IN THE MATTER OF AN
ARBITRATION
BETWEEN
CANADIAN NATIONAL
RAILWAY COMPANY
(“the Company”)
AND
INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 11
(“the Union”)
RE: CANCELLATION OF
4/3 WORK SCHEDULE FOR S&C INSTALLERS
ARBITRATOR -
MICHEL G. PICHER
FOR THE COMPANY:
André Giroux, Counsel
Alain Y. de Montigny, Senior Manager, Labour
Relations
FOR THE UNION:
Michael Church, Counsel
Ken Stuebing, Counsel
Kevin Kearns, Senior System General
Chairman
Richard Hunt, System General
Chairman
Luc Couture, System General Chairman
Hearing by
telephone conference call March 20, 2006, final written submissions March 21,
2006
INTERIM AWARD
The Union seeks an interim
order under section 60(1)(a.2) of the Canada Labour Code, R.S.C. 1985, c.
L-2. It asks the Arbitrator to direct
the Company to maintain the status quo with respect to the scheduling of the
work week of S&C Installers across Canada, pending the hearing of its grievance
on the merits on May 12, 2006.
Certain background facts are
not in dispute. The collective agreement
covers several hundred employees system wide who are responsible for installing
and maintaining the Company’s signals and switches. The bargaining unit includes some 125 S&C
Installers, who are responsible for the installation of new equipment. The work cycles of all employees are governed
by article 7 of the collective agreement, which reads, in part, as follows:
7.1 Unless
otherwise provided, a work week of forty (40) hours consisting of five (5) days
of eight (8) hours each is established.
…
7.13 Various
work cycle arrangements may be established by mutual agreement between the
proper officer of the Company and the Union. Such work cycle variations may
include 10 days followed by 4 rest days, 15 work days followed by 6 rest days,
8 work days (10 hours each) followed by 6 rest days, etc. Where such agreement is reached the parties
will make a joint application to the Minister of Labour in accordance with the
provisions of the Canada Labour Code.
It is understood that
the various work cycle arrangements are for the purpose of meeting the
Company’s operational requirements or to provide employees working long
distances from home sufficient time to return home on their rest days.
It does not appear substantially disputed that for upwards of 25 years
the Company and the Union have made agreements whereby the vast majority of
S&C Installers have worked a 4/3 rotation, with four days on and three days
off. On March 6, 2006 Regional Manager
S&C Terry O’Shell issued the following directive for employees in Eastern
Canada:
Effective
March 10th 2006 S&C Installation Gangs and Quality Assurance
employees will no longer be allowed to work a 4/3 work cycle and will revert to
there (sic) bulletined assignment of 8 hours per day Monday to Friday (5/2).
Hours of service will be decided by the S&C Supervisor based on operation
requirements.
Exceptions:
8/6 work cycle will be allowed with prior approval for:
S&C Installations Gangs and
Quality Assurance employees required to work West of Capreol,
Ontario.
S&C Installations Gangs and
Quality Assurance employees required to work West or North of Hervey, Quebec.
Exceptions:
Track Service/Production/Structures
Gangs/Special Projects S&C Installations Gangs and Quality Assurance
employee supporting Track Service/Production/Structures Gangs/Special Projects
will coordinate their work cycle with that of the activity being supported.
It is also not disputed that a similar directive was communicated with
respect to employees in Western Canada on or about March 3, 2006, to take
effect the following week.
While S&C Installers in Eastern Canada have worked
a 4/3 cycle for many years, there are no written agreements there in
effect. It appears that the 4/3 work cycle
for that territory is the result of annual verbal understandings. In Western
Canada written agreements have been in place. Those have covered a number of
employee classifications, including S&C Installers who have been placed on
a 4/3 cycle, apparently for decades. The
most recent agreement, dated January 16, 2006, specifies that S&C
Installations personnel are to be on cycles of “…8/6 or 4/3”. That same agreement contains the following
cancellation clause:
This
letter of Agreement is made pursuant to Article 7.3 of Agreement 11.1 and is
subject to cancellation upon sixty (60) days notice from either party to the
other.
A Company witness explained that in his view the above
agreement in Western Canada does not prevent the Company from reverting to the
5/2 cycle contemplated in article 7.1 of the collective agreement. As he sees
it, the letter of understanding merely clarifies the other option of 4/3 which
the Company can apply, or not apply, with the Union’s agreement. The Union’s witnesses and its counsel
strongly object to that interpretation.
They submit that the agreement represents an “otherwise provided”
agreement such as is contemplated within article 7.1 of the collective
agreement, which is binding on both parties.
They submit that the verbal understandings in Eastern Canada stand to
the same effect.
There is no dispute as to the applicable law and jurisprudence with
respect to the factors to be considered in weighing a request for interim
relief. In CROA 3041 this Arbitrator
commented:
… In
considering whether to issue a cease and desist order a board of arbitration
must consider the balance of convenience and, in particular, must determine
whether the failure of injunctive relief will prejudice a party. More specifically, a board of arbitration
must weigh the possibility that the action sought to be enjoined would, if
carried out, place the grieving party in a position which frustrates the
possibility of a fully effective remedy or make whole order upon the
determination of the merits of the dispute.
The arbitral case law has evolved to hold that a two part test is to be
applied. Firstly is there a fair
question to be arbitrated and, secondly, where does the balance of foreseeable
damage or harm lie? (see, e.g. Aliant
Telecom Inc .and Atlantic Communication and Technical Workers Union, (2002),
103 L.A.C. (4th) 304 (Christie))
Counsel for the Union
submits that there is clearly an arguable case of interpretation to be resolved
with respect to the application of the provisions of article 7 of the
collective agreement. With respect to
foreseeable harm, he stresses that employees have bid work and organized their
personal lives, including travel to and from their work sites, based on the
long standing practice of the 4/3 work
cycle. He submits that the loss of time
and personal disturbance to employees cannot be made up by any remedy after the
hearing on the merits, some ten weeks away. On the other hand, the delay of a few weeks in the
implementation of the Company’s wish for a changed cycle will not inflict
irremediable harm on the employer, which has operated for many years under the
existing 4/3 cycle for S&C Installers system wide.
Counsel of the Company submits that the collective
agreement is clear that the 5/2 rotation is the presumptive work cycle under
the collective agreement and that there is not a clear case of a fair question
to be resolved. He also stresses the
evidence of the Company’s managers to the effect that the 4/3 cycle limits the
opportunity to access the track to perform work, as it involves one less day
per week of exposure. Given heavier
train traffic and the scarcity of down time to perform repairs, he submits that
the 5/2 cycle is vital to attain reasonable efficiency and productivity in the
installation of new signaling equipment.
The Arbitrator has some difficulty with the case put
forward by the Company. I do not, of
course, purport to interpret the provisions of article 7 which are here at
issue. That is for the hearing on the
merits. But I am satisfied that there is
clearly an arbitrable disagreement with respect to the operation of article
7.
With respect to the second issue, concerning the
balance of convenience or risk of harm, I find the Union’s submission to be the
more compelling. There can be little
doubt but that the change of work cycle on short notice can be disruptive to
the personal lives of the employees affected.
For example, an employee who has scheduled medical or dental
appointments based on having a third day free in each week is obviously
disrupted by the change, in such a way which may not be remediable by the
payment of monetary damages after the fact, should the grievance eventually
succeed on the merits. While the
Company’s concern for greater efficiency is obviously a legitimate factor to be
weighed, it is less than clear to the Arbitrator that the delay of a few weeks,
if the Company should succeed on the merits, is as much of a hardship to the
employer as is the loss of personal time and opportunities which individual
employees will suffer if interim relief is not granted. It must be remembered
that the Company has functioned for many years under the 4/3 cycle, without
apparent difficulty, and that it does have the ability to stagger the days off
of different crews so as to give overlapping coverage over all five week days
using the 4/3 cycle. Moreover, the
insertion of the 60 day notice period in the Western Canada letter of agreement
is, at a minimum, prima facie
evidence that the parties gave some importance to employees having fair notice
of any change. Indeed, in granting interim relief the courts have recognized
the importance of protecting against significant work schedule changes without
adequate notice, especially where a change in rest days is concerned (see, e.g.
Brotherhood
of Maintenance of Way Employees v. Canadian Pacific Ltd. [1994] BCJ No.
1236 (B.C.C.A.)).
On balance, I am satisfied that the disruption to the
employees affected by the proposed scheduling change outweighs any
inconvenience the Company may experience by having to await the outcome of the
arbitration of this grievance on its merits. For these reasons the Union’s
request for interim relief is allowed.
The Arbitrator therefore directs that the Company
cease and desist from implementing the work cycle change described in the
letter of March 6, 2003 and that it maintain, unchanged, the work cycles which
were in effect for S&C Installers system wide prior to March 3, 2006,
pending the hearing and final disposition of the grievance herein, which is
scheduled for hearing on May 12, 2006.
I retain jurisdiction in the event of any dispute
concerning the interpretation or implementation of this award.
Dated at Ottawa this 23rd day of March,
2006.
________________________
Michel G.
Picher
Arbitrator