SHP 354

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers

GRIEVANCE Re Jurisdictional Claim, Winnipeg Diesel Shop

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

P. Watson President, IBB

P. Stempnick Local Chairman, IAM 122

 

 

There appeared on behalf of the Company:

M. E. Keiran Assistant Unit Manager, Labour Relations, Vancouver

L. G. Winslow Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on November 1, 1991

 

AWARD

This arbitration concerns the grievance of the Union against the assignment of work at the Winnipeg Diesel Shop. The Dispute, Joint Statement of Fact and Joint Statement of Issue filed at the hearing are as follows:

Dispute:

The transfer of five (5) Boilermakers from the Winnipeg Diesel Shop to Weston Shops, Winnipeg on March 3, 1989.

Joint Statement of Fact:

On the Company's January 1989 Semi-Annual Report to the Union of its planned staff reductions, advice was provided that effective April 15, 1989, five (5) Boilermakers would be reduced at the Winnipeg Diesel Shop due to insufficient workload to justify the positions.

On or about March 3, 1989, five (5) Boilermakers at the Winnipeg Diesel Shop opted to transfer to five (5) newly established Boilermaker positions at Weston Shops by bidding on bulletined permanent vacancies.

No employee was laid off, displaced or otherwise adversely affected and the Company did not replace any of the five Boilermakers at the Winnipeg Diesel Shop. No Article 8.1 notice was issued by the Company to the Union.

The Union submitted a grievance dated March 3, 1989 with reference to this transfer, stating in part as follows:

"...We are also grieving that by not replacing these men the Company has violated its contractual obligation in regards to Jurisdiction of Work. Other than wreck damaged work which can be sent to Weston Shops, there are other jobs that have been performed by the Boilermakers which will be obviously done by other crafts. Jobs such as Datal Inspections, and General Diesel Maintenance in our jurisdiction are not incidental in nature and do not come under the scope of any such rule. These jobs are Boilermakers' work and in our opinion must remain so. We therefore demand that replacements be hired as soon as possible."

The Company declined this grievance by letter dated March 6, 1989.

The Union next progressed this grievance directly to the General Manager (the designated officer at Step II) by letter dated March 26, 1989. As an attachment to this letter, the Union cited examples alleging assignment of what they considered as Boilermakers' work to Machinists on several occasions. By letter dated April 10, 1989, the General Manager advised the Union that it had not advanced the grievance Step I as required by Rule 28.15 and that "I have taken the liberty of directing your correspondence to Superintendent D.J. McMillan for his handling."

The designated Officer did not reply to the Union's re-directed letter at Step I. By letter dated July 19, 1989, the Union attempted to progress the grievance at Step 11 to the General Manager.

The Company declined the grievance at Step II stating that the time limits prescribed in the grievance procedure of Collective Agreement No. 52.4 had been exceeded and that the grievance was not subject to farther appeal.

Joint Statement of Issue

The Union contends that since certain of the tasks previously performed by Boilermakers, specifically Datal Inspections, General Diesel Maintenance, welding brackets, grills, brake rigging and bolts, repairing footboards and straightening coupler release rods and front pilots, continue to be performed by other Crafts in the Winnipeg Diesel Shop, Boilermakers are required to be employed in this facility to perform the work in question. It is the Union's position that the Company has violated contractual obligations regarding the jurisdiction of work. The Union contends that most of these tasks are not incidental in nature and that they do not come under the scope of any such rule. The Union further submits that these jobs are Boilermaker work and must remain so.

The Company submits that since the mandatory time limits contained in the grievance procedure of the Collective Agreement have not been met, this grievance is not arbitrable.

Without waiving the foregoing, in the event that this dispute is found to be arbitrable, the Company also denies this grievance on the merits.

The Brotherhood disagrees.

***

The first issue to be resolved is the Company objection as to the timeliness of the grievance. The facts in relation to that issue are not in dispute. On March 3, 1989, the same day the transfer for the five boilermakers from the Winnipeg Diesel Shops to the Weston Shops was implemented, the Union launched its grievance. It took the form of a letter addressed to Mr. A. Ferguson, Manager of the Winnipeg Diesel Shop from the Union's Local Chairman Mr. Peter C. Riddle. The grievance was declined by the reply of Mr. Ferguson, in a letter addressed to Mr. Riddle dated March 6, 1989. It is common ground that the exchange of correspondence between Mr. Riddle and Mr. Ferguson was in conformity with the requirements of rule 28.8 of the collective agreement. With Mr. Ferguson's reply the Union was then at liberty to proceed to Step I of the grievance procedure.

The following collective agreement rules are pertinent to the events which transpired thereafter:

28.9 A decision at each step of the grievance procedure shall be rendered in writing within 28 calendar days of receipt of appeal.

28.10 Upon request from either party reasonable effort will be made to have meetings held within the allotted times.

28.11 A grievance not progressed within the time limits specified shall be dropped and will not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims.

28.12 The time limits specified in Steps I and II may be extended by mutual agreement between the parties referred to in each such step.

28.15 If an authorized Union Representative should consider that a provision of this Agreement has been violated, he may initiate a grievance, which shall be processed in accordance with the foregoing provisions of this Rule 28.

Step I

Within 28 calendar days following receipt of the decision under Rule 28.8, the authorized Local Union Representative or General Chairman may appeal the decision in writing to the designated Railway Officers on the respective Railway as follows.

CP Rail:

Line Points:

Authorized Local Union representative(s) and/or General Chairman to Divisional Superintendent or such Divisional officer as he may designate.

(emphasis added)

It is common ground that the Step I appeal filed by Local Chairman Riddle was incorrectly directed to the Company's General Manager, rather than to the Division Superintendent. The material discloses, however, that General Manager White redirected the correspondence to the Company officer, Superintendent D.J. McMillan, and so advised Mr. Riddle by letter dated April 10, 1989. Mr. McMillan has never responded to the Step I appeal.

Mr. Riddle next sought to progress the grievance by means of a letter dated July 19, 1989 which was received in the General Manager's office on July 25, 1989. The Company submits that the Union failed, in these circumstances, to meet the time limits contemplated within the collective agreement. It argues that a timely appeal under Step II must have been proceeded with no later than 56 days after the grievance was originally received by the Company. It maintains that by a liberal interpretation of that requirement, allowing for the redirection of the initial correspondence at Step I by General Manager White, the Step 11 appeal should have been received no later than June 5, 1989. On that basis it submits that, in light of the fact that the time limits within the grievance procedure are mandatory, that in keeping with rule 28.11, the grievance must be deemed dropped and to be subject to no further appeal.

The Arbitrator has some difficulty with the position advanced by the Company, given the specific terms of the instant collective agreement. Within certain collective agreements in the railway industry there are express provisions dealing with the consequences of a union's failure to progress a grievance in circumstances where no reply has been received from the Company at the prior step. Typically, such provisions contemplate that no reply from the Company within a specified time is deemed to be a rejection of the grievance, which requires the Union to then proceed to the next step within a stipulated time limit. That, however, is not the language of the instant agreement. Rule 28.11 addresses only one circumstance involving the failure of the employer to respond to a grievance at Steps I or 11 of the grievance procedure. It provides that where a time claim is concerned, failure to respond will result in the time claim being payable. There is no indication, however, as to the consequences which flow form the failure of the Company to reply to any other type of claim.

The only language in Rule 28 which addresses the facts of the instant case is found within Rule 28.15 which deals, in part, with Step I. It provides that the authorized Union officer is to appeal the decision "... Within 28 calendar days following receipt of the decision under Rule 28.8". In these circumstances the Arbitrator must agree with the representative of the Union that the triggering event, as contemplated in the language of the provision, is the receipt of the Company's decision. It is when the decision of the Company has been communicated to the Union that the latter must then conform to the 28 calendar day time limit established in respect of Step I appeals.

The consequences of the failure of the Company to reply have been specifically addressed in prior jurisprudence. In SHP 153 Arbitrator Weatherill was called upon to consider the question and concluded that the remedy in the face of the Company's failure to reply within the time limits contemplated in the grievance procedure of the collective agreement is that the Union continues to have the right to progress the grievance to the next step. This right, presumably, is subject to any arguments which might be made with respect to the Union having abandoned its grievance where the passage of time is extensive, coupled with any considerations as to prejudice which might result to the Company. That, however, is not the case in the grievance at hand. The Union sought to pursue its grievance within little more than a month of the time in which the Company maintains it would have expected some further communication as to the status of the grievance. This, in the Arbitrator's view does not amount to a waiver of right on abandonment by the Union, and no prejudice to the Company is disclosed.

In the result, the Arbitrator is satisfied that in the face of failure of the Company to reply to the grievance, the Union remained at liberty to pursue its grievance by progressing it by means of written notice to the Company by its letter of July 19, 1989. The Company's preliminary objection with respect to the arbitrability of the grievance must therefore be dismissed.

I turn to consider the merits of the grievance. The grievance turns on the application of the incidental work rule contained in Rule 56 of the collective agreement. It provides, in part, as follow:

56.2 Except as is permitted by this Rule, work will performed by employees in the craft to which such work is now assigned. Notwithstanding any other rules to the contrary, in order to efficiently complete an integrated work assignment involving the work of two or more crafts, a tradesman in one craft may be required to do the work of another craft for short periods of time, provided that the tradesman is qualified to perform the work. Where that work is normally performed with a helper, the helper, likewise, may be required to do the work of the helper of the other craft. The work that may be required to be done under this clause shall include the operation of any equipment or machinery necessary for the completion of the integrated work assignment.

The Union submits that the foregoing provision mandates that work performed by the Boilermakers in the Winnipeg Diesel Shop as of April 11, 1988, the date of the Award of Arbitrator Dalton L. Larson establishing the incidental work rule, must be "... work ... now assigned" within the meaning of the rule. On that basis the Union's representative submits that work which was performed by the trade on the effective date of the incidental work rule is, subject to the application of the rule itself, work which remains in the hands of that trade. The Company takes a different view, arguing that the concept of work assigned within the meaning of the first sentence of Rule 56.2 must be taken to mean work which belongs to the trade as defined in the crafts' special rules, more specifically found in Rule 52.

In considering the competing submissions of the parties it is, in my view, useful to review the reasoning of Arbitrator Larson as an aid to understanding the language of Rule 56.2. As pp. 86-7 of his award he made the following comments with respect to the purpose of the rule, after discussing the problems that existed when, for example, productive time was lost because craftsmen from one trade had to stop work while they waited for relatively minor work to be accomplished by craftsmen from another trade:

I am persuaded that significant inefficiencies do exist and that they result in large measure from a strict administration of the Crafts Special Rules and the Jurisdictional Understanding Rules. Indeed, that a problem exists was conceded by the unions themselves when they conditionally agreed at an earlier stage to a form of an incidental work rule. Nor am I convinced that the purpose of the proposed rule is to create a composite mechanic.

In the alternative, the unions proposed that in the event that I should determine that an incidental work rule is required, that several conditions and wording changes ought to be incorporated. Since I am of the view that such a rule is justified, I have given careful consideration to those suggestions.

In that regard, I should like to make it clear that I do not accept that the Jurisdictional Understanding Rules should be deleted from the collective agreements. Indeed, I consider that proposal to be inconsistent with the essential nature of the incidental work rule advocated by the companies themselves (represented by the first sentence of their proposal) which is to preserve the work of the various crafts but certain limited purposes craft boundaries may be crossed.

It appears from the foregoing passage that the incidental work rule proceeds from the premise that there are certain core functions which fall within the jurisdiction of specific crafts and cannot, except for the circumstances contemplated in the incidental work rule, be assigned to others. It appears to the Arbitrator, however, that the parties anticipated that other work, even though not specifically listed in Rule 52.2, could nevertheless be viewed as Boilermakers' work. That is the effect, at least in part, of the phrase "...and all other work generally recognized as Boilermakers' work on steam, electric or diesel locomotives," which is found within the Rule.

In interpreting Rule 56.2, however, it is important to recognize the trade-off implicit in its terms. On the one hand the rule gives the employer the latitude to implement cross-trade assignments in certain defined circumstances while, on the other hand, it acknowledges the presumptive right of the craft to perform work as it was assigned at the time of Arbitrator Larson's award. I cannot, however, accept the suggestion implicit in the Union's position that each and every task assigned to Boilermakers as of that date must be viewed as jurisdictionally protected. The award of Mr. Larson and the collective agreement must be read as a whole, with regard to the realities of the workplace, the content of the crafts' special rules and the purpose of the incidental work rule.

Taking that view, it appears that the Union in the case at hand is entitled to assert, on the basis of Rule 56.2, a jurisdictional protection for work which could fairly be said to have been work relating to the craft and performed by the craft in such a way as to be work of the Boilermakers' trade at the time in question. However, functions assigned to Boilermakers which have little or no relation to their traditional work jurisdiction cannot, in my view, be said to fall within the protection contemplated by Rule 56.2. For example, if for a substantial period of time a function such as waste removal, which is entirely unrelated to traditional Boilermakers work, had been assigned exclusively to Boilermakers as a top-up assignment, the fact that such work continued to be assigned to Boilermakers on the date of the Larson award would not bring it within the jurisdictional protection of the rule. The rule must be construed in a more purposive fashion, with due regard to traditional craft functions as well as local trade practices in effect at the time of the Larson award.

In the Arbitrator's view, subject to the foregoing qualifications, the position advanced by the Union is to be preferred. The question then becomes what work, at the Winnipeg Diesel Shop, prior to the removal of the five boilermakers, could fairly be described as work generally recognized as boilermakers' work in the Winnipeg Diesel Shop. The Union submits, without having called the specific evidence, that there were a number of functions, including welding, which were performed exclusively by Boilermakers at the Shop and which would, therefore, qualify as work recognized as boilermakers' work at that location. This, necessarily, becomes a matter of fact. If it can be shown that there was a clearly identifiable set of tasks which were consistently assigned to boilermakers, to the extent that they were generally recognized as boilermakers' work at that location, those tasks would continue to be protected within the jurisdiction of the boilermakers, save to the extent that they might be encroached upon through the application of the incidental work rule. If, on the other hand, the evidence discloses that there were no tasks which could be so described, and that work which was performed by boilermakers was performed with comparable frequency by other trades, it may be that there were no tasks which could qualify as work generally recognized in the location as boilermakers' work. This, for obvious reasons, can only be determined by the agreement of the parties having regard to the circumstances in effect prior to the transfer of the five boilermakers, and failing their ability to agree, through the presentation of evidence.

For the foregoing reasons the grievance is allowed, conditionally. Any work which was performed by boilermakers in the Winnipeg Diesel Shop prior to the transfer of boilermakers from that location after March 3, 1989, and which continues to be available to an extent that it would be work generally recognized as boilermakers' work at that location within the meaning of Rule 56.2, continues to be the work of boilermakers insofar as it is still available, subject only to the application of the incidental work rule. The extent to which work was so performed in the past, or remains in the present, is a matter of evidence upon which the parties should be given the opportunity to consult, and failing agreement, bring evidence before the Arbitrator. The matter is therefore remitted to the parties, with the Arbitrator retaining jurisdiction with respect to hearing further evidence, if necessary and to determining such remedy as may be appropriate in the circumstances.

DATED at Toronto this 6th day of November, 1991.

(sgd) M. G. Picher

Arbitrator