AD HOC – 274
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
PROPRIETY OF NOTICES OF OCTOBER 11, 1989 UNDER ARTICLE "J" OF THE SPECIAL AGREEMENT
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
R. Monette - Counsel
J. P. Thivierge - Acting Director, Labour Relations
W. R. Radcliffe - Superintendent, Transportation - Toronto
J. M. Lalonde - Director, Crew Management Centre - Montreal
And on behalf of the Union:
J. Shields – Counsel
D. Kipp – General Chairman
W. Wright – Senior Vice Chairman
A hearing in this matter was held at Montreal on December 18, 1989.
The propriety of the notice dated October 11, 1989, served by the Corporation on the Brotherhood of Locomotive Engineers and the United Transportation Union ("the Unions") under Article "J" of the Special Agreements signed March 6, 1987 and June 4, 1987, respectively.
STATEMENT OF FACT:
On October 4, 1989, the Minister of Transport announced the Federal Government’s decision to effect major changes in passenger train service throughout Canada. These changes are covered by Order in Council P.C. 1989-1974.
On October 11, 1989, the Corporation served notices on the Unions under Article "J" of the Special Agreements in force, indicating the changes in passenger train service to take effect January 15, 1990, and the number of employees, by terminal, who would be affected.
The Unions subsequently advised the Corporation that they considered the notices improper because the said notices contained changes that are contrary to certain provisions of the collective agreements and not contemplated by Article "J" of the Special Agreements.
The Corporation responded to the Unions on November 2, 1989, stating that it considered the notices to be proper within the context and intent of the Special Agreements in force, as well as those of the Railway Passenger Services Adjustment Assistance Regulations under which those Special Agreements had been negotiated.
A W A R D
This reference to arbitration initially involved members of the United Transportation Union as well as members of the Brotherhood of Locomotive Engineers from central and eastern Canada. The dispute, insofar as it relates to those employees, however, has been resolved by settlement, and this arbitration is therefore only in relation to the claim of the Brotherhood as it relates to locomotive engineers on the Prairie and Mountain Region.
On October 4, 1989 the Minister of Transport of Canada announced the discontinuation of certain train routes in Canada and a reduction in the frequency of others (Order in Council PC 1989-1974 (SOR/89-488) On October 11, 1989 the Corporation served a notice upon the Brotherhood under Article "J" of the Special Agreement of June 4, 1987, advising the changes in passenger service adversely impacting members of the Brotherhood would be implemented effective January 15, 1990. The changes involved the elimination of ten engineman positions on VIA’s western lines, with substantial changes in crewing and home terminals. Home terminals are to be closed at Melville, Biggar, Jasper and Vancouver. In addition a number of run-throughs are established, whereby runs which previously ended at a given terminal are extended, without a crew change, to a more distant terminal. The position of the Brotherhood is that the notice provided to it under Article "J" of the Special Agreement is insufficient insofar as it pertains to the implementation of run-throughs and changes in home terminals. It maintains that in these circumstances it is entitled to a six-month notice period, as provided under the terms of its collective agreement, rather than the three-month period of notice under the Special Agreement.
Article "J" of the Special Agreement provides, in part, as follows:
J.1 The Companies signatory hereto will not put into effect any change in Railway Passenger Services made in accordance with Government initiatives introduced pursuant to the Railway Passenger Services Adjustment Assistance Regulations which will have adverse effects on employees without giving as much advance notice as possible to the General Chairman representing such employees or such other officer as may be named by the Union to receive such notices. In any event, not less than three months’ notice shall be given, with a 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 provisions of this Article J.1 supersede the notice requirements of any Collective Agreement between any of the parties signatory hereto in respect of a material change in working conditions.
Article 89 of the collective agreement provides, in part, as follows:
ADVERSE EFFECTS OF CHANGES IN WORKING CONDITIONS
89.1 Prior to the introduction of run-throughs or changes in home stations, or of material changes in working conditions, which are to be initiated solely by the Company and would have significantly adverse effects on locomotive engineers, the Company will:
(a) negotiate with the Brotherhood measures to minimize any significantly adverse effects of the proposed change on locomotive engineers, but such measures shall not include changes on rates of pay, and
(b) give at least six months advance notice to the Brotherhood of any such proposed change, with a full description thereof along with details as to the anticipated changes in working conditions.
While not necessarily limited thereto, in the case of run-throughs, and in the case of other changes where applicable, the matters considered negotiable will include the following:
(1) Appropriate timing
(2) Appropriate phasing
(3) Hours on duty
(4) Equalization of miles
(5) Work distribution
(6) Appropriate accommodation
(8) Seniority arrangements
(9) Learning the road
(10) Use of attrition
The parties are agreed that the Arbitrator has jurisdiction in respect of this dispute, whether it be characterized as falling under the Special Agreement or under the terms of the collective agreement. The issue is whether the Corporation was obligated to give notice to the Brotherhood, on a basis of six months, pursuant to Article 89.1 of the collective agreement.
It is significant to note that the Brotherhood does not contest the propriety of the Article "J" notice, insofar as it relates to "changes in working conditions". It is common ground that the Special Agreement does apply to that extent. The dispute in the instant case is therefore to be distinguished from that which was recently resolved by an arbitral award involving the Corporation and the International Association of Machinists (December 8, 1989). In that case the Union contested the application of its Special Agreement, asserting that notice could be given only under the terms of its collective agreement. As noted in this case, the parties are agreed the Special Agreement which they negotiated does have application in the circumstances.
Counsel for the Brotherhood argues that the language of the collective agreement makes a distinction between "material changes in working conditions" on the one hand and "run-throughs or changes in home stations" on the other hand. He submits that while the Article "J" notice under the Special Agreement may be appropriate insofar as it relates to changes in working conditions generally, it is not sufficient with respect to the introduction of run-throughs and changes in home stations. This, he argues, is dealt with solely under Article 89.1 of the collective agreement, and therefore requires a six month rather than a three month notice. Counsel maintains that that is, mreover, consistent with the scheme respecting the joint application of the Special Agreement and the collective agreement. He submits that the initial notice given by the Minister on October 4, 1989 with respect to the reduction of train passenger service in Canada falls squarely within the concept of changes made in accordance with government initiatives as contemplated under Article J.1 of the Special Agreement. He submits, however, that the decisions taken by the Corporation internally with respect to the operational and organizational changes that would be implemented as a mean of accommodating the federal government’s directive constitute decisions respecting changes which are "initiated solely by the Company" and which therefore call into play the application of Article 89.1 of the collective agreement.
The Arbitrator has substantial difficulty with the position advanced by the Brotherhood. For the purposes of this case, given the agreed position of the parties, I am bound by the premise that the Special Agreement does apply, and that the notice given to the Brotherhood on October 11, 1989 was properly given pursuant to Article "J" of the Special Agreement. An examination of the terms of the agreement, as well as its overall scheme, casts substantial doubt on the position of the Brotherhood with respect to the possibility of a further notice under the terms of the collective agreement in respect of changes touching run-throughs and home stations. Needless to say, the Special Agreement and the collective agreement must be construed as a rational whole, and not as conflicting or inconsistent documents.
The specific reference within Article 89.1 of the collective agreement to run-throughs and changes in home stations has a clear history which is not in dispute. In particular, run-throughs was the principal focus of an industrial inquiry commission of some years ago, headed by Mr. Justice Samuel Freedman. That Commission was prompted in part by the implementation of run-throughs at Nakina and Wainwright as a result of technological change relating to the elimination of steam power and the consequences of diesel operations in 1964. It resulted in a number of recommendations, including the proposal of periods of notice, negotiation and arbitration to deal with the adverse impacts of run-throughs as they would affect employees. The Freedman Report itself acknowledges that certain run-throughs would not have the effect of causing a material change in working conditions while others would. The recommendation of the Commission was that where any dispute arose as to that question it should be resolved, following negotiation, by resort to a single arbitrator. The Report of Commissioner Freedman makes further recommendations with respect to the compensation of an employee required to change his place of residence as a result of a run-through.
These recommendations eventually found their way into the terms of the parties’ collective agreement as evidenced in the terms of Article 89, subparagraph d of which establishes a dispute settlement mechanism, including a board of review followed by arbitration. Article 89.2 makes further elaborate provision for relocation expenses available to employees affected under article 89.
The general purpose of Article 89 of the collective agreement is expressed in Article 89.5 which is as follows:
89.5 This article is intended to assist employees affected by any technological change to adjust to the effects of the technological change and Sections 52, 54 and 55 of Part I of the Canada Labour Code do not apply. The provisions of this article are intended as well, to minimize the impact of termination of employment on the employees represented herein and Sections 214 to 226 inclusive of Part III of the Canada Labour Code do not apply.
The foregoing, in the arbitrator’s view, gives a fuller appreciation of the purpose and intent of Article 89, and in particular, of the mischief to which Article 89.1 is addressed. Even if one accepts the disjunctive statement of run-throughs, changes in home stations and changes in working conditions as being separate heads of compensable action, the overall thrust of the article is made clear by the explanatory language of subparagraph 89.5. Generally speaking, the purpose is to protect employees against the impacts of technological change by providing for the negotiation of a number of mitigating factors, as well as relocation expenses (Article 89.2) and early retirement options (Article 89.3).
The Special Agreement has an entirely different focus. By its own terms it is designed to benefit employees who are adversely affected by changes in railway passenger services, including the transfer of such services from the Canadian National Railway Company to VIA Rail Canada Inc., made in accordance with government initiatives. This is clearly reflected in the preamble to the Special Agreement itself. As noted, the parties to the instant dispute accept that the Special Agreement does have application in this case. In the Arbitrator’s view the Corporation is correct in concluding that it was intended to have exclusive application, and that the notice period contemplated under Article 89.1 of the collective agreement does not apply. In reaching that conclusion I consider it significant that Article "J" of the Special Agreement expressly provides that:
… The provisions of this Article J.1 supersede the notice requirements of any Collective Agreement between any of the parties signatory hereto in respect of a material change in working conditions.
The Special Agreement is not addressed to the impact on employees of technological change, as is Article 89 of the Collective Agreement. Rather, it relates to the impact, in the broadest sense, of changes in working conditions "made in accordance with government initiatives …." As the parties to this dispute are agreed that what has transpired is a government initiative which triggers the application of Article "J", a plain reading of that Article leads to the conclusion that it was intended to have exclusive application in these circumstances.
There is, moreover, within the terms of the Special Agreement itself further reason to conclude that the introduction of run-throughs and the relocation of home terminals were also intended to be caught by its provisions. This is, in part at least, reflected in Article D of the Special Agreement, which provides relatively extensive provisions for the relocation of employees. Included in its provisions is eligibility for relocation expenses for an employee:
… who is required to relocate in order to hold work with the company due to:
(ii) his work being transferred to a new location, …
On the face of it the foregoing provision would appear to capture the circumstance of a locomotive engineer who is assigned to a certain run and is then required to move from one home terminal to another as the home terminal for that run is changed. The language would, in other words, appear to be sufficiently broad to contemplate a transfer or change of home terminal designation. While I need not ground my conclusion entirely on the language of this provision, it does, in my view, when read together with the provisions of the collective agreement reviewed above, confirm that once it is established that the Special Agreement applies, it is to apply to any changes in working conditions resulting from government initiatives, including the institution of run-throughs and changes in home terminals. There is, moreover, little or no purposive justification of which the Arbitrator is aware that would support any contrary conclusion. The impact of the announcement of the minister made on October 4, 1988, and its consequences for members of the Brotherhood, including the elimination of ten engineers’ positions on the Prairie and Mountain Regions, is obvious in its gravity. However, absent clear language to the contrary, and in light of the exclusive nature of the notice contemplated under Article "J" of the Special Agreement, I can see no reason why the parties would have intended a longer notice period in respect of relocations and forced redundancies for one purpose and not for another. The underlying distinction between Article 89 of the collective agreement and the Special Agreement is that the latter relates to change not of the Corporation’s own making while the former addresses technological change which may be introduced solely pursuant to the Corporation’s own discretion. It is understandable that a longer notice period should constrain the employer when the changes contemplated are fully under its control. That is not so in this case, however.
For all of the foregoing reasons the Arbitrator is satisfied that the notice provided to the Brotherhood under Article "J" of the Special Agreement on October 11, 1988 is, given the Brotherhood’s own acceptance of the applicability of the Special Agreement, the correct and exclusive notice to be provided to the Brotherhood and its members. Article 89 of the collective agreement does not apply in this circumstance and no violation of the terms of that agreement is disclosed in the material before me. For the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 21st day of December, 1989.
(signed) MICHEL G. PICHER