FPSLREB Decisions

[1]     Since the two official languages were used in the documents on file and during the hearing, this decision will be published simultaneously in both languages.

[2]     When the hearing started, both parties indicated that the Public Service Alliance of Canada (PSAC) had not been called as a third party in this case. It appears from the correspondence filed with the Board in regard to a planned mediation meeting that PSAC was informed about the nature of the grievance in question on July 16, 2002. According to the Board's records, PSAC has not asked to become involved in this case.

[3]     On February 18, 2002, the grievor, Michael McMahon, filed a grievance against his employer, the Senate of Canada, indicating the following:

Assigning the scanning function of the Senate Protective Service to those out side (sic) of Bargaining Unit which is a violation of Article 29.01 of the S.P.S.E.A. collective agreement.

Immediate assignment of S.P.S.E.A. members to carry out the scanning of mail and packages at the city center location and to pay all legal costs incurred by the S.P.S.E.A. until this issue is satisfactory (sic) resolved.

(pièce E-2).

[4]     The grievance was referred to adjudication on June 3, 2002.

[5]     On January 9, 2003, the Director of Human Resources for the Senate of Canada requested simultaneous translation services for the hearing and the Board agreed to this request.

[6]     The parties agreed to conduct the hearing and presentations in any one of the two official languages, depending on the preference of the individual addressing the tribunal.

[7]     The parties each called two witnesses, Michael McMahon and Gilles Gouin for the union and Raymond Pitre and Michel Downs for management.

[8]     The collective agreement signed between the Senate of Canada and the Senate Protection Services Employees Association with an expiration date of December 31, 2003, applies to this case (Exhibit G-1). Clause 29.01 on contracting out was drafted as follows:

ARTICLE 29

CONTRACTING OUT

29.01 -

The employer will not hire employees other than those accredited as per the accreditation certificate of the Association, or any other person on contract or employee of another governmental service to assume duties presently performed by employees covered by this collective agreement, or in relation to duties to be performed in the future which are linked to the normal growth of duties presently performed by employees covered by the current collective agreement. This must not be construed as limiting the right of the Employer to hire personnel on contract as per Appendix "F", on a term basis, or to assign Senate administration personnel or employees from other organizations to Protective Service Directorate. (Exhibit G-1).

[9]     The bargaining agent filed the Referral to Arbitration Form (signed on May 31, 2002) with the Board, attaching a copy of correspondence addressed to the Clerk of the Senate (Exhibit G-4). The Employer's Counsel objected to the filing of this correspondence, which changed the grievance (Exhibit G-2) by adding clause 27.01, which deals with joint consultation, to the case. No other evidence was submitted during the hearing concerning the issue of consultation. The parties did not address the elements concerning the objection in their closing arguments. The objection is sustained since the bargaining agent can not change the issue raised through the grievance at the time of referral to adjudication, based on the principle developed in Burchill [1981] F.C. 109. Consequently, the decision will only address the issue of contracting out raised through the grievance filed with the employer on February 18, 2002.

The Facts

[10]     Since around 1993, Senate Protective Service staff have been inspecting mail and parcels brought by individuals to the various entrances of the Parliament buildings. The duties and responsibilities of Senate Protective Service staff include the inspection of mail delivered by private messengers (Exhibit E-2). Mail and parcels delivered by private messenger companies addressed to the Senate, House of Commons or Library of Parliament are received at the North Freight Door of the East Block by Senate Protective Service staff. They perform a visual inspection and electronic scanning of the items received. These employees belong to the Senate Protection Services Employees Association (SPSEA).

[11]     The Operations Manual of the Senate Protective Service sets out the specific duties to be performed at the North Freight Door of the East Block as follows:

2.106	North Freight Door - East Block
	Specific duties to be performed at the North Freight door E.B. are: verify at main desk that no mail was received during silent hours; turn on the X-ray machine, video monitor and computer work station; verify the pass-on information book; conduct a trial test of the X-ray machine to ensure it is operating and scanning correctly and record results in DOB (adjust scanner sensitivity if necessary); prepare log sheets for the day; accept, register and X-ray all in-coming packages; print name of messenger making a pick-up and then have messenger initial the entry; notify messenger service for immediate delivery of any urgent packages; permit the House of Commons transport section to use the entrance when making deliveries to the House of Commons offices; ensure that packages not picked up by messengers at the end of day are secured inside the post; once a month the supervisor will ensure the X-ray machine is opened and verified for loose envelopes that have fallen under the conveyor belt; and forward day log sheets to the Operations Centre when the post is closed for the day. If there are passes, which are still in circulation, the log sheets may be left at the main entrance to be completed when the passes are returned as the individuals leave.
[...]
4.500 -	DELIVERIES
[...]
4.503 -	Delivery Control Measures Courier deliveries destined for any of the buildings in the Senate, House of Commons precincts or Library of Parliament will only be accepted at the Senate North Freight Door of the East Block; this includes deliveries to 151 Sparks Street and the House of Commons. This does not include bulk deliveries as defined in Section 4.505 of this manual. Deliveries will be electronically scanned using the X-ray machine. Items not deemed to be suspect will be logged and then released to the messenger services of the Senate and House of Commons. Messengers are required to sign the log sheet when packages are picked up for delivery. The member on duty will provide the House of Commons messenger with a carbon copy of the master log sheet on an hourly basis. Freight log sheets are to be submitted to the Operations Centre at the end of each working day. (Exhibit G-5).

[12]     Deliveries including more than 15 individual parcels addressed differently and weighing more than 9 kg or too large to pass through the electronic scanner are redirected to the "post office", which is run by Installations Services staff at the Belfast Street building. All mail received through Canada Post is also redirected to the "post office" at Installations Services, where staff proceed with their inspection and delivery to recipients. The Public Service Alliance of Canada represents the Installations Services staff.

[13]     The second annual report of the Senate Protective Service indicated that 28,045 parcels were received and inspected at the North Freight Door of the East Block in 2000-2001 (Exhibit G-10). Moreover, according to the testimony given by Raymond Pitre (Assistant Director, Senate Protective Service), the count based on items recorded in the log book by constables indicated that 2,532 deliveries (7,121 items) were received in 1999 and that 4,094 deliveries (10,872 items) were received in 2000. A 12-month projection of items recorded in the log book for the first ten months of 2001 provides an estimate of 3,312 deliveries (9,516 items). Mr. Pitre estimates that approximately 0.1% of the duties of a constable is dedicated to inspecting deliveries at an average rate of two minutes per delivery (Exhibit E-3). At the same time, 460,200 pieces of mail received through Canada Post were inspected at the Belfast Street post office in 1999-2000 and 446,760 pieces were inspected in 2000 - 2001 (Exhibit G-11).

[14]     According to the wording of clause 26.08 in the collective agreement, the timeframe for filing a grievance starts the day after the one on which the employee was notified or made aware of the circumstances giving rise to the grievance. In September 2001, 55 constables were employed by the Senate Protective Service and worked on rotation to provide security seven days a week and twenty-four hours a day. Deliveries are received at the North Freight Door of the East Block between 8 a.m. and 4 p.m. on weekdays.

[15]     The September 11, 2001, terrorist attacks in New York City and the anthrax alerts raised the level of debate among Government of Canada managers concerning mail handling. In the interest of security, it was decided that mail would be inspected away from Parliament Hill. As of October 1, 2002, deliveries made to the North Freight Door of the East Block were re-routed to the Belfast Street building for inspection and electronic scanning. After this date, Protective Service constables would accept and inspect only those pieces of mail and parcels that were covered under a special agreement with Protective Service officials at the various entrances to buildings on Parliament Hill.

[16]     The October 29, 2001, management committee meeting minutes indicate that the proposal by Protective Service filed with management for nine additional person-years was approved. Two of these positions were for electronic mail scanning (Exhibit G-7). Mr. McMahon indicated that he was under the impression that these two new positions would be assigned to the Senate Protective Service.

[17]     At the December 17, 2001, management committee meeting, Mr. Pitre informed the participants that the Clerk of the Senate wanted all bulk deliveries addressed to the Senate to be delivered to City Centre (the Wellington Street building) for inspection and electronic scanning starting in late January or early February 2002. The two person-years approved for the Senate Protective Service would be used to create two positions in Installations Services: one for an electronic scanning agent and one for a driver (Exhibit G-8). The number of constables, which was 55 at September 11, 2001, has increased by 19 since that date due to the increase in security since then.

[18]     In his testimony, Mr. McMahon indicated that on January 10, 2002, at a meeting with a PSAC representative, he was told that the two positions had been created in Installations Services. Mr. McMahon denounced this decision to Serge Gourgne on February 12, 2002, by e-mail, alleging that this was a violation of clause 29.01 of the collective agreement covering contracting out (exhibit G-9). In his testimony, Mr. McMahon pointed out the fact that the inspection of mail by an employee holding the new electronic scanner position had started on February 16 or 17, 2002, at the Wellington Street building. A grievance was to be formally filed with the employer on February 18, 2002, regarding the decision to have the mail inspected and the electronic scanning done by individuals outside the SPSEA bargaining unit (Exhibit G-1).

[19]     On March 12, 2002, at the management-union advisory committee meeting, PSAC representatives received confirmation that the job descriptions for the two new positions (electronic mail scanning and driver) were being prepared (Exhibit G-12). At the time of the hearing, a job description for a mail clerk had supposedly been developed but not yet made public. A surplus employee had been temporarily assigned to the mail inspection position.

[20]     The employer had supposedly observed, during a survey of Canadian federal departments and agencies and Washington (U.S.A.) authorities, that in most cases mail inspection was confined to services other than security/protective services. It had decided to apply the same practice to the Canadian government and to assign the mail inspection tasks to Installations Services staff rather than to the Senate's Protective Service.

[21]     The employer indicated that the two new positions were not duties to be performed in the future which are linked to the normal growth of duties currently performed by Senate Protective Service staff with regard to the inspection of mail prior to October 1, 2001. The Clerk of the Senate estimated that from four to five million pieces of mail would be inspected by electronic scanning annually by employees assigned to the two new positions in Installations Services (Exhibit G-3).

Arguments

[22]     The bargaining agent submitted that the facts in this case clearly show that the grievor had tasks removed; namely, performing the mail inspection and electronic scanning tasks in regard to items addressed to the House of Commons, Library of Parliament and Senate and delivered by private messenger companies to the North Freight Door of the East Block. The task was completely transferred from the constables in the Senate Protective Service as of the end of January or early February 2002 and assigned to employees in Installations Services. Since Installations Services employees are represented by the Public Service Alliance of Canada, the task was assigned to employees outside the group comprising the bargaining unit covered by the Senate Protection Services Employees Association. This move by the employer was in direct contravention of clause 29.01 of the collective agreement.

[23]     Clause 29.01 also stipulates that all duties to be performed in the future which are linked to the normal growth of duties currently performed by Senate Protective Service staff must be assigned to employees covered by the Senate Protection Services Employees Association. According to clause 29.01, the new mail clerk duty should be taken on by a constable in the Senate Protective Service since the inspection and electronic scanning of all mail in the City Centre building represents an increase in the tasks of inspection and electronic scanning of mail delivered by private messenger companies until February 2000.

[24]     Consequently, the adjudicator should find that the employer breached clause 29.01 of the collective agreement by giving the inspection and electronic scanning of mail delivered by private messenger companies to an employee outside the SPSEA as of February 2003. Moreover, the adjudicator should find that the new mail clerk position constitutes an increase in the tasks performed by SPSEA members in terms of the tasks related to the inspection and electronic scanning of mail delivered by Canada Post.

[25]     According to the evidence presented, mail inspection and electronic scanning are security-related duties and it is abnormal to have it given to people who are not trained and have no expertise in this area. Indeed, should the mail clerk find something suspect while inspecting the mail, he/she would have to notify Protective Service. The latter is the one that will be able to take action in such a case, which shows that this is a duty fundamentally related to security.

[26]     According to the principles set out in the case law and indicated in Canadian Labour Arbitration by Brown and Beatty, the employer's power to manage is limited by clause 29.01 of the collective agreement.

[27]     According to the principles set out in paragraph 5: 1200 ("Bargaining Unit Work") of this book, the duties are protected and the time allocated to their performance is not relevant. Paragraph 5: 1300 indicates that the employer may not renege on its commitment.

[28]     Moreover, since the work has been transferred to employees of another section (Installations Services) from Parliamentary Precinct Services (to which Protective Service reports), the situation must be treated as a case of "contracting in". As indicated in paragraph 5: 1 400, the employer would not be able to transfer such a duty and this prohibition is absolute. Moreover, the employer could not create a new position if the duties are of the same type as or similar to the duties assumed by SPSEA employees.

[29]     According to paragraph 5: 1 500 of Canadian Labour Arbitration (supra), the adjudicator may order that the work be returned to employees of the SPSEA and may also order the employer to pay union dues lost by the Association as well as order the employer to assume the union's legal costs.

[30]     The employer submits that the grievance presented at the first level on February 19, 2002, is outside the allowed timeframes. According to Mr. McMahon's testimony, he was informed by a PSAC representative at a meeting held on January 10, 2002, that the two positions (mail clerk and driver) had been assigned to Installations Services. The grievance was presented at the first level after the 25 days following the day when the employee was notified or made aware of the circumstances giving rise to the grievance, as indicated in clause 26.08 of the collective agreement, which reads as follows:

26.08 -

An employee may present a grievance to the first level of the procedure, not later than the employee's twenty-fifth (25th) working day after the date on which he is notified orally or in writing, or on which he first becomes aware of the action or circumstances giving rise to the grievance.

[31]     The calculation made pursuant to clause 26.24, excluding Saturdays, Sundays and holidays places the 25th day on February 14, 2002.

[32]     According to the bargaining agent's representative, the grievance was presented within the 25 days since the mail inspection effectively started on February 16 or 17, 2002, at the Wellington Street building. Moreover, the employer had forgone raising the issue of the timeframes by failing to raise it at the various levels of the grievance procedure.

[33]     In terms of the grounds for the grievance, the employer submits that the main duties of a constable include controlling access and movement within the buildings (Exhibit E-2) and that one of the many ways available to him/her to accomplish this is mail inspection. Electronic scanning of the mail is not among the items listed among the means found in the position summary. The employer, in having mail delivered by private companies inspected by the installations Services, is affecting a minute portion of the tools used to accomplish their duties and they continue to ensure the control and access to buildings. According to the assessments done by Mr. Pitre (Exhibit E-3), the constables have not lost a substantial part of their tasks or duties in relation to the control of access to buildings.

[34]     Therefore, the employer has respected the first part of clause 29.01, which prevents the assignment of tasks or duties currently performed to someone other than a constable. Indeed, the constables continue to inspect the mail received at the various entrances to the buildings on Parliament Hill.

[35]     With respect to the second part of clause 29.01, which prevents the transfer to others of duties to be performed in the future which are linked to the normal growth of duties currently performed by constables, it should be noted that the inspection of mail delivered by Canada Post may not be included in this category. The inspection of Canada Post mail was done by Installations Services employees prior to September 11, 2001. Thus, the new mail clerk position cannot comprise tasks and duties that could be deemed growth in the tasks and duties assumed by constables.

[36]     Nothing in the collective agreement prevents the employer from creating a new position whose tasks or duties are essentially mail inspection, including electronic scanning. This task or duty is not related to a protective element and is not assigned to Protective Service in other Government of Canada departments or agencies.

[37]     It is not within the adjudicator's jurisdiction to award the damages claimed by the bargaining agent's representative. There is nothing within the collective agreement or the Parliamentary Employment and Staff Relations Act to support this claim.

Reasons for decision

[38]     The employer submitted that the grievor presented his grievance outside the 25 days provided in clause 26.08 of the collective agreement, since Mr. McMahon had indicated in his testimony that he had been informed that the two positions created for mail inspection had been assigned to Installations Services at a meeting with a PSAC representative on January 10, 2002.

[39]     The evidence shows that Mr. McMahon was made aware that the mail clerk and driver positions would be created within Installations Services at the December 17, 2001, management committee meeting (Exhibit G-8) attended by Senate Protective Service managers; this would have been before January 10, 2002.

[40]     However, Mr. Bastien, who represents Mr. McMahon, submitted that the employer did not raise the matter of the timeframes at the first level of grievance and had thereby waived it as an issue.

[41]     In Beers v. Treasury Board (Department of National Defence) 2000 PSSRB 2 (Board file 166-2-27071), Board Member McLean raised the theory of waiver discussed by Brown and Beatty in Canadian Labour Arbitration:

In Canadian Labour Arbitration (3d), Brown and Beatty outline the doctrine of "waiver" (at paragraph 2 : 3130, page 2-94), as follows:

The concept of "waiver" connotes not insisting on some right, or giving up advantage. It involves both knowledge and intention to forgo (sic) the exercise of such a right. In its application, it is a doctrine which parallels the one utilized by the civil courts known as "taking a fresh step", and holds that by failing to make a timely objection and "by treating the grievance on its merits in the presence of a clear procedural defect, the party "waives" the defect". That is, by not objecting to a failure to act within mandatory time-limits until the grievance comes on for hearing, the party then objecting will be held to have waived non-compliance and his objection to arbitrability will not be sustained.

[...]

[42]     Board Member McLean agrees with the conclusions in Kettle (Board file 166-2-21941) and Sauvé (Board file 166-2-26974), as follows:

     I agree with the decisions in Kettle (supra) and Sauv (sic) (supra). I believe that the occasion for an employer to raise a timeliness objection is during the grievance procedure. It is too late once the case is ready for adjudication. If an employer fails to object in the grievance procedure, it can be deemed to have waived its right to object to the timeliness of the grievance. It seems to me that an issue of timeliness on the presentation of a grievance ought to be raised at the earliest opportunity, and that is during the grievance process. That is where the parties are supposed to explore all issues that arise around the grievance. The purpose of the grievance process is to focus on and canvas all issues that are readily apparent. Otherwise, the party failing to do so may be taken to have condoned and overlooked the failings in the adherence to the time limits in the collective agreement. The matter that is referred to adjudication includes both the grievance and the procedural issues that the parties raise in the grievance process.

     I further reject the characterization of the timeliness issue as one that goes to the jurisdiction of an adjudicator. In my opinion, the issue of timeliness is not a jurisdictional matter. Rather, it is a procedural issue that can be waived by either party expressly, or by implication, when a party fails to raise the objection during the grievance process.

[...]

[43]     In this case, it appears that the employer informed Mr. McMahon that the new positions related to mail inspection would be assigned to Installations Services at the December 17, 2001, management committee meeting. Thus, the employer recognized the exact date of the start of the timeframe set out in clause 26.08 of the collective agreement and could not ignore that the grievance presented on February 18, 2002, was outside the timeframe. By failing to raise this issue during the grievance procedure, the employer would waived the right to invoke failure to respect the deadline.

[44]     Based on the principle established in the above-noted decisions, I consequently dismiss the employer's arguments concerning the issue of failure to respect the timeframes and I now turn to the assessment of the grievance on its merits.

[45]     The evidence shows that the constables employed by the Senate of Canada who are members of the Senate Protection Services Employees Association (SPSEA) were responsible for performing the inspection of mail delivered by private carriers (other than Canada Post) and addressed to the House of Commons, Library of Parliament and Senate. The duties listed in the job description filed as Exhibit E-2 specifically include the inspection of mail received from private messengers. The operations manual filed as Exhibit G-5, in fact, indicates that the duties related to mail inspection and electronic scanning are performed at the North Freight Door of the East Block. All of the testimonies provided at the hearing corroborate the fact that the constables had taken on these responsibilities from 1993 to October 1, 2001. At this time, following the September 11, 2001, terrorist attacks in the United States and the subsequent anthrax scares, an emergency decision was made to have the mail inspected outside Parliament Hill as a security measure.

[46]     It was not until February 16 or 17, 2002, that a new mail inspection position was introduced to inspect and electronically scan all mail addressed to the Government of Canada. After this date, the mail scanning clerk would inspect the mail, including that which had previously been inspected by Senate Protective Service constables at the station located at the North Freight Door of the East Block. The new mail inspection position is located in the Wellington Street building (a.k.a. City Centre).

[47]     Duties under clause 29.01, which reads: "to assume duties presently performed by employees covered by this collective agreement", are the subject of this clause pertaining to contracting out. The parties worded this clause so as to include all of the tasks and duties assumed by the employees since they did not limit its application to the tasks and duties assumed for a significant (or any) portion of the overall responsibilities. I cannot accept the employer's argument that this clause should not apply because the responsibilities associated with mail inspection represented a minute part of the constables' responsibilities. Moreover, in the Operations Manual, I see that the duties related to mail inspection at the station located at the North Freight Door of the East Block represent most of the responsibilities that need to be assumed and thereby constitute a substantial portion of this position.

[48]     Thus, the duties involving the inspection of mail received from private messengers and addressed to the House of Commons, Library of Parliament or Senate are covered under clause 29.01 of the collective agreement and the fact that the grievor was part of the certification held by the SPSEA is not contested.

[49]     The obligation specified in clause 29.01 with regard to the employer is clear and unambiguous in forbidding it from using any employee other than one belonging to the SPSEA or any contract worker or employee from another government organization. By using employees from Installations Services to inspect the mail delivered by private messengers, the employer has violated on two counts the obligation regarding the contracting-out clause: employees in Installations Services are represented by PSAC, not the SPSEA, and these employees work for a government service other than Protective Service.

[50]     It is not relevant for the purposes of this case to determine whether mail inspection is a protective task or duty that could not be given to employees other than those in Protective Service because of their specific expertise, since it is enough to note that they were assumed by employees covered under the SPSEA pursuant to clause 29.01 of the collective agreement. Moreover, the finding of the "protective" nature of mail inspection is linked to a staffing element that is outside the jurisdiction of the adjudicator assigned pursuant to the Parliamentary Employment and Staff Relations Act.

[51]     In Re Canadian Air Lines Employees' Association and Air Canada 23 L.A.C. 406, the adjudicators summarized the Canadian case law with regard to the right to contract out as follows:

There is a wide dichotomy in interpretation of contracting out rights of management between the United States and Canada. Elements in the Canadian situation have tended to uphold a rigorous legal interpretation of this problem and the majority of arbitrators in Canada have maintained the residual rights theory. Collective bargaining, therefore, in the Canadian context, must take into account the normal climate of industrial relations germane to the jurisdiction in which it operates. This implies that both management and unions have a similar expectation of the interpretation given to contracting out situations in the Canadian milieu. There has been a considerable body of jurisprudence in this area. Therefore, reliance on the U.S. approach had to be rejected by the chairman.

It seems to the chairman that in negotiating an agreement in Canada, both parties would have a fairly accurate expectation of the position taken by arbitral decisions in the event of disagreement or that a company, in negotiating an agreement would not willingly forego its rights to contract out services if it considered it necessary to do so in the conduct of its business.

This accepted interpretation of contracting out rights has not changed substantially in Quebec, for example, since 1941 when, in Hôpital du Sacré-Coeur de Cartierville et le Syndicat des Employés d'hôpitaux de Montréal [unreported], Mr. Justice Antoine Lamarre stated: "The right of management (under a usually worded clause recognizing management's right to manage and direct the Hospital in a manner compatible with the other clauses of the agreement) is declared to be absolute, since there is no clause in the agreement limiting its exercise." [page 416]

In 1959, in a case involving dock pumping operations at an oil company, Re Oil, Chemical and Atomic Workers Int'l Union, Local 16-618, and Canadian Petrofina Ltd. (1959), unreported, the union saw the narrowing down of the larger pumping department of which the dock section was an integral part, and whose personnel it had been certified to represent. The company stated that the act of contracting out had been carried out within the scope of management's rights and responsibilities and that it was its absolute right to proceed as it did. The majority of the board under the chairmanship of Mr. Justice André Montpetit stated: We believe that an employer, whoever he may be, is entitled to make a change such as the one which occurred here, namely, to hand over to a subcontractor the operation of a portion of its industrial enterprise. We also believe that the employer when he adopts such a change is not obliged to justify it. Whether he be right or wrong is not per se a matter of grievance or dispute falling within the jurisdiction of an arbitration board.

In a further extension of this reasoning, Judge René Lippé ruled in Le Syndicat national des employés de l'Aluminum (sic) d'Arvida Inc. et L'Aluminum (sic) Company of Canada Ltd. (Arvida) [(1960)], unreported]:

The right to contract out is inherent in the right to manage the plants, as defined in the management rights clause. An express limitation to the right to contract out is imperative if the company is to be denied this right of action.

Thus, in summary, the majority of awards rendered in the Common Law Provinces of Canada and all the Quebec ones reviewed by the chairman of the arbitration board, reasoned that an express prohibition is needed in the agreement if management is to be denied this particular form of directing the establishment.

[...]

[52]     I agree with the position that the right to contract out is inherent in the employer's right to manage and cannot be limited other than through an express provision in the collective agreement.

[53]     This approach was upheld in more recent decisions. The arbitrator, W.A. Marcotte, indicated the following in Re Stelco Inc., Hilton Works and United Steel Workers of America, Local 1005 [2002] 104 L.A.C. (4th) 111:

In Re Alcan Smelters and Chemicals Ltd and C.A.S.A.W., Lee 1 (re) ([1987], 28 S.S. L.A.C. (3d) 353, 6 C.L.A.S. 2), (supra), the union grievances challenged the employer's decision to contract out mechanical work involving the repair of two "low priority" vehicles where, at p. 353, "Maintenance and repair of the fleet is performed primarily by the mobile equipment maintenance department", which departmental members repaired although not on every occasion, the type of vehicles at issue. In the context of a discussion of the express provisions of the contracting-out collective agreement provisions before him, arbitrator Hope states at pp. 363-4, as follows:

     Where an employer agrees to restrict its rights to contract out, it will be accountable for the full scope of limitation consistent with the language to which it has agreed. That is, while unions must bargain to achieve limitations on contracting out, employers must ensure that where they have agreed to limitations in clear language, any exceptions upon which the employer intends to rely must be expressed in language that accurately defines the exception. Where the parties have expressed a general restriction on contracting out in clear language, an employer cannot expect that an arbitrator will invoke a strict approach to the interpretation of the language to favour any exceptions relied on by the employer.

.....

     ... a union has no inherent right to claim jurisdiction over work and, conversely, an employer has a residual right to have work performed in any manner it pleases provided it is not in breach of some provision of its collective agreement with the union. Hence, when a union wants to rely on some restriction on the exercise of a residual right by the employer, it must be able to bring itself within the language of a restriction it has negotiated.

Relevant for our purposes, arbitrator Hope noted the proper arbitral approach to determining the matter at hand, i.e., in order for a union to claim improper contracting out of work, there must be a clear restriction on the Company's residual management right to determine what work will be performed by bargaining unit members and what work may properly be performed by way of contracting out. Thus, in determining whether an improper or proper contracting out of work has occurred, the specific language of a collective agreement must be examined for purposes of making that determination, in the instant case Item 13 of the parties' collective agreement

[54]     I agree with the arbitrators' positions expressed in these cases and conclude that, in this case, the collective agreement is very precise in its restriction of the employer's managerial rights with regard to assigning tasks performed by members of the SPSEA to other employees who are not represented by this union.

[55]     The notion of contracting out was applied in cases in which the duties were transferred from an employee belonging to one bargaining unit to another employee belonging to another bargaining unit. Arbitrator Weatherill, in Re S.D.D. Co. and C.A.W. Local 89 (1998), 33 L.A.C. (3d) 381 indicated his thoughts on this matter as follows, these having been adopted by the arbitrator in Re Condor Lamination and Toronto Typographical Union, Local 91, [1990] 15 L.A.C. (4th) 286. The collective agreement language read as follows:

1.02

The company agrees that during periods of lay off it will not enter into any new sub-contracts of work of the type normally performed by members of the bargaining unit when the effect of the sub-contract would be to take work away from bargaining unit members and cause or prolong a lay-off. During such periods the Company will review existing sub-contracts for the purpose of determining what work can practically be returned to the plant. It is also understood, however, than nothing in the fore-going policy statement is intended to (1) limit the management's right to discontinue a service, an operation or the manufacture in the plant of a product or part and to purchase it from an outside source or (2) to preclude giving effect to time requirements, costs, or availability or equipment... Arbitrator Weatherill found that for the purposes of the grievance, the same company operated both plants, or at least that the two operations were under the same ownership. Nevertheless, he found that it did not logically follow that there had been no new subcontract of the work in question. At p.4 of the award he stated: "Without relying on the technicality of the existence of a separate, if related, corporate entity, it is my view that art. 1.02 would apply even to the transfer of work to another division of the same employer. The purpose of art. 1.02 is clear, and it is to protect the employment of members of the bargaining unit on the jobs which they have come to consider 'theirs' - subject, of course, to the qualifications set out. It is of no benefit to an employee in the bargaining unit to know what work normally performed by him is being performed by a fellow employee in another bargaining unit. Once the work is given to someone outside the bargaining unit the loss of the bargaining unit employee is the same, whether the work be performed in another country, by employees of an unrelated employer, by organized or unorganized workers, or, as in the instant case, by employees of what we may assume to be the same employer. What was done constituted a 'subcontract' within the meaning of art. 1.02." In our view, the analysis propounded by Mr. Weatherill in the Moffats case is the correct analysis of what contracting out means in a labour relations context. We say this despite the fact that it was the same arbitrator who decided the SKD case some 17 years later, wherein he adopted, without analysis, the statement in the Coca-Cola case that "contracting out is understood to be the practice whereby one employer arranges to have a second employer perform work on its behalf".

[56]     I agree with the reasoning of Mr. Weatherill, which must be applied to this case. By assigning the inspection of mail, which had previously been done by Protective Service staff, to Installations Services staff, the employer was contracting out within the meaning of clause 29.01 of the collective agreement.

[57]     Within the very specific context of the wording of clause 29.01 of the collective agreement, I conclude that the transfer of tasks and duties related to the inspection of mail delivered by private messengers and addressed to the House of Commons, Library of Parliament and Senate were assigned to Installations Services employees as of February 16 or 17, 2002, in contravention of the collective agreement.

[58]     Consequently, I order the employer to reassign the tasks and duties related to the inspection of mail delivered by private messengers and more specifically described in paragraph 2.106 of the Operations Manual of the Senate Protective Service (Exhibit G-5) to constables represented by the SPSEA.

[59]     These tasks and duties may be performed at locations other than the North Freight Door of the East Block, since clause 29.01 of the collective agreement does not restrict the employer's right to determine the exact location where the tasks and duties will be performed.

[60]     Since the tasks and duties pertaining to the inspection of mail from Canada Post were assigned to employees other than those covered by the accreditation certificate held by the SPSEA, for any period of time applicable to this case I cannot consider them as "duties to be performed in the future which are linked to the normal growth of duties presently performed by employees covered by the current collective agreement", as specified in clause 29.01 of the collective agreement.

[61]     It has not been shown that the employer acted in bad faith by deciding as it did to create the new mail inspection position and assign the duties to Public Service Alliance of Canada members. Although failure to respect clause 29.01 of the collective agreement seems clear, I cannot deduce any evidence of bad faith. Consequently, there can be no order for damages in the form of honorariums or otherwise for damages, plus interest, based on the decision by Vice-Chairperson J.W. Potter in Chénier 2003 PSSRB 27 (Board files 166-2-30887 and 30888).

[62]     I will not allow the bargaining agent's request to order the employer to pay the equivalent of the union dues that may be associated with the mail inspection positions at Installations Services to the SPSEA. I consider that no evidence has been provided to show that the SPSEA would have lost union dues. Since the incidents leading up to the grievance, the number of constables employed by Senate Protective Service has increased by 19 employees, from 55 to 74 according to the evidence.

[63]     I will retain jurisdiction over this file until September 1, 2003, in case the parties run into difficulties in implementing this decision.

Léo-Paul Guindon,
Board Member

OTTAWA, June 23, 2003.

PSSRB Translation