AH - 269
BETWEEN:
TEAMSTERS LOCAL UNION NO. 31
(the ”Union”)
AND
B C RAIL
(the “Railway”)
(Car Shop Unloading Arbitration)
Sole Arbitrator: H. Allan Hope, Q. C.
There appeared on behalf of the Employer:
David Cox
There appeared on behalf of the Union:
J. S. Edwards
Don Boyce
A hearing in this matter was held at Vancouver, British Columbia, on the 28th day of March, 1989.
AWARD
I
In this dispute the Teamsters Union, one of seven unions in a multi-union bargaining unit, alleges that the Railway was in breach of its collective agreement when it assigned certain truck unloading duties in the car shop at Squamish to members of another of the seven unions, being the Brotherhood of Railway Carmen, Garbaldi Lodge No. 1419, Cariboo-Peace River Lodge No. 30 and Capilano Lodge No. 99 (Carmen’s Union). Filed in evidence was a letter from the Carmen’s Union in which that union took the position that the work in question falls within the jurisdiction of members of the Teamsters Union.
The bargaining agent certified for the multi-union bargaining unit is the Council of Trade Unions on the British Columbia Railway (Council of Trade Unions). It is the Council of Trade Unions and the Railway that bargain, but each of the component unions enters into its own separate collective agreement. That structure was imposed by the former Labour Relations Board of British Columbia in British Columbia Railway Company [1977] 1 C.L.R.B.R. 289. In the result, there are seven collective agreements in force between the parties which address the terms and conditions governing the performance of various aspects of the work of the bargaining unit.
The Railway took three positions. It first argued that the dispute is beyond my jurisdiction because it requires me to adjudicate with respect to competing rights between two unions. A dispute of that kind, said the Railway, should be submitted to the Industrial Relations Council (IRC) for resolution. Secondly, the Railway submitted that if the dispute is within my jurisdiction, the collective agreement between the Railway and the Teamsters Union contains no limitation on its right to assign work in accordance with its own view of efficiency. Thirdly, the Railway submitted, in effect, that if the collective agreement could be read as limiting its right to assign work performed by members of the Teamsters Union to employees represented by other unions, the work in question is not work that would normally be assigned to members of the Teamsters Union.
The position of the Teamsters Union is that work similar to the work in question has been performed routinely and consistently by members of its Union. When it was assigned to members of the Carmen’s Union, the Teamsters Union challenged the assignment under a work jurisdiction agreement between the Railway and the Council of Trade Unions. (That agreement falls outside the individual collective agreements. I will describe its terms in more detail later). When the Railway took the position that the dispute did not fall under the work jurisdiction agreement, the Union filed a grievance under its own collective agreement. In support of that grievance the Union submitted that the parties have traditionally acknowledged a limitation on the right of the Railway to assign work normally performed by members of one component union to members of another union.
The thrust of the Union position is that it is an implied term of the various collective agreements in force, including the Teamsters Union collective agreement, that work routinely and normally performed by one component of the bargaining unit cannot be assigned to employees in another component or to employees outside of the bargaining unit.
II
Turning to the facts, the dispute arose in a complex of repair shops at Squamish, In particular, it arose in the car shop, a facility in which railway cars are maintained and repaired by members of the Carmen’s Union. The dispute had its origins in a project in which the Railway purchased 200 new rail cars. The purchase of the cars was put out to tender and the successful bidder was the Rail Maintenance Corporation (RMC) of San Francisco. During the course of negotiations with that corporation the Railway concluded that the cars in question should be assembled in the Squamish car shop. In the result, parts were purchased and delivered to the site by RMC for assembly on-site by employees of the car shop who are members of the Carmen’s Union.
It is convenient at this preliminary stage to consider whether the work in question is work that would normally be assigned to members of the Teamsters union because, in the absence of such a finding, the remainder of the dispute is academic. In addressing that issue of fact, I note first that members of the Carmen’s Union are normally engaged in the repair, not the construction of cars. However, they are not normally assigned to unload car parts at the car shop. As stated, the Teamster’s Union claimed that the unloading work should have gone to its members and the Carmen’s Union agreed.
The Railway said that even if a jurisdictional restriction exists, the unloading work, as an issue of fact, differed from similar work done previously by Teamsters union members. The principal factual difference asserted by the Railway was that the parts in question remained the property of RMC when they were delivered to the Squamish site. The Union saw that fact as a distinction that did not amount to a difference. The contract between RMC and the Railway was not tendered in evidence. In the absence of that contract, the inference I drew was that the contract contained a provision that the cars would be assembled at the Squamish car shop, using the Railway’s own forces to perform the assembly work, presumably to reduce the purchase price of the cars.
In any event, it was asserted in evidence and not challenged that the parts delivered to the car shop were purchased by RMC, that RMC arranged for their delivery, and that RMC, in effect, was the consignee of the parts when they were unloaded. As stated, the Railway relied on those facts to support its submission that the unloading work in dispute was not the same as unloading work that had been done by the Teamsters Union in the past. In particular, said the Railway, the routine work of the car shop is the maintenance and repair of cars, not the assembly of new cars for a supplier. I will return to that aspect of the dispute later.
Returning to the chronology of events, the Railway, in anticipation of the assembly project, devised an assembly-line process that was designed to assemble two cars each day. That assembly process incorporated as an essential feature the designation of ten storage locations for the parts required in the assembly process. Each car is made up of 1, 004 separate parts. In the assembly process, those parts are unloaded and stored in the ten separate locations throughout the car shop.
The storage points were designed to accommodate the assembly-line process. In that process, three members of the Carmen’s union working in the classification of Carmen’s helper unload and store the parts. They also feed the assembly-line by bringing parts as they are required from the ten storage areas by forklift to the assembly points. The implication in the evidence is that the parts required vary from small ones readily moved by hand to quite massive parts that require movement by forklift.
Initially the scope of the claim of the Teamsters Union was not entirely clear. Considerable evidence was given with respect to the assertion that, generally speaking, goods shipped to the Squamish site are received, unloaded, warehoused and distributed by members of the Teamsters union. In particular, the main warehouse at the Squamish site is staffed by members of the Teamsters Union. Goods are unloaded, stored, distributed and delivered from that warehouse by employees who are Teamsters Union members. Various witnesses appeared in their evidence to draw a comparison between that process and the process in the car shop of the unloading and storing of parts and retrieving and delivering them to the assembly point, being all of the work done by the three Carmen’s Helpers.
In the final analysis, however, the Teamsters Union appeared to limit its claim to the unloading of the parts on their arrival in the car shop. That position was in accord with the position taken by the Carmen’s union when it relinquished jurisdiction over the disputed work in favour of the Teamsters Union. its position was expressed in a letter dated November 3, 1988 which reads as follows:
This is to advise that the Brotherhood of Railway Carmen of Canada lay no claim to the work jurisdiction of unloading tractor pull trailers carrying new car building components at the Squamish work site. This letter may be used as you see fit to enforce your claim of work jurisdiction. (emphasis added)
In short, the work at issue appears to be limited to that of “unloading tractor pull trailers carrying new car building components”. I turn now to consider the facts relating to that work. The evidence was that trucks carrying the parts arrive at the car shop on an intermittent basis. The three Carmen’s Helpers use forklifts to unload the trailers and distribute the parts to the ten storage locations. The evidence was that members of the Carmen’s Union routinely operate forklifts in the car shop as an integral part of the maintenance and repair of cars, including the transporting of parts by forklift to repair sites. Hence, the unloading and distribution of car parts by forklift was not new work to members of the Carmen’s union.
However, the delivery of car parts directly to the car shop was a departure from the usual practice. Ordinarily, car parts used in the maintenance and repair of cars are delivered to the warehouse where members of the Teamsters Union unload them, place them, in inventory and deliver them to the car shop as required. When the parts are required, they are requisitioned from the warehouse and , where delivery is required, they are transported to the car shop by members of the Teamsters union. Occasionally parts are picked up by members of the Carmen’s Union but delivery from the warehouse, except in emergency circumstances, is usually done by members of the Teamsters union.
In summary, if the delivery of parts for the new car project had followed the usual course, they would have been delivered first to the warehouse where they would have been unloaded and placed in inventory by members of the Teamsters Union and then delivered to the car shop as required, again by members of the Teamsters Union. That process, in the view of the Railway, would have made the car assembly project impractical, both from a cost point of view and with respect to the assembly process itself in which a smooth movement of parts was necessary to maintain the schedule.
I agree with that submission. To require delivery of the parts to the warehouse would introduce a costly and redundant step which would significantly increase the handling of parts and the labour cost of the project. Nothing in the Teamsters Union collective agreement compels that result or restricts the Railway with respect to the manner in which it organized the car assembly project. That fact was conceded by the Teamsters Union. Its submission was that the Railway was free to restructure the work, but that it was required to assign the unloading of the trucks to its members.
Evidence in support of that position was given on behalf of the union by Gail Brandt. She has worked in the Squamish complex for approximately 16 years, including a number of years working in the stores department in the position of Warehouseman 4. She said that goods delivered to the Squamish site consist of stock items and non-stock items. Stock items, as the term implies, consists of items that are kept in inventory and distributed as required on a recurring basis. Non-stock items are items that are not kept in inventory but which are unloaded at the warehouse or elsewhere on the site. Non-stock items unloaded at the warehouse are delivered as required by members of the Teamsters Union to designated locations in the shop complex. Further, in most cases, non-stock items delivered directly to other locations on the Squamish site are unloaded by Teamsters Union members. In the context of this dispute, the car parts were treated as non-stock items in the sense that they were not taken into inventory in the warehouse and were delivered directly to the car shop.
Returning to the practice with respect to items that are requisitioned from stores at the warehouse, usually a member of the Teamsters Union receives the requisition and produces the items requested. Sometimes items are picked up by employees who are members of other component unions, but as stated, where there is a need to deliver items, they are usually delivered by members of the Teamsters union. The exception to that practice is when an item is requisitioned in emergency circumstances where having it delivered by a member of the Teamsters Union would delay a project. In those circumstances, employees represented by other unions attend to pick up and deliver an item. In addition, there is a general practice whereby goods are distributed by Teamster Union employees from the stories department to various distributions points located throughout the complex where they are picked up by employees represented by other unions.
A similar procedure exists in stores for non-stock items that are delivered to the warehouse. Usually the goods are received, unloaded and delivered by members of the Teamsters Union. There are exceptions, but, in the view of the union, they are exceptions that prove the rule. For example, when a locomotive is under repair and awaiting an engine, the engine is delivered to the locomotive shop where it is unloaded by members of another union. The Union saw that exception as an accommodation designed to acknowledge the reality that off-loading an engine in the stores department and then reloading it for delivery to the locomotive shop was an unnecessary and unjustifiable step that caused delay.
A further exception described by Ms. Brandt was a circumstance that arose on one occasion when a part was delivered that exceeded the unloading capacity of the equipment operated by members of the Teamsters Union and the expertise of its members. In that circumstance, the goods were unloaded by members of another component union. But, said Ms. Brandt, other than those exceptions, non-stock items are normally unloaded at the warehouse or a t some other location in the Squamish complex.
Evidence was given on behalf of the Railway by Don Huber, the supervisor of stores and inventory in the materials management department. He said it was his understanding that non-stock items delivered to locations in the Squamish complex other than the warehouse are sometimes unloaded by employees who are members of unions other than the Teamsters union. It was not clear from his evidence that his understanding conflicted to any significant degree with the evidence of Ms. Brandt. That is, it was not clear from his evidence that his understanding conflicted to any significant degree with the evidence of Ms. Brandt. That is, it was not clear from his evidence whether he understood that a practice existed of employees other than Teamster Union members unloading goods in other than the exceptions defined by Ms. Brandt.
On the facts I concluded that the unloading of parts is the type of work that would normally be assigned to members of the Teamsters Union. The fact that the parts in question were delivered to the car shop and not the warehouse and that they were intended for the assembly of new cars rather than the repair of existing cars did not change the essential nature of the work. The same observation can be made with respect to the fact that RMC, not the Railway, was the consignee. On the evidence, it is clear that members of the Teamsters Union, not the Carmen’s Union, would normally be assigned to unload the car parts.
Having made that finding the question is whether the assignment of that work to members of the Carmen’s Union was a breach of the Teamsters Union collective agreement. In addressing that question, it is necessary to deal with the remainder of the three issues raised by the Railway in support of its position. I commence with a consideration of the Railway’s submission with respect to my jurisdiction.
III
The Railway submitted that I lacked jurisdiction because the issue raised in the grievance relates to whether the disputed work is to be performed by members of the Teamsters Union under its collective agreement or by members of the Carmen’s Union under that union’s collective agreement. The Railway said that since I was appointed under the Teamsters Union collective agreement, I had no jurisdiction to make a decision binding upon the Carmen’s Union.
The Railway relied in that regard on the reasoning in B.C. Forest Products (Crofton) and Canadian Paperworkers Union, Local No. 1132 and Pulp, Paper and Woodworkers of Canada, Local 2 [1980] 2 C.L.R.B.R. 4000 (MacIntyre); British Columbia Hydro & Power Authority and International Brotherhood of Electrical Workers, Local 258 (1988) 32 L.A.C. (3d) 257 (Munroe); and Health Labour Relations Association of B.C. (Victoria General Hospital) and Hospital Employees union, Local 180 and British Columbia Nurses Union, January 30, 1985, BCLRB No 34/85, unreported, (Albertini).
However, all of those decisions deal with circumstances where two or more unions have asserted competing rights and the question is whether an arbitrator whose jurisdiction derives from one of the two collective agreements has nay jurisdiction (aside from consent jurisdiction) over a dispute involving another union under another collective agreement. In those circumstances it has been concluded as a matter of policy that the Labour Relations Board (and its successor, the Industrial Relations Council), has exclusive jurisdiction to resolve inter-union disputes.
In seeking to have that reasoning apply in this dispute, the Railway cited two decisions of the former Labour Relations Board of British Columbia arising from a dispute over jurisdiction between the Railway and two other component unions. The first of those decisions in that dispute (called the Catenary Jurisdiction Dispute) is British Columbia Railway company and the Council of Trade Unions on the British Columbia Railway and the Canadian Union of Transportation Employees, Local No. 6 (Catenary Jurisdiction Dispute), June 8, 1984, No. 226/84, unreported (Kinzie).
In that decision the board dealt with the introduction to the mulit-union bargaining unit of a new category of work arising our of the construction by the Railway of a section of electrified rail line. The new category of work had to do with the maintenance of the electrified line. The Railway entered into an agreement with one of the seven component unions. That agreement had the effect of including the work and the employees hired to perform it in that union’s collective agreement. That decision was disputed by a second union in the multi-union bargaining unit and the first question addressed by the board was whether the agreement was binding upon the dissenting union and the Council of Trade Unions.
The board concluded that it was not binding and referred the matter back to the parties to have them address which union should represent the catenary employees. The board included a proviso that it would determine the jurisdictional issue if the parties were unable to agree. The parties could not reach agreement and the matter was referred back, giving rise to the second decision, in the dispute. It was given by Vice- Chairman Williams on October 27, 1986 under No. 264/86.
I have concluded that those two decisions do not apply directly to the facts and issues raised before me because this dispute does not involve competing claims between component unions. Here the assertion is that the Railway assigned work that would normally be performed by members of the Teamsters union to members of the Carmen’s Union. The Union contention is that the assignment is a breach of the collective agreement in force between the Railway and the Teamsters Union. Not only does the Carmen’s Union not challenge the position of the Teamsters Union, it supports it. In that circumstance, no issue of my jurisdiction arises and the Railway’s objection is dismissed.
However, in dismissing that objection it is convenient to note that certain aspects of the decisions in the Catenary Jurisdiction Dispute apply, at least peripherally, to the facts raised in the issue before me. In particular, it is noted in the decision of Mr. Williams that the parties entered into the agreement previously referred to for the resolution of work jurisdiction disputes after that dispute began. The obvious implication arising from that agreement is that the Railway does acknowledge some level of jurisdictional right as between component unions. If that were not so, a jurisdictional agreement would be superfluous. The parties did not file copies of the agreement in this hearing. However, as stated, reference to its existence is made in the decision of Mr. Williams. He made the following observation on p.15:
It is, of course, preferable for the parties themselves to agree on a work jurisdictional dispute mechanism that would bind not only the constituent unions but Bc Rail so that future disputes can be settled without reference to the Board. The Panel notes during the last round of negotiations, the parties have adopted language in the collective agreement to do just that.
I requested that the parties provide me with a copy of that agreement. In response to my request, the Railway provided me with two documents entitled, “Agreement between BC Rail and the Council of Trade Unions Respecting Jurisdictional Disputes”. The such agreement is dated October 30, 1986 and the second, which replaces the first, is dated October 5, 1988. The first agreement was the one in force at the time this dispute arose. In forwarding those two documents to me, the Railway wrote as follows:
Enclosed as requested are BC Rail’s jurisdictional agreements respecting “new work” with the Council of Trade Unions. I have enclosed the 1986 agreement which is the one I believe Mr. Williams refers to in his decision of October 27, 1986. I have also enclosed the 1988 agreement between the parties.
As noted earlier, the first position of the Railway in this dispute is that the IRC has exclusive jurisdiction over the issue. Implicit in the Railway’s letter is the position that the work jurisdiction agreement has no application to the dispute before me because the work in question is not deemed to be “new work” and the agreement only applies to such work. The Teamsters Union confirmed that implication in its response to the filing of the Railway’s letter. The union wrote to me in reply as follows:
Having read Dave Cox’s letter to you dated April 24th, 1989, I feel I must write to you explaining the situation. The work being performed in Squamish, i.e. unloading of trailers, is not new work, although the materials may be different, the work is the same. If this work is new then the Railway should have consulted the Council of Trade Unions before assigning such work. As described in Paragraph (A), on December 5th, 1988, I requested a jurisdictional dispute panel, but was denied by B.C. Rail.
I am neither required nor empowered to interpret the jurisdiction agreement. The agreement was not placed before me and it has no apparent application to a dispute between the Railway and a single component union. However, having become aware of the agreement, it is convenient for me to express my view with respect to its application. That is particularly so because of the dispute between the parties with respect to the scope of the agreement and whether it extends to the kind of work at issue here.
The provisions of the agreement itself are somewhat ambiguous. Its scope is expressed in the following terms in the first two paragraphs:
a) If a new work assignment arises after the signing of this agreement (i.e. a new type of work) the Railway will consult with the Council of Trade Unions before the assignment is made.
b) In making an assignment of new work, the Railway will consider such factors as the historical assignment of similar work within BC Rail, the assignment of similar work within the Railway industry, the qualifications of the employees, the interrelationships between different work groups, the geographic location(s) where the work is to be performed, etc. (emphasis added)
Following thereafter is a mechanism for the establishment of an adjudicative panel with jurisdiction to resolve disputes. When the agreement is read in the context of its immediate history, being the Catenary Jurisdiction Dispute, the clear implication is that the jurisdiction agreement was intended to avoid the necessity of having to submit work jurisdiction disputes between component unions to the board. (now the IRC). The Railway’s interpretation would frustrate that intent. Suppose, for example, that the Carmen’s Union had taken the position in this dispute that it had jurisdiction over the work, thus creating competing claims for the work from two component unions. Would that dispute have to be referred to the IRC despite the existence of the work jurisdiction agreement on the basis that it was not “new work”? One submission of the Railway in this dispute is that the Teamster Union cannot claim the work because it is new to the bargaining unit in the sense that the unloading of goods for consignees other than the Railway was not previously done at the car shop. But how does that position fit into the “new work” designations?”
When consideration is given to the industrial relations issues addressed by the work jurisdiction agreement and the admitted desirability of having jurisdictional disputes resolved between the parties or in a form of their choice, it is difficult to contemplate that a narrow construction was intended with respect to its scope. The inference I draw from the circumstances is that the Railway wanted to ensure that existing job assignments that came into contest between two or more of the component unions could not be made the subject of a proceeding under the work jurisdiction agreement, but that new job assignments which lead to a contest would be resolved under the provisions of that agreement as an alternative to having them submitted to the IRC.
Hence, in any case of a dispute between two or more component unions with respect to a new assignment of work, (excluding an assignment that amounts to a continuation of existing assignment practices), it appears that the parties intend that the dispute will be resolved under the work jurisdiction agreement as opposed to submission to the IRC. Disputed work assignments similar to the one raised in issue here, being a dispute where a single component union alleges that a particular assignment is in breach of its collective agreement, will be resolved by submission to an arbitrator appointed under the provisions of the collective agreement.
However, in making those comments, it is important for me to emphasize that the interpretation of the work jurisdiction agreement is not at issue in this dispute. My reference to it arises because the fact of the agreement and the history of its introduction, when taken in conjunction with the two decision of the Labour Relations Board in the Catenary Jurisdiction Dispute, supports the inference that the Railway does recognize that broad jurisdictional lines divide the work of the component unions.
That inference is further supported by the constitution of the Council of Trade Unions. That constitution was fashioned pursuant to the order of the Labour Relations Board that led to the establishment of the Council. In imposing that structure the board endorsed a constitution of the Council in which it was contemplate that work jurisdiction disputes would arise and would require resolution between the parties. One of the functions of the Council as defined in the constitution is as follows:
To assist with settlement of jurisdictional disputes that may arise between constituent unions …
That constitutional provision is inconsistent with the notion that there is one large bargaining unit and no jurisdictional restriction on the assignment of work as between employees of the one component union and another. In short, I must conclude that the Railway does recognize that jurisdictional lines do exist between components. That conclusion leads me to the Railway’s second position, being its submission that if I have jurisdiction over the dispute, the Teamsters Union collective agreement imposes no limitation on the employer with respect to the assignment of work.
IV
I agree with the Railway that there is no provision of the Teamsters Union collective agreement that expressly restricts its right to make assignments of work to employees who are members of other component unions or who are outside of the bargaining unit entirely. Hence, if a restriction exists in that regard, it exists in an application of the principles of interpretation relating to the concept of the integrity of the bargaining unit. Those principles are summarized in Brown and Beatty, Canadian Labour Arbitration, (1988), para. 5:1400 @ pp. 5-14 to 5-16.
In the application of the principle of the integrity of the bargaining unit, it is recognized that where work regularly performed by members of a particular bargaining unit has been the subject of terms and conditions negotiated between the parties with respect to its performance, there is an implied restriction on the part of the Railway to assign that work to non-bargaining unit employees.
The reasoning is that such an assignment compromises the integrity of the process wherein a particular unit is recognized and a particular union is certified as bargaining agent for the employees of that unit. That agent bargains the terms and conditions that will govern the work performed by members of that bargaining unit. The arbitral authorities acknowledge that allowing an employer to assign that work to other employees to have it performed pursuant to different terms and conditions is antithetical to the principles that govern the regime under which the parties meet and bargain.
It is contrary to the statutory policy that created the collective bargaining regime for an employer to be able to extricate work from the reach of the bargaining unit and the provision of the collective agreement negotiated with respect to its performance by the simple act of assigning the work to employees outside of the unit. That reasoning was summarized by Professor Lysyk, as he then was, in Re Orenda Ltd. and International Association of Machinist, Lodge 1922 (1972), 1 L.A.C. (2d) 72. On p. 74 Professor Lysyk wrote:
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…
The reasoning is applied routinely with respect to assignments of work made to non-bargaining unit employees. In this dispute there is a multi-union bargaining unit. Hence, technically speaking, an assignment from employees in one component union to employees in another component dos not constitute an assignment to employees outside of the bargaining unit. In my view, however, it makes no difference that the issue relates to a disputed assignments as between union components. The underlying principle is the same.
In this bargaining unit there are seven separate union components, each of which negotiates the terms and conditions of employment governing specific aspects of the work of the bargaining unit. Each component union negotiates job classifications unique to the component and rates of pay to be paid to employees performing particular jobs. Those circumstances cannot be distinguished in terms of the governing principles from the circumstances that pertain with respect to a multi-bargaining unit employer where there is an implied restriction against assigning the work of employees in one bargaining unit to employees in another bargaining unit. See Re Borough of Scarborough and C.U.P.E., Local 368 (1975) 10 L.A.C. (2d) 188 (Adams).
I agree with the submission of the Union that the principles enunciated in the Re Orenda Ltd. decision apply so as to restrict the assignment of work as between union components. However, in the context of this dispute, it is necessary to explore the nature of that restriction. In particular, it is important to emphasize that the restriction contemplated in Re Orenda Ltd. is not the same as the restriction that arises where there is an express provision that prohibits an employer from assigning bargaining unit work to non-bargaining unit employees. Such provisions are not uncommon in Teamsters union collective agreements and they represent a qualitatively different restriction on the right of the employer than exists where the restriction arises only by implication.
Where the restriction arises by implication, it does not prevent the employer from assigning bargaining unit work to non-bargaining unit employees. Rather, it prevents the employer from making such assignments to such an extent that the non-bargaining unit employee is, in effect, brought within the scope of the bargaining unit. The concept of a work assignment that brings an employee within the scope of a bargaining unit was discussed at length in West Fort William Credit Union Ltd. and Office & Professional Employees International Union, Local 81 (1988) 31 L.A.C. (3d) 301 (Aggarwal), a decision relied on by the Railway.
In that dispute the collective agreement included a provision restricting the right of the employer to subcontract bargaining unit work “to any source or other agency”. It did not have a provision restricting the right of the employer to assign bargaining unit work to non-bargaining unit employees. The arbitrator found that the employer had assigned bargaining unit work to non-bargaining unit manager. However, he went on to conclude that the assignment did not amount to a breach of the collective agreement because there was no express term prohibiting the assignment of bargaining unit work to non-bargaining unit employees.
Contrary to the reasoning of Professor Lysyk in Re Orenda Ltd., he concluded that where there is no express restriction, it is not a breach of the collective agreement to make such as assignment. He did not ignore the question of whether assigning bargaining nit work to non-bargaining unit employees was a breach of an implied term of the collective agreement. But he concluded that where that issue is raised, it is separate from the question of whether making that assignment is a breach of the collective agreement.
It is my respectful view that the weight of arbitral authority dictates against making such a distinction. The leading decision appears to be that of Professor Lysyk in Re Orenda Ltd.. In particular, Professor Lysyk concluded that an assignment of bargaining unit work to non-bargaining unit employees raises squarely in issue the question of whether the assignment is in breach of an implied term which, in the absence of clear language to the contrary, prohibits the employer from assigning bargaining unit work to non-bargaining unit employees to such an extent as to bring the employee to whom the assignment has been made within the bargaining unit.
In West Fort William Credit Union Ltd. the arbitrator acknowledged that principle in dismissing the grievance but contemplated that it must be raised as a separate grievance. In reaching that conclusion he relied on the decision in Oil, Chemical & Atomic Workers Int’l Union and Battenfeld Grease (Canada) Ltd. (1979), unreported (Teplitsky). He recited a lengthy extract from that decision on pp. 316-17 in which Mr. Teplitsky relied on the reasoning in decisions relating to the issue of the contracting out of work to support the conclusion that en employer is free to assign bargaining unit work to non-bargaining unit employees unless there is an express restriction prohibiting such an assignment.
However, I am again of the respectful view that the weight of arbitral authority recognizes a clear distinction between the contracting out of work and the assignment work to non-bargaining unit employees. That distinction was made in express terms by Professor Lysyk in re Orenda Ltd. and has formed a distinction in a number of other decisions. Moreover, the distinction responds to a clear difference between the industrial relations implications of a contracting out of work as compared with the assignment of it to non-bargaining unit employees.
The contracting out of work carries with it no potential for the compromise of the bargaining unit. That is, it is not a case of the employer taking work that has been the subject matter of negotiations between the certified bargaining agent and the employer and removing it from the terms and conditions governing its performance by assigning it to other employees who are not subject to the same terms and conditions. In a contracting out of work, the employer makes an election not to have the work performed by its own forces. And even in the case of a contracting out, careful attention is paid by arbitrators to ensure that it is a genuine contracting out and not a ruse designed to avoid the obligations contained in the collective agreement.
The Railway, as stated, relied heavily on the decision in West Fort William Credit Union Ltd. to support its contention that where there is not express prohibition in the collective agreement, there is no restriction preventing an employer from assigning bargaining unit work to non-bargaining unit employees. I do not, with great respect, agree with that finding. Instead, I prefer to follow the reasoning in Re Orenda Ltd. previously cited in which it is stated that even in the absence of express language to the contrary, where an employer assigns bargaining unit work to non-bargaining unit employees, a question will arise as to whether the assignment was sufficient to bring the employee to whom it was assigned into the bargaining unit. Where the assignment meets that criteria, the appropriate remedy is to require the employer to return the work to the bargaining unit, either by reassigning it to employees who are member of the unit of by transferring the employee to whom it was assigned into the unit.
My reading of the West Fort William Credit Union Ltd. case and the cases upon which it relies is that they responded to a different industrial relations problem. That is, where work has been assigned to non-bargaining unit employees and where a finding that the removal of that work would prejudice the employees to whom it has been assigned, an issue arises as to the right of those employees to be participates in a subsequent dispute. In particular, a question arises as to whether they are entitled to notice under the reasoning in the Hoogendoorn v. Greening Metal Products & Screening Equipment Co. and United Steelworkers of America, Local 6266, [1968] S.C.R. 30, 65 D.L.R. 92d) 641, 67 C.L.L.C. 14,064. But, the obligation to give notice and to resolve the rights of other employees does not require a separate hearing. It requires notice and an adjudication of whether persons other than the parties themselves are entitled to appear before a board of arbitration and assert that they have rights that require adjudication.
In any event, I do not agree with the Railway that the decision in West Fort William Credit Union Ltd. stands for the proposition that unless there is an express provision to the contrary, an employer is free to assign bargaining unit work to non-bargaining unit employees. The arbitrator in that case accepted the principle that an assignment of bargaining unit work to such an extent as to bring a non-bargaining unit employee within the bargaining unit is a breach of collective agreement. He simply concluded that it was a separate issue that should be addressed in a separate grievance. For the reasons given, I respectfully disagree with that reasoning.
In the result, I conclude that the fact that the Teamsters Union collective agreement does not contain an express restriction against assigning bargaining unit work to non-bargaining unit employees is not determinative of the issue. But, the question arising is whether the assignment in question meets the criterion of bringing the non-bargaining unit employee within the unit. See Canadian Labour Arbitration @ pp. 5-15.
The arbitral consensus favours a determination that where a substantial portion of the work assigned to a non-bargaining unit employee is bargaining unit work, the assignment will be in breach of the implied restriction prohibiting the assignment of bargaining unit work outside of the reach of the terms and conditions negotiated with respect to its performance. Accepting that the unloading work assigned to the three members of the Carmen’s Union constitutes work that is normally performed by members of the Teamsters Union, the essential question I must address is whether the assignment was sufficient to bring those three employees within the scope of the Teamsters Union component of the bargaining unit.
In that context I note that the evidence failed to disclose that the unloading work performed by the three members of the Carmen’s Union constituted a major or even a significant part of the duties they performed. It is true, as pointed out by the Teamsters Union, that the Railway increased the number of Carmen’s Union employees in the car shop after the new car project was undertaken. Nor is there any doubt that the increase arose by reason of taking on that work. But, on the uncontradicted evidence of the Railway, all of the employees added to the car shop complement were in the classification of Carmen and they were added to perform the assembly work. There was no increase in the classification of Carmen’s Helper, being the classification assigned to perform the unloading.
There was no precise evidence as to the amount of time the Carmen’s Helpers spent unloading parts, as opposed to distributing the parts to the ten assembly locations and feeding those parts to the employees working actively in the construction of the cars. But, whatever the quantity, the evidence did not support a finding that the unloading was a significant part of their duties. On the evidence, the work involved was simply added to the regular and routine duties performed by the Carmen’s Helpers. It caused no increase in their numbers and no demonstrable change in the manner in which they carried out their duties.
In the result, the grievance fails, not because there is an absence of jurisdictional recognition implicit in the Teamsters Union collective agreement, but because the evidence does not support the necessary finding that the work of unloading was sufficient in quantity to bring any of the three Carmen’s helpers within the scope of the Teamsters Union component of the bargaining unit.
Dated at the City of Vancouver, in the Province of British Columbia, this 3rd day of October, 1989.
H. ALLAN HOPE, Q.C. - Arbitrator