SHP 167

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Canadian Pacific Limited

(the "Company")

AND

THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the "Union")

AND IN THE MATTER OF GRIEVANCE OF T. L. KEDDY

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

R. Laroche

 

 

And on behalf of the Company:

D. J. David

J. Blotsky

P. A. Pender

 

 

A hearing in this matter was held at Montreal on February 13, 1985.

 

 

AWARD

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACT:

On December 30, 1983, Mr. T.L. Keddy was notified in writing that his position of Road and Terminal Electrician headquarters at Kentville, Nova Scotia would be abolished effective January 12, 1984, in accordance with Article 16.4 of Wage Agreement No. 34.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that the Company violated Article 8.1 of the Job Security Agreement and a three month notice was required.

The Company declines the Unionís contention and denies payment.

The grievor was hired by the company on August 4, 1975. He was assigned on a full time basis to do electrical maintenance of company buildings and stations on the Dominion Atlantic Railway territory from Yarmouth in the south to Truro in the north including work at the Digby Ferry Terminal. Since that time a number of stations on the line have been sold or closed. At others, renovations have been carried out, reducing the requirement for electrical work and Caretakers have been employed to perform many of the tasks which might otherwise have been performed by an Electrician (no issue as to the scope of work performance arises in this case, however). As well, CN Marine took over the Bay of Fundy service and the Digby Ferry Terminal, eliminating the maintenance work for employees of Canadian Pacific.

As a result of these changes and the consequent decline in the need for the work which had been performed by the grievor the electrical maintenance work which he performed in 1983 is said to have constituted only about 10% of his duties. About 13% of his work involved instructing first aid classes, and some 77% involved assisting the B&B Pipefitter in furnace repairs and minor repairs around stations.

Following the abolition of the grievorís position, certain electrical work which he would have performed has been contracted-out. Such work, however, was performed on only three days in 1984. No other employee on the Dominion Atlantic Railway has been performing electrical work previously assigned to the abolished position.

There is no issue as to the companyís entitlement to abolish the position in the circumstances. The issue, rather, is as to the nature of the notice given to the grievor. It is the companyís position that it met the requirements of article 16.4 of the collective agreement in that regard. That article is as follows:

REDUCTION AND RESTORATION OF STAFF

16.1 When it becomes necessary to make a reduction in staff or abolish positions, the employee affected may, if qualified, within 14 calendar days (or if on leave of absence, within 14 days from date of return) displace any junior employee in his seniority class.

16.2 An affected employee who declines to displace a junior employee will be laid off and subject to recall in accordance with Article 16.3.

16.3 Employees laid off shall be given preference of re-employment in the order of their seniority. They shall furnish the proper officer of the Company and the Local Committee with their addresses. If they fail to report for duty when called within seven days from being called to fill a vacancy within their Superintendentsí Division, as it existed July 1, 1980, or furnish satisfactory explanation for failure to do so, they shall forfeit their seniority rights under this agreement and their names shall be struck off the seniority list.

16.4 When it becomes necessary to make a reduction in staff at any seniority terminal, at least 4 working daysí notice shall be given the men affected before reduction is made, and lists shall be furnished the Local Committee and General Chairman. This does not apply in laying off men who have been temporarily employed for a duration of less than 65 working days to meet special requirements, In the event that a strike or work stoppage by employees in the railway industry is called on less than 4 daysí advance notice, a shorter notice may be given under this rule.

It had clearly become necessary to make a reduction in staff and to abolish the position in question, and the company did give the notice required by article 16.4. The union, however, alleges that article 8.1 of the Job Security Agreement applies in the circumstances of this case. It is clear that the company did not give the notice contemplated by that provision, and the issue is whether or not it was required to do so in the circumstances of this case. Article 8.1 of the Job Security Agreement is as follows:

8.1 The company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effects on employees without giving as much advance notice as possible to the General Chairman representing such employees or such other officer as may be named by the Union concerned to receive such notices. In any event, not less than three monthsí notice shall be given, with a full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected.

Reference should also be made to article 8.7 which is as follows:

8.7 The terms operational and organizational change shall not include normal reassignment of duties arising out of the nature of the work in which the employees are engaged nor to changes brought about by fluctuation of traffic or normal seasonal staff adjustments.

In my view, what occurred in the instant case constituted an operational or organizational change in the general sense of those terms: it was a virtually inevitable result of, and inextricably connected with the closing of stations and the changes in nature and method of operations carried out by the company. While these changes may themselves reflect changes in the nature of business or in the volume of business the abolition of the grievorís position was clearly not a "normal reassignment of duties", nor was it due to "fluctuation of traffic" in the sense in which that expression is used in article 8.7.

A number of cases have dealt with the same or similar language, in respect of a wide variety of situations. The following remarks from CROA case no. 286 are, I think, appropriate here:

In applying the provisions of Article VIII, however, care must be taken against overgeneralizing their application.

Practically every operational change could no doubt be attributed to "fluctuations of traffic", so as to restrict the application of the article to much less than its proper scope. "Fluctuations of traffic" are no doubt the long-run cause of much of the companyís activity. Here, however, we are concerned with giving meaning to the phrase in the context of a provision for job security. It operates so as to restrict the circumstances in which the company is required to give notice but not so as to destroy the overall effect of the provision. In Case No. 272, dealing with similar provisions it was said that "fluctuations" included "general declines", although it would not necessarily be limited to those. In Case No. 271, train messenger service was discontinued on certain trains because the principal reason for such service the handling of currency shipments from the Bank of Canada was removed when the Bank decided not to forward such shipments by rail. It was held there was an elimination of a type of service, not a "fluctuation in traffic" as that phrase was used in the agreement.

In Case No. 286, the company had abolished certain positions of Highway Service Driver due to the loss of a contract for the delivery of mail. It was held that an article 8 notice ought to have been given. In the instant case, the company argued that article 8 did not apply because the position in question had been abolished simply because the work to be performed was "inconsequential". The work had become "inconsequential", however, because of the closing of stations and the other major and permanent changes which the company had made in its operations. The abolition of the grievorís position, justified as it obviously was as a business matter, was itself an operational change, in that the work of a classification was finally brought to an end. That is the sort of matter of which the affected employee is entitled to notice, and as I have noted, the instant case does not come within the exceptions to that general requirement.

For the foregoing reasons the grievance is allowed.

DATED AT TORONTO, this 7th day of March, 1985.

(signed) J. F. W. Weatherill

Arbitrator