BETWEEN:

(the "Company")

AND

(the "Association")

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

And on behalf of the Association:

A hearing in this matter was held at Montreal on February 20, 1989.

The undersigned, Harvey Frumkin, was by agreement of the parties hereto, appointed sole Arbitrator to hear and decide the above grievance. The hearing was held at Montreal on February 20, 1989. Mtre. Gino Castiglio represented the Association and Mtre. Raynald Lecavalier acted on behalf of the Company. After duly considering the arguments of both sides, studying the various exhibits submitted, the evidence taken at the hearing and the Collective Agreement, the Tribunal submits herewith its decision.

The grievance before the Tribunal concerns the claim of two employees of the Company who seek to benefit from a plan of separation and early retirement offered by the Company to employees able to qualify under the provisions of a Memorandum of Agreement negotiated and concluded between the parties on September 28, 1985. The respective claims of the two interested employees, Constable Ronald J. Gauthier and Special Agent René Lacroix, both request early retirement under the plan, effective as at the end of the 1987 calendar year. From the brief submitted by the Company, these claims in their initial stage would appear to have taken on the following form:

The claims for early separation were rejected by the Company and thereupon made the subject of a grievance submitted by the Association on September 17, 1987, at the third step of the grievance procedure in the following form:

The Company rejected the grievance at the third stage of the grievance procedure on the ground that the abolition of a number of positions at its Turcot Yard facility in Montreal which had been identified as positions that might correspond to an entitlement under the separation and early retirement plan, had been abolished, resulting in a corresponding reduction in the number of available early retirement opportunities under the Memorandum of Agreement above-referred to. In consequence, therefore, as far as the Company was concerned, there remained no further available positions for reclassification to which a claim for early retirement might attach. The letter of refusal read thusly:

Following rejection of the grievance at the third stage of the grievance procedure, the Association, while acknowledging that abolition of various positions at the Turcot Yard resulted in a corresponding reduction in early retirement opportunities, insisted, nonetheless, upon the basis of further information furnished it by the Company at that point, that there still remained early retirement opportunities and in this regard advanced the grievance to the fourth stage of the grievance procedure in the following terms:

It is to be noted that while the grievance in its initial form at the third stage refers to "four (4) positions as Special Constable at Turcot - Montreal being abolished," the submission at the fourth stage emphasizes that "two (2) reclassified positions … (in the St. Lawrence Region) … were used to fill two (2) vacant positions …". In this regard it contends that the Company’s action constituted a breach of the Memorandum of Agreement signed on September 28, 1985, and that in effect, two separation plans still remained available in the St. Lawrence Region, to which separation and early retirement opportunities attached which the Company was obliged to recognize and confer upon request of an eligible applicant.

The Company, however, maintains that the Association has modified the nature of the grievance at the fourth stage of the grievance procedure. From its perspective the Association initially identified positions available at the Company’s Turcot Yard facility as the basis for a claim for entitlements under the separation and early retirement plan for the Grievors. Subsequently, as far as the Company is concerned, the Association altered its stance by identifying two positions in the St. Lawrence Region which had been made the object of reclassification some time prior as the basis for its claim. The Company states its position at paragraph 43 of its brief as follows:

Accordingly, the Company at the fourth stage of the grievance procedure, advised the Association of its intention to raise an objection to the jurisdiction of a tribunal of arbitration to entertain the grievance as submitted at the fourth stage of the grievance procedure, on the ground that the Association at that stage had changed the fundamental nature of the grievance. Indeed, it is such an objection to jurisdiction that was presented to the Tribunal at the outset of the hearing.

On the matter of the preliminary objection, the parties jointly requested that the Tribunal, before proceeding to the merits of the grievance, first dispose of the issue of jurisdiction raised by the Company. Proceedings at the hearing of February 20, 1989, were accordingly confined to the issue of jurisdiction and the Company’s objection. The Tribunal will accordingly now proceed to adjudicate upon the objection.

The evidence disclosed that on September 28, 1985, the parties concluded an agreement whereby forty-two positions under the classification of "Constable" would, over the ensuing four years, be reclassified as positions of "Special Constable". These forty-two positions were identified in Appendix A of that Memorandum of Agreement as follows:

It was common ground that the reclassification of forty-two Constable positions to that of Special Constable on a system wide basis would give rise to significant organizational and operational changes. Recognizing this reality, the parties immediately negotiated a second agreement setting out a protocol to facilitate implementation of the transition contemplated in the first agreement. This second Memorandum of Agreement executed on the same day, envisaged the possibility and prospect for early retirement under section 2 of its provisions.

Pursuant to section 6 of the Memorandum of Agreement, reclassification of positions would take place under the following circumstances:

This provision refers to three examples of situations which would permit for reclassification under its terms. Two of these involve early retirement of an employee, whereas the third refers to the situation of an employee who has resigned from his post. In all cases, reclassification proceeds in consequence of a position being vacated by its incumbent, leading to a corresponding vacancy in a position targeted for reclassification.

Against this background, it must be observed that the claims of the Grievors for separation and early retirement under the plan adopted pursuant to the Memorandum of Agreement above-referred to, must if they are to succeed, at least in addition to establishing eligibility under section 2, identify an available position under section 6 to which the early retirement opportunity claimed may attach. This is precisely what the claims submitted by the Grievors in their initial form attempted to do. In effect, the issues to which these claims gave rise were whether the Grievors were eligible for the entitlement claimed and whether an available position to which an early retirement opportunity attached existed.

The Company rejected the claims of the Grievors on the ground that no position from amongst those identified in Appendix A of the Memorandum of Agreement of September 28, 1985, to which an early retirement opportunity might attach, remained available. It submitted as its reason for this, the fact that a number of positions at the Turcot Yard which might otherwise have been targeted for purposes of the claim, had been abolished, so that all of the available positions that might have been relevant to an early retirement opportunity had been accounted for. It maintained in this regard that it was entitled to abolish the positions that it did and that in view of the abolitions, the basis for a claim for early retirement within the meaning of the Memorandum of September 28, 1985, disappeared.

The Association persisted, however, by attempting to seek out other available positions which might provide a basis for the claims which it was pursuing on behalf of the Grievors. While it was prepared to acknowledge that the abolished positions at the Company’s Turcot Yard facility could not serve as the basis of an early retirement opportunity, it was able to identify from information secured from the Company following the third stage of the grievance procedure, other positions which it contended could serve as the basis for its claims. The issue to which the claims gave rise, however, remained the same, namely, whether of the initial forty-two positions targeted in the Memorandum of Agreement for reclassification, any remained which could serve as the basis of a claim for early retirement.

But given the context within which the claims with which the grievance deals are to be pursued, the Tribunal cannot see that the Association at any time would have been obliged to confine its attention to any single position or group of positions in pursuing the interests of the Grievors. All that the Association was required to do was to demand that the Grievors’ claims under the early retirement plan be accepted. It was then for the Company, not the Association, to demonstrate that no further positions as might permit for the entitlement remained available. It would then have been open to the Association to either take issue with the Company’s response or identify any other position which might serve as a basis for the claims. This is what the Association in fact did at the fourth stage of the grievance procedure and given the nature of the claims and the context in which they find themselves, the Tribunal can see nothing wrong in this approach.

To pretend that the Association has altered the fundamental nature of the grievance is to confuse the essence of the claim itself and the possible issues to which it gives rise. The claim in this case is for an early retirement benefit. It incorporates the element of eligibility of the claimant and availability of the entitlement in terms of the Agreement which is its source. The claim may give rise to issues of whether or not any position or group of positions remain available in the sense of permitting for the entitlement claimed by an otherwise eligible employee, but whether the particular issue of availability concerns one job or group of jobs or another in no way alters the nature of the claim in this particular instance. It is not as though the Association was required to identify a particular position to succeed in its claim on behalf of the Grievors. Rather, the issue concerns a matter of whether the forty-two identified positions had already been absorbed and not whether any one or other of those positions had been absorbed.

As the Tribunal sees it, the grievance was not specifically directed to the impact of the abolition of positions at the Turcot Yard upon the claims of the Grievors nor upon the validity of reclassification of vacant positions which occurred some time prior. These issues may or may not become relevant in the final analysis, but they are not at the essence of the claim to which the grievance relates as that claim has been presented. The fundamental question is rather, whether under the Memorandum of Agreement of September 28, 1985, there remained available early retirement opportunities. That examination of this question may well involve considerations concerning identified positions in the St. Lawrence Region for the ultimate determination of available early retirement opportunities, this in no way alters this fundamental question to which the Tribunal must respond.

Nor does the issue of timeliness bear on the grievance. The claim is one for early retirement. That claim is current and has been filed in timely fashion. The fact that there may have occurred in the past events which may be relevant to the claim, but which the Company contends are no longer open to review by reason of the passage of time, can in no way result in absence of jurisdiction as regards the grievance itself.

Accordingly, the Tribunal sees no merit in the Company’s objection to jurisdiction. The extensive number of cases provided by counsel for the Company reveal no parallel situation as might incline the Tribunal to alter its view. This is simply not a case where the nature of the grievance in its original conception has been in any way altered, nor is it even a case involving the invoking of an additional ground to support a claim. Simply stated, the Association embarked upon a search for an identifiable position which might provide a basis for its claim and having identified such a position following an exchange, succeeded in circumscribing the issues which can now be addressed at arbitration.

For the foregoing reasons, the objection of the Company to jurisdiction of the Tribunal to hear and decide the grievance on its merits, is dismissed; the parties are accordingly ordered to reconvene before the Tribunal for a hearing of the grievance on its merits at a time and place to be mutually agreed upon between the parties or in default thereof, to be fixed by the Tribunal at the instance of one or other of the parties.

MONTREAL, March 1, 1989

Arbitrator