Heard at Montreal, Wednesday, 10 July 1991

concerning

and

The Corporation served an Article 8 notice under the Supplemental Agreement to the CBRT&GW abolishing 38 Service Manager positions. The Corporation, coincidentally, will create non-union positions titled "Manager, Guest Services", to replace the Service Managers and to perform their work for the on-board services.

Article 8 notices were issued abolishing five Service Manager positions in VIA Ontario, ten positions in VIA West and 23 in VIA Quebec.

The Brotherhood contends that the Corporation violated Articles 1.1(c) and (e), 2.1, 4.17(b), 5.1 and 5.2, 12, 23(1) and (2), and Appendices 2, 3, 8 and 9 of Collective Agreement No. 2 when the above positions were abolished.

The Brotherhood further contends that the new management position of "Manager, Guest Services", will be performing the functions of the Service Manager positions and that the Article 8 notice was improperly served, as they do not consider the abolishment of the Service Manager positions and the introduction of non-union positions to perform Service Managers’ work as coming within the scope of a technological, operational or organizational change.

The Corporation denies any violation of the Collective Agreement and maintains that the notices were correctly served under Article 8 of the Supplemental Agreement.

There appeared on behalf of the Corporation:

M. St-Jules – Senior Negotiator & Advisor, Labour Relations, Montreal

P. J. Thivierge – Senior Negotiator & Advisor, Labour Relations, Montreal

C. Pollock – Senior Officer, Labour Relations, Montreal

D. Fisher – Senior Officer, Labour Relations, Montreal

J. Kish – Senior Advisor, Labour Relations Officer, Customer Services, Montreal

J. Callaghan – Project Manager, Customer Services, Montreal

E. Mouré – Assistant Project Manager, Customer Services, Montreal

N. Lenoir – Regional Director, Customer Services, Montreal

C. Gordon – Supervisor, On-Board Services, Montreal

And on behalf of the Brotherhood:

A. Cerilli – Regional Vice-President, Winnipeg

T. McGrath – National Vice-President, Ottawa

T. N. Stol – National Vice-President, Ottawa

G. T. Murray – Regional Vice-President, Moncton

R. J. Stevens – Regional Vice-President, Toronto

K. Sing – Local Chairperson, Halifax

T. Della Passa – Local Chairperson, Montreal

L. P. Rousseau – Recording Secretary, Montreal

K. Cameron – Witness

L. Savoi – Witness

H. Adams – Witness

And on behalf of the United Transportation Union:

D. Wray – Counsel, Toronto

T. G. Hodges – General Chairperson, UTU, St. Catharines

R. Lebel – General Chairperson, UTU, Quebec

This grievance concerns an Article 8 notice served on the Brotherhood on or about March 15, 1991 advising the Brotherhood of the abolishment of some thirty-eight Service Manager positions in On-Board Services. The abolishment of the positions is contemporaneous with the introduction of a new management position entitled "Manager, Guest Services". The Brotherhood maintains that the abolishment of the Service Manager’s positions to permit the establishment of the new management position violates the collective agreement, to the extent that the duties and responsibilities of the new position encompass virtually all of the duties and responsibilities previously discharged by Service Managers within the bargaining unit.

A preliminary issue arose with respect to the standing of the United Transportation Union to intervene in this grievance. At the hearing its counsel was allowed to speak to that issue, as were the parties. The United Transportation Union maintains that the job description for the newly established position of Manager, Guest Services is such as to bring that position within its bargaining unit of running trades operating crews. In essence, its counsel submits that the duties assigned to the newly established position involve duties and responsibilities normally performed by conductors and assistant conductors within the UTU bargaining unit. On that basis he maintains that the Arbitrator should exercise his discretion to adjourn this proceeding and refer the matter, which he characterizes as being in the nature of a jurisdictional dispute, to the Canada Labour Relations Board under Section 65 of the Canada Labour Code.

Alternatively, he submits that this hearing should be adjourned because the United Transportation Union, which is presently a participant in Section 18 proceedings before the Canada Labour Relations Board has filed a reply which, in part, maintains that any adjustment of the certificates or bargaining units directed by the Canada Labour Relations Board should include the assignment of the position "Manager, Guest Services" to the United Transportation Union (or, presumably, to the union which is successful in any representation vote conducted by the Board governing the bargaining rights of running trades employees).

The Arbitrator considered the merits of the submissions made by counsel for the United Transportation Union as well as the opposing motions of both the Brotherhood and the Corporation. At the hearing I ruled that the balance of interests does not suggest that the Arbitrator should exercise his discretion to refer this matter to the Canada Labour Relations Board in the circumstances of this case. It is clear to me, on a review of the job description for the proposed new position of Manager, Guest Services that any connection between that position and the work traditionally performed by members of the United Transportation Union is so remote as to fall short of establishing a prima facie case for that union’s claim.

While it is clear that the proposed position would involve the supervision of operating crews, as well as On-Board Services employees and, to some extent, station attendants and other employees of the Corporation, there is little or no substance to the Union’s claim that the job description would involve tasks which are the traditional or exclusive work jurisdiction of members of the United Transportation Union. Indications within the description of the main duties of the position that the Manager, Guest Services will deal with car defect sheets as well as health and sanitation standards do not, in my view, on their face bring this position colourably within the jurisdiction of the United Transportation Union. Firstly, it is not disputed before me that employees in a number of bargaining units are responsible for safety and health concerns and the reporting of car defects. Secondly, the principal thrust of the document reveals that the great preponderance of the responsibility of the new position is in respect of the planning and supervision of On-Board customer services, which does not differ substantially from the existing responsibilities of the Service Manager falling within the bargaining unit of the Brotherhood. Additionally, the Arbitrator is satisfied that the interests of the Union may well be protected insofar as it is presently party to a Section 18 application before the Canada Labour Relations Board. In those proceedings it is making a claim for the inclusion of the new position within any bargaining unit including running trades which might result from the Board’s order. In the result, therefore, the Arbitrator is persuaded that the prejudice to the Brotherhood and the Corporation in adjourning these proceedings for an indefinite period would far outweigh any justifiable interest of the United Transportation Union. For these reasons the Arbitrator dismissed the Union’s claim for standing at the hearing, and proceeded to hear the merits of the grievance.

While the evidence before the Arbitrator, both documentary and viva voce, is considerable, the issue and the facts critical to the resolution to this grievance can be stated in relatively simple terms. Well established jurisprudence holds that an employer cannot abolish a bargaining unit position and purport to assign the same duties and responsibilities as were performed by employees in the abolished position, and little else, to other employees or managerial staff who are outside the bargaining unit. That principle generally flows from a recognition that the scope clause of a collective agreement recognizes the right of the union to represent, for collective bargaining purposes, those persons who perform work which is normally, regularly and substantially assigned to employees within the bargaining unit. In this case the Brotherhood maintains that that is precisely what has transpired. It argues that the Corporation has taken virtually all of the responsibilities of Service Managers, abolished their jobs, and placed the same work in the hands of the Manager, Guest Services, with the addition of certain management functions which in fact reflect a relatively small proportion of the duties of the new job. If it is correct in that assertion, it is entitled to a declaration that the Corporation has violated the collective agreement by serving an Article 8 notice abolishing the position of Service Manager as part of its decision to implement the newly established position of Manager, Guest Services.

Before addressing the evidence, it is useful to reflect on the arbitral principles stated by Canadian arbitrators, including arbitrators in this Office. An extensive line of reported arbitrations in Canada confirms the basic proposition relied upon by the Brotherhood in this grievance. One of the earliest cases to deal with the principle was a decision of then Professor Laskin in Re International Association of Machinist, Lodge 717 and Hawker Siddeley of Canada Ltd. (1963) 14 L.A.C. 197. At pp. 197-8 he made the following observations:

In his decision in Re United Steel Workers of America, Local 1817 and Fittings Ltd. (1969), 20 L.A.C. 249, Arbitrator Weatherill relied on the foregoing passage to disallow the initiative of an employer. In that case the Board struck down the employer’s attempt to assign certain in-plant mail delivery traditionally done by a member of the factory clerical bargaining unit to a non-bargaining unit person employed in its office. In allowing the grievance Arbitrator Weatherill commented, in part, at p. 256:

One of the obvious concerns of boards of arbitration from the earliest days has been to avoid the erosion of a bargaining unit by the purported exercise of management’s discretion to reassign work. In United Steel Workers of America, Local 3684, in Re Standard Sanitary and Dominion Radiator Ltd., (1954), 5 L.A.C. 1684, the arbitrator, Mr. Justice W.D. Roach, ruled that the company could not reassign the work of a piece-work rated employee to that of salaried employees doing the same work. At p. 1689 of the award he made the following comments:

The issue of the erosion of a bargaining unit by the assignment of bargaining unit work to management was more directly addressed in the arbitration award of Mr. O.B. Shime in Re Ontario Hydro and Canadian Union of Operating Engineers, Local 1110, (1976), 12 L.A.C. (2d) 143. In that case the union complained that the employer had removed four crew foremen, whose work was contained within the bargaining unit, and eliminated their positions by promoting the four incumbents to positions of management foremen, while they still continued to exercise the same general responsibilities. In that case a prior complaint made by the union to the Ontario Labour Relations Board resulted in a finding that the newly established positions were managerial within the meaning of the Labour Relations Act, with the board stressing in its decision that it made no determination as to what the rights of the parties would be under the collective agreement. In a succinct summary of the principles governing this area of arbitration law, Arbitrator Shime expressed the following observations and conclusions at pp. 145-47:

After quoting the passage from the award in that case, related above, Arbitrator Shime concluded:

A consistent line of decisions in this Office has confirmed the position pleaded by the Corporation that the instant collective agreement does not confer upon the Brotherhood a right of exclusive property in all of the tasks assigned to bargaining unit members. Consequently, the occasional assignment of some of the work performed by members of the bargaining unit to members of other bargaining units and on occasion to members of management has been deemed to disclose no violation of the terms of the collective agreement. By the same token, however, this Office has consistently expressed the view, reflected in the arbitration awards cited above, that it is not open to the Corporation to disregard the collective agreement by effectively assigning all of the work of a position established within the collective agreement to a non-bargaining unit employee or to a member of management. If that should occur, the conclusion to be drawn is that the person holding the newly established assignment is in fact performing bargaining unit work and must be treated as falling within the bargaining unit. That principle was expressly recognized in CROA 2006 which involved the analysis of a collective agreement similar to the instant agreement, where the Arbitrator commented as follows:

I turn to consider the facts disclosed in the instant case. As reflected in the notices issued under Article 8.1 of the Supplementary Agreement, the Corporation’s action is slated to go into effect in the Montreal, Ottawa and Toronto terminals effective October 1, 1991 and in respect of Winnipeg based employees on May 1, 1992. It is clear, however, that the parties are content to have this matter heard and determined at this time, on the basis of the information presently available respecting the Corporation’s proposal. No challenge to the Arbitrator’s jurisdiction in that regard has been made.

The position of Service Manager was established by agreement of the parties and incorporated into the terms of the collective agreement on November 14, 1979. It appears that it was introduced onto western lines in the spring of 1980, initially on a experimental basis, and that eventually it became permanent. Service Managers were established in Ontario and Quebec pursuant to a memorandum dated August 27, 1980, again on a test basis prior to becoming a permanent position. It would appear that the parties agreed to add the position of Service Manager to the classifications in Article 5.1 of the collective agreement effective June 5, 1981 by means of a memorandum of agreement dated May 20, 1981. A further memorandum was executed on April 26, 1985 extending the Service Manager’s position to certain Montreal–Toronto corridor trains, initially experimentally, and later it was continued on a permanent basis, although no specific memorandum seems to have been executed in that regard. In June of 1987 further additions of the Service Manager’s position were made to trains in the Toronto–Windsor corridor and some were also added to the Eastern Transcontinental Service.

By means of an extensive crewing concept agreed to between the parties, the collective agreement was modified effective June 13, 1986 to reduce On-Board service positions from fourteen to seven. The positions established as of that time are as follows:

It is common ground that the Service Manager’s position is the most highly paid and the most highly responsible position in On-Board Service.

Appendix 9 of the collective agreement reflects the chain of command and the duties and responsibilities of the seven On-Board Services positions. The description for the duties and responsibilities of Service Manager is as follows:

A reading of the whole of Appendix 9 makes it clear that the Service Manager is the final repository of all On-Board Services authority on the train. While not all employees report directly to him or her, the persons most senior in responsibility, including the Service Coordinator and Senior Service Attendant report directly to the Service Manager. Other employees are all tied to the Service Manager by the fact that they report upwards to those individuals. It is common ground that the Service Manager is the final arbiter of any disagreement among the crew with respect to a decision to be taken as to the performance of any aspect of On-Board Services.

The best evidence with respect to the duties of the newly established position of Manager, Guest Services is in the job bulletin posted by the Corporation effective March 18, 1991. Described as reporting to the Manager, On-Train Services, the main duties of the position are expressed as follows:

In addition the job posting indicates a higher education requirement than has existed for Service Managers, including a "university degree in Commerce, Management or equivalent in management work experience." The requirement also appears to include good knowledge of French and English, both written and spoken. The bilingualism portion of the job posting, however, invites all current Service Managers or persons holding the position of "Assistant Manager, On-Train Services or Assistant Manager, Customer Services, or the position of conductor in the Transportation department" to apply for the position even though they may not hold the Corporation’s current "Level ‘E’ " in second language training.

The Corporation’s representative placed considerable stress on the desire of the Corporation to streamline supervision in On-Board Services and to eliminate a certain degree of duplication in supervisory functions. To this end, it appears that some first line management positions, as well as the position of Service Manager, are being phased out in an effort to rationalize the complement of supervisory staff.

The Corporation’s spokesperson argues that the position of Manager, Guest Services is a managerial position separate and distinct from the position of Service Manager. Noting that Service Manager positions are not assigned to all trains within the Corporation’s transportation system, the Corporation submits that its decision has not eliminated the classification of Service Manager, but rather it has reserved the option to not use such positions on certain trains for business and operational reasons.

While it is unnecessary for the Arbitrator to evaluate that assertion for the purposes of this grievance, the Union expresses reason to doubt that it is a fair characterization of what is to happen. The Brotherhood filed with the Arbitrator a document entitled "VIA Rail: Plans for 1991" which was distributed to all employees. That document reflects a plan by the Corporation to rationalize operations and save substantial costs in operating and capital funding in the period between 1990 and 1995. It proposes, among other things, the reduction of operating crews. On page 16 the document specifically addresses the creation of the position of Manager, Guest Services. It reads as follows:

I turn to consider the merits of the positions argued by the parties. In doing so, however, it is useful to reflect on the evidence adduced through witnesses at the arbitration hearing. The Arbitrator considers the evidence of Corporation witness Mr. Connie Gordon, Supervisor of On-Board Services for VIA Quebec, to be the most significant. In his position Mr. Gordon is responsible for the work of all On-Board Services employees, and he has had extensive personal experience in all aspects of operations. During the course of his testimony he was asked if he was familiar with the proposed position of Manager, Guest Services, as well as the duties and responsibilities of the position of Service Manager which is being abolished. He replied in the affirmative. When he was further asked whether any of the duties presently performed by Service Managers will not be performed by the person proposed to hold the new position, he replied with a qualified no. He said all of the functions of the Service Manager will be performed by the Manager, Guest Services, save that he had some residual uncertainty as to whether the performance of hands-on bargaining unit work in the servicing of passengers could be performed under the existing provisions of the collective agreement. When asked to estimate what percentage of a Service Manager’s time might be so devoted, he estimated that it would be no more fifteen or twenty minutes in a four hour trip.

While it is not necessary to resolve the concern raised by Mr. Gordon, it may be noted that prior decisions of this Office would suggest that to the extent that the Brotherhood can claim no work ownership of any particular duties, it would appear highly doubtful that the Manager, Guest Services would be prevented from performing hands-on tasks presently discharged by the Service Manager. (See CROA 2006, above.) In the result, the Arbitrator finds, on the balance of probabilities, that the Manager, Guest Services will perform all of the duties and responsibilities of the Service Manager.

The issue then becomes whether the functions which will be performed by the Manager, Guest Services which have not heretofore been performed by the Service Manager are such as to justify the Corporation’s submission that an entirely new position is established which does not duplicate the position of Service Manager or fall within the terms of the collective agreement.

As reflected in the Hyrdro decision related above, the extent of the managerial functions performed is of no consequence to the issue of whether the collective agreement has been violated. It is contrary to the agreement to transfer the entire content of a bargaining unit position to management, no matter at what level of responsibility the manager who takes over the work may operate.

If one accepts (which the Arbitrator does not) that the content of the managerial aspect of the new position is a pertinent consideration, an alternative analysis based on that approach still leaves the Corporation’s position in substantial doubt. The representation of the Corporation is that 30% of the time of the Manager, Guest Services will be devoted to work off the trains, in his or her office or in the performance of some other Off-Board administrative duties. Stressing the language of the job bulletin that the individuals holding that position will have the authority to hire, discipline and terminate employees, to evaluate the performance of employees in a number of bargaining units, to conduct investigations, to be responsible for follow-up in respect of the report of problems or equipment failures, to have an independent power of decision in respect of budget allotments, it submits that these factors all operate to take the incumbent of that position out of the purview of the Service Manager’s job.

When that argument is examined closely, however, it is not compelling. While there is no extensive evidence before the Arbitrator to indicate the amount of time that a first line supervisor might spend in disciplinary investigations, and the enforcement and administration of the collective agreement, it is far from clear that it would be so extensive as to overwhelm the On-Board Services component of the job. In this regard it is worth noting that the position of Assistant Manager, On-Train Services, which is in part a predecessor of the position now being established, contains within its description an allotment of 5% of the incumbent’s working time for the administration and interpretation of the collective agreement. Moreover, the Arbitrator is left in some doubt as to the practical extent of the work which will be in fact performed by the incumbent in the new position over and above that presently discharged by the Service Manager in administrative areas such as making adjustments in the number of crews, and formulating and applying budgets to govern On-Board Services.

The evidence before me is clear that Service Managers are extensively involved in the adjustment of crew complements, albeit through a power of effective recommendation rather than through a decision making power. Reality suggests, however, that in many cases those decisions are outwardly dictated by practical needs and passenger loads rather than by the exercise of a sophisticated decision making process. Additionally, while the incumbents in the position of Service Manager do not have decision making power in respect of budgets, it also appear undisputable that their present responsibility for reducing cost and promoting efficiency and productivity involves some degree of Off-Train consultation. It would also appear that many of the decisions as to the administration of the budget which could be taken over by the Manager, Guest Services will, to a great extent, be constrained by the realities of passenger loads and general directives from superiors with respect to the expenditures to be incurred in train operations. While the Arbitrator does not wish to diminish the discretion which would vest in the Manager, Guest Services, it is far from clear that the time that will be taken, either off-train or on-train by the incumbent in that position in issues concerning budget and staffing will significantly exceed the kind of discussion and recommendation time now being expended by the Service Manager.

In the result, while no precise estimate can obviously be made, the Arbitrator is inclined to the view that the tasks to be performed by the Manager, Guest Services will contain all of the duties and responsibilities presently discharged by the Service Manager. In coming to that conclusion I accept that the processes involved in identifying, discussing and recommending courses of action in policy planning, budgets and staffing which are performed by the Service Managers are all contained in the processes which lead to the next step of decision making which will vest in the Manager, Guest Services. Bearing in mind that the Service Manager also has off-train duty time, the additional management functions assigned to the incumbents in the new position may well, on the balance of probabilities, be in the order of 20% of the individual’s working time, and sometimes less where circumstances involve the setting up and supervision of relatively routine train trips.

In the result, on the basis of this alternative analysis, the overwhelming majority of the time of a Manager, Guest Services will be devoted to the duties and responsibilities of the former Service Managers. The duties of the latter position constitute the core functions of the new job. On that basis, the Corporation’s argument could not succeed. For the reasons related above, however, in any event the authorities are clear that the degree of management authority exercised is of no relevance to the issue of the violation of the collective agreement and the erosion of the integrity of the bargaining unit.

One of the submissions made by the Corporation is that the Brotherhood cannot be heard to protest against the erosion of the bargaining unit, by reason of the fact that the employees whose jobs are abolished pursuant to the Article 8 notice will have employment security protection, and will not lose their incomes. With the greatest respect, that view utterly fails to understand the concept of the protection of the integrity of a bargaining unit. Collective agreements are about employees, but they are also about work. As was reflected in the decision of Arbitrator Shime in the Hydro case, cited above, the fact that the four incumbents in that case were all promoted from the bargaining unit into the newly established management positions was no answer to the fact that the trade union’s collective agreement bargaining rights were directly undermined. Similarly, it is no answer to the Brotherhood’s concerns about the integrity of its bargaining unit to say that an entire position can be phased out in a portion of the Company’s operations, eliminating the highest rated position within the wage scale, merely because the employees affected have employment security protections. Apart from concerns about the downward displacement of employees on active service, or indirect impacts on the recall rights of employees presently laid off, the Corporation cannot turn its back on its agreement with the trade union, expressly reflected in Appendix 9 of the collective agreement, that the duties therein described are, when performed in their entirety, work of the position of the Service Manager which must, by the express agreement of the parties, be provided to members of the bargaining unit. It is, of course, open to the Corporation to do away entirely with the position, subject of course to the abolishment provisions of the Supplemental Agreement. That is not what has transpired, however. In the instant case the Corporation’s plan is tantamount to transferring all of the work of the Service Manager’s position to the former first line of management. For the reasons related by Arbitrator Shime in the Hydro case, any such action is contrary to the terms of the collective agreement which expressly and impliedly reflect the preservation of the existence and the integrity of the bargaining unit for the duration of the collective agreement.

Lastly, the fact that the job title, the qualifications and the training program have all been upgraded for the position of Manager, Guest Services is of no material consequence to the analysis in the instant grievance. The question is not whether more highly qualified people perform the work of the bargaining unit. It is rather, whether what those people perform, whatever their qualifications, is work which has previously been performed by employees in the bargaining unit, and whether they perform it to such an extent that they virtually do all of the functions of the employees’ job, so as to fall within the contemplation of the bargaining unit as described within the collective agreement.

For all of the foregoing reasons the Arbitrator finds and declares that the decision of the Corporation to abolish or phase out the position of Service Manager for the purposes of establishing the new position of Manager, Guest Services, as described in the Article 8 notices provided to the Brotherhood, the job description for the newly established position posted on March 18, 1991, and the information materials circulated to all employees under the title "VIA Rail: plans for 1991", constitutes a violation of the Collective Agreement and of the Supplemental Agreement. The Arbitrator therefore finds and declares that the Article 8 notice is a nullity, to the extent that it is for the purpose of assigning virtually all of the functions of the bargaining unit position of Service Manager to persons outside the Brotherhood’s bargaining unit.

The foregoing conclusion does not, of course, preclude the Corporation from approaching the Brotherhood with a view to negotiating such amendment to the terms of the collective agreement as might accommodate, to the greatest extent possible, the business concerns of the Corporation and the bargaining unit integrity concerns of the Brotherhood. That may be particularly feasible in a decade where collective agreements under the Canada Labour Code have, to a substantial extent, evolved to allow for the collective bargaining representation of supervisory personnel. That, however, must be a matter for the mutual consideration of the parties.

The Arbitrator retains jurisdiction in the event of any dispute respecting the interpretation or implementation of this award.