SHP - 381
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
GRIEVANCES CONCERNING THE CONTRACTING OUT OF WORK ON A PAINT SPRAY BOOTH AT THE MONTREAL MAINTENANCE CENTRE
SOLE ARBITRATOR:Harvey Frumkin
APPEARING FOR THE UNION:
Abe Rosner – Counsel
Lukas Biniaris – Systems General Chairperson
Claude Bergeron – President LL2762
Jim Young – Sheet Metal Worker LL2762 M.M.C.
APPEARING FOR THE COMPANY:
Ken Taylor – Counsel
Josee Ouellet – Sr. Officer Labour Relations
A hearing in this matter was held at Montreal on June 3, 1993.
Five grievances have been presented to the Arbitrator for adjudication. Two of these bear date May 24th, 1991 and are filed as individual grievances on behalf of Grievors J.W. Young and Roger Aubin, respectively. They seek for each of these Grievors eight hours of pay at the over-time rate upon the basis of their claimed entitlement to a work assignment (the modification to the paint spray booth in the support shop) which was contracted out in the month of May 1991, allegedly in violation of their rights under the Collective Agreement. The remaining three grievances, each bear date September 12th, 1992 and are filed as individual grievances on behalf of Grievor’s J.W. Young, Maurice Sarrazin and Roger Aubin respectively. These claim thirty-two hours of work at the overtime rate for each of the respective Grievors upon the basis of their claimed entitlement to work contracted out allegedly in violation of their rights under the Collective Agreement during the period July 15th, to July 12th, 1991.
The joint statement of issue and facts filed by the parties is as follows:
Alleged violation of Rules 21 and 24 of Collective Agreement No. 5, when the Corporation contracted-out the modifications, removal, fabrication and assembling of the Paint Spray booth in the Montreal Maintenance Centre (M.M.C.) in Pte. St. Charles.
JOINT STATEMENT OF FACT:
In May of 1991, the Corporation employed a contractor to modify, dismantle and assemble the Paint Spray booth in M.M.C.
The initial work began in May and consisted of the fabrication of the room made of galvanized metal panels, the installation of neon lights, fan in the exhaust system, etc.
During the vacation shut-down (July 15 to August 12), the contractor returned and completed the work which involved the relocation of the water chute (paint recuperator), enlarging the space and include a dry room, modifications to the exhaust system and a support system for the movement of parts to be painted.
The Association filed a claim for eight (8) hours at punitive rates of pay for Sheet Metal Workers J.W. Young and R. Aubin, for the work performed in May, and a claim for thirty-two (32) hours at punitive rates of pay for Sheet Metal Workers J.W. Young, M. Sarazin and R. Aubin for the work performed during the vacation shut-down.
FOR THE CORPORATION: FOR THE ASSOCIATION:
for: General Chairman DEPARTMENT DIRECTOR, LABOUR RELATIOS
Date: April 05, 1993 Date: 15 March 1993
The Collective Agreement, at Section 24.1 contains a general prohibition against the contracting out of work "presently and normally performed by employees …" subject to certain exceptions.
The provision reads thusly:
RULE 24 Contracting Out of Work
24.1 Work presently and normally performed by employees represented by the International Association of Machinists & Aerospace Workers signatory to this Agreement shall not be contracted out except:
(1) when technical or managerial skills are not available from within the Corporation; or
(2) where sufficient employees, qualified to perform the work, are not available from the active or laid-off employees; or
(3) when essential equipment or facilities are not available and cannot be made available from the Corporation’s property at the time and place required; or
(4) where the nature or volume of 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, nor to work performed by Canadian National Railway Company or Canadian Pacific Limited on behalf of VIA Rail Canada Inc.
The work assignment to which the Grievors claim entitlement, as overtime, was performed in the month of May 1991 (16 person hours of work in all) and during the vacation shut-down which extended over the period July 15th, to August 12th, 1991 (96 person hours of work in all). It consisted of the modification, dismantling and assembly of the Paint Spray Booth at the Montreal Maintenance Centre. Involved was fabrication of a room constructed of galvanized metal panels and the installation of supporting systems. It is not disputed that the work was contracted out and performed for the most part by persons qualified as sheet metal workers.
The position of the Company is that the work in question is not "work presently and normally" performed by employees represented by the International Association of Machinists and Aerospace Workers. It contends that the work contracted out was a one time occurrence and that its sheet metal workers never performed such work in the past. It argues subsidiarily that even if the work did qualify as "work presently and normally" performed by sheet metal workers, that the particular contracting out in this case was permissible in terms of the exceptions enumerated in Section 24.1 of the Collective Agreement.
The Arbitrator is satisfied upon the evidence that the Grievors, all of whom are sheet metal workers, were qualified to perform the work and that the work itself constituted "work presently and normally performed by employees …" within the meaning of Section 24.1 of the Collective Agreement.
While the work in question, according to the evidence, may not be exclusive to sheet metal workers, its nature is such that it could quite properly be assigned to this category of employee. In this regard the various functions performed as these were described at the hearing fall within the scope of activities which sheet metal workers perform in the normal course. In fact, work of a similar nature had been performed by sheet metal workers at a time prior to transfer to the Company, on or about May 30th, 1985, of its present repair and maintenance facility by C.N. Rail.
The fact that the work arises infrequently does not mean that it is any less work "presently and normally" performed by sheet metal workers, members of the bargaining unit within the meaning of the provision above cited. What distinguishes work which should properly be assigned to bargaining unit members is not the frequency at which the work arises or for that matter the fact that such work may, in the past, have occasionally been performed by others, but rather the nature of the work, the functions involved and the skills required for its performance. It will be from this latter perspective that the determination of whether that work falls within the scope of bargaining unit work will be made. As was pointed out by arbitrator Weatherill in CROA 1009:
The work in question was of a sort which bargaining unit employees had sometimes performed in the past, but which had often (and indeed, in a majority of instances in recent years), been performed by outside contractors. It was nevertheless work which fell within the scope of that normally performed by members of the bargaining unit, and for the purposes of this case at least, I am prepared to hold that it was work "normally performed" by them within the meaning of the Agreement of April 28, 1978, even though it may also have been performed by others.
Given that the work may properly be performed by sheet metal workers, there would have to be some basis for distinguishing that work from what the Collective Agreement understands as work "presently and normally performed by employees …" members of the bargaining unit. The Arbitrator can see no basis for such a distinction in the evidence and in this regard the Arbitrator’s findings would extend to the design aspect required for purposes of the fabrication and construction of the Paint Spray Booth.
Thus all that remains to determine is whether the particular contracting out in this case was permissible in terms of the exceptions enumerated in Section 24.1. In this regard it is common ground that the Company must succeed in establishing that the particular circumstances of any given case of contracting out bring it within the parameters of any one of the six exceptions provided in the Section. To such end it is the Company which bears the evidenciary onus.
The Company invoked unavailability of technical and managerial skills, lack of required equipment and consequent unjustified capital or operating expenditure, and inadequacy of resources required for completion of the work in due time. These grounds of contestation are set out in a letter directed to the Union on August 25, 1991, in the following terms:
Modification and/or construction of that nature is not work normally performed by employees represented by the Association, as our personnel is in place to maintain the existing installation.
We are not equipped to perform that kind of work and we do not believe that the volume of the work was such that it did justify the capital or operating expenditure involved.
The required time of completion of the work could not be met with the equipment available on the property.
The technical and managerial skills are not available from within the Corporation to design such specialized installation.
The evidence, however, is at variance with all of these grounds of contestation. In point of fact, the only evidence before the Arbitrator is to the effect that the employees, on whose behalf the grievance has been filed, and indeed those sheet metal workers falling within the bargaining unit generally, possessed the skills and experience to carry out the assignment both in terms of design and concept, as well as execution. Furthermore, there is nothing in the evidence to suggest that the Company lacked any equipment for the work, or for that matter, that it would have been obliged to incur any extraordinary expenditure of a capital or operational nature by reason of assignment of the work to its own employees. Lastly, the evidence was to the effect that the entire assignment absorbed only one hundred and twelve person hours of work and was carried out in two stages, the first of which was performed in the month of May 1991, with the final stage being completed during the months of July and August 1991. There is simply no basis for a conclusion that time constraints demanded that the work be contracted out.
As for cost factors to which the Company referred at the hearing, the Arbitrator need only say that contracting out will not be justified on the basis only of higher cost. On this latter point the Arbitrator will refer to a passage taken from the decision of Canadian Pacific Ltd, and Counsel of Railway Shopcraft Employees and Allied Workers, decision of J.F.W. Weatherill, July 10th, 1984, which reads as follows:
In the instant case, the "nature or volume" of the work at the locations in question would appear to have justified the operational expenditure involved for many years. There were no new or special considerations involved beyond the realisation that persons other than the company’s own employees could be arranged for to do the work more cheaply. Such is not, in my view, a case coming with the contemplation of exception (4) to the general prohibition of contracting-out set out in the letter of understanding.
There remains a final matter of whether the necessity of directing an assignment as overtime would be incongruous with availability of personnel and resources within the meaning of the exceptions enumerated in Section 24.1. Stated in somewhat different terms, the question which arises in this regard would be whether the concept of availability of personnel and resources within the meaning of Section 24.1 and that of overtime are mutually compatible.
The Arbitrator, however, need not address this issue for purposes of the determination of the justification for the contracting in this case. The evidence established that there were, throughout, either employees on layoff or employees who chose to arrange their vacation to avoid layoff due to lack of work. For that reason it is not at all certain that, had the Company resolved to assign the work to its own employees, significant overtime would have been involved. In other words, had the work involved been planned with Union participation, schedules may have been arranged so that the necessity for overtime may have been considerably reduced or eliminated entirely.
In summary, therefore, where an assignment involves work functions in the nature of those normally performed by members of the bargaining unit, that assignment will constitute bargaining unit work notwithstanding that the work functions reflected in it find application to objects related to but not often worked upon by bargaining unit members. This will be so until it is shown that the work is either not exclusive to bargaining unit members so that its direction to other employees would have been permissible, or that the work is not or has never been considered as bargaining unit work. Thus the fact that the Grievors normally work upon locomotives and rail cars does not mean that their area of competence and responsibility, where the same skills and work functions are involved, would not extend to a Paint Spray Booth employed in association with their work generally. This latter observation is even more telling in the present case where the employees concerned have performed work of a similar nature in the past.
Furthermore, where there is a contracting out of work which may, but for the exceptional provisions set out in Section 24.1, be assigned to bargaining unit members, it will be for the Company to demonstrate in concrete fashion that the contracting out is jusified in terms of the exceptions. Mere assertions that any of the exceptions apply will not be sufficient. If for example there is lack of equipment, the equipment lacking must be described together with an indication of what will be involved in acquiring same and the consequences in terms of cost and inconvenience. Again, if the Company invokes unavailability of staff or resources and resulting inconvenience, absent a contracting out, it must supply supporting evidence. The same may be said where the Company invokes any other of the exceptions. These observations are important because in this case the evidence simply does not permit for a determination of what consequences, if any, would have resulted had the Company planned for the execution of the assignment by its own personnel.
For these reasons the Arbitrator has little difficulty in concluding that the Company has not established that the contracting out with which it proceeded was justified in terms of Section 24.1 or any of the exceptions therein enumerated. This being the case, the finding of the Arbitrator must be that such contracting out amounted to a violation of employee rights under the Section.
Once it is decided that there has been a contracting out in violation of the Collective Agreement, it follows that there existed work that should have been directed to bargaining unit members. Under such a circumstance and within the context of a dispute, it will be the employee who demonstrates his entitlement to the work in question and who claims same who will be the one considered, notwithstanding that there may be other employees possessing a greater entitlement but who have chosen not to assert same. Entitlement of any particular employee will be determined with regard to capacity to perform the work and availability.
The Grievors come to the assignment as claimants of overtime work. Each possesses a demonstrated competence as a sheet metal worker and stands first in line over those in whom a greater entitlement may have vested but for the fact that they addressed no claim and to whom, but for this fact, the assignment may have been allocated as regular time had the planning been different. The final question which the Arbitrator must address, therefore, is whether in the circumstances the Grievors were available to perform the work within the meaning of the exceptions outlined.
The Arbitrator can see nothing in the wording of any of the exceptions set out in Section 24.1 which would excuse the Company from the general prohibition against contracting out upon the sole basis that work comprised within an assignment must be allocated as overtime. This observation is by no means inconsistent with the provisions of Section 8 of the Collective Agreement and particularly Section 8.1, which reads as follows:
Every effort will be made to avoid the necessity for overtime; except, when conditions necessitate. Records of overtime worked and calls will be maintained and employees will be called with the purpose in view of distributing the opportunity of overtime work equally.
More specifically, the second exception enumerated in Section 24.1 speaks of availability from the active or laid-off employees which would indicate that the contracting out against which the Section militates should not be proceeded with where there are available from amongst active employees, (as well as those on layoff), employees to assume it. It would follow that the possibility for allocation of work functions as overtime to active employees is not excluded and that such avenue should be considered before resorting to a contracting out.
The Arbitrator is not saying that the exceptions enumerated in Section 24.1 are not broadly framed and should, in particular circumstances, operate to exclude a particular assig|nment from the umbrella of bargaining unit protection afforded by Section 24.1 where such assignment, if allocated as overtime, may, in certain respects, prove impractical, difficult or disruptive. But even in such a case, it will be for the Company to demonstrate what the consequences of allocating an assignment as overtime would have been and that these consequences justified the contracting out with which it proceeded.
The Arbitrator has not ignored a decision of Canadian Pacific Limited and International Brotherhood of Electrical Workers, March 17th, 1989, J.F.W. Weatherill, arbitrator, where it is suggested that the fact that an assignment cannot be performed "without quite substantial overtime being involved" may bring that assignment 13 within the ambit of the second exception enumerated in Section 24.1. In this case arbitrator Weatherill expressed himself thusly:
The contracting out of work on the GE traction motors was indeed the contracting out of work "presently and normally performed by members of the bargaining unit". The Company, however, contends that the contracting out comes within exception 2, 5 and 6 of the letter on Contracting Out. Exception 2 relates to the availability of qualified employees. I am satisfied, from the material before me, that the qualified active employees at Angus could not have performed all of the work required to be performed without quite substantial overtime being involved. There were no employees then laid off: there were employees who had been laid off from Angus but who had, in the exercise of their seniority rights, gone to work at the Cote St.-Luc shops. The Company was not required to increase its work force at Angus to accommodate them, and they were not affected by the contracting out. In my view, the contracting out did come within the scope of exception.
The consequences for the Company that would have flowed from assignment of the work in question as overtime are not addressed in any detail in the above case, so that it is difficult to determine whether arbitrator Weatherill would have been prepared to endorse a contracting out in all cases where the alternative would have been assignment of "quite substantial overtime". Concluding that availability within the meaning of exception 2 of Section 24.1 and overtime are not mutually incompatible would not, therefore, be necessarily inconsistent with the conclusion reached by Arbitrator Weatherill in the above case. In any event, as far as this arbitrator is concerned, the exceptions enumerated in Section 24.1 do not permit for a contracting out in all cases where significant overtime is involved but, rather, only in those cases where the Company establishes that allocation of an assignment as overtime would bring it within the |ambit of the exceptions enumerated in Section 24.1.
What remains is that the Grievors are the only ones who have come forward to claim the work in question. That work should have been available to members of the bargaining unit and allocated accordingly. In the case of the Grievors, such allocation would have had to have been proceeded with upon the basis of overtime and given the state of the evidence, the Arbitrator cannot see why this fact should in any way operate to diminish their entitlement to the work for which they ask to be compensated.
For the foregoing reasons, the conclusion of the Arbitrator will be that all grievances are well founded and they are accordingly maintained; the Company is declared to have been in violation of the rights of the Grievors when, in the month of May and subsequently in the months of July and August 1991, it contracted out for modifications, removal, fabrication and assembly of the Paint Spray Booth at the Montreal Maintenance Centre in Pointe St-Charles; it is further ordered that the Grievors be compensated in accordance with their claims.
The Arbitrator retains jurisdiction for purposes of any issue that may arise relating to determination of the quantum of compensation above ordered.
MONTREAL, June 11, 1993
(signed) HARVEY FRUMKIN