IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
UNITED TRANSPORTATION UNION
GRIEVANCE RE TRANSFER OF KAPUSKASING SUBDIVISION TO THE O.N.R.
ARBITRATOR: Michel G. Picher
APPEARING FOR THE
COMPANY: A. E. Heft - Manager, Labour Relations,
M. Delgreco - Director, Labour Relations,
APPEARING FOR THE
B.L.E. Gilles Hallé - General Chairman
APPEARING FOR THE
U.T.U. Raymond Lebel - General Chairperson
A hearing in this matter was held in Toronto on July 4, 1991.
This is an arbitration in respect of an operational change affecting locomotive engineers and trainmen. The facts and issues are summarized in the Joint Statement of Issue filed by the parties at the hearing, which is as follows:
Joint Statement of Issue
On 28 March 1990, the Company served notice to the Brotherhood of Locomotive Engineers and the United Transportation Union pursuant to Article 78.1 of Agreement 1.1 and Article 79.1 of Agreement 4.16 of its intention to implement certain changes of an operational nature on the Kapuskasing Subdivision as a result of the conveyance of this line to the Ontario Northland Railway, effective 30 June 1990.
The conveyance of the Kapuskasing Subdivision to the Ontario Northland Railway will result in employment opportunities to transfer to the Ontatio Northland Railway and such, opportunities are being offered to employees adversely affected by the conveyance. In this regard, the Brotherhood of Locomotive Engineers are being offered up to two employment opportunities and the United Transportation Union is being offered up to seven employment opportunities to transfer to the Ontario Northland Railway.
Meetings and discussions between the parties to negotiate a settlement regarding the issue of benefits to be provided those employees adversely affected resulted in no agreement being reached and the Company’s offer of settlement had been rejected by both Unions. Following the cessation of negotiations, the issues in dispute were referred to a Board of review for mediation. Subsequently, the Board of Review was unable to arrive at a joint recommendation for settlement.
The parties have submitted the following names as remaining in dispute.
1. Retirement credits for loss of work entitlement on the Second and Elenventh Districts.
2. Separation allowances to be calculated utilizing the VIA 80% Formula for employees
3. Defferd Separption Opportunities.
4. Retirement credits to be offered first to the District, and any unused credits to be banked.
5. Relocation Benefits: $27,000.00 Lump Sum; Plus $18,000.00 Buy and Sell anywhere
6. Maintenance of Earnings
7. Flowback Rights - From O.N.R. to CN
8. If Flowback is not included, a severance payment of $50,000.00 to be paid to employees transferring their employment to the O.N.R.
9. French courses to be made available to employees relocating to Quebec, fully paid by the Company.
It is recognized that a mutual agrement could not be reached between the parties and it was agreed that the issues outstanding would be referred to Arbitration as contemplated by clause (a) of Article 78.4 of Agreement 1.1 and clause (c) of Article 79 of Agreement 4.16.
The facts are not in dispute. The Company has arranged to transfer the Kapuskasing subdivision, including a section of track known as the "Pagwa Spur" between Cochrane and Calstock, Ontatio to the Ontario Northland Railway. It appears that the latter intends to operate the subdivision as part of its provincial railway system, and that it will continue to serve the freight traffic in the area, consisting mainly of pulp, paper and lumber materials and products. Notice of the transfer was duly served on the two unions which are a party to this arbitration, as well as to five unions representing non-operating employees of the Company. While the notices to the non-operating unions resulted in negotiated agreements between those unions and the Company with respect to the minimizing of adverse affects for employees impacted by the operational change, nagotiations with the locomotive engineers and trainmen did not result in an agreement, nothwithstanding the referring of the dispute to a Board of Review, thereby necessitating this arbitration.
While the initial notices to the unions indicated that the position of two locomotive engineers and seven trainmen stationed at Cochrane and Hearst would be affected, it later became apparent that notices would also be required for one locomotive engineer and three trainmen outposted at Taschereau, Quebec, where a roadswitcher assignment is being abolished. Upon failure of the Board of Review to arrive at a joint recommendation the parties referred this matter to the Arbitrator for final and binding determination under provisions of paragraph 78.4 of article 78 of agreement 1.1 and subparagraph (d), paragraph 79.1 of article 79 of agreement 4.16.
The manner in which the instant case has been presented gives the Arbitrator substantial difficulty. While the parties presented at the hearing the positions which they put forward during negotiations, as well as the positions which they espoused at the arbitration stage, they did not disclose their final positions tabled before the Board Review. The collective agreement provisions under which this arbitration is conducted contemplate the referal to the Arbitrator of "issues ... remaining in dispute" following the exhaustion of the Board Review procedure. As the negotiation and settlement of issues in proceeding of this kind are largely the product of give and take in accordance with the parties’ own priorities, it becomes difficult for an arbitrator to resolve the dispute while being kept unaware of the final position taken by each party, with no clear indication of which were the impasse issues.
In these circumstances the Arbitrator feels it more appropriate to issue a decision which provides a "bottom line" without an elaboration of the reasons for the items awarded. When resort must be had to conjecture as to the actual positions of the parties, with little indication of the relative importance which they attach to the various issues, a rational analysis of the true issues in dispute is difficult, if not impossible, to articulate.
The Arbitrator therefore awards as follows:
1. The Company shall establish a transfer arrangement whereby up to nine employees (two locomotive engineers and seven trainmen) are to be given the opportunity, according to seniority, to transfer their employment to the Ontatio Northland Railway.
2. Retirement credits based on a maximum of three retirement credit s for the Brotherhood of Locomotive Engineers’ employees and ten retirement credits for the United Transport Union employees shall be provided, on condirion that the maximum number of retirement opportunities be reduced proportionally by the number of employees who elect to transfer to the Ontario Northland Railway.
3. Early retirement separation allowances are to be calculated in accordance with article 78.10 of agreement 1.1 and article 79.3 of agreement 4.16.
4. Relocation benefits are to be provided to eligible employees in accordance with the provisions of article 78.8 of agreement 1.1 and article 79.2 of agreement 4.16. In addition, employees who elect to remain in the employment of Canadian National and who are forced to relocate shall receive a lump sum payment of $18,000.00 in recognition of housing cost differentials.
5. Maintenance of earnings protections shall be provided to eligible affected employees and to employees who may be subsequently displaced as a result of the operational change implemented, as outlined in Appendix (B) of the Company’s offer dates January 23,1991. For the purposes of clarity, the maintenance of earnings protection described herein is limited to those employees who elect to retain their employment with Canadian National.
6. Employees who elect to transfer to employment with the Ontario Northland Railway shall have "flow-back rights", that is to say, they may elect to return to the employment of the Company, but the event that they unable to protect their employment with the Ontario Northland Railway. The terms and the conditions of the flow-back arrangement shall be the same as were established in the VIA Transfer Agreement.
7. Any employee who elects to remain in the employ of Canadian National and who is transferred to a home station in the Province of Quebec shall be entitled to receive four weeks of paid language training as well as two weeks’ on the job training, if it is established that he or she is not functional in the French language for work purposes.
The Arbitrator retains juridiction in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.
DATED at Toronto this 1st day of October, 1991.
- - - - - - - - - - - - - - - - - - - - - Michel G. Picher Arbitrator