AD HOC – 236
IN THE MATTER OF AN ARBITRATION
BRITISH COLUMBIA RAILWAY COMPANY
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6
IN THE MATTER OF FLAGGING
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held in Vancouver on June 1, 1982.
This arbitration concerns the Maintenance of Way Service of the Provincial railroad operated by the Employer British Columbia. One of the safety practices routinely employed in railway operations is called "flagging". That term covers a host of techniques used by railway employees to avoid accidents caused by railway equipment coming into collision with persons or equipment working on or near the network of rail lines that make up the railway. In general terms flagging is a physical process whereby the operators of rail equipment are alerted to the presence of persons working on or near the rail line and vice versa, that is, persons working in the vicinity of rail line are alerted to the approach or possible approach of railway equipment. Simply stated, it is a form of traffic direction.
This dispute concerns a claim by the Union that some of the work of flagging was being done by persons outside the bargaining unit contrary to the provisions of the Collective Agreement. The Union relied on one cryptic provision of the Collective Agreement as a basis for asserting an exclusive jurisdiction on behalf of its bargaining unit for all flagging duties done on the Railway. That provision reads as follows:
18.15 An employee assigned to flagging duties will be paid not less than:
Effective October 5, 1981 – $11.57
Effective January 24, 1983 – $13.25
The Union said that flagging duties in the Maintenance of Way Service have been performed customarily by members of the bargaining unit over the years. A consideration of that submission must commence with an understanding of the obligation imposed upon a union that seeks to assert exclusive jurisdiction to perform particular work. In the ordinary course the right to designate who will perform the work and how it will be performed is reserved to management and a union seeking to establish a change in that dynamic must point to clear language in the collective agreement that sustains its claim of exclusive jurisdiction.
The Railway pointed out that there is no job category called "Flagman" and that flagging is work done coincidental with other duties even though it sometimes occupies an employee full-time. The Railway took the position that the work of flagging was never vested exclusively in the jurisdiction of the Union and that the very nature of the work is such that it is impractical to assign it to a member of the bargaining unit in every operating circumstance. In particular the Railway pointed out that flagging duties at some remote work sites are a token requirement due to the nature of the work and volume of traffic and that the presence of a bargaining unit employee for the sole purpose of flagging would be redundant. The Railway further argued that the use of employees outside of the bargaining unit on flagging duties was an established practice. I now turn to a consideration of the specific facts giving rise to the dispute.
The operations of the Railway are divided into a number of departments of which the Maintenance of Way Service is one. Employees in various departments are represented by different unions. The Union in this dispute represents the Maintenance of Way employees. The major work of maintenance and construction done on the Railway is done by Maintenance of Way employees but employees of other departments represented by other unions as well as contractors and subcontractors do perform work on and near the rail lines. In all such circumstances some form of protection is required to prevent injury to Railway employees or outside personnel and to prevent damage to Railway equipment or the equipment of other persons. When the necessary protection is provided by flagginq, a qualified person is required to do the flagging. Qualification for flagging requires a detailed knowledge of the operating procedures of the Railway. In particular, persons performing flagging duties are required to write an examination on Railway rules and procedures and qualify, for what is called a "D-Book" or a "D-Ticket".
The grievance giving rise to this arbitration occurred as a result of activity on or near the rail line in northern British Columbia in the summer of 1981. The work took place in what is called the Fort Nelson Sub-division. A category of employee assigned to the Engineering Department of the Railway, called an Engineering Technologist, was employed to direct certain work being performed by a contractor. Evidence was led relating to more than one site but a single statement of the facts is sufficient to place the issue in perspective. The parties use a railway term called "foul of the track" to designate circumstances where persons or equipment are on or near a rail line in a position to be struck by railway equipment passing over the line. The principal duty of a flagman is to ensure that all persons and equipment are free of the track when equipment is approaching or is expected.
In the particular circumstances the equipment in question was heavy duty excavating equipment engaged in certain structural modifications to the right-off-way. In the main that equipment was not foul of the track. On occasion, however, it was necessary for the equipment to move across the track or come in proximity to it. On those occasions the flagging function was performed by the Engineering Technologist. He had the necessary "D-Book" qualifications. Traffic on the line was light and the flagging function was a perfunctory requirement that occupied a brief and incidental part of the duties of the Technologist. The common theme was that the flagging function was collateral to the work activity taking place and occupied minimum time. The assignment of a member of the bargaining unit to that function would have left that employee unoccupied for the major part of the work day because there was no other work for him to do other than flagging.
The Employer conceded that when flagging was done in the ordinary course of maintenance operations or by a contractor who was not directly supervised by the Railway, the flagging duties were performed by a member of the bargaining unit. The facts elude any precise statement of principle. The best I can make of it is that where activity on the line does not involve the presence of Maintenance of Way bargaining unit employees the decision as to flagging is made in response to the nature of the flagging requirement. The Employer took the position that where the flagging requirement demanded the attendance of an employee full-time a member of the bargaining unit performed it, but where the flagging requirement was minimal and incidental to some other aspect of work legitimately performed by persons outside of the bargaining unit the flagging was done consistent with productivity. In short, the Employer did not acknowledge any requirement under the Collective Agreement to have a member of the bargaining unit present to perform flagging duties. The Railway readily conceded that bargaining unit employees would be used to perform flagging duties coincidental with the work of the bargaining unit itself. Those circumstances arise in he ordinary course of the work of the Maintenance of Way Service. In circumstances where a Railway employee is required to be present for the specific purpose of protecting the work of outside contractors employed other than by or on behalf of the Railway the practice has been to use a member of the Union. In addition, where contractors are working on behalf of the Railway and full-time flagging is required or where an employee is required to be present for the sole purpose of performing flagging duties, they would normally be performed by bargaining unit employees.
The position of the Union is the traditional one taken in defence of the integrity of the bargaining unit. The concern of the Union is erosion of the work of the bargaining unit by the assignment of its work to persons outside it. The right of the Union to defend against erosion of its work is recognized and established in arbitral jurisprudence. That right is somewhat different than the right associated with respect to the contracting out of work, although the two rights share a common origin. The difference is acknowledged and articulated in Re Orenda Ltd. and International Association of ©u21rMachinist, Lodge 1922. (1972) 1 LAC (2d) 72 (Lysyk). The subject is addressed on page 74 as follows:
There is an established line of arbitral authority that supports management’s authority to contract out in good faith in the absence of a specific prohibition in the Collective agreement while at the same time recognizing certain limitations (beyond the requirement of good faith) on management’s authority to assign bargaining unit work to non-bargaining unit employees of the same Employer, even in the absence of a specific prohibition in the agreement …
In seeking to reconcile the difference in approach between contracting out work and assigning work one must grasp the application of the concept of good faith to disputes over jurisdiction. The interest of an employer is best served when the work is performed at the highest level of productivity with the least cost in terms of labour. The interest of a union is best served when the largest portion of the work of the employer is reserved to members of the bargaining unit. The compromise of those competing interests is contractual and subject to the recognition that the right to control the manner in which the work will be performed and by whom it will be performed resides with the Employer, unless bargained away.
Arbitral authorities hold that inhibition on the right of an employer to contract the work outside the bargaining unit must be stated expressly in clear language. The less rigorous onus imposed on a union with respect to the distribution of the work amongst employees of the same employer responds to the same principle but is qualitatively different because of the of an additional element. That element is best characterized as the integrity of the bargaining unit. The concept of the integrity of the bargaining unit is itself a good faith concept. When a union becomes the bargaining agent and representative of the employees of a particular employer that right is directed to the work performed by those employees. The right of employees to seek union representation and bargain collectively is a statutory right deemed responsive to the public interest. It is inconsistent with that statutory right to permit an employer to subvert the right of employees to bargain collectively by the wholesale assignment of the work that forms the subject matter of the agreement to employees outside its scope and application. By that means an employer determined to extricate itself from the confines of union representation could achieve its purpose by diverting the work and laying off the bargaining unit employees who perform it. It is thus that the concept of good faith arises and an employer is prohibited from assigning the very work that forms the substance of union representation to other employees outside of the bargaining unit even in the absence of an express prohibition. The difference with respect to the contracting out of work to others is that implications of bad faith must arise in a more precise context. The result is the same in the sense that the work performed is gone from the bargaining unit but the difference is that it is also gone from the employer and with it the expectation of profit and productivity derived from the performance of the work itself. Work taken from the bargaining unit and given to other employees imposes a different adjudicative standard. It retains the work for the employer and where the work is work customarily performed by the bargaining unit the employer is obliged to explain the assignment consistent with the Agreement and good faith in the exercise of its managerial rights.
Even where there is no express prohibition against contracting out, the assignment of work will be prohibited where it appears the contracting out strikes at the heart of the collective agreement itself. That subject has been addressed by the Labour Relations Board of British Columbia in the context of what the Board characterized as a "lockout" or "unfair labour practice." See: British Columbia Systems Corporation and British Columbia Government Employees Union (1981) 3 CLRBR 231 @ 237. The reasoning appears to be that where the contracting out is an apparent attempt to frustrate the agreement itself by withdrawing from, the bargaining unit the work that formed the substance of the bargain, it will founder on the bad faith implicit in it. An employer negotiates with a union by compulsion of statute, either through voluntary recognition or by certification. It is contrary to that statutory scheme to have the work that forms the very subject matter of bargaining re-structured by the employer outside the confines of the collective agreement. That does not prevent an employer from structuring a particular category of work in order to achieve a higher level of productivity or reduction of labour costs, unless the employer has forsaken that right expressly as part of the bargain, but it does prohibit the employer from frustrating the agreement.
It is pointless to make general statements about the resolution of disputes involving jurisdiction over a particular category of work, whether it arises by contracting out or by the reassignment of the work between employees of the same employer. In each case the particular facts must be tested against the general principles. It is necessary, however, to draw the distinction between the onus imposed upon a union that seeks to prohibit the contracting out of work and a union that seeks to prohibit the assignment of work to other employees of the same employer. It is not necessary for the Union in the circumstances before me to assert a specific provision that expressly prohibits the assignment of the work of the bargaining unit to other employees. The answer is found in examining the nature of the work performed and the presence or absence of good faith implicit in the circumstances. Once the union has met the onus of establishing that the work transferred to other employees was work customarily performed by members of the bargaining unit, the onus shifts to the employer to meet the test of good faith. On the application of that test I am satisfied that the grievance must be dismissed. In the circumstances in question the flagging operation was a minor component of the work being performed. The Railway is correct when it asserts that the Collective Agreement does not bestow exclusive jurisdiction in this bargaining unit to perform all flagging work done over the system. Flagging is done in many differing circumstances by many differing categories of employee, including management employees and employees represented by other bargaining units. It is the purpose for which flagging is done and the nature of the work coincidental with the flagging that determines whether it is work normally and customarily done by the bargaining unit. The Engineering Technologist was present for the purpose of supervising work that had been lawfully and properly contracted. The Engineering Technologist was not present for the purpose of flagging, he was present for the purpose of supervision and the flagging was an incidental task that constituted an insignificant part of the work in terms of time and application, albeit a very important task by reason of its safety implications. The work does not meet the test of work customarily performed by the bargaining unit.
I have not let the question of specific job jurisdiction enter into this analysis because it is somewhat diverting and, in the result, irrelevant to the dispute. It is necessary to briefly address the issue in order to dispose of it. There is a line of arbitral authority that deals with when a particular employee or category of employees can claim exclusive jurisdiction over a particular job or category of jobs. It recognizes that an employer can, by specific language, vest job jurisdiction within particular employees as against other employees in the same bargaining unit. In that context it is necessary to point out that flagging is not a job. Circumstances do arise where an employee is designated exclusively to the task of flagging, but that is a coincidence that arises by virtue of the organization and demands of the work. The Railway does not employ persons in the exclusive job category of Flagman. Flagging is done coincidental with other work and is done by any employee qualified to perform the task as and when required. That fact is apparent from the provision relied on by the Union. That provision does not designate a category of employment, it provides a rate to be paid to employees while engaged in a particular task. That provision must be read in conjunction with Article 13 of the Agreement wherein various work classifications are set out. The category of Flagman does not appear in those classifications. That structuring of the Agreement confirms the evidence of the Railway that flagging is a work task and not a job category.
The Union failed to establish that the flagging done in the disputed work was of a kind customarily and usually done by members of the bargaining unit. Thus the grievance foundered on its facts. It is necessary to emphasize that the question of whether the assignment of other flagging duties outside the bargaining unit would be a breach of the Agreement did not arise. More importantly, the general question of the extent to which the assignment of work customarily performed by the bargaining unit to employees outside the bargaining unit would be a breach of the Agreement did not arise. On the evidence the only issue raised was whether the flagging work in question was work customarily done by the bargaining unit. The onus was upon the Union to establish that fact as a necessary step prior to a further consideration of the rights and obligations of the parties. Other issues will have to await facts that facilitate and compel their resolution. The right of an arbitrator to identify the issue in dispute, as opposed to responding to a specific question submitted by the parties, does not confer on him a jurisdiction to identify or address issues in the abstract unless the parties confer that jurisdiction upon him. This Agreement provides for a set procedure for bringing a dispute before an arbitrator and nothing in that process in this arbitration implied a desire to have the Agreement interpreted beyond its application to the specific facts.
In the result the grievance is dismissed.
DATED at the City of Prince George, in the Province of British Columbia this 5th day of August, A.D. 1982.
(signed) H. ALLAN HOPE, Q.C.