CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4044
Heard in Montreal,
Tuesday, 8 October 2011
VIA RAIL CANADA INC.
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL
WORKERS’ UNION OF CANADA
On December 17, 2010,
the Corporation advised the Union that 3
positions in South Western Ontario would not be replaced due to attrition. The Union maintains that the attrition was inappropriate.
JOINT STATEMENT OF ISSUE:
The Union contends that the Corporation violated article 12.1
by posting 3 positions as temporary under article 12.6. The Corporation then abolished these jobs through attrition.
The Union contends that the Corporation should have
immediately abolished the positions upon retirement or reposted them as
permanent positions under article 12.1. The Union
also contends that the Corporation abolished 3 positions by attrition yet only
two employees actually retired, violating article 8.1 of the Supplemental
The Union seeks notices under article 8.1 of the Supplemental
Agreement for the above positions and reimbursement of all affected employees
for any lost wages and benefits as a result.
Corporation maintains that there were no adverse effects on employees and there
was no violation of the collective agreement. The Corporation submits that the
abolishment of these positions by attrition was proper.
FOR THE UNION: FOR
(SGD.) R. FITZGERALD (SGD.)
OFFICER, LABOUR RELATIONS
There appeared on behalf of the Corporation:
B. A. Blair –
Sr. Advisor, Labour Relations, Montreal
J. Mailhot –
Advisor, Labour Relations, Montreal
K. Murphy –
Manager, Customer Experience SWO, Toronto
T. Kahnert –
Manager, Customer Experience, Toronto
There appeared on behalf of the Union:
D. Andru –
Regional Representative, Toronto
R. Fitzgerald –
National Representative, Toronto
AWARD OF THE ARBITRATOR
The Union alleges that the Corporation violated articles 12
and 8 of the collective agreement, as reflected
in the Joint Statement of Issue. The grievance is triggered by a notice
provided to the Union by the Corporation,
initially by letter dated December 17, 2010. In that letter the Union’s National
Representative was advised by the Corporation’s Senior Advisor, Labour
Relations that three Counter Sales Agent positions in Southwestern
Ontario were being abolished as a result of the attrition realized
from the retirement of two employees, and the third position being effectively
The first position
in question was occupied by employee Douglas Marks at Chatham and designated as “Senior Counter
Sales Agent”. The material before the Arbitrator confirms that following Mr.
Marks’ retirement his position was posted on a temporary basis pursuant to article
12.6 of the collective agreement, and was filled by M. D. Greenwood on May 25, 2010.
The position then held temporarily by Ms. Greenwood was posted as a permanent
vacancy in accordance with an overlapping bulletin of May 19, 2010 and was awarded
to Ms. Greenwood on June
16, 2010, as she was the senior qualified applicant.
The position at
previously held by Ms. Greenwood was posted as a temporary vacancy and awarded
to employee C. Whybra. Following the same pattern, Ms. Greenwood’s former position
was then posted on a permanent basis regionally. However that posting was
cancelled as the Corporation determined to make certain changes is hours of
work at a number of Southwestern Ontario
stations. Accordingly, the position was subsequently posted under article 12.4
of the collective agreement, only to the seniority group at the station, and
was awarded to Mr. Whybra on a permanent position basis. Ultimately, Mr.
Whybra’s permanent vacancy was awarded on a temporary basis to Ms. L. Horner,
until it was effectively abolished and recreated as a part-time assignment,
which was then awarded to Ms. Horner on December 29, 2010. In the result, Chatham went from having
three full time positions to two full time positions and one part time
The position of
the Union is to some extent understandable as
regards the treatment of Mr. Marks’ position. The notice initially provided to
it on December
17, 2010 indicated that Mr. Marks’ position was being abolished. In
fact, that is not the case. What happened in substance is that the Corporation
reviewed the workload at Chatham,
implemented some changes in the hours of work and ultimately did eliminate one
full time position at the lower end of the ripple effect, but not the position
of Mr. Marks. The gist of the Union’s complaint with respect to the Chatham position stems
from its belief that the Corporation was simply indefinitely continuing Mr.
Marks’ position by filling it on the basis of temporary vacancies. As confirmed
above, however, that claim cannot be sustained. The material before me confirms
that Mr. Marks’ position was ultimately awarded on a permanent basis to Ms.
Greenwood. I am satisfied that the earlier temporary assignment of Ms.
Greenwood to that position was not inappropriate, to the extent that the
Corporation was revisiting its manpower and work scheduling needs. Nor can I
find that there was any violation of article 8 in respect of the treatment of
employees at Chatham,
as there were in fact no employees adversely affected by the Corporation’s
actions, principally because of the attrition occasioned by Mr. Marks’
As reflected in
SHP 345, attrition can be a
mitigating factor with respect to job abolishments to the point of effectively
nullifying adverse impacts:
… the Company is entitled to take attrition into
account in its complement of employees in determining whether an operational or
organizational change can be said to have an adverse impact on employees. If a
group of 100 employees is affected by the abolition of ten positions, while at
the same time ten employees quit, retire or are discharged for cause, it can be
said that the operational change has impacted the work force in that it has
reduced the complement of employees from 100 to 90. To the extent, however, that
no employees are laid off, it cannot be asserted that there has been an adverse
effect on employees caused by the operational change. … it must be found no
such notice [under article 8.1 of the ESIMA] is required where the job
abolishments are offset by contemporaneous attrition … Where it is established
that attrition has cushioned the blow of any particular job abolishments, to
the extent that any particular job abolishment can be matched with an
identifiable incidence of employee attrition, article 8 [notice] has no
position included in the notice of December 17, 2010 concerned the abolishment of
the position held by Counter Sales Agent Rose Buck at Woodstock, on the occasion of her retirement.
Ms. Buck took the position of Senior/CSA in Woodstock by an award under a regional
bulletin on July
28, 2010. On October 31, 2010 she opted to retire from that position in
position was then bulletined as a temporary vacancy and awarded to Mr. S.
Macneil on October
5, 2010. Following a notice of changed hours of work, shifts and
rest days issued on December
22, 2010, the position held by Mr. Macneil on a temporary basis was
awarded to employee Eileen Spratt on December 29, 2010. It was determined that Mr.
Macneil, although senior to Ms. Spratt, was not eligible to bid on the
permanent position at Woodstock as the change was implemented under article
12.4 of the collective agreement, which limits applications to employees at the
station. Ultimately, therefore, the permanent Senior CSA position at Woodstock was awarded to
Ms. Spratt effective January
5, 2011. In the result, the staffing at Woodstock went from two full time and one
part time positions to one full time position and two part time positions.
this sequence of events, the Arbitrator cannot agree with the statement of the
Corporation that “the permanent position at Woodstock held by Ms. Buck was not replaced
due to attrition as of the date of her retirement.” In fact, her position was
not abolished, although attrition did have an impact at the lower end of the
ripple effect, as apparently occurred in Chatham.
To that extent, therefore, the Arbitrator must again find that the notice given
to the Union on December 17, 2010 was not correct,
as the position there held by Ms. Buck was not abolished. As with the situation
however, no violation of article 8 of the collective agreement is disclosed as
there was plainly no adverse effect to any employees, by reason of the
attrition which did occur.
situation presented concerns a vacancy in Kitchener.
It appears that the position of Counter Sales Agent at Kitchener had been held by Ms. Buck who bid
off it effective July
28, 2010. While it was temporarily assigned to the senior employee,
Mr. André Arseneau, after the exhaustion of the temporary assignment the
Corporation opted not to replace the vacant position. In the result the
Kitchener Station was reduced from three full time positions to two full time
positions by the decision to essentially cancel the vacancy.
With respect to
the events at Kitchener,
the Arbitrator can see no violation of the collective agreement. It is plainly
within the prerogatives of an employer to abolish a position which is vacant.
To the extent that it does so without any adverse effect to employees, as is
the case here, there can be no violation of article 8 or of any other provision
of the collective agreement of which I am aware.
In the result,
the grievance can only be allowed in part. The Arbitrator is compelled to find
and declare that the Union is correct in
asserting that the notice of December 17, 2010 is incorrect, in that two of
the three positions identified in that notice were not in fact abolished.
However given the operation of attrition in two of the three circumstances, I
cannot find that there was any violation of either article 12 or of article 8
of the collective agreement. Specifically, I am satisfied that the
Corporation’s uncertainty and intention to make adjustments to manpower and
scheduling requirements in Southwestern Ontario did justify recourse to the
posting of temporary positions pursuant to article 12.6 of the collective
agreement, until such time as it was confirmed that positions would be made
permanent, as occurred in two instances.
I cannot agree
that the Corporation was under an obligation to immediately post the positions
of the retirees under the provisions of article 12.1 of the collective
agreement, posting those positions on a regional basis when in fact the
Corporation was planning changes which would properly bring into effect the
operation of article 12.4 of the collective agreement by reason of changes in
manpower and work schedules at these locations. In the circumstances, as no
employees have been adversely affected and these are not circumstances which
would justify the application of article 8 of the collective agreement, I deem
it appropriate to limit the remedy to the declarations contained herein.
October 17, 2011 (signed) MICHEL G. PICHER