packing, assisting in dismantling locomotives and engines: beltmen; motor truck operators: supply man (material carrier); lagger (other than wood); and all other work generally recognized as helpers’ work.
None of the tasks set out in that description is required to be performed by the Carmen Helpers acting as Heat Inspectors. The task of "locomotive oiling" might be thought to come close to what they do, but they do not perform even that task, although they are required to check and record fuel and water levels on locomotives and steam generator units. Certainly those tasks, and no doubt most of the tasks required of Heat Inspectors could be performed as well by Machinist Helpers and by Carmen Helpers. Members of the Machinists’ organization have performed such tasks (with respect to Budd cars, locomotives, steam generators and LRC locomotives at other locations. The Position of Heat Inspector itself, however, is not one which comes within the scope of article 21.3, nor does it involve any of the tasks set out in that article, with respect to whose performance the Machinists’ organization would have a claim under Collective Agreement No. 7.
While the work in question does not come within the scope of article 21.3 in the sense that if the company requires it to be performed, it must assign it to Machinist Helpers, that is not to say that it would necessarily be improper to assign it to such employees. As has been noted, similar work is performed by members of the Machinists’ organization at other locations. In the past, it may be remembered, the work had been done (not very assiduously), by members of various crafts, and was properly considered as incidental to the performance of their work. It is the concentration of these inspection and reporting tasks into one set of jobs which has raised the question of its assignment as between members of the various craft unions.
It was the company’s position that the work did not come within the scope of any of the material collective agreements, and that it was accordingly free to assign it as it wished. That conclusion may or may not have been justified, but it is not necessary to decide that question in this case, where the issue is whether or not Machinist Helpers were entitled to be assigned at least certain parts of the work. It is to be noted that, in a very general way, the job, considered as a whole, would appear to be appropriate to be assigned to Carmen Helpers, whose work, according to Rule 22.3 of Collective Agreement No. 3 (made between the company and the Brotherhood Railway Carmen), includes "… thaw out men … car heater and ice men … gas fillers …" and other work. Those tasks are not identical to those in the present case, but when the general nature of the work is considered along with the fact that most of the inspection involved is on train consists, mostly made up of passenger cars, the assignment, as a practical matter, would appear to have been a natural one. It may be added that from the material before me, there does not appear to have been any violation of a jurisdictional understanding or practice existing between the Machinists’ and Carmen’s organizations, touching on this sort of work.
To paraphrase what was said in the Canadian National Railway case (pulley guard covers, award dated January 5, 1988) [SHP-231], the work in question here – even that part of it performed in respect of locomotives – was not essentially "machinists’ work", as are the tasks specifically referred to in Rule 21, but was rather incidental to shop operations generally.
For all of the foregoing reasons, it is my conclusion that the assignments in question were not in violation of the collective agreement. The grievance must accordingly be dismissed.
DATED AT TORONTO, this 24th day of May, 1988.
(signed) J. F. W. Weatherill,