IN THE MATTER OF AN ARBITRATION

BETWEEN

ONTARIO NORTHLAND RAILWAY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 103

(the "Union")

RE GRIEVANCE 1069: PULL–BY INSPECTIONS

Sole Arbitrator: Michel G. Picher

Appearing For The Company:

Michael J. Restoule – Manager, Labour Relations, North Bay

Tom Burton – Chief Mechanical Officer, North Bay

Ken Duquette – Area Supervisor

Appearing For The Union:

Brian Stevens – Local President, North Bay

Brian Kelly – Chief Steward

Tom McParland – Committee Person

A hearing in this matter was held in Toronto on May 24, 2000

AWARD

The Union grieves that the Company has assigned bargaining unit work to persons outside the bargaining unit contrary to the collective agreement. The nature of the dispute is reflected in the ex parte Statement of Fact and Issue filed at the hearing by the Union, which reads as follows:

EX PARTE STATEMENT OF FACT AND ISSUE:

In October 1997, the Company initiated an operational change in train operations which had an adverse effect on employees in the Mechanical Department. The intent of Transportation Services was to discontinue servicing and maintenance of equipment of Trains #450/250 and #151/451 at North Bay and operate the trains directly through North Bay to Englehart and return to CN Mac yard.

The Union discovered that the Company planned to utilize train crews to perform inspections at North Bay and filed a grievance contending that was a violation of Wage Agreement #12 and Letters of Understanding. The Union requested the Company to cease and desist, and return the work to the bargaining unit forthwith.

The Company denies that the pull-by inspections assigned to train crews are a violation of the collective agreement and denies the grievance.

As can be gleaned from the foregoing, the Union’s grievance is to the effect that the pull-by inspection of trains at North Bay has been improperly assigned to members of other bargaining units in the running trades, in a manner which it alleges is contrary to the provisions of collective agreement #12. Implicit in the Union’s position is that it has exclusive jurisdiction to the work involved in the pull-by inspections, and that it was beyond the prerogatives of the Company to assign that work to anyone other than carmen from the bargaining unit. In that regard it relies on the provisions of rules 32 and 21.1 of the collective agreement which read as follows:

32.2 Carmen’s work shall consist of building, maintaining, dismantling (except all-wood freight train cars), painting, upholstering, tile setting, glass cutting, bevelling, embossing, and inspecting all passenger and freight cars, both wood and steel, motor coaches; planing mill, cabinet and bench carpenter work, pattern and all other carpenter work in ships and yards; carmen’s work in building and repairing station trucks and wood wagon wheels, hose bag fitter, and stove fitter, pipe and inspection work in connection with air brake equipment on freight cars, repairing and assembling car and coach valves, applying patented metal roofing, doing shaping and forming; work done with heating torches in connection with carmen’s work; painting, varnishing, surfacing, decorating, lettering, cutting of stencils and removing paint, (not including the use of sand blast machine or removing vats); all other work generally recognized as painter’s work under the supervision of the Locomotive and Car Departments, except the application of blacking to fire and smoke boxes of locomotives in engine houses; joint car inspectors, car inspectors, safety appliances and train car repairers, on track auxiliary and hy-rail wrecking crane operator, oxyacetylene and electric welding on work generally recognized as carmen’s work; and all other work generally recognized as carmen’s work and such other work as may be defined by the Lines of Demarcation Committee.

It is understood that the present practice in the performance of work between the carmen and boilermakers will continue.

21.1 Employees not covered by the collective agreement shall not perform work of the bargaining unit, except in the case of an emergency; wherein an explanation will be provided to the union.

The Company takes the position that it has not violated the agreement. Among its arguments, it advances the proposition that the Union cannot claim exclusive jurisdiction to the work described within rule 32.2. In support of that view it refers the Arbitrator to a prior arbitration award, shopcraft case no. SHP 247. That case, involving the Brotherhood of Railway Carmen and the Canadian National Railway, involved the Union’s objection to the assignment outside the bargaining unit of work at Ridley Island, British Columbia relating to the performance of air brake tests. In that award, dated August 12, 1988, Arbitrator Weatherill concluded that the provision of the collective agreement which generally described the work of carmen, which included the performing of air brake tests, did not confer exclusive jurisdiction, and that such work could properly also be assigned to running crews.

While it is not necessary to determine the matter conclusively for the purposes of this case, the Arbitrator is in some doubt as to the value of SHP 247 as a precedent for the purposes of this case. The collective agreement under consideration appears to differ importantly from the agreement interpreted in SHP 247. Specifically, the instant agreement, said to be unique to these parties, contains the express language of rule 21.1. If it were necessary to so decide I would be inclined to conclude that that language can only be interpreted to mean that the work described as bargaining unit work is to be assigned exclusively within the bargaining unit, save in circumstances of emergency.

Notwithstanding the foregoing, I am nevertheless still in difficulty with respect to the overall position advanced by the Union. For the Union to succeed in this grievance it must establish that pull-by inspections fall within carmen’s work as described in rule 32.2. A review of the language of that provision does not disclose any express reference to pull-by inspections. The Union relies on the language of rule 32.2 which refers to “… inspecting all passenger and freight cars”, as well as to the references to car inspectors.

In my view, an appreciation of normal practice within the railway industry calls into question the Union’s interpretation. On what basis can it be said that the general concept of safety inspections of freight cars reflected in rule 32.2, which is admittedly within the traditional work of carmen, necessarily includes the pull-by inspections of entire moving trains? The Canadian Rail Operating Rules, in particular rules 110 and 11, expressly contemplate train crews being involved in pull-by inspections. Indeed that has been the industry practice for many years, also extending to other railway employees, such as maintenance of way staff in a position to observe a passing train. Against that industry background and practice, in the Arbitrator’s view it would require clear and unequivocal language within the parties’ collective agreement to convey that they intended general pull-by inspections of arriving or departing trains to fall within the exclusive jurisdiction of carmen. In my view the language of rule 32.2 does not achieve that result. I am persuaded by the alternative position of the Company, which is that the reference to inspecting freight cars, as it appears within rule 32.2, deals with the actual close inspection of standing equipment, and not with pull-by inspections which are a regular part of the movement of trains.

For the foregoing reasons the Arbitrator cannot find that the assignment of pull-by inspections to running crews at North Bay constitutes a violation of the work jurisdiction provisions of the collective agreement. That would be so even if I were to accept, as the Union urges, that its work jurisdiction is exclusive, by reason of the language of rule 21.1 of the collective agreement. For all of these reasons the grievance must be dismissed.

Dated at Toronto, May 30, 2000

_________________________________________

MICHEL G. PICHER

ARBITRATOR