SHP - 79

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

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

J.W. Asprey

J. Slota

 

APPEARING FOR THE COMPANY:

M. Yorston

 

 

A hearing in this matter was held in Ottawa on July 30, 1980.

 

AWARD OF THE ARBITRATOR

The Joint Statement of facts and the Joint Statement of Issue in this matter are as follows:

JOINT STATEMENT OF FACTS:

During the months of April and May 1979, the work of installing gas lines along track No. 46 of the car Shop, Weston Shops, was performed by Randall Pluming and Heating Company. Also, during the month of May, 1979, repairs to an air conditioning unit at the Frog Shop, Weston Shops were performed by Whitehall Refrigeration and Air Conditioning Limited.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that CP Rail violated the provisions of Wage Agreement No. 16 and the letter to Mr. R. E. Peer, Chairman, Associated Railway Unions dated April 28, 1978 on "Contracting-Out of Work".

It is the position of the Company that the work in question is not normally and usually performed by Pipefitters represented by Division No. 4. R.E.D., A.F. of L. C.I.O. and covered by Wage Agreement No. 16, and further, that as there were no employees qualified to do the work who were unable to hold work as a result of this contracting-out, in accordance with the final paragraph of the letter dated April 28, 1978 there is no grievance under the Collective Agreement in respect of this matter, and the case is therefore not arbitrable.

The letter of April 28, 1978, sets out the agreement of the parties that "work presently and normally performed" by members of the bargaining unit will not be contracted-out. Even such work, according to the letter, may be contracted-out in certain circumstances, including those "where sufficient employees, qualified to perform the work, are not available". Grievances with respect to the contracting-out of work in violation of that agreement may be brought where such contracting-out "results in an employee being unable to hold work".

There were, as the Joint Statement makes clear, two sorts of work contracted-out in this case. One was the installation of gas lines, the other was repairs to an air conditioning unit. This sort of work is included within the definition of pipefitters' work set out in article 56.3 of the collective agreement, and is thus work which members of the bargaining unit and particularly pipefitters rather than members of other crafts coming within the bargaining unit might be expected to perform.

This is not to say, however, that such work is in fact "normally performed" by members of the bargaining unit, and certainly not that it is exclusively performed by them. Indeed, it is acknowledged that "pipefitting work" performed by the company is divided more or less evenly between the shop craft employees (represented by, the union in this case) and employees in the Bridge and Building department (represented by another union and covered by another collective agreement). In the instant case, of course, the work was not performed by any employees of the company but was indeed contracted-out. Whatever question that might raise under some other collective agreement, the issue here is, first, whether or not the work in question is "presently and normally performed by members of this bargaining unit".

It appears from the material before me that the installation of gas lines along the track would, normally, be work to be assigned to employees in the Bridge and Building department, rather than by employees represented by this union. While maintenance of such lines may be done by these employees, and while they may, if Bridge and Building employees are unavailable, perform such work, it does not appear that they "normally" perform it. As to the repairs to the air conditioning unit, that would not appear to be the work of other employees, and it does come generally within the scope of "pipefitters' work". It would be my finding, for the purposes of this case, that such work is "normally peformed" by members of the bargaining unit.

As to the installation of the gas lines, even if such work were "normally" that of pipefitters in this bargaining unit, it appears that the work required licenced pipefitters and that the employees concerned were not such. The case would then come within the exception referred to above: sufficient employees, qualified to perform the work, were not available. It is not clear from the material before me whether or not the employees working on air conditioning repairs were subject to the same requirement.

Finally, even if the work were "normally performed" by employees in the bargaining unit, and even if there were sufficient qualified employees to perform it, a grievance may be brought only where an employee is "unable to hold work" as a result of contracting-out. In the instant case, it would appear that while certain employees were laid off, they were employees not then qualified to perform the work. They were, it seems, pipefitter helpers, and not pipefitters. Further, their change of status occurred some time after the performance of the work contracted-out had begun, and was not directly attributable to it.

In any event, then, the contracting-out of the work in question was not a violation of the collective agreement, and, more clearly, not one for which a grievance could be brought.

For all of the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 1st day of August, 1980.

(signed) J.F.W. Weatherill

Arbitrator