SHP 229

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

(the "Union")

GRIEVANCE RELATING TO CERTAIN NOTICES OF LAYOFF

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

A. Rosner

L. Biniaris

 

APPEARING FOR THE COMPANY:

A. Giard

Glazer

 

A hearing in this matter was held at Montreal on August 18, 1987.

 

 

SUPPLEMENTARY AWARD

The award in this matter, dated May 22, 1987, [see SHP-225]concluded as follows.

For the foregoing reasons, it is my conclusion that an Article 8 notice ought to have been given in the instant case. The grievance is accordingly allowed.

The general nature of the dispute (taken from the unionís Statement of Dispute), had been set out at the outset of the Award as follows:

Applicability of Article 8 of the Employment security and Income Maintenance Plan to a layoff at Moncton Main Shop, effective October 10, 1986.

The general statement of the matter (which had been drawn from the companyís Statement), should also be set out again:

On September 29, 1986, the Company issued notices to thirty Machinists and four Machinists Helpers employed in the Motive Power shop at the Moncton Main Shop Complex advising them that their positions were to be abolished effective October 10, 1986. The Union contends that these 34 positions were abolished as a result of a technological, operational or organizational change and that three monthsí notice to the Union was required pursuant to the provisions of Article 8.1 of the Employment Security and Income Maintenance Plan.

The Union requests that the employees affected by the abolishment of 34 positions be provided the benefits and conditions of the Employment security and Income Maintenance Plan. The Company disagrees with the Unionís contention and has declined the Unionís request.

The dispute now before me arises from the failure of the parties to agree on the remedy required as the result of the award in this matter. The parties submitted the following Joint Statement of Facts:

Joint Statement of Facts:

The Union contends that in allowing the grievance, the Arbitratorís Award thereby also allowed the entire remedy proposed by the union in its submission to the Arbitrator at the hearing of the dispute on April 28, 1987. More specifically, the Union contends that the Arbitratorís award allows the following as remedy:

1. In the absence of an Article 8 notice, the Company cannot implement the layoff in dispute until such time as the Company serves an Article 8 notice to the Union.

2. In the absence of the Article 8 notice specified in Item 1 above, the adversely affected 34 employees must be reinstated to their former positions with full compensation for wages and benefits lost from October 10 to date of reinstatement. The Union contends that by making financial compensation to the affected employees for the period of time between October 10, 1986 and December 29, 1986 the Company has not made full compensation.

3. The Union requests reinstatement of rights lost pursuant to Articles 8.4, 8.5, and 8.6 of the Employment Security and Income Maintenance Plan.

4. The Union contends that four employees having Employment Security have not yet been adversely affected by an Article 8 notice and are under no obligation to exercise their seniority rights under Articles 7.3 and 7.4 of the Employment Security and Income Maintenance Plan within the 30 calendar day period specified by the Company in its letter of 26 June 1987.

The Company denies the Unionís contentions and contends that it has fulfilled its obligation in implementing the Arbitratorís Award of May 22, 1987.

As to the unionís preliminary contention, namely that the Award granted "the entire remedy" which the union had proposed in its submission, and that I am accordingly functus officio, it is my view that in allowing the grievance, what was allowed was the general claim stated at the outset of the Award. In the instant case, that was that "the employees affected by the abolishment of 34 positions be provided the benefits and conditions of the Employment Security and Income Maintenance Plan". It is true that in its submission at the first hearing the union sought greater relief than that referred to in the Award. As well as a general request that the alleged violation be "fully remedied, including the restoration of all due rights, benefits and compensation to the affected parties", the union requested that the adversely affected employees "be recalled to work with full compensation for wages and benefits lost from October 10 to date of reinstatement".

The Award itself did not specifically grant a remedy of the sort suggested. That such would be the extent of the remedy under the Award is not, in my view, implicit in it. Rather, the Award dealt with the general question of the appropriateness of the notice given to the circumstances, and set out the conclusion that the circumstances called for a notice of a different sort than the one given, namely, an "Article 8" notice. The conclusion of the Award, that the grievance was allowed, is to be read as upholding the unionís contention that these were circumstances to which Article 8 applied, and that the relief set out as having been sought, was to be accorded. That relief, as set out at the beginning of the Award (although put differently than in the unionís statement of the Dispute and Issue), was "that the employees affected by the abolishment of 34 positions be provided the benefits and conditions of the Employment Security and Income Maintenance Plan". That is a general statement of the companyís liability to the employees concerned, and is in the general form usual in labour arbitration cases, where (as in the instant case), detailed evidence is not proffered at the original hearing on the issue of relief, the arbitrator retaining jurisdiction to deal with that matter if the parties are unable to agree thereon. Such jurisdiction, where invoked, may be exercised for the purpose of completing the award (that is, dealing with matters relating to relief), where the original award, as here, did not dispose finally of all issues which were before the arbitrator.

The general principles which arbitrators have followed in this respect are set out in Brown and Beatty, Canadian Labour Arbitration, 2d ed. at p. 110 as follows:

Thus, where an arbitrator has in his view issued a final and binding award he is functus unless he has failed to determine an issue which was specifically submitted to him. Moreover, in any subsequent decision an arbitrator may not reinterpret his prior award. Rather, he is limited simply to completing it. Furthermore, if an award is not complete in that it is silent on an issue, a second arbitrator may be barred from completing it. However, where an arbitrator has retained a jurisdiction to deal with a remedy either with or without the partiesí agreement, the issuance of a subsequent award particularizing the remedy is within his jurisdiction. In completing the award, however, the arbitrator is again limited by the scope of the original submission to arbitration. Similarly, a board has no jurisdiction in the matter of the enforcement of its award unless that power or jurisdiction is specifically granted to it. [Cases cited, including Consumers Gas Co., (1974) 6 L.A.C.(2d) 61].

In the instant case, the award dealt with the general question of "liability", and while granting the union the general relief set out in the award as having been asked, it did not grant relief to the extent sought by the union, and indeed did not deal with the question of the extent of such relief. The issues before me have not been finally determined, and I retain jurisdiction to deal with them for the purpose of completing the award.

The essential difference, as I see it, between the partiesí positions with respect to the relief to which employees are entitled pursuant to the Award is (very roughly put), this: it is the unionís position that as no Article 8 noticeí was given, the action taken by the company with respect to the affected employees was a nullity, and the employees are entitled to be treated as though they had been at work and entitled to wages at all material times. It is the companyís position (again, roughly put), that notice of layoff was given to the employees, and that since that notice has been held not to have been the appropriate notice, the affected employees are entitled to be treated as though the proper notice had been given and to be put, as far as may be, by monetary compensation or otherwise, into the position they would have been in had the collective agreement not been violated Ė that is, had the notice given been the Article 8 notice for which the circumstances called.

The companyís position in this respect is one which has been upheld in a number of previous arbitration awards dealing with the same, or essentially similar language in "job security" agreements in the railway industry. Thus, in CROA Case No. 453 (1974; Weatherill), where different parties were involved but virtually identical language was in the collective agreement, the following conclusion was reached:

For the foregoing reasons it is my award that the grievance be allowed. The employees concerned were entitled to notice pursuant to Article VIII of the Job Security Agreement. Such notice not having been given, the employees are entitled to payment in respect of the period for which notice should have been given, against which may be set off whatever amounts they earned or ought to have earned during that period.

More recently, in the Supplementary Award in CROA Case No. 1150 (1984; Kates), again on virtually identical language, the argument now made in the instant case appears to have been addressed:

It is my view the only prejudice that has arisen from the employerís denial of the three month notice period is the missed opportunity for the General Chairman to negotiate during that period the adverse effects of the proposed change. In this regard the employees have been deprived of the benefits of union representation and the elaborate mechanism provided under Article 8 that includes the negotiation, mediation and arbitration of any adverse effect. It is in this context that the aggrieved employees have been shown to be entitled to compensation.

Even if the company had complied with the three month notice provision, on December 31, 1982, it would have been free to go ahead with the proposed change. It may very well be that after December 31, 1982, the mechanisms for resolving the adverse effects of the change provided under Article 8 would have continued concurrently with the employerís implementation. Nevertheless once implemented, the aggrieved employees, effective December 31, 1982, would then have been entitled to maintenance of basic rates benefit under Article 8.9.

To repeat, the aggrieved employees cannot be placed in any better position than had the employer complied with Article 8.1. And, as I have suggested, their entitlement is to compensation for the three month period that their trade union representative was deprived of the opportunity to negotiate on their behalf the adverse effects of the proposed change.

The trade union claims that because the employer failed to give notice, such notice of three monthsí duration should be directed effective the date of my original decision. The effect of that submission, if successful, would operate to roll back the change. This simply is not what the collective agreement contemplates. The collective agreement anticipates a minimum notice period of three months during which time the employer is prevented from implementing its proposed change. If the trade unionís position is acceded to a notice period of approximately fifteen months would result.

In the instant case, it is clear, and it appears to be acknowledged, that something more than monetary compensation is owing to the affected employees: they are entitled to exercise seniority rights in the manner contemplated by the Employment Security and Income Maintenance Plan, and it appears that the company offered employees certain opportunities in that respect. Certain issues have been raised as to the sufficiency of such offers, but I do not now determine these, retaining jurisdiction to do so if the parties are unable to resolve the more detailed questions of remedy arising under this award. Further, in the instant case, the union does not urge, as the union appears to have done in CROA Case No. 1150, that the notice period should run as from the date of the arbitratorís award. Rather, the union takes the position that there has as yet been no notice of the change (which has been implemented), and that the status quo ante is to be, at least notionally, reconstructed.

The parties were, as the Award in this matter makes clear, aware that changes having adverse effects on employees were taking place at Moncton. In a number of instances, the company had given notice of layoff in the ordinary way, and these had not been the subject of grievance of the sort involved here. In the instant case, a notice was given, and a dispute then arose as to its form: that is, as to the characterization of the change involved. In the Award, it was held that the changes in question here were in the nature of "technological, operational or organizational" changes, and that an "Article 8" notice ought to have been issued. The effect of this was not that changes were invalidly implemented and were null, or that employees should consequently be treated as though they had simply carried on at their jobs (the continuity of which throughout the subsequent period is in any event highly questionable), but rather that employees adversely affected should be placed, as nearly as may be, in the positions they would have been in had an Article 8 notice been given. That contemplates reasonable negotiations and cooperation between the parties to establish the enforceable rights of the individual employees concerned.

Notwithstanding the requirement in Article 8 that notice be given under that article in cases of technological, operational or organizational change of a permanent nature which will have adverse effects on employees, the cases have dealt with situations where such changes have been effected without the proper notice being given as cases calling for a remedy, but not as cases where the remedy is based on the notion that the change was a nullity and never took place. Rather, the usual principles relating to damages for violation of an agreement have been applied. These cases, it may be noted, antedate the negotiation of the present agreement by some time.

Having regard to the foregoing, I reach the following conclusions with respect to union contentions (1) to (3) as set out in the Joint Statement:

1. In the circumstances, the company was not prevented from implementing the layoff in question.

2. The Award does not contemplate the reinstatement of the affected employees in their former positions, but rather the granting to them of the benefits to which they are entitled under the Plan, as though proper notice had been given.

3. In determining the relief to be granted under the Award, regard must be had to the entitlements provided under Articles 8.4, 8.5 and 8.6 of the Plan.

As to union contention (4), it appears that the company considered there were four employees who, by virtue of the Award in this matter, attained "employment security" under Article 7 of the Plan. Following the issue of the Award, the company called on them to exercise certain options to which it then appeared they would be entitled under the award. Two of these employees, it appears, exercised the choice given them (the company, failing agreement of the parties, having set a thirty-day time limit to that effect), in such a way as to forfeit their "employment security". While I do not consider that the setting of the period in question was unreasonable, it must be remembered that the choices open to employees in such circumstances are often hard ones, and that in the instant case the legitimacy of the option itself had been put in question. Accordingly, and subject to any different agreement in this respect to which the parties may come within ten days of the issue of this Supplementary Award, it is my Award that the two employees in question may, in the circumstances then obtaining, opt to follow the procedure contemplated under Article 7 of the Plan, provided they do so by September 30, 1987.

The foregoing constitutes the Supplementary Award in this matter. Questions of the detailed application of the Award may yet arise, and I remain seized of them for the purpose of completing this Award, if the parties are unable to agree thereon.

 

DATED AT TORONTO, this 8th day of September, 1987.

(signed) J. F. W. Weatherill

Sole Arbitrator