SHP 318

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS

AND

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

(the "Intervenor")

GRIEVANCE RE DEDUCTION OF UNION DUES AT MONCTON, N.B.

 

SOLE ARBITRATOR: M. G. Picher

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

T. Meyer Atlantic Region General Chairman, IBB & b

R. Loiselle General Chairman (St. Lawrence & Great Lakes) IBB & B

 

There appeared on behalf of the Company:

S. A. MacDougald Manager, Labour Relations

B. Laidlaw System Labour Relations Officer, Montreal

E. Vick Labour Relations Officer, Moncton

B. Troy Assistant Track Supervisor, Moncton

P.J. Nicholson Coordinator, Special Projects, M.P. & C.E., Montreal

 

There appeared on behalf of the Intervenor:

B. J. Morgan Counsel

 

A hearing in this matter was held in Montreal on September 6, 1990.

 

AWARD

The facts are not in dispute. At the hearing the following joint statement of issue was tabled:

DISPUTE

Claim by the Brotherhood that it ought to have received union dues from certain employees of the Company at Moncton, N.B. from August 22, November 18, 1988.

JOINT STATEMENT OF ISSUE

Between August 22 and November 18, 1988 thirty employees from Agreement 12.33 were on Employment Security status at Moncton, N.B. During this period of dates to gangs which removed track which was being retired from service at Moncton.

For these employees assigned to the track gangs on August 24, September 24 and October 24, 1988, Company applied Rule 49.7 of Agreement 12.33 to determine that these employees' union dues should be directed to the Brotherhood of Maintenance of Way Union (B.M.W.E.) instead of to the Brotherhood.

The Brotherhood contends that the Company violated Rule 49.7 of Agreement 12.33 and claims that none of the union dues deductions should have been directed to the B.M.W.E. and requests that the union dues be directed to the Brotherhood instead.

The Company denies the alleged violation and has declined to redirect the union dues from the B.M.W.E.to the Brotherhood. A copy of the Joint Statement of Issue is included in Exhibit "S".

The claim of the Brotherhood is based on the provisions of Rule 49.7 of its collective agreement. It provides as follows:

49.7 Employees filling positions coming within the scope of more than one wage agreement or filling positions coming within the jurisdiction of more than one craft in the pay period in which deduction is made shall have dues deducted for the Organization or craft under which the preponderance of their time is worked in that period. Not more than one deduction of dues shall be made from any employee in any month.

The Company acknowledges that union dues must be deducted and remitted in respect of the employees who are normally represented by the Brotherhood, were on employment security and were put to work on tasks normally assigned to maintenance of way employees. The issue is to whom. The work performed was plainly short-term, with the employees being assigned to three gangs of ten persons each. They worked for varying lengths of time estimated at between one and eighty-nine days.

The dispute is one that is resolved on the basis of relatively straightforward interpretation of Rule 49.7. The contention of the Brotherhood is that the employees who performed the incidental work tasks while on employment security did not fill positions coming within two or more bargaining units within the meaning of the rule. Its' representative submits that the rule, which originated in 1953, is intended to capture the circumstance of employees who are regularly assigned, on a part-time basis, to perform work normally assigned to employees of two or more different bargaining units. By way of example, its representative submits that an employee who is normally assigned to work two days per week in the tasks of one bargaining unit, and three days in the work of another bargaining unit, comes within the scope of the rule. It submits the dues for that individual are to be remitted to the union or craft in respect of which the preponderance of the work is performed during a pay period.

In the Arbitrator's view the Union's position is compelling. Firstly, as noted in prior arbitral awards, it must be appreciated that the employees at Moncton who are on employment security statusdo not hold any "positions", in the sense that they are not attached to any identifiable jobs or assignments which may have been bulletined. Indeed, they are on employment security precisely because their positions have been abolished. That reality was reflected in the following passage in an award concerning a dispute between VIA RAIL CANADA INC. and CBRT&GW, heard on November 17, 1989. At p.12 of that award the following observation was made in respect of the status of employees on "employment security":

The issue to be resolved here is the status of employees who, although not attached to particular jobs or assignments since their jobs may have been abolished, continue to be attached to a given location, and paid full wages and benefits, retaining all rights and privileges under the collective agreement indefinitely, even though they may do little or no productive work. It does not appear disputed, however, that employees who have employment security are liable to be required by the Employer to attend at work for such assignments as may become available from time to time as for example in a period of increased business activity. Or they may be asked to do work on an intermittent or occasional basis for substantially reduced periods of hours. In the Arbitrator's view persons in that circumstance, who remain fully paid, are more akin to employees who are required to hold themselves available on an `on call basis' than to employees who are on layoff, with or without layoff benefits and with little more than a right of recall based on seniority. The employees whose jobs have been abolished and who remain on employment security status with full wages and benefits can at any time be required by the Corporation to perform various duties. While the concept of sporadic or occasional assignment may in some respect be likened to the treatment of a laid-off employee who receives a recall for temporary work, there is, in the Arbitrator's view, a significant difference. There is, on the part of the Corporation, an obligation to pay full wages and benefits and, on the part of the employee, a commensurate obligation to perform such work as the employer chooses to assign.

There is, I think, a purposive justification for the position of the Union as well. It is common ground that the work jurisdiction of a number of trade unions representing non-operating employees involves substantial overlap. In other words, it is not unusual for certain tasks to be assigned to members of different unions, although the work involved may be substantially the same. It is, in my opinion, consistent with that reality that the parties would have chosen to frame Rule 49.7 in terms of "filling positions" rather than the broader concept of "performIng work". While work may not be so easily identifiable with a given trade union or collective agreement, bulletined positions are. I think it reasonable to conclude that the parties intended to preserve that measure of certainty in framing the terms of Rule 49.7.

The above conclusion is further supported by what appears to be the established practice in circumstances apart from employment security. It does not appear disputed that when employees from a given bargaining unit are incidentally assigned to perform work normally assigned to another bargaining unit, as for example when shopcraft helpers might be assigned to snow removal normally performed by maintenance of way employees, there is no change in the deduction of their union dues. This appears to be so notwithstanding that they perform such incidental assignments for the preponderance of a pay period.

In the instant case the focus is the application of Rule 49.1 of the collective agreement which is as follows:

49.1 The Railway shall deduct on the payroll for the pay period which contains the 24th day of each month from wages due and payable to each employee coming within the scope of this Collective Agreement an amount equivalent to the uniform monthly Union dues of the Organization, subject to the conditions and exceptions set forth hereunder.

For the reasons related above I am satisfied that the 30 employees at Moncton who are the subject of this grievance were, while they were on employment security status, at all material times coming within the scope of the collective agreement of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers. It is that organization which remains entitled to receive union dues in respect of the monies payable to them, and the terms of Rule 49.7 have no application in these circumstances. I must therefore find and declare that the remittance of union dues to the Brotherhood of Maintenance of Way Employees was in violation of the IBB&B collective agreement. The Company shall therefore pay, forthwith, to the Union the dues payable in respect of the conclusions herein. It may do so, however, pursuant to the terms of Rule 49.10 of the collective agreement.

DATED at Toronto this 17th day of September, 1990.

(sgd) M. G. Picher

Arbitrator