SHP - 285
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
RE: GRIEVANCE RE BASTARACHE - EMPLOYMENT SECURITY
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – Executive Secretary, CCRSU
L. Biniaris – System General Chairman, IAM&AW
R. Hay – Atlantic Region General Chairman, IAM & AW
J. Belliveau – Local Chairman, Local Lodge 594, Moncton, IAM&AW
G. Callender – Member, LL 594, IAM & AW
APPEARING FOR THE COMPANY:
S. A. MacDougald – Manager, Labour Relations, Montreal
W. W. Wilson – Director, Labour Relations, Montreal
L. F. Caron – System Labour Relations Officer, Montreal
D. A. Watson – System Labour Relations Officer, Montreal
L. W. Ross – Labour Relations Officer, Special Duties, Moncton
P. M. Nicholson – Coordinator, Special Projects, MP & CE, Montreal
A hearing in this matter was held in Montreal on November 13, 1989.
AWARD OF THE ARBITRATOR
The Union requests that Mr. Bastarache should be placed on Employment Security.
The Company has declined the union’s request.
JOINT STATEMENT OF FACTS:
Pursuant to a 14 day notice, Mr. Bastarache was laid off on completion of his shift on October 12, 1986. At that time Mr. Bastarache had accumulated 90 months of cumulative compensated service (C.C.S.), and as a result he was not entitled to the provisions of Article 7.2 of the Employment Security and Income Maintenance Plan (The Plan). He consequently received weekly layoff benefits pursuant to Article 4 of The Plan.
On May 22, 1987 Arbitrator Weatherill ruled that a notice pursuant to the provisions of Article 8.1 of Employment Security and Income Maintenance Plan, dated January 30,1986, hereinafter referred to as The Plan, ought to have been served to the Union instead of the 14 day notice served. As a result of the Award it was determined that the abolishment involving Mr. Bastarache should have occurred on December 27, 1986 at which time Mr. Bastarache had now accumulated 93 months of C.C.S.
On January 26, 1987, Mr. Bastarache was recalled temporarily as a Moulder Helper to perform forklift duties at the Moncton Main Shops. On April 21, 1987, he was advised that his temporary position would terminate on April 24, 1987. By letter dated May 1, 1987, he was advised of the number of vacation days due as well as his weekly lay off benefit entitlement. As a result of compensated service accumulated during his work on the temporary position, Mr. Bastarache now had 96 months of C.C.S.
The Union contends that, as Mr. Bastarache had accumulated 96 months of C.C.S. at the time that his temporary position was terminated, he was now being subjected to "continuing" layoff under the terms of Article 7.2 of The Plan. The Union contends that since he was returning to his former layoff status which had been subject to the requirement of an Article 8 notice, he now qualified upon layoff from the temporary position for Employment Security as per Article 7.2 of Employment Security and Income Maintenance Plan.
The Union has progressed the dispute through the grievance procedure and the matter is now brought to the Administrative Committee for resolution of the dispute. All steps of the grievance procedure have been complied with and the grievance is properly before the Committee.
It is common ground that the Article 8 notice which was deemed by the Award of Mr. Weatherill to have been required in the circumstances was, by virtue of his Award, effectively issued on September 29, 1986. It is common ground that at that time Mr. Bastarache did not have employment security as he then had only 90 months of cumulative compensated service. If the requirements of the ESIMP had been complied with, as was effectively ordered by Mr. Weatherill, Mr. Bastarache would not have been laid off until December 27, 1986. It is agreed that he would then have had 93 months of cumulative compensated service and still would not have had employment security as provided in Article 7.1 of the ESIMP at the time of such a layoff. In the result, therefore, the grievor remained on layoff, effectively from December 27, 1986 to January 26, 1987. On that date he was recalled to work at Moncton Main Shops as a Moulder Helper, where he continued in employment until April 24, 1987 when the temporary work ceased and he was again laid off. It is common ground that at the time of his layoff on April 24, 1987, he had accumulated 96 months or eight years of cumulative compensated service.
The position of the Union is that at the time of his layoff in April of 1987, because Mr. Bastarache had achieved employment security by completing eight years of cumulative compensated service, he was protected from any further layoff by the application of Article 7 of the ESIMP which provides, in part, as follows:
7.1 Subject to the provisions of this Article, and in the application of Article 8.1 of The Plan, an employee will have Employment Security when he has complete 8 years of Cumulative Compensated Service with the Company. An employee on laid-off status on March 1, 1986 will not be entitled to Employment Security under the provisions of this Article until recalled to service.
7.2 An employee who has Employment Security under the provisions of this Article will not be subjected to layoff or continuing layoff as the result of a change introduced through the application of Article 8.1 of The Plan.
According to the Union’s interpretation the layoff inflicted on the grievor on April 24, 1987 represents a continuing layoff which had its originating cause in the Article 8 notice deemed to have been given on September 29, 1986 and which, it is not disputed was the cause of the grievor’s original layoff. The issue raised is whether the grievor, who admittedly did not have employment security at the time of the original Article 8 notice can, nevertheless, invoke the protections of employment security when a subsequent temporary recall results in his acquiring eight years of cumulative compensated service.
The dispute relates to the interpretation of the language in Article 7.2 of the ESIMP to the effect that "… an employee who has Employment Security under the provisions of this article will not be subjected to … continuing layoff as the result of a change introduced through the application of Article 8.1 of The Plan".
Article 8.1 of the ESIMP places upon the Company an obligation to provide not less than three months notice to the System General Chairman of the Union of any technological, operational or organizational change of a permanent nature that will adversely affect employees. Employment security is a right of obvious importance both to the employee who has the benefit of its protection and to the Company, which must know with as much certainty as possible what its ongoing liability will be. The employer may not know with precision which employees will ultimately receive employment security benefits, as it cannot know in advance the contingencies of early retirement, voluntary refusals to exercise seniority or relocate and elections of layoff by the employees affected. As a general matter, however, in making a business decision in respect of the implementation of a technological, operational or organizational change it is important for the Company to be able to assess the cost impact of such a change and, in doing so, make some reasonable estimate of the employees who are entitled to invoke employment security protection. If the interpretation of the Union should apply, however, the position of the Company would be substantially more uncertain. While it can look to its seniority lists to determine with precision the number of employees who will have achieved eight years of cumulative compensated service as at the effective date of an Article 8 notice, it can never know with the same certainty the number of employees who, if the Union’s interpretation is accepted, may by virtue of temporary recalls eventually acquire employment security which, if the Union is correct, can then be applied retroactively to the earlier Article 8 notice. In the Arbitrator’s view it is unlikely, absent clear language to the contrary, that the parties would have intended that the Company be placed in such a position. That conclusion casts substantial doubt on the merits of the Union’s argument.
So does the language of the Employment Security and Income Maintenance Plan. Article 8.1 of the ESIMP provides 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 System General Chairman representing such employees or such other officer as may be named, by the Union, to receive such notices. In any event, not less than three months’ 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.
The foregoing provision anticipates that the Company is to address its mind to a number of factors, including the expected number of employees who will be adversely affected by the technological, operational or organizational change to be implemented. The numbers so determined is to be related to the System General Chairman within the content of the notice itself. Secondly, the language of Article 7.1 speaks to the rights of "an employee who has Employment Security". That phrase is the first to appear in Articles 7.2, 7.3, 7.4 and 7.6, which generally describe the entitlements and obligations of employees with employment security. The status is described in the present tense which, absent any other contextual inference, must normally be taken to speak as at the time of the change introduced through the application of article 8.1 of the Employment Security and Income Maintenance Plan.
Unlike certain collective agreements, the instant agreement does not provide that seniority is forfeited after a certain period of layoff without recall. There is, in other words, an indefinite right on the part of an employee to be recalled, whether to temporary or permanent employment. Conceptually, therefore, an employee could be laid off as the grievor was, as a result of an Article 8 notice, without the benefit of employment security, and remain idle for a year or longer. Should that individual be recalled, even temporarily, after a long hiatus, if the Union’s interpretation should prevail he or she may acquire employment security and, in the event of a subsequent layoff which can be linked, however indirectly, to the Article 8 notice, can then claim immunity from any further layoff. In the Arbitrator’s view that result is neither apparent on the face of the language of the ESIMP nor implicit from its overall scheme and intention. The words "continuing layoff" appearing in article 7.2 of the Plan must be taken to mean a layoff which is ongoing as at the effective date of the Article 8 notice. In that circumstance, for example, an employee with employment security who was already laid off for reasons other than technological, operational or organizational change retains the right to assert his or her employment security, subject always to the procedural requirements of the Plan.
That, however, is not the circumstance of Mr. Bastarache. At the time of the Article 8 notice which gave rise to his initial layoff he did not have employment security. He was then actively at work, and was not in a situation of "continuing layoff" within the contemplation of article 7.2. I can find nothing in the language of the Plan that would entitle him to assert a retroactive claim to employment security attaching to that earlier notice by reason of a subsequent recall and layoff. For the reasons related above, the grievor’s newly acquired employment security would operate to his benefit, even while he was on the subsequent layoff, in the event of any further Article 8 notice which would adversely affect him. Moreover, for the purposes of clarity, his situation is plainly to be distinguished from that of an employee having employment security whose job is abolished and who is called to fill temporary duties. That circumstance does not arise in this grievance.
For the foregoing reasons the Arbitrator finds that no violation of the collective agreement or the Employment Security and Maintenance Plan is disclosed. The grievance must therefore be dismissed.
DATED at Toronto this 7th day of December, 1989.
(signed) Michel G. Picher