SHP – 462
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
(the "Company")
AND
CANADIAN AUTO WORKERS, LOCAL 101
(the "Union")
IN THE MATTER OF THE CONTRACTING OUT – POINT AU BARIL
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 involves a dispute over the contracting out of bargaining unit work at a derailment at Point au Baril, Ontario on April 7 to 12, 1997. The Joint Statement of Fact and Issue read, respectively:
STATEMENT OF FACT:
The Sudbury Auxiliary Crane was ordered on April 7, 1997 and for approximately 5 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.
STATEMENT OF ISSUE:
It is the position of the Union that:
- 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 101Therefore the Union asks that:
The Company denies the Union’s contentions and declines its claim.
The Union also seeks to amend the Statement of Fact by adding that Hulcher Services, Inc. is "a contractor brought in from the United States of America". Additionally, the Union seeks to amend the Statement of Issue by adding its position that "the Company contracted out bargaining unit work to an American Contractor in violation of Canadian Law".
BACKGROUND FACTS
On April 7, 1997, a derailment occurred on the Company’s mainline between Toronto and Thunder Bay, at Point au Baril, located approximately 75 miles to the south of Sudbury. Four locomotives and 14 cars were on the ground as a result. The Sudbury Auxiliary Service was ordered to the scene, and they were complemented with five employees from Thunder Bay, and one from Chapleau, Ontario. Company Officers assessed the site of the derailment and determined there to be a requirement for more heavy equipment. Lacroix Construction, a local Sudbury contractor, furnished 2 backhoes and 2 bulldozers. Hulcher Services, out of Toronto, provided three bulldozers. Two other outside sources, Zubick Ltd. and Fowler Inc. were also at the scene for the track restoration process. Five days after commencing work, this mainline was reopened on April 12, 1997.
RELEVANT COLLECTIVE AGREEMENT PROVISIONS
Rule 53 of the Agreement speaks to the issue of contracting out. The salient portion of this Rule, for the purposes of the present case, is as follows:
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.
DECISION
The substance of the issue in dispute is whether the Point au Baril derailment contracting out constituted a violation of Rule 53. Specifically, can the situation be characterized as an "emergency" in the sense contemplated in Rule 53.2.
In my view the situation did constitute an emergency under the provisions of the Collective Agreement. By all accounts, the derailment occurred on a key mainline. The Company moved quickly to alleviate the situation by deploying all available resources. The clean up and repair work commenced immediately after the accident and it took five straight days to complete the task. There was, effectively, no opportunity for the Company to notify the Union or make arrangements to have the work performed without outside contracted assistance. Indeed, the Company has established a practice over the years of utilizing outside contractors in emergency wreck clearing situations.
In sum, I find this was an emergency as that term is contemplated under Rule 53.2. Therefore there was no violation of the Collective Agreement.In arriving at this conclusion it is also relevant that all qualified employees from the basic seniority territory were called to the scene, plus others from Thunder Bay to Chapleau.
The fact that the contractor Hulcher Services is allegedly based in the United States is not sufficient to make a determination on the immigration issue raised by the Union. While I accept I have authority, under Weber v. Ontario Hydro (1995) 125 D.L.R. (4th) 583 to rule on the issue, it is not necessary for me to do so based on my finding that there has been no violation of the Collective Agreement per se.In all of the circumstances, therefore, the Union’s grievance must be dismissed.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