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:
ROAD REPAIR TRUCK AS PRIMARY PERMANENT POSITIONS
RULE 6 OF AGREEMENT 12
SOLE ARBITRATOR: MICHEL G. PICHER
APPEARANCES FOR THE COMPANY:
Ross Bateman - Director, Labour
Relations, Toronto
Bryan Pullen -
Regional Mechanical Officer, Eastern
Canada
APPEARANCES FOR THE UNION:
Brian Stevens - CAW National
Representative
John Burns -
President, CAW Local 100
Bruce Snow - CAW Vice-President
Mountain Region
John Moore-Gough - CAW National Representative
A hearing in this matter was
held in Montreal, Quebec on May 13, 2011.
AWARD
The Union grieves the posting and filling of job bulletins at Winnipeg, Edmonton and Prince Rupert for permanent Car Mechanic – Road Repair Truck positions. It maintains that such positions can only be assigned as secondary positions under the provisions of the collective agreement. The nature of the dispute at issue is reflected in the Joint Statement of the parties filed before the Arbitrator, which reads as follows:
DISPUTE:
The bulletining of Road Repair Truck as permanent positions.
JOINT STATEMENT OF ISSUE:
In April 2009, the Company posted job bulletins at its Winnipeg, Edmonton and Prince Rupert Terminals advertising permanent Car Mechanic – Road Repair Truck positions under the provisions of Rule 23.11 of Agreement 12.
The Union contends that the Company cannot bulletin Road Repair Truck positions as permanent assignments with specific hours of work and rest days, and that the positions should have been bulletined as secondary assignments under the provisions of Rule 6 of Agreement 12.
It is the Union’s position that the Company has violated Rules 6.21 governing the bulletining of secondary assignments. Additionally, the Union contends Road Repair Truck Assignments are to be governed in accordance with all the applicable rules outlined in Rule 6 of Agreement 12.
The Company denies the Union’s grievance.
The facts in relation to this grievance are not in dispute. For decades under Collective Agreement 12 and its predecessor agreements Car Mechanics, also known as Carmen, have been called out from their regular maintenance assignments at shops, engine houses, repair tracks or inspection points to perform work in relation to road repairs as well as to emergency calls in relation to derailments and similar incidents. Work performed by Carmen in that context was traditionally referred to as either emergency service or wrecking service. To that end, Car Mechanics could bid and hold secondary assignments in emergency and wrecking service. That is reflected in Rule 6.21 of the current collective agreement, which provides as follows:
6.21 At locations where Car Mechanics are
required to protect emergency/wrecking services such as conventional
auxiliaries, Hy-Rail cranes, wreck dozers, Special Commodity Car Mechanics,
Road Repair Trucks, Road Repair Cars, and rental equipment they shall be given
an opportunity, by bulletin, to bid on the secondary assignment position they
wish to protect. For each kind of
Company owned or leased machine there shall be a regular list and a spare
list. There shall also be a regular list
and a spare list for groundperson(s) to work in conjunction with rental
equipment. Where practicable Car
Mechanics will be permitted to hold a position on only one such secondary
assignment at one time.
Note: Rental list
groundperson(s) shall be called to work in conjunction with rental equipment
called for use in emergency/wrecking service situations that require associated
ground work.
Emergency and wrecking
service obviously afforded occasional but significant overtime opportunities
for employees holding secondary assignments. It is noteworthy that historically
emergency service and wrecking service were defined in relation to the type of
equipment used on a call out. That is
reflected in the language of prior collective agreements, including Wage
Agreement No. 16 between the Company and the Brotherhood of Railway Carmen
which came into effect on October 1, 1971. That agreement provided, in part, as
follows:
Rule 6
6.1 In the event a
work force is required to perform emergency or wrecking service away from the
home terminal, employees regularly assigned to work at a shop, engine house,
repair track or inspection point, will be engaged in such service and paid in
accordance with the following rules.
Emergency Service Assignments
6.2 Emergency
service is defined as a call of any duration which does not utilize an
auxiliary wrecking outfit except as provided in Rule 6.11.
6.3 Employees used
in emergency service during their regular work hours will be paid from time of
departure from home terminal until released upon return to home terminal. If called during overtime hours, they shall
be considered to have been in emergency service from time called, except that
an employee may be notified to report for a specific time, in which event he
would be accorded one hour preparatory time.
This exception means an employee may be notified to report during the
day before the assignment is scheduled to commence.
…
Wrecking Service Assignments
6.11 Wrecking Service is
defined as a call of any duration requiring the use of an auxiliary wrecking
outfit. A second or subsequent calls to
a wreck to perform cleanup operations shall be considered wrecking service
except that the 24 hour continuous service provision of Rule 6.16 shall not
apply.
6.12 Employees used in
wrecking service during their regular work hours will be paid from time of
departure from home terminal until released upon return to home terminal. If called during overtime hours they shall be
considered to have been in wrecking service from time called except that an
employee may be notified to report for a specific time, in which event he would
be accorded one hour preparatory time.
This exception means an employee may be notified to report during the
day before the assignment is scheduled to commence.
With the merger of the
Shopcraft unions the successor provisions to those reproduced above came within
Collective Agreement No. 12, the document which is the basis of the instant
grievance. That Agreement contains the
following with respect to emergency calls and wrecking service:
RULE 6
Emergency Calls and Wrecking Service
6.1 In the event a work force is required to
perform emergency or wrecking service away from the home terminal, employees
regularly assigned to work at a shop, engine house, repair track or inspection
point, will be engaged in such service and paid in accordance with the
following rules.
Emergency
Service Assignments
6.2 Emergency Service is defined as a call of
any duration during which the Company does not provide both meal(s) and a
minimum of 5 continuous hours of sleeping accommodation for that employee. Where the employee is reimbursed for such
expenses they are considered to have been provided by the Company. Employees holding secondary assignments on
Road Repair Trucks will be paid under the Emergency Services Assignments
provisions of Rules 6.2 to 6.10 inclusive.
Employees(s) will not be provided a meal and/or
accommodation at the end of their call for the sole purpose of converting their
call from emergency service to wrecking service, but this may be done by the
Company for any safety or operational requirements.
6.3 Employees used in emergency service
during their regular work hours will be paid from time of departure from home
terminal until released upon return to home terminal. If called during overtime hours, they shall
be considered to have been in emergency service from time called, except that
employees may be notified to report for a specific time, in which event they
would be accorded one hour preparatory time.
This exception means an employee may be notified to report during the
day before the assignment is scheduled to commence. For the purposes of this rule 6.3, where
home terminals contain more than one yard, employees will be considered to have
departed the home terminal when they have departed from the yard, or location
or assigned work area within that yard, where they have obtained equipment or
tools.
…
Wrecking Service Assignments
6.11 Wrecking Service is defined as a call of any duration during which the Company provides both meal(s) and a minimum of 5 continuous hours of sleeping accommodation for that employee. It is understood that when the Company provides sleeping accommodation for that employee, the employee shall be permitted to utilize such sleeping accommodations for 5 or more continuous hours of undisturbed rest. Where an employee is reimbursed for such expenses they are considered to have been provided by the Company.
Undisturbed rest means rest which has not been disturbed
as a result of switching of the sleeping accommodation occupied by that
employee, or being awakened at the discretion of a Company Officer.
Where a second call (or subsequent calls) to the same
work site is to perform cleanup operations, and where that call is in wrecking
service, the 24-hour continuous service provision of Rule 6.16 shall not apply
to that call.
Where one call contains both emergency and wrecking
service, the entire call shall be considered to be in wrecking service.
6.12 Employees used in wrecking service during
their regular work hours will be paid from time of departure from home terminal
until released upon return to home terminal.
If called during overtime hours they shall be considered to have been in
wrecking service from time called except that employees may be notified to
report for a specific time in which event they would be accorded one hour
preparatory time. This exception means an employee may be notified to report
during the day before the assignment is scheduled to commence. For the purposes of this Rule 6.12, where
home terminals contain more than one yard, employees will be considered to have
departed the home terminal when they have departed from the yard, or location
or assigned work area within that yard, where they have obtained equipment or
tools.
The unchallenged
representation of the Union is that Car Mechanics, whether under the
predecessor collective agreement or under the current collective agreement,
were called on secondary assignments not only to derailments and wrecks. They could, on occasion, be called to perform
a secondary assignment to repair a car or cars at a location away from their
home yard or shop. Such work was always
called and paid for under the terms of emergency service, or presumably
wrecking service if an auxiliary outfit was required, and paid accordingly. More often than not Road Repair Trucks would
be dispatched to perform such road repairs.
There can be no doubt
that dispatching Car Mechanics in emergency service to perform spot repairs to
rail cars at various road locations outside their home yards or home shops
contributed to overtime costs incurred by the Company. It appears that that was essentially because
the secondary assignments performed by the Car Mechanics, in accordance with
the collective agreement, did not have any assigned days, or assigned days
off. In other words, they could not
easily be scheduled so as to avoid overtime.
The Company relates that as a result of the recent economic downturn it
looked at all possible areas in which to save operating costs. With that in mind it identified what it
considered to be excessive overtime costs relating to the utilization of Road
Repair Trucks under Rule 6 of the collective agreement. It considered that much of the work being
performed by the Road Repair Trucks was not emergency or wrecking service in
the traditional sense of working at derailments and the like, but rather
routine repair work on rail cars situated outside yards and shops, work which
it considered could be properly assigned to shop employees during regular
hours. Its representative explains that due
to recent improvements in technology, the identification of defective rail cars
at early stages has increased, resulting in the setting off of such equipment
on-line, for onsite repair away from any yard or shop.
The Company therefore
decided to bulletin permanent assignments under Rule 23.11, which provides as
follows:
23.11 When vacancies occur for which replacements
are required, or new jobs are created or additional staff is required in a
classification in a respective trade for an expected period of 90 calendar days
or more such vacancies or new jobs shall be bulletined for a period of not less
than 7 calendar days to employees in the classification at the seniority
terminal where they are created, and will be awarded to the senior employees,
subject to Rule 23.29, the local committee to be consulted. An employee who is awarded a position under
this Rule 23.11 will not be awarded the vacancy caused by the employee's
departure from the employee's former position unless the employee is the only
qualified applicant. The foregoing
sentence will only apply when the bulletined duties, hours of work and rest
days are identical to the bulletined position the employee has vacated during
the ninety (90) calendar days previous to the closure date for applications to
the new bulletin.
(See Appendices II and IX)
Within a main shop, successful applicants will be permitted
to move within fifteen (15) calendar days of the close of the bulletin. This
period may be extended to 30 days by mutual agreement with the Regional
Vice-President.
The Company therefore
posted a number of job bulletins at Winnipeg, Edmonton and Prince Rupert
advertising several Road Repair Truck positions. In that context the use of the Road Repair Truck
was obviously not as a secondary assignment, but became the primary assignment
of the successful bidder. The
assignments so created therefore had two regular scheduled days off per
week. As an example, the posting for the
Winnipeg job bulletins out of Symington Yard reads, in part, as follows:
Position: Two
(2) Car Mechanics – Mobile Repair/RRT – Safety
Sensitive
Location: Symington HRC
Rate of Pay: As per Agreement #12
Tour of Duty: 08:00-16:00
Days Off: Saturday and Sunday
This is a primary position and for the road repair truck on
the schedule listed. On scheduled days
that the road repair truck is not required duties will be assigned by
Supervision.
The impact of this
initiative is relatively obvious. By establishing
permanent Road Repair Truck assignments at these locations, with several crews
who have different days off, the Company gains a greater ability to schedule
road repairs on rail cars during the regular working hours of the employees so
assigned. It can therefore more easily
avoid such work being performed on an overtime basis on days off, as might more
frequently be the case utilizing Car Mechanics who hold bulletined positions on
Road Repair Trucks as a secondary assignment.
It is, however, arguable, as the Union suggests, that even in the
context of the secondary assignments the Company could schedule rail car road
repair work in such a way as to avoid days off and overtime for Car Mechanics
who would do such work as a secondary assignment.
The issue in this
grievance is whether the Company can bulletin such road repair work as other
than a secondary assignment. The Union
maintains that such work can only be assigned under the emergency service and
wrecking service assignments found within Rule 6 of Collective Agreement No.
12. The Company maintains that the Road
Repair Trucks service which was bulletined at the three locations does not in
fact constitute emergency service or wrecking service assignments within the
meaning of Rule 6 of the collective agreement.
Its representative makes the distinction between what he characterizes
as emergency and wrecking work associated with derailments or similar events
and the spot repair, on the road, of individual rail cars. He argues that the latter form of work does
not fall within the concept of emergency or wrecking work dealt with under Rule
6, and that it was open to the Company to establish the permanent positions of
Road Repair Truck assignments at the three locations, as it did. He stresses that at the three locations the
Company also maintains the complement of secondary Rule 6 Road Repair Truck
positions for what he characterizes as true emergency calls and wrecking
service.
The Company submits that this not the first time it has resorted
to such assignments. Its representative
draws to the Arbitrator’s attention a number of permanent Road Repair Truck
assignments bulletined, for example, in Hornepayne and Capreol. It does not appear disputed, however, that
those arrangements were brought about because of manpower constraints in those
locations and were, it appears, implemented only after consultation with the
Union and its eventual agreement.
Indeed, the Union’s representatives suggest that the very fact that the
Company consulted with the Union on the Hornepayne and Capreol positions
confirms the parties’ mutual understanding that road repairs are to be assigned
under the provisions of Rule 6 of the collective agreement.
I turn to consider the merits of the dispute. In essence the Union argues that the concept
of emergency service and wrecking service in fact has little to do with urgency
or the requirement that employees be involved in derailments or similar serious
events. Its representatives argue that
the definition of emergency service found under Rule 6.2, like the definition
of wrecking service under Rule 6.11, has only to do with the location and time
of the work, with additional reference to the equipment used. They submit that in that regard the
provisions of the current collective agreement are to be distinguished from the
terms of Rule 6 as it existed under the former Wage Agreement No. 16. The Company maintains that there is no
material difference between the collective agreements. Its representative submits that nothing in
Rule 6 prevents the Company from utilizing any of the equipment listed within
the Rule in circumstances other than the emergency and wrecking calls addressed
within it.
Having carefully
considered the facts and the submissions of the parties, I am left in some
difficulty with the overall position advanced by the Union. Firstly, as a matter of first principle, it
is useful to recall the following passage from Brown and Beatty, Canadian Labour Arbitration, Third Edition, at
4:2130:
Headings within the
collective agreement may be referred to in order to explain the section or
sections that fall under them.
The headings in the
instant case, “Emergency Calls and Wrecking Service” do, on their face, suggest
something more than routine road work.
The concept of an emergency “call” suggests urgency. The use of the term “wrecking service” under
predecessor collective agreements involved the use of heavy auxiliary wrecking
outfits typically assigned to serious derailments.
It is obviously difficult to conclude, as the Company’s
representatives would have it, that non-emergency road repairs do not or cannot
fall under Rule 6, and that that Rule is reserved entirely to urgent situations
such as derailments. In my view that
proposition simply cannot stand because the Company itself has, at least
between 1989 and 2009, regularly called bargaining unit employees with
secondary assignments to perform road repairs under the terms of Rule 6
utilizing Road Repair Trucks. Given the
existing definition of emergency service as it appears under Rule 6.2, there
would appear to be nothing in the language of the Rule to prevent the Company,
if it so chooses, to call secondary assignment Car Mechanics to perform road
repairs under that provision. The real
issue in this grievance, however, is whether the Company also has the latitude
to create regular positions to which such road repairs can be assigned, while
recognizing, as it does before the Arbitrator, that urgent repairs or wrecking
work in relation to derailments is to be assigned in accordance with Rule 6.
In my view the overall language of Rule 6, complemented by the
language of Rule 9, does suggest that the parties intended a distinction
between non-emergent road repairs, on the one hand, and urgent repairs and
wrecking work associated with derailments and the like on the other hand. Firstly, it must be stressed that the
emergency service work contemplated under Rule 6.2 is work which results from a
“call” as is evident from the language of the Rule. In other words, when employees are called
from their regular assignment to work under the Rule it obviously applies to
them. That is clearly the case for
employees who have successfully bid secondary assignments under the manning
procedures of Rule 6.21.
However, I do not see how
the foregoing can be said to foreclose the Company’s ability to have road
repairs performed on other than a “call” basis.
It is an important first principle of collective bargaining that an
employer retains the right to create positions and assign work, subject only to
clear language to the contrary in the collective agreement. I am aware of no provision in the instant collective
agreement which would bar the Company from establishing positions, as it has,
which involve road repairs as part of the everyday assignment of an employee
and not on an “on call” basis.
Significantly, Rule 6 repeatedly makes reference to “employees called
for emergency service”, as appears within the language of Rule 6.6 and Rule
6.8, for example. There would clearly be
nothing to prevent the Company from calling secondary assignment employees to
perform road repairs under the terms of those provisions if it chooses to do so,
as plainly has occurred in the past. However,
that language seems merely permissive, dealing with pay structures if the
Company exercises that option. It says
nothing that prohibits the alternative of establishing regular positions to
perform road work.
The real question,
however, is whether there is anything in the collective agreement which would
prevent the Company from establishing regular assignments which have as their
principal function to service road repairs.
In my view, Rule 9 provides at least a partial answer to that
question. It speaks to the circumstance
of “Employees regularly assigned to perform road work and paid on the basis of
181.3 hours per four-week period…” That
provision plainly contemplates the regular assignment of employees to perform
road work. It is true, as the Union’s
representative stresses, that Rule 9 applies only to employees paid on the
181.3 hour basis and having only one regular rest day per week. It would therefore not apply to the employees
who are the subject of the bulletins which gave rise to this grievance. Be that as it may, the general tenor of Rule
9 must, at the very least, be seen as a recognition by the parties that there
can be a distinction between road work, on the one hand, and urgent work and
derailment wrecking on the other hand.
Road work is also segregated for separate treatment under the terms of
Rule 8, although in that context it is confined to the work of heavy duty
mechanics and electricians.
When the Rules are viewed
as a whole, I am compelled to agree with the Company’s representative that what
they essentially address is the method of payment to be respected when the
Company chooses one or other of the Rules as a means of assigning
employees. As is evident from Rule 6.1, and
is recognized by the Company, work in relation to urgent situations and
circumstances such as derailments or other line blockages would, as has always
been the case, be work first available to “employees regularly assigned to work
at a shop, engine house, repair track or inspection point”. I cannot, however, conclude that road repairs
or road work has been given that same ambit of narrow jurisdictional protection. That is to say, these provisions cannot
fairly be interpreted as removing from the Company the right to bulletin
positions which involve the performance of road work as a regular assignment,
as opposed to such work being done on a “call” basis under the terms of Rule 6,
albeit that option is also available to the Company.
I accept, as argued by the
Union, that the language changes of 1989 arguably impacted the definition of
emergency and wrecking work. That change
cannot be construed, however, without regard to other provisions of the
parties’ agreement which do distinguish road work from emergency and wrecking
service.
While both parties
referred the Arbitrator to prior jurisprudence, it would appear that this issue
is truly a matter of first impression which has not previously been addressed. Clearly, none of the cases cited to me deal
with the issue of whether the Company can bulletin regular assignments in road
work as it has done. Nor am I persuaded
that the history of consultation with the Union with respect to such
assignments being established in Hornepayne and Capreol is particularly instructive. No letters of understanding or other
memoranda have been placed before me to confirm that that was viewed as a
contractual requirement. Nor do I think
that the fact that the Company has in past used Rule 6 to call secondary
assignment employees to perform road work is particularly determinative. It does not appear disputed that new
technology has led to more bad order cars being removed from train consists
enroute. In days when that was
exceptional, recourse to secondary assignment employees on overtime to perform
such work may not have been a significant problem. It would appear that the greater volume of
such work in more recent times has given rise to legitimate business concerns,
prompting the Company to exercise its discretion to deal with road repairs on a
regular assignment basis, and in a framework different that contemplated within
Rule 9 or Rule 6.
In the result, I am
compelled to conclude that should the Union wish to negotiate a prohibition
against road work being performed other than by secondary assignment employees
contemplated under Rule 6.1, it must clearly and expressly negotiate such a
protection within the terms of the collective agreement. Absent clear language which gives it that
protection the terms of the collective agreement cannot be said to be
violated. For these reasons the
grievance must be dismissed.
Dated at Ottawa, Ontario this 17th day of May, 2011.
______________________________
Michel G. Picher
Arbitrator