SHP 288

IN THE MATTER OF AN ARBITRATION

BETWEEN

ONTARIO NORTHLAND RAILWAY

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

IN THE MATTER OF THE GRIEVANCE of V. MLDOZENIC

 

 

SOLE ARBITRATOR: Michel G. Picher

 

 

There appeared on behalf of the Union:

Brian Stevens General Chairman

André Bedard General Chairman

 

 

There appeared on behalf of the Company:

M.J. Restoule Labour Relations Assistant

R.G. Leach Chief Mechanical Officer

 

A hearing in this matter was held at North Bay, Ontario on January 3, 1990.

 

AWARD

DISPUTE

A claim by Carman V. Mldozenic for 18.30 hours pay at the overtime rate.

JOINT STATEMENT OF FACT AND ISSUE:

On or about November 1, 1988, three carmen and one machinist were sent to Moosonee to rerail locomotive 1508 which had derailed.

The Brotherhood claims that according to Rules 58.2, 58.5 and 58.18(a) of the collective agreement, the Memorandum of Understanding regarding auxiliary service, road repair work, local trips and overtime at North Bay and past practice, that a fourth carman should have been sent out with the crew.

The Company denies the Brotherhood's claim.

AWARD

On or about November 1, 1988 the Company decided to dispatch three carmen and one machinist to Moosonee to rerail locomotive 1508. The Hoesch rerailing equipment was sent with the crew, including a Hoesch operator from Englehart Terminal. The Hoesch rerailer is a form of hydraulic jack powered by an internal combustion engine which is used to raise and place a derailed locomotive or car back onto its rails. In fact, the Hoesch equipment was not utilized at the Moosonee site, as the crew were able to rerail the locomotive using simple rerailers.

The Brotherhood claims that having dispatched the Hoesch equipment to the site, the Company was under two obligations: firstly, it must ensure that the Hoesch equipment was used exclusively by carmen and secondly, that no less than four carmen be assigned. This, it submits, is the combined effect of the provisions of the collective agreement governing carmen's work as well as the past practice of parties. In particular the Brotherhood objected to the possibility of the machinist who was also dispatched to Moosonee being used to assist in rerailing by getting involved in the setting up and operating of the Hoesch equipment.

Work jurisdiction is a matter of some importance to the shopcrafts. That is reflected in the provisions of their respective collective agreements governing the work of their craft. In the instant case carmen's work is defined in Rule 58.2 of the collective agreement. It provides, in part, the following:

Carmen's Work

58.2 ...joint car inspectors, car inspectors, safety appliances and train car repairers, on track auxiliary and hy-rail wrecking crane operator, oxy-acetylene and electric welding on work generally recognized as carmen's work; and all other work generally recognized as carmen's work.

Rule 58.18(a) further provides:

58.18 (a) When necessary to repair cars on the road or away from the shops and/or repair tracks, Carman and helper in connection with Carmen's work, will be sent out to perform such work as putting in couplers, draft gear, truck repairs, putting cars on center, and wheels, and work of similar character, and wherever cars are set out for repairs on the road, facilities such as blocks, jacks, etc., will be provided. This will include Carmen assigned to road repair vehicles in connection with all work generally recognized as Carmen's work. Employees performing such work will protect themselves as per Rule 58.9.

Lastly, the jurisdictional line between the various shopcrafts is recognized in the terms of the instant collective agreement as provided in Rule 61.1:

61.1 It is understood and agreed between the parties hereto that any alterations or amendments herein proposed in work classification are for the purposes of clarification and rate fixing only, and shall not be interpreted as affecting or disturbing in any manner the jurisdictional understanding and practices between the several crafts, parties to this Agreement, as now exists, or may hereafter be agreed between the crafts themselves.

Machinists' work is described in the following terms in Rule 53.2 of the collective agreement:

53.2 Machinists' work shall consist of laying out, fitting, adjusting, shaping, boring, slotting, milling, and grinding of metals used in building, assembling, maintaining, dismantling and installing locomotives and engines (operated by power, including diesels, and other metal power devices), pumps, cranes, hoists, elevators, pneumatic and hydraulic tools and machinery; scale building, erecting and maintaining shafting and other shop machinery; ratchet and other skilled drilling and reaming; tool and die making, tool grinding and machine grinding; axle truing, axle, wheel turning and boring; engine inspecting; air equipment, lubricator and injector work; removing, replacing, equipment, oxy-acetylene and electric welding on work generally recognized as machinists work; the operation of all machines used in such work, including drill presses and bolt threaders, using a facing, boring or turning head or milling apparatus; car wheel borer, lapping machine operators; engine truck fitter; brass filer and assembler (not including trimming); crane slingers in locomotive shops on cranes of 100-ton capacity or over, not working under the direct guidance of a foreman; and all other work generally recognized as machinists' work.

It is well established that machinists may work at wreck locations. This is reflected in Rule 53.07 of the collective agreement as well as in the arbitral jurisprudence. As was stated in Shopcraft Case No. 44 (November 25, 1980):

Wrecks where engines are disabled, are no doubt wrecks where the services of a machinist may likely be required. Certainly they will be required if machinists' work is to be performed, and if the task is one of repairing an engine mechanically to make it operative that will, in general, be machinists' work.

Arbitrator Weatherill was faced with the question of whether work at a wreck location performed by carmen was in fact machinists' work (Shopcraft Case No. 258) a grievance between the Canadian National Railway Company and International Association of Machinists and Aerospace Workers. In his award dated December 30, 1988 he found that the work in question was not exclusively machinists' work. As I read the decision, the Arbitrator ruled that the taking apart or dismantling of engines at a derailment site for the mere purpose of moving the equipment to a place of ultimate repair did not fall within the description of machinists' work found within the collective agreement. The language of the award recognizes that Rule 53.7 appears to require the assignment of a machinist where the task at a wreck location involves restoring disabled engines to an operative condition. There is, in other words, acknowledgment of some degree of exclusivity in the jurisdictional lines surrounding defined craft work.

In the instant case the Brotherhood does not claim exclusive jurisdiction to all aspects of the rerailing process. Its representative acknowledges that rerailing has been performed by other trades, including running trades and track maintenance forces using common rerailers. He maintains, however, that when the mechanical department is called in to a rerailing operation and carmen are assigned, the work of rerailing is exclusively theirs.

I do not, for reasons made apparent below, consider it necessary for purposes of this grievance to rule on that assertion. Whether carmen may work in conjunction with trades at a derailment site for the purposes of rerailing equipment is an obviously larger question which should be answered in light of fuller evidence in argument than is available in this case. The more narrow question before me is whether the Brotherhood can claim exclusive jurisdiction over the operation of the Hoesch rerailer and, if so, whether the Company is under an obligation to assign four carmen when it is dispatched to a derailment site.

On the material before me I am satisfied that the Brotherhood has a legitimate claim to the handling and operation of the Hoesch rerail equipment. That, in my view, is reflected in the correspondence between the parties in 1980 and 1981, when this equipment was acquired by the Company. On August 25, 1980 Mr. L.G. Davis, then General Chairman of the Brotherhood wrote to the Company claiming the right for the Brotherhood to have exclusive jurisdiction over the operation of the Hoesch rerailing device, which was largely to be utilized to replace the 503 auxiliary crane over which the Union held exclusive rights. There followed a long sequence of correspondence back and forth, including some disputed time claims in relation to the equipment. Significantly, in a letter to Mr. Davis dated June 1, 1981, Mr. R.O. Beatty, General Manager of the Company confirmed, in his own words: "... that the Company honoured the request to assign the equipment to your craft". There is, moreover, evidence of a consistent and apparently unvarying past practice on the part of the Company to assign the Hoesch rerailing equipment exclusively to carmen, in relation to both its setting up and its operation. In light of that evidence, coupled with the direct written acknowledgment of the Company's General Manager, I am satisfied that the handling, assembly, operation and disassembly of the Hoesch rerail equipment at or around a derailment site is "work generally as carmen's work" within the meaning of Rule 58.2 of the collective agreement. Insofar as the grievance claims that the Hoesch rerailing equipment dispatched to Moosonee could only be set up and operated by carmen, the Arbitrator is compelled to find that its position is correct.

I have greater difficulty with the second aspect of the grievance, however. The Brotherhood claims that the Company is under an obligation to assign four carmen whenever the Hoesch equipment is dispatched to a derailment site. While that is consistent with the claim of the Union first made by its General Chairman in his letter of August 25, 1980, I can find nothing in the material before me to confirm, on the balance of probabilities, that it became accepted as an obligation on the part of the Company. On the one hand the Brotherhood asserts that the equipment cannot safely be handled by fewer than four qualified carmen, and points to a substantial number of derailment operations where four or more carmen were dispatched with the Hoesch equipment. On the other hand the Company asserts that other railways, including Canadian National, have on some occasions assigned no more than two carmen to operate the Hoesch rerailer without difficulty.

In the Arbitrator's view this issue can be disposed of by two observations. Firstly, there is insufficient evidence before me in the instant case to make any responsible determination as to whether the dispatching of the Hoesch rerailer implicitly requires four carmen for its proper transportation, assembly and operation. More importantly, the issue is moot in this case, as the evidence discloses that the Hoesch rerailer was in fact not utilized. There is, in other words, no evidence before me that the machinist assigned to the Moosonee crew did any work in relation to the Hoesch equipment that would have violated the collective agreement. Whatever intention the Company may have had, it can no more be faulted for an action which it did not carry out that an employee can be disciplined for the mere intention to commit an infraction which in fact is never realized.

For the foregoing reasons the grievance is allowed, in part. The Arbitrator finds and declares that the handling and operation of the Hoesch rerailer is work generally recognized as carmen's work within the meaning of Rule 58.2 of the collective agreement. The Arbitrator is not prepared to find, however, on the evidence adduced that the Company was under an obligation to assign four carmen. Nor can I find that the assignment of the machinist, who did not in any way work with the Hoesch equipment, and who according to the Union's own submission was present at the site "solely to qualify the locomotive for immediate return to service once rerailed", constitutes a violation of the collective agreement. In the circumstances no order for relief, beyond the above declaration, is appropriate.

DATED at Toronto this 12th day of January, 1990.

Michel G. Picher

Arbitrator