Heard in Montreal, Wednesday, February 11, 2008

Concerning

and

The company’s use of outside contractor ("surge employees") to perform work that rightfully belongs to employees governed under the 4.3 agreement.

In April 2007, Labour Relations approached the Union, attempting to negotiate an agreement to retain retired conductors on individual contracts to alleviate a shortage of employees, working under the 4.3 agreement, in Edmonton, Alberta.

…

On May 31, the Company served the Union notice that they were going to use these "surge conductors" in Melville, Saskatoon and Biggar, Saskatchewan. There was no agreement in place between the parties to allow contractors to perform work under agreement 4.3, nor is there today. These "surge conductors" hold no seniority under agreement 4.3, nor are they employees of the Company. On June 29, the Union filed

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The Union contends that the work in question rightfully belongs to employees holding seniority under agreement 4.3 and that the Company’s actions are contrary to the collective agreement. The Union requests that the Company cease and desist utilizing contractors to perform work governed by agreement 4.3.

The Union contends that the Company was dealing in bad faith and had no intention of obtaining an agreement with the Union. Additionally, the Union further contends that the use of these contractor has caused adverse effects to employees properly entitled to the work and we request they be made whole for all losses.

In early 2007 the Company was dealing with an unexpected and serious manpower shortage of train service personnel in Western Canada.

…

The Company approached the Union and informed them of their intent to canvass retired union members to cover unattended work. The intent of the discussions was to seek the cooperation of the Union in addressing the manpower shortages. Although the parties seemed to have an agreement in principle, they were unable to finalize the details concerning training of retires, calling procedures at each terminal or the payment of the equivalent of union dues.

…

The Company’s position is twofold: (A) The use of retired union members was a temporary measure to address an ongoing shortage of employees at select locations in Western Canada for a defined period of time. They were utilized only when unionized employees were not available and there is no evidence that the Company was engaged in sharp practice or that the use of these workers had any impact on bargaining unit employees as alleged by the Union. (B) There is no provision in agreement 4.3 preventing the contracting out of work to retired union members in the manner used by the Company, nor has the Union identified any.

There appeared on behalf of the Company:

K. Morris – Manager, Labour Relations, Edmonton

D. S. Fisher – Director, Labour Relations, Montreal

D. VanCauwenbergh – Director, Labour Relations, Edmonton

B. Laidlaw – Manager, Labour Relations, Winnipeg

And on behalf of the Union:

D. Ellickson – Counsel, Toronto

R. S. Thompson – General Chairperson

R. A. Hackl – Witness

The hearing was adjourned by the Arbitrator.