SHP - 71
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian Pacific Limited
(the "Company")
AND
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL-CIO
(the "Union")
RE:
CONTRACTING OUT OF CERTAIN WORK
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J.W. Asprey
A. Manocchio
APPEARING FOR THE COMPANY:
M.M. Yorston
A hearing in this matter was held in Montreal on March 14, 1980.
AWARD OF THE ARBITRATOR
The joint statement of fact and issue in this matter is as follows:
JOINT STATEMENT OF FACT
On May 22, 1979, the Company sent eight turbo charger rotors from Angus shops to the Canadian National Railways Point St. Charles Shop for balancing. Four rotors were balanced by CNR forces at that point.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the Company violated the provisions of the letter of understanding concerning "Contracting Out" dated April 28, 1978 by this action.
The Company contends that the letter of understanding does not apply in this instance since there were no employees who were unable to hold work as a result of this action. The Company further contends that accordingly, pursuant to the last paragraph of the letter of understanding, there is no grievance and the matter is not arbitrable.
* * *
The letter of understanding dated April 28, 1978, provides, in its material clauses, as follows:
In accordance with the provisions as set out on page 49 of the above-mentioned award, it is agreed that in the period to December 31, 1978, work presently and normally performed by employees represented by the Associated Non-Operating Railway Unions and the Railway Employees' Department, Division No. 4 signatory to the Memorandum of Settlement dated February 21, 1978, will not be contracted out except:
(1) when technical or managerial skills are not available from within the Railway; or
(2) where sufficient employees, qualified to perform the work, are not available from the active or
(3) when essential equipment or facilities are not available and cannot be made available from Railway-owned property at the time and place required; or
(4) where the nature or volume of the work is such that it does not justify the capital or operating expenditure involved; or
(5) the required time of completion of the work cannot be met with the skills, personnel or equipment available on the property; or
(6) where the nature or volume of the work is such that undesirable fluctuations in employment would automatically result.
The conditions set forth above will not apply in emergencies, to items normally obtained from manufacturers or suppliers nor to the performance of warranty work.
...
Where a Union contends that the Railway has contracted out work contrary to the foregoing and this results in an employee being unable to hold work, the Union may progress a grievance in respect of such employee by using the grievance procedure which would apply if this were a grievance under the collective agreement. Such grievance shall commence at (*), the union officer submitting the facts on which the Union relies to support its contention. Any such grievance must be submitted within 30 days from the alleged non-compliance.
* CP ... the last step of the grievance procedure.
In the instant case the Company did send eight turbo charger rotors to the CNR Pointe St. Charles shop for balancing. In fact, four rotors were balanced there. Rotor balancing is work normally performed by employees of Canadian Pacific at its Angus shops.
The purpose of the contracting-out was to permit a comparison of the CN procedures and equipment with those used at the Angus shops. Thus, while Canadian Pacific certainly had the "essential equipment or facilities" available to perform rotor balancing, it did not have the equipment or facilities to perform a comparison of its equipment and procedures with those of another Company. Indeed, by definition, it could not have such equipment. Thus, in my view, the contracting-out which occurred in this case came within the scope of exception (3) to the general prohibition set out in the letter of agreement.
In any event, even if there had been a contracting-out contrary to the letter of understanding, the letter contemplates that grievances may be brought where such contracting-out "results in an employee being unable to hold work". In the instant case, none of the Company's employees lost work on account of what occurred. Certainly there was no loss of regular work. The employee who regularly performs rotor balancing continued to perform his work, and indeed balanced the rotors in question on their return from the CN shop.
It may be that the manner in which the Company management informed the union about the sending of the rotors to the CN shops was misleading. However that may be, what occurred was not contrary to the letter of understanding in other respects, and this is not a situation in which any employee is entitled to compensation.
For the foregoing reasons, the grievance must be dismissed.
DATED AT TORONTO, this 24th day of March, 1980.
(signed) J. F. W. Weatherill
Arbitrator