SHP 337

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

National Automobile Aerospace and Agricultural Implement Workers Union of Canada

GRIEVANCE RE APPENDIX XVI OF AGREEMENT 12.35

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. R. Moore-Gough General Chairman

Tom Wood System General Chairman

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

S. A. Macdougald Manager, Labour Relations, Montreal

L. Dines Equipment Supervisor, Northern Ontario District, Capreol, Ontario

J. D. Ferguson Manager, A.A.R. Procedures, Motive Power and Car Equipment, Montreal

 

A hearing in this matter was held in Montreal on February 1, 1991.

 

INTERIM AWARD

This is the arbitration of a grievance against contracting out. The facts giving rise to the grievance are succinctly set out in the Statement of Dispute and Joint Statement of Issue filed at the hearing by the parties, which is as follows:

Dispute

The alleged violation of Appendix XVI of Agreement 12.35 when repairs were performed to CN cars CNIS 413045 and CN 667241 by the Ontario Northland Railway (ONR) at North Bay, Ontario.

Joint Statement of Issue

On January 5, 1989, CN train 338 set off two cars on a CN siding at North Bay for being defective. Car CNIS 413045 had shelled wheels and car CN 667241 had loose blocking. These cars were repaired by the Ontario Northland Railway at the ONR Transfer Yard. Car CNIS 413045 was released back to the Company by the ONR on January 10, 1989, and Car CN 667241 was released on January 6, 1989.

The Union contends that the Company contracted out this work and violated the provisions of Appendix XVI of Agreement 12.35, and that the work in question is work which is normally performed by CN Carmen. The Union requests that such work be assigned to CN Carmen in the future.

The Company denies the alleged violation and has declined the Union's request.

***

The Company raises three grounds of defence to the contracting out which took place. Firstly, it maintains that the repair of rolling stock disabled at North Bay has, pursuant to a contract which originated in 1921, been assigned to the Ontario Northland Railway for repair work in accordance with a longstanding practice. On this basis, it argues that the work in question is not "work presently and normally performed by employees who are subject to the provisions of this collective agreement" within the meaning of article IV of the Master Agreement. Alternatively, it submits that the essential equipment and facilities were not available at the time and place required, and that the time of completion of the work could not be met with the skills, personnel or equipment available on the property, as contemplated in subparagraphs 0.3 and 0.5, respectively of article XIV.

The Brotherhood objected to the first position advanced by the Company at the hearing, arguing that It had no prior notice that the 1921 contract would be pleaded, there having been no discussion of that issue through all stages of the grievance procedure. On that basis it requested an adjournment to allow it to prepare to meet the case so pleaded by the employer. In the Arbitrator's view the request for an adjournment was justified in the circumstances. I therefore ruled that the issue of the application of the 1921 contract and any past practice and waiver of the Union's rights which may have developed subsequently, should be stood down to be heard, if necessary, at the next date scheduled for the arbitration of grievances between these parties. It was agreed that the Arbitrator should proceed to deal with the merits of the alternative position of the Company, on the understanding that should the Company succeed on those grounds it would be unnecessary to proceed further. This award is therefore in the nature of an interim award confined to the application of subparagraphs 0.3 and 0.5 of article 4 of the Master Agreement.

Those provisions are as follows:

ARTICLE IV - CONTRACTING OUT

The existing letter on contracting out of work is deleted and the following Article is to be inserted in each Collective Agreement listed in Appendix "A" as a substitute therefore:

Effective February 3, 1988, work presently and normally performed by employees who are subject to the provisions of this collective agreement will not be contracted out except: ...

03. when essential equipment or facilities are not available and cannot be made available at the time and place required (a) from Railway-owned property, or (b) which may be bona fide leased from other sources at a reasonable cost without operator; or ...

05. the required time of completion of the work cannot be met with the skills, personnel or equipment available on the property; ...

The material before the Arbitrator establishes, beyond controversy, that a road repair truck is maintained by the Company at Capreol. It is normally dispatched, frequently on an overtime basis, to send a crew to effect repairs to rolling stock at remote road locations. It is likewise not disputed that the repairs to the two cars in question on January 5, 1989 at North Bay could have been effected by that means. The record further reveals, however, that the truck was being repaired at a private garage facility in Sudbury on the 5th of January. Part of the Company's submission is that since the truck was not then available the conditions described in subparagraphs 03 and 05 of article IV applied.

In the Arbitrator's view that is not supported on the facts. The evidence discloses that the service to the road repair truck was completed at the end of the afternoon of January 5, 1988, and indeed the vehicle was returned to the Company the following morning. When the Company became aware of the breakdown of the equipment at North Bay, at or about noon on the 5th, it did not make any inquiry to determine when the road repair truck could be returned to service. It appears to the Arbitrator that in all likelihood the Company then had the means to obtain a reasonable estimate of when its truck would be available, and would, it seems, have been told that it would be back in service at the end of the afternoon. Had it made the necessary inquiries it could in all probability have dispatched a crew from Capreol to Sudbury, and onwards to North Bay that same afternoon or early the next day to deal with the repairs to the two cars which had been removed from service earlier that day.

Needless to say, the concept of "availability" contemplated within paragraphs 03 and 05 of article IV of the Master Agreement must be considered on a case by case basis, having regard to the particular facts that may arise in any given circumstance. In the instant case, however, the Arbitrator must conclude that the fact that the Company's vehicle was available to it within a relatively short period of its being advised of the breakdown at North Bay, and that that knowledge in all likelihood could have been obtained by inquiring of the truck repair facility, for all practical purposes it cannot be said that the road repair truck, or an emergency crew, were unavailable in these circumstances. That is particularly so in light of the relatively unhurried timetable for the repairs which was followed by Ontario Northland. Indeed, it is difficult to dismiss the suggestion of the Union's representative that the repairs to both cars could have been completed without difficulty, and in all likelihood sooner than was done by the Ontario Northland Railway, if the Company had made the proper inquiries and had used its own equipment and staff to do the work.

For these reasons the Arbitrator cannot sustain the position advanced by the Company that the circumstances in question fall within the exceptions to the rule against contracting out established in article IV of the Master Agreement.

As explained above, this finding does not entirely disposeof the grievance. The matter is therefore remitted to the nextscheduled day of hearings to allow both parties to call evidenceand to make argument in respect of the alternative position of theCompany that, by virtue of the contract between the Company and theOntario Northland Railway dating from 1921, and the ensuingpractice, the work at North Bay cannot be described as work "... presently and normally performed by employees" within the bargaining unit. I therefore retain jurisdiction.

DATED at Toronto this 6th day of February, 1991.

(sgd) M. G. Picher

Arbitrator