SHP529

IN THE MATTER OF AN ARBITRATION

HEARD: NORTH BAY FEBRUARY 22 2000

BETWEEN:

Ontario Northland Transportation Commission

(Employer)

and

CAW LOCAL 103

(Union)

Sole arbitrator: Mr Frank Reilly

For the Union: Mr Brian Stevens and others

For the Employer: Mr Michael Restoule and others

The present arbitration arises out of five grievances filed by the Union with respect to the Employer’s alleged abolition of the Bodyman position and the creation of the position of Bodyman/Bus Mechanic at the North Bay Bus Garage in early 1998. Essentially, the Union grieves that the Employer’s actions contravened the work assignment provisions of the collective agreement, and Article 8 of the Employment Security and Income Maintenance Agreement. The Employer contends that Article 8 of the Employment Security and Income Maintenance Agreement has no application to the present circumstances, that no employee has been adversely affected, that no violation of seniority rights occurred, and that the skilled trades rules applicable to the mechanical department do not apply to the bus garage.

The Parties agreed that I had jurisdiction to hear and determine this matter pursuant to the collective agreement, and a hearing was held on February 22, 2000 at which the Parties had an opportunity to present argument and evidence in support of their respective positions. A preliminary issue arose at the hearing with respect to Rule 35.11 of the collective agreement. That article provides for the exchange of documents and jurisprudence to be relied upon by the Parties at the arbitration hearing in advance of the hearing. Ultimately, both parties were willing and able to proceed on the scheduled day to present their respective cases, and so I make no further mention of the preliminary matter here except to express my hope that the Parties will communicate with one another about the documents upon which they intend to rely at hearing more fully in the future.

The relevant facts of the case were not in dispute. On December 17, 1997, the Employer announced that it was abolishing the Bodyman position in the North Bay Bus Garage, which position was then held by a bargaining unit employee, Mr Terry Sheedy. At the same time, the Employer announced that in place of the Bodyman position, it was creating the position of Bodyman/Bus Mechanic. Employees were given an opportunity to submit applications for the position, but no such applications were received. Mr Sheedy was assigned by the Company to the position effective January 19, 1998.

Mr Sheedy had commenced his employment with the employer on a full-time basis as a Bodyman on March 17, 1980, when the position of Bodyman was created. Prior to that time, autobody repair work on the Employer’s buses had been contracted out. In fact, it is common ground that Mr Sheedy’s initial hiring as a Bodyman resulted from internal concerns with respect to the volume of bus bodywork being contracted out at that time. It is also common ground that at the time of his hiring, Mr Sheedy was placed on the Bus Mechanics Seniority list where he has remained to the present day. The Employer points out that Mr Sheedy’s seniority date and placement on the Mechanics’ seniority list has remained unchanged and uncontested over the years. It is not disputed that Mr Sheedy’s position on the seniority list has never been grieved by the Union.

From 1980 onwards, Mr Sheedy was responsible for making repairs to the autobodies of buses utilized on the Employer’s bus routes. Although Mr Sheedy was employed primarily in this capacity, it is not disputed that from time to time, he performed certain tasks which might arguably be those of a bus mechanic. The Employer frankly concedes though that Mr Sheedy has been chiefly used a Bodyman. The Parties indicated that no grievances had ever been filed in respect of those occasions when Mr Sheedy performed tasks which in the Employer’s submission arguably fall among those ordinarily performed by Bus Mechanics.

Over recent years, the amount of work available to occupy Mr Sheedy as a Bodyman has been dwindling, due to the fact that the number of buses in the fleet has decreased following the sale by the Employer of a number of buses and a decrease in the Employer’s charter business. In fact, the evidence established that in late 1997, there were 10 hours or less per week of body repair work for Mr Sheedy to perform in his capacity as “Bodyman”.

For this reason, the Employer indicates that it made the decision to abolish the position of Bodyman and to create a new position of Bodyman/Bus Mechanic. The employee in this new position would be responsible for making autobody repairs to the buses in the Employer’s fleet, and for mechanical bus repairs of a more general nature.

The Union grieved the employer’s actions, alleging that the employer was not entitled to combine the positions of Bodyman and Bus Mechanic. It claims that the two positions should be maintained as separate and distinct. The Union further claims that the combination of the two positions by the Employer violates various portions of the collective agreement and also violates Article 8 of the Employment Security and Income Maintenance Agreement.

Firstly, the Union argued that the Employer’s decision to post the position of Bodyman/Bus Mechanic without any prior discussions with the Union constituted a violation of Article 8 of the Employment Security and Income Maintenance Agreement. That Article states in relevant part:

The company will not put into effect any technological, operational, or organizational change of a permanent nature which will have adverse effects on employees without giving as much advance notice as possible to the Local Chairperson representing such employees or such other officer as may be named, by the Union concerned, to receive such notices. In any event, not less than three month’s notice shall be given with a full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected.

This submission bears serious consideration and I will deal with this argument raised on behalf of the Union in greater detail below.

The Union also suggested at the arbitration hearing that Mr Sheedy was not qualified for the position. In so doing, it relied on a 1965 document which on its face appeared to be a Memorandum of Agreement between the International Association of Machinists and Ontario Northland Railway. Such document refers on its face to a requirement that “persons applying for employment as Mechanics must be qualified Journeymen with necessary certification.” The Union argued that the import of such provision in the 1965 document means that a Class A mechanic’s licence was required for the new position in the Bus Garage, and it pointed to the fact that Mr Sheedy had not provided any documents demonstrating that he was certified as a Class A mechanic. Without making any findings with respect to the import of the 1965 document, I must reject the Union’s argument on this point for lack of evidence. There was simply no evidence placed before me at the hearing that Mr Sheedy was not qualified in both trades as a Bodyman and a Bus Mechanic, nor was Mr Sheedy present at the hearing. In fact, the only available evidence on this point seems to run to the contrary, namely that Mr Sheedy is qualified to perform the work in question.

The Union further argued that Rule 26 of the collective agreement prevented the Employer from creating the hybrid classification of “Bodyman/Bus Mechanic”. Rule 26 of the collective agreement deals with “Lines of Demarcation”. It provides for the establishment of a joint Lines of Demarcation Committee as well as a mechanism by which to resolve disputes regarding the assignment of work to the skilled tradespersons in the workplace. The Union’s submissions with respect to the impact of Rule 26 on the grievances were hypothetical in nature. Specifically, the Union’s concerns under this heading related to how what it described as the hybrid position of Bodyman/Bus Mechanic would be integrated into the workplace for work assignment purposes. The Union also questioned how the rights of Bodyman/Bus Mechanic would interplay with those of other employees in the event of a lay-off. While I do not dispute the real validity of the Union’s concerns in these and other regards, however, I must decline to entertain such questions as they do not arise as part of the grievances before me. In the event that difficulties arise in the future with respect to the integration of the Bodyman/Bus Mechanic into the workplace for work assignment purposes or in a lay-off situation, then the Union may certainly file grievances with respect to those disputes if and when they arise. The same would hold true with respect to any difficulties which may arise with respect to vacation scheduling in the Bus Garage, which was another concern raised by the Union. For present purposes, however, such concerns have not yet materialized as a “live controversy” between the Parties and in any event are not part of the grievances before me for resolution.

The Union also argued that that the compulsory or voluntary nature of the trades of Bodyman/woman and Mechanic was a relevant consideration on the grievance, and a considerable amount of documentation with respect to certification and apprenticeship in the trades was placed before me. I am not persuaded that such documents or considerations are relevant to the grievances before me, however. Rather, and as is set out in greater detail below, it is my view that the grievances turn on the applicability of Article 8 of the Employment Security and Income Maintenance Agreement and whether there is anything else in the collective agreement which might serve to prevent the Employer from creating the position of Bodyman/Bus Mechanic.

As noted above, the Union argued that the Employer’s decision to create the position of Bodyman/Bus Mechanic without any prior discussions with the Union constituted a violation of Article 8 of the Employment Security and Income Maintenance Agreement (“ESIMA”). Specifically, the Union argued that the Employer breached the provisions of Article 8.1 when it abolished the Bodyman position and created the Bodyman/Bus Mechanic position without giving the Union as “much advance notice as possible” and in any event “not less than three month’s notice” of a permanent technological, operational or organizational change having adverse effects on employees. As a remedy for the breach, the Union asks that I order the Employer to effectively “undo” the “change” which has been put into effect contrary to Article 8.1 - namely the creation of the Bodyman/Bus Mechanic position.

The Employer’s position on the grievance is that, to the extent that the Bodyman/Bus Mechanic position was “created” in 1997, the Employer had a right to create such position pursuant to its management rights. The Employer also submits that the combination of the Bus Mechanic and Bodyman positions was necessary in order to preserve Mr Sheedy’s full-time employment within the bargaining unit. If the Employer had not combined the two positions, it claims that it would have had to lay Mr Sheedy off from full-time employment due to the unquestionable shortage of work for him in a limited capacity as Bodyman. The Employer indicates that it would have then contracted out the autobody repair work. At any rate, the Employer says, it was acting within its rights to create the position and to award it to Mr Sheedy, thereby avoiding the lay-off of a very senior employee.

With respect to the impact of Article 8 of the Employment Security and Income Maintenance Agreement on the grievances, the Employer maintains that Article 8.1 of the Agreement has no application to the circumstances of the instant grievances because there were no “adverse effects” suffered by any employee as contemplated by Article 8 of ESIMA. Accordingly, says the Employer, the notice provisions of Article 8.1 have not been triggered.

Further, the Employer argues that the present situation does not fall within the terms “operational and organizational change” in Article 8.1. Rather, it argues that the situation comes within the exception outlined in Article 8.7 of ESIMA which states:

The terms operational and organizational change shall not include normal reassignment of duties arising out of the nature of the work in which the employees are engaged nor to changes brought about by fluctuation of traffic or normal seasonal staff adjustments. (emphasis added)

According to the Employer, cancellation of a position due to lack of work is not a situation coming within the scope of Article 8. It argues that the import of Article 8.7 is that that the notice requirements of Article 8.1 do not apply where the operational or organizational change in question, including a permanent reduction in staff, results from fluctuations in traffic. The Employer argued that “fluctuation of traffic” is precisely what caused the abolition of the Bodyman position and the creation of the new position in the case at hand. Specifically, it points to the dramatic decline in the Employer’s charter business and the corresponding sale of a number of buses as evidence of the fluctuation in bus traffic which substantially reduced the amount of bodywork required in the North Bay Garage. In this way, says the Employer, the abolition of the Bodyman position was a change brought about by fluctuations in traffic within the meaning of Article 8.7 of the ESIMA and Article 8.1 therefore has no application.

I agree with the Union that the Employer would have been in violation of the notice provisions of Article 8 of the ESIMA if the circumstances which gave rise to the grievance were such to bring the abolition of the Bodyman position and the creation of the Bodyman/Bus Mechanic position within the terms of Article 8.1. However, I agree with the Employer that the notice provisions of Article 8 of the ESIMA have no application to the grievances before me. As the Employer rightly pointed out, the notice requirements of Article 8.1 of the Agreement are only triggered where the Employer seeks to “put into effect any technological, operational or organizational change of a permanent nature which will have adverse effects on employees…” That is simply not the case here. The change which the employer sought to put into effect and which it did put into effect - namely the abolition of the Bodyman position and the replacement of such with the Bodyman/Bus Mechanic position - was not one which had an “adverse effect” on employees within the meaning of Article 8.1. In fact, quite the opposite is true. If the Employer had not made the change it did, then Mr Sheedy, who had almost 18 years seniority with the Employer at the time the grievance was filed, would have surely been laid off from full-time employment. Indeed, when asked at the arbitration hearing what the proper course for the Employer to follow would have been in the circumstances, the Union indicated that if there a shortage of work for Mr Sheedy in the Bodyman position (which fact was not in dispute), then the Employer should have laid Mr Sheedy off. With respect to the Union, however, this position does not accord with the purpose underlying Article 8 of the ESIMA. On my reading of the Agreement, the purpose of Article 8 is to afford the Union an opportunity, through its right to notice and negotiations, to prevent lay-offs of the type which would have been suffered by Mr Sheedy if the Employer had not created a new position in which he could be fully employed. Indeed, Article 8.4, which confers a right to negotiations, expressly confirms such purpose. It states in relevant part:

Upon request the parties shall negotiate on items, other than those specifically dealt with in The Plan, with a view to further minimizing the adverse effects on employees… (emphasis added)

I note also that the case law submitted by the Union was easily distinguished from the instant case and not helpful. In the case law submitted by the Union, “adverse effects” were readily apparent which they were not in the instant case.

In light of my findings with respect to the applicability of the notice requirements under Article 8 given the absence of any evidence of “adverse effects” on employees so as to trigger Article 8.1, it is not necessary for me to consider the Employer’s additional argument that the situation falls within the exception set out in Article 8.7 as a “change brought about by fluctuation of traffic” and I decline to do so

A further argument raised by the Union in support of its position on the grievances was that various provisions in the collective agreement which serve to demarcate the work of skilled trades apply to the Bus Mechanics in the North Bay Bus Garage and prevent the Employer from assigning the Bus Mechanic’s work to anyone other than a journeyman/woman in the classification of Bus Mechanic. In this regard, the Union referred primarily to Rules 25, 26 and 27 of the collective agreement. Rule 25 of the collective agreement deals with Journeymen/women standards. It may be helpful to set out the text of the Rule below:

25.1 When it is required by the Company to hire journeymen/women to perform the work of trades only journeymen/women tradespersons or apprentices tradespersons will be hired as defined by this Collective Agreement.

25.2 A journeyman/woman in any designated trade shall mean any person who:

has served a bona fide apprenticeship of four (4) years 3000 hours and possess proof of such apprenticeship service or,

holds a recognized journeyman/woman card in the trade in which he/she claims recognition acceptable to the apprenticeship committee, or

has eight (8) years practical and general experience covering all phases laid down in the apprenticeship course applicable to the trade in which he/she claims journeyman/woman status and possesses ample proof of such experience.

25.3 Entry into the trades shall be restricted to persons:

who qualify as journeymen/women under the provisions set forth in the immediately preceding Clause 25.2, or

who qualify for journeymen/women status through any apprenticeship program as outlined in Rule 24, or

who provide documents at date of hire proving their claim to journeyman/woman status to the Apprenticeship Committee, or

who provide documents within fifteen (15) working days of being promoted from any classification.

I have already described the nature of Rule 26 which deals with Lines of Demarcation earlier in this Award. Rule 27 of the collective agreement sets down the Special Rules pertaining to Machinists in the employ of the Employer. As the Parties are aware, it provides a detailed description of the Machinist Trade and the specific work tasks falling thereunder.

Essentially, the Union’s position is that the creation of the Bodyman/Bus Mechanic position is inconsistent with the intent of Rule 25 which provides that only tradespersons will be hired, as defined by the collective agreement, to perform the work of trades. The Union submitted that the impact of Rules 25, 26 and 27 of the collective agreement is to preserve the integrity of the skilled trades and to ensure that the boundaries among the trades do not become blurred. It draws support for its submission from the fact that the Lines of Demarcation Committee contemplated in Rule 26 bears the task of determining whether particular work assignments fall within the jurisdiction of one trade or another. This, in the Union’s view, speaks to the separate and distinct nature of the trades. Not only do journeymen and women enjoy the right under the collective agreement not to have the lines demarcating their respective trades blurred, but they also have the right under Rule 25 to have only journeymen and women hired to perform skilled trades work. The Union also points to the seniority provisions of Rule 19 of the collective agreement in support of its argument on this point.

Before I can begin to consider whether Rules 25, 26, and 27 of the collective agreement, speaking as they do to the jurisdiction of certain skilled trades, prevent the employer from creating the position of Bodyman/Bus Mechanic, I must first determine whether such Rules are applicable to the dispute raised by the grievances before me. I find they do not.

The Union may well be correct in its assertion that the “integrity of the skilled trades” provisions in rules 25, 26 and 27 of the collective agreement protect the jurisdiction of the skilled trades in a way that would make the creation of a hybrid position combining the work tasks of one skilled trade with those of another impossible. However, looking carefully at the provisions cited by the Union, I conclude that neither the position of Bodyman nor Bus Mechanic is a skilled trade within the meaning of the collective agreement provisions cited so as to bring the Union’s argument into force.Although they are clearly highly skilled in a legal sense,[THE TRADES QUALIFICATION'S ACT]. Rule 25.1 of the collective agreement is expressly limited on its face to tradespersons “as defined by this Collective Agreement.” Rule 26.3 goes on to state,

It is understood that all Boilermakers, Blacksmith, Carmen, Electrician, Machinist, Pipefitter, Sheet Metal, Painter and Upholsterer workers presently working shall be considered as journeymen/women for the purposes of the collective agreement.

Clearly, the clause does not provide that either Bodymen Mechanics or Truck and Coach (Bus) Mechanics are to be considered as journeymen/women for the purposes of the collective agreement. Moreover, although the collective agreement sets out special rules in respect of a number of skilled trades, it does not establish any special rules for the trades of Bodymen or Bus Mechanics. The above-noted provisions demonstrate that the Parties specifically turned their minds to the specific trades which were to be considered as journeymen/women for the purposes of Rules 25, 26 and 27 of the collective agreement. Their failure to list either Bus Mechanics or Bodymen as journeymen/women for the purposes of the collective agreement, while enumerating a list of other skilled trades to be so considered, leads me to the conclusion that the Parties did not intend the provisions of Rules 25, 26 and 27 to apply in the Bus Garage. Accordingly, I must reject the Union’s argument that the Employer is prohibited by the terms of the collective agreement from creating the position of Bodyman/Bus Mechanic in the Bus Garage. Having said that, I must caution that neither party ought to interpret my decision in this regard to mean that the Employer has licence to create “hybrid” positions anywhere other than in the Bus Garage or affecting any of the journeymen/women recognized as such for the purposes of the collective agreement. In fact, had the collective agreement provisions underlying the Union’s argument with respect to what it described as the “integrity of the skilled trades” been relevant to the dispute before me, there would have been considerable force to the Union’s argument in this regard. For the reasons outlined above, however, it is my conclusion that this is not the case on the facts of the grievances before me.

For the reasons outlined above, the Union’s grievance must be denied. I shall remain seized with respect to any difficulty the Parties may have in implementing this award. Finally, I would like to sincerely thank Mr Stevens and Mr Restoule for their able presentations on behalf of the Union and the Employer and for assisting me in deciding this matter.

Dated at Waterloo this _28th_____ day of April, 2000.

_____________________________

Mr Frank Reilly