IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL NO. 11
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
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.  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