SHP 103 



Canadian Pacific Railway Company






SOLE ARBITRATOR: J. F. W. Weatherill



There appeared on behalf of the Company:

L. A. Clarke –

M. M. Yorston –

And on behalf of the Union:

J. W. Asprey –

E. Tandy –



A hearing in this matter was held at Montreal on June 11, 1981.




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


In June, 1980, the Company contracted out the repairs and rebuilding of freight car uncoupling levers to the firm of G.M. Lesa & Associates, Windsor, Ontario.


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 essential equipment and facilities are not available at Windsor and that as there were no employees who were unable to hold work as a result of the contracting out, in accordance with the final paragraph of the letter of April 28, 1978, there is no grievance under the Collective Agreement and the matter is therefore not arbitrable.


In the past, while bent or damaged uncoupling levers were sold as scrap, some were repaired, and such repairs were generally carried out by carmen. In recent years, with the advent of cushioned underframe freight equipment, uncoupling levers have been developed which operate with a telescoping mechanism, constructed of steel tubing with plastic inserts and nylon sleeves. These devices have also been repaired by carmen. It is still the case that where straightening of bent or damaged levers can be done without removing the lever from the car, such work is performed by carmen. What is complained of here is the contracting out of the more extensively damaged levers, which must be removed from the car.

In order to carry out adequate repairs on the more extensively damaged levers, a cold forge or press must be used. The company does not have such equipment at Windsor, and for this reason, and for reasons of efficient repair of a larger number of levers, the company contracted-out the work of repair of extensively damaged levers. This has resulted in a greatly reduced requirement for the purchase of new levers. It is not a matter of employee skills, but rather one of available equipment to satisfactorily perform the amount of work required. The work, it is clear, was "normally performed" by carmen in the past, but because of the limitation of available equipment the proportion of repairable levers was not what it is by reason of the subcontracting.

The agreement between the parties with respect to contracting-out, dated April 28, 1978, is to the effect that work normally performed by employees will not be contracted-out unless it comes within the exceptions set out in the agreement. In my view, the work in question comes within exception (3), which is as follows:

(3) When essential equipment or facilities are not available and cannot be made available from Railway-owned property at the time and place required;

I do not consider, nor was it argued, that the company was under an obligation to provide a cold forge or press at its Windsor shop in order to perform this work. Such equipment was, I find, "essential" to the proper repair of a reasonable proportion of bent or damaged uncoupling levers. For this reason, the contracting-out in question was not in violation of the collective agreement.

However this may be, the agreement relating to contracting-out is quite specific as to the circumstances in which a grievance may be brought. Those are set out in the final paragraph of the agreement 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 (*) (CP-the last step of the grievance procedure.), 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.

Under this provision, even where work is contracted-out which does not come within the exception described in the agreement, a grievance may only be brought in respect of an employee (or employees), unable to hold work as a result of the contracting-out. Whether or not there were employees already on layoff does not appear to be a material consideration. The question is whether or not the contracting-out itself has resulted in an employee being unable to hold work. In the instant case, the contracting-out of the work in question has not led to any change in the number of carmen employed at Windsor. It is not, in these circumstances, a case of the company’s "chipping away" at the union’s jurisdiction or at the scope of carmen’s normal work.

For the foregoing reasons, the grievance must be dismissed.


DATED AT TORONTO this 16th day of June, 1981.


(signed) J. F. W. Weatherill