SHP 320

IN THE MATTER OF AN ARBITRATION

BETWEEN

Ontario Northland Railway

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada, 103

GRIEVANCE RE ASSIGNING OF PAINT SHOP EMPLOYEE TO WORK OUTDOORS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Brian Stevens President, Local 103

Michael Pilon Vice-President, Local 103

 

 

There appeared on behalf of the Company:

M. J. Restoule Labour Relations Assistant

R. G. Leach Chief Mechanical Officer

J. J. Morrison Superintendent, Car Equipment

 

A hearing in this matter was held in Montreal on North Bay, Ontario on September 4, 1990.

 

AWARD

At the hearing the parties filed the following statement of dispute and joint statement of fact and issue:

Dispute

Interpretation of Rule 38.1 where it concerns the assignment of Paint Shop employees to work outdoors to upgrade stenciling on newly-leased box cars in the North Bay Yard.

Joint Statement of Fact & Issue

On Friday, January 13, 1989, Paint Shop carmen were instructed to proceed to the Yard to upgrade stenciling on newly-leased box cars.

The Brotherhood initiated a policy grievance claiming that the Company violated Rule 38.1 by assigning the employees outdoor work in inclement weather when shop space indoors was available.

The Company denies the Union's contention and claims that Rule 38.1 was not violated given the circumstances of the situation.

The grievance turns on the implication of Rule 38.1 to the facts of this case. It provides as follows:

38.1 Employees will not be required to work on engines or cars outside of shops during inclement weather, if shop room and pits are available. This does not apply to work in engine cabs or emergency work on engines or cars set out, or attached to trams.

It is common ground that the assignment in question consisted in the painting by stencil of identification numbers and letters onto seven newly acquired boxcars. The cars in question were intended for immediate dispatch to Kidd Creek Mines Limited, in Timmins, for the use of the Company's customer at that location. On Friday, January 13, 1989 some four paint shop employees were assigned to do the stenciling on the box cars in question. The Union submits that a number of concerns arose. The box cars, which were attached to a larger consist, were then located outdoors. It does not appear disputed that they could have been moved into either the paint shop which accommodates one car at a time, or into the larger confines of the car shop, where three cars could be taken inside at one time. On behalf of the employees the Union requested that the work be performed inside, because of the weather conditions.

The material before the Arbitrator establishes that it was a cold January day. The temperature at 08:00 hours was -11.4 degrees Celsius and dropped as the day progressed. With an average recorded windspeed of 17.6 km. per hour the wind-chill factor was approximately -22 degrees Celsius, which the parties agree is approximately -8 degrees Fahrenheit. The days preceding the thirteenth involved substantial periods of rain, with the consequence that the ground where the painting was to be performed was icy.

In the Union's view the employees should not have been required to perform the painting work outdoors in those conditions, particularly as the indoor facilities were available. Its representative submits that the two conditions of Rule 28.1 are established: the weather was inclement and shop room was available to perform the work. In support of its position it notes that in the latter part of the day work was halted because the spray paint containers being utilized were freezing, and became inoperable. It does not seem disputed that some of the work had to be redone the following day on an overtime basis, indoors, because of the poor quality of the stenciling performed under the cold conditions.

The Company submits that the weather was not inclement within the meaning of rule 38.1 of the collective agreement. Its representative argues that the term "inclement" must be interpreted having regard to the normal weather conditions in North Bay at the time of year in question. He submits that the weather conditions on January 13 were not so unusual for that time of year and would not, in any event, amount to inclement conditions as contemplated in the rule. Secondly, the Company maintains that it was justified by the balance of convenience in having the work performed outdoors. It submits that to have moved the seven box cards inside the shop facilities would have necessitated a time delay for disassembling, switching and reassembling the consist of cars, which would have unduly delayed its ability to dispatch them to its customer. While its spokesperson did not go so far as to characterize the circumstance as constituting emergency work, he nevertheless argues that the legitimate business needs of the Company justified the action taken.

I turn to consider the merit of the parties' submissions. In the Arbitrator's view there is much to commend the Company's argument that a term such as "inclement" is necessarily relative, and must be construed in the context of normal seasonal weather conditions as they may exist in the location of the Company's operations. In my view, moreover, regard must be had to the nature of the work in assessing whether weather is prohibitively inclement. Work on a ladder in windy or icy conditions may be viewed as work being performed in unduly inclement weather, while working with a welding torch on the ground is not. Each case must necessarily be assessed on the merits of its own particular facts, having regard to the purpose of the rule. The purpose is plainly to balance the interests of the employees, on the one hand, to be able to perform their work in safe and reasonably comfortable circumstances with the interests of the Company, on the other hand, to avoid undue inefficiency in its operations.

When the factors of the instant case are examined the Arbitrator is compelled to conclude that the grievance must succeed. The material filed by the Union establishes that the ambient air temperature, including the wind-chill factor, was at or near the point where, according to material provided by Environment Canada, exposed flesh freezes. That of itself might not constitute an inclemency within the meaning of the rule, particularly if warm clothing could obviate any danger or discomfort. In the circumstances of this case, it appears manifest that warm clothing was not enough to counter the risk to the employees, who were compelled to work and move about on icy ground in conditions of cold sufficient to freeze the paint which they were using.

The outside conditions on January 13, 1989 were severely cold and the ground where the grievors were required to work was ice covered, with a light dusting of snow. It was well within the capacity of the Company to move the boxcars indoors to be worked on even though that might have necessitated the delay of some switching. Moreover, there was no "emergency" within the meaning of rule 38.1, which would have prevented that course of action It is implicit in the terms of rule 38.1 that where shop space is available employees are not to be required to work in inclement conditions. There is nothing in the language of the article which suggests that the factor of greater productivity alone overrides that obligation. While the Arbitrator appreciates the Company's desire to service its customer without delay, it cannot do so without regard to the contractual requirements of article 38.1 of the collective agreement.

For all of the foregoing reasons the Arbitrator finds that the grievance must succeed. I find and declare that the Company violated rule 38.1 of the collective agreement on January 13, 1989 by declining the request of the employees to move the seven boxcars in question inside for painting due to the inclement weather conditions. While the Union has further asked for a direction or order from the Arbitrator, I deem it unnecessary to make such an order. There is no evidence of bad faith on the part of the Company's supervisors. In my view there is no reason to doubt that the Company will, in light of this Award, ensure that its officers apply the requirements of rule 38.1 of the collective agreement.

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

(sgd) M. G. Picher

Arbitrator