Heard at Montreal, Tuesday, 12 December 1989

Concerning

And

Whether or not employees covered by the provisions of Article 7.7 of The Employment Security and Income Maintenance Plan (The Plan) dated April 21, 1989, are subject to: 1.) displacement, 2.) layoff or 3.) Job abolishment in those instances involving the normal application of the Collective Agreement seniority provisions.

The Brotherhood contends that employees covered by the pro-visions of Article 7.7 are protected from displacement, layoff or job abolishment under all circumstances.

The Company disagrees with the Brotherhood's contention and maintains that, in circumstances unrelated to Technological, Operational or Organizational changes, the provisions of Article 7.7 have no applicability and the normal application of the Collective Agreement governs employee displacement or employee layoff.

There appeared on behalf of the Company:

M. M. Boyle – Manager, Labour Relations, Montreal

W. W. Wilson – Director, Labour Relations, Montreal

J. Luciani – Counsel, Montreal

D. C. St. Cyr – Manager, Labour Relations, Montreal

D. McMeekin – Labour Relations Officer, Montreal

N. Dionne – Labour Relations Officer, Montreal

D. L. Brodie – Labour Relations Officer, Montreal

S. Grou – Labour Relations Officer, Montreal

M. Benedetto – Coordinator, Engineering Special Projects, Montreal

And on behalf of the Brotherhood:

M. Gottheil – Counsel, Ottawa

G. Schneider – System Federation General Chairman, Winnipeg

R. F. Liberty – Secretary/Treasurer & General Chairman, Winnipeg

R. A. Bowdan – System Federation General Chairman, Ottawa

Article 7.7 of The Employment Security and Income Maintenance Plan provides as follows:

The Brotherhood maintains that sub-paragraph (ii) must be interpreted to protect an employee who, having once been required to relocate pursuant an Article 8 notice is, within the period of five years, again required to relocate for any reason, including a layoff by the normal operation of the Collective Agreement which is not caused by a technological, operational or organizational change. The Company disputes that interpretation, asserting that the paragraph in question addresses only the circumstances of an employee who would, twice within the period of five years, be required to relocate as the result of a notice under Article 8 of the E.S.I.M.P.

The Arbitrator finds the position of the Company more compelling. Firstly, it is supported on the language of the interest arbitration award, including the clarification award, issued by Arbitrator Larson. A review of the awards of Arbitrator Larson reveals that he appreciated the distinction between layoffs brought about by events beyond the control of the Company, such as fluctuations in traffic and seasonal flows, as opposed to those which are instituted at the initiative of the Company and are within its control, characterized as technological, operational or organizational changes. The overall thrust of the Employment Security and Income Maintenance Plan is to provide protections to employees where changes of the latter category are involved. In Section 12 of Arbitrator Larson's award of April 11, 1988 he made the following clarification:

In the Arbitrator's view the foregoing passage sufficiently clarifies the intention of Article 7.7 of the E.S.I.M.P. By his own words, Arbitrator Larson was addressing "... relocation under the circumstances prescribed by the employment security plan ...". Article 7.7(ii) describes two circumstances which qualify an employee for exemption from the obligation to relocate. One is that he or she must, within the preceding five years, have been required to relocate under the provisions of the employment security plan. It does not apply if a prior relocation was for some other reason. The second is that the same condition exists in respect to his or her having voluntarily elected to transfer with his or her work. It does not appear disputed that, in that sense, a transfer of work from one location to another within the Company, adversely affecting employees, is in the nature of operational or organizational change which would invoke the protections of the Employment Security and Income Maintenance Plan. That establishes, without substantial dispute by the Brotherhood, that the protections of Article 7.7 are available only to the employee who has, within a period of five years, been required to relocate pursuant to a technological, operational or organizational change or has done so voluntarily in circumstances that would require an Article 8 notice.

The next question is whether the employee so situated is immune from relocation as a result of reasons other than technological, operational or organizational change. Absent clear and equivocal language within the Collective Agreement, and in light of the intention expressed by Arbitrator Larson, I cannot conclude that it can. The fundamental trade-off operating within Article 7.7 of The Plan is the Company's right, on the one hand, to make technological, operational or organizational changes within its discretion and control, and the protection, on the other hand, of the employee from the hardship of such changes by limiting the extent to which he or she may be subjected to relocation during a five year period. Both the Company and employees are, of course, subject to the buffeting of economic forces not within the employer's control. I can see nothing on the face of the language of these provisions, nor in the award of Arbitrator Larson, to suggest that the provisions which he framed were intended as insurance in those circumstances as well. If they were, why would the condition precedent to the protection be limited to a prior relocation under the E.S.I.M.P., rather than any relocation? Absent clear and unqualified language to the contrary, I am not prepared to conclude that this section of Article 7 of The Plan, which deals entirely with the rights and obligations of an employee who is subject to an Article 8.1 notice, was intended to have the far reaching effect argued by the Brotherhood, and impose substantial limitations on the flexibility of the Company to deal with manpower problems in the face of economic forces beyond its control.

For the foregoing reasons the grievance must be dismissed.

December 15, 1989 (Sgd.) MICHEL G. PICHER