AH - 273
BETWEEN:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES
LOCAL 6
(the ”Union”)
AND
BC RAIL
(the “Railway”)
IN THE MATTER OF THE GRIEVANCE OF Squamish Shops Arbitration
Sole Arbitrator: H. Allan Hope, Q.C.
There appeared on behalf of the Employer:
Wayne R. Carkner
There appeared on behalf of the Union:
Terry Robertson, Q.C.
A hearing in this matter was held at Prince George, British Columbia, on the 22nd day of February, 1990.
AWARD
I
In this dispute the union alleges that the railway was in breach of a provision of the collective agreement requiring it to give notice to the union of any proposed contracting out of work which would normally be performed by members of the engineering service component of the multi-union bargaining unit. The provision in question reads as follows:
34.1 When the Railway decides to contract out on a regular basis work that is presently and normally performed by employees covered by the Council’s Certification, the union(s) involved will be advised as far in advance as is possible of the date contracting out is contemplated.
The railway agreed that it had failed to give the union the notice required and had thus deprived it of the opportunity to confer with the railway and persuade it that members of the bargaining unit could perform the necessary work. In the result, the said the union, it was deprived of its rights under the following provision of the agreement:
34.4 If the union representatives can demonstrate that the work could be performed just as efficiently and economically by the Railway forces as by contract, every consideration will be given by the Railway to having the work performed by its own forces.
The railway, having conceded that notice was not given, said that it was simply a case of oversight rather than a deliberate flouting of the provision and the union did not challenge that contention. Further, the parties agreed to the filing of a document in which the circumstances surrounding the incident from the perspective of the railway were set out. Those events were summarized in that memorandum as follows:
Reference to your hand written list of Union questions dated July 17, 1987, and specifically to item No. 3 “B & B work being contracted out at Squamish Shops”. I have inquired as to what this might be and expect that it would be SMA Project #5886 for the reroofing of the Car Shop lean-to. Prior to going to contract, we discussed the work schedule with L. B. Griffin to ascertain whether B & B 102 could do it and we just have too much work scheduled during these summer months to allow us to also do that roofing job. In order that the work would be completed this summer as scheduled, we went out to tender and the work is completed and final inspection is taking place today. I might point out also that contracting this work has had no effect in our B & B 102 gang size; in fact, at this time, the crew is temporarily larger than regular to enable us to deal with several projects under way, one of which is Job #5880, renovations to the Mechanical Department injector room in the Shops.
On the evidence there was no issue of bad faith arising and the decision of the railway was in response to circumstances that made the contracting out explicable. hat is not to say that it was trivial in any sense. Evidence was given on behalf of the union by Josef Tischler, who has 14 years of service with the railway in Squamish as a bench carpenter. He said that bargaining unit employees did two-thirds of the roof repair job the previous year in a manner deemed cost effective and satisfactory in terms of workmanship and result. He said that the work of completing the remaining one-third was the subject matter of the disputed contracting out and that the initial job was defective. The contractor had to be brought back to repair the job.
Mr. Tischler said that in the initial installation of the other two-thirds of the roof, six bargaining unit employees were engaged for a period of two weeks. On those mathematics, it can be anticipated that the contractor employed to complete the remaining one-third had a similar labour component which would be the equivalent of six employees over a period of one week. The union sought a declaration that the employer was in breach of the collective agreement in failing to provide it with notice. It was conceded that no members of the bargaining unit lost work as a result of the contracting out and that there were no employees on layoff who could have been brought in to perform it.
The position of the union was that in addition to declaratory relief, the union was entitled to damages assessed on the same basis as that applied in Burrard Yarrows Corporation, Vancouver Div. And International Brotherhood of Painters, Local 138 (1982), 30 L.A.C. (2d) 331 (Christie) @ pp. 342-46. However, that decision stands for the proposition that damages are awarded where there is some measure of pecuniary loss or where there has been some denial or frustration of the right to receive notice, as opposed to mere oversight. In Burrard Yarrows the employer made no attempt to contact the union and disputed its obligation in that regard.
Here, the employer does not challenge its obligation to give notice and its explanation was that the failure to give notice was mere oversight. Further, the finding I made on the evidence is that if notice had been given, the railway would not have agreed to give the work to the bargaining unit for the reasons set out in its memorandum. Hence, I conclude that this is a circumstance where a declaration that the railway was in breach of the collective agreement is sufficient remedy. On that basis the grievance is granted and I declare that the failure of the employer to give the union notice of the intended contracting out was a breach of the collective agreement.
DATED at the city of Vancouver, in the Province of British Columbia, this 14th day of March, 1990.
H. ALLAN HOPE, Q.C. - Arbitrator