AH – 447
IN THE MATTER OF AN ARBITRATION
St. Lawrence & Hudson Railway Company
Canadian Council of Railway Operating Unions [United Transportation Union & Brotherhood of Locomotive Engineers]
The provision of benefits to Mr. A. Knowlton as per the Quebec South Lines Material Change Agreement, signed on September 25, 1996.
JOINT STATEMENT OF ISSUE:
The Company and the Council entered into a material change agreement with respect to the sale of the Quebec South Lines on September 25, 1996. This property was transferred to a third party subsequent to that date.
The Union contends that Mr. A. Knowlton is entitled to benefits pursuant to that agreement and initiated a grievance in that regard.
The Company has declined this grievance on the basis that Mr. Knowlton was not entitled to benefits.
FOR THE COUNCIL: FOR THE COMPANY:
(SGD.) R. S. McKENNA (SGD.) G. CHEHOWY
GENERAL CHAIRMAN FOR: DISTRICT GENERAL MANAGER
There appeared on behalf of the Company:
G. Chehowy – Manager, Labour Relations, Toronto
M. Oliphant – Labour Relations Officer, Toronto
J. H. Blotsky – Manager, Operations
B. Yeandle – Road Manager
G. Deciccio – Road Manager
And on behalf of the Council:
R. S. McKenna – General Chairman, Barrie
B. Brunet – Local Chairman, Blainville
A. Verner – Local Chairman, Grande Piles
R. McLellan – Local Chairman, Chateauguay
A hearing in this matter was held in Montreal on Monday, November 3, 1997
AWARD OF THE ARBITRATOR
The facts of this dispute are not in controversy. The grievor, Mr. A. Knowlton, lives in Cowansville, Quebec. On May 15, 1996 the Company and the Council (BLE) signed an agreement in respect of establishing a new pool service between Montreal-Sherbrooke-Rouses Point-Richford and Sherbrooke-Rouses Point. It appears that that agreement was made in anticipation of the substantial traffic from an independent short line, originating in Maine. Under the terms of the Sherbrooke-Rouses Point agreement Mr. Knowlton worked train 309 in unassigned pool service.
The Sherbrooke-Rousses Point agreement provides a cancellation provision, subject to a thirty day written notice. In fact the anticipated traffic did not materialize and, without giving any notice whatsoever, on June 17, 1996 the Company terminated the Sherbrooke-Rouses Point agreement. The instant grievance is taken, in part, against that action. Faced with the cancellation of his assignment, Mr. Knowlton grieved and, for some four days, filed claims for the mileage of which he had been deprived. That was followed by a period of annual vacation for a time, followed by a sick leave commencing July 3, 1996 during which he underwent knee surgery and a period of recuperation, returning to work on December 12, 1996.
In the interim, the Company gave notice of certain material changes which lead to a further memorandum of agreement concerning the sale of the Quebec South Lines, and the closure of the terminals of Sherbrooke and Farnham, a document referred to as the QSL Agreement. The QSL Agreement, dated September 25, 1996, provides a number of benefits to employees negatively impacted by the sale of the Quebec South Lines, including a lump sum relocation allowance under the terms of article 10.5 which reads as follows:
10.5 An eligible employee as defined herein, may elect a lump sum allowance in the amount of $15,000.00 provided that he is occupying a home, apartment or mobile home in the Farnham or Sherbrooke “area”.
The agreement is specific as to the employees who are entitled to the benefits within it. Article 2 provides, in that regard, as follows:
2.0 Agreement Coverage
2.1 An employee represented by the Canadian Council of Railway Operating Unions (United Transportation Union Brotherhood of Locomotive Engineers) (the “Council”) who is regularly assigned to a position as;
(a) A locomotive engineer under the terms and conditions of the “collective agreement between Canadian Pacific Limited and the Brotherhood of Locomotive Engineers on behalf of the Locomotive Engineers employed in Canada on CP Rail, Intermodal Freight Systems East of Thunder Bay”; or
(b) A trainman/yardman under the terms and conditions of the “collective agreement between Canadian Pacific Limited and the United Transportation Union on behalf of the Conductors, Baggagemen, Brakemen, Car Retarder Operators, Yardmen and Switchtenders employed in Canada on CP Rail - Intermodal Freight Systems East of Thunder Bay”; and
(c) who has two years of cumulative compensated service (CCS) with the Company; and
(d) has held a position on the assignments at Farnham and Sherbrooke specified in Clause 2.3 for at least 30 calendar days prior to the date of the operational change. In the event that the employee on such position does not meet this criteria, the employee who was displaced from such position, and who meets the other criteria of this Clause 2.1 shall be considered a “directly affects” employee. This clause will not apply to the Montreal Unassigned Pool (Assignment 304) and Montreal based road spareboards.
On the day immediately preceding the effective date of this agreement will be entitled to benefits pursuant to this agreement.
It does not appear disputed that the QSL agreement is effective the date of the signing of the agreement, as provided in article 1.1, namely September 25, 1996.
On behalf of the grievor, the Council asserts that the Company abrogated his rights by unilaterally terminating the Sherbrooke-Rouses Point agreement without the proper thirty day notice. On that basis, it asserts that Mr. Knowlton continued to be a Sherbrooke based employee and could not, as the Company would have it, be considered a Montreal based employee on the supposed reasoning that his seniority could not then protect work at Sherbrooke. The employer’s argument is that, even faced with an alleged violation of the notice period in the Sherbrooke-Rouses Point agreement, it was incumbent upon the grievor to exercise his seniority immediately upon notification of the cancellation of train 309 and the Sherbrooke-Rouses Point agreement. His failure to do so, it contends, left him in a situation of limbo which ultimately disentitled him to any protections under the terms of the QSL agreement.
As a matter of principle the Arbitrator is satisfied that the Company is correct in its characterization of what the grievor should have done, faced with what appears to be the undenied violation of the termination notice provisions of the Sherbrooke-Rouses Point agreement. He was then under an obligation to respect the “work now - grieve later” rule, and to continue to maintain himself in productive service pending the determination of his rights through the grievance and arbitration process. Unfortunately, Mr. Knowlton chose to remain at home, submitting wage claims for the four day period prior to his taking of annual leave, and sick leave thereafter, apparently on the theory that he could not be deprived of those wages by the Company’s unilateral action.
The thrust of Mr. Knowlton’s grievance is to claim before the Arbitrator the benefits of the QSL agreement. To do so he must establish that but for the Company’s violation of the notice of termination provisions of the Sherbrooke-Rouses Point agreement, he would have maintained his status as a Sherbrooke or Farnham based employee, therefore falling within the eligibility provisions of the QSL agreement.
Upon a close review of the facts, and the terms of the QSL agreement, however, the Arbitrator has some difficulty with the Council’s analysis with respect to Mr. Knowlton’s rights. The Arbitrator is prepared to accept, nor does it appear denied, that the Company did violate the notice provisions of the Sherbrooke-Rouses Point agreement. At arbitration, therefore, the grievor should be placed in nothing less than a position whereby the rights and benefits he would have realized had the thirty day notice period been respected are in fact available to him. What, then, does that mean in the case at hand? It appears to the Arbitrator that if the Company had in fact not violated the notice and termination provisions of the Sherbrooke-Rouses Point agreement, Mr. Knowlton would have been entitled to work for a period of thirty days after June 17, 1996 in his unassigned pool service on Train 309. That assignment would, however, have come to a proper end on or about July 17, 1996. In other words, had the agreement been respected by the Company, as the grievance submits, Mr. Knowlton would have no longer been an employee holding a position on the assignments at Farnham or Sherbrooke from July 17th onwards. It may be, as Mr. Knowlton suggests, that he might from the outset have been able to assert his seniority to hold another position at Sherbrooke immediately following the cancellation of his assignment on train 309. The unfortunate fact, however, is that he did not do so. In the result neither by his own action, nor by the notional application of the thirty day notice period which the grievance would request, could Mr. Knowlton bring himself within the qualifying provisions of the QSL agreement. Under the provisions of article 2.1(d), to be eligible for the benefits of the QSL agreement an employee must have held a position “on the assignments … specified” at Farnham and Sherbrooke for at least 30 calendar days prior to September 15, 1996. This Mr. Knowlton did not do.
On his behalf the Council’s representatives argue that in fact the grievor should be viewed as having nevertheless continued to be a Sherbrooke based employee. The Arbitrator is prepared to accept that argument, as it is clear that the grievor never bid to Montreal or any other location than Sherbrooke, where he held seniority at the time of the abolishment of his assignment. That conclusion, however, does not assist the grievor in achieving eligibility under the terms of the QSL agreement. At the risk of being repetitious, he must be a Sherbrooke based employee who held a position on the assignments specified at Sherbrooke or Farnham during the thirty day period preceding September 15, 1996.
Special agreements are common within the railway industry, and are generally fact specific to the circumstances being dealt with, and to the employees who are adversely impacted by a material change implemented by the employer. Generally, as occurred in this case, the parties specifically negotiate the identity of employees who will have the benefit of eligibility of certain of the provisions of an agreement such as the QSL agreement. Significantly, in the case at hand, it appears that during negotiations the grievor’s assignment was tentatively identified as one which would qualify as him as a person eligible for the benefits of the QSL agreement. However, in the final draft of the parties’ agreement Mr. Knowlton’s assignment, and by extension Mr. Knowlton, were not included among those who would be entitled to the benefits of the QSL agreement.
Is Mr. Knowlton the author of his own misfortune by failing to bid, as he claims he could have, to a Sherbrooke or Farnham position following the cancellation of the Sherbrooke-Rouses Point agreement? Or is he the unfortunate victim of the negotiated terms of the QSL agreement, which simply do not include him? It is not for the Arbitrator to answer those questions. I must take the parties’ memorandum of agreement concerning the sale of the Quebec South Lines as I find it, as indeed I must take the grievor’s circumstances. For the reasons touched upon above, even if the Company had observed the thirty day notice period under the Sherbrooke-Rouses Point agreement, the best that could be achieved for Mr. Knowlton is that his Sherbrooke assignment would have been abolished July 17, 1996. He could not, under that analysis, bring himself within the eligibility provisions of the QSL agreement, as he could not be said to have held or to be entitled to have held a position on an assignment at Farnham and Sherbrooke within the period of thirty calendar days prior to September 25, 1996. Whatever the Arbitrator’s views of the equities of this matter, he is without jurisdiction to amend the terms of the parties’ own agreement, or the rights and benefits to which employees are entitled. I am forced to the conclusion that the grievor does not fall within the eligibility provisions of the QSL agreement, and cannot therefore claim, through this grievance, that he has been wrongfully deprived of any benefits under it. Nor, given the grievor’s failure to mitigate his losses for the four day period following the cancellation of his assignment on train 309, can the Arbitrator view this as an appropriate case for the awarding of any compensation for wages or benefits lost in respect of the four day period in question.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto November 4, 1997 (original signed by) MICHEL G. PICHER