(Hereinafter referred to as the “Railway”)
TRANSPORTATION COMMUNICATIONS INTERNATIONAL,
SYSTEM BOARD 496, LODGE 1828
(Hereinafter referred to as the “Union”)
(JSA Referee Hearing)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: Bruce M. Greyell, Esq.
Counsel for the Union: David K. Pidgeon, Esq.
Place of Hearing: Vancouver, B.C.
Date of Hearing: June 4, 1990
Date of Written Submissions: June 15, June 18, July 16,
and July 18, 1990
A W A R D
This dispute arose out of an arbitration between these parties with respect to whether certain changes in the train control system on the Railway were initiated in breach of technological change provisions of an agreement, called the Job Security Agreement (JSA), which is collateral to the collective agreement. It was concluded in the decision in that arbitration that jurisdiction over such issues reposes with a referee appointed under the JSA. It was also determined that it is a breach of the collective agreement for the Railway to refuse to subject such issues to the dispute resolution mechanism set out in the JSA. In the result, the Union was granted a declaration that the grievances giving rise to the dispute should be addressed under the provisions of the JSA. That decision was made on May 14, 1990, and, in response to it, the parties agreed to constitute me as a referee under the JSA to have the issue addressed and resolved. Subsequent to the hearing, the parties raised additional issues of fact in written submissions that I will review later.
I will set out the relevant dispute resolution provisions of the JSA later. Before doing so, it is convenient to consider the implications of the relief sought by the Union in the process. The Union did not ask me to find that the changes at issue entitles it to a particular remedy. Instead, the Union seeks a declaration that the changes fall within the scope of the JSA in the sense of requiring the Railway to postpone or reverse the disputed changes, to give notice of them under the provisions of the JSA, and to then discuss them in accordance with its terms. However, it is contemplated in the Union submission that if the parties are not successful in reaching an accord in discussions under the JSA, the matter will be referred to a referee for further deliberations.
As stated, the difficulty created by the Union submission is that it would, in effect, require me to direct the Railway to postpone any of the changes that have not been implemented and to reverse any changes that have been implemented until what the Union perceives as proper notice has been given and the process under the JSA has been exhausted. That position creates a problem because it is agreed that the Union has no right under the JSA to prevent changes. Its only rights are to receive notice of them, to be given an opportunity to discuss them with the Railway, and, in the event they proceed, to claim various benefits on behalf of the employees affected. The Union submission would extend the provision to the point of preventing the Railway from initiating changes until the issue of proper notice has been addressed by the parties and, potentially, until it has been resolved by a referee appointed under the JSA. I will return to that issue shortly.
The dispute is complicated by the fact that there are two categories of change involved. One category involves the elimination of a number of operator positions. The Railway concedes that those changes fall within the technological change provisions of the JSA. The issue with respect to those changes is limited to whether the Railway has complied with the terms of the JSA. The second category, however, involves changes with respect to how dispatchers perform their duties. The initial question is whether those changes fall within the JSA. The changes do not involve job loss and the position of the Railway is that the JSA only extends to cases of job loss or loss of employment. Granting the declaration sought by the Union would require me to conclude at this preliminary stage that the changes with respect to the dispatchers are technological changes in the sense that the declaration would require those changes to be postponed or reversed while the JSA process is followed.
The complicating factors appear to have arisen, at least in part, in response to what might be described as the unusual structure of the JSA. It covers “five basic forms of job security benefits”, only one of which is at issue in this dispute. The five benefit categories are summarized on p.2 of the introduction as follows:
(1) Weekly layoff benefits
(2) Severance payments
(4) Relocation expenses
(5) Benefits for employees affected by technological, operation, and organizational changes
The benefit category at issue in this dispute is No. 5. Each of the first four forms provide for specific benefits. The fifth category, being technological change, provides access to all those benefits, and to additional benefits available or negotiated under the technological change category. That point is addressed on p. 13 as follows:
In addition to, or in the alternative to the benefits available to eligible employees from the Job Security Plan, there are other types of benefits available to those affected by (technological, operational, and organizational) changes (i.e., maintenance of basic rates and early retirement allowance).
I note that the introduction is not part of the agreement and, thus, does not have the force of contract. However, it is some indication of how the Railway views the scope of the JSA. In the agreement itself, the technological changes category is addressed in Article 8. The two additional benefits outlined in the introduction with respect to technological change, being maintenance of basic rates and early retirement allowance, are set out in Articles 8(9) and 8(10), respectively. One question that arises is whether other benefits are available under Article 8, either by negotiation between the parties or by order of a referee. The position of the Railway is that the benefits available to employees who fall within the scope of Article 8 are confined to benefits as defined in Article 8(8). That provision reads as follows:
8(8) In addition to all other benefits contained in this agreement which are applicable to all eligible employees, the additional benefits specified in Clauses 9 and 10 below are available to employees who are materially and adversely affected by technological, operational or organizational changes initiated by the Company.
However, that position is not in accord with the dispute resolution structure of Article 8. I will set it out in detail later. At this stage, it is sufficient to say that the jurisdiction vested in a referee to grant a remedy is described in Article 8(6) in part as follows:
The matters to be decided by the referee shall not include any question as to the right of the Company to make the change, which right the Unions acknowledge, and shall be confined to items not otherwise dealt with in this agreement. (emphasis added)
If that aspect of the dispute resolution mechanism is to have any meaning, it must be acknowledged that a referee has the jurisdiction to provide remedies in forms that go beyond the specific benefits outlined in the collective agreement. The Railway’s position on benefits arises from its position with respect to the scope of the technological changes that fall within Article 8. The Railway, as stated, says that only changes resulting in job loss or loss of employment fall within the provision. On that basis, the Railway seeks to confine the benefits available to those relating to disruption due to job loss or loss of employment. However, once again, that interpretation is not consistent with the language of the provision. Article 8(1) reads in part as follows:
The Company will not put into effect any technological, operational or organization change of a permanent nature which will have adverse effect on employees…
When the JSA is read in context and in its entirety, it does not support a finding that its scope is limited to changes that result in job loss or loss of employment. In short, it cannot be said that changes introduced by the Railway which impact upon the manner in which employees perform their work are beyond the scope of the JSA simply because there is no job loss or loss of employment. Obviously, the provision applies to “technological, operational or organizational changes”, which do result in the elimination of jobs which require the affected employees to exercise their seniority rights, including the possibility of loss of employment through layoff; but, the language is not compatible with the conclusion that the term “adverse effect” is limited to those particular adverse effects.
The JSA does not address specifically what is meant by the term “adverse effect”, and does not provide a specific process for addressing that issue between the parties and through to resolution by a referee. However, the jurisdiction to decide matters not otherwise dealt with in the agreement vests in a referee the obligation to address adverse effects beyond those specified expressly in the JSA, and, having identified an adverse effect, to grant a remedy to compensate employees who are adversely affected by the changes where that is appropriate. Hence, the Railway is obligated to give the Union notice of changes that may be deemed to impact adversely on the manner in which employees perform their duties and to participate in the process outlined in Article 8 with respect to those changes. The complication arises where the Railway proposes to introduce changes that will impact on the way in which employees perform their duties, but does not agree that the impact will be adverse in the context contemplated in Article 8.
Would the mere giving of notice amount to a concession by the Railway that the changes did fall within Article 8(1)? The answer to that question is, no. The JSA does not contain detailed procedural provisions. However, it is clear that where the parties differ over whether a particular change will have an adverse effect, that issue is to be discussed by the parties under Article 8 and, if necessary, submitted to a referee for resolution. Hence, where the Railway gives notice of a change which will impact on employees, it can take the position in the notice that the change does not fall within the provisions of the JSA. The parties can then discuss the matter, and, if necessary, refer the matter to a referee. In the same vein, if the Railway introduces changes without notice, the Union can initiate the process under Article 8 and refer disputes to a referee in the event of a disagreement. On that outline of the issues and the process, I turn to the specific facts.
Events have overtaken the issues to some extent in the sense that some of the changes have been implemented and others are pending. However, that fact does not change the underlying issue. Whether viewed before or after the introduction of the proposed changes, the essence of the Union position in the first instance is that the Railway can be prohibited under the provisions of the JSA from introducing the changes until after it has followed what the Union perceives as the proper process under the JSA. I am of the view that a referee does not have the jurisdiction to enjoin the Railway from introducing changes. The remedies available to the Union with respect to a perceived failure to give proper notice, or any other perceived breach of the JSA, is to pursue a claim for compensation or other redress for the breach.
Aside from entitlement to notice (which presupposes payment in lieu of notice), Article 8 of the JSA gives the Union a mechanism whereby it can negotiate adjustments to the terms and conditions existing in the collective agreement to accommodate the adverse impact of any changes in the way work is performed. If the parties are unable to agree on how employees are to be compensated for changes that do not result in job loss or loss of employment, but which have an adverse effect on them, that dispute can be resolved by a referee.
In addressing the question of the jurisdiction of a referee, I repeat the observation I made in the arbitration decision that a referee under the JSA is the equivalent of an arbitrator under a collective agreement and has the statutory powers set out in Part 6 of the Industrial Relations Act. In particular, a referee has the jurisdiction to interpret and apply the provisions of the JSA, and other instruments, such as the collective agreement or relevant legislation. Included in that jurisdiction is a broad discretion with respect to fashioning remedies in response to breaches of the JSA.
In the context of this dispute, a referee has a clear jurisdiction to consider if the Railway has been in breach of the JSA in the sense of a failure to give adequate notice to the operators who face a disruption or loss of their employment by reason of the elimination of their positions. Further, a referee has the jurisdiction to fashion a remedy for any such breach and for a breach of the obligation to give the Union an opportunity to discuss the changes in a timely fashion.
Similarly, a referee has ample jurisdiction to consider whether the changes in the manner in which dispatchers do their jobs will have an adverse effect upon them and, if so, what remedy, if any, they are entitled to in response to those adverse effects. Once again, a referee has the jurisdiction to determine if the Railway provided any or adequate notice of those changes, whether the Railway failed in its obligation to discuss those changes with the Union and what remedy, if any, should be granted in response to any such breaches of the JSA found to have been committed by the Railway.
What the Union does not have on the language of the JSA is a right to prevent the Railway from introducing the changes, either before they have been introduced or by way of compelling the Railway to reverse changes that have been implemented. In particular, Article 8(b) of the JSA contains the following limitation on the Union and a referee appointed under the JSA:
The matters to be decided by the referee shall not include any question as to the right of the company to make the change, which right the Unions acknowledge…
It is my view that the declaration sought by the Union is not in accord with its negotiated rights. In providing reasons for that conclusion, it is necessary to review in detail the general structure and provisions of the dispute resolution mechanism in the JSA. However, before doing so, I propose to outline the additional issues of fact raised by the parties in the written submissions filed after the hearing.
Those submissions involved additional evidence and argument with respect to the elimination of the operator positions. In placing the additional evidence and submissions in perspective, it is necessary to review the nature of the dispute as it was pleaded in the grievances that gave rise to the arbitration hearing. The grievances in question were identified in the arbitration award on p. 3 as follows:
1. Grievance No. 89-021: Implementation of a computer-based system of handling radio traffic.
2. Grievance No. 89-022: Notice of the implementation of FAX.
3. Grievance No. 89-023: Proposed Train Dispatch Control System.
The Union added to the scope of the dispute in a written submission filed on June 15, 1990. Initially, the dispute involved the proposed elimination of eight operator positions. (Those positions were scheduled for elimination on July 27, 1990.) In the arbitration hearing and in this hearing, the Railway stated that there were no plans pending for the elimination of any further operator positions. In its June 15, 1990, submissions, the Union disclosed that after the hearing an additional operator had been advised that his position would be abolished on September 30, 1990. The Union wrote in part as follows:
It is thus clear that the railway’s testimony in front of you, that there are no further changes planned, is exactly as we had advanced it to be…No commitment whatsoever.
In its written reply filed on July 6, 1990, the Railway said that the elimination of the additional operator position was unrelated to the facts giving rise to this dispute. In support of that position, it appended copies of correspondence exchanged between the parties with respect to the earlier elimination of an operator position at the same location. Its position was that the Union should have anticipated from that earlier action that the additional operator position would ultimately be eliminated. The position which was abolished is located at Exeter. It is the last of two operator positions at that location. The two positions existed prior to June 19, 1989. On that date, the position of one of the operators was abolished effective September 22, 1989, in a technological change notice issued by the Railway under the JSA procedure. The reason given for the abolition of the position was:
There is an insufficient work load to justify maintaining [the] position. The waybilling duties presently performed by [the operator] will be transferred and absorbed by Lillooet and Williams Lake terminals.
The response of the Union in that dispute was that it had exclusive jurisdiction over the work which was being transferred to Lillooet and Williams Lake. It also notified the Railway that it wanted to engage in the process outlined for technological changes in the JSA. The Railway challenged the Union’s assertion that it had jurisdiction over the duties performed by the operator. It took that position in a letter dated July 5, 1989, in which it also indicated a willingness to meet to discuss the changes pursuant to the JSA.
A further exchange took place between the parties which culminated in the Union taking the position that the assignment of the work was in breach of the collective agreement and a grievance was launched challenging the decision and seeking to have the work reassigned to the Exeter terminal. The grievance was denied by the Railway in a letter dated July 31, 1989, on the basis that the work in question did not fall within the exclusive jurisdiction of the Union. The Union did not carry the matter further. In the result, Exeter continued to be staffed by one operator. As indicated, it was the abolition of that position at Exeter that led to the written submission of the Union in this dispute. That submission reads as follows:
The essential reason for the abolishment of the position was the result of a reduction in seven-day scheduled passenger service. This service is set to reduce to three days per week effective the same day as the position is set to be abolished on September 30, 1990. The position is being abolished because there is insufficient work load for the operator at Exeter. Baggage handling and cashier duties will be reduced to a level whereby those duties will be absorbed by existing station staff. The operator has also lost some train order activity as a result of implementation of the TDCS, but such loss in this instance is insignificant and is not the reason for the abolishment of the position.
The Railway sought to tie that second initiative to the elimination of the first positions. However, connection between them was not readily apparent beyond the fact that both operators occupied positions in Exeter. However, the Railway also argued that the elimination of the last position in Exeter was unrelated to the issues giving rise to the three grievances. In that context, the Railway wrote as follows:
In summary, the evidence in the case before you is that the railway does not presently intend to abolish operator positions arising from the introduction of TDCS. The operator’s position at Exeter was abolished for quite different reasons.
The main reason given for abolishing the position was a reduction in passenger service. The Union responded to the Railway’s submission on July 18, 1990. The Union wrote that the reduction in passenger service was not a significant operational change. Its submission was that the reduction was, in effect, a return to the status quo that existed from 1982 through 1988. The Union said that it was not until 1988 that the Railway began running passenger service on a seven-day week basis. The Union wrote:
Accordingly, the reduction to a three day a week passenger service in September of 1990 is not a reduction in the number of passenger trains from past experience…The fundamental point is that, as [counsel for the Railway] acknowledges, the implementation of TDCS did allow the Railway to eliminate [the operator’s] position. There can be some dispute as to how significant, in terms of time, the train operator’s duties were at Exeter. However, the fact remains that before the introduction of TDCS those functions did exist at Exeter and thus were required to be performed by a [Union] operator pursuant to the existing collective agreement. It is thus the introduction of TDCS which allows the Company to do what they are proposing to do. This again confirms what we argued at the oral hearing and, what the Company witnesses accepted, that the introduction of TDCS, coupled with the FAX system, allowed for the complete elimination of all operator jobs.
The Railway did not challenge my jurisdiction as a referee to consider the issue of the Exeter operator. In any event, substantially the same issues of interpretation arise and it is expeditious for me to address them in the same context as the eight positions which were scheduled for termination on July 27, 1990. I now return to an outline of my reasons for concluding that the JSA does not give the Union the right to prevent the introduction of technological changes, whether on a permanent or a temporary basis.
I commence that reasoning with a review of the dispute resolution mechanism contained in Article 8 of the JSA. The provision that defines the scope of the changes that fall within the process reads as follows:
8(1) The Company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effect 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 concerned to receive such notices. In any event, not less than three (3) 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 Union relied on the phrase, “will not put into effect any [change] which will have [an] adverse effect on employees without giving as much advance notice as possible”. The Union treated that phrase as amounting to an agreement between the parties that the giving of notice is a condition precedent to the introduction of any change. In advancing that position, the Union said that if the Railway could introduce changes without giving notice, it would thwart the process agreed to by the parties for addressing technological changes. That process, said the Union is outlined in Article 8(4), (5), and (6). In particular, the Union said that the Railway, before implementing any changes, is required to follow the process set out in Article 8(4). That provision reads as follows:
8(4) Upon request the parties shall negotiate on items, other than those specifically dealt with in this Agreement, with a view to further minimizing the adverse effects on employees. Such measures, for example, may be related to exercise of seniority rights, or such other matters as may be appropriate in the circumstances, but shall not include any item already provided for in this Agreement.
In addition, said the Union, before the Railway can implement changes which have not been agreed to by the Union, it must submit the dispute to the process contemplated in Article 8(6). That provision reads as follows:
8(6) If the Board of Review is unable to resolve the differences within a fixed period of time to be determined at the commencement of its meetings, or some mutually agreed extension thereof, the matters in dispute may be referred for final and binding settlement to a referee selected by the parties or, failing that, appointed by the Minister of Labour for the Province of British Columbia. The matters to be decided by the referee shall not include any question as to the right of the Company to make the change, which right the Unions acknowledge, and shall be confined to items not otherwise dealt with in this Agreement.
That entire process is frustrated, said the Union, if the Railway is free to introduce the changes without giving proper notice. However, as pointed out earlier, the last sentence of Article 8(6) provides expressly that the Union acknowledges the right of the Railway to introduce changes and that the matters open for review by a referee shall not include any question of the right of the Railway to make the change. In any event, the right of the Union to notice can be secured by access to compensation.
In challenging the Union interpretation, the Railway relied on a decision made by the Canadian Railway Office of Arbitration (CROA). In Case No. 1150, David H. Kates decided in a supplementary award that the remedy for employees who do not receive proper notice is compensation in the form of damages. The decision is brief. It is convenient to reproduce it in its entirety. It reads as follows:
The parties are apart on the implementation of my original award where the company was found in violation of the notice provisions of Article 8.1. It is important to emphasize that the scope of my authority to provide a remedy for the employer’s breach is limited to placing the aggrieved employees in the very same position had the employer complied with Article 8.1 of the collective agreement. It is my view that the only prejudice that has arisen from the employer’s denial of the three month notice period is the missed opportunity for the General Chairman to negotiate during the period the adverse effects of the proposed change. In this regard, the employees had been deprived of the benefits of union representation and the elaborate mechanism provided under Article 8 that includes the recognition, mediation and arbitration of any alleged adverse effect. It is in this context that the aggrieved employees have been shown to be entitled to compensation.
Even if the company had complied with the three month notice provision, on December 31, 1982, it would have been free to go ahead with the proposed change. It may very well be that after December 31, 1982, the mechanism for resolving the adverse effects of the change provided under Article 8 would have continued concurrently with the employer’s implementation. Nevertheless, once implemented, the aggrieved employees, effective December 31, 1982, would then have been entitled to maintenance of basic rates benefits under Article 8(9). To repeat, the aggrieved employees cannot be placed in any better position than had the employer complied with Article 8(1) and, as I have suggested, their entitlement is to compensation for the three month period that their trade union representative was deprived of the opportunity to negotiate on their behalf the adverse effects of the proposed change.
The trade union claims that, because the employer failed to give notice, such notice of three months duration should be directed effective the date of my original decision. The effect of that submission, if successful, would operate to roll back the change. This simply is not what the collective agreement contemplates. The collective agreement anticipates a minimum notice of three months during which time the employer is prevented from implementing its proposed change. If the trade union’s submission is acceded to a notice period of approximately fifteen months would result. The Article 8 notice provision allowing the negotiation, mediation and arbitration of the adverse effects of the proposed change before which no implementation can take place is not intended to be open ended. At best, the notice period terminates on the expiry of three months. Accordingly since the grievors were deprived of that three month benefit the company is directed to compensate them for that period at the appropriate rate of pay. (emphasis added)
The language at issue in that decision was not reproduced. However, other CROA decisions indicate that the national railway language is similar to the language of Article 8.1 of the JSA. In awarding compensation, Mr. Kates concluded that the employees affected were entitled to receive three months’ pay, being the period during which they would have been entitled to retain their employment if the employer had given proper notice and had afforded the union an opportunity to address the issue. In reaching that conclusion, he made the observation that the language did not contemplate a right in the union or an arbitrator appointed under the agreement to “roll back the change”.
Here, a not dissimilar proposition is advanced by the Union when it submits that I have a jurisdiction to require the Railway to postpone or reverse the changes for the period required to process the dispute under the JSA. In the CROA decision, the arbitrator acknowledged that the language of the provision prohibited the introduction of changes during a period of three months. But his decision is not consistent with a right in the Union to require the employer to either roll back a change that has been implemented without the requisite notice or to prohibit the introduction of a change pending the giving of adequate notice.
The remedy for the breach of any provision of a collective agreement (and, by analogy, a breach of the JSA), is to place aggrieved employees in the position they would have occupied if the breach had not occurred. In the CROA decision, it was concluded that awarding the aggrieved employees full pay and benefits for a period of three months placed them in the same position they would have occupied if the railway had given proper notice. There, the arbitrator was asked to do the equivalent of what the Union seeks in its declaration in these proceedings. That is, whether the issue raised is one of prohibiting the introduction of changes which are pending or one of requiring the reversal of changes already implemented, the effect is the same as recognizing a jurisdiction in a referee to “roll back” changes. The remedy contemplated in Article 8 is not to prevent the implementation of the changes at any stage. It is to provide the appropriate remedy for employees affected by the change, including compensation for a failure to give proper notice.
On the facts in this dispute, it is conceded that notice was given with respect to the elimination of the nine operators positions, including the position at Exeter, and the question is whether the notice was adequate. In the case of the changes proposed with respect to the dispatchers, the question is whether those changes fall within the scope of Article 8 and thus require notice. Once again, notice was given but not in the format developed between the parties with respect to changes that the parties agree are technological changes within the meaning of the JSA. Hence, on that issue, there are questions arising as to whether notice is required; whether the notice given was adequate; and, if the changes are seen as having an adverse impact upon the dispatchers, what remedy is appropriate. In all of those circumstances, the issue lies to be addressed in the context of whether the necessary notice was given and, if not, what remedy the affected employees are entitled to claim in response to the failure to give notice.
Having concluded that the agreement does not contemplate a right to prohibit the introduction of changes or to reverse changes already implemented, I turn to the additional issues raised with respect to the Union application for a declaration. The declaration sought invites me to find that the Railway can be required to give more than three months’ notice. The Union position is that three months’ notice is the minimum required. The Union said that the Railway is required under Article 8(1) to give “as much advance notice as possible”. That language, said the Union, cannot be read as limiting the obligation of the Railway to three months’ notice.
The Railway relied on the decision of Mr. Kates in the CROA case to support its contention that its obligation to give notice is limited to three months because, in that case, Mr. Kates concluded that entitlement to compensation in the case of a failure to give notice was limited to three months. However, the question of whether additional notice was required under the provision was not addressed in that decision. In any event, the language of Article 8 is clear in its requirement that the Railway give as much advance notice as possible and I agree with the submission of the Union that three months is the minimum notice to which employees are entitled, not the maximum. Where there is evidence to indicate that a longer period of notice was possible, the Railway can be held to a longer period. Hence, in any dispute about a failure to give notice, where the Union can establish that a longer period of notice was possible, the Railway’s obligation will be extended.
As stated previously, this award deals with the preliminary issues and the factual question of whether a longer period of notice was possible was not addressed in the evidence. There were assertions made by counsel that the Railway did give notice of its intention to implement the changes as soon as that decision was made. The Union saw the obligation as requiring the Railway to give notice as soon as it knew that the changes were possible. In my view, the plain language of the provision requires that notice be given when the Railway knows that the change will be introduced.
The submission of the Railway was that the provisions similar to Article 8(1) have been in existence in the national railways for more than 30 years and have been the subject over those years of interpretation by CROA. In that context, the Railway said that it had been unable to find a CROA decision in which the interpretation advanced by the Union was adopted. However, the corollary is equally true. That is, the Railway did not provide me with any prior decision of CROA in which the narrow interpretation it advances in this dispute was adopted or where the interpretation advanced by the Union was rejected. The language at issue clearly contemplates that changes in working conditions which can be seen as impacting adversely on employees can fall within the language. That is all that I am required to address in this dispute. The Union did not seek to have me make a finding that the changes did impact adversely or to address the question of what remedy should flow from such an adverse effect.
In the hearing, I was given a view of the dispatch centre by the Railway and a summary of its anticipation with respect to how the proposed changes will impact upon dispatchers and their existing working conditions, particularly those related to stress and what opportunities will exist to take nourishment during the course of the shift. However, the scope of the declaration sought by the Union does not raise the issue of whether the changes will, in fact, have an adverse effect on dispatchers. The sole question is whether changes may have an adverse effect on the manner in which employees perform their duties can require the Railway to give notice under Article 8(1) and whether they can trigger a remedy fashioned by a referee under Article 8(6). The answer to those questions is, yes.
It is true that the Union sought to have me declare that the Railway was obligated to give notice of the changes even in the absence of a finding that they would have an actual adverse effect on the dispatchers. But that position was taken in the context of its submission that the changes at issue should be postponed or reversed until their status under Article 8 had been determined by negotiation and, if necessary, by a referee. I have dealt with that submission at length. My conclusion is that the right of the Union is to assert that notice should have been given and that the dispatchers involved should be compensated for any breach of Article 8. I am not required to address the factual questions of whether notice was given, whether it was adequate notice, whether the impact upon the dispatchers is adverse in the sense contemplated in the provision, or whether there is any entitlement to an adjustment to the terms and conditions governing the dispatcher position to compensate them for the changes. Those are issues to be addressed by the parties and, if necessary, to be addressed by a referee appointed under Article 8(6).
In the event the parties are unable to agree and a referee concludes that some compensation in the form of an adjustment to the terms and conditions of employment is appropriate, the issue of compensation can be addressed on the basis that the dispatchers were entitled to a minimum period of three months’ notice of the changes and are, thus, entitled to be compensated for any deficiency in notice found by the referee. That is compatible with the approach taken by Mr. Kates and is compatible with the language of the JSA.
Lastly, I turn to the question raised by the Union with respect to the extent of the obligation of the Railway to give notice in excess of three months. The Union expressed a concern with respect to the potential for the elimination of further operator positions. Its concern is that once operators have exercised their seniority and have relocated in response to the elimination of the nine positions, they should not face further disruption and further dislocation by reason of the elimination of further operator positions.
As stated, the Railway gave an assurance in the arbitration proceedings and in these proceedings that no further changes are planned. The Union expressed a profound scepticism with respect to that assertion based upon the fact that the technological changes that gave rise to the abolition of the first eight operator positions gives the Railway the potential to eliminate all operator positions. The Union sees the elimination of further positions as possible, if not inevitable. That position was based not only on the technical potential to eliminate all positions, but also on the fact that the national railways have taken that step. It was in that context that the elimination of the ninth position exacerbated the Union concern, leaving it to question more emphatically the good faith of the Railway’s assertion that no further abolition of positions is planned. In that context, the Union raises the rhetorical question of how much notice meets the test of, “as much advance notice as possible”, and urges that the declaration embrace a directive that the Railway is obligated to give notice of all plans to abolish positions, even where no decision as to timing has been made.
I have expressed the view that the Railway is obligated to give notice of any proposed changes as soon as it is known that they will be introduced. has been made to initiate them. It may be that particular facts will arise in some cases which will establish that it was possible in the past to give notice before it was actually given. That is a matter to be addressed in the lending of evidence and in the cross-examination of witnesses who can given evidence as to the circumstances surrounding the decision. Further, future changes, if any, can be assessed on the basis outlined.
I turn finally to the declaration sought by the Union. I am not able to say that the Railway can be required to delay or reverse proposed changes. The rights of employees affected by changes that have an adverse impact are limited to notice and to the various forms of compensation outlined in the JSA. Those forms of compensation are well-defined in terms of employees who face job disruption or loss of employment. The remedy for a failure to give adequate notice is also compensation, either in the form of wages in lieu of notice or compensation for other benefits lost by the affected employees by reason of the failure to give proper notice.
The governing principle is the one set out by Mr. Kates in the CROA decision. Employees are entitled to be placed in the position they would have occupied if proper notice had been given. That does not include a right to have the proposed changes delayed or reversed while a dispute over the application of the JSA is negotiated and adjudicated. That interpretation of the JSA would have the same effect as the one rejected by Mr. Kates. That is, it would extend the notice requirement beyond the period contemplated in the provision.
Hence, the Union is entitled, firstly to a declaration that three months is the minimum notice required and that employees affected adversely by a change within the context contemplated in Article 8 were entitled to receive notice of those changes as soon as the Railway knew they would be introduced. Secondly, the Union is entitled to a declaration that changes that impact adversely on the way in which job duties are performed are not excluded from Article 8 by reason only that they do not result in job dislocation or loss of employment.
Alternatively, the Union was and is free to initiate the Article 8 process, whether or not the Railway elects to give notice, and any dispute on the issue will be submitted to a referee for resolution. In short, it is open to the Union to invoke the process at this stage with respect to changes already introduced or pending, including an inquiry into whether the abolition of other positions are planned. In the event the Union and the Railway cannot reach an accord on those issues, it is open to either party to refer the matter to a referee.
DATED at the City of Vancouver, in the Province of British Columbia, this 27th day of September, 1990.
H. ALLAN HOPE, Q.C. - Arbitrator