CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 3207
Heard in Montreal, Wednesday, 10 October 2001
CANADIAN PACIFIC RAILWAY COMPANY
CANADIAN COUNCIL OF RAILWAY OPERATING UNIONS
The interpretation and application of Article 9A, clause (3), (b), (c) & (d) of the MOP change document and related provisions of the collective agreement as they relate to the forced relocation which occurred on March 11th, 2001 involving Messrs. Lariviere, Kinney and Lee.
COUNCIL'S STATEMENT OF ISSUE:
On September 19th, 2000 the Company issued a letter disqualifying MacTier protected employees from relocation benefits under article 9A. On March 11th, 2001 the Company forced three employees, mainly, John Lariviere, Bob Kinney and Mike Lee from a spareboard position at MacTier to a spareboard position in Sudbury. Lariviere, Kinney and Lee are protected employed as defined in article 9A. Following their relocation the furlough board at MacTier was reduced by three positions. Correspondingly, three positions were created on the common spare board at Sudbury.
The Union asserts the Company failed to meet its obligation to bulletin and advertise vacancies is restated in Art 9A,(8),(a). The Union insists employees, forced from MacTier to permanent required positions in Sudbury, are entitled to all the relocation benefits contained in Article. 9A. In view of the foregoing, the Union requests the Company allow Messrs. Lariviere, Kinney and Lee to immediately return to MacTier. Additionally, the Union is seeking damages for lost earnings and compensation for any expenses arising from their forced relocation.
The Company has declined the Union's request.
FOR THE COUNCIL:
There appeared on behalf of the Company:
D. E. Freeborn
E. J. MacIsaac
- Labour Relations Officer, Calgary|
- Manager, Labour Relations, Calgary
- Service Area Manager, Toronto
|And on behalf of the Council:|
D. A. Warren
R. S. McKenna
D. G. Colasimone
N. E. Morden
- General Chairperson, Toronto|
- General Chairman, BLE, Calgary
- Vice-General Chairperson
- Local Chairperson
AWARD OF THE ARBITRATOR
The facts in respect of this grievance are not in dispute. In October of 1996 the parties executed a material change document respecting the closure of the Company's operations in the Ottawa Valley, and the assignment of the line in question to a short line operator. That agreement, generally referred to as the "TOR Material Change Agreement" involved, among other things, the closure of the Company's terminal at North Bay. Previous to that time Sudbury had been an outpost terminal to North Bay. Part of the TOR agreement contained provisions whereby Sudbury would thenceforth become an outpost terminal to MacTier. That is reflected in article 10 of the TOR Material Change Agreement which provides as follows:
The instant dispute arises because on March 11, 2001 the Company forced three employees holding required assignments at MacTier to required assignments on the expanded spareboard at Sudbury. The Council maintains that in that circumstance the Company proceeded incorrectly. It argues that it was under an obligation to post the additional positions on the Sudbury spareboard in accordance with article 9A of the collective agreement, which governs the filling of positions in conductor-only operations. In the circumstances, in a subsidiary argument, the Council also submits that the Company was obligated to provide to the three employees so affected relocation allowances within the contemplation of article 9A(8)(f) which provides as follows:
The Company maintains that it was entitled to proceed as it did by reason of the provisions of article 37-A(d)(5), which read as follows:
The Council submits that the foregoing provision has no bearing, to the extent that the facts of the instant case arise in conductor-only territory. It argues that article 9A was intended as a full code with respect to the filling of positions in that circumstance, and that article 37A(d)(5) would therefore have no application. That article, it submits, might still be relevant to the filling of positions in non-conductor-only territory.
Upon a full review of the submissions made the Arbitrator has some difficulty with the position advanced by the Council in this grievance. Firstly, it cannot be disputed that at all material times Sudbury was agreed to be, for all purposes of the collective agreement, an outpost terminal to the home terminal of MacTier. It does not appear disputed that, subject to what the Council characterizes at the overriding effect of article 9A, it would otherwise be appropriate for the Company to force employees from MacTier to fill vacancies at the outpost terminal of Sudbury, in accordance with the provisions of article 37A(d)(5).
The issue then becomes whether in the circumstances of this case article 9A can be said to in fact override. In that regard the Council refers the Arbitrator to clause 10 of article 9A which reads as follows:
In the Arbitrator's view the instant grievance is best resolved by a close analysis of article 9A(3), which is the basis of the Council's claim. Sub-paragraph (b) of that article reads as follows:
In the Arbitrator's view the last sentence speaks directly to the circumstance at hand. We are not here concerned with the general advertisement of assignments, nor are we dealing with the setting up of new assignments in the sense contemplated within sub-paragraph (b). What is involved in the instant case is non-assigned service through the adjustment of spareboards. As is evident from the final sentence of sub-paragraph (b) the parties contemplated that there would be no change to the rules governing the adjustment of spareboards, "subject to the parameters contained in this Clause 3". When regard is had to those parameters it is not clear to the Arbitrator that there is anything within clause 3 which would contemplate a limitation on the right of the Company to force employees from the spareboard of the main terminal to the spareboard of an outpost terminal. There are, it may be noted, arguable limitations on the movement of employees in that kind of circumstance. For example, the note to sub-paragraph (d) of article 9A(3) provides that a protected employee with seniority prior to March 7, 1979 cannot be forced to any position outside of the home terminal where they are employed, or if they are employed at an outpost terminal, cannot be forced back to the main home terminal. It appears to be common ground that the employees who are the subject of this grievance are not within that protected category of employees and so do not fall within that "parameter" of clause 3.
On the whole, I am compelled to the conclusion that in the fashioning of the conductor-only rules the parties did intend to preserve the general thrust of the rules governing the filling of spareboards as between home terminal and terminals which are outposts to a given home terminal. The movement of employees in that circumstance does not fall within the contemplation of article 9A(3), and more specifically the bulletining requirements contained therein which relate to the general advertisement of assignments, the setting up of new assignments and vacancies in assigned road or yard service.
In effect, through this grievance the Council argues that the parties have effectively agreed to a full-blown bulletining process, and the application of the various steps of article 9A(3) for filling positions added to a spareboard, in circumstances which would generally be viewed as normal spareboard adjustments. Given the language of the final sentence of sub-paragraph (b) of article 9A(3), I am satisfied that the parties did not intend to do away with the normal processes, rights and obligations which attach to the adjustment of spareboards within home terminals and their outpost terminals. Had the parties intended to make such a radical change they would, I think, have done so through clear and unequivocal language. Such language as is found within article 9A(3)(b) is to the contrary.
In the result, the Arbitrator is not persuaded that there was any violation of the collective agreement by the Company when it relied upon the provisions of article 37-A(d)(5). That article provides, in part:
In the Arbitrator's view the Company was correct in its interpretation and application of these provisions in the circumstances disclosed. For these reasons the grievance must be dismissed.
|October 12, 2001||
(signed) MICHEL G. PICHER|