AH – 82
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS TELECOMMUNICATIONS DEPARTMENT
CANADIAN TELECOMMUNICATIONS UNION DIVISION NO. 43
IN THE MATTER OF A GROUP GRIEVANCE
ARBITRATION BOARD Professor W. B. Rayner - Chairman
S. E. Dinsdale, Q.C. - Company Nominee
C. W. Pethick - Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
And on behalf of the Union:
J. Sack – Counsel
A hearing in this matter was held at Toronto, Ontario on 28 March 1974.
In this grievance, the Union alleges that the Company violated Article 8 of an Agreement entered into between the parties entitled: Job Security-Technological, Operational, Organizational Changes. Article 8 provides in part that:
The Company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effects on employees without giving as much advance notice as possible ... to the Union.
Thereafter the Article provides for specific periods of notice in given instances and provides that the parties are to negotiate on items arising because of the changes put into effect. The Agreement referred to above is incorporated into the Collective Agreement pursuant to Article 14 thereof. There was no question that the Collective Agreement was in force at the relevant time and the parties agreed that the present Board was siting as a Board of Arbitration under the Collective Agreement and not as a Board of Review under Article 8 of Job Security Agreement.
The facts giving rise to this grievance were not seriously in dispute. In August of 1972, the Company changed the headquarters location of a number of employees in the Quebec district. Approximately 12 employees were involved. In essence, the action of the Company was to change the headquarters of the employees involved from the towns in which they resided to the radio site where they did the bulk of their work.
The Union called two witnesses, Mr. Thibeault and Mr. Berthiaume. Both of these witnesses testified as to what adverse effects this change had. It was agreed by the parties that the adverse effects, if any, on these two employees were typical of the effects suffered by all other employees.
The Board does not propose to review all of the evidence of both Union witnesses by several relevant points can be distilled from the evidence. In the first place, the net effect of the change if headquarters location had little, if any, impact or effect on the operations carried out by the men. The operations of the employees were the same before and after the date in question. However, the employees did suffer some consequences from the change. For example, in the case of Mr. Thibeault who lived at Rivière du Loup, the change could affect him in possible three ways, Prior to the change of headquarters, Mr. Thibeault’s headquarters was at Rivière du Loup. Accordingly, when he went to the radio site (now the present headquarters) he was entitled to mileage from Rivière du Loup to that site. Moreover, he was entitled to a lunch allowance when he was forced to have lunch at a village neat the site. Finally, the grievor was paid from the time he arrived at the station in Rivière du Loup. Since the change in headquarters, the grievor theoretically would not be entitled to mileage (although this is not a serious problem for this particular grievor since there is a Company vehicle in use), is not entitled to a lunch allowance at his headquarters (now the radio site) and theoretically is to be paid only from the time that he arrives at the radio site (although this too may not be a serious problem for this grievor as apparently he is paid from the time that the enters the Company vehicle in Rivière du Loup). Some or all of the effects on Mr. Thibeault would of course be felt in greater or lesser degree by other employees affected by the change.
The Company purported the change of headquarters pursuant to article 6.9 of the collective agreement which provides:
6.9 (a) When the headquarters location of a position is moved, the occupant will have the option of moving with the headquarters or declining. In the latter event, the original position will be abolished and the new position and headquarters location bulletined on the District. The General Chairman will be advised of any changes in headquarters location.
In the instant case, the employees accepted the move of headquarters but under protest.
Finally, it should be pointed out that the change made by the Company, according to the evidence of one grievor with respect to another location, brought the four locations in question into line with locations in other parts of the Province of Quebec.
The issues before the Board, simply put are as follows:
1. Was the change of headquarters a "technological, operational or organizational change" within the meaning of article 6 of the Job Security Agreement.
2. If the change of headquarters did prima facie fall within article 8 of the Job Security Agreement, was the operation of that agreement preempted by the particular wording of Article 6.9 of the Collective Agreement, i.e. is article 6.9 of the Collective Agreement more specific than Article 8 of the Job Security Agreement and if so, does the specific override the general in this instance?
In the Board’s opinion, the change made by the Company is not a "technological, operational or organizational change" within the meaning of Article 8 of the Job Security Agreement.
In reaching this conclusion, the Board has not failed to consider an earlier decision made by a Board of Arbitration chaired by Professor Paul Weiler involving the same parties. In that case, Article 8 was also under examination, although the wording of the Article was somewhat different in that the Article required be changed to affect a "material change" in working conditions. In that case, the Company changed a day shift to a night shift with a subsequent decrease in employees and the board concluded that the Article was applicable but in so doing, indicated that "the situation is a close one". It should be remembered of course in so stating, the Board was concerned with the impact of the word "material". On the mere change in wording this decision is distinguishable from the present case. However, the Board is of the opinion, quite apart from the Weiler award, Article 8 has no application to the present facts.
In the Board’s opinion, no technological change took place. The men carried on their duties precisely in the same way after the change of headquarters as they did prior to the change. Accordingly, the Board is also of the opinion that there has been no operational change implemented by the Company. Perhaps the strongest argument that can be made is that what occurred was an organizational change and if the word "organizational" was considered simply without reference to the rest of the Memorandum of Agreement, some support for the Union’s position could be found. However, it should be remembered that this Memorandum of Agreement relates to the job security as affected by technological, operational and organizational changes. The provisions of the Agreement in general deal with the training, relocation and assistance to employees affected in an adverse way with respect to job security.
Mr. Sack suggested in argument that job security does not only become an issue when an employee loses his job. The Board accepts the argument of Mr. Sack that Article 8 may well come into operation without the actual loss of jobs. Nevertheless, the meaning to be given to technological, operational and organizational as used in that Article must be coloured by the context in which the words are found. In the Board’s opinion , the question of whether a change within the ambit of Article 8 has occurred with adverse effects to employees within the meaning of that Article is a question that must be decided on the facts of each particular case. In the instant case, the Board cannot conclude that the mere change of headquarters, without any real change in the carrying on of the operations, a change which brings the grievors in line with other employees in the Province, and a change made pursuant to article 6.9 of the Collective Agreement is a change affecting job security that would call into play Article 8. Accordingly, the Board need not concern itself with the second issue, viz., whether Article 8 has any application to a change of headquarters contemplated by article 6.
As a result then, the grievance is hereby denied.
DATED AT LONDON this 10th day of June 1974.
(Sgd.) W. B. Rayner
I Concur I Dissent
(Sgd) S. E. Dinsdale (Sgd) C. W. Pethick
Company Nominee Union Nominee
COMMENTARY: The case involved a change in headquarters, from the community in which they resided to the adjacent radio site where they performed the bulk of their work, of certain employees on the Quebec District. The Company implemented the change pursuant to provisions of Article 6, clause 9 (clause 11 of the 1 November 1972 issue of the Agreement). The grievance held that implementation of the change constituted violation of Article VIII of the Job Security Agreement.