IN THE MATTER OF AN ARBITRATION

AWARD OF THE ARBITRATOR

The Union alleges that the Company has violated the work jurisdiction provisions of the collective agreement with respect to two separate assignments. One concerns the welding of car stops on track RW 15 in an area adjacent to the car shop. The second relates to the repair and securing of the covers of the rabbit car moving system of the spot shop. The Union maintains that the work in question should have been assigned to heavy duty mechanics rather than, as occurred, to a car mechanic.

The facts and issues emerging are reflected in the ex parte statement of issue filed by the Union at the hearing, which reads as follows:

EX PARTE STATEMENT OF ISSUE – UNION:

DISPUTE – UNION:

Work ownership – The use of Car Mechanics to perform Facility Maintenance work identified in Rule 52.1(b) as Heavy Duty Mechanic's work.

UNION POSITION:

On March 26, 2002, the Company served the first of a series of lay off notices on the Union in relation to downsizing the Facility Maintenance employees in Walker Yard in Edmonton by issuing an Article 8 to the Union advising of the permanent reduction of one facility Maintenance Electrician.

On November 26, 2002, the Company enhanced its lay off in Walker Yard in Edmonton of employees by adding the temporary reduction of another Electrician, two Heavy duty Mechanics and ten Car Mechanics.

On December 23, 2002, the Company notified the Union that the temporary Lay in relation to Walker Yard in Edmonton, as identified above, would become permanent under Article 8(b) of the ESIMA.

On April 07, 2005, the Company assigned Car Mechanic Roy to remove, straighten and then re-secure the covers on the "Rabbit" Car Moving System to the Spot Shop. In the Union's estimate this took approximately 6 hours for Car Mechanic Roy to complete.

At the same time, the Company assigned Car Mechanic Andrus for to weld the car stops on track RW 15. In the Union's estimate, this took approximately 2 hours for Car Mechanic Andrus to complete.

On April 12, 2005, the Union filed a grievance concerning the Company assigning the aforementioned 1 Car Mechanics to perform work defined in Rule 52.1(b) as Heavy Duty Mechanic's work.

In the Union's Step II appeal to the Company dated May 3, 2005 the Union referred to Rule 24.1, Rule 52(1)(a&b), Rule 52.2, Rule 57.1 and Appendix X in support of the Union's position.

In the Step I grievance and Step II Grievance Appeal, the Union requested that Facility Maintenance Mechanic, (Heavy Duty Mechanic) H. Gommer be paid eight (8) hours at punitive overtime rates as a result of the Company's action in this matter.

Based on the aforementioned, it is the position of the Union that HDM H. Gommer, or the appropriate HDM, be paid – 8 hrs at punitive overtime rates.

COMPANY POSITION: In its Step I reply to the Union dated April 27, 2005, the Company stated that: "as Mr. Gommer was working on April 7, 2005 and was not adversely effected the grievance is respectfully denied."

In the Company's reply to the Union's Step II Grievance Appeal dated May 10, 2995, the Company took the position that: "… on April 7, 2005 Heavy Duty Mechanic Gommer was assigned to other duties within the facility. The repairs to the rabbit car moving system and the welding of the car stops on RW 15 were required to be performed as soon as possible. The alternative would have been to Contract this work out under the provisions of Rule 51, item (b), however as Car Mechanics use this equipment on a daily basis, and are qualified to perform the work, the Company chose to assign this work to our Car Mechanic employees, who are members of your Collective Agreement."

Based on the aforementioned, the Company denied the Union's grievance appeal.

FOR THE UNION:

(signed) JOHN BURNS

VICE-PRESIDENT, MOUNTAIN REGION

CAW LOCAL 100

The Arbitrator has considerable difficulty with the first aspect of the grievance, as relates to the welding of car stops on track RW 15. To succeed in alleging that the work in question belongs to heavy duty mechanics, the Union must be able to demonstrate that there is no shared jurisdiction with respect to such work. The thrust of the Union's position is that the work in question falls under the work of heavy duty mechanics as described in Appendix X of the collective agreement which reads as follows:

Heavy Duty Mechanic

Heavy Duty Mechanics work shall consist of inspection, maintenance and repair of motive power units and performance of all other work that is generally recognized as Heavy Duty Mechanic’s work including facility maintenance.

The Union's representative submits that the welding work in relation to the installation of the car stop falls under the general heading of "facility maintenance" within the definition of the trade classification of heavy duty mechanic.

In the Arbitrator's view it is significant that the work in question did not in fact occur within the car shop, or strictly speaking inside that facility. Rather, it was on a track external to the shop, albeit adjacent. The unrebutted representation of the Company is that as a general matter all work in respect of the installation and maintenance of track, in particular track which is outside of the confines of any shop, is work which has traditionally been performed by maintenance of way employees within the Engineering Department. On that basis the Company asserts that the Union cannot claim exclusive jurisdiction to the work in question and cannot, by extension, claim that it must be awarded to a heavy duty mechanic.

The Arbitrator is persuaded by the Company's submission. In my view it falls within the principle expressed by Arbitrator Ready in SHP 472, a dispute with respect to the assignment of the connection and disconnection of M.U. hoses and the coupling and uncoupling of PIN jumper cables to hostlers. In that context Arbitrator Ready commented as follows:

Prior to the Trade Modernization Agreement, and well before the implementation across CN's System, the Company was utilizing Hostlers to perform the connection/disconnection of 27 PIN jumper cables and the coupling/uncoupling of MU hoses when performing splits and couples to locomotive consists at various locations throughout CN's System.

Upon careful review of the subsmissions I find, in the circumstances of this case, there has been no violation of the Trade Modernization Agreement because the Union is not in a position to claim exclusive jurisdiction over the disputed work. Indeed, the work has, in some cases, been performed by members of other bargaining units.

Further, I find that Section 9 of the Trade Modernization Agreement clearly states the intent of the parties as follows:

9. Nothing in this agreement is intended or should be construed to either expand upon or diminish the scope of work of this bargaining unit in relation to any other bargaining unit(s)m non-bargaining unit employees or outside agencies or contractors. However, it is understood that supervisors will not perform bargaining unit work except in instances of emergencies.

In the result, the grievance is dismissed.

I am satisfied that in the case at hand the welding of a car stop to a track is not what the parties contemplate as "facility maintenance" work which must be exclusive to heavy duty mechanics. It is, in essence, more in the nature of work performed by track maintenance employees. At a minimum, it is work which, at best, can be described as being of shared jurisdiction. In these circumstances the grievance with respect to the welding of the car stop cannot succeed.

The Arbitrator has more difficulty with the Company's case as regards the repairs to the steel plates covering the rabbit car mover system cables on the west side of the shop. The Company's submission appears to accept, implicitly, that any repair to the rabbit car mover system itself would fall under the general rubric of "facility maintenance" which is to be assigned to heavy duty mechanics. It maintains, however, that the mere repair of the cover of the system is not, in and of itself, facility maintenance. It also appears to argue, in the alternative, that the work needed to be performed on an emergency basis and that there were no heavy duty mechanics available at the time.

The Arbitrator finds the Company's position with respect to the cover of the rabbit car mover system cables as opposed to the actual mechanism itself to be more technical than persuasive. The Company stresses that the steel plates are located outside the car shop facility and are not required for the repair and maintenance of locomotives and engines or the repair and maintenance of shop machinery or of any mechanical device within the mechanical function shops. Its position appears to recognize, implicitly, that repairs on the rabbit car mover system itself, with respect to its mechanical function, or the maintenance of a mechanical device would be work properly assigned to heavy duty mechanics. It maintains, however, that the placement and securing of loose covers and the screwing down of bolts on the cover plate do not require the skills possessed of a heavy duty mechanic.

The Arbitrator has difficulty with that submission. In my view the rabbit car mover system must be viewed as an inherent part of the shop facility, the repair and maintenance of which is properly assignable to heavy duty mechanics. While it may be that certain aspects of that maintenance, indeed certain aspects of the maintenance of mechanical devices, might be performed by persons with skills less refined that those of a heavy duty mechanic, that is not to address the central question. The central question is whether the work is in relation to facility maintenance as contemplated within the definition of heavy duty mechanic's work. The correction of the flaws in the cover system to the rabbit car mover apparatus does, I am satisfied, fall within the concept of facility maintenance in the sense contemplated by the definition of the work of a heavy duty mechanic. That it might be capable of being performed by another trade does not take away from the general intention of the parties with respect to the work jurisdiction concerning facility maintenance.

Nor is the Arbitrator persuaded by the Company's suggestion that the work in question needed to be performed on an emergency basis. If anything, the evidence discloses that the Company allowed this situation to remain in place for some time, before calling for the repairs to be done after the matter was finally raised at a safety meeting on April 7, 2005. It is far from clear to the Arbitrator that the work could not have properly been assigned to heavy duty mechanics in the normal course.

For these reasons this aspect of the grievance must be allowed. The Arbitrator finds and declares that the work in relation to the rabbit car mover system repair should have been assigned to a heavy duty mechanic, and directs that the Company compensate the appropriate heavy duty mechanic for the time in question, at overtime rates.

I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Ottawa, this 15th day of May 2005

_________________________________

MICHEL G. PICHER

ARBITRATOR