February 1975

PARTIES: Canadian National Railways

and

Transportation-Communicaton

Divison B.R.A.C.

AGREEMENT: 7.1 - Article 13.11

SUBJECT OF DISPUTE: Claim that the Company violated Article 13.11 when it

used persons other than regular employees to sell tickets

at Stouffville, Unionville and Aurora, Ontario, thereby

depriving employees at those stations of work to which

they were entitled.

ARBITRATOR: Prof. Harry W. Arthurs

DECISION: Company position sustained.

COMMENTARY: The Company reassigned the hours of the grievors and

hired casual ticket sellers for one hour each day to sell

commuter tickets at stations within the Nortown Servo-

centre. The grievors claimed that, under Article 13.11

they should have been called to sell commuter tickets

and paid for an overtime call. The Union further claimed

that in hiring the casual ticket sellers the Company was

improperly "contracting-out" the work of ticket selling.

The Arbitrator ruled that Article 13.11 applied only on

days which were not part of any assignment and

therefore did not apply to regular working days. He also

ruled that the Company had not contracted-out the work

but, even if it had, it would not have violated any

agreement or understanding.

CANADIAN NATIONAL RAILWAYS

-and-

TRANSPORTATION-COMMUNICATION DIVISION

BRAC

DIVISIONS NOS. 1 and 85

Professor H.W. Arthurs

G.E. Hlady, General Chairman

D. Cameron

W.S. hodges, Sr. System Labour Relations Officer

W. Wilson

Toronto, February 17, 1975

The essence of the dispute in this case is accurately set forth in the opening paragraph of the union’s brief to the arbitrator;

The Union claims that the Company violated Article 13.11 of Agreement 7.1 when it used persons other than regular employees to sell tickets at Stouffville, Unionville and Aurora, Ontario, thereby depriving employees at those statons of work to which they were entitled.

For some time prior to the events complained of, regular Agent-Operators had been handling commuter ticket sales at the stations in question, as well as performing many other functions. These Agent-Operators had been reporting to work at 6:45 a.m. or 7:00 a.m. and had worked through to 3:45 p.m. or 4:00 p.m. However, in the latter part of 1974, the company rescheduled the Agent-Operators to work a "regular" workday from 8:30 a.m. to 5:30 p.m., and hired several individuals to work just one hour each morning handling commuter ticket sales.

The union contends, in effect, that rather than hiring individuals for one hour each morning, the company ought to have extended the hours of work of the regular Agent-Operators, from 6:45 a.m. to 5:30 p.m., thereby entitling them to "punitive overtime" pay.

The union, as noted, relies upon Article 13.11:

When work is required by the Company to be performed on a day which is not part of any assignment, it may be performed by an available extra or unassigned employee who will otherwise not have forty (40) hours of work that week; in all other cases by the regular employee.

For a number of reasons, I am not prepared to find that this language prohibits the arrangements instituted by the company and objected to by the union.

In the first place, Article 13.11 is found in a section of the agreement dealing generally with "rest days". From its context, it would appear to have no connection with the problem at hand. But more than context is involved. The very language of Article 13.11 indicates that it is addressed to "work ....performed on a day which is no part of any agreement". It does not appear to be addressed to work which is performed on a day which is part of an assignment (the Agent-Operator’s assignment, in the instant case) but which lies outside the hours of work scheduled for that day for him.

A second line of attack on the union’s position, advanced by the company, is that while the grievors are "regular employees" they do not have as their "assignment" the selling of tickets. The company contends, and the evidence appears to confirm, that the grievors, as "Agent-Operators" are required to perform a number of duties involving train order work, the handling of telegraph message traffic, etc. While conceivably ticket selling might be added to the basic duties of the employees, they do not have an exclusive right to sell tickets. Clearly, as has been held by the Canadian Railway Office of Arbitration, Case No. 174, Article 13.11 "is of no assistance in determining whether any particular classification should perform any particular work".

The arbitrator held in that case,

In order to determine whether work is appropriate to any particular job classification, it is necessary to consider the work in question in the light of an agreed job description, or in the light of the actual practice of the parties.

Adopting this approach, I am unable to find in either the job description or in the practice of the parties any basis for the grievors’ claim to exclusive right to perform this work.

No job description was tendered to me, although the parties seem agreed that the B.R.A.C. represents only craft workers excluded from a general "industrial" bargaining unit represented by another union, the C.B.R.T. The relevant distinguishing features of the excluded B.R.A.C. employees is that they do train order work and handle telegraphic messages, rather than ticket selling which is amongst the tasks performed within the "industrial" unit. At best, the evidence on this point is ambiguous, and at worst (from the union’s point of view) would appear to require me to hold that employees engaged solely in ticket selling do not fall within its jurisdiction. (See Canadian National Office of Arbitration Case No. 143).

As to the practice of the parties, it is true that for some time the daily work schedule of employees within the bargaining unit had been arranged so that they could handle commuter ticket sales. Experience with this arrangement may have been too brief to constitute a "practice" but, in any event, it might also be read as confirmation of the company’s right to designate the hours of work of various employees rather than of their right to claim exclusive control over work. To the extent that an onus rests upon the grievors to demonstrate that they have a right to the work in question, based on practice, I must find that the evidence is inconclusive.

The union, finally, relied upon language in the award of The Hon. Emmett Hall, who was appointed under special federal legislation to arbitrate a dispute involving the union and the company. The relevant portion of the award, dated December 9, 1974, speaks to the issue of "contracting out". This issue appears to have been disposed of by the arbitrator’s conclusion that the terms of a letter ("exhibit 139") proffered by the company as descriptive of its practice and intention "should suffice and provide the basis for a mutually satisfactory operation". Assuming (without deciding) that this statement gives legally binding effect to the letter in question, what are its terms?

Much of the letter deals with procedural matters, existing and proposed, which have not been called into question in the instant case. However, the substantive point is contained in paragraph 4:

The general policy of the Railways is not to contract-out work that is presently and normally performed by employees in a bargaining unit except in situations such as follows:...

(4) where the nature or volume of the work is such that it does not justify the capital or operating expenditure involved;...

Reliance upon this language by the union presents two insuperable difficulties.

First, it is not at all clear that the railway has "contracted-out" work. What it has done is to hire its own employees, admittedly casual employees, and assign work to them. While the term "contracting-out" is nowhere defined with technical precision, it is generally understood to apply to the practice of arranging with an independent employer that his employees should perform work which had formerly been done by employees in the bargaining unit. The transfer of work from bargaining unit to non-bargaining unit employees is not normally thought of as "contracting-out". If, for example, work had been assigned to employees in another bargaining unit, the company might have had to answer to the B.R.A.C. for violation of its bargaining rights, but such a violation would not in any sense constitute "contracting-out". Indeed, in the instant case, the union appears to concede that by appropriate arrangements between the company and the C.B.R.T., the individuals in question might become part of the C.B.R.T. bargaining unit.

Secondly, it is the company’s contention that even if it were held to the "contracted-out" work in the instant case, it is permitted to do so by reason of the exception in sub-paragraph (4), because "the ...volume of the work is such that it does not justify the ... operating expenditure involved" to assign such work to regular bargaining unit employees. Certainly, the effect of sustaining the union’s grievance would be attached a very high cost to the work in question. Moreover, and more importantly, it would require the company to keep employees on duty for a protracted period (approximately 1 1/2 hours) during which the company feels it has no need for staff. If necessary, I would therefore be inclined to hold that the company has satisfied the requirements of paragraph 4. Because the matter was not fully canvassed before me, I believe it is important to point out that the binding effect of the entire letter ("exhibit 139") is not entirely clear. Indeed, there is language to suggest that the arbitrator was relying upon the company to faithfully perform its undertaking in relation to contracting-out rather than imposing upon it any legal obligation to do so. However, as stated, there is no need at this time to decide the issue.

Because I am unable to find any basis upon which the union is entitled to claim for the grievors the right to perform this work, it is unnecessary for me to examine the provisions of the agreement dealing with overtime rated which would presumably apply if the grievors were entitled to do the work.

The grievance is dismissed.

(Sgd.) H.W. Arthurs

Chairman

February, 1975