SHP 326

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

GRIEVANCE RE LAYOFF AT HALIFAX MOTIVE POWER SHOP

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

L. Biniaris System General Chairman, IAM & AW

 

 

There appeared on behalf of the Company:

L. F. Caron System Labour Relations Officer, Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

P. N. Nicholson Coordinator, Special Projects, Montreal

J. R. Ivany Program Supervisor Operations, Moncton

 

A hearing in this matter was held in Montreal on November 1, 1990.

 

AWARD

At the hearing the parties filed the following Statement of Dispute and Joint Statement of Issue:

Dispute

Alleged violation of Rule 23.15 of Agreement 12.32 concerning the layoff of 13 Machinists at Halifax, N.S., effective November 11, 1988.

Joint Statement of Issue

On November 13, 1988, as a result of the transfer of passenger related work from the Company to VIA Rail Canada Inc., the Company laid off the 13 most junior Machinists holding assigned positions at its Fairview Motive Power Shop in Halifax, N.S.

At the time of the layoffs, there were Machinists on Employment Security status at Halifax Motive Power Shop who were junior to the 13 Machinists laid off.

The Union maintains that in laying off the 13 Machinists in question, the Company violated Rule 23.15 of Agreement 12.32. The Union submits that the Company ought to have laid off instead the 13 most junior Machinists in the terminal (who were among those on Employment Security status at the time), while the 13 grievors ought to have remained in active service on Employment Security status. The Union requests a ruling to this effect and that the grievors be made whole for any losses incurred.

The Company has denied the Union's contentions and declined its request.

***

The facts giving rise to this grievance were considered at length in Shopcraft Case No. 313. In that case it was found that the grievors in the instant case, who had been required to exercise their seniority to move from Moncton to Halifax on the closing of the Moncton Main Shops in 1986, were properly the subject of an article J notice in respect of the transfer of Shopcraft work from CN to VIA on November 11, 1988. It was there found that the elimination of certain passenger related maintenance work at Halifax did not constitute an operational or organizational change within the meaning of article 8 of the ESIMA.

The instant grievance concerns the claim of the grievors that the Company violated the rule 23.15 of the collective agreement by failing to allow them to displace junior machinists who were on employment security status at Halifax at the time the grievors were laid off. To put it more precisely, the position of the Union is that the junior machinists on employment status should have been laid off and the grievors permitted to assume their positions on employment security status.

In Shopcraft Case No. 286 extensive consideration was given to the claim of the same union that employees impacted by an article 8 notice at Moncton should be entitled to displace junior employees at that location who were on employment security status, rather than exercise their seniority to move to another location. That claim was rejected, with the following observations being made at pp 18-19:

In the Arbitrator's view the provisions of the ESIMP, as well as of the collective agreement reviewed above are generally more consistent with the concept of displacement advanced by the Company, than with the position of the Union. Employees in the position of the nine junior employees at Moncton, albeit they enjoy employment security protection, do not hold jobs or positions as those terms are understood within the collective agreement. They have no assigned shift, department or supervisor and cannot point to any set of qualifications, job description or other bundle of regular obligations associated with a job or position. By all practical standards they are persons without a job who have an obligation to perform such odd assignments as may present themselves from time to time, and who must abide by the rules of the Employment Security and Income Maintenance Plan, who nevertheless continue to receive full wages and benefits. They are, needless to say, in that unique position because they do not have sufficient seniority to displace into an active bargaining unit position.

That would remain the case even if they were notionally "displaced" by the grievors in this case. The effect would be that twice as many employees at Moncton would assume employment security status. The curious result would be that the grievors, who have the seniority to claim positions outside Moncton in accordance with Rule 23, will not be required to do so, and will remain inactive at their home terminal. That, in the Arbitrator's view, is not what is contemplated either by the Employment Security and Income Maintenance Plan or, by extension, the provisions of Rule 23 of the collective agreement.

The underlying expectation of these documents is that, in keeping with generally accepted practice under Canadian collective, agreements, senior employees are provided the opportunity to remain in active employment longer than their junior counterparts, and that in exchange for that right they are under an obligation to exercise their seniority rights in respect of a widening circle of positions or vacancies for which they are qualified. As the provisions above reflect, qualification is an important component in the displacement process under the collective agreement and the ESIMP. Needless to say, qualification has little bearing on the displacement of persons who are themselves performing no regularly assigned work.

On the whole, while the Arbitrator may understand the concerns which motivate the grievance, the more compelling conclusion is that employees who assume employment security status by reason of the abolition of their regular positions are not employees who can be displaced within the meaning of Article 7 of the Employment Security Income Maintenance Plan or of Rule 23 of the collective agreement. Any perceived anomalies which may result from the application of these provisions are subject to correction through bargaining and not through grievance arbitration.

Like the junior employees they displaced, the grievors have employment security. That gives them protection against layoff in the event of an operational or organizational change within the meaning of the ESIMA. It does not, however, render them immune to layoff from scheduled jobs for other reasons, including a decline in business or the application of an article J notice under the Special Agreement. Without minimizing the hardship on the individuals concerned, what has transpired is that they availed themselves of their rights and met their obligations under the ESIMA to move from Moncton to Halifax, where they assumed active positions. Some two years later, their jobs were abolished in circumstances against which their employment security cannot protect them. While it may seem anomalous that junior employees who lost their regular active positions because of an earlier operational or organizational change retain the advantages of employment security, while the grievors face layoff, that is the result of the bargain which the parties have made. To conclude otherwise would be to effectively convert a notice properly given under article J of the Special Agreement into the equivalent of a notice under article 8 of the ESIMA, contrary to the express finding in the Shopcraft Case 313, and the intention of the parties.

From a logical standpoint, the suggestion of the Union that the junior employees who are on employment security status should be the first laid off under the terms of rule 23.15 is arguable. However, the conceptual leap whereby the grievors, who are the subject of an article J notice, can move into their positions, or to put it differently, now invoke their own employment security protection, is nowhere supported by the language of the collective agreement or of the ESIMA.

For the foregoing reasons the grievance must be denied.

DATED at Toronto this 9th day of November, 1990.

(sgd) M. G. Picher

Arbitrator