CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4036
VIA RAIL CANADA INC.
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS’ UNION OF
of reduction of
UNION’S STATEMENT OF ISSUE:
Teamsters Canada Rail Conference took strike action against VIA Rail commencing
at 12:00 on
By way of remedy the Union requests declarations to the above effect, full compensation for all employees who were not allowed to work as scheduled, compensation at penalty overtime rates for employees required to work outside their regular schedule and/or outside the provisions of the collective agreement, and that employees otherwise be made whole in all respects.
CORPORATION’S STATEMENT OF ISSUE:
The Corporation contends it effected the layoff of employees and retained required employees to provide for the order shutdown of operations in compliance with the collective agreement including clauses 2.1, 9.20, 12.7, 13.1, 13.2 and 13.3.
Corporation further claims that the
(SGD.) A. ROSNER (SGD.) B. A. BLAIR
NATIONAL REPRESENTATIVE SR. OFFICER, LABOUR RELATIONS
There appeared on behalf of the Corporation:
B. A. Blair –
Sr. Officer, Labour Relations,
J. Gough –
Director, Customer Experience,
There appeared on behalf of the
A. Rosner –
S. Auger –
D. Andru –
F. Sauvé –
President for grievances,
M. Laframboise –
H. Grant – Secretary/Treasurer, Halifax
AWARD OF THE ARBITRATOR
The instant grievance calls into issue the following provisions of the collective agreement relating to staff reductions:
13.2 In instances of staff reduction, 14 calendar days’ advance notice will be given to regularly assigned employees whose positions are to be abolished, except in the event of a strike or work stoppage by employees in the railway industry, in which case a shorter notice may be given. The Local Chairperson will be supplied with a copy of any notice.
13.3 An employee whose position is abolished or who is displaced from his permanent position shall:
(a) displace a junior employee in his own seniority group on a permanent position, for whose position he is qualified.
(b) displace a junior employee in his own seniority group on a temporary position, for whose position he is qualified if unable to hold a permanent position after exhausting seniority rights.
relating to the dispute are not contested. The Corporation was subject to
strike action by its locomotive engineers on
I regret to inform you that the Teamsters Canada Rail Conference union, which represents some 3340 locomotive engineers, has gone on strike. However, the federally appointed mediator asked to meet with both parties this morning; we are still meeting.
Despite intense negotiations conducted this week and progress made on a number of important issues, the parties are unable to reach an agreement.
As a consequent of the strike, we have no choice but to immediately cease operations of Canada’s national passenger rail service, except for those between Sudbury and White River and between Victoria and Courtenay, which are operated by a third part on VIA’s behalf.
Consequently, all unionized employees, except those otherwise advised by their supervisor, are laid off until further notice effective today at the end of their work shift. Management employees should continue to report to work as usual until further notice.
(emphasis in the original)
The Corporation submits that the two senior employees selected to continue to work in the Employee Service Centre were properly selected in accordance with article 12.7 of the collective agreement which relates to temporary vacancies. That article provides as follows:
12.7 Temporary vacancies of 10 working days or less, and vacancies in other positions pending occupancy by the successful applicant may be filled without the necessity of advice notice or bulletin:
(a) first by a qualified part‑time employee who has not completed 40 hours of work for any particular week;
(b) then by a senior qualified regularly assigned employee at the same station or terminal who desires such work.
An employee filling a temporary vacancy pending occupancy by the successful applicant will not be subject to displacement during the first 30 days of occupancy. When it is known that a temporary vacancy will occur, employees desiring the position may be required, as locally arranged, to make their intentions known some time prior to the starting time of the vacancy. The employee, so assigned, will not be subject to displacement during such period, except by a senior qualified employee unable to hold work at the station or terminal affected.
There is no
suggestion that the Corporation failed to generally notify the
RE: Possible Labour Disruption
As you are aware we are in collective bargaining with Teamsters Canada Rail Conference. In the event of a labour disruption we do not intend to operate trains. We plan on implementing the following protocol to provide for the orderly shut-down of operations if a labour disruption occurs while respecting the terms of Collective Agreements #1 and #2 as much as possible in the circumstances.
– Agreement #2 employees would receive immediate lay-off notices unless required to perform their duties for a short period of time
– Agreement #1 employees may be required to perform their duties for a period of time including the storing and securing of equipment and supplies, assisting passengers, processing refunds and handling inquiries
– The employees retained will be selected by position and location in seniority order
– Those not required will receive lay-off notices
– The employees retained for the shut-down period must report for work as required. The shifts will primarily be between 08:00 and 18:00 and at major locations.
We are in the process of finalizing the contingency plan. Once the plan is completed we will provide you with further details and we will also share with you information received regarding a labour disruption.
It is also common ground that Ms. Grant subsequently
communicated the gist of the information provided to her by the Corporation to
all CAW members. Additionally, a meeting with regional union representatives
was held on July 23 in
commenced at on
In support of its position the
… In the instant case, the grievors were advised there would be no work for them on the following day. From the material before me, it appears that copies of such notices were not furnished to the Local Chairman in timely fashion.
In my view, the giving of a copy of such notice to the
Local Chairman is a condition of the implementation of a staff reduction of
this sort. Article 13 deals generally with the matter of staff reduction,
displacement and recall, and in such cases it is certainly of importance to the
Subsequently, in CROA 540, the same issue was revisited on the occasion of a railway strike which occasioned the giving of layoff notices to employees, where copies of those notices were not provided to the local chairperson as contemplated under article 13.2 of the collective agreement then in effect. In that case the arbitrator ultimately accepted the position of the union that the employees could not be considered as properly laid off and should be paid for their lost time. Arbitrator Weatherill reasoned, in part, as follows:
In the cases of two of the three groups of employees covered by this grievance, the Transportation group and the Station Services group, this provision was not complied with. There appears to have been an attempt at compliance, in that copies of the notices were mailed, but they were not received in timely fashion, and it is my view that it is the Company’s obligation, if it seeks to give effective notice pursuant to article 13.2, to ensure that copies of such notice are in fact received by the Local Chairman. As was said in Case No. 517, the giving of such notice is a condition of the implementation of a staff reduction of this sort.
It was argued that article 13.2 did not specify that notice must be timely. It is clear to me, however, for the reasons mentioned in Case No. 517, that the purpose of such notice is that the Union be aware of the situation and be able to advise employees. The copy to be provided to the Local Chairman is not merely for record purposes. In these circumstances, untimely notice is no notice. Such is, in my view, the clear effect of the article. It was also argued that the article did not specify any penalty for violation of its requirements. Again, it is not necessary that any penalty be specified. The requirement of notice, with copy to the Local Chairman is, as I have said, a condition of effective notice. Where that condition is not met, and no effective notice is given, then employees are not subject to loss of earnings through staff reduction. They are, therefore, entitled to compensation for losses flowing from the company’s breach of the collective agreement.
It is significant, I think, that CROA 540 concerned the application of the predecessor to the very provision which is here in dispute. While the employer was different, as the case predates the establishment of VIA Rail Canada Inc., there is nevertheless a fair application in these circumstances of the principle that where there is an arbitrated settlement of the meaning of a given provision of a collective agreement, the parties must be taken to agree with the arbitrated interpretation in any case where they continue to renew the language in question within the framework of their collective agreement, without change. That appears to be what has occurred in the case at hand.
From a purposive standpoint, the Corporation’s obligation
to provide notice of individual layoffs in copy form to the local chairperson
is clearly to allow the Union and its officers to respond to employee queries
and facilitate the exercise of seniority by laid off employees who wish to
displace into permanent or temporary positions for which they are qualified, by
the exercise of their seniority. The
I can see no reason to depart from the clear precedent of CROA 540 in the circumstances of the case at hand. I am therefore compelled to declare that the Corporation did violate the requirements of article 13.2, and effectively frustrated the operation of article 13.3, contrary to the understanding and expectation of the parties as reflected in the express terms of their collective agreement. I further direct that all employees adversely affected by the Corporation’s actions be compensated so as to be made whole on the understanding, as reflected in CROA 540, that they were not in fact properly laid off, and that any unilateral changes in vacation time made contrary to article 9.20 of the collective agreement be adjusted if necessary.