SHP652 (App X)
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 100
(the “Union”)
RE: GRIEVANCE CONCERNING RULES 12, 52.1(A), 52.2 & APPENDIX X
Sole
Arbitrator: Michel G. Picher
Appearing For The Union:
B.
Stevens – National Representative, Toronto
B.
Snow – Vice-President, Mountain Region
Appearing For The Company:
B.
Laidlaw – Manager, Labour Relations, Winnipeg
R.
Bateman – Sr. Manager, Labour Relations, Toronto
Wm.
Dutton – Mechanical Supervisor, Vancouver
A hearing in this matter was
held in Montreal on December 11, 2009.
AWARD
The
grievance in relation to this arbitration concerns the Union’s allegation that
the Company has violated the rules of the collective agreement by effectively
assigning bargaining unit work to supervisors. The background facts and issues
are reflected in the dispute and joint statement of issue filed with the
Arbitrator at the hearing, which read as follows:
DISPUTE:
Alleged violation of Rules 12, 52.1(a), 52.2 and Appendix X of Agreement 12 concerning CN Mechanical Supervisors engaging in Agreement 12 work by changing wheels on freight cars and repairing freight cars on track PA13 in the Thornton Yard, Thornton Shop and Rip Track between February 3, 2009 and February 12, 2009.
STATEMENT OF
ISSUE:
From February 03, 2009 to February 12, 2009, Mechanical Supervisors performed Car Mechanic’s work by changing wheels and repairing rail cars on track PA13 in the Thornton Yard, Thornton Shop and Rip Track.
The Union contends CN Rail is in violation of Rule 12 by assigning Mechanical Supervisors to perform non emergency bargaining unit work to freight cars.
The Union contends CN Rail is in violation of Rule 52.1(a) by assigning Mechanical Supervisors to perform bargaining unit work which generally is recognized as Car Mechanic’s work in the Thornton Yard.
The Union contends CN Rail is in violation of Rule 52.2 by assigning Mechanical Supervisors to perform bargaining unit work which is exclusive to Car Mechanics.
The Union contends CN Rail is in violation of Appendix X by assigning Mechanical Supervisors to perform non emergency bargaining unit work to freight cars.
The Company has denied the Union’s contentions.
The material
before the Arbitrator reflects the fact that processing bad order cars is an
important function performed by the Vancouver Mechanical Department in Thornton
Yard. The Arbitrator is advised that in a normal twenty-four hour period
approximately fifty bad order cars will be queued in the yard in need of
repair. It does not appear disputed that in the months of January and February
of 2009, the number of bad order cars at Vancouver increased, due in part to
unusually inclement weather in the BC Lower Mainland. When a serious backlog
began to emerge in late December the Company began canvassing all employees to
work overtime to handle the increased workload.
The
un-contradicted evidence before the Arbitrator is that only a small number of
employees accepted to work overtime, with the majority refusing to do so. The
evidence of Mr. Bill Dutton, Mechanical Supervisor at Vancouver, is that virtually all but six of the car mechanics in
the Vancouver Mechanical Department consistently refused to work overtime to
clear the backlog of bad order cars. For a short period in early January
supervisors were brought in to work on wheel repairs, apparently succeeding in
reducing the excess volume of bad order repair work. However, the situation
re-escalated in February, and supervisors were again called to work on the
problem in the period between February 3 and 10, 2009. It is the latter period
which is under dispute in this grievance.
The Union
alleges that the work performed by the supervisors was in violation of rule
12.1, Appendix X, (para 9), rule 52.1 (a) and rule 52.2 of the collective
agreement. These articles read as follows:
Rule 12 – Working Supervisor
A Supervisor shall not be allowed to do mechanics’ work when mechanics are working on a reduced hourly basis and are available. Supervisors will not perform bargaining unit work except in instances of emergencies. This is not intended to restrict the use of a working supervisor in accordance with established practice at small points.
Appendix X – Trades Modernization Agreement
(paragraph 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), 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.
Rule 52 – Trade
Classifications and Special Rules
52.1(a) Car Mechanic
Car Mechanics work shall consist of inspection, maintenance and repair of freight and passenger cars and performance of all other work, including wrecking service, that is generally recognized as Car Mechanic’s work. It is understood that Car Mechanics will perform all electric or any oxy acetylene welding required in the performance of work.
52.2
The three trades identified in Rule 52.1 shall perform their work independently and exclusively except as otherwise provided for in Appendix X and Appendix XIV.
Regular apprentices in the trade are also included in connection with the work as defined in Rule 52.1.
The narrow
issue in the case at hand is whether there was an emergency within the meaning
of rule 12 and Appendix X of the collective agreement. It is not disputed that
the work in question is bargaining unit work, and the only issue is whether the
circumstances at hand justified the Company resorting to the use of supervisors
to reduce what it viewed as a dangerous backlog in bad order cars in the
Vancouver Yard.
In CROA 1563 the arbitrator had occasion
to comment on what the concept of an emergency situation might involve. That
case involved the contracting out of certain bridge repairs over the objection
of the Brotherhood of Maintenance of Way Employees in the service of the
Canadian Pacific Railway. In that award the Arbitrator commented as follows:
The Arbitrator agrees with the submission of the
The Union
points to rule 52.17(e) of the collective agreement as a reflection of the
concept of what does not amount to an emergency. That article reads, in part,
as follows:
Rule 52.17 (e) … Routine service, ordinary maintenance and construction work shall not be considered as emergency work.
The
Union questions the Company’s raising of
winter weather as an unusual condition, arguing that weather data for the
period in question in Western Canada does not disclose an unusually harsh
winter condition. The Union also questions the fact that manpower within the
ranks of the car mechanics has declined by the Company’s decision to implement
job reductions. It submits that that fact cannot effectively serve to create an
emergency that allows the performance of bargaining unit work by supervisors.
The Union
also submits that there were reassignment options available, whereby bargaining
unit employees might have been imported from other locations to deal with the
backlog of bad order cars in Vancouver. On the whole, the Union submits that
there was no basis for the Company to invoke an emergency.
The
Arbitrator has substantial difficulty with the Union’s position. Firstly, from
the standpoint of complement, it is questionable that the number of car
mechanics in Vancouver could not, by performing overtime work, have fully
handled the situation which presented itself. In the Union’s estimation there
are fifty-seven car mechanics, even after the reductions in complement, at that
location. It appears that fully fifty-one of them consistently refused to work
any overtime to deal with the backlog of bad order cars. While employees may
have their own reasons for that decision, the number of overtime refusals
registered by the employees is a factor which, I am satisfied, the employer was
entitled to take into account in determining whether there was a situation
approaching emergency proportions which relieved it from the constraints of
rule 12.
Was there an
emergency? I am satisfied that there was. The availability of sound rolling
stock is part of the lifeblood of the Company. Additionally, the congestion
caused by back-logged repairs threatened normal operations. Firstly, while it
is true that weather conditions generally in the west were not unduly
problematic, the data before the Arbitrator do confirm that in fact the
situation at Vancouver was unusual, from the standpoint of recorded snow fall.
That situation was exacerbated by the high number of bad order cars and the
contemporaneous refusal of the vast majority of bargaining unit employees to
work any overtime to deal with the backlog. When regard is had to all of the
circumstances, the Arbitrator must conclude that the Company was indeed faced
with a mounting emergency, both in January and February of 2009. More
specifically for the purposes of this grievance, I am compelled to conclude
that for the period February 3 to February 10, 2009 the Company was faced with
an emergency situation which did justify the assignment of supervisors to
assist in clearing the backlog of bad order cars which had been mounting unduly
at Vancouver.
For all of
the foregoing reasons there is no violation of the collective agreement
disclosed and the grievance must be dismissed.
Dated at Ottawa this 21st day of December 2009.
_________________________________
MICHEL G. PICHER
ARBITRATOR