BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Kevin M. Burkett

There appeared on behalf of the Company:

And on behalf of the Union:

A hearing in this matter was held in Toronto, Ontario on February 24, 1997.

Under the terms of an agreement entered into on June 11, 1996 the parties established new skilled trades definitions and lines of demarcation. Under the heading "Transitionary Period" the parties agreed that any items remaining in dispute following the Company advice to the Union as to "its proposed numbers of employees per modernized trade by facility" would be submitted to myself, as a single arbitrator, for binding resolution. Three such disputes have been submitted to me and a hearing in respect of these disputes took place in Toronto, Ontario on February 24, 1997. There was no dispute raised with respect to my authority to hear and determine these disputes.

The Company has assigned heavy duty mechanics to perform wheel truing at the Alyth Locomotive Repair Facility, the Winnipeg Locomotive Repair Facility and the Toronto Locomotive Repair Facility. The Union submits that one industrial mechanic/millwright position should have been established at each of these facilities to perform this work. Wheel truing is a process by which metal wheel sets that are "out of round" are cut or shaved to restore roundness. There is no dispute between the parties that the wheel truing machine, by which this cutting is performed, is a "metal cutting machine" within the meaning of the agreed upon trades definition for an industrial mechanic/millwright.

The necessary starting point in deciding this matter is the agreement between the parties dated June 11, 1996. The trades definitions therein, for the industrial mechanic/millwright and the heavy duty equipment mechanic, read as follows:

On the face, therefore, the operation of cutting machines, including the wheel truing machines that are at issue, is work that falls within the trades definition for the industrial mechanic/millwright. If there was nothing further in the agreement pertaining to the operation of the wheel truing machines I would be compelled to decide this issue in favour of the Union.

However, the parties have incorporated the following note under the heading industrial mechanic/millwright:

The parties have agreed, therefore, that although the work falls within the definition of the industrial mechanic/millwright, a heavy duty equipment mechanic may be assigned to operate a wheel truing machine, "where there is insufficient work at a facility to justify the full-time use of an industrial mechanic/millwright." The Company takes the position that there is insufficient work at each of the facilities named and, therefore, asserts that it is free to assign a heavy duty equipment mechanic. The Union submits that there is sufficient work as would require the assignment of an industrial mechanic/millwright at each of these facilities. Thus, the issue is joined.

Before turning to the evidence pertaining to the sufficiency of the work, it is necessary to establish the framework within which such evidence must be considered. Firstly, the efficient operation of the business dictates that this is work that ought not to be held for a particular shift. The Company’s ability to service its customers is dependent upon the quickest possible turnaround time in servicing its locomotives. Accordingly, I reject the Union suggestion that the sufficiency of the work be determined as if it was done by a single tradesperson on a single shift. The work has historically been done on a three shift per day, seven day a week basis. Accordingly, the evidence as to sufficiency must also be assessed on this basis.

Secondly, it is suggested by the Union that the sufficiency of the work necessary to require the assignment of an industrial mechanic/millwright must be considered in light of the other work available to be performed by an industrial mechanic/millwright. I reject this suggestion as a proper basis for consideration. In the first place the note contained in the June 11, 1996 agreement does not admit to such a combination of work. The note stipulates that if there is not sufficient work "to justify the full-time use of an industrial mechanic/millwright to operate a wheel truing machine, a heavy duty equipment operator may be used." On a more practical level, there is no evidence before me that the current complement of industrial mechanics/millwrights at the facilities in question is insufficient to perform all of the work required of this trades group. Absent such evidence it cannot be suggested that there is additional industrial mechanic/millwright work that could be combined with wheel truing to cause an industrial mechanic/millwright to be assigned in place of a heavy duty equipment mechanic.

Finally, I am satisfied that the standard times for various wheel truing operations, which include set-up time, as relied upon by the Company, are a reliable measure of the actual time required to complete these operations from start to finish.

Having regard to all of the foregoing, I have reviewed the evidence pertaining to the time spent operating wheel truing machines at these facilities and I am satisfied that there is insufficient work at any one of these facilities to justify the full-time use of an industrial mechanic/millwright to operate a wheel truing machine. The average utilization of the wheel truing machine in the Toronto Locomotive Repair Facility for the 23-month period commencing January 1, 1995 through November 30, 1996 was 22.3 % for 1995 and 25.7 % for 1996. The average utilization by shift during this 23-month period ranged from 6.5 % to 37.5 % in 1995 and from 13.3 % to 43.5 % in 1996. The evidence establishes that the average utilization of the wheel truing machine at Winnipeg Locomotive Repair Facility for the same 23-month period is 33.8% for 1995 and 37.2% for 1996. The average utilization per shift during this period ranged from 4.6 % to 55.2 % in 1995 and from 14.5 % to 64.7 % in 1996. Finally, the evidence establishes that the average utilization of the wheel truing machine at the Alyth Locomotive Repair Facility for this 23-month period was 36.2% for 1995 and 43.5% for 1996. The average utilization per shift during this period ranged from 10% to 53% in 1995 and from 20% to 50 % in 1996.

Having regard to the foregoing, I am not required to identify the threshold that would require the assignment of an industrial mechanic/millwright. It is sufficient in deciding this issue at this time to find that at all three facilities there is insufficient work "to justify the full-time use of an industrial mechanic/millwright to operate a wheel truing machine." This is not to say that at some future date, when the impact of such initiatives as increasing the size of the fleet coupled with the installation of additional wheel truing machines at the Moose Jaw and Coquitlam facilities have had their full impact, a different result might obtain. At this time, however, the assignment of heavy duty equipment mechanics at each of the three facilities is permitted. Accordingly, this dispute is resolved in favour of the Company.

This dispute concerns the number of electricians at Golden. The Union takes the position that the Company agreed in mediation to the assignment of three electricians to Golden. The Company, while acknowledging that it did agree to the assignment of three electricians to Golden, asserts that this was done in error and that, in fact, it has never had electricians at Golden but rather the hybrid trade of diesel maintainer. Diesel maintainers are recruited from the ranks of electricians and maintainers.

The Company conceded at the hearing that it could go with three electricians but the result may be to force moves to Calgary, when it was not intended under the trades modernization agreement to force tradespersons to move.

I hereby confirm my oral ruling at the hearing that having regard to the overriding purpose of moving the process ahead and having regard to the fact that this matter had been agreed between the parties, three electricians are to be assigned to Golden. It is understood that any issue arising out of the reassignment of these electricians away from Golden can be dealt with if and when such reassignment occurs.

The Union contends that eight additional metal fabricator/welder positions should be created at the Ogden Locomotive Repair Facility. The Company has assigned heavy duty equipment mechanics to perform the work in question. More specifically, it is the position of the Union that three metal fabricator/welder positions should be created in the radiator shop; three metal fabricator/welder positions should be created in the locomotive truck rebuild; and two metal fabricator/welder positions should be created in the journal box rebuild.

The trades definition for the metal fabricator/welder reads as follows:

The explanatory letter elaborates as follows:

The preamble to the lines of demarcation stipulates that "all types of work as set out shall be performed exclusively by employees in the respective trades." Except as modified by the letter of explanation, therefore, the work described in the trade definition is exclusively that of the trade. In respect of the metal fabricator/welder the letter provides that other trades can perform "non-structural welding...in the course of performing the usual work of their trade where such welding...falls within the curricula and normal work practices. " As I read this exception to exclusivity, where the preconditions are met, an incumbent in another trade is not required to stop work and wait before carrying on with the work process, while a welder performs this type of welding. It is doubtful, in my view, given the overriding exclusivity and the obvious purpose of the exception, that the exception would operate where in the normal course this welding is assigned to a single person(s) or where it is brought to a single work station(s). In these circumstances the requirement for non-structural welding does not stand in the way of efficient completion of the normal work of the heavy duty equipment mechanic.

The Company relies on the lack of sufficient welding in each of these three work areas to occupy a welder on a full-time basis, in support of its decision to have the work done by a heavy duty equipment mechanic. The lack of sufficient work in a particular work area does not trigger an exception to exclusivity. However, once the preconditions to assignment outside the trade are met, the lack of sufficient work is a factor in favour of exercising the Company’s discretion to assign the work outside the trade. In this connection the words in the letter of explanation that "the trade will be employed primarily in main shops or wherever there is full-time ongoing work" support the conclusion, as does the objective of maintaining efficient operations, that metal fabricators/welders will be fully occupied in the work of the trade. However, there is nothing on the face of the document or necessarily arising from the objective of maintaining efficient operations that would require that the scope of a metal fabricator’s/welder’s work assignments be limited to a single work area within a main shop. Indeed, it seems to me that the efficient utilization of metal fabricators/welders in a main shop would require coordinated work assignments between various work areas. The stipulation in the letter of explanation that "in cases of need in one of the locomotive or car sides, a metal fabricator/welder from the other side could be assigned," supports this conclusion. Against this backdrop I now turn to the specific issues concerning the metal fabricator/welder trade classification.

Radiator work has historically been performed by sheet metal workers. The parties are agreed that under the new lines of demarcation this work will no longer be performed by sheet metal workers. The issue is whether it is properly the work of metal fabricators/welders or heavy duty equipment mechanics under the new lines of demarcation. Presently, all road locomotives in the Company’s fleet are equipped with mechanically bonded radiators. None of the work performed in connection with the mechanically bonded radiators requires welding. The Company is presently refitting its yard fleet with mechanically bonded radiators. However, at the present time, the bulk of these locomotives are equipped with soldered radiators. In the repair of these radiators the leaking tube is plugged at both ends by soldering. It is this work and the soldering of radiator cores from locomotive lubrication oil coolers (there are only about one hundred of these repaired annually) that is in issue.

In making its submissions in support of the use of heavy duty equipment mechanics to perform this work the Company asserts, firstly, that of the three employees assigned to perform work in the radiator shop, only one does soldering and then not on a full-time basis; secondly, that the rest of the work clearly falls within the description of that performed by the heavy duty equipment mechanic; and, thirdly, that soldering is a minor skill, as distinct from welding, that is common to both heavy duty equipment mechanics and to metal fabricators/welders. The Company argues that the bulk of the work in the radiator shop is accomplished using wrenches, air impact tools, reamers and other similar hand tools used by heavy duty equipment mechanics. It is the position of the Company that because the soldering of these radiators is properly the work of either trade and because the bulk of the work in that shop is work falling within the heavy duty equipment mechanic trade this work should also be assigned to that classification in order to ensure continuity of work flow within the one trade.

It is the position of the Union that under the terms of the lines of demarcation welding is an activity that falls exclusively within the jurisdiction of the metal fabricator/welder except that other trades may "perform(ing) non-structural welding or minor painting work in the course of performing the usual work of their trades where such welding falls within their curricula and normal work practices." The Union submits that the work in question does not fall within the foregoing exception and, therefore, regardless of how little of such work there may be in the future, at the present the Company cannot bring the incumbents within the exception. The Union asks me to find that the work in question, which entails almost continuous welding, constitutes "repairs to metal components, fittings and assemblies pertaining to… locomotives …," within the meaning of the clear definition for the metal fabricator/welder.

I start by rejecting the submission of the Company that the continuity of the work flow within the shop weighs in favour of assigning all of the work to the heavy duty equipment mechanic trade. The work is presently assigned on the basis that one individual does soldering on a more or less continuous basis per shift. Accordingly, while the other two individuals perform work on an ongoing basis that falls within the heavy duty equipment mechanic trade, the third tradesperson could as easily be a metal fabricator/welder as a heavy duty equipment mechanic.

I accept the submission of the Union that except for the work described in the explanatory letter, welding is within the exclusive domain of the metal fabricator/welder. I accept the further submission of the Union that I must rule on the basis of the situation as it presently exists and not on the basis of what the situation might be at some future date.

Having regard to all of the foregoing, I am of the view that this soldering work, as welding work that is assigned to a single incumbent for the better part of each shift, does not constitute work in the course of performing the usual work of that heavy duty equipment trade. It is not work that would require an interruption in the work flow of a heavy duty equipment mechanic in order to be performed by a welder and, therefore, it is not work that is within the exception contained in the letter of explanation.

Accordingly, it is work that must be assigned to the metal fabricator/welder. As an aside, I have not been satisfied that this work, coupled with whatever other work within the shop and within the trade that is available, would not constitute "ongoing full-time work" for a metal fabricator/welder. In so far as the Union seeks one additional metal fabricator/welder to be assigned to the radiator shop at Ogden for each shift, the claim succeeds.

Locomotive trucks are rebuilt at Ogden shop on a ten year cycle. As described by the Company, this rebuild work includes the removal of all air brake piping, pedestal liners, suspension springs, tractor motor nose support springs and all components fastened to the truck frame. The welding work includes tack welding into place replacement nose springs, the building up with weld of the "horn jaws" where worn below standard and some welding in connection with the wear plates.

The Union submits that there is sufficient welding for one metal fabricator/welder per shift. I am reminded that welding is an exclusive function of the metal fabricator/welder except that other trades may perform "… non-structural welding … in the course of performing the usual work of their trades where such welding … falls within the curricula and normal work practices."

The Company disputes that welding is done continuously. The Company refers to production records that show that each rebuild requires 130 man hours performed over 20 hours with the amount of welding per rebuild ranging from 0 to 8 hours. The Company submits that where, as here, the welding is performed as part of the rebuild process undertaken by heavy duty equipment mechanics, does not involve the joining of separated pieces of metal or structural welding and is sporadic but never more than 8 hours spread over a 24-hour period, it may properly be performed by a heavy duty equipment mechanic.

I have been persuaded by the position advanced by the Company. As distinct from the radiator repair function, the welding is not work that is assigned to a single person and, therefore, given the full scope of the locomotive truck rebuild function, it is work that satisfies the requirement of being "non-structural welding" that is performed "in the course of performing the usual work of (the heavy duty equipment mechanic)." It is also work that satisfies the other preconditions to assignment to the heavy duty equipment mechanic.

Having regard to all of the foregoing, the claim fails in so far as the Union seeks one metal fabricator/welder per shift to perform welding work in connection with the locomotive truck rebuild.

Journal boxes are components that house the roller bearings for locomotives and adapt the rectangular opening in the track frame to the round axle. They are also rebuilt on a ten year cycle at the Ogden shop. There are six wear plates on the box itself that are measured to determine if they continue to meet standards. If not, they are replaced, with the new wear plates tack welded into placed. Each box is rebuilt in five hours with a maximum of one hour required for the replacement of the wear plates. This work is performed at a dedicated work station.

Both parties make essentially the same arguments in respect of the use of a metal fabricator/welder in connection with journal box rebuilds as they did in connection with locomotive truck rebuild. However, there is a critical distinction. The journal box welding work is performed at a dedicated work station. The importance of this distinction is that whereas the welding work in connection with the locomotive truck rebuild can reasonably be described as done in the course of performing the usual work of the heavy duty equipment mechanic, the same cannot be said in respect of this welding. The welding work in connection with the journal box rebuilds is hived from the normal work process and, therefore, would not cause a heavy duty equipment mechanic to interrupt his work while waiting for a welder to complete his tasks. Accordingly, it cannot be brought within the exception to exclusivity as would allow the Company to assign it to a heavy duty equipment mechanic. Accordingly, it is work that must be assigned to the metal fabricator/welder. As an aside, I have not been satisfied that this work, coupled with whatever other work within the shop and within the trade that is available, would not constitute "ongoing full-time work" for a metal fabricator/welder.

In so far as the Union seeks two metal fabricators/welders to perform the welding work in connection with the rebuild of journal boxes, the claim succeeds.

Dated at Toronto this 18th day of March, 1997