AD HOC – 266
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION
Claim for early separation allowance under the Memorandum of Agreement signed September 28, 1985, on behalf of Constable R. Gauthier and Special Agent R. Lacroix
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Mtre. Raynald Lecavalier
And on behalf of the Association:
Mtre. Gino Castiglio
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:
Ceci est pour donner mon accord suite à la conversation téléphonique du 1er sept. 1987 - avec le bureau,
Je suis d’accord de prendre ma pension anticipée datée du 31 déc. 1987 - avec le montant forfetaire de $44,000 et du montant mensuel d’après la pension "rule 162B" datée Août 26, 1987.
S.V.P. donner suite
Ronald J. Gauthier
En rapport avec le plan de séparation négocié par notre service avec l’association des policiers du CN je désirerais me prévaloir d’une retraite anticipée, et ce, pour la fin de l’année 1987.
Espérant recevoir de vos nouvelles dans un avenir rapproché, je demeure,
Votre tout dévoué
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:
Montreal, P.Q. 17 September 1987
Mr. P. Danylewich
Chief, CN Police
Confirming our telephone conversation of 14 September 1987, at which time you granted to the Association a time limit extension to September 18, 1987, in order to proceed with a grievance at Step number three, concerning a difference between the Association and the Company, with regard to the MEMORANDUM OF AGREEMENT signed by the Association and the Company, on the 28th day of September, 1985.
The Association thanks you for granting the time limit extension.
The Association is submitting a grievance under Article 14.4 of Agreement 28.2, and also under Article 14.4 of Agreement 28.1, with regard to a difference arising between the Association and the Company, in regard to the application and interpretation of the conditions mentioned in the MEMORANDUM OF AGREEMENT signed between the Association and the Company on the 28th day of September, 1985.
The difference of opinion between the Association and the Company, is that the Company is saying that there are no more positions eligible for separation allowance available under that Agreement. The explanations given by the Company is that there are four (4) positions as Special Constables at Turcot - Montreal being abolished.
The Association is contesting this decision, because the Association claims that there are four (4) positions left for eligible separation allowance.
The Association is demanding that Constable R. Gauthier of Montreal, and Special Agent R. Lacroix of Quebec, who made their request for an early retirement under that separation plan for the year 1987, and were refused by the Company, be granted such separation allowance as per their requests.
Vice President, C.N.R.P.A.
cc: L. Myles, President, C.N.R.P.A.
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:
September 25, 1987
Mr. R.C. Lizotte, 5th National Vice-President
22, 3rd Ave. North
Roxboro, P.Q., H8Y 2L9
Re: Grievance Article 14.4 of Agreements 28.1 & 28.2
I acknowledge receipt of your letter dated 17 September 1987 on the above-noted subject, on behalf of Special Agent René Lacroix and Constable Raymond Gauthier.
It has always been our view that the 42 jobs, identified in article 12-B of collective agreement 28.1 as "reclassifiable positions", were the maximum amount of jobs to which it applied. Nevertheless, if some of these positions were not needed anymore by CN Rail, it would reduce its number. Same applies to separation plans. They are continuously affected by resignations, pensions, transfers, terminations, etc.
In this case, important changes took place at Turcot Yard, and it affects our Department because the positions at the gatehouse are no more required. Because of this, the positions identified in Article 12-B at Turcot, Montreal, are abolished and accordingly, the same number of separation plans are no more available.
In the case of the employees mentioned here-above, the Company and its employees had not yet committed themselves to any firm agreement concerning their specific separations, and for these reasons, I must reject this grievance at step three of the grievance procedure.
Chief, CN Police
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:
Montreal, P.Q. 23 February 1988
Mr. D.C. Fraleigh
Assistant, Vice President, Labour Relations
The Association thanks you for granting us an extension on the time limit to February 29, 1988, regarding the grievance submitted at Step number 3. This grievance concerns a "difference" between the Association and the Company. This with regard to the applications and interpretations of the conditions mentioned in the "MEMORANDUM OF AGREEMENT" signed between the Association and the Company on 28th day of September 1985.
In the grievance submitted to Chief P. Danylewich on 17 September 1987, the Association claimed that there were four (4) positions left for eligible separation allowance and consequently the grievors, Constable R. Gauthier and Special Agent R. Lacroix should be granted such separation allowance as per their request.
On 25 September 1987, the Association received a reply from Chief P. Danylewich to the grievance in question. Before making any comments on said letter, the Association wants to bring out what took place during a meeting in Chief Danylewich’s office on 26 October 1987. At that meeting were present; Mr. Y. Chouinard, CN Police Superintendent, Mr. Claude St-Cyr, Labour Relations representative, and Mr. Benoit Trudeau, National Vice President. During that meeting Mr. Chouinard presented us with a document indicating the positions that had been reclassified as Special Constables.
A copy of that document is attached with this letter. We will call it Appendix I. You will notice that on that Appendix it is indicated that;
Atlantic Region: three (3) positions reclassified -
Vacant positions - no Buy Out
St. Lawrence Region: two (2) positions reclassified -
Vacant positions - no Buy Out
Great Lakes Region: four (4) positions reclassified -
Vacant positions - no Buy Out
Prairie Region: one (1) position reclassified -
Vacant position - no Buy Out
After reviewing Appendix I, the Association came to the conclusion that the Company is not respecting the MEMORANDUM OF AGREEMENT signed on the 28th day of September 1985. On page 5 of the MEMORANDUM in question, Article six (6), there is nothing indicating that Vacant positions (known to the Company ??), on the date on which the MEMORAMDUM OF AGREEMENT was signed would be reclassified as Special Constables.
Concerning the reply received from Chief P. Danylewich dated 25 September 1987 (see Appendix II) the Association has the following comments to make.
The Association agrees with what Chief P. Danylewich says in the 3rd paragraph, "because of this the positions identified in Article 12-B at Turcot, Montreal, are abolished and accordingly the same number of separation plans no more available". The Association disagrees with the Chief if the Chief means there is no more separation plans available in the St. Lawrence Region.
The Association is saying after reviewing Appendix I, that there are still two (2) separation plans available in the St. Lawrence Region. The two (2) plans Buy Out left are the ones used for Special Constable P. Hébert, date of reclassification 86-01-14 and Special Constable G. Corriveau, date of reclassification 85-12-23. These two (2) reclassified positions were used to fill two (2) Vacant Positions which were a breach of the MEMORANDUM OF AGREEMENT signed on the 28th day of September 1985.
In the last paragraph of his reply, Chief P. Danylewich, says that "the employees had not yet committed themselves to any firm agreement concerning their specific separation". The Association disagrees with Chief P. Danylewich. The following Appendices will confirm that the two employees did commit themselves to a firm agreement concerning their specific separation.
Appendix III Constable R. Gauthier’s demand for separation plan.
Appendix IV Reply to Constable R. Gauthier’s demand by Superintendent P. Mathieu.
Appendix V Demand made by Special Agent R. Lacroix for separation plan.
Appendix VI Grievance submitted to Chief P. Danylewich.
With the above stated facts, the Association claims that there is still two (2) separation plans available in the St. Lawrence Region. Consequently the grievance submitted under Article 14.4 of agreements 28.1 and 28.2 at step number three (3) on the 17th day of September 1987 is being submitted to step number four (4). The Association demands that Constable R. Gauthier and Special Agent R. Lacroix be granted their separation plan.
National Secretary, C.N.R.P.A.
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:
43. As the Company will hereinafter show, the Association has, in its effort to secure the remedy which was claimed on behalf of the grievors, initiated two distinguishable grievances:
– one grievance (at Step 3) contesting that the reduction of positions at Turcot resulted in an equivalent reduction in the number of positions which could be reclassified and consequently, in the number of early separation opportunities available to Association members;
– another grievance (at Step 4) contesting the reclassification, by the Company, of Constable positions while vacant without the allocation of early separations".
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:
4 Winnipeg shops - gates
5 Headquarters - Montreal
5 Turcot - Montreal
1 Taschereau Yard - Montreal
1 Pte St. Charles - Montreal
4 Shops - Moncton
4 MacMillan Yard - Toronto
NOTE: It is understood that existing Constables’ positions, other than those identified above, will not be reclassified unless mutually agreed between the Company and the Association.
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.
2. Subject to the provisions of items 3 and 4 of this Memorandum of Agreement, the following early retirement plan will apply to employees who may be affected by the permanent changes described heretofore.
(a) (i) an employee who is eligible for early retirement under the CN Pension Plan rules and whose position is scheduled for reclassification and who by electing a separation allowance would result in the position being reclassified; or
(ii) an employee who is eligible for early retirement under the CN Pension Plan rules who by electing to accept the early retirement plan would allow an employee whose position is scheduled for reclassification to hold a position which is not scheduled for reclassification;
will be eligible to receive a monthly separation allowance until age 65 which when added to his/her Company pension will give him/her an amount equal to a percentage of his/her best five year period, as defined under the 1959 pension rules in accordance with the following formula.
Pursuant to section 6 of the Memorandum of Agreement, reclassification of positions would take place under the following circumstances:
6. A list of reclassifiable positions by Region is attached hereto as Appendix A. Whenever an early retirement or an attrition (resignation, regular retirement, discharge, promotion, etc.) takes place on a region, one of the positions shown on the list referred to in Appendix A, will automatically be reclassified as a Special Constable. This may require a Constable presently assigned to a reclassifiable position to move into a non-reclassifiable position.
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
(signed) HARVEY FRUMKIN