SHP - 93
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian Pacific Limited
(the "Company")
AND
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
(the "Union")
RE:
GRIEVANCE RELATING TO CONTRACTING OUT
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J.W. Asprey
E.W. Tandy
APPEARING FOR THE COMPANY:
M.M. Yorston
A hearing in this matter was held in Montreal on March 12, 1981.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
On July 5, 1980, the Company contracted work at Sudbury, Ontario to Dellece Construction, which involved the adjustment and banding of a load of lumber in Car BN 239462.
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.
It is the position of the Company that the work in question is not normally and usually performed by Carmen covered by Wage Agreement #16 and further, as there were no employees who were unable to hold work as a result of this contracting out, in accordance with the final paragraph of the letters dated April 28, 1978, there is no grievance under the Collective Agreement in respect of this matter, and the matter is therefore not arbitrable.
The work in question was performed with respect to a car located on the repair tracks. Generally speaking, it would seem that such work would be performed by Carmen (although it would not appear to require craft skills), and in fact Carmen completed the work on later days. In other locations or circumstances other classifications of employees might be assigned such work.
The letter of understanding on which the union relies provides that the company will not contract out work "presently and normally performed" by members of the bargaining unit except in certain circumstances. The company does not here seek to bring itself within any of the exceptions there set out. Rather, the company contends that the matter is not arbitrable, since by its last paragraph the memorandum provides only for the arbitration of those cases where work has been improperly contracted out and where that has resulted in an employee being "unable to hold work". The last paragraph of the memorandum is as follows:
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.
In the instant case it has not been shown that an, employee was "unable to hold work" because of the contracting out in question. It is true that in recent years the work force has been substantially reduced (although that has not been shown to be attributable to contracting out) but it is not shown that any employees were in fact on lay-off status at the time of, the grievance. The grievors themselves were on their day off, and while they may be said to have lost an overtime opportunity, that is not what the memorandum protects. The grievors, continued to hold their work at all material times. This is not, therefore, a case of the sort which the last paragraph of the memorandum contemplated as subject to arbitration. The matter, I must conclude, is not arbitrable and the grievance must therefore be dismissed.
DATED AT TORONTO, this 17th day of March, 1981.
(signed) J.F.W. Weatherill
Arbitrator