AD HOC 552: GO TRANSIT & ONR OPERATIONS

AWARD

This arbitration concerns a grievance alleging a violation of article 78 of the collective agreement, a provision which comes into play when the Company gives a notice to the Union of a material change which adversely impacts employees. The nature of the dispute and issues is reflected in the ex parte statement of dispute and issue filed by the Union, which reads as follows:

DISPUTE:

Is Canadian National permitted to service article 78 material change notices resulting in the loss of fifty-one (51) positions during the freeze period imposed by section 50(b) of the Canada Labour Code.

In the event Canadian National is not precluded by the operation of the Canada Labour Code from service a notice under article 78 of Agreement 1.1, under which part of article 78 is notice to be given in respect of the material change contemplated.

STATEMENT OF ISSUE:

On 03 November 2003, the Union met with Canadian National for the purpose of exchanging demands. In the Company’s submission of demands were included “reduction of second engineer’s position on GO Trains and ONR Tee Trains”. At that meeting, Canadian National served the Union with two article 78.2 notices for the abolishment of the second engineer’s position on GO Service and ONR Tee Trains.

The first notice, dated November 3, 2003 identified the Company’s intent, effective March 6, 2004, to eliminate the second engineer position in GO Transit Service with the loss of forty-eight (48) positions from the Union’s bargaining unit.

The second notice, dated November 4, 2003, identified the Company’s intent to reduce the second engineer’s position on ONR trains 697/698 at the same time, resulting in the loss of three (3) positions from the Union’s bargaining unit.

When spareboard opportunities are factored in, the Company’s announced intention will result in the loss of over seventy (70) positions solely in the Toronto area.

Both material change notices served after notice to bargain had been given pursuant to the Canada Labour Code.

The Union challenged the Company’s right to serve the notices during the bargaining freeze, and challenged the propriety of serving the notice pursuant to article 78.2.

On January 8, 2004, the Union filed a complaint with the Canada Industrial Relations Board alleging a breach of section 50(b) of the Canada Labour Code along with other sections of the Code.

Teamsters Canada Rail Conference contends that the Arbitrator should defer to the process of the Canada Industrial Relations Board with respect to the issue of whether service of the notices is precluded by the bargaining freeze.

In the event the Arbitrator elects not to defer to the Board, the Union contends that the Code prevents the Company from serving an article 78 notice of this magnitude during bargaining.

In the alternative, the Union asserts that if an article 78 notice is permissible, notice ought properly have been served under article 78.1 of Agreement 1.1.

At the initial hearing of this matter a number of preliminary issues were addressed. The Arbitrator was advised by the parties that they were agreed that the issue of the alleged violation of the statutory freeze by the Company should be heard and dealt with solely by the Canada Industrial Relations Board (CIRB). The Union nevertheless sought an adjournment of these proceedings pending the decision of the CIRB. The United Transportation Union appeared to seek intervener status. The Arbitrator granted intervener status to the United Transportation Union and declined to adjourn the proceedings pending the decision of the CIRB, all of which was reflected in an interim decision of the Arbitrator dated March 15, 2004. At the reconvening of the hearing to deal with the dispute on the merits, on April 16, 2004, the Arbitrator was advised that a decision of the CIRB, dated April 15, 2004 had dismissed the Union’s complaint.

The case at hand concerns the application of article 78 of the collective agreement. It reads, in part, as follows:

78.1 Prior to the introduction of run-throughs, changes or closures of home stations (including those brought about by the sale of a line), or the introduction of new technology initiated solely by the Company and having a significantly adverse effect on employees, the Company will:

(a) Give at least 180 days’ advance notice to the Union of any such proposed change, with a full description thereof and details at to the anticipated changes in working conditions; and

(b) Negotiate with the Union measures to minimize any significantly adverse effects of the proposed change on employees, but such measures shall not include changes in rates of pay.

(c) While not necessarily limited thereto, in the case of run-throughs and other changes described in this paragraph 78.1, the matters considered negotiable will include the following:

(1) Appropriate timing

(2) Appropriate phasing

(3) Hours on duty

(4) Equalization of miles

(5) Work distribution

(6) Appropriate accommodation

(7) Bulletining

(8) Seniority arrangements

(9) Learning the road

(10) Use of attrition

(11) Deferred separation

NOTE: For the purposes of this Article 78, home station is defined as the terminal where the spare board is maintained and/or from which relief is supplied.

78.2 In all other cases of material changes in working conditions which are to be initiated solely by the Company and which would have significantly adverse effects on employees, the Company will:

(a) Give at least 120 days’ advance notice to the Union of any such proposed change, with a full description thereof and detains at to the anticipated changes in working conditions; and

(b) negotiate with the Union measures to minimize any significantly adverse effects of the proposed change on employees, but such measures shall not include changes in rates of pay or the level or applicability of the benefits set out in paragraphs 78.8 to 78.13, inclusive of this article.

(c) While not necessarily limited thereto, in the case of such other changes covered by this paragraph 78.2, the matters considered negotiable will include the following:

(1) Appropriate timing

(2) Appropriate phasing

(3) Hours on duty

(4) Equalization of miles

(5) Work distribution

(6) Appropriate accommodation

(7) Bulletining

(8) Seniority arrangements

(9) Learning the road

(10) Deferred separation

As can be seen from the foregoing there are two substantial differences with respect to the sequence of procedure as between article 78.1 and article 78.2. When a notice is given under article 78.1 the Company cannot initiate the material change until the successful completion of the negotiation procedure with the Union contemplated within article 78.1(b). That negotiation procedure also includes a dispute resolution process up to and including binding arbitration, as provided under article 78.4. Article 78.1 also requires a longer notice period, in the form of a notice of 180 days.

Article 78.2 provides for a shorter notice period and, significantly, does not prevent the Company from implementing the proposed material change before it has negotiated or arbitrated terms of settlement with the Union concerning measures to minimize the adverse effects of the change. It may be noted, in passing, that for many years article 78 had only one notice provision and a single provision for the negotiation of the terms of settlement. Under the prior wording the Company could not initiate any material change without first exhausting the process established under article 78. In 1992 the language of the provision was changed, with the introduction of the two separate forms of notice now provided in articles 78.1 and 78.2.

The sole issue in these proceedings is whether, as the Union alleges, the Company was under an obligation to give notice of the material change concerning the abolishing of the second locomotive engineer’s position in GO Train service and in the passenger service of the Ontario Northland under article 78.1, or whether, as the Company maintains, notice was properly given under the provisions of article 78.2. Counsel for the Union stresses the substantial impact of the Company’s actions, describing it as occasioning the loss of as many as seventy positions, representing virtually one half of the locomotive engineers’ positions in GO Train service and on the Ontario Northland. He draws to the Arbitrator’s attention a statement made by the Company in its submissions to Mr. Justice Adams in April of 1995, in the arbitration procedures then taking place under the Maintenance of Railway Operations Act, 1995. In explaining article 78 the Company’s brief to Mr. Justice Adams made a distinction between major changes in the operation of the railroad as opposed to the minor changes which it described as falling under the shorter notice of 120 days. Counsel argues that the material here under review is clearly of the major change variety, given the extent of the adverse impact on job security for the employees involved.

Counsel for the Union further submits that the virtual elimination of a classification of employee, the second engineer, is by inference of the same magnitude as the kinds of changes listed in article 78.1, such as run throughs and closures of home stations. He further argues that in fact what will result is changes in home stations, as employees will in all likelihood be compelled to relocate from their existing home station as a result of the abolishment of the locomotive engineers’ positions.

Counsel for the Company submits that there is nothing in the language of article 78.1 which would justify the Union’s view that this is a case which requires notice to be given under that provision. He stresses that the disputed changes are neither run throughs nor closures nor changes of home stations and are not, he states, related to the introduction of new technology. He disputes the suggestion that there is a change of home station in the sense contemplated within article 78.1 on the facts disclosed. He states that home stations are identified for the purposes of establishing the base of a job or assignment. Implicitly, he argues that the change of an individual’s home station, something which is not uncommon within the normal workings of job bidding and displacement on a seniority district, is not contemplated as a material change. According to counsel for the Company, within the meaning of article 78.1, a change of home station means the transfer of an assignment or set of assignments from one home station to another. It is not, he submits, the movement of employees between home stations. In the case at hand counsel stresses that the GO Train assignments for locomotive engineers remains within the same home station of Toronto, and that there is therefore no change in home stations either directly or indirectly involved in the material change which is the subject of this dispute. Additionally, although it is tangential to his argument, counsel for the Company states that the Company’s estimate of the positions lost is somewhat lower than the estimate of the Union, being more in the order of fifty positions. The Company further states its belief that virtually all of the employees so affected will find alternative employment within the Company’s operations in Toronto.

Counsel for the Intervener essentially supports the submissions made the Union. With respect to the scope of the change he notes that GO Train crews, which include a conductor, and in some cases an assistant conductor, have had crews of three or four employees, depending on whether an assistant conductor was used. He stresses that in the case of three person crews the elimination of the second locomotive engineer is effectively an elimination of one third of the crew. He maintains that the magnitude of the change so viewed should required a notice under the provisions of article 78.1 of the collective agreement.

I turn to consider the merits of the dispute. In the Arbitrator’s view the language of the two provisions in question does not lend support to the position of the Union. According to the parties’ own chosen language, for article 78.1 to apply one of several very specific conditions must exist. The Company’s material change must involve the introduction of a run through, which would effectively eliminate a terminal, or it must involve changes or closures of home stations or, finally, it must involve the introduction of a new technology which will have a significant adverse effect on employees. There are no other express or implied circumstances in which the Company is under a contractual obligation to give the 180 day notice described in article 78.1 of the collective agreement, and by which the other obligations of that article come into play.

In the Arbitrator’s view the facts in the case at hand cannot be said to fall within any of the conditions necessary to trigger the application of article 78.1. The only arguable point raised by the Union that can be tied to the language of the agreement is the suggestion that the material change will result in changes of home stations, in the sense that affected employees may locate to new home stations. With respect, that is not what the collective agreement provision means as regards what constitutes a change of home stations. Prior arbitration awards and negotiated settlements under the provisions of article 78 are replete with examples of changes in home station. Invariably, a change in home station involves the change of an assignment from one home station to another. It is the change in the locus of the assignment, and not a change in the locus of the employee, which constitutes a change in home station for the purposes of article 78 of the collective agreement. The fact that employees may incidentally be required to move to another home station by reason of the abolishment of their position does not, therefore, constitute a change in home stations within the meaning of article 78.1 of the collective agreement.

Very simply, although the Arbitrator well appreciates the scope and profound impact of the material change being proposed by the Company and the understandable concern of the Union, the facts at hand do not bring the material change in question within the ambit of article 78.1. For reasons they best appreciate, in 1992 the parties established two forms of notice under article 78. From that time onwards the onerous notice of article 78.1 was expressly restricted to four clearly defined circumstances: the introduction of a run through, the closure of a home station, a change in home stations or the introduction of new technology with significant adverse effects. All other material changes are to fall under the provisions of article 78.2 of the collective agreement. On the facts at hand, the change proposed by the Company, as significant as it may be on day to day operations and on the lives of the employees affected, cannot be characterized as a material change which falls within the specific provisions of article 78.1 of the collective agreement.

For the foregoing reasons the Arbitrator must conclude that the notice provided to the Union was properly given under the provisions of article 78.2. The grievance must therefore be dismissed.

Dated at Toronto, this 21st day of April 2004

(signed) MICHEL G. PICHER

ARBITRATOR