AD HOC 235

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE BRITISH COLUMBIA RAILWAY COMPANY

(the "Company")

AND

CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6

(the "Union")

IN THE MATTER OF A CONTRACTING OUT

 

 

SOLE ARBITRATOR: H. Allan Hope, Q.C.

 

There appeared on behalf of the Company:

Mary Saunders

 

And on behalf of the Union:

Terry Robertson

 

 

A hearing in this matter was held in Vancouver on June 1, 1982.

AWARD

I

The facts in this arbitration are not in serious dispute. The issue relates to the contracting out of certain welding work by the Railway at a worksite in northern British Columbia where a railway bridge called Elleh Bridge was undergoing repair. Certain of the heavy equipment employed in the repair task required maintenance welding to be performed on it. The welding involved structural repair required by reason of wear and tear. The welding was of a maintenance type and was not essential to the continuing operation of the equipment but was essential in the sense that its continued postponement would ultimately result in breakdown. The evidence of the Employer was that there was welding equipment available at the worksite but there was no qualified tradesman on site capable of doing the work. Qualified employees were located at Prince George where they were assigned to a permanent maintenance and repair facility. In the ordinary direction of the work, qualified welders were dispatched to worksites similar to Elleh Bridge to perform work in the field. The assignment of field maintenance work was done in a priority established by management in response to its operational needs. The Elleh Bridge site was described in evidence as being isolated and accessible only by rail. The disputed work took place between May 25, 1981 and June 5, 1981.

The evidence and submission of the Union was that there were welders at the maintenance and repair facility in Prince George available for dispatch to Elleh Bridge and that the Railway made no effort to bring in a bargaining unit welder. In support of that submission they called evidence from Arnold Hanson, the Manager of Work Equipment in charge of the Prince George facility. He said that he had been informed by the supervisor on site at Elleh Bridge that a welder would be required for a number of tasks. He said it was the usual practice to accumulate welding tasks before a welder was dispatched to the site, because of its remoteness. Mr. Hanson said he told the supervisor to keep him informed and he would send a welder to the site when required. Mr. Hanson confirmed that welding is not usually done outside of the bargaining unit. He could not recall being contacted by any of the supervisory staff at the Elleh Bridge site after the initial communication with a request to have a welder dispatched. He did not recall work similar to that at the Elleh Bridge site having been contracted out before the occasion in question.

In cross-examination Mr. Hanson said he had been ill in the spring of 1981. He could not recall whether he was present at the time the work was contracted out or was absent due to his illness. He confirmed that Bruce Anderson, a supervisor in the work equipment shop in Prince George, took over his duties in his absence. Finally, he confirmed that he was not familiar with the circumstances surrounding the contracting out of the welding and the basis upon which the decision was made. The Employer called Mr. Anderson who said that he had been contacted by the supervisory staff at the Elleh Bridge Site with a request for a welder prior to the contracting out and was unable to meet the request because of a heavy workload at the work equipment shop. Mr. Anderson gave evidence of the work tasks and the priority assigned to those tasks during the relevant period. He pointed out that there had been some staffing problems with welders and that there was urgent work that prevented him from removing a welder from the shop for dispatch to the field.

The Employer called F.J. Koehn, the Engineer in charge of the Maintenance of Way Department. He said he was familiar with the situation as it developed at Elleh Bridge. He had conducted an inspection in early May. He was concerned at that time about the condition of the equipment and discussed it with the supervisor on site. He was advised that the supervisory staff at Elleh Bridge were in touch with the work equipment supervisor in Prince George and would program the work. His next involvement came when he was asked to investigate the matter by the Union in response to a complaint. That request came from W.R. Carkner, the then President of the Union. In that investigation he determined that, by May 25, 1981, the equipment had deteriorated to the point where there was a risk of a major breakdown and welding repairs were essential. He further determined that no welder was available from the Prince George facility due to the pressure of other high priority work. It was on that basis that the Railway made the decision to contract out the work to a welder who was brought into the site for that purpose and who used Railway welding equipment to perform it. The Railway readily agreed that the welding work should have been done and would have been done by a member of the bargaining unit if a qualified employee had been available.

II

The position taken by the Union was that if the work could not be done by a member of the bargaining unit it constituted a temporary vacancy within the meaning of the following provision of the Collective Agreement:

9.7 Temporary vacancies or positions of less than thirty (30) calendar days required by the Railway to be filled shall be filled by the senior qualified employee immediately available.

It was conceded by the Union that the Collective Agreement does not contain any provision limiting or prohibiting the right of the Employer to contract out the work of the bargaining unit. Attached to the Collective Agreement is a letter of understanding dated June 21, 1971 that remained in force at the time. That letter reads as follows:

During the negotiations with the Association of Non-Ops pertaining to their demand on restricting the right of the Railways to contract out work, the Union were informed that the Railway was not prepared to accede to their demand. In the course of the discussion the Railway agreed to issue instructions to all company officers concerned to the effect that when the Railway decides to contract out work on a regular basis that is presently and normally performed by employees covered by a Collective Agreement, the Union would be advised when practicable as far in advance of the date contracting is contemplated as possible. If the Union representative requests a meeting to discuss matters relating to the contracting, the Company shall promptly meet with him for that purpose. The purpose of this understanding is to provide that the Company advise the Unions of contracting wherever practicable and if the Union can demonstrate that the work can be performed just as efficiently and economically by Railway forces as by contract the matter of contracting out the particular work concerned would be reviewed. The foregoing shall not restrict the right of the Company to contract out work. (emphasis added)

That letter of understanding is an explicit recognition by the parties of the fact that the Railway has reserved to itself the right to contract out the work of the bargaining unit. The only concession made is that the Railway agreed to consult the Union prior to contracting out work on a regular basis. I am not invited nor required in this arbitration to address the interpretation and application of that letter of understanding. The Railway made reference to it only in the context of supporting its submission that it had retained the right to contract out work. Nor is it necessary in this arbitration for me to consider the extent to which the Railway is obligated to act in good faith in exercising its right to contract out work because there is an absence of any indication in the evidence that the Employer was not acting in good faith. The evidence supports the position urged by the Railway that it confronted emergent circumstances where qualified members of the bargaining unit were not available to perform work that the work had to be done in order to maintain production. Assuming the right of the Employer to contract out work, the circumstances confronted by the Railway support the conclusion that its decision was made in good faith and not for the purpose of compromising any express or implicit right of the bargaining unit.

Left to be addressed is the argument of the Union that the welding work constituted a temporary vacancy or position of less than thirty days that should have been filled pursuant to the provisions of Article 9.7. The Union argued, in effect, that Article 9.7 is an implied restriction on the right of the Railway to contract out the work of the bargaining unit. That argument must be rejected. A union that seeks to restrict the right of an employer to contract out work has the onus of negotiating that right and having it acknowledged in clear and specific language. That subject has been addressed in a number of arbitral decisions and was recently canvassed in decisions of the Labour Relations Board of British Columbia. See: British Columbia Systems Corporation and British Columbia Government Employees Union (1981) 3 CLRBR 231. In that decision the Board cited and adopted an extract from an earlier decision of the Board, Federated Co-operatives Ltd. (1980) 1 CLRBR 372. The extract is cited at page 237 of the British Columbia Systems Case as follows:

since the seminal award in Russell Steel it is safe to say that in the absence of the kind of motivation that would render contracting out either a lockout or an unfair labour practice under the Labour Code of British Columbia, an employer is not prohibited from contracting out unless there is an express prohibition contained in the collective agreement. (underlining added)

The language in Art. 9.7 does not address the subject of contracting out either expressly or implicitly. The words "temporary vacancies or positions" are not synonymous with work. When the Railway, under this Collective Agreement, requires work to be done it has retained the option of having the work done by employees who are members of the bargaining unit or by contracting it out. The option to contract out the work remains because that option is one of the residual rights of management in its organization and direction of the work and it was not a right that was bargained away. That right was not lost when the Railway agreed that if it created temporary positions or if temporary vacancies arose in existing positions it would fill them on a seniority basis.

The disputed language does not define the meaning of a "temporary vacancy" or a "temporary position". In context a temporary vacancy is a job opportunity that arises in an existing position and a temporary position is one created in response to the need to have additional work performed. A temporary vacancy occurs when the incumbent in a job is going to be absent. A position occurs when there is a work requirement that exceeds existing manning resources. On that basis there is no doubt that the work at Elleh Bridge could have been performed by the Railway by the creation of a temporary position to be filled by the to senior qualified employee immediately available. The circumstances are not compatible, however, with a finding that the work was a "temporary vacancy." The work at Elleh Bridge was precisely that, work that had to be done. It was not a job per se, it was work that was performed customarily by employees of the bargaining unit in the maintenance category. The work did not arise by reason of a temporary vacancy in a position in that category, it arose by reason of an insufficient number of employees available in that category to service all requirements. On the other hand, the work did create the potential in the Railway to establish a temporary "position" as that term is used in Art. 9.7. The creation of a temporary "position" would indeed require the Railway to comply with the mandatory language of Art. 9.7 and fill that position as required in the provision. That does not dispose of the central issue of whether the Agreement required the Railway to treat the work as a "position" or whether it retained to the Railway the option to have it performed by contract to others. The language cannot be read as compelling the Railway to meet all work requirements of a temporary nature with the creation of a temporary "position". To treat that language as an "express prohibition" of contracting out is to stretch the language to import a meaning it will not bear in any strict sense. It bears repeating that the interpretation urged would contradict the letter of understanding which expressly affirms retention of the right to contract out.

The Union argued that the existence of the need to perform ten days of work of a kind normally performed by members of the bargaining unit was sufficient, to create a temporary vacancy or a temporary position within the meaning of the Agreement. Thus the Union argued that Article 9.7 prohibits the contracting out of the work and compels the Railway to have that work done within the bargaining unit by job assignment or by recall of qualified employees from the lay-off list. The argument breaks down unless Art. 9.7 can be read as "an express prohibition" against contracting out work normally done by the bargaining unit. The work arose because demands exceeded the available manpower on a short-term basis with respect to a particular and isolated task. The decision confronted by the Railway was whether to activate an employee for a single task at a remote site for a short term or have the work performed on contract. This Agreement, on the narrow facts before me, leaves that discretion to the Railway.

III

I emphasize that this arbitration is limited to a consideration of the obligations of the Railway in circumstances where an isolated work requirement arises. It does not address issues that may arise where work currently being performed by the bargaining unit is contracted out on a regular basis or in a manner that reduces the size of the bargaining unit. Nor does the arbitration address the issue of the rights of the parties if a temporary vacancy arose in an existing job category and the Employer elected not to fill that vacancy but to have the work performed outside of the bargaining unit. Those are issues that would have to be addressed on their own facts and the application of appropriate provisions of the Agreement. The sole question in this dispute is whether the Railway, confronting an emergency requirement to have work done that cannot be done by existing members of the bargaining unit qualified to perform it, is prohibited from going outside of the bargaining unit to meet that emergency requirement. To accept the interpretation of the Union in its full ramifications would require that the Railway recall from the seniority list anywhere in the province a qualified welder and transport him to the remote Elleh Bridge site for the purpose of performing one repair job.

Undoubtedly the Union could negotiate a provision that would compel such a result. In the event the Employer had agreed to negotiate an express limitation of its right to contract out work that may very well have been the result. But the imposition of such a substantial restriction on the flexibility of the Railway cannot arise by inference. It must be negotiated and recorded in the Agreement in clear language. Not only does this Collective Agreement not have clear language to that effect, the letter of understanding that expressly addressed the question of contracting out reserved to the Employer the very flexibility asserted by it in its response to the Elleh Bridge requirement.

In limiting this Award to its specific facts I am leaving to the Union the freedom to respond to any incursion into the traditional work of the bargaining unit that may arise in different circumstances. The question of job jurisdiction and contracting out of work is a complex one. It can invoke aspects of good faith and preservation of the integrity of the bargaining that cannot be addressed broadly on the facts before me. On that limited basis, the grievance is denied.

DATED at the City of Prince George, in the Province of British Columbia this 24th day of July, A.D. 1982.

(signed) H. ALLAN HOPE, Q.C.