SHP 216

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

IN THE MATTER OF THE GRIEVANCES OF D. FRAMPTON AND OTHERS

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

A. Rosner

L. Biniaris

 

 

There appeared on behalf of the Company:

S. MacDougald

J.A. Cameron

 

 

A hearing in this matter was held at Montreal on

 

AWARD

This matter involves the claims of Machinists D. Frampton, E. Lynch, R. Larkin, J. Haggerty and R. Martin in respect of notice of layoff. The joint statement of issue is as follows:

On 11 March 1984 Machinists Frampton, Lynch, Larkin and Haggerty were advised that they would be laid off on completion of their shift on 12 March. On 12 March, Machinist Martin was advised that he would be laid off on completion of his shift that day. The Local Chairman of the Union initiated a grievance contending that these employees should have received a four working daysí notice in accordance with Rule 23.16 of Agreement 12.1 and requested payment in lieu of the proper notice.

The Union contends the grievors are permanent employees in accordance with Rule 23.1 and are not subject to the exception in Rule 23.16 which applies to employees "temporarily employed". The Brotherhood requests payment of four daysí pay for Machinist Martin and three daysí payment for the other grievors. The Company denies the Unionís contentions and has declined the payment requested by the Union.

There is no issue as to the grievorsí original layoff or as to their recall. They were, at the time of their original layoff and at all material times, persons who had become "permanently employed" within the meaning of Rule 23.1. That Rule is as follows:

23.1 A new employee shall not be regarded as permanently employed until he has completed 65 working days cumulative service. In the meantime, unless removed for cause which, in the opinion of the Company renders him undesirable for its service, the employee shall accumulate seniority from the date he entered the classification in the craft, and shall be regarded as coming within the terms of this Agreement.

At the time of their recall, the grievors were advised that the work for which they were required was of a temporary nature, that is, that it was expected to be of less than ninety daysí duration. Each of the grievors had in fact worked less than forty-five working days on the job for which he was recalled, at the time of the layoff now in issue. Notice of layoff was not given in accordance with Rule 23.16, and the issue is whether it should have been or not. Rule 23.16 is as follows:

23.16 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 to 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 four daysí advance notice, a shorter notice may be given under this Rule 23.16. In reducing forces, the ratio of apprentices shall be maintained.

The general terms of the first paragraph of Rule 23.16 would appear to apply in the instant case: it was apparently necessary to make "a reduction in staff" at the Dockyard, the work for which the employees in question required having been completed or nearing completion, and the grievors, as "the men affected" would be entitled to four working daysí notice. Those general provisions, however, do not apply in cases of employees "temporarily employed for a duration of less than 65 working days to meet special requirements". The particular issue to be determined is whether or not the grievors were persons coming within that description.

It is not doubted that the grievors were told, at the time of their recall, that their jobs would be temporary. It appears that at the time of the grievorsí recall mention was made of the work being of "less than 90 calendar days", an expression used, among other places, in rule 23.12 referring to temporary assignments. There is no issue raised as to the grievorsí being recalled "to meet special requirements". As to the temporary nature of the grievorsí recall, that may be explained by the nature of dockyard, as opposed to railway shop work. The collective agreement provisions, however, are of general application and do not call for special treatment of dockyard cases.

A layoff may be said to be "a temporary severance of the employment relationship (in the narrow, technical sense of that phrase) for the purpose of reducing the employment force in order to meet the manning requirements of the employer": Northern Electric, 23 L.A.C. 104, at p. 107. The reference in that definition to "the narrow technical sense" of the phrase, "employment relationship" is important, because it explains the apparent paradox which appears when we speak, quite properly, of the "laid-off employee". While the grievors were laid off their employment relationship had ceased, or more accurately perhaps would have ceased had it not been for the collective agreement (and the legislative context supporting it), under which their status as employees having rights under the agreement was maintained. The grievors, as I have noted, were all permanent employees within the meaning of article 23.01: they were not probationers.

The provision, in the second paragraph of Rule 23.16, that the Rule does not apply to those "who have been temporarily employed for a duration of less than 65 working days Ö" is not, in my view, one which refers, by inversion, to those new employees "not Ö regarded as permanently employed" referred to in Rule 23.01. That is, the persons "temporarily employed" to which article 23.16 refers need not be probationers. Probationers, as such, may or may not be temporarily employed. They do not have seniority rights, however (although they may accumulate seniority), until they have become permanent employees. Permanent employees, having full seniority rights, may nevertheless be temporarily employed, and it is the Companyís position that the grievors, admittedly "permanent employees" within the meaning of Rule 23.01, had been temporarily employed within the meaning of Rule 23.16 in the instant case.

There would, in my view, be no need for a special "temporary employment" provision to relieve the Company of the need to give notice of layoff to probationers or, in particular, to persons casually hired for brief periods. Permanent employees, such as the grievors, have a general right to notice of layoff, but that right may not arise in certain specific cases such as that of the "temporary employment" referred to in Rule 23.16 or the "temporary assignment" referred to in Rule 23.12, to be dealt with below.

The temporary employment referred to in the second paragraph of Rule 23.16 may be analogous to, although it is distinguishable from the "temporary assignment" dealt with in Rule 23.12 of the collective agreement. That Rule is as follows:

23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the respective crafts for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the local committee to be consulted in each case.

Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this clause annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23.12.

It need not be determined whether or not the jobs filled by the grievors when they were recalled were positions coming under the scope of Rule 23.12. If they were not, then the grievors were simply temporarily employed (that is, assigned work of a temporary nature), and their temporary employment was for a duration of less than 65 working days to meet special requirements. They would therefore come within the exception set out in the second paragraph of Rule 23.16, and the general requirement of notice of lay-off would not apply to them on the termination of their temporary jobs. If, on the other hand, the grievors are considered as having been given temporary assignments pursuant to Rule 23.12, then they would, on the completion of such assignments, "be returned to their former basic regular assignments", which in their case, the grievors having no such assignments, could only mean return to their status as laid-off employees.

In my view, this is not a case to which Rule 23.12 applies, but the matter is doubtful and as noted above, need not be determined. The particular "employment" for which the grievors were recalled was, in the instant case, of a temporary nature and involved a work assignment of less than 65 working daysí duration. The grievors were aware of its temporary nature. They were thus in a position analogous, in a general way, to that of employees holding temporary assignments.

The grievors, who had been receiving benefits under the Job Security Agreement prior to their recall, received such benefits again immediately upon the conclusion of their temporary employment. Under the Job Security Agreement, there is normally a waiting period for layoff benefits, but there is an exception to that in the case of employees "recalled to work for a period of less than ninety calendar days": Job Security Agreement, Appendix "B", clause 1(b). Again, the temporary employment of a laid-off employee bears a certain analogy to the temporary assignment of an employee holding a regular assignment. The immediate resumption of layoff benefits upon the conclusion of the temporary employment is consistent with the notion that notice of layoff is not required in cases of temporary employment of the sort in issue here. It may be noted that, if I were wrong in this, any relief payable to the grievors would be subject to reduction by the amount of layoff benefits in fact received in respect of the period for which payments in lieu of notice might be owing.

For all of the foregoing reasons, it is my conclusion that the grievors were not entitled to the notice referred to in Rule 23.16 upon the conclusion of temporary employment and return to layoff. The Company was not, I find, in violation of the collective agreement in the circumstances of this case, and the grievance must accordingly be dismissed.

DATED AT TORONTO, this 12th day of January, 1987.

(signed) J. F. W. Weatherill

Arbitrator