IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 103
RE GRIEVANCE 1101: WORK JURISDICTION
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
M. 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 25, 2000
The Union grieves that the Company has improperly assigned work belonging to the machinists’ trade to engine attendants at North Bay. The background facts and the Union’s position are related 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 certain operational changes which affected train arrival and departure times at North Bay. The Union was advised that there would no longer be a requirement for machinists to work on locomotives on the midnight shift, that any and all work would be performed on day and afternoon shifts.
However, the Company stated that they still wished to safeguard the midnight shift and in the event of a serious malfunction on a locomotive and stated that they would prefer to have one machinist available through the week for that purpose only.
The Union accepted that representation by the Company and a bulletin was posted abolishing all midnight shift machinist positions and re-bulletin the positions as agreed.
The train arrival and departure times did not function as first thought and the Company reverted back to a midnight schedule where locomotives were coming in and out of North Bay.
The workload on the midnight shift quickly increased, where inspections, repairs and tests were part of the normal work cycle on the midnight shift. In order to deal with the increase in workload, the Company rather than re-staff the midnight shift, assigned the engine attendant to assist the machinist to perform trades work.
The Union filed a grievance contending that the assigning of engine attendants to perform machinist’s work is a violation of rules 27.2 to 27.6 and any other related rule, past practice, letters of understanding and prior awards and requested that the Company cease and desist and that the grievor (Peter Daly) be made whole.
The Company denied the grievance.
By further way of background, it should be noted that the grievance falls to be determined on the language of the current collective agreement, executed on April 6, 1998 retroactive from January 1, 1998. The practice which is challenged in fact began in November of 1997, and the grievance, filed by Machinist Peter Daly, was first presented on March 10, 1998. The foregoing dates are significant to the extent that the current collective agreement contains a change in language with respect to the machinist’s trade description, as reflected in rule 27.1 of the collective agreement. Rule 27.1 now reads, in part, as follows:
27.1 Completely and independently plans, lays out, repairs, dismantles, rebuilds, maintains, installs, adjusts, diagnoses, tests, locomotives and shop machinery and all diesel or gas powered engines including internal oil pumps, transmission systems, hydraulic and pneumatic equipment including braking systems, air compressors, auxiliary power units, rail or rubber tired vehicles including buses, bulldozers, cranes, payloaders, motor cars, motor coaches, locomotives and track equipment.
While the former version of the machinists’ work jurisdiction, previously found in rule 27.2 of the predecessor collective agreement, made general reference to machinists’ work including “engine inspecting”, the more recent current collective agreement has seen an amendment of the rule whereby the phrase “completely and independently” has been added to qualify the work jurisdiction of machinists.
It is common ground that prior to the material change effected by the Company in October of 1997 there were generally two machinists working on the midnight shift. A significant part of their duties involved inspecting, testing and certifying consists of freight locomotives for service. With the elimination of one of the machinists’ positions the Company utilized an engine attendant to assist the machinist in the inspection and testing function. It appears that that practice has in fact been discontinued, as an machinist apprentice or helper is presently assigned to do helping function, an arrangement not objected to by the Union.
The Company submits that the duties and responsibilities of engine attendants have for many years involved working with various trades persons, including machinists, to assist them in the accomplishment of their work. For example, according to the Company’s representative, it has not been uncommon for a machinist to utilize an engine attendant to move a locomotive slightly, or to accelerate the engine, to assist in a diagnostic or repair function being performed by the machinist. In the Company’s submission the role played by the engine attendant on the midnight shift at North Bay, in assisting the machinist assigned to the inspection and testing of locomotives for certification prior to road service, is essentially no different than what has traditionally occurred. The Union counters that the locomotive inspection work which is the subject of this grievance has traditionally been performed by two machinists or, alternatively, by a machinist and a machinist apprentice or machinist’s helper. The Union also disagrees with the assertion of the Company to the effect that the work performed by engine attendants during the course of the testing process in fact involves work generally related to the engine attendant classification, such as operating the controls of a locomotive and reading gauges within the cab.
Upon a review of the material filed the Arbitrator is compelled to concluded that the grievance is well founded. In my view the words newly inserted into rule 27.1 “completely and independently” as they apply to the testing of locomotives must be viewed as intending to confer an exclusive work jurisdiction upon the machinists’ craft with respect to the work described within the rule. As a result, for example, such requirements as are found in the air brake test procedure which include such functions as applying brakes, observing the brake pipe gauge, reading the brake cylinder gauge and depressing or bailing off the independent brake valve for prescribed periods of time must be viewed as functions intrinsic to the testing of locomotives assigned to machinists, or machinist apprentices and helpers. To conclude otherwise is tantamount to removing all meaning from the words “completely and independently”, now found within rule 27.1.
In the result, while it may be that in some circumstances it is within the work jurisdiction of an engine attendant to handle the controls of a locomotive, including manipulating the brake valve handle and reading gauges, it is clear that when those functions are part of a locomotive test within the meaning of rule 27.1 they are to be performed entirely and solely by persons within the machinists’ trade. In the Arbitrator’s view the facts relating to the locomotive tests performed on the midnight shift at North Bay are to be distinguished from other situations where an engine attendant might quite properly be involved in manipulating the controls of a locomotive to render assistance to a machinist or other journeyman to allow them to better accomplish their function. In the case at hand the Arbitrator cannot escape the conclusion that the manipulation of locomotive controls, and the reading of gauges during the locomotive test process, in light of the new wording of rule 27.1 of the collective agreement, intrinsically form part of the function to be performed completely and independently, which is to say exclusively, by persons in the machinists’ trade.
The issue then becomes the appropriate remedy in the circumstances. In approaching that issue, as is evident from the foregoing, the Arbitrator is not persuaded that the former wording of the collective agreement would have conveyed clear exclusive jurisdiction to machinists in respect of all functions relating to the testing and certification of locomotives. It is common ground that at the time that the new language came into effect, April 6, 1998, the grievances of Mr. Daly had already commenced to be filed. Nor is it clear to the Arbitrator that in any event the Company would necessarily have resorted to the assignment of Mr. Daly, or any other employee, on an overtime basis to complete the work in question. It could, arguably, have assigned a machinists’ helper or apprentice, as it is presently doing, to achieve the same result. In the result the Arbitrator is satisfied that this is an appropriate case for a declaration and direction, but not for an order of compensation, having particular regard to the chronology of events.
The grievance is allowed in part. The Arbitrator finds and declares that the Company did violate rule 27.1 of the collective agreement by assigning to an engine attendant functions in relation to the testing of locomotives. As it appears that the Company no longer utilizes engine attendants in that fashion, there is no need at this time for the Arbitrator to make any affirmative direction beyond the declaration. For the reasons related above, no order of compensation is appropriate in the circumstances.
I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, May 30, 2000
MICHEL G. PICHER