CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION
CASE NO. 3612
Heard in Montreal, Tuesday, April 10, 2007
Concerning
CANADIAN NATIONAL RAILWAY COMPANY
And
TEAMSTERS CANADA rail conference
DISPUTE:
The grievance concerns the interpretation of the conditions that apply to maintenance or earnings following the issue of Article 78.2 for Garneau NQT.
JOINT STATEMENT OF ISSUE:
Following the issue of Article 78.2, applicable November 22, 2005, and the reduction in locomotive engineer positions at Garneau (NQT), two locomotive engineers excised their seniority at Garneau (CN) and benefit from maintenance of earnings.
The Company’s interpretation is that these locomotive engineers must protect the highest paid position at Garneau (CN) and (NQT) for the Spring 2007 change, and for the other spring changes following that, in keeping with Article 78.13(c).
The Union’s position is that the Company is imposing a new application of the conditions that apply for maintenance of earnings in keeping with Article 78 of the collective agreement. Since the creation of the Northern Quebec Territory, the Company cannot oblige its members to work in the NQT in order to be eligible for maintenance of earnings.
The Union maintains that the interpretation of the conditions that apply with respect to maintenance of earnings proposed by the Company is groundless and constitutes a violation of the collective agreement in effect.
The Company does not agree.
FOR THE UNION: FOR THE COMPANY:
(SGD.) RENÉ LECLERC (SGD.) DONALD GAGNÉ
GENERAL CHAIRMAN FOR: SENIOR VICE-PRESIDENT
There appeared on behalf of the Company:
D. Gagné – Manager, Labour Relations, Montreal
C. Desjardins – Manager, Labour Relations, Montreal
D. VanCauwenbergh – Senior Manager, Labour Relations, Toronto
P. Rousseau – Assistant Manager, Pay Systems, Moncton
And on behalf of the Union:
R. Leclerc – General Chairman, Grand-Mère
C. Desbiens – Chairman, Local 558
AWARD OF THE ARBITRATOR
The dispute at hand is clearly expressed in the joint statement of issue. Is an employee who has maintenance of earnings benefits resulting from his service with NQT and who is working at CN following a job reduction at NQT obliged to protect the highest paid position at his home station at Garneau, namely for CN or NQT, for the Spring 2007 change and other future spring changes, in keeping with Article 78.13(c)?
The Union claims that the Company cannot penalize an employee by reducing his maintenance of earnings as a result of his choice not to leave his employment with CN at Garneau to take a better paying position with NQT at Garneau.
The dispute has arisen because Garneau is a home station for both NQT and CN. The situation in the case at hand would not occur at other CN home stations that are not also home stations for NQT. Specifically, an employee is only obliged to protect the better paying position at his home station, so as not to have his maintenance of earnings reduced.
The Arbitrator finds it somewhat difficult to accept the Union’s position to the effect that Garneau is in actual fact two home stations, one for NQT and another for CN. With respect to maintenance of earnings, it is obvious that the parties did not conceive of the existence of a sealed wall between the two entities. It is clear, for example, that an employee can leave the service of NQT with maintenance of earnings and keep that maintenance of earnings while in the service of the other entity, namely CN. That is precisely what the two locomotive engineers concerned by the grievance did.
The evidence demonstrates that, in the supplemental agreement of January 5, 2003, the parties agreed that the provisions of Article 78 of the CN agreement apply “…to the Northern Quebec territory”. There is nothing in these provisions that stipulates that an employee who benefits from maintenance of earnings is exempt from his obligation to protect the highest paying position at his home station as a condition for keeping his maintenance of earnings, as a result of the sole fact that his home station includes operations for both CN and NQT.
It is important to stress that there is nothing that obliges the employee to go to work for NQT if he or she does not want to do so. However, it is obvious that, based on the text of Article 78.13(e)(2) and Note 1 pertaining to it, as well as the provisions of the supplemental agreement, he or she can exercise his seniority to take a better paying position with NQT, even if he or she is working for CN, during the spring changes.
The two locomotive engineers concerned still have their seniority with NQT and remain employees of NQT for the purposes of their right to recall. Because the home station for the two locomotive engineers in question is Garneau, a station that covers service for CN as well as for NQT, for the purposes of Article 78 of the collective agreement, these employees must protect the highest paid position at their home station, whether that is with CN or NQR, or suffer a reduction in their maintenance of earnings. Deciding otherwise would deny the exchange of obligations which the parties themselves negotiated as a cornerstone for the maintenance of earnings system.
For these reasons, the grievance must be dismissed.
April 16, 2007 ____________________________
MICHEL G. PICHER
ARBITRATOR