Heard at Montreal, Tuesday, 11 June 1991

concerning

and

An alleged violation of Article 16.3 of Collective Agreement No. 1.

In April 1990, the Corporation conducted a ReserVIA training course for employees on Employment Security status in Moncton pursuant to Article C of the Special Agreement.

The Brotherhood contends that the Corporation has violated Article 16.3 of Collective Agreement No. 1 since the Corporation did not post, for a period of not less than 14 calendar days, notice of the training opportunity for all employees.

The Brotherhood has requested that all senior employees who are adversely affected on their present positions be granted the right to displace onto ReserVIA-related positions without loss of wages or benefits.

The Corporation rejected the grievance. The Corporation contends that the training in question was provided in accordance with Article C of the Special Agreement and not under Article 16.3 of Collective Agreement No. 1, and therefore, there was no violation of Article 16.3.

There appeared on behalf of the Corporation:

C. Pollock – Senior Officer, Labour Relations, Montreal

R. Wesley – Senior Negotiator & Advisor, Labour Relations, Montreal

D. Fisher – Senior Officer, Labour Relations,Montreal

J. Kish – Senior Advisor, Labour Relations, Montreal

And on behalf of the Brotherhood:

G. T. Murray Regional Vice-President, Moncton

A. Cerrilli – Regional Vice-President, Winnipeg

R. Dennis – Representative, Moncton

K. Sing – Representative, Halifax

The Brotherhood's claim is based on the provisions of article 16.3 which are as follows:

The material establishes, beyond controversy, that the Corporation's Atlantic Region conducted a training course in ReserVIA procedures for employees in May of 1990. The course was not posted within the terms of article 16.3, the Corporation asserting that it was acting under the separate provisions of article C of the Special Agreement of November 19, 1989 negotiated in relation to substantial work reduction implemented on January 15, 1990. Article C of the Special Agreement provides, in part, as follows:

The position of the Corporation is that the training course conducted at Moncton in May of 1990 was assigned to four employees who were either on layoff or on employment security status and that it was within the prerogatives of the Corporation to place those individuals in the training program in accordance with article C of the Special Agreement, rather than posting the training opportunities for general bid by seniority under the terms of the article 16.3 of the collective agreement. Its representative submits that at the time of the general bid relating to the reduction in services of January 15, 1990 the Brotherhood and the Corporation agreed to utilize article C for earmarking employees for training in respect of ReserVIA positions on which they bid successfully, and for which they were not yet qualified. It appears that a training course was conducted in the latter part of January and early February pursuant to that arrangement. In the Corporation's submission the understanding continued to operate through the second course made available in May. It is at this point that the Brotherhood parts company with the Corporation. It submits that there was no express or implied agreement with regard to the selection of candidates for ReserVIA training in May, save through the normal procedures contemplated under article 16.3 of the collective agreement. Lastly, it appears that in October of 1990 the Corporation conducted another ReserVIA training course. It was posted in accordance with article 16.3, although the postings were made only in Moncton and Halifax, and not at all locations on the Atlantic Region.

The Arbitrator has difficulty with the position advanced by the Corporation. The Special Agreement was made in contemplation of minimizing the adverse impacts on employees affected by the reduction in services implemented on January 15, 1990. It would appear that it provides the framework for the Corporation and the Brotherhood to discuss and implement training opportunities for employees who were then adversely affected, and would go so far as to allow the parties to make specific arrangements in that regard notwithstanding the more general provisions of article 16.3 of the collective agreement. Article C of the Special Agreement also goes beyond the purview of article 16.3 of the collective agreement to the extent that it provides for training in trades or skills relating to employment outside the service of the Corporation. In the Arbitrator's view great care must be taken before finding that the parties, by concluding article C of the Special Agreement, intended to assign to the Corporation an indefinite and ongoing discretion to ignore the provisions of article 16.3 in making subsequent training opportunities available to employees who are laid off or who are on employment security status.

From a purposive point of view the Corporation's position is doubtful. Employees who were forced to assume employment security status, or laid off status, as of January 15, 1990 are those whose seniority was not sufficient to protect available positions within the bargaining unit as at that date. It is common ground that ReserVIA jobs are among the most highly paid. Should the Corporation's interpretation prevail, junior employees would have prior access to ReserVIA training and subsequent vacancies in ReserVIA positions. In the result, senior employees who were able to protect other lower paid positions would be deprived of the opportunity to gain access to the training and, ultimately, to the higher paid positions.

The position advanced by the Brotherhood is not prejudicial to the right of the Corporation to bring employees on employment security status and on laid off status on stream into part time or full time positions. Presumably, as senior employees in lower paid jobs gravitate to the ReserVIA training and, eventually, to vacancies in ReserVIA positions, they will leave behind vacancies that can then be backfilled by employees on employment security status or on layoff. In considering the dispute, the Arbitrator can see nothing in the scheme of the Special Agreement, read together with the collective agreement, to suggest that the parties rejected that approach and agreed to effectively amend article 16.3 by giving first access to all training and ReserVIA jobs to more junior employees on employment security or laid off status. Absent clear and unequivocal language to the contrary, I cannot accept that a position so contrary to the precepts of seniority and job security was intended.

As noted above, article C of the Special Agreement gives to the Corporation scope to reach agreement with the Brotherhood to make special provision for employees who were adversely impacted by the reduction in services. That appears to be what occurred in respect of the initial training program conducted in late January and early February of 1990. There is, however, no evidence of any subsequent discussion or agreement between the parties that would allow the Corporation to bypass indefinitely the general and mandatory provisions of article 16.3 of the collective agreement.

Absent any evidence to the contrary, the Arbitrator accepts the representation of the Brotherhood's representative that in the past bulletins in respect of training opportunities have, according to established practice, been posted on a regional basis for the purposes of article 16.3. The Corporation submits that employees who did not pursue the opportunity of ReserVIA training posted in October of 1990 should be considered to have failed to mitigate their losses, at least as of that date. The Arbitrator accepts the validity of that submission, with one qualification. As the evidence discloses, the notice of training was posted in Halifax and Moncton, but was not brought to the attention of employees at other locations on the Atlantic Region. In the circumstances, senior employees at those other locations who were denied the opportunity to have access to the training positions made available in May of 1990 should not be so limited in their claim unless it can be shown that they had actual knowledge of the posting. As the Brotherhood's representative acknowledges, however, the claim of any senior employee must ultimately depend on his or her demonstrating the ability to complete the training course successfully.

For the foregoing reasons the grievance is allowed. The Arbitrator finds and declares that the Corporation violated article 16.3 by failing to post notices for all employees on the Atlantic Region in respect of the ReserVIA training offered in May of 1990. The Corporation is therefore directed to comply forthwith with the requirements of article 16.3 by posting a ReserVIA training course to the attention of all employees within the Atlantic Region, within a reasonable time, in conformity with the requirements of article 16.3. To the extent that any employees can demonstrate that they were senior to the employees assigned to the training course in May of 1990, that they completed the training course successfully, and were accordingly deprived of the opportunity in May of 1990 to become eligible for a ReserVIA position, they shall be compensated for any wages and benefits lost in consequence. For the reasons related above, should any of the senior employees so identified be from Halifax or Moncton, or should they be from any other location in circumstances where it is established that they had actual knowledge of the training posting of October of 1990, and that they did not avail themselves of that opportunity, the compensation payable to them shall be reduced accordingly. For the purposes of clarity, in assessing the number and identity of employees adversely affected by the Corporation's violation of article 16.3 the parties shall base their calculations on the number of positions which were in fact made available in May of 1990, assuming that senior employees willing to undertake the training and able to successfully complete it are identified.

The Arbitrator retains jurisdiction in respect of the interpretation and implementation of this award for the purposes of remedy.

June 14, 1991 (Sgd.) MICHEL G. PICHER