AD HOC 356:

AWARD

This grievance concerns an allegation by the Association that the Company failed to give the Association notice of an operational or organizational change, pursuant to article 8 of the Job Security Agreement, in relation to the elimination of a constable’s position at Port Coquitlam, B.C.

The Dispute and Joint Statement of Issue are as follows:

DISPUTE:

The January 23, 1995 displacement notice served on Constable S.C. Wilson, Vancouver.

STATEMENT OF ISSUE:

Constable D.H. Moore was dismissed from service on November 12, 1993.

As part of a resolve to a grievance concerning the dismissal of Constable Moore, an agreement was reached with the Association to return Constable Moore to service on a compassionate basis without loss of seniority.

In returning to service, Constable Moore exercised seniority to a position occupied by Constable D.M. Campbell. Constable Campbell exercised seniority, displacing into the position held by Constable Wilson.

The Association contends that the Company has implemented an Organizational/Operational change and has requested that the displacement notice be rescinded and that the Company issue a notice in accordance with article 8.1 of the Job Security Agreement.

The facts giving rise to the grievance are not complex, nor are they disputed. Constable D.H. Moore was dismissed from his position on November 12, 1993. The Association grieved, and after certain negotiations Constable Moore was reinstated into his employment at Vancouver effective February 2, 1995. The unchallenged representations of the Company are to the effect that the discussions surrounding the possible reinstatement of Constable Moore included an understanding on the part of both parties that the return of Constable Moore to service in Vancouver would require the displacement of a junior constable from Vancouver to another location. This, it appears, was communicated to the Association’s legal counsel within the context of the negotiations for Constable Moore’s reinstatement.

It is not disputed that upon return to service Constable Moore displaced Constable D.M. Campbell who, in turn, exercised his seniority to take the position held by Constable Wilson. Constable Wilson was then compelled to exercise his seniority to a position in Calgary where he displaced Constable Archibald.

The Association submits that the Company’s decision to leave the position vacated by the dismissal of Constable Moore in Vancouver as a vacant position, even after his reinstatement, was effectively an indirect way of achieving an operational or organizational downsizing which would avoid the application of the Job Security Agreement, and the employment security benefits that would be otherwise enjoyed by Constable Archibald. It submits that, in effect, the Company made the complement reduction in Vancouver as part of a larger downsizing decision which, it submits, was being contemplated and which lead to notice to the Association of a major downsizing, which was given in April of 1995 for changes effective August 1, 1995.

The Arbitrator is not persuaded by the argument of the Company to the effect that the reinstatement of Constable Moore was predicated on an understanding between the Employer and Counsel for the Association to the effect that there would be displacements out of Vancouver as a result of the return to work of Constable Moore. There is no evidence of the precise discussion which occurred, and it is entirely possible that Counsel for the Association, and indeed the Association itself, might have agreed to such a consequence without necessarily waiving the ability to argue that any displaced employees would nevertheless have the right to invoke their protections under both the collective agreement and the Job Security Agreement. In the Arbitrator’s view the grievance must be resolved on the more fundamental question of whether there was in fact a technological, operational or organizational change made in Vancouver by reason of the Company’s decision to reduce the complement of constables at that location, from eight to seven.

The Job Security Agreement contains the following definition:

“Technological, Operational or Organizational Changes” means as follows:

“Technological”: the introduction by the employer into his work, undertaking or business of equipment or material of a different nature or kind than that previously utilized by him on the operation of the work, undertaking or business; or

“Operational or Organizational”: a change in the manner, method, procedure or organizational structure by which the Employer carries on the work, undertaking or business not directly related to the introduction of equipment or material provided that any such change is not brought about by:

(i) a permanent decrease in the volume of traffic outside of the control of the company; or

(ii) a normal reassignment of duties arising out of the nature of the work in which the employee is engaged; or

(iii) a normal seasonal staff adjustment.

NOTE: Any permanent shutdown or permanent partial shutdown of an operation, facility or installation, shall be considered as a technological, operational or organizational change. Any permanent Company-initiated changes (excluding changes which are brought about by general economic conditions) which result form the reduction or elimination of excess plant capacity shall also be considered as technological, operational or organizational changes.

Further, the collective agreement contains certain provisions in respect of layoff and displacements in the event of a layoff, including the following:

5.02 Not less than four working days advance notice will be given in the event of a reduction of staff, except in the event of a strike or work stoppage by employees in the Railway industry, in which case a shorter notice may be given.

5.04 An employee who is laid off or who is displaced may exercise his seniority to displace a junior employee on his basic seniority territory or, at his option, he may displace a junior employee on his seniority district as defined in article 3.01. Such employee shall notify the appropriate Company officer of the position to which he will exercise his seniority within ten calendar days and shall fill that position within fifteen calendar days of the date of notification. For an employee absent on leave, the time limits specified in this Clause will commence from the date of return to work. In the application of this rule an employee must be qualified to fill the position to which he exercises his seniority.

NOTE: Solely for the purpose of Articles 5.04 and 28 the existing Operating Department Superintendent’s Divisions on CP Rail as of June 6, 1973 will be defined as constituting the basic seniority territory. In areas where Main Shops are located, such Main Shops shall be considered as forming part of the Superintendent’s Division.

The Company relies, in part, on the prior decision of Arbitrator Weatherill in CROA 284. That case concerned the reduction of mail room staff in the Saint John’s operations of the Canadian National Railway. The arbitrator rejected the contention of the union that notice under article 8 of the Job Security Agreement was owing in that case. He reasoned that what transpired was a reduction in service, and not an operational change. The following comments appear to express the rationale for the award:

The organizational or operational change, if any would appear to have been in the reduction of mail deliveries. This is, as is the abolition of a position, a change of “operations” in a narrow sense, but it is not necessarily an “operational change” of the sort referred to in Article VIII of the Job Security Agreement. The collective agreement itself contemplates a number of situations in which there may be such changes, and providing for the rights of employees in such cases, which clearly do not involve the special provisions of Article VIII. Here, the company simply found that the work it had to do could be done by fewer employees. There was no longer a need for as many mail deliveries per day. There is no evidence of any special circumstance which would take this out of the area of “normal reassignment of duties” referred to in Article VIII (5).

It is, of course, well established that an employer is, absent contrary language in a collective agreement, entitled to exercise its own discretion as to whether a vacant position should be declared, or if one exists, whether it should be filled. In this regard the Company stresses the provisions of article 4.01 of the instant collective agreement which are as follows:

4.01 All vacancies for a known duration of sixty calendar days or more which the Company requires to be filled shall be bulletined promptly to all employees over the seniority district. …

(emphasis added)

The Arbitrator must agree with the Company that the language of the above provision, consistent with many comparable agreements in the field, reflects the understanding that it is for the Company to determine whether it is necessary to fill a given vacancy. The evidence before me is manifest that the decision not to fill the vacancy created by the initial dismissal of Constable Moore was made, arguably, as early as November of 1993, and certainly was well in place at the time of his reinstatement. There is little in the material or the evidence before me to suggest other than a decision by the Company to continue its operations in the same manner, albeit with a reduced complement of constables. To put the matter differently, the Company was in a position similar to that in which it would find itself if it had decided to lay off a constable because it considered that the work in question could be performed by one less staff member.

In the Arbitrator’s view it cannot be argued that the layoff of an employee, under the terms of the collective agreement, is of itself tantamount to an operational or organizational change. Article 5 of the collective agreement contemplates employees being laid off and makes specific provision for a four-day period of notice in that circumstance. This is plainly to be distinguished from the very different notice of 120 days provided in the article 8.1 of the Job Security Agreement, and the related procedures which attach to it. On the whole, I am compelled to conclude that the Company as entitled to allow the position previously held by Mr. Moore at Vancouver to remain unfilled and vacant, and to do so without being taken to have implemented an operational or organizational change, provided that what was involved was a general reduction of the work, in a manner consistent with the reasoning reflected in CROA 284. On the evidence before me there is nothing to substantiate any different basis for the decision of the Employer.

The Arbitrator appreciates the frustration felt by the Association, and the suspicion which its representatives attach to the coincidence in time between the decision not to fill the vacancy created by Constable Moore’s dismissal, and the institution of substantial work force reductions, officially communicated to the Association by way of notice in April of 1995. However, there was a hiatus of some two years. On the evidence before me it appears that the Company’s decision in respect of not filling the vacancy created by Constable Moore’s dismissal began to be implemented immediately with his removal from the workplace, in November of 1993. On balance, it would appear that the Employer considered, on reasonable grounds, that at that point there was not sufficient work to justify replacing Constable Moore, or to put it differently, filling the vacancy which his dismissal created. The fact that the Company’s position did not change at the time of his reinstatement would not, of itself, change the essential nature of what transpired at that time.

It is, of course, arguable that the Company was, in any event, under an obligation to give the Association the four working days notice in advance of a decision to effectively eliminate a staff position in Vancouver, by its decision not to fill the vacancy left by the removal of Constable Moore, having regard to the general terms of article 5.02 of the collective agreement. It may also be true, however, that the Company could make a case that it has latitude to leave vacant positions open for extensive periods of time, and that to do so is not tantamount to the elimination of a position as contemplated under that article. Whatever its merits, that debate is not before the Arbitrator to resolve, as it does not fall within the ambit of the Joint Statement of Issue. The sole issue presented for me to resolve is whether the Company in fact implemented a technological, operational or organizational change in its decision not to fill the vacancy at Vancouver created by the initial discharge of Constable Moore. For the reasons related above, I am compelled to conclude that the reduction of one position in the circumstances disclosed, or to put it differently, the decision not the fill the vacancy left upon the dismissal of Constable Moore, cannot be characterized as an occupational or organizational change as that concept is defined under the Job Security Agreement.

Clearly there was no reduction of plant or plant capacity nor any change in the manner, method, procedure or organizational structure in place at Port Coquitlam or Vancouver which occasioned the change in question. Nor is there any evidence of any permanent or permanent partial shutdown of operations or any installation, or removal of excess plant capacity. Very simply, it appears that the Company made the judgement that the volume of work was such that it could be performed by one less staff member. Such a decision, standing alone, does not amount to an operational or organizational change. That is not to say, however, that in the interests of more positive industrial relations, it would not have been appropriate for the Employer to give some fuller explanation to the Association of its thinking in respect of staffing at Vancouver, especially since it appears that that has been the general practice between the parties over the years, even when a particular change might not be qualified as operational or organizational. It can be hoped that better communications in this regard will be maintained in the future.

For all of the foregoing reasons the grievance must be dismissed.

DATED AT Calgary, June 23, 1995

(signed) MICHEL G. PICHER

ARBITRATOR