SHP - 383
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
RE: Incidental Work Rule – Saskatoon
SOLE ARBITRATOR:Donald R. Munroe, Q.C.
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
S. A. MacDougald
A hearing in this matter was held in Montreal, June 15, 1993
The parties agreed that I was properly constituted as an arbitration board under their collective agreement with jurisdiction to resolve the issues in dispute. The heating of the matter was conducted at Montreal, P.Q., on June 15, 1993.
The dispute between the parties concerns the interpretation and application of Rule 62 – known as the Incidental Work Rule – in relation to certain facts and circumstances arising at the Saskatoon Motive Power Shop. It is common ground between the parties that the application of the Incidental Work Rule is location by location. Accordingly, it was understood and agreed between the parties that my award would have force and effect only at the one shop; indeed, only in respect of the particular grievance.
As I have stated, Rule 62 of the parties’ collective agreement is known as the Incidental Work Rule. It provides as follows:
(a) Except as is permitted by this rule, work will be 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, an employee in one craft may be required to do the work of another craft for short periods of time, provided that the employee is qualified to perform the work. 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;
(b) The maximum period of time that an employee in one craft may be assigned to do the work of another under paragraph (a) shall be limited to thirty (30) minutes in respect of any one such integrated work assignment;
(c) Within sixty (60) days of the signing of this award, the company shall identify to the appropriate General Chairmen which integrated work assignments will be required to be performed under this incidental work rule. Any subsequent change to those integrated work assignments shall be communicated to the General Chairman or the Local Union Representative concerned prior to implementation;
(d) No employee shall be laid off as a direct result of the application of this incidental work rule;
(e) Notwithstanding any of the above, this incidental work rule shall not be implemented unless and until substantially the same provisions are made to apply to those unions presently represented by the Canadian Council of Railway Shopcraft Unions.
Pursuant to Rule 29.4 of the collective agreement, the parties filed the following Joint Statement of Issue:
Alleged violation of Rule 62 of Agreement 12.40 when, on July 28, 1989, Machinists performed predispatch and trip inspection duties at Saskatoon Motive Power Shop, Saskatchewan.
STATEMENT OF ISSUE:
On July 28, 1989, during the 08:00 to 16:00 hour shift, Machinists performed trip inspections on units 4724, 5282, 1406, 1417, 4770, 4720, 4721, 1607, 1078, 1160 and 1130. The Brotherhood also indicates that Machinists performed predispatch duties on a consist of three units, numbers 4770, 4720 and 4721.
The Brotherhood contends that this predispatch inspection of consist and trip inspections is not an incidental task as contemplated by Arbitrator Larson in his award of April 11, 1988. The Brotherhood further contends that the checking of lights, switches, radios and cab amenities as indicated in the incidental Work Rule Assignment MP 111, or the change out of burnt light bulbs including sealed beams as indicated in the Incidental Work Rule Assignment MP 112, has always been part of the predispatch and trip inspection, and does not involve any other craft. It is also the Brotherhood’s contention that a trip and predispatch inspection requires the completion of a number of separate tasks, which cannot be considered as integrated.
The Brotherhood requests that the "practice" of assigning Machinists to perform trip inspections and/or predispatch inspection cease and that eight hours’ pay at time and one half be paid to the eligible electrician on July 28, 1989, on the overtime list at the Saskatchewan Motive Power Shop.
The Company does not agree to the Brotherhood’s contentions and has declined its request.
Prior to briefly reviewing the facts giving rise to the grievance, it is useful, I think, to make these few preliminary observations. The first is that Rule 62(a), by its clear terms, does two things: (1) it stipulates a general rule; and (2) it establishes an exception to the general rule (including the criteria by which the exception to the general rule is identifiable). The general rule – i.e., the presumptive starting point – is that "… work will be performed by employees in the craft to which such work is now assigned". The exception to the general rule is that "… in order to efficiently complete an integrated work assignment involving the work of two or more crafts, an employee in one craft may be required to do the work of another craft for short periods of time, provided that the employee is qualified to perform the work".
Second, in most instances, a party wishing to rely upon an exception to a contractual norm is required to show that the circumstances fall within the exception. Applying that proposition to this case, the onus is upon the company to demonstrate that in the circumstances here under scrutiny, the exception contemplated by Rule 62(a) of the collective agreement was brought into play. See also SHP No. 264 (Weatherill) at page 5 and SHP No. 315 (M. Picher) at page 6.
Third, especially in the instant case, the determination of whether the facts fit the exception must begin with a clear appreciation of the intended scope of operation of Rule 62. This, in turn, requires an examination of the material parts of the interest arbitration award published by Arbitrator Larson on April 11, 1988 (cf., Canadian Pacific Limited, October 21, 1991 [M. Picher] at page 6).
At pages 83-87 of the Larson award, one finds these passages:
[The incidental work rule issue] turned out to be a major issue between the parties … The issue originated in a proposal by the companies to delete the Jurisdictional Understanding Rules in the various shop crafts collective agreements and evolved in negotiations to a proposal that would have the effect of permitting the companies to make certain work assignments across craft boundaries.
… The work jurisdiction of each craft is described in the "Craft Special Rules" which are appended to each collective agreement. The Rules were first introduced into the agreements in 1910. The basic wording found in the current agreements was introduced around 1920 and has remained virtually unchanged with only minor revisions since that time.
… The companies argued that the Craft Special Rules and the Jurisdictional Understanding Rules have served to build walls around the crafts and have contributed vastly to an unproductive utilization of the work force.
… A number of examples were given, designed to demonstrate that the rigid craft lines involve inherent inefficiencies, particularly where job assignments require more than one craftsman. The evidence generally showed that one craftsman is invariably required to wait for another in order to complete his work. Productive time is also lost when a craftsman is required to travel to another place of work even in the same shop to do work of an incidental nature.
… 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 [by the companies] to be inconsistent with the essential nature of the incidental work rule advocated by the companies themselves … which is to preserve the work of the various crafts but to stipulate that for certain limited purposes craft boundaries may be crossed … (emphasis added)
In light of those passages, it is clear that the inefficiencies intended to be remedied by the Incidental Work Rule – the scope of operation of the Rule – are those arising from the workplace application of historical craft lines. That is to say, the Incidental Work Rule was not intended to be a device by which the company could seek to address and to rectify the various other workplace inefficiencies that can commonly arise for all manner of reasons. Put simply, the utilization of the Rule by the company must be linked to the underlying purpose of the Rule.
I turn now to the facts. Under normal circumstances, the work associated with predispatch or trip inspections is performed at the Saskatoon Motive Power Shop by a two-person team comprised of a machinist and an electrician. Thus, for present purposes, I believe that is the situation embraced by the general rule articulated by Rule 62(a): "… work will be performed by employees in the craft to which the work is now assigned".
Likewise under normal circumstances, two electricians are assigned to work on the day shift at the Saskatoon Power Motive Shop. The two electricians have interchangeable skills and duties. But on any given day, one of them is typically assigned to the work location at which the predispatch and trip inspections are carried out, while the other is typically assigned to work elsewhere in the shop. However, on July 28,1989, there were not two electricians working on the day shift. Rather, as recounted at paragraphs 30 and 31 of the company’s written brief:
… on Friday, July 28, 1989, due to vacation scheduling, out of the 12 unionized employees who were working on that day, only one was an electrician, Mr. David W. Roberts.
On the shift in question, Shop Management determined that the performance of certain electrical work on Caboose number 79849 was a priority, and Electrician Roberts was therefore assigned to that particular assignment on the day in question.
As indicated in the Joint Statement of Issue, trip inspections were performed on eleven units, and one predispatch inspection was performed on a consist of three locomotives, on the shift in question. These inspections were performed by two machinists. In effect, the Incidental Work Rule was used 12 times during the shift.
Briefly, then, on July 28,1989, as the result of vacation scheduling, the usual complement of two electricians on the day shift at Saskatoon was reduced to one electrician. Local management decided that the one electrician’s services could best be utilized doing electrical repair work on a caboose – i.e., as distinct from performing the tasks associated with predispatch and trip inspections. Without further staff reassignment, that would have meant that only a single employee – a machinist – would have been left to do the predispatch and trip inspections. But the due performance of the predispatch and trip inspections requires two persons. So, local management assigned a second machinist to work with the first machinist.
At the risk of some repetition, I now reproduce paragraphs 29-33 of the union’s written brief:
29. On the 8:00-16:00 shift of July 28, 1989, Electrician David Roberts, normally assigned to running work, was removed from that job at the start of the shift and re-assigned to the Car Shop to repair broken conduit and wiring on caboose no. 79849. That left the Diesel Shop without any electrician for the entire eight-hour shift.
30. During the course of the shift, trip inspections were performed on some eleven (11) locomotives on the trip pit, and a predispatch was performed on a consist of three locomotives. All these assignments were performed by two machinists, one of them being assigned to work alongside the single machinist who normally worked with Electrician Roberts
31. Prior to this occasion, when the electrician was absent from work or otherwise not available for trip pit duties, another electrician would be assigned in his place, if necessary by means of an overtime call.
32. Subsequently, for a period of time, this initial incident turned into a "practice", with the wholesale removal of electricians from trip inspections and predispatch work. Some time in 1990, this practice was partially reversed. The current practice appears to be the "blanking of shifts" – that is the failure to call a replacement electrician when one is absent, or on statutory holidays, etc., and instead assigning most of the duties involved to machinists.
33. The instant grievance, as set out in the Joint Statement of Issue, contests both the particular assignment of work on July 28, 1989, as well as the subsequent "practice" which persists to date, and requests relief on both counts.
For present purposes, I will assume (as the company contends) that both the predispatch and trip inspections comprise "… an integrated work assignment involving the work of two or more crafts" within the meaning of Rule 62(a). I will also assume (as the company further contends) that certain efficiencies were gained by the company’s chosen deployment of forces on July 28,1989. Nevertheless, I have concluded that the company’s actions on July 28, 1989 amounted to a misapplication of the Incidental Work Rule. I reach that conclusion because, in my view, the company’s decisions as to the deployment of the machinists and the electrician on July 28, 1989, were not in response to a problem which was intended to be addressed by the Rule. In truth, the problem confronting the company on that date was not one of inefficiencies having arisen due to the application of historical craft lines. Rather, the real reason why the company did what it did was a shortage of electricians on the day shift due to vacation scheduling. Thus, referring back to an observation made earlier in this award, I am of the opinion that the facts and circumstances at hand are outside the intended scope of operation of the Incidental Work Rule.
Moving to a related point, it is helpful to refer to the following passage from Arbitrator Larson’s supplementary award dated June 17,1988:
The word "efficiently" was not intended to constitute a counterpart to "timely" but was, nevertheless, intended to qualify the application of the rule. If an integrated assignment cannot be accomplished more efficiently by one "main craftsman" within the terms of the rule than by using several craftsmen, the incidental work rule cannot be applied to that integrated work assignment.
The intention was to improve productivity in the shops but where that cannot be accomplished through the application of the incidental work rule and it would be just as efficient to sequence the tasks through several craftsmen, the companies are not entitled to assign work across craft boundaries.
Following upon that passage, and having in mind all that I have said to this
point, I find myself in agreement with paragraphs 16, 17 and 41 of the union’s
16. What follows, then, is that...there must be a "main" (or "primary") craftsman who is responsible for the overall assignment and performs the bulk of the work, in addition to one or more "incidental" craftsmen who perform auxiliary aspects which cumulatively require no more than thirty minutes to complete.
17. Furthermore, before the rule will permit the main craftsman to perform the work of the incidental craftsmen, it must be demonstrated that such a transfer of work is necessary "to efficiently complete" the assignment. Note here, for later reference, that even given this prerequisite of enhanced efficiency of the assignment, only the single "main craftsman" is permitted to perform the incidental work. It is a trite observation that the entire edifice of the rule – both its text and the explanatory remarks of the Arbitrator – does not permit the replacement of the incidental craftsmen by some other, additional employees apart from the main craftsman himself.
41. Furthermore, as noted earlier, the effect of the Incidental Work Rule – even if enhanced efficiency of the assignment can be adequately demonstrated – is only to permit the "main craftsman" to perform the "incidental work" in addition to his own work That is the unequivocal statement made by paragraph (a) of the rule and supported by Arbitrator Larson’s supplementary ruling on pages 28-30 of the June 17 [supplementary] award. Under no circumstances, as argued earlier, is it open to the company to remove the electrician and replace him – in whole or in part – by an additional employee of another craft. Yet that is precisely what was done on July 28, 1989. In this respect, it does not matter whether the "new" machinist performed all the electrical work, or he assumed the "old" machinist’s tasks to free the latter to replace the electrician, or any combination thereof
Elaborating briefly on the union’s statement in paragraph 41 that "… that is precisely what was done on July 28,1989", I simply reiterate that the work associated with predispatch and trip inspections undoubtedly requires two persons; that this was not a situation where the "main" craftsman was asked to do the "incidental" craftsman’s work to the exclusion or partial exclusion of the latter. Rather, this was a case of an additional machinist being substituted for an electrician – i.e. additional to the continuing presence of the first machinist. And, as I have indicated, I agree with the union that that is something which is outside the true purpose of the Incidental Work Rule.
For all the foregoing reasons, I conclude that this grievance must succeed. It is hereby declared that on July 28, 1989, the company was in breach of the collective agreement as alleged. I believe the union is also correct in seeking payment at overtime rates for the day shift on that date for an electrician to be designated by it. Had the company not proceeded as it did on July 28,1989, it likely would have called in an electrician to fulfil the existing work requirements. The company submitted that there was no evidence to suggest that an electrician would have been available and willing to be called in to perform such work. But not having made any effort in that regard, I do not believe that the company’s submission should be accepted as a basis for denying the monetary relief clammed.
It perhaps goes without saying that at the Saskatoon Motive Power Shop, the company is not entitled to continue a practice which essentially replicates what occurred on July 28,1989.
I will remain seised of the matter to ensure the correct implementation of this award.
I should note that the International Association of Machinists and Aerospace Workers was given notice of the union’s grievance and of the arbitration hearing, but indicated a disinterest in the outcome.
DATED AT VANCOUVER, B.C., THIS 23rd DAY OF JULY, 1993.
(signed) DAVID R. MUNROE, Q.C.