IN the MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED (STL&H)
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
B. R. McDonagh – National Representative, New Westminster
R. Loughlin – Vice-President, Oshawa
L. Tetler – Stewart, London
J. Robicheau – Grievor
Appearing For The Company:
A. Y. deMontigny – Labour Relations Officer, Montreal
R. Taylor – Operations Coordinator, London
A hearing in this matter was held in Toronto on Monday, November 9, 1998
The Dispute, Joint Statement of Fact and Joint Statement of Issue filed at the hearing read as follows:
Violation of Rules 23.21, 23.22 and 23.23 of Collective Agreement 101.
JOINT STATEMENT OF FACT:
On August 3, 1995 Labourers D. Matt, J. Rankin, J. Robicheau, L. Scott and T. McDougall were advised that due to the depletion of Labourers’ work at the London Facility, they will be placed on laid off status effective Friday August 11, 1995. The effective date was later extended until August 25, 1995. On or about September 19, 1996 the reduction was considered to be of a permanent nature within the meaning of Article 8.1(c) of the Job Security Agreement dated July 24, 1995.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that:
– four of the five employees affected were hired to taxi train crews in a crew bus within and on occasion outside of London yard limits.
– their employment applications would confirm this.
Therefore the Union requests that the employees affected be returned to work at London and be reimbursed for all work opportunities lost.
The Company denies the Union’s contentions and claim.
For The Union: For The Company:
(signed) R. LOUGHLIN (signed) A. Y. DEMONTIGNY
FOR: NATIONAL REPRESENTATIVE FOR: DIRECTOR, LABOUR RELATIONS
The facts pertinent to this grievance are not in dispute. On or about August 2, 1996 the Company’s Manager, Labour Relations advised the Union that the Company would be laying off five labourers at London. On August 24 the Union’s Vice-President, Eastern Region grieved, alleging a violation of the Job Security Agreement. It appears that approximately one year later, on September 19, 1996 the Company advised the Union that as the reduction of the five positions in London was considered to be permanent, within the contemplation of article 8.1(c) of the Job Security Agreement in consequence of which the provisions of article 7B of the agreement would be applied.
Subsequently, however, the Union took the position that the Company had improperly reassigned the duties of the abolished positions to operating personnel. A further grievance was therefore filed on February 18, 1997, protesting the assignment of the work in question to persons other than labourers within the Union’s bargaining unit. That grievance, denied by the Company, is the subject of this arbitration. The Union seeks a direction that the employees be returned to work at London, with compensation for all wages and benefits lost.
The evidence before the Arbitrator discloses that the labourers who are the subject of this grievance performed a variety of duties, some of which overlapped work of other classifications and bargaining units. In addition to cleaning locomotive units, the labourers changed engine radios, added water, lubrication oil and governor oil as necessary. They occasionally changed out windshield wipers and made other minor repairs as needed. They installed and removed SBU units, replaced IDUs, performed brake tests and inspected cars. Further, they were involved in driving a company van to transport crews to and from locations within the London yard. Their duties also involved unloading and storing supplies and equipment received at London, including crew packs, cases of water and batteries.
Evidence was given on behalf of the Company by Mr. Roy Taylor, Mechanical Coordinator responsible for the territory between Windsor and London. He submits that changes in the amount of work available to the labourers resulted, in part, from the changing of London from a terminal to a crew change-out point. According to his account many of the tasks previously performed, such as cleaning, minor repairs, changing radios, lubrication oil and changing windshield wipers are no longer done at London, and are performed at other locations, including Toronto, by bargaining unit members. He also notes that there is no longer a diesel shop at the London location, with any necessary diesel inspections which might occasionally arise being performed by a diesel inspection charge hand based in Galt. He further submits that many of the tasks which had sometimes been performed by labourers were frequently also performed by other trades, such as the handling of SBUs by running crews, and the driving of the crew bus by both supervisors and by members of running crews themselves. As to the delivery and storage of goods, he relates that for the main part the truck driver, employed by an outside company, unloads and stores the materials delivered himself, estimating that the frequency of deliveries is now approximately two trucks per month. He also notes that the janitorial work at London has always been performed on a contracted out basis, as it continues to be.
The Union alleges violations of rules 23.21, 23.22 and 23.23 which read as follows:
23.21In the restoration of forces, employees laid off shall be given preference of re-employment in seniority order. A laid-off employee shall be notified by registered mail at his last known address and he shall be returned to his former classification. Regional Vice-President shall be furnished with a list of employees to be restored to service.
23.22 It shall be incumbent upon the employee on layoff, and the employee who has displaced on his basic seniority territory or Region in accordance with Rules 23.17 and 23.18, to register his current address with the appropriate officer at his home seniority terminal.
23.23 A laid-off employee who has not displaced in accordance with Rules 23.17 and 23.18 shall retain his seniority rights in his respective classification at his home seniority terminal and shall be subject to recall to his home seniority terminal in seniority order. An employee shall, and the end of 7 calendar days, unless satisfactory reason is given therefor, forfeit his seniority rights in the classification to which recalled at his home seniority terminal if he declines to accept recall to vacancies of an expected duration of 90 calendar days or more.
During the course of argumentation the Union’s representative further submitted that an article 8.1 notice should have been served for the original layoffs. The company’s representative takes exception to that issue being raised, as it is not contained within the Joint Statement of Issue. As a fundamental position, the Arbitrator must sustain the argument of the Company on that point. Rule 29.4 of the collective agreement contemplates the parties filing a Joint Statement of Issue, to be submitted to the arbitrator at least thirty days prior to the hearing. While the instant collective agreement does not, like others in the railway industry, expressly preclude the arbitrator from dealing with issues not mentioned in the Joint Statement of Issue, prior awards have noted that the intention is essentially the same, and that otherwise the requirement of a Joint Statement of Issue would have little practical purpose. I would therefore conclude that the issue of any violation of article 8 of the Job Security Agreement is not properly before me.
That said, however, I am also satisfied that should I be incorrect in the foregoing conclusion, the circumstances disclosed would not bring article 8 to bear in respect of the initial layoff of the employees concerned. The evidence before me amply demonstrates that the employees in question did perform a number of tasks which overlapped the duties of other bargaining units and classifications, including work performed by carmen and running trades employees. What occurred at London, for the main part, was a reduction in the volume of work by reason of a decline in activity by virtue of the Company’s decision to have functions previously performed at London done elsewhere. It is well established that where the mere reassignment or relocation of work causes a reduction in employment opportunities, such layoffs as may result do not flow from an operational or organizational change. What transpired was a normal reassignment of duties "… arising out of the nature of the work in which the employees are engaged" within the contemplation of article 8.7 of the Job Security Agreement. In the result, I would find that the Company was correct in applying article 8.1(c) to the circumstances of the original layoff, when it became apparent that it would become a permanent change.
The issue of substance becomes whether the Union can claim jurisdiction to the work previously performed by the labourers at London, now performed by persons in other bargaining units and supervisors, albeit on a reduced basis. The Arbitrator must accept the argument of the Company concerning that portion of the work which relates to driving the train crews within or near the London yard. There is nothing within the collective agreement, and particularly within rule 23.40 which describes such work as falling within the labourers group. Like a number of other functions, the driving of crews by the employees who are the subject of this grievance involved performing work overlapping into that of both supervision and other bargaining units. This is not work in respect of which the Union can claim exclusive jurisdiction. It does not appear disputed, for example, that the transportation of crews both in Toronto and Montreal is performed by employees in the dedicated classification of crew/mail driver within the bargaining unit of the Transportation Communications Union (TCU).
Upon a review of the evidence the Arbitrator is satisfied that the grievance cannot succeed. Notwithstanding that the labourers may have performed a number of tasks, and may have been most often assigned to drive crew vans, the Union cannot assert exclusive jurisdiction to the work which is the subject of this dispute. Nor can it point to the employment of individuals who can fairly be said to be performing, as the core of their duties, little more that work which would normally fall within the labourers’ classification, within the bargaining unit. The fact that a member of another bargaining unit, for example a running trades employee, might perform a locomotive cleaning function which was previously performed by both running trades employees and labourers does not bring the work so performed within the Union’s bargaining unit. Very simply, the facts disclosed to not fall within the principles described in CROA 2169, where the arbitrator acknowledged that, even absent a collective agreement provision for exclusive jurisdiction, it is not open to an employer to effectively assign the essential duties of a bargaining unit position, and little more, to another individual without acknowledging that that person in fact works within the bargaining unit. That has not occurred in the case at hand. Rather, the facts disclose that initially the labourers performed both work associated with the labourers’ classification and work normally performed by members of other bargaining units. The Union cannot now assert exclusive jurisdiction in relation to those tasks. Secondly, with respect to work which would fall within the normal job description of labourers under rule 23.40, the evidence conclusively establishes that the volume of work of that kind was no longer sufficient to sustain the employment of the individuals in question.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, December 14, 1998
MICHEL G. PICHER