SHP 514:

AWARD

At the outset of the hearing, the parties agreed that the arbitrator was duly and properly appointed. The parties further agreed that the arbitrator had jurisdiction to decide the issues raised by the grievance. No preliminary objections were raised as to jurisdiction or other matters.

The parties had failed to agree upon an arbitrator. As such, the arbitrator was appointed . by the Federal Minister of Labour. Under the Canada Labour Code, it is contemplated the arbitrator’s decision will be made within sixty (60) days of the appointment. However, in this instance there was some delay in the parties agreeing to a hearing date. The parties confirmed that they were waiving the time provision contained in Section 64 of the Canada Labour Code. As well, the parties waived any time provision for the delivery of this Award, pursuant to the terms of the Collective Agreement.

Canadian Pacific Railway Company (sometimes hereinafter referred to as “CP Rail” or the “Employer” or the “Railway” or the “Company”) is a party to a Collective Agreement with National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) Local 101 (sometimes hereinafter referred to as “CAW” or the “Union”). The Collective Agreement is dated December 20th, 1996. It was brought to the attention of the arbitrator that a subsequent agreement has been entered into between the parties; however the Collective Agreement dated December 20th, 1996 is the agreement in effect for the purposes of this grievance.

The Collective Agreement contemplates that the parties will submit to the arbitrator a Joint Statement of Fact and Issue (the “Joint Statement”). The Joint Statement, in large measure, frames the difference or issue between the parties. In this instance, the Joint Statement reads as follows:

DISPUTE:

9BARB / 32 - 0GC0036 grievance on behalf of Labourer T. Appleton concerning alleged violation of Rule 23, 23.39 23.40 of the Collective Agreement.

STATEMENT OF FACT:

On March 9, 1998 at 2:45 p.m. it was observed that a tradesperson was performing a general cleaning of the shop. On March 21, 1998 at 9:15 p.m. a tradesperson was instructed to clean the pit on track 9 and also on March 27, 1998 at 8:44 a.m. it was again observed that another tradesperson was assigned by the Company to clean shop pit at the Winnipeg Diesel Shop.

STATEMENT OF ISSUE:

It is the submission of the Union that this work assignment belongs to the Labourer’s group and the Company is in violation of Rule 23, 23.39, 23.40. The Union asks the arbitrator to so rule. The Union further requests full redress for all employees affected in the Labourer’s Classification.

The Company denies the Union’s contention and claims.

As will be seen from the Joint Statement, the grievance involved events that occurred on three separate days. At the outset of the arbitration, the Arbitrator was informed that the matter actually commenced as three separate grievances, which were ultimately combined into one grievance.

The dispute relates to a difference of opinion as to whether certain work performed by one or more tradespersons on the days in question constitutes a violation of the Collective Agreement. As noted in the Joint Statement, the violation alleged pertains to Rule 23, 23.39 and 23.40.

Rule 23 has a general heading referable to “Seniority”. While I do not propose to recite verbatim the provisions of all of Rule 23, it is appropriate to recite 23.39 and 23.40. These are as follows:

23.39 Up to and including February 28, 1988, the Labourers’ group includes Classified and Unclassified Labourers as follows:

Classified Labourers Engine Cleaners-Supplymen (Sandhousemen, Filter Cleaners, fueling, sanding and watering diesel engines, Oil Pumpers, Fuel Oil Attendants)

Labourers engaged full time in cleaning diesel locomotives at Angus, Weston and Ogden Shops

Lye Vat Attendants Water Softening Plant Attendants (Moose Jaw and Swift Current)

Engine Attendants’ Helpers

Unclassified Labourers Car Yard Labourers

Main Shop Labourers

Power House Labourers

Labourers - Cleaning shops, shop pits and moving material etc.

Diesel Ship Labourers

23.40 The Labourers’ group will include the following classifications:

Engine Cleaners - Supplymen (Sandhousemen, Filter Cleaners, fueling, sanding and water diesel engines, Oil Pumpers, Fuel Oil Attendants)

Labourers engaged full time in cleaning diesel locomotives at Angus, Weston and Ogden Shops

Lye Vat Attendants Water Softening Plant Attendants (Moose Jaw and Swift Current)

Engine Attendants’ Helpers

Car Yard Labourers

Main Shop Labourers

Power House Labourers

Labourers - Cleaning shops, shop pit and moving material, etc.

Diesel Shop Labourers

Following the filing of the first grievance (being the grievance referable to the events of March 9th, 1998), the immediate C.P. Rail Supervisor justified the tradespersons work on the basis that the tradespersons bulletin contains the words “nature of work as machinist or electrician – any other duties that may be required.”.

The bulletin being referred to is a document unilaterally created by the Employer. I do not have any hesitation in observing that the insertion of the words “any other duties that may be required” does not, of and by itself, provide sufficient justification for the disputed work assignment.

At the next level of the grievance procedure, the Company’s response was issued by the Facility Manager. That response was as follows:

General housekeeping in the shop is everyone’s responsibility and no Labourers were adversely affected.

While the March 9th, 1998 grievance related to general cleaning of the shop, the grievance of March 21st, 1998 focused on a more specific item. The concern expressed in the grievance relates to the assignment of a tradesperson to clean the pit on Track 9. At an early stage of the grievance procedure, the Facility Manager responded to this complaint, as follows:

Tradesmen at times may be asked to clean their work area prior to starting a task to ensure that the area is clean and safe if labourers are not available at the time.

The grievance of March 27th, 1998 again took issue with the assignment of a tradesperson to clean the pits, contending that it is a labourer’s job and assigning it to a tradesman is a violation of the Collective Agreement. At this early stage in the grievance procedure, the Facility Manager rejected the grievance, stating that:

General housekeeping in the shop is everyone’s responsibility and no labourers were adversely affected.

The Union does not take issue with the notion of a tradesperson cleaning up his immediate work area for safety reasons in the course of his or her duties. The Union accepts that this can be regarded as “housekeeping”. The Union however takes issue when the tradesman is assigned to general cleaning of the shop, as the Union regards this as work presently and normally performed by the, Labourers classification. Put another way, the Union takes the position that such work assignment belongs to the labourers group and that the performance of such work by a Tradesman (or the assignment of a Tradesman to perform such work) therefore violates the Collective Agreement.

As is normally the case in an unresolved grievance, the matter proceeded to a higher level of management. The response by the Company to these grievances was given by W.S. Burns, District Manager, Mechanical Services, Lakes West. It is of value to recite the response given by Mr. Burns, in a letter dated June 15th, 1998, which reads, in part, as follows:

As I understand your grievance, you are suggesting that tradespersons cannot perform any general cleaning duties whatsoever at the Winnipeg Diesel Shop. The Company strongly disagrees. Unlike those associated with tradespersons identified in the Collective Agreement, there is no Rule which outlines the “duties” of those working in Labourer classifications.

Rules 23.39 and 23.40, which you have cited, do not outline duties but rather identify the classifications of employees working under the terms of the Collective agreement

Rule 23.39 simply informs us that the “Labourers’ group includes Classified and Unclassified Labourers” and then identifies the classifications, which fall into each category. Of course, we no longer employ Unclassified Labourers.

Rule 23.40 informs us that the “Labourer’s group will include the following classifications” and then proceeds to list the various classifications. However, neither of these Rules identifies specific duties of Labourers. Clearly then, if the company elects to utilize a higher paid tradesperson to occasionally clean where required, when Labourers are not immediately available, there is nothing in the Collective Agreement, which precludes such a practice.

The position advanced by CAW was not simply that the work in issue is work presently and normally performed by the Labourers classification, but as well, that the Collective Agreement does not intend for tradespersons to perform work not identified as work of their trade.

Based upon the material before the Arbitrator, it appears that the Collective Agreement at issue is made up of a combination of eight previous Collective Agreements. The origin of this situation apparently arose by virtue of a certification vote held in June, 1994 by the Canada Labour Relations Board. As a result of that vote, seven shop craft unions were merged or combined into one bargaining unit, all under the authority: of one union, namely CAW.

Consequent upon this creation of one bargaining unit, it became necessary for the parties to consolidate the various pre-existing collective agreements into one Collective Agreement. Attached to this Collective Agreement is Appendix 43. Appendix 43 sets out a process and, as well, certain guiding principles in respect of the consolidation of the collective agreements. The first three of these principles are as follows:

1. That no employee shall lose a provision benefit, rule, or understanding, etc., that is currently in their respective collective agreements.

2. That, in order to accommodate different provisions, benefits, rules, or understandings etc., in the current collective agreements, it is anticipated that rules and/or appendices to the collective agreement may be developed along craft lines;

3. That the Company’s and the Union’s rights or benefits under the collective agreement shall be maintained.

Paragraph No. 2 above refers to “craft lines”. It is the position of the Union, that the labourers are a craft for the purposes of Appendix 43. Accordingly, the Union says that no employee was to lose any of the rights they had in their individual Union affiliation as a result of the consolidating of the eight collective agreements. Indeed, the Union says that the Labourers organization became a classification in the consolidated collective agreement, retaining all of the rights that pre-existed the consolidated collective agreement. The Union therefore contends that as a by-product of the consolidation, the word “classification” as outlined in the collective agreement, has a different connotation than it would in other agreements.

On this footing, the Union argues that the application of seniority operates on what is known as “stove-pipe” seniority. The Union’s explanation of stove-pipe seniority is to the effect that accrued seniority of an employee in one classification cannot be used to bid a position on any of the other classifications. Save for the special provisions outlined in the Job Security Agreement, in order to move from one classification to another, the individual must be formally promoted, or, placed in the other classification by means of the provisions of the Job Security Agreement. The Union points to various provisions of the Collective Agreement, in which stove-pipe seniority is applied.

The Union identifies the work which labourers perform by referring to the job identifications that appear in Rule 23.39 and Rule 23.40. The jobs therein identified constitute the work which the Union contends “is to be assigned and performed” by those in the Labourers classification.

In the case at bar, the work complained of was performed by machinists and electricians. The Collective Agreement, in Rule 52(B) contains “Machinists’ Craft Special Rules”. Rule 52(E) contains “Electrical Workers’ Craft Special Rules”. I do not intend to recite these rather lengthy Rules. Suffice to say, that the Union’s position is that nowhere in either the Machinists’ Craft Special Rules or in the Electrical Workers’ Craft Special Rules is the cleaning of pits or the general cleaning of the shops mentioned. On this basis, the Union suggests that a conclusion be reached, that it is not intended that these tradespersons be utilized to perform work other than the trades work outlined in the respective Rules.

While the Union does not contest the notion that tradespersons have a responsibility to perform good housekeeping in their immediate work area, they argue that the work in question was substantial work and that the performance thereof by the tradespersons diminishes the need to fill the positions in the Labourers classification. This is, in essence, a “thin edge of the wedge” argument. The Union foresees that eventually there would be an adverse affect on the Labourers’ classification.

The Union bolsters their position by referring to Rule 24.1, which reads as follows:

24.1 Tradespersons or apprentices regularly employed as such shall do tradespersons’ work as per special rules of the trades”

It is appropriate to pause at this juncture, and note that the grievance is not being advanced by the tradesperson. In other words, this is not a complaint by a tradesperson advancing a proposition that he was required to do work outside of his classification, but rather, a claim by a labourer that the tradesperson did work that encroached on the labourer’s perceived work territory.

In its written submission, the Union recites its conclusion as follows:

With regard to the foregoing, it is the submission of the Union that the provisions of the Collective Agreement clearly support the Union’s position that general cleaning of the shop and the cleaning of the shop pits was intended to be performed by the Labourers group of workers. That the work in question was substantive in its nature and cannot be characterized as “housekeeping” as suggested by the Company.

For its part, the Company acknowledges that general shop cleaning and cleaning shop pits at the Winnipeg Diesel Shop, is work, which if required, is usually performed by employees in the Labourers classification. The Company suggests that in this instance, the tradespersons performed only incidental tasks that are traditionally, but not exclusively done by other members of the bargaining unit.

The Company points out that tradespersons may be required to perform general shop cleaning where required, when labourers are not immediately available. Furthermore, the Company takes the position that there is nothing in the Collective Agreement which precludes such a practice. Moreover, the Company advances the proposition that no labourer was adversely affected in any way by the alleged events.

The Company asserts that the Collective Agreement does not provide exclusive work ownership provisions. Indeed, the Company points to Rule 11.1 as recognizing that tradespersons have the unfettered capability to perform lower rated work that is incidental in nature.

Rule 11.1 reads as follows:

11.1 When employees covered by this Agreement are required to fill the place of another employee for more than one hour, or more than once on a shift, they shall receive the higher rate, if applicable, for all time worked with a minimum of one hour’s pay, but if required to fill, temporarily, the place of an employee receiving a lower rate, their rate will not be changed.

In the course of its argument, the Company outlined the manpower on various shifts on March 9th, 1998 and identified the work being attended to by the Labourers on the various shifts. The Company then concludes by indicating that:

Due to the unavailability of Labourers on March 9, on the midnight shift and day shift, the tradesperson cleaned his work site at the end of his working shift.

The Company goes on to explain the manpower situation on each of March 21st, and March 27th, 1998 as follows:

On March 21, 1998 on the afternoon shift, one Labourer was set up as an Engine Attendant Helper and consequently the Winnipeg Diesel Shop was short one Labourer. Waiting for the incoming Locomotive to be serviced in the Diesel Shop, a Tradesperson was instructed to clean pit # 9 in the Diesel Shop. This incidental activity took him approximately 15 to 20 minutes.

On March 27, 1998 on the day shift, one Labourer booked off sick and one Labourer was set up as an Engine Attendant Helper. Consequently, the Winnipeg Diesel Shop was short two regular Labourers on that shift. Once again, as the Tradesperson was waiting for the incoming Locomotive to be serviced in the Diesel Shop, he was instructed to clean the pit for approximately 15 to 20 minutes.

It is the Company’s position, that the cleaning work performed by the tradespersons was “truly minor in nature” and that the main portion of their day remained occupied with the trades work referred to earlier in Rule 52.

Furthermore, it is the position of the Company that in some facilities, both in the past and present, various members of the bargaining unit are used to perform cleaning activities. Indeed, the Company points out that in several mechanical facilities, Labourers are not even employed for the purposes of general shop cleaning.

Evidence was given by Mr. Appleton, who is the grievor in each of the three grievances. In his evidence, he suggested that the cleaning activities of the tradesperson would have been 1-1/2 to 2 hours on March 9, at least 1/2 hours on March 21 and a couple of hours on March 27, 1998. Mr. Appleton did not, however, observe the tradesperson do such work through the period of time he referred to. Rather, on each of the occasions he saw the work being performed by the tradesperson for somewhere between 5 and 10 minutes. A thorough cleaning of the pit, according to Mr. Appleton, would usually take 2 to 8 hours. Whether what occurred in this instance constituted a “thorough cleaning” of the pit is not in evidence. Mr. Appleton further clarified that the work he observed on March 9, involved the emptying of garbage cans and washing part of the top level.

It goes without saying, that in advancing this grievance, the Union bears the onus of proof. As such, if it is the position of the Union that the cleaning work was substantial, then it must prove same by the preponderance of evidence. Unfortunately for the Union, the precise quantum of cleaning work performed by the tradesperson was not identified, except to the extent of the very limited observations of Mr. Appleton. Moreover, the Employer’s only admission was that the work was nominal. In the absence of more persuasive and definitive evidence (or an acknowledgement by the Company), the Arbitrator is not left with any evidentiary basis from which he can conclude that the cleaning work performed by the tradespersons was (to use the Union’s word) substantial. As such, it is necessary to deal with this matter on the basis that the cleaning work performed by the tradesmen, was not substantial.

The Arbitrator has no difficulty in concluding that as a general rule, cleaning work is performed by Labourers. Indeed, the Company acknowledged this. It would hardly make good sense for the Company to assign a highly paid tradesman to do cleaning work on a regular and recurring basis, where that cleaning work involves more than the cleanup by a tradesperson of his own work area on completion of his shift.

The Company has advanced as one of its arguments that general shop cleaning may be undertaken by other employees other than Labourers, when Labourers are not immediately available. If one were to conclude that cleaning work falls squarely and solely within the exclusive work jurisdiction of Labourers, one would (in the Arbitrator’s view) be somewhat pressed to justify the assignment of cleaning work to tradesmen, simply because Labourers were not immediately available. After all, it is the employer who decides how many persons in each classification should work on each shift. A purposely planned inadequacy of employees in a particular classification should not be used as the justification for assigning the work to others (where a collective agreement provides for exclusive work jurisdiction). An unexpected inadequacy of employees in a particular classification may give rise to different considerations. These comments are not meant, however, to imply that the Company did in fact plan a shortage of Labourer manpower, and indeed, the Union did not suggest same.

To resolve this grievance, one is necessarily obliged to consider whether the Collective Agreement confers upon the Labourers classification the exclusive ownership of a bundle of job duties. This raises two immediate questions. Is there any contractual guarantee in the Collective Agreement of work jurisdiction? Correspondingly, does the Collective Agreement expressly create restrictions upon the employer in the assignment of cleaning work?

These are extremely important questions. It is well understandable that employees would jealously guard against any encroachment on their perceived work jurisdiction. The quantity of work available to any particular classification may ultimately impact on the employment security of those within such classification.

Each classification of employees will, based on their experience, formulate perceptions as to work jurisdiction boundaries. The general adherence to such boundaries, during day to day operations, may not itself, however, translate into an enforceable legal right.

In the well-known case of re U.S.W. and Algoma Steel Corp. (1968) 19 L.A.C. 236 (at page 243) the Board states:

There is no implied proprietary right of an employee in the job duties he is actually performing and specific provisions of the Agreement must be relied on to restrict managerial initiative.

While the foregoing quote is from a case more than 30 years ago, it does, in the Arbitrator’s view, continue to represent the prevailing view in arbitral jurisprudence. As such, for the Union to succeed would necessitate express language in the Collective Agreement conferring a proprietary right to Labourers in respect of a specific bundle of job duties and consequently a line of demarcation of work jurisdiction. Alternatively, the Union must point to language in the Collective Agreement which would diminish or impair the ability of the employer in the assignment of the work in issue.

The Arbitrator has closely reviewed and considered the Collective Agreement as a whole, and in particular those portions of the Collective Agreement referred to by the Union (including Appendix 43). I note the references in Rule 23.39 and Rule 23.40 to cleaning shops and shop pits. However, I have been unable to find the type of language one would expect as necessary to create strict exclusive work jurisdiction relative to the cleaning work at issue. Moreover, I have been unable to find language which would restrict the assignment of the cleaning work in the circumstances of this case.

It is true, that in large measure there is traditional work associated with the Labourers classification. No doubt, as a day, to day his experience … generally assigned to and performed by Labourers. However, neither historical experience nor the references to cleaning in Rules 23.39 and 23.40 can be elevated to an enforceable right of exclusivity, unless the doctrine of estoppel can be properly applied to the circumstances.

The Union did not advance an argument based on estoppel. In any event, it is unlikely that the doctrine of estoppel could be properly applied to assist the Union in this instance. As the matter was not approached on that footing by the Union, I will defer commenting further in that regard.

It is not the function of an arbitrator to rewrite a Collective Agreement, either expressly or under the guise of interpretation. The Collective Agreement represents the bargain struck by the parties. It is open to the parties, on the occasion of negotiations, to define with great particularity the exclusive work jurisdictions of any classification and to limit management’s rights to assignments that would offend such work jurisdictions. However the arbitrator should not superimpose into the Collective Agreement, or weave into the fabric of the Collective Agreement, rights or restrictions which the parties themselves, in free collective bargaining, did not negotiate either expressly or by necessary implication.

The Arbitrator well understands the concern of the Union and the Labourers relative to the perception that the work performed by the tradesmen on March 9, March 21 and March 27, 1998 encroaches on the customary work of labourers. However, the Arbitrator can find no contractual basis for an assertion of exclusive jurisdictional work guarantees relative to this work. As such, the grievance must be dismissed.

In dismissing the grievance, it should be recognized that this decision arises in the context of a factual conclusion that the evidence does not support a finding that the cleaning work performed by the tradespersons was substantial. In circumstances where the work assigned to a tradesman is significant, substantial and repetitively the work within the traditional or customary work of a labourer, other arguments may be available to the Union. This, however, was not a matter necessary to consider in the context of this case.

Likewise, additional considerations may arise where there is an assertion (supported by evidence) that the actions of the employer were undertaken in bad faith. No such assertion was advanced in this instance. Consequently, it is not necessary to further comment on this subject.

Before concluding, I would make one other observation. The Union referred to Appendix 43 and a portion of thereof was quoted earlier. Article 43 refers to certain guiding principles. However, those guiding principles appear to only have had relevance in the process of consolidating the collective agreements. They do not, at first blush, appear to have any continuing effect following the consolidation of the various collective agreements.

In other words, the principles therein recited, do not appear to be capable of being subsequently utilized as an interpretative aid, when interpreting the Collective Agreement as finally arrived at.

Furthermore, even if the principles had a continuing impact and could be utilized for the purposes of interpretation of the Collective Agreement, there was no material tendered from which to determine whether there was some pre-existing provision, benefit, rule or understanding concerning work jurisdiction as it relates to this case. Had there been some right or benefit under the preceding collective agreements which was intended to be maintained into the consolidated Collective Agreement, additional evidence, documents or information directed to this issue, would have had to have been placed before the Arbitrator.

In closing, I would be remiss if I did not express my appreciation to each of the parties for their vigorous and skilled presentation of their respective positions and arguments.

DATED at the City of Winnipeg, in Manitoba 7th day of February, 2000.

(signed) SIDNEY G. SORONOW

SOLE ARBITRATOR