AD HOC 561
IN THE MATTER OF AN ARBITRATION
HURON CENTRAL RAILWAY
MERTON ALCOCK, LOCOMOTIVE ENGINEER/CONDUCTOR
RE SENIORITY STANDING
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE COMPANY:
Jean-Marc Montigny – Vice-President, Operations, Outremont
Garth Rushton – General Manager, Sault Ste. Marie
Terry Moar – Engineer, HC Railway, Sault Ste. Marie
Appearing For The Grievor:
Frank J. Provenzano – Counsel, Sault Ste. Marie
F. D Bertolo – Conductor, Huron Central Railway
M. Alcock – Grievor
A hearing in this matter was held in Sault Ste. Marie on April 19, 2004 and further conference calls were conducted on April 26 and May 6, 2004.
This is the arbitration of a grievance in relation to seniority standing. The grievor, Locomotive Engineer Merton Alcock, maintains that he has been improperly placed on the seniority list governing running trades employees working for the Company at its terminal in Sault Ste. Marie, Ontario. The Company maintains that Mr. Alcock has been properly placed at the bottom of the seniority list by reason of his status as a person in receipt of pension benefits as a retired employee of CP Rail.
There is an important dispute as to the facts and seniority rules governing the status of Mr. Alcock. Certain background facts are not, however, in dispute. Some of those are reflected in the ex parte statement of issue filed by the Company and contained within the brief which it submitted to the Arbitrator. That statement reads, in part, as follows:
EX PARTE STATEMENT OF ISSUE:
Prior to the take over of operations on the Webwood Subdivision, Genesee Rail-One during the month of June 1997 held several meetings, both official and unofficial, with Canadian Pacific Railway and their employees to discuss the topic of having the Canadian Pacific Railway employees transfer to the new Company.
During these meetings the issue of the awarding of seniority was raised and discussed. The employees and the Company came to an understanding as to how seniority would be applied at the new Company.
The grievor attended these meetings and was fully aware of the procedures to be used to determine seniority. However, the grievor opted to take a bridging package from Canadian Pacific Railway rather than transfer to the Company.
On July 29, 1997 the Company took over the operations of the Webwood Subdivision from Canadian Pacific Railway. Former active employees at Canadian Pacific Railway who accepted transfer to the Company were awarded seniority status in accordance with their standing at the Canadian Pacific Railway. Employees from Canadian Pacific Railway who had retired or were on bridging were placed at the bottom of the seniority list.
Six years after the fact, on July 8, 2003, the grievor submitted a grievance with respect to his standing on the seniority list for locomotive engineers at the Company.
The grievance letter which gave rise to the dispute was filed by Mr. Alcock on July 8, 2003. It reads, in part, as follows:
Re: A grievance with Huron Central Railway concerning seniority.
Please accept this letter as a formal grievance as there was no redress form available. I have been directed by the manager of operations Garth Rushton to submit a letter regarding my problem.
I have consulted with my lawyer and have been advised to use the channels outlined in the Employees handbook for filing a grievance. The problem that I am having is with the Seniority Rule 3.3 in the handbook. It is being assumed by many of my fellow employees that anyone on Pension or Bridging has no seniority rights. In section 3.3 of the Employee Handbook it clearly states that “Employees assigned and working on H.C.R. lines at the date of takeover will have the C.P. seniority standings recognized by their former employer”. Please note that I was working at the time of the takeover when this was implemented.
After carefully reviewing the Employee Handbook, it did not mention anything about Pension and Bridging. In section 3.4 it also states “to qualify for special recognition on the seniority roster, such employees have to file their application for work with H.C.R. by July 4, 1997”. According to Mr. Ruston I was one of two individuals that did so. Mr. Rushton told me that the original date in the Employees Handbook was changed. When discussing this matter with my lawyer, he advised me that the date could not be changed. My lawyer also brought it to my attention that no one has signed this handbook. Any individual may not add or take away from the material already in the handbook without consulting with all the parties concerned.
I hope this matter can be resolved in my favour to avoid entering the appeal process.
(signed) Mert Alcock
Part of the brief filed by the Company raises a preliminary objection as to the timeliness of the grievance made by Mr. Alcock. Essentially, the Company asserts that Mr. Alcock appeared to accept the seniority arrangement whereby persons on pension or bridging from CP would stand junior to other running trades employees. On that basis the Company questions how he could raise the issue of his seniority some six years after the fact of the commencement of his employment with Huron Central Railway.
While the Arbitrator appreciates the sentiment which underlies that objection, it is difficult to deal with in the absence of a collective agreement which establishes specific rules with respect to the timeliness of grievances, and without reference to any specific time limits articulated within the Employee Handbook promulgated by the Company. Moreover, it would appear from the perspective of the grievor that there was no real reason to focus on his relative seniority standing until his displacement from employment at or about the time of the grievance which he filed. On the whole, therefore, the Arbitrator cannot see any compelling basis upon which to sustain the preliminary objection made by the Company.
In support of its position, the Company submitted a letter dated January 27, 2004 signed by some seven running trades employees, including Mr. Terry Moar who appeared as a witness at the arbitration hearing. The letter reads, in part, as follows:
As former CP Rail employees, we would like to state what we consider to be the facts in regards to company seniority and Mert Alcock’s grievance.
In June of 1997, we were approached by Genessee Rail One representative Bill Hand, who offered us a transfer package, as that company would be assuming operations of the Webwood line in July of 1997. Between early June and the middle of July, we had several meetings with Bill Hand, both as individuals and as groups, including one official meeting (the exact date unknown).
At most, if not all of these meetings, it was clearly stated that those employees who severed from CP Rail and transferred to what is now Huron Central would retain their full seniority, while those who decided to bridge or receive pension benefits would be placed at the bottom of the seniority list, provided enough positions existed. These conditions were upheld not only by Huron Central, but also by CP Rail. All employees were made fully aware of these conditions, as understandably these were important in determining whether to remain with CP or to transfer to the new company (most employees at that time held full-time positions with CP and would have been relocated, if they chose).
In regards to Mert Alcock’s grievance, we believe that it is without merit. He had the opportunity to retain his seniority by severing from CP; however, he did not choose to do so. He chose to accept bridging, knowing the resulting effect on his seniority. We as employees did not dictate any of the previously mentioned conditions of our employment, we took them into consideration, understood them and accepted them.
It has now been more than six years since we have transferred operations, and it is very difficult locating all documentation, however, all the facts stated in this letter can be verified by contacting Bill Hand, Gary Paquin or Bob Deciccio.
Counsel for Mr. Alcock objected to the filing of the above letter, to the extent that it is in the nature of a hearsay document. The Arbitrator cannot sustain that objection. Firstly, by analogy to the rules governing arbitration under labour relations statutes, hearsay is admissible, quite apart from recent pronouncements of the Courts which are generally to the same effect. Obviously there must be some caution as to the weight to be ascribed to hearsay evidence, whether documentary or otherwise. In the instant case, however, it is noteworthy that one of the signatories to the letter, Mr. Moar, did appear as a witness and was clearly subject to cross-examination as to the content of the letter as well as the content of his viva voce evidence.
The evidence of Mr. Moar confirms that shortly before the takeover of the Webwood Subdivision by the Huron Central Railway two meetings of the employees were conducted. The first was at the Water Tower Hotel and the second in the yard office at Sault Ste. Marie. To the best of Mr. Moar’s recollection the Water Tower meeting was some two to three weeks before the takeover date of July 29, 1997. Mr. Moar testified that he could not recall that there was any discussion of seniority rules at the initial meeting, which he described as being “pretty broad”.
Mr. Moar states, however, that at the second meeting held in the yard office, which took place after employees had made applications for employment, a consultant who conducted the meeting on behalf of Genesee Rail One, Mr. Bill Hand, did conduct what Mr. Moar describes as a question and answer meeting which included some discussion of seniority. He states that during that meeting Mr. Hand stated that anyone who was on bridging to pension with CP Rail would go to the bottom of the seniority list at Huron Central. Conversely, employees who were not on bridging, and who transferred directly as active employees from CP Rail to Huron Central would retain their relative seniority positions from CP Rail as employees of Huron Central. Finally, anyone newly hired by Huron Central after the date of transfer would be placed at the bottom of the seniority list. According to Mr. Moar, there were occasions over the six year period prior to the instant grievance when senior employees would bid to change positions and were placed in those positions on the basis of their seniority. According to his testimony those changes would have been made on the basis of a seniority list which he saw posted at times on the bulletin board as well as in what he described as a blue notice book available to employees.
Evidence was also given on behalf of the Company by Mr. Garth Rushton, who now occupies the position of General Manger at Sault Ste. Marie. Mr. Rushton worked some thirty years for CP and like Mr. Alcock and one other employee, Carman Gary Husband, he was eligible for bridging, which he took at the time of the transfer. Mr. Rushton did not attend the meeting in the yard office where Mr. Moar states there was some discussion of the seniority standing of employees on bridging. He relates that he was given instructions, however, by his superior officers in management that employees who did have the benefit of bridging from CP Rail would be placed below other employees in relative seniority ranking.
Mr. Rushton also gave evidence in explanation of some three separate seniority lists which appeared in evidence. A list appended to the brief submitted by the Company places Mr. Alcock at the bottom of the seniority list with Huron Central seniority of July 29, 1997. Mr. Rushton further explained that Mr. D.L. Trudel, who appears at the top of that seniority list was placed there in error, as he took a pension from CP and he was brought in as a spare employee, a status which he maintained for a period of approximately one year. With respect to the car department, Mr. Rushton further explained that the placement of Mr. Gary Husband at the top of that list was also in error, given that Carman Husband, like Mr. Alcock, had taken bridging from CP.
Mr. Rushton stated that he recalls a conversation with Mr. Alcock concerning the yard office meeting at the time of the transfer. It appears that the discussion arose between them when Mr. Alcock objected to being displaced, asserting that he should have the protection of his original CP seniority. According to Mr. Rushton’s recollection what Mr. Alcock said during the course of that conversation is that he had been in attendance at the meeting held in the yard office, and that he did not agree with the statement which was made at that time to the effect that employees on bridging would be placed at the bottom of the seniority list.
The position of Mr. Alcock is that he never saw a seniority list until he was bumped in July of 2003, and that seniority lists weren’t posted until he raised the issue. He related that at the time of the transfer the Assistant Superintendent with CP asked him whether he would opt to take bridging. Upon learning that it would mean that he would receive 65% of his CP wages for a period of five years and thereafter go on full pension from CP, he opted to take bridging with CP. According to his account, however, that was not completed and approved until the last week of August, with his first bridging payment commencing on September 4, 1997. Mr. Alcock stated that he was in attendance at both meetings and heard no discussion about the seniority impact of a person being on bridging or pension with CP Rail. He stated that his choice would have been to go elsewhere with CP if he did not get bridging, but that he would hire on with Huron Central if he knew would receive bridging. It is not disputed that Mr. Alcock went directly into employment with Huron Central on the first day of operations, July 29, 1997, although he maintained his employment status with CP, pending the outcome of his application for bridging.
The grievor’s evidence confirms that he had been in road service with CP Rail. While the general thrust of the testimony before the Arbitrator indicates that people essentially held their same positions when the transfer to Huron Central was made, that is not what happened with respect to Mr. Alcock. He stated that an employee who was junior to him on the CP seniority list, Mr. G.J. Richard, indicated that he preferred to take a road assignment and “claimed a better right to the road than me”. It does not appear disputed that Mr. Richard’s CPR seniority was July 02, 1985 while the grievor held CPR seniority as of March 17, 1977. Nevertheless, according to Mr. Alcock, he accepted to work in the yard, an assignment which he states he enjoyed. On the whole, as reflected in Mr. Alcock’s testimony, it does not appear that there has been a great amount of movement among the employees in the running trades over the years.
Evidence in support of Mr. Alcock’s position was also given by Mr. Frank Bertolo and Mr. Gary Husband. Mr. Bertolo, who was previously a rail traffic controller at Algoma Central Railway, was hired as an RTC by the Huron Central, although he now works as a conductor. He stated that he never saw a seniority list posted, and did not in fact see one when he asked Mr. Rushton. According to Mr. Bertolo’s evidence the first time he saw a seniority list was July of 2003, the point in time when Mr. Alcock’s dispute commenced.
Mr. Gary Husband worked as a car inspector, having some thirty-two years of service with CP Rail. Like others, he joined the Huron Central Railway on July 29, 1997. Like Mr. Alcock, he was entitled to bridging and elected to take it, and also commenced to receive the benefits of bridging in September of 1997.
Mr. Husband stated that he was present at the yard office meeting, along with Mr. Alcock, when Mr. Bill Hand represented the new company. According to his recollection there was nothing said about bridging, although his immediate interest was in attempting to know how many employees in the car inspection department would be hired. Mr. Husband confirmed that he never saw a posted seniority list, and had no reason to be concerned about it until he heard of the dispute raised by Mr. Alcock. On hearing of the grievance he stated that he proceeded to ask Mr. Rushton to show him a copy of the carmen’s seniority list. Mr. Rushton then produced to him a list which had his name at the top, and immediately stated words to the effect that the Company would have to change that. According to Mr. Husband, during late April or early May of 2004 a changed seniority list was posted in the lunchroom for the car department, and on that list he was changed from being the first of four employees to be ranked third in seniority in the car department. Mr. Husband further indicated that there was no major change from operations as they existed at CP under Huron Central, and that to his knowledge no one had bumped anyone else during the six year period prior to Mr. Alcock’s grievance.
Counsel for Mr. Alcock submits that the evidence does not sustain the position of the Company to the effect that persons in Mr. Alcock’s position, namely those who had the benefit of bridging from CP Rail, were to be given relative seniority junior to employees who simply transferred directly from CP to the Huron Central Railway. Mr. Provenzano refers the Arbitrator to the provisions of the Huron Central Railway, Inc. Employee Handbook, a copy of which was provided to the Arbitrator. In particular he notes the provisions of articles 3.3 and 3.4 of the handbook in effect at the time of the takeover. Those provisions are as follows:
3.3 CP Employees assigned and working on HCR lines at the date of takeover will have their CP seniority standings recognized. They will be placed on the single seniority roster according to their total seniority standing recognized by their former employer. Vacations will be determined by the terms of Article 8 herein. The recognition of former seniority standing will apply to Articles 4, 5 and 6 concerning job movements (promotions, reductions, recalls and posting).
3.4 Deadline for application: To qualify for special recognition on the seniority roster, such employees have to file their application for work with HCR by July 4, 1997.
Counsel submits that Mr. Alcock duly applied for acceptance into employment with the Huron Central Railway before July 4, 1997. He stresses that on the face of the handbook there is nothing that would indicate to a person in Mr. Alcock’s situation that his seniority standing would be other than the maintenance of his relative seniority at CP, as he was in the same situation as other CP Rail employees, to the extent that he moved directly from active employment with CP to assume active employment with the Huron Central Railway as of the date of the takeover, July 29, 1997. He stresses that the employee handbook is bereft of any qualifications or mention of rules such as the lower placement on the seniority list of employees having the benefit of bridging or pension from CP Rail.
Counsel categorically disputes the assertion found in the Company’s brief to the effect that Mr. Alcock’s bridge took effect on July 28, 1997, and that he did not move from being an active employee of CP Rail into employment with the Huron Central Railway on the date of the takeover. Counsel stresses that Mr. Alcock did not have confirmation and the benefit of bridging, in fact, until after the takeover, commencing in September of 1997. He also notes that Mr. Alcock was not treated as a new employee with respect to vacation entitlement, receiving four weeks’ vacation, and not the two weeks which would otherwise be available to a new hire. Counsel further notes that there was no consistency in the posting of seniority lists and that Mr. Alcock’s evidence confirms that he was unaware that he was at the bottom of the seniority list until he was bumped in July of 2003. He also stresses the confusion faced by Mr. Alcock, a confusion which the Arbitrator can readily understand, concerning his actual seniority standing given the apparent confusion surrounding various seniority lists which have emerged over the years, including some three separate lists examined during the arbitration.
The Company’s representative stresses that the employees were fully aware, from the time of the takeover of operations from CP Rail in June and July of 1997, that persons having the benefit of bridging with CP Rail would not have the additional benefit of standing at the top of the seniority list with the Huron Central Railway. Such a privileged standing would effectively ensure that in the event of a layoff the most favoured employees, those having the advantage of pension benefits from CP Rail, would also be the most sheltered from layoff. He stresses that it is in that context that the discussions at the yard office meeting touched upon the treatment of employees who would have the benefit of bridging from CP Rail at or about the time they transferred into employment with the Huron Central Railway.
In support of that position he stresses the testimony of Mr. Terry Moar, as well as the evidence of Mr. Rushton. He further draws to the Arbitrator’s attention the corroborative content of the letter signed by some seven employees reproduced above, confirming their understanding as to the qualified seniority which would be accorded to CP employees having the benefit of bridging at the time the transfer.
In the Arbitrator’s view the confusion in the mind of Mr. Alcock is well understandable. While the Company has clearly endeavoured to provide fair terms of employment to its employees and, as reflected in the employee handbook, has gone a long way to providing workplace due process for their benefit, the record in the case at hand clearly indicates that the handling of the seniority lists has left something to be desired. By Mr. Rushton’s own admission, there were serious errors in the list which emerged in evidence in these proceedings, including the erroneous placement of Mr. Trudel on one of the lists and, according to Mr. Rushton, a similar error concerning the fact that Mr. Gary Husband appeared at the top of the seniority list for the car department. Nor can the Arbitrator dismiss out of hand the suggestion of counsel for Mr. Alcock who, as part of a very thorough and capable submission, notes that the employee handbook given to employees at the time of the transfer contained no mention of the special seniority limitations to be placed upon employees with the benefit of bridging from CP Rail.
How, then, is the Arbitrator to resolve this dispute? In my view it is critical to have the closest regard to the objective evidence that emerges in this dispute. Clearly the grievor, like Mr. Moar and Mr. Husband, can be said to have a clear interest in the outcome of the proceedings, a factor which might be viewed as qualifying the weight which can be given to their evidence. There are, however, two elements of evidence which in the Arbitrator’s view are not tainted by the element of self-interest.
The first such element is the testimony of Mr. Rushton. There is nothing before me to suggest that Mr. Rushton has any interest, whether personal or corporate, in the outcome of this dispute. The Arbitrator judges that his testimony was given in a candid and open manner, that he readily acknowledged errors that were made, and that he was fair in his account of events as he recalled them. While Mr. Rushton confirmed that he was not in attendance at the meeting conducted in the yard office, he indicated that employees who were present at that meeting relayed to him that the rule governing the seniority of employees who opted for bridging with CP was indeed stated, and that that rule was clearly confirmed to him by his own superior officers in management.
The second piece of objective evidence is arguably the most compelling. The evidence confirms that under CP Rail Mr. Alcock had the benefit of a road assignment. By his own admission, at or about the time of the transfer, he was told by Mr. G.J. Richard, who was junior to him on the CP seniority list, that Mr. Richard was asserting his greater Huron Central Seniority to take the road assignment which had been operated by Mr. Alcock. It is important to note that Mr. Alcock’s initial account of these events, given during his testimony in chief on the first day of the hearing, was clearly to the effect that Mr. Richard asserted that he had a better seniority right. It is notable that whatever his own thinking may have been, Mr. Alcock made no objection to the assertion of greater seniority then made by Mr. Richard, and essentially acquiesced in performing a yard job which was entirely different from the assignment which he had held under CP Rail. What the evidence therefore discloses is that from the outset of his employment at Huron Central Mr. Alcock was, in effect, bumped from his regular assignment, and was bumped in circumstances where the employee exercising the bump clearly asserted that he had a greater seniority right than Mr. Alcock. On the balance of probabilities, that would not have been so if the seniority rules had then been as Mr. Alcock now asserts, namely that he did not have diminished seniority by reason of his having accepted bridging benefits from CP Rail. I find Mr. Alcock’s explanation to the effect that he was simply content to yield and take the yard assignment as being of doubtful plausibility.
There is also a purposive analysis which supports the interpretation advanced by the Company in these proceedings. If Mr. Alcock’s view of the seniority rules should prevail the transfer of work from CP Rail to Huron Central would have been accomplished in a manner inconsistent with rules of fairness which generally govern such transfers within the railway industry. When major roads introduce material change, such as the closure of terminals or the sale of lines, they generally enter into negotiations with the affected unions so as to minimize the adverse effects on those employees impacted. Significantly, one of the kinds of benefits negotiated under the special agreements which are fashioned in those situations are bridging and early retirement opportunities. Those arrangements are fashioned specifically to protect junior employees by giving senior employees the opportunity to leave the workplace, allowing attrition to become an instrument whereby the negative impact on junior employees is reduced.
The spirit of that generally accepted principle would plainly not be served if the position of Mr. Alcock should prevail in the case at hand. As he would have it, he would not only have had the benefit of bridging and the value of a five year period during which he would have the “double dip” advantage of receiving 65% of his wages from CP Rail, while also receiving full wages from the Huron Central Railway, but he would also stand virtually at the top of the seniority list, having the best protection of all against possible lay off in the eventuality of job reductions at Huron Central. When viewed from the standpoint of general industry practice, such a privileged situation is counterintuitive, to say the least. That is to say that in the Arbitrator’s view the plausibility of the rule being advanced by the Company is, standing alone, far more persuasive than the plausibility of the rule which Mr. Alcock seeks to assert. I find it highly unlikely that at the time employees were considering whether to remain with CP Rail, possibly considering a transfer to another location, or deciding to throw their lot into employment with the Huron Central Railway, they would have done so without the clearest and fullest understanding of their own relative standing on the seniority list being established. That understanding would, I am satisfied, have required a clarification of the status of persons who, like Mr. Alcock, accepted the benefit of a bridging package or, if entitled, might have taken either retirement or early retirement benefits.
I am not prepared to find, on the balance of probabilities, that the rule as it appears to have been understood by Mr. Rushton and a number of other employees was somehow made out of whole cloth in July of 2003 when Mr. Alcock was made the subject of a bump. I am satisfied that the more compelling evidence is that given by Mr. Rushton, and supported by Mr. Moar and well as the employees signatory to the letter of January 27, 2004, that it was well understood among the running trades employees that Mr. Alcock, as one having the benefit of bridging from CP Rail would enter the service of the Huron Central Railway in a position of seniority inferior to those who went directly from active service with CP into active service with the Huron Central without the benefit of bridging or other pension advantages. By well established industry standards, it is fair to say that employees who quit CP on July 29, 1997 took their seniority with them into their employment with Huron Central. Mr. Alcock, who did not quit CP on that date, effectively spent his seniority in exchange for the extraordinary value of bridging benefits. He therefore went to Huron Central on the understanding, as he explained it, that he would move elsewhere with CP if his bridging was not approved. That is consistent with his then realizing that he would stand below other CP transferees at Huron Central if his bridging was approved. I am therefore satisfied that, on the balance or probabilities, he knew or reasonably should have known that he would stand behind other CP employees in relative seniority if he did receive bridging from CP.
Nor do I find compelling the arguments advanced on behalf of Mr. Alcock based on the wording of the employee handbook. An examination of that document, in its general scheme and framework, indicates that it was plainly fashioned to deal with the general rules which would apply to employees moving from one company to another, as well as new hires. As the evidence before me confirms, there were only three individuals out of CP service eligible for bridging, one of whom was Mr. Rushton. It is therefore not surprising that a general employee handbook would not contain an asterisk or footnote clarifying the status of one or two persons in the exceptional circumstance of Mr. Alcock. For the reasons touched upon above, I am satisfied that Mr. Alcock’s status was discussed at the time of the yard office meeting, that it was generally understood among the running trades employees, and that the position of the Company in this grievance must be sustained.
For these reasons the grievance must be dismissed.
Dated at Toronto, this 17th day of May 2004
(signed) MICHEL G. PICHER