IN THE MATTER OF AN ARBITRATION
BETWEEN:
B.C. RAIL LTD.
(hereinafter referred to as the “Railway”)
AND:
THE UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA
LOCAL NO. 170, METAL TRADES DIVISION
(hereinafter referred to as the “Union”)
(Prince George Labourers)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: Charles G. Harrison
Counsel for the Union: Theodore Arsenault
Place of Hearing: Vancouver, B.C.
Date of Hearing: April 14, 2003
A W A R D
The Dispute
[1] The essential question raised in this dispute is whether the Railway is at liberty under this Union’s collective agreement, or the Jurisdictional Umpire provision of the Constitution of the Council of Trade Unions on B.C. Rail, (the Council), to assign work in the Prince George shops normally performed by employees in the Labourer’s classification to employees who are Tradespersons.
[2] The work jurisdiction of Labourers is defined in Rule 57 of the collective agreement. The relevant jurisdiction of Tradespersons appears in Rule 51 and Rule 55. The position of the Union was that Rule 57, in effect, defines work that must be assigned to employees in that classification. That jurisdiction is defined in Rule 57.3, as follows:
57.3 With the exception of annual shop shut downs for maintenance and in cases when it is determined by the Railway that shops require general cleaning, shop cleaning, within the context of this agreement, will be performed by labourers.
Notwithstanding the above day-to-day maintenance will be performed by labourers when labourers are available to complete the work which is required. These duties include, however are not limited to the following:
a) steam cleaning
b) Degreaser Operator
c) Proceco Operator
d) switching of locomotives on shop tracks
e) cleaning of locomotive cabs
f) forklift operation when directly related to UA170 work requirements.
(emphasis added)
[3] The practice challenged by the Union was the assignment of employees in the Machinist’s (mechanic) classification under Rule 51 and Electrician’s classification under Rule 55 to perform work falling within what the Union asserted to be the jurisdiction of Labourers. The Railway’s position was that the practice is not a breach of the collective agreement and, in any event, falls within its discretion as defined in Article XV of the Council’s Constitution.
[4] In prosecuting its grievances the Union pointed out that the jurisdictional provisions in Rule 51.2 and Rule 55.2, as is the case with respect to Rule 57.3 in the Labourers classification, are detailed and carry the clear implication that work jurisdiction is intended by the parties to be strictly regulated. The Union cited Rule 20 in that context. It establishes a seniority structure based upon classification seniority in which work jurisdiction is an integral part of a structure which is fundamental to job and employment security.
[5] The dispute began with grievances filed by Darren Lewis, a Labourer in Prince George, on August 26, 2001. In the grievances Mr. Lewis challenged the assignment of Trades employees to perform Labourer’s work. The grievances were withdrawn when it was learned that, at the material time, there was no trades work available for the Trades employees in question and they were assigned Labourer’s work to fill in their time. The Union saw those assignments as falling within the spirit of the agreement.
[6] The grievances giving rise to this dispute were filed between May 3 and May 19, 2002 by Orrin Stevenson, an 18-year machinist employed in Prince George who has been a shop steward for the Union since 1988. He gave evidence related to the dispute itself and to the juxtaposition between the assignment of Tradespersons to perform Labourer’s work and the availability of trades work to which Trades employees could be assigned. In terms of a remedy, the Union pleaded as follows in a November 13, 2002 letter in which it set out its position:
1. A declaration that the regular and continuous assignment of work coming within the Labourers’ classification to Journeyman Machinists and Electricians, violates Rule 20; Rule 51; Rule 55 and Rule 57 of the Local 170 Agreement;
2. An Order that BC Rail forthwith cease and desist the said violations of the Local 170 Agreement by ceasing to assign Journeymen Electricians and Machinists to perform work coming within the Labourers’ classification;
3. An Order that BC Rail pay damages to the Union in respect of the said violations of the Local 170 Agreement …
[7] The bulk of the evidence upon which the parties relied in the dispute was presented in documentary form, but the Union’s documentary evidence was augmented by the evidence of Mr. Stevenson and Lance Yearley, the business manager of Local 170 and Vice-Chair of the Council. Mr. Yearley gave evidence of the policy perspective of the Council with respect to the dispute and what the Council viewed as a perversion of the Jurisdictional Umpire process implicit in the facts.
[8] He said in particular that the Council viewed the facts as demonstrative of the erosion of jurisdictional lines in a concerted program directed at the establishment by the Railway of a “composite employee”, being an employee in any of the constituent Unions who can be assigned to perform any work in any classification without regard for the jurisdictional boundaries defined in this collective agreement and the various other agreements incorporated in the multi-union bargaining unit.
[9] The evidence adduced by the Union established that Trades employees in Prince George are assigned routinely to perform work that falls within Rule 57.3 at times when there is backlog of trades work available that falls within Rule 51.2 and Rule 55.2.1. In short, the evidence adduced by the Union supported its assertion that the assignment of Tradespersons to perform work falling within Rule 57.3 did not occur because of an absence of trades work. Rather, the assignments were made as an alternative to available trades work.
[10] The evidence also established that there is a significant difference in wage rates between the Labourer’s classification and the Trades classifications with the result that assigning Trades employees to perform Labourer’s work resulted in a significant increase in the labour cost of the work when the cost is measured on the basis of individual work assignments.
[11] The evidence of Mr. Yearley on behalf of the Council was that the fact pattern developed in the grievances giving rise to this dispute appeared to reflect a move by the Railway to use the Jurisdictional Umpire process as a medium for the elimination of jurisdictional safeguards that protect bargaining unit employees with respect to the exercise of seniority rights and access to their traditional work.
[12] Mr. Yearley said that it has always been the position of the Union that employees who lack immediate work should perform available Labourer’s work rather than remain idle. On that basis, he distinguished the August 2001 grievances from the series of grievances filed by Mr. Stevenson that gave rise to this dispute. The current grievances, said Mr. Yearley, were filed in response to the Railway’s emerging practice of assigning Trades employees to perform Labourer’s work when there was Trades work available. The effect was to reduce the work available to Labourers, a pattern which has reduced the Labourer positions in Prince George.
[13] As stated, the evidence adduced by the Union proved conclusively that Trades employees in Prince George were routinely assigned to perform work which was usually performed by Labourers while there was backlog work available in their particular trades. Hence, the question became one of whether that practice was in breach of the collective agreement, and, if so, whether it was a breach which was relieved by the Jurisdictional Umpire provisions.
The Union
[14] The dispute as viewed by the Union was summarized in the November 13, 2002 letter. It was sent by Counsel for the Union to Counsel for the Railway. It reads in part as follows:
The disputed work assignment in issue is the assignment of Labourers’ work to Journeymen (Machinists and Electricians) on a continuous and regular basis. The relevant grievances filed on this issue by the Union are attached. The Union contends that, contrary to Rule 20 (Seniority and Job Posting); Rule 51 (Machinists’ Craft Special Rules); Rule 55 (Electrical Workers’ Craft Special Rules); and Rule 57 (Labourers’ Special Rules), work properly coming within the Labourers’ classification is being assigned on a routine basis to Journeymen Machinists and Electricians, while work of these Journeymen coming within their respective job classifications is being backlogged. In general, Local 170 says that the assignment of the disputed Labourers’ work to the Journeymen, violates the essential principles of the seniority and job classification system set out in the Local 170 Agreement. Local 170 further says that this violation of the seniority; job posting; and special craft rules provisions of its Agreement cannot be relieved by the Umpire under the Constitution of the Council of Trade Unions on BC Rail. (emphasis added)
[15] The Union, in effect, proceeded on the assumption that it had jurisdiction over the work in question and that the real issue was whether the Jurisdictional Umpire process applied. In that context, its position was that the grievances in question do not raise a “jurisdictional issue” as that term is used in Article XV of the Constitution.
[16] The Union did address the application of the collective agreement in its reply to the Railway. In its submission, the language of the agreement is mandatory and could not be read as contemplating a right in the Railway to make work assignments that ignored the jurisdictional structure contemplated in the language. The Union’s response to the Railway’s submission was that the interpretation it advanced, at the least, required good faith on its part. Assigning Labourer’s work to Tradespersons as a prelude to placing Labourers on layoff is evidence of bad faith, said the Union, when the absence of Labourers is relied on to support the assignment of their work to other employees.
[17] Returning to the Jurisdictional Umpire process, the Union urged that the grievances fall outside its terms because no issue of jurisdiction as between constituent Unions was raised. It relied in that regard on the reasoning of the Labour Relations Board (LRB) in BC Rail Ltd. and Council of Trade Unions on BC Rail Ltd., October 13, 1999, BCLRB No. B405/99 (Hall). On pp. 4-5 the Board wrote:
Taken literally, any work assignment proposed by the Railway could be brought within the Jurisdictional Umpire process. That was certainly not intended, and the Railway properly concedes for example that an assignment of work from one classification to a lower rated classification within the same constituent union (arguably a productivity measure) would not be a jurisdictional issue. On the other hand, the Council’s approach to the term – and especially the position it advanced before Mr. Hope – is unduly restrictive and does not reflect the underlying purpose of Article XV. (emphasis added)
[18] The Union saw that reasoning as applying by analogy to the circumstances present in this dispute where employees in a higher-rated classification were assigned to perform the work of lower-rated employees for the apparent purpose of depriving the lower-rated employees of the positions they hold under the seniority and classification provisions of the agreement.
[19] The Union further relied on extract from the decision under appeal cited by the Board on p. 8 which included the following:
The Unions that make up the Council are entitled to rely on jurisdictional provisions set out in their various collective agreements unless a particular work assignment meets a reasonable preliminary test of productivity.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[T]he Railway established that its proposal to abolish the labourer/switchmen position on the afternoon shift in the Prince George car shop and to assign switching duties ad hoc to qualified employees in the car shop is a bona fide initiative designed to achieve a productivity goal that cannot be achieved within the provisions of the U.A. 170 collective agreement.
[20] The Union position was that the Railway proposal in this dispute went well beyond what is contemplated in the Umpire process in the sense that it amounted to the elimination of one classification, being the Labourer’s classification, and the assignment of their work to employees in other classifications, being the Trades. The process, said the Union, does not contemplate the erosion of one classification by the assignment of its work to other classifications.
[21] The Union’s alternative position was that if the Railway’s initiative could be seen as falling within the Umpire process, the evidence failed to disclose a procedural goal which would meet the definition of a “jurisdictional issue” in the sense contemplated by the LRB in its Article XV decisions. The manpower shortage upon which the Railway relies in this dispute, said the Union, was created by placing Labourer’s on layoff and then assigning their work to Trades employees.
[22] The classification provisions, said the Union, are “carefully defined under separate rules” with separate duties and separate rates of pay. They represent a “hierarchy of skills” which permits employees to advance through the hierarchy as they acquire additional qualifications. That hierarchy is coupled with seniority under Rule 20, said the Union, to provide a job and employment security which is inconsistent with the elimination of Labourer positions through the assignment of their work to Tradespersons.
[23] The Union’s position was that the “regular and continuous” assignment of Labourer’s work to Tradespersons is a breach of the collective agreement which cannot be relieved under the Umpire process. The Umpire process, said the Union, is intended by the LRB to provide flexibility in the work routine which permits the Railway to assign employees to perform coincidental duties for which they are qualified in order to expedite the work. In its view, the process is not intended to permit the establishment of composite employees who can be diverted from duties falling within their own classifications to duties unrelated to their work routine and involving work assigned under the agreement to other classifications.
The Railway
[24] The Railway challenged the conclusions reached on the facts by the Union. In particular, it filed data to support its assertion that the disputed assignments of Labourer’s work only occurred when their was no Labourer available to perform them. In response to the assertion that Labourers were placed on layoff in order to create a shortage which would serve to justify assigning their work to Tradespersons - the Railway filed data to show that the disputed assignments, taken cumulatively, did not total the average hours a Labourer works in the shops. Its submission was that the disputed assignments were a productivity measure taken to avoid the cost factors involved in adding a Labourers position when their was insufficient predictable work to keep an additional Labourer fully employed.
[25] The Railway acknowledged that it does assign work which is normally performed by Labourers to Tradespersons while there is backlog trades work available. But, said the Railway, the documentary evidence it filed placed that practice in context. Its submissions was that the evidence disclosed that the practice existed before the assignments giving rise to this dispute were made and had remained relatively constant. It also filed statistical data which disclosed that the backlog of trades work remained at normal levels throughout the period following the filing of the grievances when compared with levels prior to the filing.
[26] As stated, the position of the Railway was that assigning Labourers duties to Tradespersons is not a breach of the collective agreement, and, if those assignments were seen as breach, the principles that govern the Jurisdictional Umpire process would serve to excuse it. The position with respect to the collective agreement was that Rule 57.3 does not prohibit the assignment of work falling within its terms to other Local 170 employees.
[27] In its submission, Rule 57.3 is limited in its application to circumstances where there are Labourers available to perform the work. Its further position was that organizing the work so as to reduce the workforce required to perform it is not a breach of the collective agreement and, in any event, is consistent with the productivity goal contemplated in the Umpire process.
[28] The position of the Railway is that the grievances in this dispute raise a “jurisdictional issue” within the meaning of Article XV(a) of the Constitution and that the facts fall squarely within Article XV(b) of the “criteria”, thus permitting the assignment of Labourers work to Tradespersons because the assignments promote work place productivity and reduces costs.
[29] In support of its position the Railway cited B.C. Rail and Council of Trade Unions on BC Rail (Jurisdictional Umpire – Car Shop Switch Crew Arbitration), May 3, 1999, unreported. In particular, the Railway relied on an analysis appearing on p. 13 in which the Union is characterized as seeking to have Labourers work assigned to other UA, Local 170 employees when there is no Labourer available to perform the work. That, said the Railway, is precisely what occurred in this dispute. Its position, in effect, was that balancing fluctuating work requirements and manpower through flexibility in work assignments is a process recognized by the Union itself and is the raison d’etre of the Umpire process.
[30] In that same context the Railway relied on BC Rail Ltd. and Council of Trade Unions on BC Rail, March 31, 1998, BCLRB No. B131/98, unreported (Hall), one of the earlier decisions of the LRB that gave rise to the Jurisdictional Umpire process. In particular, the Railway cited the following extract from p. 14 of that decision:
[A] number of jurisdictional restrictions have always existed within Constituent Unions. We refer specifically to the “Craft Special Rules in the UA Agreement”. The Railway has either not attempted or been unable to negotiate changes to these Rules. In fact, during the 1993 negotiations the Railway agreed to a new provision in Rule 57.3 which gave UA Labourers jurisdiction over “switching of locomotives on shop tracks”. This was one of the prime examples advanced by the Railway to justify the need for partial consolidation … The Railway’s complaint has essentially been that functional integration and jurisdictional restrictions preclude efficient operations. The Jurisdictional Umpire process suggested by the Council is a vehicle in addition to collective bargaining through which these problems can be raised. It essentially becomes the Railway’s decision as to whether or not the process is invoked. That is, the Railway can make assignments in accordance with the collective agreement (as negotiated) or it can seek to have restrictions overruled on the basis of workplace inefficiencies. (emphasis added)
[31] In terms of the first issue relating to the interpretation of the collective agreement, the Railway cited Auto Haulaway Inc. and Teamsters Union, Local 927, (1995) 47 L.A.C. (4th) 301 (Outhouse), for the proposition that management has the right to abolish classifications, create new classifications or assign duties from one classification to another unless there is an express limitation set out in the collective agreement. See pp. 310-11 citing Windsor P.U.C., (1974) 7 L.A.C. (2d) 380 (Adams).
[32] The Railway next relied on Fernie (City) and C.U.P.E., Loc. 2093, (1999) 80 L.A.C. (4th) 289 (Glass), where Arbitrator Glass, commencing on p. 303, concluded that electing not to create a vacancy in a classification will not be seen as a breach of a collective agreement unless there is language that prohibits that discretionary right. He found that the fact that an employer distributes duties that would have been performed by employees in a classification to employees in other classifications in the bargaining unit will not be a breach unless it is concluded that there was in fact a job that the employer elected not to fill. Here, said the Railway, it is clear on the evidence that the work assignments to Trades employees were not capable of being put together into a single Labourer vacancy.
[33] The Railway next cited two decisions between these parties, BC Rail and UA, 170 (Abolishment of Bid Jobs), December 23, 1999, unreported (Glass) and BC Rail Ltd. and UA, 170 (First Aid Attendant Arbitration), April 20, 2002, unreported (Diebolt). In the Abolishment of Bid Jobs Arbitration, Arbitrator Glass was addressing an organizational change in which the Railway eliminated “bid jobs for all labourers in Squamish”. In the First Aid Attendant Arbitration, Arbitrator Diebolt was addressing a similar issue with respect to the abolition of a first aid attendant shift. Both changes came as part of a reorganization of work.
[34] The Railway submitted that the decisions of Arbitrator Glass and Arbitrator Diebolt stand for the proposition that the provisions of the collective agreement between these parties does not prohibit the Railway from initiating reorganizations which will result in the redistribution of work assignments. The Railway relied in particular on the following extract from p. 26 of the decision of Arbitrator Glass:
There is no question at all that most employees, if not all, represented by the union who are affected by the organizational changes will find or have already found that the newly bulletined positions give them much less choice than before. The reduced opportunity to bid or bump into historically specific positions is of course the second limb of the union’s claim that seniority rights have been devalued or abrogated. The real right bargained for however, in the posting and related seniority provisions of the Agreement is the right to access the best jobs the employer has to offer, based on seniority. It is not, absent a sham or cosmetic type of reorganization, a right to prevent an employer from reassigning or reconfiguring work within a classification. The loss of opportunity and loss of choice is not the result of a curtailment of seniority rights but is a result of a bona fide reorganization by the employer of duties and responsibilities within certain classifications, in response to its current needs.
[35] The submission of the Railway was that the facts support its assertion that the assignment of Tradespersons to perform Labourer’s work was consistent with an exercise of its inherent management rights which were not restricted under the provisions of the collective agreement and, in any event, with an exercise of the discretion vested in it under the Umpire provisions of the Council’s Constitution. Its submission was that the Union failed to establish the pattern it asserted in support of the grievances in which it was supposed that Labourers were placed on layoff and the work they would normally have performed was assigned to Tradespersons.
[36] On the facts, said the Railway, that pattern did not emerge. The cadre of Labourers in Prince George was reduced over time in response to business and operational changes, but those changes did not involve the elimination of one or more Labourer positions through layoff which was facilitated by assigning the work they would have performed to Tradespersons. Rather, tasks which may have been assigned to a Labourer if one were present and unoccupied, were assigned as a matter of routine to Tradespersons as an alternative to creating Labourer positions beyond the work available that Labourers could perform.
Decision
[37] It is not clear that it is a breach of the collective agreement for the Railway to assign work which would normally be performed by Labourers to other employees in the UA, 170 bargaining unit. However, it does not become necessary to resolve that issue. I agree with the Union that placing Labourers on layoff by assigning their work to employees in other classifications, absent other factors, would be a breach of the collective agreement which would not be excused under the Umpire process.
[38] However, I also agree with the Railway that the assignments in question do not involve the elimination of Labourer positions achieved by the assignment of their duties to Tradespersons. The practice giving rise to the grievances involved intermittent assignments of necessary Labourer’s work to Tradespersons directed at a productivity goal that brought the circumstances within the discretion contemplated in Umpire provision of the Constitution. In particular I conclude on the facts that the circumstances confronted by the Railway could not be met productively by adding to the roster of Labourers in the Prince George shops. The work tasks involved did not constitute a full job when taken cumulatively and, in any event, could not be accommodated by a single Labourer because of coincidental and competing requirements which could not be met by a single Labourer.
[39] Hence, while the rate paid to Tradespersons is higher than the rate paid to Labourers, the productivity goal was met by the flexibility in meeting needs as they arose with no redundancy. The choice for the Railway which was implicit in the facts was to provide manning in the form of Labourer positions in excess of anticipated requirements in order to have a surplus availability present to meet fluctuating demands or to meet those fluctuating demands by assigning surplus requirements to Tradespersons.
[40] I am of the view that assigning Tradespersons to perform Labourer’s work in the circumstances confronted by the Railway falls squarely within the contemplation of the LRB in the introduction of the Umpire process. To meet the position which is implicit in the Union’s submission, it would be necessary for the Railway to man the Labourer’s classification in excess of its full-time needs as opposed to meeting excess needs through task assignments made as needed to Tradespersons. The task assignment data indicates that full shift assignments were made on occasion but the usual pattern was task-oriented and was limited to parts of a shift. In any event, the facts did not disclose that the needs represented in the disputed assignments could be met by establishing one or more additional Labourer positions.
[41] The LRB contemplated in the introduction of the Umpire process that it would be open to the Railway to initiate changes in work assignments regardless of how they may impact upon work jurisdiction provisions, both as between constituent Unions and internally within a given Union. That aspect of the program was addressed by the LRB in its March 31, 1998 decision in BC Rail Ltd. and Council of Trade Unions on B.C. Rail. On p. 15 the Board wrote in part as follows:
We interpret this acceptance as implicit recognition that craft rules and jurisdictional lines of demarcation should no longer inhibit the Railway’s ability to operate efficiently. The Board must be satisfied that the process will achieve this result in practice. The protective “quid pro quo” is the stipulation that work requiring a qualified tradesperson will be performed by someone with the requisite qualifications. This accords with the Railway’s stated objective of utilizing skill sets within different Constituent Unions (for example, welding) where employees are qualified. The Council has additionally stated that the Jurisdictional Umpire provisions are intended to apply to special craft rules within Constituent Unions.
Another criterion or principle which we believe should apply to both informal resolution and any adjudication of jurisdictional issues is “non-exclusivity”. Where a practice is altered to achieve greater efficiency, the new arrangement should not allow the Constituent Union performing the work to thereafter claim exclusive jurisdiction in similar situations. The net effect would simply be the substitution of one set of restrictions with a new set – something entirely inconsistent with promoting workplace productivity. We believe as well that such a stipulation should alleviate the Railway’s concern over the creation of a complex and inflexible “Blue Book” of rules. (emphasis added)
[42] The concern of the Council as expressed by Mr. Yearley is well placed. The facts giving rise to this grievance support a conclusion that the policy of the Railway is to resort to the Umpire process whenever it views the facts as supporting productivity gains in the terms of efficiency, including cost reduction, regardless of jurisdictional restrictions in the applicable collective agreements. However, it is clear from a reading of the LRB decisions that gave rise to the process that the Railway’s objective as perceived by the Council is precisely what the LRB intended.
[43] That objective is clearly mandated in the extract cited above where the LRB wrote that “craft rules and jurisdictional lines of demarcation should no longer inhibit the Railway’s ability to operate efficiently”. The process introduced by the LRB in Article XV of the Council’s constitution contemplates a right in the Railway to invoke the Umpire process as a medium in which to bypass jurisdictional provisions for purposes of achieving productivity gains in the form of work assignments.
[44] The only limitations on the exercise of the Railway’s discretionary right are those contemplated in the LRB’s October 13, 1999 decision in BC Rail Ltd. and Council of Trade Unions on BC Rail. That decision, in substance, acknowledges that the only limitation on the Railway in its exercise of the Umpire discretion is a requirement that it act in good faith. In this dispute the facts do not support the conclusion that the initiative of the Railway was in bad faith. It was directed at workplace productivity gains which were achieved by the flexibility inherent in being able to make intermittent assignments of Labourer’s work to Trades employees as the need arose. That flexibility eliminated redundancy in the manpower required to meet the ongoing needs of the operation. On that basis, the grievances are dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 4th day of July, 2003.
“H. Allan Hope, Q.C.”
H. ALLAN HOPE, Q.C. – Arbitrator