117

IN THE MATTER OF AN ARBITRATION

BETWEEN : CANADIAN NATIONAL RAILWAY COMPANY

AND UNITED TRANSPORTATION UNION

AND IN THE MATTER OF A DISPUTE CONCERNING THE ABOLITION

OF YARDMASTER’S POSITION AT ST. JOHN’S, NEWFOUNDLAND.

SOLE ARBITRATOR : J. F. W. WEATHERILL

A HEARING IN THIS MATTER WAS HELD AT MONTREAL ON FEBRUARY 11, 1983

R. T. O’Brien, R. H. Proulx and others for the Union.

H. J. Koberinski, M. Delgreco and others appearing for the Company.

A W A R D

Pursuant to Article 1.8 of the Special Agreement dated January 30, 1981, the undersigned was appointed by the Minister of Labour to arbitrate this matter.

The parties have submitted a Dispute and Joint Statement of Facts as follows :

"Dispute :

Applicability of the TerraTransport Special Agreement signed January 30, 1981 regarding the abolishment of a Yardmaster’s position at St. John’s, Newfoundland effective June 1, 1982.

Joint Statement of Facts

On May 18 and 19, 1982, TerraTransport notified Mr. T.J. Carew incumbent that effective June 1, 1982 the position of Yardmaster on the 1400 hours shift Sunday to Thursday at St. John’s, Newfoundland would be abolished.

The United Transportation Union contends that the abolishment of the Yardmaster’s position was of a permanent nature and accordingly the conditions and benefits of the TerraTransport Special Agreement are applicable.

The Company contends that the position was abolished due to a ecline in traffic and should traffic requirements improve sufficiently, the position would be re-established. Therefore, it is the position of the Company that the conditions and benefits of the TerraTransport Special Agreement are not applicable".

Mr. Carew, whose position was abolished, was laid off, apparently in conformity with Article 25 of the collective agreement in effect between the parties. That article deals with reduction in staff. No question arises in these proceedings as to the application of the collective agreement, which is Agreement 4.2.

The issue in this case is rather as to the application, in the circumstances, of the Special Agreement, and in particular of Article H.1 thereof. The Special Agreement was entered into to provide the terms, conditions and benefits for employees adversely affected by certain changes in Railway Operations in

Newfoundland. The Agreement was made pursuant to the Newfoundland Railway Services Adjustment Assistance Regulations (P.C. 1980-3423). It applies to employees having two or more years of cumulative compensated service, and Mr. Carew would appear to come within that category. For such persons the benefit levels and provisions of the Job Security or Material Change provisions of the collective agreement are suspended as long as the Special Agreement remains in effect, that is until March 31, 1985.

In various instances the railroad made changes in order to effect the rationalization of railway operations in Newfoundland. These changes included the permanent abolition of two positions of Yardmaster. It would appear that the company gave the notice required by Article H.1 of the Special Agreement in those cases.

Subsequently, on the dates referred to in the Joint Statement, notice of the abolition of his position was given to Mr. Carew. This notice was not given pursuant to the Special Agreement but was, in effect, a lay-off notice issued in the normal course under the collective agreement.

Article H.1 of the Special Agreement is as follows :

"The Company will not put into effect any change in Railway Operations in Newfoundland which will have adverse effects on employees without giving as much advance notice as possible to the General Chairman (or equivalent) representing such employees or such other officer as may be named by the Union concerned to receive such notices. In any event, not less than three months’ notice shall be given, with full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected".

The Special Agreement does not contain, as the Job Security Agreement does, any specific provision that the notice requirement does not apply in respect of changes brought about by the normal application of the collective agreement, declines in business activity, fluctuations of traffic and the like. The structure of the Special Agreement is somewhat different, however. While the Job Security Agreement calls for notice generally in case of Operational or Technological change, and then sets out exceptions, the Special Agreement calls for notice (in respect of adversely affected employees) of "any change in Railway Operations in Newfoundland".

In my view "any change of Railway Operations in Newfoundland" as that expression is used in Article H.1 of the Special Agreement, means any change of the sort contemplated by that agreement, and to the accommodation of whose effects the agreement is directed. The purpose of the agreement is set out in the Preamble thereto :

"The purpose of this Special Agreement shall be to provide the terms, conditions and benefits for employees adversly affected as intended by Regulations 4 sub-section (a) through (i), 5 (1) (a) and (b), 5 (2), 6 (a) and (b) and 7 with respect to the Implementation of Adjustment Assistance to Canadian National Railway Company and its’ employees adversly affected by changes in Railway Operations in Newfoundland".

It will be recalled that, for cases to which the Special Agreement applies, the Material Change articles of the collective agreement were suspended. In a general way, the Special Agreement may be considered as dealing with a special case of "material change", namely that of the rationalization of railway operations in Newfoundland. In that context, it can be seen that there would be no need for the exceptions to the general requirement of notice set out in the "Material Change" provisions because what is involved is a special set of permanent changes. The Special Agreement was not directed at the continuing regular railway operation in Newfoundland, and did not suspend the operation of other provisions of the collective agreement such as Article 25-Reduction in Staff, although of course in cases to which the Special Agreement applied it would, in effect, supercede such provisions.

The purpose of the Special Agreement is clear also from related Regulations providing for the funding of the benefits established under the Special Agreement. Thus the Newfoundland Railway Reimbursement Regulations, P.C. 1981-1894 contain the following :

EXPLANATORY NOTE

"(This note is not part of the Regulation, but is intended only for information purpose).

These regulations provide for the reimbursement of costs incurred by CNR and CN Marine Inc. for benefits provided to their adversely affected employees in respect of changes of a permanent nature arising from the rationalization of railway operations in Newfoundland".

In the instant case, the abolition of Mr. Carew’s position as Yardmaster was not, I find, a change "of a permanent nature arising from the rationalization of railway operations in Newfoundland". It was, rather, a change which both parties no doubt hope will be a temporary one, and arose from a decline in the volume of business. It was not a "change" in the sense of an alteration of the established structure of operations, but was a change in different sense, being simply a response to declining volumes of work, the opposite response being anticipated to declining volumes of work, the opposite response being anticipated when conditions improved. While not every potential indicator of traffic volume showed a decline in activity at the time of the lay-off, most of them did, and from the material before me it is clear that there was in fact a substantial reduction in traffic, shipments and revenues which would account for the decision to reduce staff. While this decision was, it appears, a "rational" one, it was not one taken in the course of "the rationalization of railway operations in Newfoundland" as contemplated by the Regulations or the Special Agreement made in accordance therewith.

For the foregoing reasons, it is my conclusion that the abolition of Mr. Carew’s position was not, in the circumstances, one which could call for notice pursuant to Article H.1 of the Special Agreement. Accordingly, the grievance is dismissed.

DATED AT TORONTO THIS 7th DAY OF MARCH 1983.

J.F.W. Weatherill

_____________________________

SOLE ARBITRATOR