IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
BROTHERHOOD RAILWAY CARMEN OF CANADA
AND IN THE MATTER OF A UNION GRIEVANCE RELATING TO NOTICE OF LAYOFF PURSUANT TO RULE 13.3 OF THE COLLECTIVE AGREEMENT
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on July 25, 1988.
The Joint Statement of Issue and Facts in this matter is as follows:
The Association of Railway Unions (ARU) struck Canadian National (CN) and Canadian Pacific (CP) Railways effective 0001 hours on August 24, 1987. Rule 13.3 of Collective Agreement No. 3 provides that a notice of lay-off of less than four (4) days may be given employees in the event of a strike or work stoppage by employees in the Railway industry. The Brotherhood contends that not less than one (1) working day’s notice may be given.
The Brotherhood and the Corporation entered into a Memorandum of Agreement to establish an orderly and efficient means of laying-off and re-employing employees in the event of a strike by employees of CN or CP Railways.
On August 24, 1987, employees on the day and afternoon shifts at the Montreal Maintenance Centre (MMC) were advised, by general notice, that their positions were temporarily abolished at the conclusion of their shift due to a strike at CN and CP. Employees scheduled to work on the night shift and those on their rest days were advised by telephone that their positions were abolished immediately and not to report for duty.
The Brotherhood grieved that the Corporation’s notice to employees was in violation of Rule 13.3 which, they claim, requires a minimum of one (1) working day’s notice in the event of a work stoppage by Railway employees.
The Corporation has denied the grievance.
The Memorandum of Agreement referred to in the Joint Statement provides in part as follows:
It is agreed that if a work cessation in Canadian National and Canadian Pacific Railways prohibits the operation of passenger trains:
(1) All positions will be temporarily abolished by a general notice to all employees for the duration of the work cessation.
(2) At the conclusion of the work cessation all employees will report for duty on the positions from which they were laid off at the time of the work cessation without the necessity of the bulletining positions or calling of employees.
(3) Any employee who is on vacation at the time of the work cessation or is scheduled to commence vacation during the work cessation will continue or commence vacation as scheduled.
This agreement modified the application of certain provisions of Rule 13 of the collective agreement which would otherwise have applied in the event of staff reductions, whether due to a strike or any other cause. Rule 13 deals generally with Staff Reduction, Displacement and Recall to Service. Rule 13.3, which is in issue in this case, was not modified (at least, not in any way material to the instant case), In its application to this situation by the Memorandum. Rule 13.3 is as follows:
13.3 When it becomes necessary to make a reduction in staff at any seniority terminal, at least four (4) working days’ advance notice shall be given the employees affected, and lists shall be furnished to the Local Chairman and National Deputy. This does not apply in laying off employees who have been temporarily employed for a duration of less than sixty-five (65) days actually worked 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 (4) days’ advance notice, a shorter notice may be given under Rule 13.3.
An agreement had been made between the ARU, CN and CP on August 21, 1987, which contemplated (although it if course did not require) that a strike affecting those railways would begin at 0001 on August 24. VIA – and, in a general way, its employees – may properly be said to have expected (or it may be said that they ought to have expected) that a strike would take place. Such an expectation, however, was not the same thing as actual notice of the strike or actual notice of reduction in staff. Actual notice of the strike came to VIA on August 24, when the strike actually began. Actual notice of reduction in staff was given to employees during the course of that day. Generally at least, the notice given was of less than twenty-four hours.
This was a case to which the second paragraph of Rule 13.3 applied. The strike was called on less than four days’ advance notice, and the general obligation of four days’ notice, provided for by the first paragraph of Rule 13.3, did not arise. These were, it is clear, circumstances in which it was open to the company to give, as it did, "a shorter notice". The issue in this case is whether or not the company was obliged to give at least one day’s notice.
Rule 13.3, of course, contains no express requirement that a minimum of one day’s notice be given, although the general requirement (to which the circumstances of the present case are an exception) that at least four working days’ advance notice be given, is clearly and precisely expressed. The parties’ Memorandum, made in anticipation of the strike (although not signed until after it had begun), deals with the abolition of positions, but makes no mention of notice of such abolitions. There being no express provision for a minimum notice in such circumstances, the question arises whether or not the collective agreement necessarily implies such a minimum period of notice.
The provisions of the collective agreement simply do not contain such an implication. In CROA Case No. 514, where instantaneous notice was given, there was no suggestion that there had been a violation of Rule 13.2 (the equivalent, under that collective agreement, of Rule 13.3). The claim in that case – which was successful – was for a form of reporting allowance. In the instant case it would appear that any employees who were not notified of the abolition of their positions and who properly reported for work were paid. Again, in CROA Case No. 515, notice of staff reduction given to employees upon their arrival at work was held to have been the sort of "shorter notice" contemplated by the collective agreement. There is nothing in the circumstances of the present case, or in the provisions of the present collective agreement, to support the taking of a different view of the situation from the one which was taken in those cases.
For the foregoing reasons, it is my conclusion that where a "shorter notice" may be given under Rule 13.3, it is not required that in any event the notice must be one of at least twenty-four hours. There may a question, in some circumstances where a "shorter notice" is given, as to whether or not the notice in fact given was a sufficient one. In the instant case there would not appear to have been undue delay in giving notice, but in any event that is not the issue raised in this case. The issue is whether or not at least one working day’s notice must be given. It is my conclusion that the collective agreement does not impose such a requirement in cases (such as this) to which the second paragraph of Rule 13.3 applies.
Accordingly, the grievance must be dismissed.
DATED AT TORONTO, this 8th day of August, 1988.
(signed) J. F. W. Weatherill