IN THE MATTER OF AN ARBITRATION

AWARD OF THE ARBITRATOR

The Union alleges a violation of its work jurisdiction. The specifics of its claim are reflected in the Joint Statement of Fact and Issue tabled at the arbitration hearing, which reads as follows:

STATEMENT OF FACT:

On May 11, 2004 Rail Car Mechanic (Carman) was assigned to perform a verification test on and Sense and Braking Unit (SBU) on the running Lead, in Winnipeg 440/11, CP 5999. Before the Rail Car Mechanic could perform the required verification test he was advised he was cancelled as another employee outside the CAW bargaining unit had done the work in question.

STATEMENT OF ISSUE:

It is the contention of the Union that the Company has violated Rule 52.2A, Rule 55.2 and Appendix 45.

Therefore, with regard to the foregoing, it is the position of the Union that the Company must cease and desist from assigning CAW bargaining unit work to employees outside the CAW bargaining unit forthwith, and pay the next available Rail Car Mechanic on the general overtime list the appropriate minimum call amount for this breach of bargaining unit rights.

The Company denies the Union’s contention and claim.

The background facts are not in dispute. Cabooseless trains were introduced into the Company’s operations in or about 1989. In substitution for the caboose the Company has used the Train Information Braking System (TIBS), a system comprised of three principal components: a Sense and Braking Unit (SBU) which is a device mounted on the trailing coupler casting of the last car of the train, which is coupled to the brake pipe. The SBU senses brake pipe pressures, motion and direction, and is able to communicate the related information to the head end of the train by radio signal. It also is equipped with an emergency braking capacity in the event of any loss of normal braking ability at the head end of the train; the Input and Display Unit (IDU) is mounted on the control stand in the cab of the locomotive and displays information communicated by the SBU; the Communication Logic Unit (CLU) is located in the short hood of the locomotive and processes and analyzes the information communicated from the SBU for display on the Input and Display Unit in the cab of the locomotive.

The Union asserts that the testing of the SBU has been the work of carmen within the meaning of rule 52.2A of the collective agreement since the inception of the new system. That rule reads as follows:

Carmen’s Work

52. 2A 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; planning mill, cabinet and bench carpenter work, pattern and flask making and all other carpenter work in shops and yards; carmen’s work in building and repairing motor cars, lever cars, hand cars and station trucks; building, repairing and removing and applying locomotive cabs, pilots, pilot beams, running boards, foot and headlight boards, tender frames and trucks in main and back shops, and wood wagon wheels, hose bag fitter, and stove fitter, pipe inspection work in connection with air brake equipment on freight cars, repairing and assembling car and coach triple valves, applying patented metal roofing; operating punches and shears, doing shaping and forming; work done with hand forges and heating torches in connection with carmen’s work; painting, varnishing, surfacing, decorating, lettering; cutting of stencils and removing paint, (not including 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 hi-rail wrecking crane operator, oxy-acetylene and electric welding on work generally recognized as carmen’s work; and all other work generally recognized as carmen’s work.

Further, Rule 55.2 reads as follows:

55.2 Except as is permitted by this rule, work will be performed by employees in the trade to which such work is now assigned. Notwithstanding any other rules to the contrary, in order to efficiently complete an integrated work assignment involving the work of two or more trades, a tradesman in one trade may be required to do the work of another trade for short periods of time, provided that the tradesman is qualified to perform the work. Where that work is normally performed with a helper, the helper, likewise, may be required to do the work of the helper of the other trade. The work that may be required to be done under this Clause shall include the operation of any equipment or machinery necessary for the completion of the integrated work assignment.

Additionally, the Union relies upon the provisions of Appendix 45 of the collective agreement, more particularly paragraph 6 of the Appendix which defines the work of the railcar mechanic. That paragraph reads as follows:

6. Railcar Mechanic

Maintains, overhauls, reconditions, disassembles, service[s], repairs, assembles, installs, adjust, test[s], documents and modifies components and systems on cars and all track equipment generally recognized as Railcar’s Mechanics work [sic]. Plans, lays out, fabricates, installs, modifies and repairs metal components, fittings and assemblies pertaining to cars, locomotives, equipment, building and facilities. Plans, lays out and sequences work operations and performs the related work necessary to perform structural or frame welding on cars, locomotives, equipment, buildings and facilities. Performs priming, preparing, painting and associated tasks on cars, locomotives equipment, buildings and facilities. Works to blueprints, schematic drawings, service manual and other like information. Performs train inspection (i.e., wrecking service) according to regulation and policies. Adapts to new methods, processes, materials and equipment.

The Union relies particularly on the pre-ample language of Appendix 45, including the following:

In what follows, all types of work as set out shall be performed exclusively by employees in the respective trade.

On the basis of the foregoing, as well as what the Union maintains has been the regular practice, it asserts that the testing of an SBU unit on a train which has been marshalled for departure is work which belongs exclusively to carmen or railcar mechanics in accordance with the foregoing provisions. While the Union acknowledges that running trades employees may, on occasion, install and test an SBU unit, it submits that that is work which they perform on the road, and not in yards where railcar mechanics are employed. The Union maintains that in yards across the system railcar mechanics have consistently been performing the work in relation to SBUs including testing them on trains in yards, as well as inspecting and arming them on trains marshalled within train yards. Its representative submits that by utilizing running trades employees to install and test SBUs on their trains prior to departure the Company is attempting to avoid the more time consuming and safer practice of utilizing railcar mechanics who would do that work as part of a larger inspection of the train under the protection of blue flags. Running crews are subject only to a more expeditious three-point protection as found in the CROR, an option which would be more efficient from the Company’s standpoint.

The Union’s representative also draws the attention of the Arbitrator to and relies upon the Railway Freight and Passenger Train Brakes Rules, as revised to October of 1994 by Transport Canada. He submits that those rules confirm the understanding of the Union, dating from a meeting with the Railway and Transport Canada authorities in the late 1980s, that where railcar mechanics are employed they are to perform work identified in relation to the train brake rules. Those rules read, in part, as follows:

3.5 “certified car inspector” means a person who is trained and qualified to inspect and maintain car brake equipment.

…

3.16 “qualified person” means, in respect of a specified duty, a person who, because of his/her knowledge, training and experience, is qualified to perform that duty safely and properly. For example, a certified car inspector is qualified to inspect and maintain car brake equipment. Train crews are qualified to inspect brake equipment.

…

3.21 “safety inspection location” means a location designated by a railway company where certified car inspectors perform inspection and testing of train brakes.

…

3.23 “TIBS” or Train Information Braking System means a system for communicating brake pipe pressure between the controlling locomotive and the last car in the train, which includes a rear of train emergency braking feature and, if the train is otherwise unequipped, a distance measuring device.

…

6. Pre-Departure Requirements for Trains

6.1 A train shall not depart from a safety inspection location or a terminal area until the appropriate brake tests as outlined in Part II of these Rules and railway company instructions have been completed.

6.2 The tests will be performed by qualified persons, who will report the test results in the manner prescribed by the railway company to the train brake status system. Any brake system defect discovered during the brake test shall be repaired if reasonable and practicable. Any brake system defect discovered during the brake test and not repaired prior to departure shall be reported to the conductor, or in his/her absence, the locomotive engineer, who shall update the train brake status system.

6.3 If the testing is performed by certified car inspectors, the results of the tests will be retained for 30 days.

6.4 The conductor, or in his/her absence, the locomotive engineer, shall be responsible for determining that the prescribed test has been completed prior to departure. A pull-by inspection for brake release is acceptable. In such cases, the conductor or locomotive engineer shall be provided with the results of the release, and in turn, will update the train brake status system.

PART II – BRAKE TEST REQUIREMENTS

11.2 A No. 1 brake test shall be performed by a certified car inspector where a train is made up at a safety inspection location and while en route at the subsequent safety inspection location(s) designated by the railway company for that train.

…

12.2 A No. 1-A brake test shall be performed by qualified persons where a train is made up at other than a safely inspection location.

…

13.2 A No. 2 brake test shall be performed by qualified persons when:

a. cars which have not been previously tested at that location are added to a train; or

b. the locomotive engineer has been changed.

…

14.1 The No. 3 brake test shall verify the continuity of the brake pipe.

14.2 A No. 3 Brake Test shall be performed by qualified persons when:

a. solid blocks of cars which have received a No. 1 Brake test, as further defined in railway schedules, are added to a train;

b. the controlling locomotive has been attached to a train having received a No. 1 Brake Test; or

c. the locomotive consist has been exchanged or altered.

…

15. Train Information Braking System (TIBS) Test

15.1 TIBS test shall verify that an emergency brake application, initiated from the controlling locomotive through the TIBS system, will cause an emergency brake application on the last car of the train. When the sense and braking component of the TIBS system is added to a train, the operation of the TIBS will be verified by qualified persons in accordance with railway company instructions referred to in part IV, section 24 of these rules.

(emphasis added)

The Company’s representative submits that the Union cannot assert exclusive jurisdiction over the testing of SBU units. While acknowledging that the work in question has been performed by railcar mechanics in yards where that classification is employed, it has also been performed by running trades employees and other qualified persons within the same locations. He maintains that the Federal Train Brake Test Rules invoked by the Union’s representative do not, as the Union maintains, confirm that the inspection and testing of SBU units is exclusive to carmen, railcar mechanics or, in the phrasing of the rules themselves, certified car inspectors. He stresses that the rules, like the practice of the Company, acknowledge that the testing of a TIBS system, including an SBU device, can be performed by “qualified employees”, a category that is broader than “certified car inspectors”, within the phraseology of the rules themselves. That, he maintains, reflects an understanding that such work is work which can be performed, and is performed, by train crews, regardless of location. He notes that that is consistent with the Company’s own rules. Section 6, paragraph 15.2 of the Company’s General Operating Instructions, which dates from 1989, provides as follows:

Pre-departure testing of the TIBS will be performed by train crews and/or other qualified personnel.

I turn to consider the merits of this dispute. At the outset, the Arbitrator has some difficulty with respect to the language of the collective agreement itself, as regards the merits of the Union’s submission. As can be seen from the language of Rule 52.2A, in drafting their collective agreement, apparently prior to 1989, the parties spared no effort in listing in substantial detail that list of tasks and tools which define the work of carmen or car inspectors. There is obviously no specific reference within that article to the TIBS system or the Sense and Braking Unit. The issue then becomes whether it can be said to fall within the phrase “all other work generally recognized as carmen’s work.”

Rule 55.2 is, in my view, of limited value. It involves the incidental work rule, a rule whose genesis lies in the resolution of work disputes and inefficiencies as among a number of shopcraft trades involved in the inspection and repair of trains. The incidental work rule was not fashioned, as a general matter, to deal with any alleged conflicts in jurisdiction as between the work of shopcraft employees, particularly carmen, and running trades employees. Finally, the language of Appendix 45 is of limited assistance. While it recognizes that railcar mechanics perform train inspections “according to regulation and policies”, there is nothing within the language of paragraph 6 of Appendix 45 which specifically recognizes the testing of SBUs as being the exclusive work of the railcar mechanic.

Can it be said that the inspection and testing of SBUs is in some fashion conferred upon railcar mechanics by virtue of “regulation and policies”? Upon a review of the Government of Canada’s “Train Brake Rules” cited by the Union, it is highly questionable that such regulations as have been established support the position of the Union in the case at hand. As is evident from the segments of the rules reproduced above, the train brake rules make a clear distinction between two categories of rail employees. On the one hand they identify the certified car inspector, a person whom, the Arbitrator is satisfied, would include carmen or rail car inspectors who are the subject of this grievance. On the other hand, the rules acknowledge the broader category of “qualified person”, a category which would include the certified car inspector but would also, by the language of article 3.16 of the rules, acknowledge as qualified persons members of train crews who were qualified to inspect brake equipment. There can be little doubt, in my mind, that SBUs must be viewed as brake equipment. They have little other purpose than to enhance and protect the braking system of a train.

Of particular interest to the instant analysis are the provisions of paragraph 6 of the train brake rules. Dealing with the pre-departure requirements for trains, the articles under that heading deal with pre-departure brake tests and state, in part, in paragraph 6.2 “The tests will be performed by qualified persons …”. Paragraph 6.3 goes on to state, “If the testing is performed by certified car inspectors, the results of the test will be retained for 30 days.” In the Arbitrator’s view the foregoing language recognizes that brake testing will not necessarily be performed only by certified car inspectors, and may well be performed by “qualified persons”, a category which would expressly include train crews.

An important exception appears under Part II of the rules, wherein article 11.2 expressly states that a no. 1 brake test is to be performed by a certified car inspector when a train is made up at a safety inspection location. In contrast, the no. 1-A, no. 2 and no. 3 brake tests are expressly recognized as procedures which can be performed by “qualified persons”, a category which includes train crews.

Finally, and perhaps most instructively, paragraph 15.1 of the rules expressly provides:

When the sense and braking component of the TIBS system is added to a train, the operation of the TIBS will be verified by qualified persons in accordance with railway company instructions referred to in part IV, section 24 of these rules.

The foregoing appears without qualification and without reference to whether or not the TIBS inspection or verification is done in a safety inspection location, where certified car inspectors are stationed.

What, then, do the Federal train brake rules provide? Clearly, they recognize that the installation and inspection of SBU units is work which falls within the competence of train crews. In light of that, the Arbitrator has substantial difficulty understanding how the Union can assert the brake test rules of Transport Canada as supporting its claim to exclusive jurisdiction over the work in question, whether or not the SBU inspection takes place within a safety inspection location as contemplated within the rules.

It may be, as the Union maintains, that the more common practice within the yard at Winnipeg, and arguably at other yard locations within the system, has been to assign the testing of SBUs to carmen or railcar mechanics as part of their general inspection of a train. However, on the basis of the representations presented by the Company, the practice has not been exclusive. I am satisfied, on the balance of probabilities, that in a number of locations, including safety inspection yards where carmen are employed, the final assembly inspection of trains, including the installing and testing of the SBU unit, has been performed by train crews and that the practice has been so since the inception of the TIBS system, dating back to 1989. How, then, can the Union maintain that the testing of TIBS systems and SBU units is “work generally recognized as carmen’s work” within the meaning of rule 52.2A of the collective agreement, or within the provisions of rule 55.2 and Appendix 45? I do not see how it can.

On a fair evaluation of the facts, analysis of the language of the collective agreement and the federal rules examined, the Arbitrator cannot find, on the preponderance of probabilities, that the parties have intended that the testing of SBUs within yards where carmen are employed is the exclusive work of carmen or railcar mechanics within the meaning of the collective agreement. While the work in question may be done, and done to a preponderant degree, by carmen, it cannot be said to be work that has been theirs exclusively. At best, what the evidence would indicate is a shared jurisdiction in respect of the work in question. That conclusion is, moreover, consistent with the language to be found in certain of the running trades collective agreements, such as article 34.12 of the Teamsters Canada collective agreement governing train crews. Sub-paragraph 2 of that article expressly states that trainpersons and yardpersons “will be required in respect of their train to apply, test and remove Train Information Braking Systems (TIBS) equipment …”. While the foregoing provision, found in another collective agreement, is obviously not determative of the issue of exclusive jurisdiction for the instant Union it is, I am satisfied, consistent with the Company’s evidence and representations to the effect that the installation and testing of SBU units, even within yards, has been a matter of shared jurisdiction. As reflected in CROA 2711, where shared jurisdiction is established on the facts, a union cannot assert an exclusive or proprietary right to the work in question.

For all of the foregoing reasons the Arbitrator must conclude that the installation and testing of SBU units is not work which is exclusive to the bargaining unit. In the result, the assignment of the work in question to the members of a train crew at Winnipeg on May 11, 2004 was not in violation of the work jurisdiction of the Union as defined within the collective agreement. For these reasons the grievance must be dismissed.

Dated at Ottawa, this 29th day of November, 2006

_________________________________

MICHEL G. PICHER

ARBITRATOR

SHP613