SHP 316

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

International Brotherhood of Electrical Workers

GRIEVANCE RE DESIGNATION OF WORK AREAS AT OGDEN SHOPS IN CALGARY

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Abe Rosner Executive Secretary, CCRSU

Robert Laroche

Robert Dulude

 

 

There appeared on behalf of the Company:

A.Y. deMontigny Supervisor Personnel and Labour Relations Mechanical, Department, Montreal

D. P. Moreau Works Manager, Angus Shops, Montreal

D.J. David Labour Relations Officer, Montreal

A. Langlois Assistant Chief Mechanical Officer, Mechanical Department

 

A hearing in this matter was held in Montreal on July 5, 1990.

 

AWARD

At the hearing the following Joint Statement of Fact and Issue was filed:

DISPUTE

Interpretation of Rule 23.14 of Wage Agreement No. 52.3 with respect to the displacement rights of electrician M. S. Khaira at Ogden Shops in Calgary.

STATEMENT OF FACT

On December 13, 1989 the grievor, electrician M.S. Khaira, was displaced from his regular position by Mr. T.L. Neufeld in the exercise of seniority.

On December 14, 1989 Mr. M.S. Khaira filed the following grievance:

Brother T.L. Neufeld has bumped me. Accordingly I bumped Brother A. Hasmani from stripping and cleaning section of Traction Motor Dept. being the junior most employee in Cost Centre 25. As lay (sic) down in paragraph 3 of rule 23.14 of Wage Agreement No. 52.3, I would have the right to bump the junior most employee in other sections of Traction Motor Department, where employees junior to me are in position. With the said action my seniority right has been infringed.

I therefore claim that I should allow (sic) to bump in the Armature Repair, Frame Repair and Assembly and Test Section of the Traction Motor Department.

STATEMENT OF ISSUE

The Union contends that in denying the grievor the right to exercise his seniority in the manner outlined above, the Company violated Rule 23.14. The Union requests a declaration to this effect and that the grievor be permitted the retroactive displacement as indicated, with compensation for any losses incurred.

The Company denies the Union's contention and claim.

As framed, the issue involves the interpretation and application of rule 23.14 of the collective agreement. That provision is as follows:

23.14 The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay of hours of work or days off are changed.

The affected employee shall have the right to displace the junior employee in the designated work area of his choice with the shift, days off, hours of work and rate of pay of his choice except as may be provided in the Craft Special Rules.

For the purse of this Rule 23.14 the designated work area shall be as defined in bulletining positions in accordance with Rule 23.11.

Such employee initially affected shall be given, during his regular working hours, as much advance notice as possible but, in any event, not less than twenty-four hours. The affected employee shall make his intentions known within forty-eight hours of notification and subsequent displacement shall be made without undue delay. The Local Committee shall be consulted.

(emphasis added)

The facts giving rise to the dispute are not in contention. In January of 1989 the Company transferred its Traction Motor Department from the Angus Shops in Montreal to the Ogden Shops in Calgary, effecting the transfer of some 100 shopcraft positions, including electricians. For the purposes of bulletining the newly established vacancies the parties agreed that, to allow employees sufficient information for the bulletining process, job bulletins would be framed so as to show four distinct work areas within the Traction Motor Department as applied to electrical work. These were:

1. Assembly and test.

2. Armature repair.

3. Frame repair.

4. Stripping and cleaning.

Subsequently, in December of 1989, following the reduction of electricians in the locomotive department, Grievor Khaira became compelled to exercise his seniority pursuant to rule 23.14. In doing so he was advised that he must displace the most junior employee in "Cost Centre 25", which means the entire Traction Motor Department. The grievor and the Union assert that he had the right to exercise his seniority separately within any of the four work areas within the Traction Motor Department. With this management disagreed, and this grievance has ensued.

The issue to be decided, therefore, is whether for the purposes of article 23.14 the designated work area is Cost Centre 25 or, as the Union maintains, whether the four sections of the Traction Motor Department established for initial bulletining purposes also constitute designated work areas for the purposes of rule 23.14. The issue is obviously not without uncertainty, as the language of the second and third paragraphs of article 23.14 give only general guidance as to the definition of designated work areas. Reference to the content of the job bulletins is also of only limited value in this case, in that the bulletins at Ogden Shops in respect of electrical positions in the Traction Motor Department specifically refer both to Cost Centre 25 and to the four work areas listed above. The Company argues, correctly in the Arbitrator's view, that the job bulletins required some degree of specificity beyond the mere designation of Cost Centre 25, to allow electricians the information necessary to make a knowledgeable bid on bulletined positions. This is plainly in keeping with the dictates of a prior arbitration award in respect of the application of article 23.11 issued by Arbitrator J.F.W. Weatherill on October 17, 1977. As a general matter, therefore, it is true to say that the inclusion of descriptive information in a job bulletin does not, of itself, constitute the establishment of a designated work area for the purposes of rule 23.14.

While the instant case is not without some uncertainty, there is before the Arbitrator evidence which does resolve this matter in relatively persuasive terms. The possibilities that the parties intended Cost Centre 25 or, alternatively, each of the four designated areas, to be the area "as defined in bulletining" are equally plausible. In circumstances such as this, therefore, the practice of the parties may be of considerable significance. The undisputed fact before me is that for years previous, at Angus Shops, the right of employees to displace under article 23.14 was always exercised in respect of the separate work areas within the Traction Motor Department, and not within the department as a whole. As noted above, the work in question has now moved from Angus Shops to Ogden Shops.

Is there any reason to conclude that in transferring the work from one shop to another the parties intended to depart from the pre-established practice with respect to the identification of designated work areas for the purposes of displacement? I think not. In my opinion, absent clear and categorical language to the contrary, the parties should be presumed to have intended the continuation of an established practice, particularly as regards the application of a single collective agreement to a single bargaining unit which is national in scope. If the parties had intended the words of their agreement to have different meanings within different main shops, it was open to them to so provide specifically, just as they have done in respect of the establishment of separate seniority territories under another part of article 23. Absent clear and unequivocal language to the contrary, however, when work is transferred from one shop to another, it should not be concluded that the parties intended an alteration in their agreement with respect to the practice which has governed the exercise of seniority rights.

Moreover, the Arbitrator has some difficulty with the fundamental "domino" concern which is advanced by the Company in this case. The Union's representative confirms that in many instances the Union has no objection to a cost centre being a designated work area for the purposes of displacement. According to his representation to the Arbitrator, only Cost Centre 4, in addition to Cost Centre 25 raised in this case, are contested by the Union. In the circumstances I can see little merit to the suggestion of the Company's representatives that the bargaining agent might seek to narrow the definition of work area to particular assignments or work benches, to achieve an insupportable degree of job displacement.

For all of the foregoing reasons the grievance must be allowed. The Arbitrator finds and declares that the four work areas delineated above constitute the appropriate designated work areas for the purposes of displacement rights under rule 23.14. As no further remedy is requested, I remain seized of this matter in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.

DATED at Toronto this 20th day of July, 1990

(sgd) M. G. Picher

Arbitrator