SHP 247

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

(the "Union")

AND IN THE MATTER OF A DISPUTE RELATING TO THE ASSIGNMENT OF CARMEN AT RIDLEY ISLAND

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

APPEARING FOR THE UNION:

T. Wood

APPEARING FOR THE COMPANY:

S. A. MacDougald

A hearing in this matter was held at Montreal on July 26, 1988.

 

 

AWARD

The grievance in this case alleges that the company is in violation of Rule 53.2 and Appendix XVII of Agreement 12.35 in requiring train crews to perform certain air brake tests at Ridley Island, effective January 26, 1987.

The Joint Statement of Issue in this matter is as follows:

On January 20, 1987, the Company posted a notice advising Carmen at Prince Rupert, B.C. that they were no longer required to perform air brake tests at Ridley Island, effective January 26, 1987. This notice has no reference to any reduction in the Carmenís workforce at Prince Rupert. This change resulted from the Companyís decision to have train crews perform certain air brake tests at Ridley Island, which were formerly done by Carmen from Prince Rupert. On February 2, 1987, the Company issued notice to the Brotherhood under the provisions of Article 8.1 of the Employment Security and Income Maintenance Plan, giving notice of its intent to abolish seven (7) Carmen positions at Prince Rupert effective May 2, 1987.

The Brotherhood submitted a grievance alleging that the Company violated Rule 53.2 of Agreement 12.35, claiming that air brake testing is Carmenís work as indicated in Rule 53.2. The Brotherhood also claimed that Ridley Island is part of Prince Rupert and that Prince Rupert was identified as a Certified Car Inspection (CCI) location in Appendix XVII of Agreement 12.35. The Brotherhood claims the Company should continue to utilize Carmen to perform the air brake testing and other duties performed at Ridley Island.

The Company has denied the Brotherhoodís claims.

Ridley Island is a grain and coal trains-shipment facility, located about seven miles south of Prince Rupert. It began handling trains in October, 1984, and was officially opened in May, 1985. It is a facility for unit train operation. An average of 3.5 loaded trains arrive per day, and about the same number depart. Arrival and departure times fluctuate widely.

When grain trains are made up for departure, an air brake test must be performed. Until the change which is the subject of this case, the air brake test was performed by Carmen, called from their duties at Prince Rupert and sent by truck to Ridley Island, where they coupled air hoses and performed the air brake tests and related inspections. Travel time was about one-half hour each way, and the time taken by the air brake test and inspection was about one hour.

Tests on coal trains are of a somewhat different nature and require somewhat less time. Again, they were made by Carmen called from Prince Rupert.

With respect to grain trains, it appears that the Carmen had performed, as they were qualified to do, a No. 1 air brake test. The train crews now required to do the work are not qualified to perform the No. 1 air brake test, and instead perform the No. 1-A air brake test. This is a slightly different test. With respect to coal trains, a No. 2 air brake test was performed by Carmen and is now performed by train crews.

There is no issue before me as to the compliance of the company with the requirements of RTC Order No. R-38352, governing air brake tests to departing trains. Neither is there any issue as to the qualifications of train crews to do the work which is now assigned to them. The question is whether or not, under the provisions of the collective agreement, the company is required to assign the work in question to Carmen.

The work is, of course, within the scope of Carmenís work. While some air brake testing may require particular qualifications and certification, and so would, as a matter of fact, be exclusively performed by Carmen by virtue of certain Regulations in that regard, the testing which is now required to be performed by train crews at Ridley Island is not exclusive to Carmen for that reason: the question before me is only whether or not the air brake testing assignments now given to train crews at Ridley Island ought, by reason of the provisions of the collective agreement, to be given to Carmen.

There is, as I have said, no doubt that the work in question may properly be performed by Carmen. It is work coming within the general scope of Rule 53.2. The collective agreement does not, however, provide that such work is exclusive to Carmen, and it is recognized that in some circumstances some at least of such work may properly be performed by members of train crews. Thus, collective agreement 4.3 between the company and the United Transportation Union, representing the train crews, provides, in Rule 69.1:

69.1 At terminals where carmen are employed and on duty they will couple hose and test air. Trainmen will have assistance rendered carmen when same would avoid train delay.

If Ridley Island were a "terminal", then in cases where carmen are "employed and on duty", train crews might, in reliance on their own collective agreement, object to being required to perform air brake tests. That, however, is not this case, which is not a complaint by train crews, but is a demand by Carmen that the work in question be assigned to them. The Carmenís collective agreement does not provide that their jurisdiction to perform such work is exclusive, and Rule 53.2 does not appear to have been violated in the circumstances of this case. In this respect, what was said in SHP Case No. 105 (although the facts in that case were different), is of significance here:

What the company has done is to assign certain work, of a type which might properly be done and which has been done by a member of the bargaining unit to an employee in another bargaining unit. The performance of the particular amount of work in question does not bring the person performing it within the scope of this unit. The collective agreement provision referred to Ö does not confer exclusive jurisdiction to the work. There does not appear, then, to have been any violation of the collective agreement. It may be added that the article which generally sets out the nature of carmenís work, article 58.2 [Rule 53.2 of the agreement here] does not contain any provision of exclusive jurisdiction.

Reference is also made in the Joint Statement to Appendix XVII to the collective agreement. That is in the form of a letter dated December 18, 1985, in which certain commitments are made by the company. The following Portions of Appendix XVII are material to the instant case:

During the discussions, the parties discussed at some length the Railway Transport Committee (RTC) Order No. R-37253 issued on September 26, 1984.

The Company assured you that for the period between the date of this letter and December 31, 1986, the Company would continue to employ only Carmen to perform "Certified Car Inspection - CCI" at the following locations across Canada:

[There follows a list of locations, including Prince Rupert, but not including Ridley Island]

Ö

It is further understood that during the above referred to period Certified Car Inspectors will continue to perform the related No. 1 Air Brake Tests on freight trains pursuant to the Schedule, entitled "Railway Air Brake Minimum Inspection, Testing and Operating Standards" as attached to Order No. R-38352 issued by the Railway Transport Committee (RTC) July 23, 1985.

Whether or not Ridley Island may be said to be a "terminal", or a part of the terminal at Prince Rupert, are not questions which need be answered in the present case. The fact is that the obligation set out in Appendix XVII so far as the present case at least is concerned, was met. That obligation ceased, by the terms of Appendix XVII, on December 31, 1986. The company did not violate that obligation in making the changes in assignment which led to the present grievance. Those changes were made in 1987. There has, accordingly, been no violation of Appendix XVII in this case.

For all of the foregoing reasons, it must be my conclusion that the provisions of the collective agreement have not been violated. Accordingly, the grievance must be dismissed.

DATED AT TORONTO, this 12th day of August, 1988.

(signed) J. F. W. Weatherill

Arbitrator