SHP 350

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Brotherhood of Electrical Workers

GRIEVANCE RE CRANE OPERATOR POSITIONS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

F. Klamph System General Chairman

M. McClenaghan General Chairman, Atlantic Region

 

 

There appeared on behalf of the Company:

S.A MacDougald Manager Labour Relations, Montreal

L.F. Caron System Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on July 3, 1991.

 

AWARD

This is the arbitration of a grievance in respect of displacement rights. The Brotherhood claims that electricians are entitled to displace electrical helpers working on less than 40 ton capacity electrical cranes at Moncton. The dispute and joint statement of issue filed by the parties at the hearing is as follows:

Dispute:

Claim that Electrical Workers at Moncton, New Brunswick were denied displacement rights on crane operator positions of less than 40-ton capacity at the Moncton Main Shop.

Joint Statement of Issue

The Brotherhood contends that when the Canadian National Railway Company laid off Electricians, and/or Electricians were displaced, as a result of these layoffs, which took effect in April 1985, the Company violated Agreement 12.1: Rules 23.3, 23.8, 23.15, 24, 57.8, and Article 4(a) of the Memorandum of Agreement dated July 19, 1983.

The Brotherhood contends that this grievance revolves around the fact that Electrical Helpers were working outside of their classification as per Rule 23.8 on electrical cranes as stipulated pursuant to Rule 57.3, Agreement 12.1, while Electricians were laid off.

The Brotherhood contends that there are only two seniority groupings, hence the Electricians rather than the Electrical Helpers have the right to work on the less-than-40-ton capacity electrical cranes referred to herein. The Brotherhood contends that as a direct result of the Company's actions which took effect at the completion of the grievors' shifts on April 1, 1985, the Electrical Helpers ought to have been laid off instead of the Electrical Workers.

The Brotherhood will present further documentation and arguments on behalf of the Electricians' rights to displace Helpers operating cranes of less-than-40 ton capacity.

The Company contends that the Electricians involved in this claim did not have the right to displace Crane Operators on Cranes of less-than-40-ton capacity and has declined the grievance.

The Brotherhood disagrees.

***

A preliminary issue arose with respect to the standing of an employee, Mr. Nick Leskiw, to participate in these proceedings. Mr. Leskiw is a crane operator at the Company's Transcona Shop in Winnipeg. He has a separate grievance pending concerning the practice of the Company at Winnipeg, which apparently differs from the practice at Moncton which is the subject of this grievance. By letter dated July 2, 1991 Mr. Leskiw's counsel sought leave to intervene in these proceedings, claiming that his rights would be affected by the outcome of this arbitration.

At the outset of the hearing the Arbitrator advised the parties of the content of the letter filed by Mr. Leskiw's counsel and heard their representations with respect to his claim to standing. Upon a full consideration of the merits of Mr. Leskiw's request, the Arbitrator ruled against him at the hearing. It is not disputed that Mr. Leskiw's grievance is presently progressing through the grievance procedure, towards an eventual arbitration hearing, if necessary. At issue in these proceedings is the interpretation of the collective agreement provisions in dispute, an issue which primarily concerns the parties who negotiated the collective agreement, and not any individual employee who may or may not favour an interpretation espoused by his or her trade union. While on the face of his request, Mr. Leskiw seeks leave to intervene in these proceedings, it is clear that in substance what he seeks to achieve is the consolidation of his own grievance with the grievance presently before the Arbitrator, so that both matters can be heard and disposed of at the same time. This, however, is resisted by the parties and, as the cases have clearly established, the Arbitrator is without jurisdiction to order the consolidation of grievances absent the parties' consent (Re Dryden Paper Co. Ltd. (1976), 11 L.A.C. (2d) 337 (Brown); De Havilland Aircraft Co. of Canada Ltd (1959), 10 LAC. 114 (Fuller)). For these reasons the request of Mr. Leskiw for an adjournment of these, and the opportunity to intervene, was denied.

The following provisions of the collective agreement are pertinent to the resolution of this grievance:

23.3 Seniority of employees in each of the following crafts covered by this Agreement shall, except as otherwise provided herein and in the respective craft special rules, be confined to the seniority terminal at which employed and to the date of entry into their respective classifications:

Boilermakers Helpers

Blacksmiths Helpers

Carmen (and other tradesmen represented

by Carmen's Organization Helpers

Coach Cleaners

Electrical Workers Helpers

Machinists Helpers

Moulders Helpers

Pipefitters Helpers

Sheet Metal Workers Helpers

Except as may be otherwise mutually agreed between the individual crafts and the Railway, the main shops will be regarded under this Rule 23.3 as separate seniority terminals for the purpose of seniority.

NOTE: The following shall be considered as main shops:

Moncton

Point St. Charles

Transcona

...

23.8 An employee temporarily set up as mechanic shall retain and continue to accumulate seniority on the helpers' seniority list from which set up while working in the capacity of mechanic. Such a helper will not be recognized as holding any seniority as mechanic. A helper governed by this Rule 23.8 shall not be promoted to the permanent mechanics' seniority list of his craft except as may be provided for in the respective craft special rules.

...

23.9 (c) "Fully Qualified Mechanic" shall mean a mechanic who has successfully completed the railway training program or a mechanic who has not completed such apprentice training program but who has, through on-the-job training within or outside the railway industry and or outside vocational training in his craft, become fully qualified. Mutually agreed upon objective tests shall determine whether or not a mechanic who has not served a railway apprenticeship program in his craft has become a fully qualified mechanic as specified above.

...

23.15 When it becomes necessary to layoff employees for any reason, the force shall be reduced in reverse seniority order as per Rule 23.3 unless otherwise provided in Craft Special Rules.

...

23.17 (a) An employee laid off from his seniority terminal may, within 30 calendar days displace the junior employee in his respective classification on the Job Security Eligibility Territory (defined in the Appendix "F" of the Job Security Agreement) carrying his seniority in that classification with him, except as may be provided in the respective Craft Special Rules. A laid-off employee who declines to exercise this right shall be subject to recall to his home seniority terminal.

An employee will not be entitled to exercise his rights under 23.17(b) until he has complied with this provision, 23.17 (a).

(b) When layoffs occur, an employee laid off from his respective classification at his seniority terminal, may, within 30 calendar days, displace the junior employee in his respective classification on the basic seniority territory carrying his seniority in that classification with him, except as may be provided in the respective Craft Special Rules. An employee who declines to displace the junior employee in his respective classification on his basic seniority territory under this Rule 23.17, shall be laid off subject to recall to his home seniority terminal (See Appendix XIV).

The Craft Special Rules for electrical workers are found within Rule 57 of the collective agreement. It provides, in part, as follows:

Electricians' Qualifications

57.1 Any man who can produce documentation showing proof that he has completed an electrical apprenticeship or that he has had five years' occupational or on the job training equivalent to that of an electrician and is competent to execute the work to a successful conclusion will be rated as a journeyman electrician.

Electrician's Work

57-2 Electricians' work shall include electric wiring, maintaining, rebuilding, re airing, inspecting and installing all generators, switchboards, meters, motors and controls, motor generators, magnetos, igniters, electric welding machines, electric headlights and headlight generators, storage batteries, axle lighting equipment, and welding on work generally recognized as electricians' work. All inside work on public address, shop telephone, fire alarms and electric recording systems, radio equipment and electric clocks, electric lighting fixtures, winding armatures, fields, magnet coils, rotors, transformers and starting compensators. Inside and outside wiring of shops, buildings, yards and on structures, all electric wiring and conduit work in connection therewith, including steam, gas electric, diesel electric and electric locomotives, passenger trains, motor cars, electric tractors and trucks and buses. Repairs to wiring of ignition for internal combustion engines, magnetic, electronic and all other types of electric control. Electric cable splicers, electric crane operators for cranes of forty (40) ton capacity and over, linemen who are required to work on live catenary as part of their regular assignment, and all other work generally recognized as being electricians' work.

An electrician will not necessarily be an armature winder or lineman.

Classification of Linemen, Etc.

57.3 Men employed as linemen (except as covered by Rule 57.2), motor attendants, generator attendants and sub-station attendants who start, stop and oil and keep their equipment clean and change and adjust brushes for the proper running of their equipment, electric switchboard operators, coal pier dumpers, and coal pier conveyor car operators, in connection with the loading and unloading of vessels. Electric crane operators for cranes of less than forty (40) ton capacity. (See Appendix XVIII).

...

(emphasis added)

Electrician's Helpers

57.7 (a) Employees regularly assigned as helpers to assist electrical workers and apprentices, also to perform such battery work as may be agreed upon and crane slingers and transfer table cable men.

57.8 In the event of not being able to employ electricians qualified in accordance with Rule 57.1 and the regular apprenticeship schedule is not providing enough men to carry out the work, the work force may be increased by promoting other employees within the craft to temporarily fill such positions until such time as qualified electricians become available.

An electrical employee from within the craft promoted to temporary electrician may, after having accumulated 5 years' experience as an electrician, be given the qualifying test of the craft and if successful will be placed on the electrician's permanent seniority list and will be credited with one year's seniority as of the date he accumulated the five years' experience and will forfeit all seniority rights in the classification or classifications from which promoted as of that date.

The Brotherhood submits that the persons occupying the position of light crane operator at Moncton were, in effect, promoted helpers working in the classification of electrical worker, in compliance with Rule 23.8 of the collective agreement. In its view, employees so assigned cannot, by the operation of article 23.8, hold seniority as an electrical worker, but only retain their position on the helper's seniority list. As a result, it submits, when journeymen electricians are unable to hold work within their classification, they are entitled to exercise their seniority to claim light crane positions as electrical workers. This, the Union argues, is possible because the incumbents in the light crane work do not have seniority as electrical workers, because they are promoted helpers within the contemplation of article 23.8 of the collective agreement.

In the Arbitrator's view that interpretation is not supported by the scheme and language of the collective agreement. Rule 57 establishes three distinct classifications of employees: electricians under Rule 57.2, linemen and other electrical workers, including electric crane operators for cranes of less than 40 ton capacity under Rule 57.3 (as well as other electrical workers under Rules 57.4, 57.5 and 57.6, including apprentices). Lastly, electrician's helpers are established as a separate classification under Rule 57.7.

In the Arbitrator's view, while the terms electrician and electrical worker seemed to be used loosely and interchangeably in various parts of the collective agreement, there can be little doubt about the meaning of the term "mechanic" as it appears in articles 23.8 and 23.9 (c). Under the latter provision a fully qualified mechanic is plainly one who has achieved journeymen status following the completion of apprenticeship training or equivalent outside vocational training in the craft. In other words, the intention of the collective agreement is clear that a mechanic is a fully qualified journeymen electrician. In that context, the mechanic referred to in Rule 23.8 is the journeymen electrician contemplated under the terms of Rules 57.1 and 57.2. Electrical crane operators for cranes of less than 40 ton capacity are plainly not mechanics within the contemplation of these provisions. They are, however, electrical workers as distinct from electrician helpers who are separately identified under Rule 57.7.

On the face of the provisions of the collective agreement, therefore, the Arbitrator must find that the pivotal position of the Brotherhood's argument, namely that the incumbents occupying the light crane positions are promoted helpers temporarily set up within Rule 23.8, is not supported on the language and overall framework of the collective agreement. For the reasons related above, the persons working on light cranes are electrical workers who, in keeping with Rule 23.3, hold electrical worker's seniority as of the date of their entry into that classification. They are, in other words, within the same seniority grouping as journeymen electricians.

The Union seeks further to rely on the provisions of Rules 24 and 57.8 in support of its position. With respect those provisions say nothing of the relationship between mechanics and other electrical workers, with the exception of apprentices. Rule 24 states that mechanics and apprentices are to do mechanics' work while Rule 57.8 provides for the temporary promotion of other electrical workers to work which would otherwise belong to a journeymen electrician, in circumstances of clear necessity. There is nothing on the face of either of these provisions to support the Union's view that journeymen electricians are entitled to displace electrical workers working within other classifications who are senior to them.

Lastly, the Union points to instances of practice and prior agreements which it maintains support its interpretation. For example, it points to agreement no. 15 dated September 7, 1962 governing the job security of elevator operators and crane operators at Port aux Basques, Newfoundland. In the Arbitrator's view that agreement is not conclusive of the interpretation advanced by the Brotherhood. While it provides that cranemen are not to be displaced by mechanics, it does not speak to the separate question of whether, but for that special agreement, mechanics could only displace cranemen junior to themselves. In other words there is nothing on the face of that agreement to suggest that, but for its provisions, junior mechanics could have displaced cranemen and elevator operators. The most that can be said as the Company spokesperson emphasizes, is that the practice in the Company's operations is mixed. It is common ground that at Transcona Shops, in Winnipeg, it appears that electricians do displace cranemen in the manner contended for by the Union in this grievance. In the Arbitrator's view, given the variance of the practice, it is of little assistance in resolving this grievance. Moreover, practice should be looked to only if the terms of the collective agreement are themselves ambiguous. In the Arbitrator's view there is no ambiguity in article 23.3 which plainly establishes two separate seniority groupings, electrical workers on the one hand, and helpers on the other. Similarly, Rule 57 is clear that helpers are a separate classification from other electrical workers, including cranemen, all of whom fall under the classification of electrical workers for seniority purposes. Lastly, article 23.8 when read together with article 23.9(c) is clear and unambiguous, in that it refers to a mechanic as being a fully qualified journeymen electrician within the meaning of Rule 57.1.

For all of the foregoing reasons the Arbitrator is compelled to accept the position argued by the Corporation The persons holding cranemen's positions at Moncton were not temporarily promoted helpers, but rather electrical workers with seniority as such as of the date of their entry into that classification. They are subject to displacement by other electrical workers, including journeymen electricians, but only on the basis of seniority within the electrical worker's seniority list. In other words, an electrician senior to a craneman may displace onto his or her position, while a junior journeymen electrician may not.

The grievance must therefore be dismissed. The Arbitrator retains jurisdiction in the event of any dispute between the parties with regard to the interpretation or implementation of this award.

DATED at Toronto this 30th day of July, 1991.

(sgd) M. G. Picher

Arbitrator