IN THE MATTER OF AN ARBITRATION
BETWEEN:
BC RAIL
(hereinafter referred to as the “Employer”)
AND:
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, #6
(hereinafter referred to as the “Union”)
(Butt-Welding Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: Charles Harrison
Counsel for the Union: G. James Baugh
Place of Hearing: Vancouver, B.C. and
Prince George, B.C.
Date of Hearing: April 18 and 19; and June 24, 25 and 26, 2002
A W A R D
I – Dispute
This dispute involves two grievances brought by the Union in which it is alleged that the Railway was in breach of the collective agreement when it contracted out “flash butt-welding” work in 2000 and 2001 in contravention of the contracting out provisions of the collective agreement. The language at issue reads:
34.1 It is the Railway’s intention to keep work within the Company provided the necessary facilities, licenses, equip-ment and qualified personnel are available; and that the work can be done in a manner that is competitive in terms of cost and quality and within projected time limits.
The Railway’s position was that the work in question did not fall within the scope of that provision. Its alternate position was that if the work did fall within the provision, the contracting out was permissible under the following exclusion:
34.2 Work presently and normally performed by employees who are subject to the provisions of this Collective Agreement will not be contracted out except …
· Where the nature, the volume, or the duration of the work is such that it does not justify the capital or operating expenditure involved or the undue fluctuations in employment …
Flash butt-welding is a process whereby 82 foot rail steel, called “sticks”, is welded into continuous welded rail (CWR) lengths of approximately one-quarter mile, called “strings”. For many years, that process was carried on in the Railway’s Prince George Rail Yard in a portable welding plant owned and operated by a contractor with support services provided by CUTE 6 employees. In recent times, the Railway purchased the steel and contracted with Chemetron Railway Products (Chemetron), the contractor, to weld the CWR. The contracting out issue related to the work performed by the CUTE 6 employees.
The dispute arose when the Railway elected to have CWR welded in a plant established by Chemetron in the Lower Mainland (the Fraser-Surrey plant). In that plant any required support services were performed by the contractor’s employees. In short, the flash butt-welding has always been contracted out and electing to have it performed in a plant off-site did not amount to a further contracting out. The issue was whether the election amounted to a contracting out of the support services associated with the operation of the plant. In addition, a procedural issue arose when the Railway took the position that the grievances were not arbitrable because the Union had failed to process them in accordance with the governing provisions of the collective agreement. In terms of the first grievance, the Railway also alleged that it had been settled between the parties.
On the merits of the dispute, the position of the Union was that the contracting out at issue was a clear breach of Article 34 of the collective agreement, first because the butt-welding support work at issue constituted bargaining unit work within the meaning of that provision, and, in any event, because the Railway had not complied with the notice requirements of the contracting out process. The response of the Railway was that the work in question did not fall within Article 34, and, in any event, if it did fall within the contracting out provisions the contracting out had been conducted in accordance with the collective agreement.
II – The Facts
As stated, flash butt-welding is a process in which “sticks” of rail steel are transformed by a process involving electrical energy and pressure into lengths of rail of approximately 1476 feet. The Railway has used CWR in its construction and maintenance programs since the early 1980’s. The “welding” process whereby CWR is produced has been conducted at all times material to the dispute in a portable plant set up in rails cars owned by Chemetron. That company provides CWR services to the rail industry in Canada and the United States of America (U.S.).
The welding head in the Prince George plant is of Russian design and manufacture. It was manufactured in the 1960’s and, while still serviceable and capable of producing acceptable results, is considered old technology when compared with the modern CWR welding equipment at Chemetron’s Fraser-Surrey plant. At all times material to the dispute, the plant, while located in the Prince George Rail Yard, has been owned and operated by Chemetron or predecessor contractors.
When the welding process began in the Prince George Rail Yard in the early 1980’s it was confined to welding 39-foot lengths of rail steel purchased by the Railway into 78-foot ”sticks”. Ultimately the rail supply industry began the manufacture of the 78-foot “sticks” previously processed in the Prince George Facility. Those “sticks” were purchased and then welded into CWR of “strings” of approximately 1476 feet. At some stage in the process, steel suppliers converted to metric measurements which resulted in “sticks” of 25 metres, being approximately 82 feet long, which were welded into CWR “strings” of approximately 450 metres, or 1476 feet.
CWR lengths, when welded, were loaded directly onto rail cars for installation or were stockpiled in the Rail Yard. In that process, Chemetron used a two-person crew to operate the welding head and to provide maintenance for its system. The other aspects of the process were performed by CUTE 6 employees of the Railway. When the Railway elected to have the welding performed at the Fraser-Surrey plant, that work was lost to the Union. As stated, the Union saw that decision as constituting a contracting out of the support work.
I digress to note that one issue raised by the Union was whether the facts supported a conclusion that Chemetron’s Prince George plant could have been operated by CUTE 6 forces without participation by Chemetron employees. That issue was raised in the context of the evidence of Glen Edward Lepage, a 24-year CUTE 6 employee who worked from time to time in the welding process with both Chemetron and a predecessor. He gave evidence and described having worked in a number of different capacities including in the “welding car”. He said that in the welding car, his primary assignment was polishing, grinding and removing slag.
The issue raised by the Union related to evidence Mr. Lepage gave to the effect that he also took advantage of the opportunity to learn aspects of the welding process. He said;
“I learned a lot of the process. I was basically their slag man, taking slag off. I have done about half a dozen welds. [The Chemetron operator] was always present in the welding”. He went on to describe technical aspects of the process and said, “Seventy-five percent of the time I did grinding”. He said that the last time he had worked in the plant was “four or five years ago”.
The evidence of Mr. Lepage did not include an assertion that he had ever operated the welder on his own or that he had performed any welds in the capacity of an operator of the equipment. Nor did Mr. Lepage hold himself out as qualified to fill the operator’s role. Leaving aside the fact that the Railway did not own the welding plant, the evidence did not support a conclusion that there were CUTE 6 employees capable of operating the plant independent from Chemetron. Mr. Lepage was not asked if he was so qualified and the weight of the evidence invited the conclusion that the “half dozen welds” he had performed under supervision did not qualify him to operate the welder on his own. There was no evidence led with respect to the qualifications required for operating the welder, but the inference invited by the evidence of Mr. Lepage, who was a qualified welder with extensive experience in various capacities on the Railway, was that flash butt-welding requires qualifications he did not possess.
Returning to the narrative, the CWR process is seasonal and has varied in its duration over the years. In the 1980’s and 1990’s, when the Railway was engaged in the replacement of existing rail with CWR and the construction of new rail lines, the CWR process was relatively constant for periods up to six months during the construction and maintenance season. But, as the renovation and construction projects were completed, the duration and intensity of the CWR process declined significantly. The Prince George plant was last operated by Chemetron in the 1999 construction season.
In the ordinary course over the years, the Railway’s planning with respect to CWR needs began coincidental with planning for the next year’s capital projects. The Railway is not competitive as a purchaser of rail steel because of the limited quantities it purchases as compared with major purchasers, such as the national railways. To achieve a more competitive price advantage, the practice of the Railway is to place its orders for rail steel several months in advance of delivery. That practice gave suppliers the flexibility of including the Railway’s requirements with large purchases made by major buyers. As a consequence, the Railway had limited control over the time and location of delivery.
In the context of this dispute, three delivery possibilities emerged. Two involved rail steel purchased in Japan which, in ordinary circumstances, was directed to either the Port of New Westminster or the Port of Vancouver. The third involved purchases from steel makers in Eastern Canada or Europe which were delivered by rail to Vancouver. Purchases from Europe were delivered by ship to an Eastern Canadian Port and the steel was then delivered to the Railway by rail. Steel destined for Chemetron’s Fraser-Surrey plant was delivered most conveniently through the Port of New Westminster at the Fraser-Surrey Docks. Deliveries to Prince George were more conveniently delivered by rail or through the Port of Vancouver.
This dispute involved purchases of steel made in 2000 and 2001. In 2000 there were two purchases, one of 2000 tons and one of 1000 tons. Both purchases consisted of “sticks” which, as events unfolded, were welded into “strings” by Chemetron at its Fraser-Surrey plant. Initially the Railway had committed itself to the Union to have the 2000 ton purchase welded at the Chemetron plan in Prince George. That commitment was withdrawn unilaterally by the Railway. The withdrawal triggered a challenge from the Union. The issue was discussed informally at a joint consultation meeting held between the parties on February 10 and 11, 2000. Each of the parties kept minutes. In the meeting the Railway offered an explanation for withdrawing its commitment that the Union accepted on an understanding of the facts that proved to be incomplete. When the full facts became known, the Union rejected the explanation.
The Railway’s decision to have the welding done in Fraser-Surrey was made on January 4, 2000 by Tim McMillan, the Railway’s manager of capital projects and administration. At that time the parties were in the midst of a labour dispute which included a lockout of all bargaining unit employees. The lockout continued from December 27, 1999 to January 5, 2000. On January 4, 2000, the day before the lockout ended, Mr. McMillan was advised that the 2000 ton shipment, which was to be processed at Chemetron’s Prince George plant, would arrive at the Fraser-Surrey Docks earlier than expected. He concluded that the early arrival, combined with the lockout, would prevent the Railway from being able to marshall the rail cars needed to take delivery of the steel and transport it to Chemetron’s Prince George plant.
Filed in evidence were a series of e-mail messages between the steel supplier and the Railway’s senior buyer, Larry Davis. The messages were exchanges that took place between December 6, 1999 and January 4, 2000. The first of the four messages indicated that the steel would arrive in the Port of New Westminster on January 29, 2000. On December 29, 1999 the senior buyer, Mr. Davis, sent a confirming message to the steel supplier in which he outlined the Railway’s plans for the steel. Following is an extract from that message:
We will be having the 2,000 tons of rail shipped to our facility in Prince George this year rather than to the Chemetron facility at Fraser Surrey Docks … [P]lease provide me with an update on the ETA to Fraser Surrey Dock so that I can ensure sufficient railcars will be available to allow direct discharge of the rail from ocean vessel to railcars. Our Iain Medcalf is trying to coordinate these cars for a late January 2000 delivery to Fraser Surrey docks. (emphasis added)
The significance of that message in terms of this dispute was its confirmation of the evidence given by Mr. McMillan that he was expecting delivery of the steel at the Fraser-Surrey Docks late in January where it would be loaded on rail cars from the vessel for shipment directly to Prince George. To meet that expectation, it would be necessary for the Railway to “ensure sufficient rail cars [would] be available to allow direct discharge of the rail from ocean vessel”, a task which would require coordination. However, six days later, on January 4, 2000, Mr. McMillan, as stated, received a copy of an e-mail sent to Mr. Davis by the shipper. Following is an extract from that message:
The 2000 … Rails will be arriving on the 8th (Sunday); therefore, please kindly start to round up enough cars for the pickup.
It was that e-mail message that caused Mr. McMillan to change planning for the CWR program on the understanding that he had a mere four days to react. It was his understanding that, because of the existing lockout and the shortness of time, the Railway would be unable to marshall the cars needed to transfer the steel to Prince George. In the absence of sufficient cars, the steel would have to be unloaded at the Fraser-Surrey Docks and reloaded for shipment to Prince George when cars were available. Mr. McMillan concluded that the additional costs involved in unloading, storing and re-loading the steel would be prohibitive in terms of the costs involved in having the welding done in Chemetron’s Prince George plant as compared with its Fraser-Surrey plant.
On that basis, Mr. McMillan asked Mr. Davis to arrange to have the welding done at the Fraser-Surrey plant. Chemetron, which performs services for other railways, including the national railways, maintains its own fleet of cars to facilitate movement of steel from the Fraser-Surrey Docks to its plant. Hence, the decision to have the steel redirected to the Fraser-Surrey plant was a relatively simple matter.
To place Mr. McMillan’s decision in perspective, it is necessary to note that the future of Chemetron’s plant in Prince George had been in doubt for some time due to a variety of factors, including the significant reduction in the Railway’s CWR requirements, the establishment of Chemetron’s Fraser-Surrey plant, and the age of its Prince George plant. Those facts were brought to the attention of the Railway in a letter to the Union dated December 18, 1998. It reads as follows:
Chemetron Welding, now a division of Progressive Rail out of the U.S.A., has established a new butt welding plant at the Fraser-Surrey docks in the lower mainland. This is the result of a joint C.P. and C.N. Rail initiative to minimize their transpor-tation costs and improve the overall weld quality. We have been approached by Chemetron regarding the viability of our current welding operations in Prince George, a desire to consolidate their operations in one location and the potential for an overall lower cost per weld. This plant represents the latest technology in flash butt welding, grinding and quality control thus producing a superior weld in hardness and finish versus what they have produced on our behalf in Prince George. Our discus-sions to this point have been preliminary, in that there are other matters yet to be discussed and finalized. The purpose of this letter is to formally advise C.U.T.E. 6 of Chemetron’s new facility and the possibility that the Railway might agree to have future rail deliveries welded by Chemetron at this facility. This would of course result in the closure of the Prince George Chemetron plant. Obviously some seasonal C.U.T.E. 6 employees would be negatively affected by the change of location. Our current butt welding opera-tion lasts for about 6 to 10 weeks a year depending upon the amount of rail allocated for the capital season. It is hoped that in addition to advising you of the potential changes in store that this letter also provides you with the opportunity to discuss this with your executive. We can then consider scheduling a meeting to discuss this further as our plans develop. Should you require further clarification on this possible change then please contact me at your earliest convenience. (emphasis added)
That letter led to discussions between the Railway and the Union about the future of flash butt-welding in Prince George. Following those discussions, the Union wrote the following letter to the Railway:
It is the union’s understanding that approximately 2,000 tons of NKK rail owed by BC Rail has been off-loaded at Fraser Surrey docks and is presently sitting at Chemetron’s flash butt welding facility in the Vancouver/Surrey area. Also there is approximately the same amount of unwelded rail stored in the MH & Rail Yard in Prince George with further rail from Sydney Steel expected to be delivered to Prince George MH & Rail Yard. Although the actual work of flash butt welding has been performed by either Teleweld, Holland, Chemetron in the past, the handling in to and out of the welding car and support services has without interruption been performed by the C.U.T.E. Local 6 membership. It is our understanding that the present rail in the Rail Yard at Prince George and the additional rail enroute from Sydney Steel will be welded in Prince George utilizing BC Rail employees (C.U.T.E. Local 6) and the 2,000 tons of NKK rail presently sitting at the Vancouver site (Chemetron’s) will be welded and handled by outside parties. If you concur with this understanding, please sign and return. (emphasis added)
The Railway accepted that proposal for the 1999 season, but it was apparent in the evidence of witnesses and the documentary evidence that it continued to have concerns about the viability of Chemetron’s Prince George plant and the differences in the costs per weld in that plant as compared with Chemetron’s Fraser-Surrey plant. That concern was expressed between the parties in the context of 2000 season. However, in the final analysis, the Railway made the commitment to have the 2000 tons intended for fabrication in the year 2000 processed in the Prince George plant.
The 2000 tons was ordered in 1999 for delivery to Prince George in the early part of 2000. As stated, the Railway placed its orders well in advance in order to obtain a competitive price. However, one of the disadvantages associated with the comparatively low volume was that the Railway did not have effective control over the date of delivery. The inference invited by the evidence is that when the order was placed, the Railway had not yet made a decision with respect to where the welding would take place as between the Prince George plant and the Fraser-Surrey plant.
As indicated, the continuing dialogue between the Railway and the Union on that score was focused on the lack of competitive costs as between the two plants. Ultimately, as stated, the Railway elected to have the 2000 tons welded in Prince George. That decision was communicated to the Union on December 21, 1999. However, six days later, the Railway locked out its employees. It was that fact, coupled with the change in the delivery date caused Mr. McMillan to change that decision two weeks later on January 4, 2000.
Initially the Union challenged that decision. In the exchanges that resulted, the Railway offered its explanation in a letter to the Union dated January 31, 2000. That letter reads as follows:
As indicated in January, the lockout combined with the arrival of our rail 2 weeks early necessitated the movement of 2000 ton of rail to the Fraser – Surrey docks and onto the Progress Rail welding site. We were not in a position to receive this rail directly onto our own rail cars and the result is that welding in Prince George this year has become cost prohibitive. We expect to take two train-loads of rail onto curves and selected areas between Lillooet and Chetwynd and one trainload to inventory into the rail yard in Prince George. Progress Rail has not expressed any desire to dismantle our current butt-welding site and it remains our intention to continue to examine the costs of our welding operations, transportation, etc between both plant locations on a year by year basis. (emphasis added)
The Union challenged that explanation and raised a further issue with respect to whether the handling of the rail at the Fraser-Surrey dock and the handling contemplated with the CWR program in the year 2000, including the move of CWR to inventory, was CUTE 6 work that could not be contracted out. The response of the Railway was to propose that the issue be discussed in pending mediation proceedings. Those proceedings took place on February 15, 2000 and resulted in the understanding by the Railway that the issue had been settled.
However, in mid-March, the Union learned that a further 1000 tons of rail, which had been ordered but not disclosed, had been directed to Chemetron’s Fraser-Surrey plant for processing. That fact, and the inability of the parties to resolve the issues resulting from it, led the Union to file a grievance on April 6, 2000. It reads as follows:
Please be advised the union is processing this grievance on contracting out with regards to rail handling, grinding, polishing, and inspecting. This is work normally and presently performed by employees within the C.U.T.E. Local 6 bargaining unit. As you know, we have had many discussions on this matter, including one before Mr. Hope at our mediation/ arbitration. As well, we have enclosed some of the correspondence relating to this ongoing issue. Following the med/arb hearing we felt that this issue had been adequately dealt with and basically an agreement was reach based on the information given us by yourself at the hearing, but we have since been advised that all the facts were not disclosed. Apparently more rail had been ordered and shipped, and therefore the conclusion we reached at med/arb was based on inaccurate information. Therefore, we feel our only avenue at this time is to pursue this issue through the grievance procedure and, if necessary, we will certainly go before Mr. Hope at a full blown arbitration hearing. As you are aware, our position has not changed: we believe this work is work which belongs to our bargaining unit. Therefore as settlement to this grievance, the union requests all wage loss and damages. (emphasis added)
The parties continued to discuss the grievance but did so in a manner and a time frame that fell outside the grievance and arbitration provisions of the collective agreement. In due course, the events of the 2001 construction and maintenance season overtook that grievance. In particular, on January 8, 2001, the Railway put the Union on notice that it intended to have its 2001 butt-welding requirements performed at Chemetron’s Fraser-Surrey plant. The letter reads in part as follows:
[I]t is our intention to undertake our 2001 buttweld requirements at Chemetron (Progress Rail) plant on the Fraser Surrey docks. The small amount of capital work required (anticipated at one train load, 720 welds) does not justify the start up of the plant in Prince George.
In the final analysis, 570 welds were performed for the Railway at the Fraser-Surrey facility. According to documents filed, work on those welds began at Fraser-Surrey plant on April 23, 2001 and was concluded, at least for billing purposes, as of April 26, 2001. It was not clear on the facts whether those welds also could have been completed in the Prince George plant in three days. What was clear, however, was that significant start up and shut down costs would have to be incurred for the limited work required. The inevitable result would be a significant increase in the costs per weld in Prince George which were already substantially higher than Fraser-Surrey.
I digress to note that one of the issues raised by the Union is whether the Railway tried to influence the decisions Chemetron was making with respect to its Prince George plant. Mr. McMillan, the senior official responsible for the CUTE 6 segment of the bargaining unit, including butt-welding, was recorded in various exchanges between the parties as denying that the Railway had participated in Chemetron’s decisions. He repeated the denial in these proceedings. His evidence was challenged but not contradicted by the Union. In particular, it was clear that Chemetron was planning to dispose of the Prince George plant and to consolidate its operations at Fraser-Surrey. When approached by the Railway to determine the feasibility of performing the 2001 CWR in Prince George, advised, in effect, that it was not feasible.
Chemetron’s disinterest in operating its Prince George plant to meet the Railway’s short run needs was expressed verbally to Mr. McMillan through Mr. Davis, the Railway’s senior buyer, in February of 2001. That expression of disinterest came in response to Mr. McMillan’s inquiry about feasibility of operating the Prince George plant for the 2001 season. At Mr. McMillan’s insistence, Chemetron’s reply was confirmed in a letter to Mr. Davis dated February 27, 2001. It reads as follows:
Reference our discussion yesterday regarding the possibility of Chemetron providing a supervisor and welder operator for the Prince George facility in April. I regretfully must inform you that our supervisor’s and welder’s are engaged with other facilities therefore we cannot send anyone to this facility. We would welcome the opportunity to weld for you at Fraser Surrey as it is currently staffed and cost effective in light of your limited program needs for this year.
As stated, the Union raised a question about whether the Railway had complicity in the circumstances that gave rise to Chemetron’s decision with respect to its availability at its Prince George plant. However, the Union did not adduce any facts which would support a finding that the decision of Chemetron was anything other than what it appeared to be. The inference invited by the whole of the evidence is that Chemetron had little interest in continuing to operate the Prince George plant. At some stage prior to September of 2001, Chemetron appeared to have decided to dispose of the plant if a suitable buyer could be found. In September of 2001 Chemetron informed the Railway of its intention to move the plant. On September 25, 2001, the Railway advised the Union of that decision. The letter reads as follows:
I have been advised by Progress Rail [Chemetron], that they will be in Prince George on the 15th of October to dismantle the buttwelding facility located at the Railyard. The Railway will provide what assistance is necessary in the way of equipment and staff to load and move this equipment as directed by Mr. Larry Thomas. Progress has indicated to the Railway that we will be better served with consolidation of their welding facilities to one location on the lower mainland both in terms of scheduling and efficiencies.
In the final analysis, the plant was not removed. Some accessories removed by Chemetron and the transformer required to power the welder was salvaged by the Railway for use in another facility. But, on the evidence, the plant could be put into operating condition if Chemetron made the decision to resume operations. However, the indications in the evidence were that Chemetron was actively seeking a suitable purchaser. That intention was confirmed in a letter sent to the Union by the Railway on March 21, 2001. The letter reads as follows:
For your information the Railway has been advised by Mr. Dennis Dubois of Progress Rail Services that they have a potential overseas buyer for the buttwelding facility currently at the Railyard in Prince George. He further advises that he along with Larry Thomas and 4 customers will be inspecting the plant on March 27, 2001.
As stated, the plant was not sold and its principal components have not been removed from the Prince George site. When questioned with respect to why the plant has not been removed or sold, Mr. McMillan speculated that the rail cars that make up the plant are in poor condition and that Chemetron would be unlikely to want to sell the equipment itself to any buyer who was in a position to compete for CWR business in Canada or the United States. He offered the opinion that purchasers acceptable to Chemetron would be limited to those who would be operating outside of its sphere of operations. The Union pursued questions with respect to the extent to which the Railway could control Chemetron in terms of operating the Prince George plant itself or obtaining the services of another contractor. The response of Mr. McMillan, in effect, was that the Railway does not control Chemetron in terms of the operation or disposition of the plant.
On the facts, the conclusion invited by the evidence was that the decision not to operate the Prince George plant was not made or orchestrated by the Railway, although it was apparent that the Railway viewed that decision as being consistent with its own interests in terms of the higher costs per weld in the Prince George plant. Whatever its motivation, there was nothing in the evidence to support a finding that the Railway manipulated the decision of Chemetron with respect to the Prince George plant or that it was within its control to maintain and operate the plant separately with the consent of Chemetron, either on its own or through another contractor. In short, the decisions of Chemetron with respect to the Prince George plant were beyond the control of the Railway and the conclusion invited on the facts is that Chemetron had no immediate plans to continue operating the plant.
Returning to the chronology, the first grievance remained outstanding when the circumstances giving rise to the second grievance arose. Initially, the Union treated the 2001 dispute as part of an ongoing grievance. On March 13, 2001 the Union wrote a letter to the Railway that included the following extract:
Please be advised the union is progressing this grievance regarding the issue of BC Rail contracting out our work in the Buttwelding operation for the years 2000 and 2001. We maintain, as we did in our original grievance 2000-07, that BC Rail has not acted in good faith in this instance, and in fact has blatantly violated Article 34 in that notice was not properly given to the union respecting the Railway true intention from the onset of this matter … On or about February 20, 2001 you advised me that you were looking into the possibility and the availability of welders from Progressive Rail to weld in Prince George. Could you please provide me with the name of the person you were in contact with, as well as the dates.
Those extracts and the evidence given in the hearing confirm that the Union was addressing the dispute on two levels, one dealing procedurally with what was perceived as a continuing breach of the contracting out provisions of the collective agreement and the other being a search for a resolution of the dispute with respect to flash butt-welding generally. In addition to advising the Railway of its intention to include the year 2001 in its grievance, the Union included a detailed request that the Railway produce documents relating to the Railway’s relationship with Chemetron and the Railway’s suppliers of rail steel, the purpose of which was to pursue its concern with respect to whether the Railway – Chemetron relationship was being conducted at arm’s length. The Railway replied in a letter on March 19, 2001. It reads as follows:
I do not concur that year 2001’s proposal for buttwelding is connected to the GP 2000-07. It may be true that some of the documentation is common but the decision process in both cases was different and thus each case should be reviewed based on their individual merits. For the record, and under the provisions of Article 12, the Railway has no documentation that GP 2000-07 was extended beyond step 1 nor do we have documentation that an application has been made for arbitration. I would appreciate if copies of that documentation could be forwarded to my office. I am currently preparing documentation pursuant to your request.
Ultimately, as I will record, the Union filed the second grievance. The Railway relied in these proceedings on its letter, and an earlier letter sent on August 24, 2000, to support its objection to the arbitrability of both grievances on the basis that the Union had failed to comply with the procedural requirements of the grievance and arbitration provisions. In the August 24, 2000 letter the Railway had questioned the absence of a Step 2 response from the Union. In any event, the Railway continued to participate in the process despite its expressions of concern. In particular, on April 2, 2001 the Railway provided certain of the documents required by the Union in its March 13, 2001. It also advised that; “At this point in time the Railway does intend to pursue a preliminary argument … on the arbitrability of this issue”.
In that letter the Railway repeated its position that butt-welding in 2000 and in 2001 were separate issues. The Union agreed with that position in a letter dated April 17, 2001. The Union also advised that it was now “progressing to Step 2” with respect to the first grievance. Coincidental with the letter, the Union filed the second grievance relating to the year 2001. It reads as follows:
The union is processing this grievance with respect to the contracting out of rail handling, grinding, polishing, and inspecting for the year 2001. This is work which is normally and presently being performed by our members. There has been much correspondence and dialogue on this issue; however, we still feel the Railway is not living up to their responsibilities to adhere to the language in our Collective Agreement regarding contracting issues, specifically buttwelding and rail handling. Therefore, as settlement to this grievance, the union requests all wage loss and damages. (emphasis added)
On October 23, 2001 the Union referred the grievances to arbitration. In that reference the Union took the position that efforts made to resolve the dispute had failed, making a submission to a third party process necessary. That letter reads as follows:
After reviewing the considerable amount of correspondence between your office and the union office regarding the Buttweld Plant in Prince George, we feel that we are unable to bring a resolve to this issue either through the correspondence or through the numerous discussions we have had. Therefore, we feel we have to proceed to mediation and/or arbitration to bring some closure to this issue. Please find enclosed a copy of our application for arbitration addressed to Mr. Hope.
Once again, the Railway continued to participate in the process. That is, having put the Union on notice that arbitrability would be raised as an issue, the Railway carried on with the steps required to have the issue adjudicated.
III – The Objection to Jurisdiction
(i) – Submissions
The Railway based its submission on its understanding that the time limits set out in the collective agreement are mandatory and binding upon the parties unless they have been specifically waived. The Railway relied in particular on the following provision:
12.2 A grievance concerning the interpre-tation, or alleged violation of this Agreement, or an appeal by an employee who believes that he has been unjustly dealt with, shall be processed in the following manner:
Step 1
Within twenty-eight (28) calendar days of the cause of grievance, the Secretary or the President of the Union may present the grievance in writing to the designated Officer of the Railway. The appeal shall include a written statement of the grievance and, where it concerns the interpretation or alleged violation of the Collective Agreement, the statement shall identify the Article and Clause involved. A decision will be rendered in writing by the designated Officer of the Railway within fourteen (14) calendar days of receiving this appeal.
Step 2
Within fourteen (14) calendar days of receiving the decision under Step 1, the Secretary or the President of the Union may appeal the decision in writing to the designated Officer of the Railway. A decision will be rendered in writing by the designated Officer of the Railway within fourteen (14) calendar days of receiving the appeal.
12.3 A grievance not progressed within the time limits specified shall be considered settled on the basis of the last decision and shall not be subject to further appeal. Where a decision is not rendered by the appropriate Officer of the Railway within the time limits specified, the grievance may be pro-gressed to the next step in the Grievance Procedure.
. . . . . . . . . . . . . . . . . . . . . .
13.2 A request for arbitration shall be made within thirty (30) calendar days following the date a decision is rendered in writing by the Railway at Step 2 of the Grievance Procedure. The request shall be made by filing written notice thereof in accordance with the procedure set forth in this Article. (emphasis added)
It was clear in the evidence that the time limits set out in that provision were not met in the case of either grievance. The position of the Railway was that the mandatory language of the agreement should be respected. The Union, said the Railway, had no explanation for its breach of the time limits. The arbitral principles having application to time limit issues, said the Railway, favoured its application for a determination that I had lost jurisdiction over the disputes.
The Railway relied in that regard on a line of arbitral authority, including a consideration of the discretionary right of arbitrators under the Labour Relations Code to relieve against time limits. In that context, the Railway cited Pacific Forest Products Ltd. (Sooke Logging Division) and International Woodworkers of America, Local 1-118, (1985) 17 L.A.C. (3d) 435 (Munroe) and BC Rail Ltd. and UA 170, (MCPP Arbitration), October 22, 1992, unreported (Munroe). It relied in particular on the following extract from the decision in Pacific Forest Products:
In my view, a determination of whether the burden under s. 98(e), [to relieve against time limits], has been satisfied should proceed on the following considerations: (a) the degree of force with which the parties have given contractual expression to the time-limits; (b) whether the breach of the time-limits was in the early or later stages of the grievance procedure; (c) the length of the delay; (d) whether the applicant for relief has a reasonable explanation for the delay; (e) the nature of the grievance – i.e., the impact on the grievor of a refusal to grant relief against the time-limits; (f) whether the employer would suffer prejudice by the granting of such relief, and (g) any other facts peculiar to the circumstances at hand.
. . . . . . . . . . . . . . . . . . . . . .
Thus, the only factor which might favour the granting of relief under s. 98(e) is the absence of any real prejudice to the employer. However, in the circumstances, I do not think that is enough. Here, the dominant consideration must be the duration of the unexplained delay [three months]. Were I to shunt that consideration aside, solely on the basis of lack of prejudice, it would be tantamount to holding that for the typical arbitral dispute, a contractual expression of time-limits is really meaning-less. That was not the intended result of s. 98(e) of the Labour Code.
In terms of the application of that criteria, the Railway said that the “contractual expression” given to time limits in the collective agreement is mandatory; the breaches at issue commenced early in the grievance procedure and continued throughout the process up to and including the submission to arbitration; the delay was protracted on any measure of the facts; and the only explanation offered by the Union for the delay was that an agreement, which was denied by the Railway, existed between the parties to the effect that time limits would be waived.
The Railway relied on the reasoning of Arbitrator Munroe in BC Rail and UA, 170 for the following comments regarding the application between these parties of substantially the same provisions:
As I have said, the union clearly was guilty of delay. I believe too, that the delay must be characterized as unreasonable. I reach that conclusion for essentially three reasons. The first is that the delay was considerable, regardless of which reference point one selects to start the measurement of the delay [the union argued for a reference point resulting in a delay of somewhat less than 3 months]. The second is that contracting out disputes are inherently time-sensitive, involving as they do contractual relations with third parties. The third is that the union’s delay in prosecuting the matter (that is, the breach of Rule 62.7) was studied, conscious and deliberate.
The submission of the Railway was that the facts in this dispute fell within that reasoning in the sense that the failure to follow time limits did not arise by oversight but was deliberate despite the fact that the Railway had given clear signals that the contractual procedures should be followed. In its response, the Union took the position that a general agreement existed between the parties that grievances would be addressed and resolved on their merits and that time limits would not be invoked to dispose of them. The Union relied in that regard on evidence given by Victor Greco, the former president of the Union, and Rick Aspinall a member of the Union executive who had been given responsibility for contracting out issues, including the grievances at issue in this dispute. Those two Union officials, said that they had reached an informal agreement with Mr. McMillan to that effect.
In his evidence, Mr. McMillan said that he did not make any agreement with respect to time limits. However, he did agree that he “had many discussions about dealing with grievances on the merits”. His caveat in that regard was that he had never agreed to waive time limits. He also agreed that he had a good relationship with Mr. Greco and that the parties had addressed numerous disputes informally with considerable success.
The submission of the Union was that the circumstances invited an application of the discretion vested in arbitrators under the Code to relieve against the time limits relied on by the Railway. In the initial grievance, said the Union, the Employer misled the Union with respect to certain fundamental facts. In particular, the Union said that it was led to believe that delivery of the steel in the first shipment in January of 2000 came unexpectedly during the lockout and, at least by implication, that it was the only shipment expected. That understanding affected the approach it took to the filing and prosecution of the grievance, said the Union. It later learned of the second shipment, much later, shortly before this hearing, it learned that the shipment did not arrive during the lockout.
In support of its position that misinformation with respect to relevant facts will invite an application of the statutory discretion to relieve against time limits, the Union relied on: Dover Corporation (Canada) Ltd., Turnbull Elevator Division and International Association of Machinists, Local Lodge 1257, (1983) 9 L.A.C. (3d) 146 (Brown) and Prince Rupert’s Fishermen’s Co-Operative Association v. Prince Rupert Amalgamated Shoreworkers and Clerks Union, [1982] BCJ No. 73, July 7, 1982 (BCSC).
The Union cited Board of School Trustees of School District No. 39 (Vancouver) and Vancouver Teachers’ Federation, (1995) 48 L.A.C. (4th) 108 (Hope), for the proposition that arbitrators will exercise their statutory discretion where the facts do not support a conclusion that the parties have made a strict practice of relying on time limits. The Union also cited Tolko Industries Ltd. and IWA-Canada, Local 1417, [1997] BCCAAA No. 247, Award No. A-115/97, March 11, 1997 (Lanyon) and Greater Niagara General Hospital and Ontario Nurses’ Association, (1981) 1 L.A.C. (3d) 1 (Schiff).
The Union relied on the reasoning of Arbitrator Schiff in Greater Niagara to support the proposition that in applying the criteria recognized by arbitrators to the question of whether the statutory discretion should be invoked, a significant fact to consider is the seriousness of the issues raised in the dispute. Here, said the Union, the issue was extremely serious and, contrary to the submissions of the Railway, there was no prejudice that could be associated with the failure to follow the time limits.
Finally, the Union cited Allied Pacific Processors Ltd. and United Fishermen and Allied Workers’ Union, [1999] BCCAAA No. 287, Award No. 178/99, July 5, 1999 (Gordon), in support of its submission that where the circumstances disclose that the party seeking to rely on time limits continues to address grievances on their merits after the time limits have expired, arbitrators will consider it appropriate to exercise their statutory discretion to relieve against the time limits. The position of the Union was that, absent from the facts in this case, is a pattern of conduct between the parties in which time limits were enforced. The facts, said the Union, favour the recollection of Mr. Greco and Mr. Aspinall with respect to whether an informal agreement was reached that time limits would not be relied on to defeat a grievance.
In terms of the allegation that the first grievance had been settled, the Union relied on: British Columbia Railway Co. and Canadian Union of Transportation Employees, Local 6, (1987) 28 L.A.C. (3d) 314 (Hope); J.S. Jones Timber Ltd. and I.W.A.-Canada, Local 1-3567, (2000) 93 L.A.C. (4th) 72 (Ready); R.F. Klein & Sons Ltd. and Teamsters, Local 213, (1998) 76 L.A.C. (4th) 289 (Germaine); and Town of Glace Bay and Canadian Union of Public Employees, Local 755, (1994) 42 L.A.C. (4th) 188 (North), as support for its position that no settlement occurred in this dispute. The conditions necessary to find that a grievance has been settled, said the Union, were not shown to be present in this dispute. As in the case of time limits, the submission of the Union was that a significant factor to take into account when considering whether a grievance has been settled is the nature of the issues raised and their significance in terms of the ongoing relationship.
(ii) – Ruling
The evidence did not support the Union’s assertion that Mr. McMillan had agreed on behalf of the Railway that time limits would be waived. There is no doubt on the examination and cross-examination of Mr. Greco and Mr. Aspinall that they believed that Mr. McMillan had agreed that time limits would not be enforced. Neither is there any doubt on the evidence of Mr. McMillan that he did not make that commitment. However, the evidence offers ample support for the conclusion that a misunderstanding had arisen between the parties with respect to their approach to the resolution of disputes, including the dispute that gave rise to the two grievances in this hearing.
As stated previously, Mr. McMillan readily agreed, and in fact emphasized, that he had numerous discussions in which he asserted that grievances should be resolved on their merits. Mr. Greco and Mr. Aspinall were confident that the Railway had agreed to waive time limits, but they did not give evidence of actual words exchanged in which that commitment was expressly made. Hence, reconciling the conflicting evidence leaves only two possible findings, deliberate deceit or a misunderstanding. I conclude that a misunderstanding is the preferable explanation.
The Railway led some evidence of written exchanges between the parties in which time limits were extended by agreement. The Railway’s position was that those exchanges, which were not denied by the Union, were inconsistent with the assertion that there was an agreement that time limits would not be enforced. The Union responded with evidence of the number of grievances filed during the period in question as compared with the number of occasions when time limits were extended by express agreement.
The Union urged that the sheer number of grievances where no extension of time limits was sought or granted by either party mitigated against a finding that time limits were intended to be strictly enforced. The Union’s point was that it was unlikely to the point of being improbable that time limits were strictly observed between the parties with respect to all other grievances filed during the time period. Absent from the facts was evidence of occasions in which either party took steps to enforce time limits in the routine administration of the grievance procedure.
I conclude that the Railway is not entitled to rely on the breach of the time limits provisions. It was apparent to the Railway throughout the process that the issues raised were serious and were of great concern to the Union. Further, while the pursuit of the grievances by the Union proceeded at a desultory pace when viewed in retrospect, there was nothing in the evidence to indicate that the Railway was or could be lulled into a sense that the Union did not intend to proceed to have the issue resolved or adjudicated on their merits.
The work in question, at its height, provided full-time employment over a period of six months for as many as 12 members of the Union. That constituted a significant body of work and, while it was diminished greatly by the time these issues arose, it was evident to the Railway that the Union and its membership were gravely concerned about its loss. It is trite to say that the public policy inherent in the Code includes the goal of having disputes resolved on their merits rather than in response to procedural irregularities.
I conclude that this is an appropriate case in which to exercise the discretion vested in arbitrators under the Code to waive the time limit provisions. In reaching that conclusion I consider it appropriate, if not necessary, to comment on the relationship between the parties and the management of disputes. In the lengthy experience of this Arbitrator with these parties, I have observed that, with periodic lapses, they have achieved and maintained a decent level of respect for each other and a level of trust. That level of trust sometimes frayed when issues of extreme consequence became personal, but generally a positive working relationship has been maintained.
I heard nothing in the evidence which would compel withdrawal of that trust and respect by either party. The Railway is working its way through troubled times, as are its Unions. Relationships are adversarial when interests diverge as profoundly as they do in this dispute. But, hopefully, while they must assiduously serve their divergent interests, they will continue to understand the value and the justification for maintaining balance in their approach to the resolution of disputes that must inevitably arise. I will return to those comments later.
IV – The Merits
The facts relevant to a resolution of the dispute on its merits are relatively straightforward. For many years the Railway had contracted out its flash butt-welding requirements to contractors located in the Rail Yard in Prince George. Throughout that period of time the support services necessary to carry out the welding process were performed by members of this Union. That practice continued unabated until the 1999 construction season when the parties reached the January 21, 1999 understanding that the butt-welding of CWT would be divided between the Prince George Chemetron plant and its Fraser-Surrey plant.
That compromise arrangement arose out of the Railway’s December 18, 1998 letter to the Union advising that the future of butt-welding at the Chemetron plant in Prince George was in doubt. The Prince George welding done consistent with that arrangement resulted in costs that caused the Railway to question the viability of continuing to contract out butt-welding to Chemetron in Prince George. In particular, the Railway viewed the costs of welding in Prince George as disproportionately high when compared with the costs at the Fraser-Surrey plant. In addition, Chemetron was demonstrating increasing disinterest in operating its Prince George plant and had taken some steps to dispose of it.
For its part, the Union offered to pare support services to the bone in an effort to get costs per weld in Prince George at a more competitive level. The Railway, while it was unwilling to concede that flash butt-welding was work falling within the contracting out provision, agreed to have Chemetron continue the welding process in Prince George for the 2000 construction and maintenance season, to the extent of the 2000-tons of steel that had been placed on order in 1999. That commitment was intended by the Railway as a means of testing the potential to reduce costs in Prince George. I conclude that the proposal had the support of Chemetron, although there was no express evidence to that effect.
As events unfolded, however, the cooperative approach the parties had taken in the 1999 construction and maintenance season was compromised by a series of unrelated circumstances that cause the Union to question the good faith of the Railway. I pause to repeat the observations I made about the relationship between the parties with respect to the time limits issue. The Union found itself questioning the credibility of Mr. McMillan with respect to certain of those collateral circumstances. However, I have found in my many dealings with Mr. McMillan and his Union counterparts that both are reliable and credible.
Not infrequently Mr. McMillan and officers of the Union find themselves with profoundly different views with respect to the relevant facts. Differing postures and recollections with respect to disputed facts are a routine expectation in what is essentially an adversarial process. The witnesses in these proceedings were credible and no facts were proven which would support a finding that Mr. McMillan had deliberately deceived the Union or that he had attempted to give false or misleading evidence in these proceedings.
Returning to the events giving rise to the first of the two grievances, I accept the evidence of Mr. McMillan that he intended to have the 2000 tons of rail steel which was en route welded in Prince George and that he had taken steps to have the steel off-loaded from the ship directly onto the Railway’s cars and routed for that purpose. I also accept his evidence that when he made his decision to change those arrangements, he did so in response to the facts as he knew them on January 4, 2000. In particular, I accept that he had an honest belief that the Railway would not be able to marshall the cars necessary to receive the steel when the vessel arrived because of the lockout then in progress and because of what he understood to be the imminent arrival of the ship.
Those facts changed after Mr. McMillan had made his decision and changed the arrangements for the welding of the 2000 tons. However, I find that his commitment to process the 2000 tons of steel at Prince George was frustrated when the changing circumstances made it appear to him that the Railway could not meet that commitment short of absorbing a substantial increase in what was already considered to be disproportionately high costs. In short, I conclude that the Railway, on its understanding of the facts at the material time, had a reasonable basis for changing its commitment to have Chemetron weld the steel in Prince George.
In making those findings, it is essential to record that they only become relevant if it is concluded that flash butt-welding is work falling within the contracting out provision of the agreement. In that context, I note that much of the evidence adduced by the parties bypassed that essential question. In adjudicating upon a contracting out dispute, answering that question positively is a necessary first step. That is, if the Union is not able to establish that the disputed work falls within that definition, considerations with respect to how the contracting out was initiated becomes academic.
The submission of the Union, in effect, is that the support services performed by its members was contracted out to Chemetron at its Fraser-Surrey plant and that the facts did not bring that contracting out within any of the exceptions outlined in the collective agreement. The Union cited Alcan Smelters & Chemicals Ltd. and Canadian Association of Smetler & Allied Workers, Local 1, (1987) 28 L.A.C. (3d) 353 (Hope), to support the submission that the Railway could not rely on the absence of a viable welding plant in Prince George to justify depriving its members of the support work they had been performing and which would be lost to employees of Chemetron at its Fraser-Surrey plant.
The Union also relied on Via Rail Canada Inc. and International Association of Machinists & Aerospace Workers, (1993) 35 L.A.C. (4th) 267 (Frumkin), for the proposition that the test with respect to whether particular work is bargaining unit work under language similar to the language at issue in this dispute is whether the employees who claim the work are capable of performing it and whether it falls generally within work they have the capacity to perform. The Union also read that decision as support for its assertion that cost is not a determining factor in the application of the language at issue.
The reasoning in that decision has application to the facts present in this dispute, said the Union, because flash butt-welding is work of a kind the Union membership is capable of performing and has performed in the past. Incorporated in that submission was the position of the Union that the Railway was bound by the terms of the collective agreement to seek to have the welding aspect of the work performed by other contractors or by members of the Union such as Mr. Lepage.
Cited in support of that proposition was the reasoning of Arbitrator Weatherill adopted by Arbitrator Frumkin in Via Rail on p. 271 in which Arbitrator Weatherill concluded that work that had been both contracted out and performed by bargaining unit employees in the past was “nevertheless work which fell within the scope of that normally performed by members of the bargaining unit”. In that reasoning Arbitrator Weatherill concluded that, for the facts present in that dispute, the work was normally performed by members of the bargaining unit “even though it may also have been performed by others”.
That reasoning has application on the facts present in this dispute, said the Union, where the fact that the operation of the welder is performed by a contractor does not diminish the principle fact that all other aspects of the process were performed by members of the Union. Further, said the Union, the fact that the welding had been contracted out did not excuse the Railway from the obligation to pursue an alternate process for the performance of that aspect of the work by members of the Union or by another contractor.
The decision in Northwestel Inc. and International Brotherhood of Electrical Workers, Local 1574, (1996) 55 L.A.C. (4th) 57 (Kelleher), was advanced by the Union as support for the proposition that the Railway could not withdraw its commitment to have the 2000 tons welded at the Prince George plant. The decision in Times-Colonist and Victoria-Vancouver Island Newspaper Guild, [1997] B.C.C.A.A.A. No. 462 (Chertkow), was cited in support of the Union’s assertion that disparity between the per weld costs in Prince George as compared with Fraser-Surrey did not constitute a valid basis for contracting out the work.
In terms of whether the work was bargaining unit work, the Union relied on CP Rail and BMWE, May 14, 1999, CROA No. 3041 (Picher). That case involved a proposal by the Employer to transfer a flash butt-welding plant owned and operated in Winnipeg (the Transcona Butt-Welding Plant), to Chemetron, the same company at issue in this dispute. Arbitrator Picher concluded that the proposal to sell the plant and acquire CWR from Chemetron amounted to a contracting out of the flash butt-welding work being performed by that employer’s own forces.
The Railway in this dispute was of the view that the facts in that case did not apply where its flash butt-welding operations have been contracted out at all times material to the dispute. The position of the Railway was that the work at issue in this dispute is not flash butt-welding in the sense contemplated in CROA No. 3041. The Railway conceded that the work the CUTE 6 employees did perform in support of butt-welding was bargaining unit work within the meaning of the provision in the sense that it was work of a kind “presently and normally performing by [CUTE 6] employees”. But, said the Railway, that support work was not flash butt-welding and it was not within the Railway’s obligation or means to continue the work in Prince George in the absence of the welding itself.
In support of its position, the Railway relied on Re British Columbia Railway Co. and Canadian Union of Transportation Employees, Local 6, (1987) 27 L.A.C. (3d) 147 (Hope); Highland Valley Cooper and United Steelworkers of America, Local 7619 (Contracting Out Arbitration), July 9, 1991, unreported (Greyell); B.C. Rail and CAW, December 10, 1992, unreported (Ready); Re Canadian Pacific Railway and C.A.W.-T.C.A. Canada, Local 101, (1997) 57 L.A.C. (4th) 1 (Picher); and CN Rail and CAW, June 20, 1997, unreported (Picher).
As indicated, the Railway’s position on the merits was that the work of flash butt-welding had been contracted out at all material times in the past and could not be seen as work “presently and normally performed by [CUTE 6] employees”. On the facts, said the Railway, the bargaining unit has never performed the work of flash butt-welding as opposed to the performance of routine work required to facilitate the welding process.
The Railway’s alternate submission was that if the work could be seen as bargaining unit work in the context of the collective agreement, transferring the support service work performed by Union members in the sense of contracting the production of CWR to the Fraser-Surrey plant fell within various of the exceptions. It relied in particular on the cost factors of continuing to contract out the diminished CWR production to the Chemetron plant in Prince George and, in any event, its inability to control the continued availability of the Prince George plant. The Railway also challenged the submission of the Union that cost factors cannot justify the contracting out of bargaining unit work and that the facts here justified a decision to have CWR produced in Chemetron’s Fraser-Surrey plant.
V – Decision
The facts do not support the conclusion that the decision to have CWR welded at the Fraser-Surrey Chemetron plant amounted to the contracting out of “work presently and normally performed” by CUTE 6 employees. In substance, the decision involved the continued contracting out of flash butt-welding to the same contractor. Certainly the change in location meant that the support services CUTE 6 employees had been performing were not required. But the protected work at issue here is limited to the work of supporting a flash butt-welding operation conducted on Railway property. Nothing in the language of the collective agreement or the arbitral authorities supports the conclusion that having the flash butt-welding done at a location off railway property was prohibited in the sense contemplated, for example, in the decision of Arbitrator Picher in CROA No. 3041.
In addition, I agree with the Railway that the decision of Arbitrator Ready does not support the conclusion that cost is not a factor to take into account when considering whether a contracting out falls within the exceptions set out in the agreement. Cost is a factor in various of the exceptions set out in Article 34.2, including the “nature, volume and duration” exception relied on by the Railway in this dispute. I note in that context that the Union’s interpretation is contrary to the language itself. Article 34.1, for example, limits the prohibition against contracting out to circumstances where:
[T]he necessary facilities, licenses, equipment and qualified personnel are available; and that the work can be done in a manner that is competitive in terms of cost and quality and within the projected time limits. (emphasis added)
That language introduces the requirement that the work in question be capable of being performed competitively with respect to costs, quality and within the required time. That language has been interpreted as being subject to a balancing of interests in which the cost factor will only excuse a contracting out where it can be seen as unreasonable to require that the work remain in house. The decisions in which Arbitrator Picher concluded that cost can be determinative, such as CP Rail and BMWE, CROA No. 3109, are limited to projects:
[W]here it can be shown that the nature of the work or the amount of work to be performed does not reasonably justify the operating expenditure which would be incurred by utilizing bargaining unit employees. In that case contracting out is permitted, even though the work might otherwise be work presently and normally performed by bargaining unit employees, as exceptionally contemplated in sub-paragraph (iv). (See CROA Nos. 713, 1596 and 1966). (emphasis added)
In Arbitrator Picher’s decision in the Domtar case between CP Rail and CAW, he accepted on p. 9 that where the facts support the conclusion that assigning the work to the bargaining unit is no longer viable due to the cost factors involved, it can be contracted out. On pp. 8-9 he wrote in part:
[I] am compelled to the conclusion that these circumstances were such that, due to the nature and volume of the work, the operating expenditure required to continue it within the Company was not justified, because the work itself, and indeed the freight contract with Domtar, would no longer have been viable. I agree with Arbitrator Ready that the exception in sub-paragraph 4 cannot be invoked to simply find a cheaper way of having work done, so as to increase profit margins. The facts of the instant case, however, go well beyond that, relating as they do to the very existence of the freight contract with Domtar. (emphasis added)
Similar reasoning was applied by Arbitrator Picher in CN Rail and CAW, CROA No. 2869. On p. 5 he wrote:
Needless to say, a board of arbitration must exercise great caution in considering a submission by an employer that a particular body of work, previously performed by bargaining unit members, is no longer justified given the nature and volume of the work involved, and the related capital or operating expenditures. While no general rules can be established for the purposes of the analysis which attaches to such a claim, I am satisfied that in the instant case the Company’s position is made out, with respect to the application of the exception found within article 35.1(d). To find otherwise would, in my view, be tantamount to con-demning the Company unreasonably to continuing to operate a bunkhouse which would largely be a ghost facility, incurring extensive capital and operating expenditures which bear little or no practical relationship to the utilization of the facility’s capacity, at a level of less than 15%. This is truly a case where the Company has demonstrated, in my view compellingly, a significant change of circumstances whereby the diminished number of crews laying over at Watrous, and the work associated with lodging them, does not justify the capital or operating expenditure which would attach to maintaining a seventy-two room bunkhouse facility any longer at that location. (emphasis added)
Based on the reasoning, implicit in the various authorities, I repeat my conclusion that the fundamental test to be applied with respect to cost factors is one of reasonableness. It is not sufficient for the Railway to simply establish a disparity between the cost of continuing to have particular work performed in house as compared with the cost of contracting it out. Where work has been done in house over a lengthy period of time, as is the case here, a presumption arises that the cost of performing the work is acceptable and the fact that a reduction in costs is possible through contracting it out will only suffice where facts exist indicating a change in the relevant circumstances from which it can be concluded that continuing to perform the work in house would create an unreasonable cost burden.
In the application of that reasoning, I am of the view that, with respect to the year 2001, the Railway made a case to discontinue flash butt-welding at the Prince George plant, even assuming it were within its control to compel Chemetron to provide that service. The combination of the significant decline in the amount of the work required, the disproportionately high costs of startup and shutdown at Prince George, and the difference in cost per weld, would fall within the reasoning applied by Arbitrator Picher in, for example, CROA 2869.
There the difference in cost was between $500,000 in house and $135,000 by contracting out. But, of equal significance was the fact that keeping the work in house would require maintaining a facility and the staff to operate it which would be idle for most of the time. By analogy, requiring the operation of a plant for the performance of work which had shrunk from six months of the year to as low as three days would demonstrate an analogous issue of reasonableness that favours the right to contract out.
However, in the final analysis, the issue of contracting out does not arise because maintaining the work in house was beyond the control of the Railway in circumstances equal to those found in Arbitrator Picher’s Domtar decision in CP Rail and the CAW, where retaining the work in house was beyond the control of the employer. That finding is an answer to the first grievance relating to the year 2000. That is, the Railway was not contractually obligated to have the work performed in Prince George and its reason for failing to meet its commitment involved valid business considerations that made its decision reasonable in the circumstances.
The answer to the second grievance is that the decision to have CWT produced in the Fraser-Surrey plant did not amount to contracting out of work which would have “presently and normally been performed” by Union members, and, in any event, the facts brought the 2001 contracting out within the “nature, volume and duration” exception incorporated in the provision. In any event, both grievances fail on the basis that the facts did not present a circumstance in which the Railway made a decision to contract out the work in question, being the CWT support work.
The Railway’s decision was to continue contracting out flash butt-welding to the same contractor but at a different location. In the facts giving rise to the first grievance, it had a measure of control over where the welding was to be done. However, it was not contractually bound to select the Prince George plant and its decision to resile from its commitment was a reasonable response to the circumstances. In the second grievance, the selection of location was beyond the Railway’s control and, in any event, the welding of CWT was not work that fell within the contracting out language. In the result the grievances are dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 6th day of August, 2002.
“H. Allan Hope, Q.C.”
H. ALLAN HOPE, Q.C. – Arbitrator