AH – 497
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
CANADIAN NATIONAL RAILWAY COMPANY
RE: RECIPROCAL RIGHTS – LONG TERM TEMPORARY POSITIONS
Sole Arbitrator: Michel G. Picher
Appearing For The Brotherhood:
Craig Morrison – Counsel, Ottawa
Richard Dyon – General Chairman, Montreal
Gilles Hallé – Canadian Director, Ottawa
K. Mallott – Observer
Phil Spry – Locomotive Engineer, Belleville (Observer)
Daniel Gollain – Local Chairman, Terrebonne (Observer)
J. Tofflemire – General Chairman, VIA Central
Erick MacKinnon – Local Chairman, Montreal (Observer)
Steve Mitchell – Vice-Local Chairman, Montreal (Observer)
Appearing For The Corporation:
Ed Houlihan – Senior Manager, Labour Relations, Montreal
Jean Lafleur – Counsel, Montreal
Melanie Bastien – Labour Relations Officer, Montreal
J. P. Pollender – Manager, Customer Services, Montreal
Appearing For The Intervener:
John Coleman – Counsel, Montreal
Frank O’Neil – Labour Relations Associate, Toronto
A hearing in this matter was held in Montreal on Tuesday, October 31, 2000.
The Brotherhood alleges that the Corporation violated the collective agreement and the provisions of the Special Agreement incorporated in the memorandum of agreement of June 4, 1987 made between VIA, CN and the Brotherhood. Under that agreement CN employees are entitled to bid on permanent vacancies posted within VIA. The Brotherhood alleges that some four positions filled by the Corporation through the posting of temporary shortage-local bulletins in fact involved permanent vacancies which should have been posted pursuant to the Transfer Agreement, and made available to locomotive engineers at CN.
The facts are not in substantial dispute. In August of 1999 the Corporation experienced a shortage of locomotive engineers at Montreal. That shortage was due to some four employees being on extended leaves of absence occasioned by injury, illness or temporary promotion into management. The posting was restricted internally to VIA employees, and the positions were filled by locomotive engineers within VIA who were then apparently surplus at locations other than Montreal, including Toronto, Senneterre and Lévis. It is common ground that all of the successful applicants for the shortage bulletin worked in what the Corporation qualified as the temporary vacancies in the late summer and fall of 1999. They worked off the spareboard in Montreal and, following the spring change of card in 2000, were allowed to bid for and continued to hold positions on the spareboard at Montreal, again pursuant to the long term temporary shortage arrangement.
Counsel for the Brotherhood submits that once the vacancies extended beyond the spring change of card of the year 2000 they qualified as permanent vacancies. He submits that the Corporation was then under an obligation to bulletin the permanent vacancies for bid by senior locomotive engineers holding positions at CN, pursuant to item 4(b) of the Transfer Agreement, which provides as follows:
Item 4 – Filling Permanent Vacancies at VIA Other Than Those Covered in Item 3
4(b) During the reciprocal rights period referred to in paragraph (a) of this item 4, Locomotive Engineers’ permanent vacancies at VIA will be advertised to both CN and VIA Locomotive Engineers, including those not working as such, pursuant to the terms and conditions of Agreement 1.1 and 1.2, as the case may be, and the senior qualified applicant will be assigned based on his/her relative standing on the applicable CN seniority list(s). The applicant of this paragraph (b) will not result in a junior Locomotive Engineer at CN being assigned to a position at VIA when there is a senior Locomotive Engineer at VIA either laid off or not working as such at that terminal.
In support of its interpretation the Brotherhood draws to the Arbitrator’s attention the provisions of article 49 of the collective agreement between CN and the Brotherhood, a provision dealing with the advertising and filling of positions in the Third, Fourth and Sixth Seniority Districts. Under that article, sub-headed “Permanent Vacancies and New Assignments” the following appears:
Permanent Vacancies and New Assignments
49.1 Permanent Vacancies and New Assignments will be advertised as follows:
(b) To the seniority district weekly at all terminals and stations subsidiary thereto, and the senior qualified applicant will be assigned.
(1) Vacancies due to retirement.
(2) Vacancies due to death.
(3) Vacancies due to dismissal.
(4) Vacancies due to promotion to official positions.
(5) Vacancies due to record being closed.
(6) Vacancies due to locomotive engineers being assigned to permanent vacancies or to new runs or jobs which were advertised to the seniority district.
(7) New runs or jobs in effect beyond the life of a full timetable.
(8) New runs or jobs in pool or chain gang freight service which remain in effect for a period in excess of 90 days.
The Brotherhood sub-paragraph (b)(7) of the foregoing provision operates in the case at hand, as the jobs in question were in effect beyond the life of a full timetable. On that basis, it submits, the Corporation found itself with several jobs of work which must qualify as permanent vacancies and be posted in accordance with article 49, and by extension, the provisions of item 4(b) of the Transfer Agreement.
Counsel for the Corporation maintains that the employer is not bound to treat each and every vacancy which might last beyond the duration of particular timetable as being a permanent vacancy, either for the purposes of the collective agreement between CN and the Brotherhood or for the purposes of the Transfer Agreement. He stresses that the Corporation’s own collective agreement with the Brotherhood contemplates temporary shortage bulletins, and recognizes that they may in fact extend beyond the six month period of a given timetable. That, he maintains, is implicit in the language of article 59 of the Corporation’s collective agreement with the Brotherhood which, it appears, is identical to the same provision within the CN-BLE collective agreement, and reads as follows:
59.1 Locomotive Engineers loaned from one seniority district to another, will be returned or properly transferred within one year, locomotive engineers to take the initiative. If transferred, their seniority standing will be the date of their first service as locomotive engineer on the seniority district to which they are transferred, provided however, that all firemen/helpers with a seniority date as such prior to February 3, 1958, will not be deprived of their right to qualification and promotion to locomotive engineer based on their seniority.
It is also not disputed that the collective agreements of the Brotherhood with both VIA and CN do allow the bulletining of temporary assignments.
Additionally, counsel for the Corporation notes that an agreement which operated for a time between the Corporation and the Brotherhood expressly recognized the concept of long-term temporary vacancies. It is common ground that on April 29, 1997 the then General Chairman of the Brotherhood, representing both CN and VIA employees, executed an agreement with the Corporation’s director of Labour Relations entitled “Filling of ‘Long-Term Temporary Vacancies’ at the Terminal of Montreal – Division 89”. The agreement in question cites the problem of shortages of seven days or more in the ranks of locomotive engineers by reason of “Stress, sickness, suspension, promotion on temporary basis, or leave of absence,” and allows for CN Montreal based locomotive engineers to bid on temporary vacancies which have not first been bid by VIA Montreal locomotive engineers, and mandates the return of such locomotive engineers to CN service on a seniority basis upon a reduction or elimination of the long term vacancy need. It is common ground that the agreement in question was not long lived, and was in fact cancelled by the Brotherhood, in accordance with the agreement’s own terms, by due notice in October of 1998.
In the Arbitrator’s view the instant case must be resolved by resort to first principles. At issue is the application of item 4(b) of the Transfer Agreement. That provisions allows certain locomotive engineers employed by CN, during the reciprocal rights period, to bid on “permanent vacancies at VIA”. It stipulates that such positions are to be advertised to both CN and VIA locomotive engineers pursuant to the terms and conditions of the collective agreement. In the Arbitrator’s view the threshold question under sub-paragraph (b) is whether a permanent vacancy exists. If it does, the subsidiary obligation of VIA is then to bulletin the vacancy to both CN and VIA locomotive engineers, such bulletin to be in accordance with the conditions of the collective agreement. It is among the most important prerogatives of any employer to decide whether it will declare and fill a permanent vacancy within its own operations. In my view, absent clear language, the provisions of the CN-BLE collective agreement cannot themselves define or alter what is or is not the definition of a permanent vacancy at VIA. If it were otherwise the Corporation would be under the entire control of CN and the Brotherhood as to the definition of a permanent vacancy within its own operations. That, in my opinion, would be a counter-intuitive result which must, at a minimum, be supported by clear and unequivocal language within the Special Agreement.
The jurisprudence well establishes that it is within the prerogatives of an employer to determine whether a vacancy, in the sense of an unfilled permanent position, exists within its operations. It is also true, however, that an employer cannot fail or refuse to fill what is a vacant job of work, and avoid its job posting obligations by purporting to set up a series of temporary assignments or, for example, assigning the work of one full time employee to two part time employees. (See, e.g., Re Kingston General Hospital and Ontario Public Service Employees Union, Local 442 (1993), 33 L.A.C. 4th, 191 (Simmons).) The issue of whether a vacant job of work can be said to exist is a determination to be made on the facts of each particular case.
In the case at hand there can be no doubt but that work sufficient to occupy the four employees who were assigned to Montreal locomotive engineer service existed. Can it be said, however, that the employees so assigned were brought in to fill a permanent vacancy? I think not. The material before the Arbitrator confirms that in each case the vacancy in question was occasioned by the absence of an employee by reason of illness, injury or temporary promotion. There were, in other words, incumbents in the assignments which originally became vacant. It is true, as the Brotherhood points out, that assignments become the subject of general bids at the change of timetable, but the fact remains that the individuals who were compelled to be absent from their normal assignment by reason of illness or otherwise, did hold seniority positions within the complement of the Montreal Terminal.
In approaching the language of the Transfer Agreement and the collective agreement, it is important to appreciate the context in which they arise. The concept of a locomotive engineer’s assignment is, to a certain degree, to be distinguished from his or her status as an individual holding seniority rights as an employee permanently assigned to a terminal. While assignments are deemed to terminate with the twice yearly change of timetable, there is nothing in the collective agreement between VIA and the Brotherhood which would prevent the Corporation from treating certain re-posted assignments, and the related vacancies, as temporary, particularly when it does so in good faith, with the assent of its own bargaining agent and in a way that doesn’t undermine the intention of the Transfer Agreement. I am satisfied that the latter document intends that the extraordinary transfer rights which it establishes are to be exercised only in the event a true permanent vacancy exists.
If the position argued by the Brotherhood were to prevail, upon the change of timetable those individuals, some of whom by no fault of their own were unable to be at work, could in fact lose their entire employment at VIA by being displaced by senior employees from CN. To put it differently, should the position of the Brotherhood prevail the parties to the Transfer Agreement must be taken to have contemplated that individuals holding permanent positions as locomotive engineer within VIA, who do not have any right to bid work within CN, could be subject to losing their employment should they be unavailable for work, for example by reason of illness, should that illness extend beyond the change of timetable, at which point a senior employee from CN might claim their assignment, leaving them with insufficient seniority to protect any employment within their own terminal. In my view such a radical result, said to turn on the meaning of a “permanent vacancy” within item 4(b) of the Transfer Agreement must be supported by more elaborate and compelling language than appears in the documents before me. While the issue was not argued, it appears to the Arbitrator at least debatable whether the parties could assert the terms of the Transfer Agreement in a way which would appear to clearly disadvantage employees with an illness or disability, having regard to the protections of the Canadian Human Rights Act. For the purposes of this award, however, it is not necessary to rest any conclusion on that basis.
The evidence confirms that the Corporation has utilized the concept of the long term temporary vacancy, a notion acknowledged at least for a time by the Brotherhood, strictly for the purposes of protecting the interests of incumbents within the Montreal home terminal who, by illness, injury or by temporary promotion, are unavailable to fulfil their normal work obligations. It also appears that the Corporation has acted in good faith. Counsel for the Corporation points to one circumstance where, for example, an individual’s absence from work became permanent. The relating temporary long term vacancy became acknowledged as a permanent vacancy and was so bulletined in accordance with the Transfer Agreement. In the Arbitrator’s view that approach is consistent with general principles governing the issue of whether a permanent vacancy exists, and is supported on the language of the Transfer Agreement itself. For the reasons noted above, the Arbitrator is not convinced that reference should be had to the separate collective agreement of CN and the Brotherhood to determine the threshold question of whether a permanent vacancy can be said to exist within the operations of VIA. Where, as in this case, the parties to the VIA-BLE collective agreement agree that no permanent vacancy exists within VIA, an arbitrator holding jurisdiction under the Transfer Agreement cannot lightly interfere, absent compelling objective evidence that a permanent vacancy truly does exist.
As should be obvious from the foregoing comments, the result would clearly be otherwise if it could be shown that the Corporation artificially manipulated the situation to deny that a permanent vacancy existed within the Montreal terminal. If, for example, an employee on long term disability were deceased, and no steps were taken by the Corporation to convert the temporary long term vacancy into a permanent vacancy different considerations might obviously apply. The instant case does not, however, raise such considerations.
Essentially, what the Corporation has done is to take reasonable steps, not challenged by the bargaining agent for its own locomotive engineers, and consistent with valid business purposes and sound labour relations, to preserve the employment security of individuals who are absent from work on an extended basis by reason of injury, illness or temporary promotion. It has done so to avoid such individuals being in peril of in fact losing their entire employment to more senior employees from another company who have the right to bid on permanent vacancies. The positions at Montreal which are the subject of this grievance are not, for the reasons elaborated above, permanent vacancies within the meaning of item 4(b) of the Transfer Agreement. Consequently, no violation of the terms of the Transfer Agreement are disclosed, and the grievance must therefore be dismissed.
Dated at Toronto, November 8, 2000 (signed) MICHEL G. PICHER