AH 126

IN THE MATTER OF AN ARBITRATION

BETWEEN: CANADIAN PACIFIC LIMITED

AND: UNITED TRANSPORTATION UNION

AND IN THE MATTER OF A DISPUTE RELATING TO THE APPLICATION OF A

SPECIAL AGREEMENT MADE PURSUANT TO THE RAILWAY PASSENGER SERVICES

ADJUSTMENT ASSISTANCE REGULATOINS TO 17 EMPLOYEES AT NORTH BAY.

SOLE ARBITRATOR: J.F W. Weatherill

A hearing in this matter was held at Montreal on September 16, 1983.

©u26rL.C. Arnold for the union

©u28rD.W. Flicker for the company

A W A R D

The undersigned was appointed by the Minister of Labour to be sole

arbitrator in this matter pursuant to Article K8 of the Special

Agreement between these and other parties dated July 7, 1978. The

appointment was made on March 16, 1983.

The grievance in this matter is set out in a letter dated March 1,

1982, from the Local Chairman of the union at North Bay. It is as

follows:

This grievance procedure is in connection with

incumbency as stated in "Special Agreement"

between C.P. Rail and the U.T.U.(t) concerning

changes in Railway Passenger Service.

In all there are sixteen C.P. Rail trainmen who

feel this agreement is being violated by means of

their names not appearing on, or being deleted from

the recognised list of Jan. 12, 1982, of men

qualifying for an incumbency as outlined in the

agreement.

The Special Agreement states that it will apply to

employees adversely affected by changes in Railway

Passenger Services. These men have certainly been

adversely affected as, were it not for the VIA

passenger trains being cut off on Nov. 15, 1981,

they would be holding permanent or relieving turns

in either the East or West Freight Pools, as

opposed to being set back to the spareboard or

Yard service.

According to Article E, Maintainance of Employees

Earnings, Para. 2, "the basic weekly pay of an

employee whose position is abolished or displaced

shall be maintained by payment to such employee of

the difference between his actual earnings in a

four week period and four times his basic weekly

pay" which is determined by an average of the

previous 52 weeks earnings. Para. 4 further

states "pawment of an incumbency will continue to

be made as long as the employee's earnings in a

four-week |neriod is less than four times his basic

weekly pay."

There is no question that the basic weekly pay of

these men was substantially reduced starting Nov.

15, 1981, due to the changes in the Passenger

Services and will continue to be significantly

less.

An investigation of money made by these men will

verify this claim, and consequently, their names

should be added to the list of those entitled to an

incumbency pay by VIA Rail.

Attached to the letter is a list of persons who " were in permanent

and temporary positions in the West Freight Pool and were reduced to

spareboard and yard positions". The list contains sixteen names.

Among them is that of D.R. Emond. The name of R.J. Leppan, the Local

Chairman who signed the grievance, is not among those listed. In the

course of discussions regarding the grievance, the name of C.J. Dagg

was raised, and his situation discussed. He has since been treated

as though he had been named in the grievance and is thus the

seventeenth person referred to in the reference to arbitration.

In the course of the grievance procedure, the company, acknowledged

that Mr. Emond was a person entitled to benefits, and benefits have

been paid to him pursuant to the Special Agreement. There appears to

have been no formal settlement of the grievance in respect of Mr.

Emond, and in my view the appropriate disposition of that aspect of

the matter is to allow the grievance insofar as it concerns Mr.

Emond, and to declare that he is entitled to benefits pursuant to the

Special Agreement. There is no issue raised as to the extent of the

benefits to which he is entitled.

At the hearing of this matter, the union sought two amendments to the

grievance, one particular in nature and the other in general form.

The particular amendment sought was to add the name of Mr. Leppan to

the list of those covered by the grievance. It was argued that since

the letter setting out the grievance had been signed by Mr. Leppan,

he would be considered as included within the scope of the grievance.

Clearly, however, Mr.Leppan filed the grievance in his capacity as

Local Chairman, and for the benefit of sixteen trainmen "in all", who

were listed in an appendix to the grievance. There would be no

reason to consider Mr. Leppan as one of the persons intended to be

covered by the grievance, and his case does not "appear to have been

dealt with in the course of the grievance procedure. The addition of

Mr. Dagg's name brought the list to seventeen, and it is the dispute

relating to the claims of those seventeen employees that was referred

to me by the Minister of Labour. This is not, my view, a case

in which the grievance should be amended by the addition of Mr.

Leppan's name, and I do not consider that I have jurisdiction to do

so.

The general amendment sought by the union was to extend the scope of

the grievance so that it would cover all those who might come within

the scope of the term "adversely affected" for the purposes of the

Special Agreement. That is, it is urged that the list of "grievors"

be considered open, and that the benefit of a favorable decision be

extended to all those who might subsequently be determined to be

entitled to benefits. The grievance, however, was not filed as a

"policy" grievance, and while there is of course a question of

principle involved (in that each person's entitlement depends on his

being determined to be a person "adversely affected" by the change in

question, and that the interpretation of that phrase is in issue) ,

nevertheless, each case was considered on its own facts in the course

of the grievance procedure. The dispute relating to those seventeen

claims is what is before me. It may well be that a determination of

the question of principle would assist with respect to the

disposition of other cases, but it cannot be said that all potential

grievances are therefore before me, and in my view it would be Proper

- and again, I consider that I lack jurisdiction to do so - to amend

the grievance to that effect.

As will be seen from the letter of grievance set out above, it is

claimed the naimed employees were entitled to an "incumbency"

pursuant to Article E of the Special Agreement. Article E 1 of the

Special Agreement provides that "The basic weekly pay of an employee

whose position is abolished or who is displaced shall be maintained"

in accordance with the provisions of the article. Other articles of

the Agreement provide for benefits of one sort or another for " an

affected employee whose position is abolished or who is displaced and

would otherwise be laid off" (Article A); for "An affected employee

who has been laid or or is required to relocate or is required to

suffer a substantial reduction in his earnings" (Article C) ; for "An

affected employee who is required to relocate" (Article D), and the

like. In every case these benefits are provided in circumstances

contemplated by the Preamble to the Agreement, which provides, in

section (i) thereof, as follows:

i) The purpose of this Special Agreement shall be to

provide the terms, conditions and benefits for

employees adversely affected as intended by

Regulations 4, Sub-section (a) through (i) , 5

(1) (a) and (b) , 5 (2) , 6 (a) and (b) and 7 of

the Railway Passenger Services Adjustment

Assistance Regulations.

The Railway Passenger Services Adjustment Assistance Regulations were

nade at the time, of a rationalization of railway passenger

services, or as the title to the Special Agreement puts it, "changes

in Railway Passenger Services made in accordance with Government

initiatives". The Regulations contemplated that the railway

companies would provide certain benefits for employees "adversely

affected" by such changes, although there was no definition of that

phrase.

Following earlier notice, there was a substantial reduction in rail

passenger service effected on November 15, 1981. In particular, the

service between Chapleau and Ottawa, via North Bay, was greatly

reduced. Some fifteen positions were abolished. The company states

that the positions abolished were those of five trainmen, five

conductors and five baggagemen. The union asserts that there were

seven engineers and eight trainmen. It is not necessary to resolve

these differing views of the facts, since the abolition of those

positions, whatever they were, is not in issue. Whether or not the

individuals involved in the abolition of positions on November 15,

1981 were persons "adversely affected" by the changes in rail

operations, the grievance before me does not appear to relate to

those persons.

In January, 1982, the company identified certain employees

(presumably either the incumbents of the abolished positions or

employees displaced by them or as a result of their displacing

others, although the point is not material to this case), as having

been adversely affected by the changes in passenger service. These

persons were paid benefits. On December 10, 1981, the Local Chairman

had written the company, stating that "the full extent of these cuts

has fully surfaced now, showing not only layoffs, but also men forced

into lower paying jobs". It may be that those so referred to were

those for whom benefits were paid.

As to the persons referred to in the grievance (filed on March 1,

1982), it is the company's position that they are not "adversely

affected" by the changes in railway operations involved in this case,

because they were not displaced from permanent positions as a result

of the changes. The company, it should be said, does not contend

that benefits would only accrue to those employees affected as of the

date of the change: an employee holding a permanent position but

absent on leave at the time would be "affected" by the abolition of

his position even if the effect were not felt by him while he was on

leave. It would, as the company acknowledges, take some time for the

"adverse effects" of a change to surface.

Notwithstanding that, however, it was argued that the employees

contemplated by the Special Agreement (and by the Regulations) as

"adversely, affected" and so entitled to benefits are those displaced

from a permanent position as a result of a change in passenger

services. In this respect, so it was argued, the Special Agreement

bore a certain analogy to the "job Security" agreements made between

the railways and various bargaining agents. Such agreements deal

with benefits in cases of technological change, and it is said that

in their application to "affected employees" the same position is

taken as is advanced by the Company in this case. There is no

evidence as to that in the material before me, and I make no finding

of fact in that regard. It is noteworthy, however, that Railway

Passenger Services Adjustment Assistance Regulations refer, in

section 5(|1) thereof, to the "job security" and material change"

agreements.

While the union recognized that the class of persons who might be

said to be "affected" by a reduction in passenger operations might be

difficult of determination, it argued that when "one position is

abolished, all others are potentially affected", and urged the

conclusion that all employees, regardless of their job on November

15, 1981, 1981, and whether their job be a regular or relieving

position, be considered as subject to being "adversely affected" by

the change in question. Pursuant to such a definition, the union

would then have the company's records analysed to determine which

employees could be said to have suffered adverse effects - however

indirect - as a result of the change in operations.

This argument has a certain appeal, and is on the surface supported

by a "plain meaning" or "literal" approach to the language used. The

"effects" of substantial changes in a transportation system are

multifarious and their sum is probably indeterminate. The changes in

question here may have had adverse effects on the economy and some of

the population of the areas served - although perhaps a beneficial

effect on bus companies and their employees. Such matters are quite

speculative, of course. What was no doubt clear was that there would

be adverse effects on certain employees of the railway companies, and

when the rationalization of railway passenger services was given

public support, financing was also provided to assist the "adversely

affected" employees. The class of persons contemplated as "adversely

affected" in the Special Agreement as in the Regulations, consists of

railway employees.

Even within that constituency, however, it is necessarily the case

that the "effects" of a reduction of passenger services with the

attendant abolition of positions may be substantial, diverse and

difficult to identify. In the long run, there is less work to go

around, less use of equipment, less maintenance, and so on. The

"long run" will, however, also be affected by the continuing

variations of ordinary business operations and, in the railway

industry, by fluctuations of traffic. It may, thus, be impossible to

determine whether or not some future reduction or indeed any

perceived insufficiency of earnings is attributable or not to a

particular change in operations. The cases of those whose positions

were abolished and who were unable to hold other jobs are clear, as

are the cases of those displaced by the exercise of seniority in such

circumstances. It is, however, not clear that persons who did not

hold regular positions should be said to be "adversely affected"

within the meaning of the Special Agreement, where the effect on

their work or earnings is only indirect. While, in a general way,

such persons may appear to be "affected" by the change (as, in a

general way, were many others), they do not, in my view, come within

the class of those contemplated by the Special Agreement as entitled

to benefits.

The Special Agreement, as it sets out, was negotiated pursuant to the

Railway Passenger Services Adjustment Assistance Regulations, and it

is helpful to set out the material provisions thereof:

Special Agreements

4. In negotiating a special agreement, the parties to

the special agreement process shall, inasmuch as

the following are generally incorporated in their

existing job security agreements, give

consideration to the following:

(a) in so far as possible, ensuring continuing

employment for the employees concerned;

(b) where preferred and to the extent possible,

keeping employees in gainful employment at the same

location;

(c) where necessary, training employees for

alternative employment;

(d) when required, providing appropriate assistance

in relocation;

(e) in so far as possible, avoiding loss of

employees' earnings;

(f) developing a separation plan |-for the

assistance of employees close to or eligible for

retirement who wish to leave the work force; (g)

minimizing seniority obstacles for the purpose of

facilitating (i) continuing employment by Canadian

National Railway Company and Canadian Pacific

Railway Limited where mutually agreed to by the

parties, and (ii) the transfer of employees to VIA

Rail Canada Inc.;

(h) where employees are laid off, providing

reasonable weekly lay-off benefits or severence

payments; and

(i) assisting employees unable to maintain their

jobs to secure employment outside the railway

industry.

5.(1) A special agreement shall provide for the benefits

and the terms and conditions of those

benefits contained in:

(a) Railway Job Security Technological,

Operational, Organizational Changes Agreements

between Canadian National Railway Company,

Canadian Pacific Railway Limited and non-operating

shopcraft or other unions; or

(b) Railway Material Change Agreements between

Canadian National Railway Company, Canadian

Pacific Railway Limited and United Transportation

Union and Brotherhood of Locomotive Engineers.

(2) A special agreement may provide for benefits and

conditions in addition to those referred to in

subsection (1) , consistent with the principles

referred to in section 4.

6. A special agreement shall be the only instrument

applicable with respect to benefits and the words,

terms and conditions of such an instrument shall

not be amended, revised or otherwise changed

witout

(a) a joint request from the parties to the

special agreement; and

(b) the consent, in writing, of the minister of

Labour.

7. A special agreement shall not provide for benefits

to employees other than those adversely affected

by the implementation of changes.

The benefits to be negotiated are, it will be noted, those of the

"job security" or "material change', agreements already referred to.

The agreement is to provide only for those employees "adversely

affected by the implementation of changes".

On the interpretation of the Special Agreement advanced by the union,

some employees at least might fi|nd themselves in a better position

than had no material change occurred. In this respect, I think there

is a contradiction in the union's argument that it is not simply the

situation on the date the change is effected which is to be

considered (which position, it will be recalled, was not advanced by

the company), since in this grievance the union seeks to perpetuate,

for certain of the grievors, the benefits of positions or assignments

they held only temporarily at the date of the change. Where a person

reverts to his regular position as a result of a change in rail

passenger service he does not, in my view, come within the class of

persons contemplated as entitled to benefits and is not "adversely

affected" within the meaning of the Special Agreement.

In some instances, it would appear that the grievors were not

directly affected by the change, but lost work because of a decline

in traffic or the abolition of some non-passenger position. The

change in passenger operations would seem, however, to have resulted

in an overall reduction in the number of employees, and the personnel

moves involved may have affected the relative seniority status of

employees not otherwise involved. It may be that their work

opportunities were no longer what they had been, but any actual

effect of that would depend on many intervening events. When, at

some later time and for some different immediate cause, such

emplovees suffer a loss of earnings attributable only indirectly to

the operations, it is my view that change in passenger they are not

"adversely affected" by that change within the meaning of the Special

Agreement.

Whether or not the Special Agreement should be said to provide

benefits only for employees holding "permanent positions", it is to

be read, I conclude, as providing benefits for those directly

affected by the changes in question. This appears from the language

of the Special Agreement, the sort of benefits provided, the nature

of the Regulations, and the partial analogy of the "job security" and

"material change" agreements, which set out the industrial relations

context in which the Agreement was made.

For the foregoing reasons it is my view that the interpretation

advanced by the union cannot succeed. The matter was heard by way of

argument on the matter of interpretation, and while certain factual

material was placed before me, there was no agreement as to the facts

of the individual cases, and no evidence thereon. While it may be

that the foregoing will in fact be dispositive of the grievances,

there will be no prejudice to the union's right to establish that

individual cases do, on their facts, come within the scope of those

entitled to benefits as indicated above.

The award in this matter is therefore as follows:

1) The grievance of Mr.Emond is allowed.

2) The union may, within thirty days of the date of this award,

advise the arbitrator and the company that it wishes to present

evidence with respect to one or more of the remaining grievors,

identifying those concerned. The matter will then be set down for

hearing. Failing receipt of such notice, the grievance, except as

to Mr. Emond, is dismissed.

DATED AT TORONTO, this 10th day of November, 1983.

Sole Arbitrator

J.F.W. Weatherill