IN THE MATTER OF AN ARBITRATION

AH628

BETWEEN: VIA RAIL CANADA INC.

AND CAW/TCA NATIONAL COUNCIL 4000

AND IN THE MATTER OF A GRIEVANCE RELATING TO ELIGIBILITY FOR RELOCATION EXPENSES

ARBITRATOR: J.F.W. Weatherill

A hearing in this matter was held at Montreal on October 24, 2012

D. Kissack, for the union.

D. Stroka, for the employer.

AWARD

The Dispute and Joint Statement of Issue in this matter is as follows:

DISPUTE:

The eligibility for relocation expenses for Winnipeg based employees, affected by a Technological, Operations and Organizational (TO&O) change, in accordance with article 6.1 (a) of the Supplemental Agreement of Collective Agreement No.2.

STATEMENT OF ISSUE:

On June 27, 2012 the Corporation issued TO&O changes due to the reduction in services across Canada. The changes are effective in October 2012.

The Union contends that Article 13.3 of the Collective Agreements allows employees whose jobs are abolished or who are displaced, the right to displace in their own seniority territory in order to maintain full time permanent employment prior to being laid off. The Union advances that if this displacement is a result of an Article 8 notice under the Supplemental Agreement, they are entitled to relocation expenses as per Article 6 of the Supplemental Agreement.

The Union seeks as remedy any lost wages and full relocation benefits as a result of any above entitled employees not being provided relocation benefits under the Supplemental Agreement if they are required to relocate in order to maintain full time permanent employment.

The Corporation submits that Article 6.1 (a) of the Supplemental Agreement is not applicable to employees at the Winnipeg terminal affected by the TO&O change.

The TO&O change material to the instant case related to the abolishment of thirty positions at the Winnipeg terminal. This was a result of the reduction, effective October 28, 2012 of the operations of The Canadian (Trains No. 1 and 2). This is to be a seasonal reduction, as it is expected the operation will revert to one of three trips weekly during the peak season, between May and October.

Article 6.1 of the Supplemental Agreement is as follows:

To be eligible for relocation expenses an employee:

(a) must have been laid off, or displaced under conditions where such layoff or displacement is likely to be of a permanent nature, with the result that no work is available at his home location and, in order to hold other work in the Corporation, such employee is required to relocate; or

(b) must be engaged in work which has been transferred to a new location and the employee moves at the instance of the Corporation; or

(c) must be affected by a notice which has been issued under Article 8 of this Agreement and he chooses to relocate as a result of receiving an appointment on a bulletined permanent vacancy which at the time is not subject to notice of abolishment under Article 8 of this Agreement and such relocation takes place in advance of the date of the change, provided this will not result in additional moves being made; or

(d) must have Employment Security and elected to relocate to hold work under the provisions of Article 7.2 of this Supplemental Agreement.

The Corporation argues that displacements resulting from the abolition of the positions in question are not “likely to be of a permanent nature”, since it is anticipated that the operations of Trains 1 and 2 will be increased on a seasonal basis in the future. A seasonal job, however, is not a “permanent” job. The displacement from the permanent jobs they have held at Winnipeg is, in my view, entirely “likely to be of a permanent nature” within the meaning of Article 6.1 (a). That indeed would appear to be the reason for the issue of the Article 8 notice, which is required when TO&O changes “of a permanent nature which will have adverse effects on employees” are to be made. To this extent then, the displaced employees may be entitled to relocation expenses under Article 6.1 (a), although there are other conditions which must be met.

The other argument advanced by the Corporation is that affected employees are not “required to relocate”. The requirement referred to in Article 6.1 (a) is to be distinguished from that in Article 6.1 (b) where as a result of a transfer of work, an employee moves “at the instance of the Corporation”. It may also be distinguished from the situation referred to in Article 28.4 of the collective agreement where, in what might be called the ordinary course (not an “Article 8" situation), an employee exercises seniority rights to a position which necessitates a change of residence. Certain costs are met in such cases, but they are substantially less than the relocation expenses covered under the Supplemental Agreement. In the case of Article 6.1 (a), eligibility for relocation expenses arises where the result of an employee’s displacement is that “no work is available at his home location” and that the employee is then required to relocate “in order to hold other work in the Corporation”.

In CROA 2684 (1996), the dispute (between different parties) involved the interpretation of Article 7.10 of the Job Security Agreement. That article is not part of the Supplemental Ageement in the instant case, and while article 6.1 in the two cases is similar, article 6.1 (d) in CROA 2684 requires that the employee “be required to relocate to have work under the provisions of Article 7", whereas in the instant case the reference is specifically to Article 7.2, whose provisions would appear to be different from those with which I deal here. In any event, the dispute in the present case is with regard to article 6.1(a). Given the nature of the question before him, and the historical analysis on which that case (but not the present case) is based, I do not consider that I am bound by the decision of arbitrator Picher in CROA 2684, although I am certainly not in disagreement with it.

The French version of article 6.1 (a) sets as conditions for payment of relocation expenses that,

- - aucun emploi n`est disponible à son lieu d`attache, de sorte que, pour rester au service de la Société, l`employé doit déménager.

The two versions appear to me to be mutually compatible.

It would appear that for some at least of the employees affected by the TO&O change in this case there will be no work available at their home location, and, as the employer stated in its brief, they will receive Job Security benefits at 80% of their former wages, and may expect to be recalled, temporarily, in the spring. This, however, amounts to an adverse effect, which would be worse in the case of any employees approaching retirement and hoping to maintain good earnings in their last five years. There would appear to be as many as six employees at Winnipeg who might be in a position to exercise seniority over junior employees at Vancouver, which is in the same seniority region. If, then, in order to hold work, their only choice is to exercise seniority in that way, then their relocation to Vancouver is “required” within the meaning of article 6.1 (a).

For the foregoing reasons, the grievance is allowed, and it is my award that the employees in question may be eligible for relocation expenses under Article 6.1 (a) of the Supplemental Agreement. I do not, however, decide any particular case, or grant any particular relief, as I do not consider there is sufficient material before me to do so. Employees’ claims under Article 6.1 (a) must meet the conditions set out, as elucidated in this award, and to the extent they do so, they should be honoured. Payment is to made including, where the situation requires it, certain compensation. I remain seised of the matter to deal with any disputes relating to such claims, and to complete the award.

DATED AT OTTAWA, this 30^th day of October, 2012,

Arbitrator