AH – 312
IN THE MATTER OF AN ARBITRATION
BC RAIL LTD.
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL NO. 6
GRIEVANCE RE NORTH VANCOUVER TRACK PATROLMEN ASSOCIATION
SOLE ARBITRATOR: H. Allen Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Vancouver, B.C., on April 28, 1992.
This dispute arose when the Railway gave notice of a technological change which would result in the relocation of the headquarters of North Vancouver patrolmen to Squamish. The change was implemented on January 19, 1990 and an issue arose as to whether the notice, which was given by the Railway under the provisions of the Job Security Agreement (JSA), was proper. A further issue arose with respect to whether the affected employees had a claim arising under the JSA for compensation for “adverse effects “ which continued to afflict them by reason of the change. Many of the patrolmen elected not to move their residences to Squamish with the result that they commuted from their homes in the Vancouver area on a daily basis. That fact was the primary basis for the claim that there have been continuing adverse effects arising out of the change.
Before proceeding with the dispute, it is convenient to dispose of a jurisdictional issue raised by the parties. The dispute arose in formal terms with the filing of a grievance on November 9, 1989. At that time the Union was proceeding on the understanding that disputes with respect to technological changes had to be addressed under the grievance procedure of the collective agreement even though it was the JSA that contained the technological change provisions agreed to between the parties. However, before the dispute came to a hearing, a similar issue arose in a dispute with another of the unions representing employees of the Railway which was signatory to the JSA. (Technically speaking the JSA is in agreement between the Railway and Council of Trade Unions representing various of the unions in the multi-union bargaining unit). In that case, the jurisdictional question with respect to the resolution of disputes arising under the JSA was addressed. See: BC Rail and Transportation communications Union System Board 496, Lodge 1828, May 14, 1990, unreported.
In that dispute it was determined that an arbitrator is without jurisdiction to resolve disputes falling within the JSA, but that it is open to any of the unions which are signatories to that agreement to initiate what amounts to a grievance under its provisions and have the dispute referred to a referee for determination. That decision caused the Union in this dispute to write to the Railway on May 28, 1990 and, in effect, to seek to have the grievance proceed under the JSA. When this matter proceeded, the Railway took the position that I had no jurisdiction as an arbitrator appointed under the collective agreement, but it agreed to have the matter proceed on the basis that I had the jurisdiction of a referee appointed under the JSA. The hearing proceeded on that basis.
The two issues raised by the Union, broadly stated, were the procedural question of whether the notice issue by the Railway met the requirements of Article 8(1) of the JSA. (I will set out the terms of that provision later in this award) . The second issue involved a claim for compensation under Article 8(4) of the JSA for continuing adverse effects experienced by employees as a result of the change. (I will set out that provision later). Those claims were brought on behalf of employees who had elected not to move their homes from the Vancouver area to their new headquarters location in Squamish. In addition there was a claim advanced on behalf of patrolmen awaiting northbound patrols in the North Vancouver area for the erection of washroom and lunchroom facilities and a claim which was not particularized which appeared to be a requirement for the provision of lunchroom facilities for patrolmen generally.
I will set out those claims in more detail later. At this stage I note that the position of the Railway was that the notice given met the requirements of the JSA and, in any event, that there had been considerable dialogue between the parties with respect to the change and its potential impact upon the employees affected. The Railway said further that the claims advanced on behalf of the employees did not fall within the provisions of the JSA and, in any event, that the Union had not followed the procedure set out in Article 8 for the resolution of claims made under Article 8(4). I turn to now to the facts giving rise to the dispute.
The first formal notice of an intention to move the North Vancouver patrolmen to Squamish was given on March 10, 1989. The change under that notice was to take effect on June 25, 1989. That notice was subsequently withdrawn in circumstances I will relate later. The substance of the notice was repeated on April 3, 1989 and was then fixed to take effect on January 1, 1990. Formal notice was given on October 19, 1989 that the change would be implemented on January 19, 1990 and the change was implemented on that date. Briefly stated, the events leading up to that final notice commenced on or before January 24, 1989. On that day the Union wrote to the Railway stating that there had been “suggestions … that the patrol positions at North Vancouver … may be abolished in the near future”. The March 10 notice followed, advising that six permanent patrolmen’s positions at North Vancouver would be abolished and four permanent and two temporary positions would be established at Squamish.
However, prior to that notice, and specifically, on March 2, 1989, Mr. Norris, the then president and chief executive officer of the Railway, had written to the Union advising that the Railway had “decided to maintain the present train patrol schedule throughout 1989”. The issuance of the Railway’s notice advising that patrolmen would be relocated prompted a reply on March 20 from the Council of Trade Unions in which the commitment of Mr. Norris was noted. It was apparent that management at the operations level was not aware of the letter of Mr. Norris. The notice was later withdrawn on the basis that moving the headquarters of patrolmen could be read as being inconsistent with the commitment given by Mr. Norris.
On March 28 the Union wrote to the Railway and relied on Article 7 of the JSA to support its assertion that full particulars, including “patrol instructions” and notice to “affected shifts in Squamish”, had not been given. Included was the assertion that “no statement has been made [to the patrolmen] relevant to full particulars of shifts, start up times and locations, or direction”. The Union went on to advise that the patrolmen at Squamish would be affected because there would be a restructuring of shifts there and they had not been given notice of full particulars”. The Union then posed a question of whether the patrols at Squamish were to be track patrols or train patrols. The Union also requested particulars of which jobs would be permanent and which ones temporary in the existing jobs at Squamish. The Union added that it would be seeking information with respect to early retirement rights for some of the affected patrolmen under the JSA and, finally, the Union requested a copy of the study the Railway had conducted prior to deciding on the change.
Before continuing, it is appropriate to note that there was considerable documentation with respect to exchanges over the months between the Union and the Railway on the relative merits of the technological change, including the financial merits. The blunt fact, which was conceded by the Union in this dispute, is that those matters are irrelevant because the JSA expressly excludes any jurisdiction in a referee to question the wisdom of the Railway in instituting technological changes. In particular, the right of the Railway to make changes is expressly acknowledged in the JSA itself. The following is an extract from Article 8(6) of the agreement:
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.
In its submission the Union gave nominal recognition to that provision, but much of the documentary evidence and evidence led viva voce addressed the question of whether the change was a sound business move, whether it compromised safety and, generally, whether it was a prudent decision. It was in that context that the Union sought to obtain a copy of a study done by the Railway prior to initiating the change. That request was denied and the Union revived it in this hearing and it is in that same context that it is important to emphasize that the Railway’s reasons for making the change and the validity of those reasons are irrelevant. It was open to the Railway to provide information with respect to the reasons that gave rise to the change, but the Railway cannot be compelled under the JSA to address those questions. Hence, while those exchanges between the parties were of assistance in placing the dispute in perspective, they do not form any basis for concluding that the notice was deficient or for determining the issue of compensatory relief.
Returning to the chronology, on April 3, 1989 the Railway wrote to the Union and advised, inter alia, that the commitment of Mr. Norris would be honoured and the patrols would be maintained for the remainder of the year. However, the letter included the following notice:
Please consider this as formal advice of an operational change pursuant to the Job Security Fund Supplemental Agreement, effective January 1, 1990. The patrolmen’s positions will be abolished and four new permanent to temporary patrolmen positions will be established with their headquarters at Squamish.
On April 25 the Railway wrote to the Union indicating that in a meeting on April 4 with the Council of Trade Unions it had confirmed that the track patrol issue would be discussed with this Union later in the year. On June 26 the Union wrote to the Railway and made a lengthy submission directed once again at persuading the Railway not to proceed with the proposed change. Included in that submission was the prediction that some North Vancouver patrolmen may elect not to move to Squamish. In that context the Union contemplated that there would be “assistance of $300 per month for travel in lieu of moving expenses for those employees” under the JSA. The Union did not assert at that time that any broader remedy existed under the JSA for those employees.
On July 14 the Union wrote to the Railway and recorded its belief that the track patrol changes were imminent and that the pending discussions may be redundant. The Railway replied on July 25, assuring the Union that a consultation meeting would occur before any relocation of the patrols was finalized. On August 14, 1989 the Union wrote to the Railway saying that a date for the meeting should be fixed. The Railway replied on August 21, saying that a meeting would be held “towards the end of September”. On September 8 the Union wrote to the Railway and advised that the Union had been informed that “shift schedules for the North Vancouver patrols being moved to Squamish” were in the course of being drafted and were in the possession of the Squamish roadmasters. The Union requested that the shift schedules be provided as part of the proper notification required under the JSA.
On October 10 a meeting was held between the Railway and the Union to discuss the changes in the patrol and the Union was given an opportunity to obtain details about how the changes would affect its members. On October 19, following that meeting, the Railway sent out the final notice advising that the North Vancouver positions would be abolished and the Squamish positions established effective January 19, 1990. That notice reads as follows:
Effective completion of shift January 19, 1990, all Track Patrol positions headquartered at North Vancouver are abolished. The December Bulletin will show four permanent Track Patrol positions and two temporary Track Patrol positions headquartered at Squamish. These positions will be in addition to the existing Track Patrol positions currently headquartered at Squamish. The Monthly Bulletin will also provide the details relating to the hours of each position and the days each position works. Six employees will be affected; F.A.C. Smith, Fernando Albino, Ruin Howard, Augusto Covita, John Gumart and John Machado. These employees will be eligible for relocation assistance under the terms of the Job Security Fund Supplemental Agreement.
It should be noted that the notice directed itself toward “all track patrol positions headquartered at North Vancouver”. There was at least one patrolman other than those identified in the notice who became affected by its terms in the sense that he acquired a permanent patrolman position in North Vancouver two weeks before the change. However, the notice addressed itself to positions, even though it named individuals, and its validity was not subject to challenge on the basis that the individuals who occupied the affected positions had changed. Strictly speaking, the obligation of the Railway under Article 8(1) was to give notice to the Union, not individual employees, and to identify the number of employees affected. That provisions reads as follows:
(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 notice led to the filing of the grievance on November 9, 1989. The substance of the grievance was that the notice failed to comply with the provisions of Article 8(1). The Union took the position that the notice did not constitute “a full description … with appropriate details as to the [consequential] changes in working conditions” which would arise as a result of the change. It was submitted in the grievance that such details should include:
(a) A description of the shift starting time, days off, location of layover facilities, etc.
(b) How the patrolmen at Squamish may be affected?
(c) Where the patrolmen filling the new vacancies in Squamish were to park their automobiles?
(d) What provisions would be made for a layover facility in North (or) West Vancouver similar to a facility available to patrolmen at Garibaldi?
(e) What washroom facilities were to be made available at North Vancouver?
The remedy sought by the Union in the grievance was that the Railway abandon its relocation of the patrolmen. The Railway did not accede to that request. However, it is of significance that the Railway made it clear that it was prepared to discuss details with respect to the impact of the change with the Union. The Railway answered the letter on November 21, 1989 advising, in effect, that it considered the notice to be adequate but offering to provide further details in meetings scheduled for November 29, 30 and December 1, 1989. On November 14, 1989 the Union wrote to Paul McElligott, the successor to Mr. Norris, and detailed its position, the thrust of which was designed to persuade the Railway not to proceed with the change. In that letter the Union noted that the Railway had decided not to maintain patrols between North Vancouver and the Horseshoe Bay Tunnel and questioned the validity of the decision to move the patrolmen to Squamish in light of that fact. Mr. McElligott replied on November 27 in a letter which read in part as follows:
Given that the Roadmaster for the Squamish subdivision has been relocated to Squamish and that Squamish is approximately at the centre of the territory covered by the train patrols, we concluded that it was appropriate to relocate the patrolmen’s headquarters to Squamish in 1990 for financial as well as operational reasons. We appreciate that this change in location is inconvenient to the patrolmen involved but the relocation is in the best overall interest of the Company. We will proceed with the relocation effective early in 1990 and the employees involved will be provided the benefits set out in the Job Security Agreement. Thank you for your correspondence but, having reviewed this situation in detail, I see no reason why the decision should be reversed.
In the meantime, on November 21, 1989, the Railway had responded to the grievance with the assertion of its view was that the notice was in proper form. The Railway offered to discuss the issue further in meetings set for November 29, 30 and December 1. On November 28 the Union wrote to the Railway advising that they had been informed that a revised patrol schedule was being drafted for patrolmen who were being relocated to Squamish and suggesting that the Union should be involved in the process. The Railway did not reply to that letter until after the December bulletin when the schedule was published. The reply came on January 2, 1990 confirming that a copy of the schedule had been provided to the Union two days after its letter of November 28 and, in any event, that the schedule had been published in the December bulletin on December 5. The Railway also confirmed that the issues had been discussed in the meetings in November of 1989 and that the Railway’s position had been set out by Mr. McElligott in his letter of November 27.
Prior to those meetings, the Union took the grievance to Step 2 in a letter dated November 28, 1989. On December 5 the December bulletin referred to in the October 19 notice was posted. It contained details of shifts at Squamish that I will refer to later. On December 8, the Railway rejected the grievance and the matter was advanced to arbitration by the Union on December 19, 1989.
In the interim, and specifically on November 28, 1989, the Union wrote to the Railway saying that it had heard that supervisory personnel at Squamish were drafting revised patrol schedules. The Union suggested that a meeting should be held between it and the Railway to draft the schedules. Following thereafter was the posting of the December bulletin. It set out an introductory paragraph which reads:
Effective completion of shift January 19, 1990 all track patrol positions headquartered at North Vancouver and Squamish are abolished. New positions will take effect January 20, 1990 …
The bulletin listed eight permanent patrol positions at Squamish, including two relief patrols. It also listed two temporary positions. Included in the bulletin were details as to hours of work and shift days. Ultimately the position of the Union was that the details were both inadequate and late.
On December 12, 1989, the Union wrote to the Railway advising that it presumed that the patrolmen who had received notices of the abolition of their jobs “would be the persons given the first opportunity on the [December] bulletin”. On December 19 the Union wrote further to the Railway proposing that the change be postponed until after the construction season in 1990. The Railway rejected that proposal and the change was implemented on January 19, 1990. That initiative led to a continuing series of exchanges between the parties with respect to the impact the change had on the employees involved. The change remained controversial because, as predicted by the Union, a number of the patrolmen elected not to move their residences to Squamish, with the result that they have had to commute to work from the Vancouver area.
In that context, evidence with respect to what the Union perceived as adverse effects was given by two of the patrolmen affected, Fernando Albino and Earl Fisher, a long-time officer of the Union. Both men had established homes in the Vancouver area and both of them were married to women who had their own career commitments and who could not move to Squamish. In the result, they both decided to commute to Squamish in order to maintain their employment in the patrolman classification. In the result, both men claimed and received relocation benefits under Article 7 (B) (7) of the JSA. That provision reads in part as follows:
7 (B) (7) If an employee who is eligible for moving expenses does not wish to move his household to his new location he may opt for a monthly allowance of $300, which will be payable for a maximum of fifteen months from the date of transfer to his new location.
The position of the Union, in effect, was that because the notice given was not sufficient, and because of continuing adverse effects, the patrolmen who elected not to move to Squamish should be seen as entitled to received a monthly allowance for a further period of unlimited duration in order to compensate them for those adverse effects. To understand that aspect of the Union position it is necessary to trace the history of the dispute following the giving of notice. As indicated, the notice contemplated that the change would be made effective January 19, 1990 and that “details relating to the hours of each position and the days each position works” would be set out in the monthly bulletin. Those details were provided in the December 5, 1989 bulletin.
On January 12, 1990 the Union wrote to the Railway setting out a number of questions that patrolmen had been asking about the impending move. The letter listed eleven detailed points regarding the proposed change with a request that the questions be answered no later than noon on January 17. The Railway provided an answer on January 15 which appeared in the form of a letter. The points raised by the Union were summarized in its letter as follows:
1. Where will the patrolmen go with regards to having their lunch?
2. Where will they park their cars?
3. What will their south limit be – Capilano River Tool Sheds, or is there some other designated turnaround point for the patrolmen?
4. What bathroom facilities are available for the patrolmen when waiting at North Vancouver? Will the patrolmen be transported to the Station to use the toilet facilities, and where will they house themselves temporarily while waiting for the northbound movements?
5. When they are ordered to relocate on January 19, how will they get their speeders to Squamish?
6. Also, on January 19, 1990 how will they get from Squamish back to North Vancouver, if they patrol to Squamish and tie their speeders up at Squamish, how will they return to North Vancouver where their cars are parked?
7. When the employees are obligated to report to Squamish on the dates and times pursuant to the January bulletin #493, Successful Applicants, the patrolmen are asking will they be patrolling north bound from Squamish, or south bound from Squamish, because it appears there are no train/patrols schedules prepared for the patrolmen to understand the direction of their responsibilities?
8. How will their speeders be repaired, and where will they receive necessary parts? At present there are two travelling mechanics, one in North Vancouver (Sergio Teixeria) and one in Squamish (Earl Leach)? Which mechanic will attend to the relocated patrolman for parts and services?
9. When the job commences in Squamish, who will be the immediate supervisor directing the patrolmen to their assigned shifts regarding north bound travel or south bound travel.
10. What arrangements have been made regarding the patrolmen being able to travel through the gangs once the gangs commence on February 5, 1990?
11. Can the home telephone numbers of the contact supervisors be posted in an appropriate location so patrolmen have access to immediate updates on their work situations? Please have these phone numbers distributed to the patrolmen as soon as possible, as the patrolmen on night shift will not be able to contact the supervisors at work during regular working hours.
I digress to note that a number of those questions do not relate to the impact of the change in the sense contemplated in the JSA. They relate to working conditions in the sense of conditions affecting the performance of the work coincidental with and following the relocation of some of the patrolmen to Squamish. That fact is reflected in part in the reply given by the Railway on January 15. The substance of the reply is as follows:
In answer to the Fax dealing with Bulletin 494, you must be aware that the permanent positions now bulletined cover the positions for both Squamish and North Vancouver. There is an actual reduction of three (3) temporary positions. I have reviewed the Fax copy of the letter dated January 12, 1990, and I have consulted with the Track Maintenance Engineer in charge of the relocation. The following is in response to your questions:
1. The Patrolmen are paid through their lunch break, and as in the past, take lunch when time permits. This could be and usually is, in their track units.
2. Cars will be parked at the speeder sheds.
3. The sought limit will be the Capilano Bridge until the rail relay is complete.
4. No bathroom facilities are available, nor has there been in the past. Yard Office facilities have always been available and employees normally have used these facilities prior to starting shift. Employees will be instructed to patrol track, train or no train.
Respecting questions numbered 5 through 10 inclusive, you understand that the Roadmaster or Assistant Roadmaster has the responsibility of addressing all of the issues you raised. In this incident, the supervisors will be directing and arranging for transportation of speeders, transportation of employees, employees work schedule, mechanical repairs and travelling through gangs, etc.
Respecting your question 11, the Patrolmen will be advised of the telephone numbers requested.
The position of the Railway was that issues with respect to the change should be raised and discussed between the parties. In that context, the Railway offered on a number occasions to discuss any additional issues raised by the Union. The position was repeated in its January 15 letter as follows:
For over several months now, we have had many discussions respecting the relocation of the patrols to Squamish with you and your Executive Committee. I hope all of your questions and those of your members have now be addressed in full. However, should any further concerns arise respecting this issue, feel free to contact me directly so that these concerns can be discussed and resolved at a local level.
The parties continued to discuss the dispute, but, as of May of 1990, had been unable to settle it in the grievance procedure. After the decision in the Technological Change Arbitration was published, the Union, on May 28, 1990, wrote to the Railway and sought to invoke the reasoning in the decision to support a reference of the dispute to the referee process. In its letter, the Union outlined a number of matters that were seen as falling within the jurisdiction of a referee. Those matters were listed in the Union’s letter as follows:
Items for the Referee’s consideration that the Union proposes include, but as of this date, are not limited to:
– Travel time from North Vancouver terminal to Squamish speeder sheds to be paid to the relocated employees, to be not less than two (2) hours at overtime rates for each day worked at the new location.
– Away-from-home meal costs paid at $34.00 per them to the relocated employees.
– All winter driving necessities costs reimbursed to relocated employees, including: block heater purchase and installation, battery heater purchase and installation, snow tires purchased and seasonal mounting and dismounting, tire studs and/or tire chains purchased and installation, rear window defrosters installation and costs, antifreeze for motor and windshield, ice scrapers and winter wiper refills, etc.
– Costs and all associated wage-loss for marriage counselling at least three times per year for duration of employment with B.C. Rail.
– The Railway to assume all costs normally referred to Insurance Corporation of B. C. for accidents and damage which occur on Highway 99 between Taylor Way exit and Squamish speeder sheds.
– The Railway to assume all legal costs, fines, fees, and any associated costs from traffic violations on the Squamish Highway.
– One day per month paid stress leave to be provided to be taken at any time by employee option each year to offset difficulties of longer shifts and highway travel.
– Any and all payment to be made to employees for as long as they are located in Squamish, not just for the ninety (90) day notification period.
The points raised in the lists of January 17 and May 28 represent a summary of the “adverse effects” alleged by the Union in this dispute. In that regard, I note that the issues with respect to lunch facilities and bathroom facilities raised in the January 17 letter were not repeated in the May 28 letter. In any event, the January 17 letter, to the extent that it deals with what may be characterized as adverse effects, and the May 28 letter, formed the substance of the Union claim.
It can be noted once again that all of the matters raised in the May 28 letter relate to the perception that employees who elect not to move in response to a relocation of their job will be entitled to claim expenses and damages incurred as a result of that decision. In the January letter, the two points that have to do with adverse effects are points 1 and 4, being the lunch and bathroom facilities issues. I will return to those claims later. Returning to the items claimed on behalf of patrolmen who elected not to move to Squamish, the position of the Railway was that the JSA does not provide for any such claims and that the Union had failed in these proceedings to assert a breach of the collective agreement or an entitlement under the JSA which would support its claim.
In the final analysis, the claim of the Union in these proceedings was that an order should be made compensating employees who had elected not to move to Squamish with respect to those categories of claim which had been particularized in the correspondence. In addition, the Union sought an order directing the Railway to build patrolmen suitable lunch and washroom facilities. Those claims, as stated, were advanced under the provisions of Article 8(4) of the JSA. 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.
The claims made, said the Union, constituted “items (not) … specifically dealt with in the Agreement”. The Union submitted further that the particulars of its claim represented adverse effects arising from the change and thus fell within the scope of the provision. I digress to note that Article 8(5) of the JSA requires claimants to refer issues to a Board of Review as a prelude to referring them to adjudication by a referee under Article 8(6). The Railway pointed out that the Union had not followed that procedure.
In the months following the May 28, 1990 claim, the parties continued to address issues arising with respect to implementation of the change. On April 12, 1991 the Union wrote to the Railway with respect to problems of scheduling. That letter led to discussions of the subject in joint meetings on April 25 and 26, 1991 and a suggestion to the Union recorded in a letter from the Railway on April 26 that a joint committee be established to discuss scheduling of patrols in Squamish and Lillooet. A patrol committee was established and meetings were held. The evidence with respect to those meetings made it clear that there was and is a continuing dissatisfaction with respect to the change which is driven primarily by difficulties experienced by the patrolmen located in the Vancouver area who did not consider themselves to be in a position to move to Squamish. The principal issue arising relates to what continuing rights, if any, those patrolmen have under the JSA. Before addressing that issue, I turn to the arbitral principles seen by the parties as governing a resolution of the dispute.
The procedural issues raised in this dispute were addressed in the Technological Change Arbitration where it was noted that the JSA lacks specific procedural direction with respect to how a dispute over a technological change is to be addressed. Without repeating the reasoning set out in that decision, it is implicit in Article 8 that a dispute may arise between the parties with respect to whether a particular change falls within the definition of a “technological, operational or organizational change” as defined in Article 8.1 of the JSA. In response to a disagreement on that issue, the procedural implications are that the Railway is free to issue a notice with a disclaimer taking the position that the change is not a technological change but agreeing to have it addressed under the procedure set out in the JSA. Alternatively, if the Railway institutes a change but does not issue a notice, it is open to the union or unions affected to initiate proceedings under Article 8 to have that issue and its implications determined.
In addition to the question of when a change will fall within the scope of Article 8, differences may arise with respect to the existence and extent of any “adverse effects” caused by the change and, once again, it is open to the union or unions affected to pursue proceedings under Article 8 to have that dispute addressed and resolved. Specifically, in the context of this dispute, when the Railway gave notice, it was open to the Union, as it did, to take the position that the notice was inadequate and, in any event, that a number of adverse effects would arise from the change which required redress under the JSA. In the absence of an agreement on what constituted the adverse effects, it was open to the Union to initiate negotiations under Article 8(4) with a right under Article 8(5) to press the issue to mediation before a Board of Review and, in the event of a continued inability to reach agreement, to submit the matter for adjudication by a referee under Article 8(6).
Here the Railway took the position that the Union had not pursued the dispute through that procedure and, in any event, had raised issues which did not properly fall within the definition of an “adverse effect” in Article 8(4). The Railway said further that its notice was adequate in the sense that it identified to the extent possible the “consequent changes in working conditions” which could be isolated at the time the notice was given. Specifically, the change seen by the Railway was the change of location itself. Its position, in effect, was that the other matters raised by the Union over the months, both before and after the change, were not matters falling within the notice provision. They were conditions arising by reason of patrolmen having elected not to move their residence to Squamish, said the Railway.
In support of its contention with respect to the adequacy of the notice, the Railway relied on Canadian National Railway Company and Brotherhood of Locomotive Engineers, CROA Case No. 1262, June 14, 1984 (Kates). The language at issue there was similar to the in this dispute. It reads in part as follows:
114. 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 engineers, the Company will:
(b) give at least six months advance notice to the Brotherhood of any such proposed change, with full description thereof along with details as to the anticipated changes in working conditions.
The facts in that dispute were that changes in operations to be implemented over a five-year period were expected to result in the abolition of 37 positions. In that context, the arbitrator noted, “accordingly, the adverse effects contemplated by the material changes are self-evident”. In this dispute the change involved the abolition of six positions in North Vancouver and, in the view of the Railway, the “adverse effects” resulting from that change were equally self-evident.
In the CN Rail decision, the position of the union was that the notice given by the railway did not identify the employees who would be affected over the period and that it could not properly plan to mitigate the impact of the change without being able to identify the employees. On the evidence in that dispute, it was clear that the employees could not be identified except in the orderly course of implementing the change. The same issue arises in this dispute in the sense that a principal complaint of the Union here was that the notice did not identify which shift schedules would be generated in the merger between the North Vancouver and Squamish patrolmen positions. Those details did not emerge until some 45 days before the change was implemented. In responding to the equivalent criticism in CN Rail, the arbitrator wrote in part:
The objective of the material change provisions under Article 114.1 is to provide the trade union with the maximum amount of advance notice that may be practically possible with respect to a contemplated material change. In this regard the collective agreement contemplates advance notice of “at least six months”. In this case the company has given the trade union notice of an intended material change in December, 1983, that is scheduled for implementation in mid-1985 and that is to span a period of approximately five years. The obvious objective of the notice is for the ongoing negotiations and mitigation of the adverse effects of that material change over that time Period.
Here the question of the adequacy of the notice involves a preliminary determination of whether details of shift assignments fell within the notice requirements imposed in Article 8(1). The Railway said that its notice gave “a full description” of the change when it advised that the patrolmen positions in North Vancouver would be abolished and new positions posted in Squamish to replace them. Shift schedules and changes to them are routinely incidental in the position of a patrolman, as are changes in shift schedules, said the Railway. Copies of a number of such changes following the abolition of the North Vancouver positions were filed in evidence. Notice of the shift structure was given as soon as it became available, said the Railway, and the Union complaint fell outside the notice provision in any event, because shift changes were not a change in working conditions arising as a direct consequence of the technological change. The details of the shifts, said the Railway, while they arose from the change in the sense that they were part of the restructuring of the patrols, did not arise from the change in the industrial relations sense contemplated in the JSA.
The Railway noted that the Union was given abortive notice in March which had the effect of giving it ten months’ notice under a provision that contemplates a right in the Railway to give a notice as short as three months before the change. The Railway said that all of the facts essential to measure the adverse effects arising from the change were known by the Union in March in the sense that it was informed that all patrolmen positions in North Vancouver would be abolished and new positions would be established in Squamish.
In any event, said the Railway, the JSA contemplates that notice will be followed by a dialogue which is designed to permit the parties to identify the effects changes will have on employees and to cooperate in an effort to minimize those effects. The purpose of the notice, said the Railway, was to provide sufficient details of the change to permit the parties to assess their impact on the employees involved on an ongoing basis.
For its part, the Union relied on B.C. Rail and Transportation Communications International (JSA Referee Hearing), September 27, 1990 (unreported) to support its position. In particular, the Union relied on the following passage on p. 6:
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.
It was implicit in the Union submission that it saw that decision as contemplating a broad jurisdiction in a referee to measure the impact of changes on individual employees and to order compensation for them on a continuing basis. The Railway disagreed with that reading of the decision and that interpretation of the language. Hence, in addition to the notice question, a question arose as to what the term, “adverse effects” means in the context of Articles 8(4) and 8(6) of the JSA. Thereafter, the remaining question was whether any of the matters relied on by the Union constituted “Items” that fell within the reach of Article 8(4). On that summary of the facts, issues and authorities, I turn to a resolution of the dispute.
I find first that the various notices provided to the Union met the requirements of Article 8(1) of the JSA in the sense contemplated in CP Rail. The change at issue was abolition of the North Vancouver and Squamish positions and establishment of the new Squamish positions. The “adverse effect” arising from that change was the requirement for North Vancouver employees to report to a different location that required them to either move to Squamish or commute from Vancouver. Details such as shift schedules and times are routine aspects of the job of patrolmen, whether headquartered in North Vancouver or in Squamish, and changes in them do not fall within Article 8(4). The obligation under Article 8(1) is to give notice to the union affected of the nature of the change, including a “full description” of it, “appropriate details” of any “consequent changes in working conditions” triggered by the change, and the “expected number of employees who would be adversely affected”. The notice in question met that criteria.
It is not unusual for unions and their members to resist technological changes. Most frequently, such changes are not in the best interests of the employees concerned. A not uncommon reaction is for unions to take exception to all aspects of the governing procedure and to require rigid adherence to it. But both parties are required under the language at issue in this dispute to pursue details of proposed changes and the impact they will have on affected employees. Here the Railway made it clear throughout that it was prepared to discuss details of the changes and provide whatever information was available. The implication arising from the evidence was that the concern of the Union was not with respect to the form of the notice, it was with respect to the decision that gave rise to the notice. Not surprisingly, the Union, lacking a right to challenge the decision, attacked the procedure and sought to find it in default.
But attacking the process was rendered difficult by the fact that the notice provided the Union with full details of the nature of the change and the employees upon whom it would impact. Undoubtedly, the change imposed a hard choice on the affected employees that many did not want to make. One patrolman took early retirement and at least three others elected to accept a lengthy commute rather than move. But the fact that the change was extremely disruptive to the employees concerned does not increase the notice requirement under Article 8(1). The details given were sufficient to bring home to the Union and the affected employees the full implications of the adversity they faced by reason of the change. On that basis, the Union submission that the notice was inadequate is rejected.
Turning next to the Article 8(4) claims advanced by the Union, I conclude that the claims relating to the decision of some employees to commute from their residences in Vancouver to Squamish do not fall within the reach of the provision. Article 8(4) is limited to items which are not already provided for in the agreement. A similar limitation appears in Article 8.6. The entitlement of employees who elect not to move their residences in the face of a technological change which would entitle them to relocate at the Railway’s expense is addressed in Article 7(B)(7).
The Union interpretation presupposed a right in the patrolmen to elect not to move their residences to their new headquarters and to obtain compensation on a continuing basis for the consequences of that election. Nothing in the structure or the language of the JSA supports that interpretation. In particular, the JSA not only does not provide expressly or implicitly that employees have a right to require the Railway to compensate them in such circumstances, it carries the opposite implication. That is, the JSA presumes a right in the Railway to change the location of particular work and to require employees to elect whether or not to follow the work. The only compensation employees are entitled to in those circumstances is that set out in the JSA. That compensation, inter alia, is for the cost of relocation or, as an alternative, compensation for a limited period of time to offset the costs of commuting to and from their residence to their new work location. The JSA recognizes the right in the Railway to move the work and a right in employees to follow it, with compensation in appropriate circumstances for having to move their residence or, for the defined period, for having to commute. There is no jurisdiction in a referee to order further compensation arising from moving the work to a new location.
That being said, it becomes necessary to consider whether the other issues raised by the Union fall within Article 8(4). It is not appropriate in this dispute to attempt to define the limits of the jurisdiction of a referee to award remedies under Article 8 (6) . It is sufficient to say that the provision extends only to those adverse effects which can be attributed directly to the technological change and which do not fall within the categories already addressed in the JSA. Article 8(4) gives some intimation of what the draftsmen of the language had in mind. In particular, consideration should be given to the implication of the words, “such measures, for example, may be related to exercise of seniority rights”. The interpretative principle of expressio unius, exclusio alterius would indicate that the parties, in drafting Article 8 (4) , of the JSA, intended to address matters relating to the enhancement of the job security of affected employees in terms that go beyond those addressed expressly in the collective agreement or the JSA. (The expressio unius principle is discussed in Brown and Beatty, Canadian Labour Arbitration (1992), para. 4:2100, p. 4-28). It is difficult to extend the language to encompass the benefits claimed in this dispute.
What can be said is that the language is limited to matters which are not addressed in the JSA. In that context, rights such as relocation benefits and benefits in lieu of relocation benefits are addressed expressly in the agreement itself. Nor does the language support a finding that the parties intended Article 8(4) to provide access to ongoing financial compensation for adverse effects. The financial benefits an affected employee is entitled to claim are addressed in considerable detail in the agreement. The fact is that the Railway had the right to initiate the change and the employees had the right to claim the positions in Squamish and to claim relocation allowance to facilitate a move to Squamish. They also had the alternative right to seek early retirement if eligible or to elect to take an allowance under Article 7(B)(7) and commute to their new headquarters. What they did not have was the right to hold the Railway accountable for the consequences of their decision not to move beyond what is contemplated expressly in the JSA and by implication in Article 8(4).
The issue of the washroom and lunch facilities poses a somewhat different question. The Union saw it as falling within the category contemplated in the JSA Referee Hearing. There it was acknowledged that technological changes that impact adversely on the way in which a particular job is performed can be the subject of a claim under Article 8(4). On p. 20 the following passage appears:
The sole question is whether changes (which may have an adverse effect on the manner in which employees perform their duties can require the Railway to give notice under Article 9(1) and whether they can trigger a remedy fashioned by a referee under Article 8(6). The answer to those questions is, yes.
There the issue was a possible increase in stress levels on train dispatchers and a possible restriction on their access to nourishment during their shifts. In the decision, those issues were referred to the parties for consideration under the procedure set out in Article 8 of the JSA. Here the issue of lunch and washroom facilities differs in the sense that it was not clear in the facts that any perceived deficiencies in that regard constituted a change in “the manner in which employees perform their duties” that arose out of the technological change. Certainly a change in location can be expected to impose some change in facilities. Further, a change in location will likely have some impact on the manner in which routine duties are carried out. Those potential impacts may be perceived by individual employees as adverse. But in order to fall within Article 8(4), the “effects” must be tied directly to the change in terms that invite redress.
For example, where the fundamental nature of the job changes, as was asserted in JSA Referee Hearing, it may be appropriate to provide redress in the form of an increase in the rate of pay to compensate for increased stress or responsibility. Further, where the change eliminates access to nourishment, there may be discussions about some form of lunch relief or, once again, an increase in wage rates to compensate for the change in the manner in which the duties are performed. In that case, the direct question did not arise for adjudication because the parties had not yet addressed the issue under the Article 8 procedure. But there the facts made it clear that the issues raised affected all employees working in the classification and involved what were seen as fundamental changes in the way the work was to be performed which were brought about by the technological change.
That circumstance differs in substance from a working condition issue such as the timing of lunch breaks and access to lunch and washroom facilities. Those are issues that are normally addressed under the collective agreement by grievance and arbitration, being a process that adapts itself to ongoing disputes over working conditions. The issue of the washroom and lunchroom facilities are matters that fall outside the scope of Article 8(4). They are matters to be pursued under the collective agreement. They do not relate to any change fundamental to the manner in which patrolmen as a classification carry out their duties that arose by reason of the change in headquarters. In short, the lunch and washroom issue must be addressed under the provisions of the collective agreement, not the JSA. In the result, the grievance is dismissed.
DATED at the City of Vancouver, in the Province of British Columbia, this 10th day of November, 1992.
(signed) H. ALAN HOPE, Q.C.