BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of Canadian National Railway Company [among others]:

J. A. Cameron

J. R. Gilman

There appeared on behalf of Canadian Pacific Limited [among others]:

I. J. Waddell

D. J. David

And on behalf of the Union:

J. W. Asprey

A hearing in this matter was held at Montreal on January 26, 1984.

The matter before me does not arise by way of grievance but is rather a dispute between the parties and in particular between the two employer parties as to the interpretation of paragraph 2 of Appendix "A" of the Special Agreement between the parties dated July 7 1978. Appendix "A", made a part of the agreement is dated May 19, 1978. The undersigned was appointed as arbitrator by the Honourable the Minister of Labour, under the procedure set out in article K of the Special Agreement.

The Joint Statement of Issue, signed on behalf of the three parties to this dispute, is as follows:

Although these matters are put before me as general questions of interpretation, they are pressing with respect to a particular application which puts the issues clearly in focus, and which it will be convenient to use as an example. At the hearing of this matter, the union took no position either with respect to the general questions in issue or with respect to the particular case to which I shall refer by way of example.

The Special Agreement was negotiated by the parties (with the assistance of a mediator), pursuant to the Railway Passenger Services Adjustment Assistance Regulations. Somewhat similar agreements were negotiated in respect of other bargaining units or groups of bargaining units. These agreements deal with certain special arrangements agreed to in order to accommodate certain of the disruptive effects which followed from the establishment of VIA Rail, and the withdrawal by the railroad companies from the passenger service business.

The railroad companies continue to operate and maintain the rolling stock necessary for VIA Rail’s operations. There have been, from time to time, changes in VIA operations which in turn have affected the railway companies’ operations. These changes have included changes in maintenance requirements, and, at times, changes in the company with whom VIA contracts for the maintenance of certain equipment. In both railway companies, such work is performed by members of unions forming The Canadian Council of Railway Shopcraft Employees and Allied Workers. The Special Agreement involved in the instant case is between the railway companies and that union, or council of trade unions. In the instance here used as an example, certain changes in the performance of maintenance work have been scheduled to take place on April 15, 1984. These changes are:

• The maintenance of some 149 "Stainless Steel" passenger cars is to be transferred from Canadian Pacific’s Glen Yard at Westmount (Montreal) to Canadian National’s Spadina Coach Yard (Toronto). Canadian National has indicated that some 102 additional bargaining unit positions will be required in various shopcraft classifications to handle the day-to-day maintenance associated with this transfer. It may be that additional positions will be required in the Canadian National main shops for major work.
• The maintenance of some 14 "Stainless Steel" passenger cars is to be transferred from Canadian Pacific’s Glen Yard at Westmount (Montreal) to Canadian National’s Pointe St. Charles Coach Yard (Montreal). Canadian National has indicated that no additional positions will be required to handle this work.
• The maintenance of 3 Rail Diesel Cars is to be transferred from Canadian Pacific’s Glen Yard at Westmount (Montreal) to Canadian National’s Turbo Bay facilities (Central Station, Montreal). Canadian National has indicated that an unspecified number of additional shopcraft positions will be required to handle this work.

A total of 159 bargaining unit positions at Canadian Pacific’s Glen Yard will be abolished as a result of these changes. The employees whose positions are abolished will, I think it is clear, be "adversely affected employees" within the meaning of paragraph 2 of Appendix "A". It is Canadian Pacific’s position that in at least two of the instances referred to above by way of example, there have been "additional positions" created in CN due to the transfer of passenger-related work from CP to CN. Thus, there would be 102 such additional positions created at the Spadina Coach Yard (Toronto), and an unspecified number of additional positions at the Turbo Bay facilities (Central Station, Montreal). It is Canadian National’s position, on the other hand, that the number of "additional positions" is to be determined only after any present CN employees have been recalled, either from lay-off or from other employment with the company. Thus, with respect to the Spadina Coach Yard operation, it seems that some fifty CN employees would (subject to the effect of the Special Agreement), be entitled to recall to work there, so that at the most some fifty-two CP employees might (subject to the other question to be determined), be entitled to fill those fifty-two "additional positions".

In my view, the position of Canadian Pacific in this instance represents the correct reading of paragraph 2 of the Special Agreement. The general purpose of the Special Agreement, as set out in the preamble, is to provide the terms, conditions and benefits for employees adversely affected as provided by the Railway Passenger Services Adjustment Assistance Regulations. Those Regulations include among their objectives ensuring continuing employment for the employees concerned; providing assistance in relocation (although, keeping them, to the extent possible, in the same location); and minimizing seniority obstacles for the purpose of facilitating continuing employment by the two companies. The Regulations apply, of course, with respect to the special set of situations created by the establishment of, and the dislocations resulting from VIA operations. In effect, the employees who have, in one company or the other, been engaged in "VIA work" are to be treated - for certain purposes under the Regulations and the Special Agreement - not so much as employees of one or the other railway company, but more generally as railway workers engaged in "VIA work", or "passenger-related work" as the Special Agreement puts it.

Having regard to the clearly-stated purpose of the Special Agreement, it is my view that the reference to "additional positions", particularly where these are "created ... due to the transfer of passenger related-work" - which is clearly the case in the examples referred to - is to those positions which have to be filled as a result of any increased requirement for workers for the performance of the work to be available following the transfer. The "additional positions", that is, are positions which the company will have to fill as a result of the transfer, and which it did not have to fill immediately prior to the transfer. It may not first look to its own laid-off employees (not "adversely affected" by the change and who might be junior in seniority to the employees adversely affected, by the transfer of work) to fill these positions before declaring that there remain any "additional" ones.

This view is consistent with the provision made in paragraph 3(i) of Appendix "A", which deals with "subsequent vacancies". That paragraph is as follows:

There, the subsequent vacancies are first to be made available to employees laid off from the company from which the work was transferred (providing their lay-off resulted from the transfer of passenger-related work). There is no apparent rationale for this group of adversely affected employees having greater rights than those entitled to consideration for the additional positions originally to determined to exist.

The view that what is involved, for the limited purposes of the Special Agreement, may be roughly described as "railroad" rather than "company" seniority is further supported by the note to paragraph 3(i), which is as follows:

It was argued that with the bulletining of the additional positions, a transferred employee (if Canadian Pacific’s view of the matter were accepted), could, after 30 days, find himself laid off at the new location due to a senior laid off employee bidding, or a senior employee being recalled to his home seniority terminal.

That might indeed occur. I do not think, however, that it can properly be concluded from that possibility that all laid off employees at the "expanding" location, or all employees having recall rights there are to be accommodated before vacancies can be said to arise. The adversely affected employees, it will be remembered, have an option under paragraph 2, either to exercise seniority rights under their collective agreement (that is, in this case, with Canadian Pacific), or "in seniority order" (and subject to qualification), to fill additional positions at Canadian National. The seniority of the transferred employees is to be dovetailed with that of employees of the other company. Obviously, exercise of a right of transfer by an adversely affected employee would be very risky for him where his seniority on the dovetailed list will not be such as to ensue him reasonable security at the new location. That would be a consideration in determining which option to select.

For the foregoing reasons, it is my conclusion that the "additional positions" referred to in paragraph 2 of Appendix "A" are the positions which would would not have been filled but for the transfer of the passenger-related work, and that they consist of the total number of such positions, and not simply the "net" positions remaining after other employees of Canadian National have exercised their rights.

The other question submitted to arbitration is as to the meaning of the words "corresponding seniority territories" as they appear in paragraph 2 of Appendix "A". It is the contention of Canadian Pacific that these words refer to the basic seniority territory corresponding to the location (and the applicable craft -seniority list) where the additional positions are created. It is, in essence, Canadian National’s position that the seniority territories involved are those which correspond to those of the other company in respect of the location at which or from which the adversely affected employees are displaced.

As the note to paragraph 2 states, "seniority territories" refers to the basic seniority territories as defined in the Job Security Agreement. It would appear that the basic seniority territories, at least on Canadian National, are different under the Job Security Agreement than they are under the collective agreement, and that they are smaller territories under the former than under the latter. In any event, a different basis is used for the delimitation of seniority territories as between the two companies. Nevertheless, it would be possible, at least in a rough way. to determine "correspondences" between the two sets of territories. It might be arguable (the point is not in issue here), that in some instances the territory on CN which "corresponds" to a territory on CP would in fact be a set of territories.

What is in issue here is not any question as to the "correspondence" of any particular territories as between the two companies, but rather the quite different question of interpretation, whether or not the territory "corresponding" for the application of paragraph 2 of Appendix A is to correspond to that where the additional positions are created, or to that where the transfer-out of operations has affected employees adversely.

In my view this question is clearly, answered by the language of paragraph 2 itself. In the circumstances to which that provision applies adversely affected employees have the option of exercising their rights under their collective agreement, or of filling "such additional positions in the corresponding seniority territory". The "additional positions" are those positions whose creation gives rise to the application of the paragraph: it is with respect to "such" positions - and there is no limitation as to where they may arise - that the second option may be exercised. The whole thrust of the Appendix, of course, is to permit the exercise of seniority on a "railroad" basis where employees’ work has been moved from one company to the other. There is no restriction on such exercise to cases where the work happens to be transferred within the corresponding seniority area. The "corresponding seniority territories", I find, are those which "correspond" (the correspondence may in many cases be rough and not precise), to those of the other company in the location where the additional positions arise, that is to say, to which the work is transferred. The transferring employees will be entitled to work (subject to qualifications), "in seniority order", and their entitlement, relative to that of employees of Canadian National at the "expanding"‘ location, will be determined having regard to their relative dovetailed seniority in the appropriate Canadian National seniority territory (the "corresponding seniority territory"), at that location.

For the foregoing reasons, it is my conclusion that the words "corresponding seniority territory" used in paragraph 2 of Appendix "A" to the Special Agreement mean the Job Security seniority territory at the location where the additional positions are located.

The foregoing dispositions of the questions put constitute my award in this matter.

DATED AT TORONTO, this 3rd day of February, 1984.