AH – 466

IN THE MATTER OF AN ARBITRATION

BETWEEN

ST. LAWRENCE & HUDSON RAILWAY COMPANY

(the “Company”)

AND

CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
(UNITED TRANSPORTATION UNION)

(the “Council”)

RE: GRIEVANCE OF ROBERT ADAMS

SOLE ARBITRATOR: Michel G. Picher

APPEARING FOR THE COUNCIL:

Donald A. Warren – General Chairperson, Scarborough

David A. Colasimone – Vice-General Chairperson, Capreol

Ray Gallop – General Secretary, GO-153, Scarborough

Daniel Généreux – Vice-General Chairperson, Oka

Bruce Hiller – Local Chairman, Local 416, Oshawa

APPEARING FOR THE COMPANY:

George Chehowy – Manager, Labour Relations, Toronto

Jim Blotsky – Manager, Operations, Quebec

A hearing in this matter was held in Toronto on Wednesday, 22 September 1999

AWARD OF THE ARBITRATOR

The grievor, Mr. Robert Adams, claims entitlement to return to work in Quebec with his full seniority after a period of time worked in Coquitlam, British Columbia. The position of the Company is that although Mr. Adams is entitled to return to work in Quebec, he can only do so with a reduced seniority date, in a manner consistent with the treatment of other Quebec-based employees who worked temporarily in British Columbia. The nature of the dispute is reflected in the Dispute and Joint Statement of Issue filed at the hearing, which read as follows:

DISPUTE:

Mr. Adams entitlement to return to work with his full District 2 seniority date and compensation for lost earnings and benefits experienced since he first sought to return to the Quebec seniority district.

JOINT STATEMENT OF ISSUE:

The issue in dispute involves Mr. R. Adams who was originally employed in Montreal as a Trainperson/Yardperson. In April 1997 the Union and the St. Lawrence & Hudson Railway Company Limited (the “company”) bargained two (2) agreements to offset the reduction in the workforce in the Province of Quebec.

One of the agreements, dated April 2, 1997, pertains exclusively to employees with a seniority date subsequent to June 18, 1990. The other agreement, dated April 18, 1997, pertains exclusively to those employees with a seniority date of or prior to June 18, 1990.

On July 16, 1997 the Grievor opted to relocate to British Columbia and accepted the $15,000.00 payment. The Grievor had been provided with a copy of both Agreements beforehand by the Company. The Grievor signed an application for the lump sum payment on July 16, 1997.

Unfortunately the application was inaccurate and contained incorrect information. The application made reference to the April 2 Agreement – not the April 18 Agreement which applied to the Grievor. Further, while the application contained a reference to the figure of $15,000.00 it also incorrectly recited the language of clause 4.2 of the April 2 Agreement.

Shortly thereafter the Grievor sought to return to the Quebec seniority district. The Company denied his request, citing clause 4.6 of the April 18 Agreement. The Grievor maintained that he had relocated to BC on the basis of the April 2 Agreement, which does not contain a restriction on returning to Quebec.

The Union requests that Mr. Adams be allowed to return to work with his full District 2 seniority date. Furthermore, Mr. Adams should be reimbursed for all lost earnings and benefits experienced since he first sought to return to the Quebec seniority district.

The company has declined the Union’s request.

FOR THE COUNCIL: FOR THE COMPANY:

(signed) D. A. WARREN (signed) G. CHEHOWY

GENERAL CHAIRPERSON FOR: DISTRICT GENERAL MANAGER

It is common ground that the grievor’s actual Quebec seniority date is May 25, 1987. By virtue of that seniority date he is entitled to the benefits of the agreement of April 18, 1997 for the purposes of his transfer to work in British Columbia and his subsequent return to work in Quebec. Under that agreement he was entitled to the payment of a lump sum of $15,000, and was obligated to remain in employment in British Columbia for a period of three years before he would be entitled to return to Quebec.

A separate agreement governing unprotected employees whose seniority date is subsequent to June 18, 1990 was executed on April 2, 1997. Under that agreement employees are entitled to a lump sum of $7,500, and are entitled to return to work in Quebec, subject to a rateable repayment of the lump sum amount. It is common ground that copies of both agreements were provided to Mr. Adams prior to his election. It is also not disputed that Mr. Adams was provided with an erroneous election form which purported to place him under the terms of the April 2, 1997 agreement, although it did recite his entitlement to the payment of the $15,000 lump sum. Mr. Adams signed the erroneous form and moved to Coquitlam, as did some twenty-six Quebec-based employees whose documentation appears to have been in order.

The move of the Quebec employees to British Columbia was in anticipation of higher freight volumes in Western Canada as compared with Eastern Canada. In fact that situation did not materialize. In the result, the decision was made to return the Quebec-based employees who wished to come back to Quebec, in accordance with a further agreement, referred to as the “Reversion Agreement for Relocated Employees” executed on or about November 23, 1998. It appears that under that agreement both the unprotected and protected employees were allowed to return to Quebec. It may be noted that for the purposes of their employment in Western Canada all employees were assigned a seniority date of July 14, 1995. Under the terms of the Reversion Agreement unprotected employees were entitled to return to work in Quebec prior to December 31, 1998. Protected employees returning under that agreement would not be required to pay back the original relocation allowance, but they would be required to carry the seniority date established for them in British Columbia, namely July 14, 1995 for the balance of the three year lock-in period to which they were previously committed. After that time they would revert to their original seniority date on the Quebec Master Seniority District.

Mr. Adams maintains that because of the error in the form which he executed he should be entitled to return with the greater seniority protections available to the unprotected employees, and that he should be permitted to resume work in Quebec with his full Quebec seniority, without the limitation of the three year lock-in period which would give him the less desirable seniority date of July 14, 1995.

Having fully examined the documents in question, the Arbitrator cannot sustain the position of the Council to the effect that Mr. Adams should suffer no loss of seniority in the circumstances disclosed. Given Mr. Adams’ original Quebec seniority, it cannot be disputed that the agreement of April 18, 1997 governs his rights and entitlement in this matter, save as it was amended by the terms of the subsequent Reversion Agreement of November 23, 1998. Very simply, there is no principle of law, nor of arbitral jurisprudence, of which I am aware which would allow Mr. Adams to take advantage of an obvious clerical error on the part of the Company to gain seniority rights over and above those to which he is properly entitled under the agreements which correctly apply to him. This is not a circumstance in which he can fairly assert that he was unduly misled by the Company. As noted above it is clear that the Company provided to him copies of both agreements, which it was incumbent upon him to read and understand. Further, the evidence of Mr. Blotsky is to the effect that he made it clear to the grievor that he would be moving to British Columbia under the terms of the agreement governing protected employees, with a full three year lock-in period. Nor, in any event, is there any suggestion that the principles of estoppel could apply in the case at hand as Mr. Adams, who was in full possession of the text of both agreements cannot in good faith claim injurious reliance upon a meaningful misrepresentation by the Company. On the contrary, to allow Mr. Adams to gain rights which are unavailable to his peer employees from Quebec in the circumstances would be close to countenancing a degree of sharp practice on his part.

For all of the foregoing reasons the Arbitrator is satisfied that the position of the Company is correct. The Arbitrator finds and declares that Mr. Adams is entitled to return to work in Quebec under the terms of the Reversion Agreement for Relocated Employees on November 23, 1998 with the limitation on his seniority date of July 14, 1995 to continue for the lock-in period. No order for compensation is justified in the circumstances. The matter is referred back to the parties for the implementation of this award, with the Arbitrator remaining seized in the event of any dispute as to its interpretation or implementation.

Dated at Toronto, this 27th day of September 1999

(signed) MICHEL G. PICHER

ARBITRATOR