SHP 461:

SHP – 461

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY

(the "Company")

AND

CANADIAN AUTO WORKERS, LOCAL 101

(the "Union")

CONTRACTING OUT GRIEVANCE – BALA, ONTARIO

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

Doug Cooke

Dave Guerin

And on behalf of the Union:

Brian McDonagh

A hearing in this matter was held at Vancouver, B.C.on March 25, 1998.

AWARD

This case concerns the contracting out of bargaining unit work at a derailment at Bala, Ontario on March 9, 1997. The Joint Statements of Fact and Issue are, respectively, as follows:

JOINT STATEMENT OF FACT:

The Sudbury Auxiliary Crane was ordered on March 9, 1997 and for approximately 12 days thereafter, removal of the derailed cars took place. During the course of this work the Company also deployed heavy construction equipment and workers from Hulcher Services, Inc.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that:

the Company has in fact contracted out bargaining unit work

the Company has not met the test of the exceptions outlined in Rule 53, Contracting out, Collective Agreement 101

even if the Company had met the test of the exceptions, the Company did not properly notify or meet with the Union as required by Rule 53, Contracting Out, Collective Agreement 101

Therefore the Union asks that:

A. Backus and C.O. Riley, qualified Crane Operators within the geographical area, be compensated all overtime lost account their not being called

Carmen B. Bonora, P. Vendramin, J. McLean, W. Wilson, W. Nash and M. Parsons, qualified ground men within the geographical area, be compensated all overtime lost account their not being called.

The Company denies the Union’s contentions and declines its claim.

Two weeks prior to this hearing the Union sought to add to its position in the Statement of Fact to include reference to the Company contracting out "bargaining unit work to an American Contractor in violation of Canadian Law". The Company opposed this amendment, and the parties made arguments at this hearing regarding whether the sought after amendment should be granted.

BACKGROUND FACTS

On January 22, 1997, a derailment occurred on the Company’s mainline between Toronto and Thunder Bay, at Bala, Ontario, approximately 100 miles to the north of Toronto. Four locomotives and 20 cars were on the ground as a result. The Sudbury auxiliary service was ordered to the scene, and over four days the mainline was cleared and service was restored. Further, the locomotives and three of the cars were removed from the wreck-site at that time. The removal of the remaining 17 cars was, however, left to a future date.

The removal of the 17 cars took place between March 9 and 21, 1997, using the Sudbury auxiliary, two former employees acting as Crane Operators, and contractors Hulcher Services and Lacroix Construction. Hulcher furnished three bulldozers plus required personnel, while Lacroix provided two backhoes and a bulldozer plus required personnel. The Union grieved Hulcher’s involvement as a violation of Rule 53 of the Collective Agreement.

The relevant Collective Agreement provisions are contained in Article 53 which reads, in part,:

53.1 Effective July 9, 1995 work presently and normally performed by employees who are subject to the provisions of this collective agreement will not be contracted out except:

i) when technical and managerial skills are not available from within the Railway and cannot be made available through a permanent transfer of employees from other locations on the system, through a reasonable level of training, retraining or upgrading of the active or laid off employees; or

ii) where sufficient employees, qualified to perform the work, are not available from the active or laid-off employees and cannot reasonably be made available through a permanent transfer of employees from other locations on the system; or

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

iv) where the nature or volume of work is such that it does not justify the capital or operating expenditure involved; or

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

vi) where the nature or volume of work is such that undesirable fluctuations in employment would automatically result.

53.2 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.

53.3 At a mutually convenient time at the beginning of each year and, in any event, no later than January 31, representatives of the Union will meet the designated officers to discuss the Company’s plans with respect to contracting out of work for that year.

53.4 The Company will advise the Union representative involved, in writing as far in advance as practicable of its intention to contract out work which would have a material or adverse effect on employees. Except in case of emergency, such notice shall be no less than 30 days.

53.5 Except in cases where time constraints or circumstances prevent it, the Company will hold discussions with representatives of the Union in advance of the date contracting out is contemplated. The Company will provide the Union with a description of the work to be contracted out; the anticipated duration; the reason for contracting out and, if possible, the date the contract is to commence, and any other details as may be pertinent to the Company’s decision to contract out. During such discussions, the Company will give due opportunity and consideration to the Union’s comments on the Company’s plan to contract out and review in good faith such comments or alternatives put forth by the Union. If the Union can demonstrate that the work can be performed internally in a timely fashion as efficiently, as economically, and with the same quality as the contract, the work will be brought back in or will not be contracted out, as the case may be.

53.6 Should a Regional Union Representative or equivalent, request information respecting contracting out which has not been covered by a notice of intent, it will be supplied to him promptly. If he requests a meeting to discuss such contracting out, it will be arranged at a mutually acceptable time and place.

53.7 In the event Union Representatives are unavailable for any meetings, such unavailability will not delay implementation of the Company’s plans with respect to contracting out for that year.

53.8 Where a Union contends that the Company has contracted out contrary to the provisions of this Rule, the Union may progress a grievance commencing at the last step of the grievance procedure. The Union officer shall submit 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.

DECISION

Having carefully considered the evidence and the submissions of the parties I find that this case can, and should, be decided on the notice issue. The evidence is clear that the Company had ample opportunity to consider its options and engage the Union’s input. The derailment occurred on January 22 and the work did not commence until March 9, 1997. In these circumstances I can find no "time constraints" or "circumstances" preventing the Company from fulfilling its obligation to give the Union notice of the contracting out under Rule 53.5.

The notice rights under Rule 53.5 have, between these parties, been characterized as "substantive", with "mandatory obligations" (see CP and CAW, Re Contracting Out of tri-level cars, unreported, September 4, 1997). In a case involving the contracting out of road electrician work (CP and CAW, September 4, 1997) I observed:

It is clear on the face of Rule 53.5 that the parties intended to hold meaningful discussions and allow for the Union to provide viable alternatives to the proposed contracting out. These are substantive rights that include an express consequence for compelling Union alternatives. The last sentence of Rule 53.5 states as follows:

If the Union can demonstrate that the work can be performed internally in a timely fashion as efficiently, as economically, and with the same quality as the contract, the work will be brought back in or will not be contracted out, as the case may be.

In all of the circumstances of this case I accept that the Company has violated Rule 53.5. The appropriate remedial result is $1,500.00 in damages to be paid by the Company to the Union.

In arriving at this conclusion it is not necessary for me to deal with the Union’s assertion that its members should have performed the work. It is not necessary for me to deal with the Union’s application to amend the Joint Statement of Issue to include the immigration issue.

I remain seized with jurisdiction to resolve any disputes that may arise out of the implementation of this decision.

It is so awarded.

DATED AT the City of Vancouver in the Province of British Columbia this 21st day of April, 1998.

(signed) VINCENT L. READY

ARBITRATOR