IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
International Association of Machinists and Aerospace Workers
RE TRANSFER OF WORK FROM SASKATOON APPLICATION OF RULE 23.25
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
A. Rosner – Executive Secretary, C.C.R.S.U.
L. Biniaris – System General Chairman, IAM & AW
There appeared on behalf of the Company:
S. A. MacDougald – Manager, Labour Relations
D. Laurendeau – System Labour Relations Officer
O. W. Cheladyn – Equipment Officer Motive Power, Edmonton
A hearing in this matter was held in Montreal on June 8, 1992.
This grievance concerns the application of a provision of the collective agreement relating to the right of employees to be transferred with their work. The Dispute and Joint Statement of Issue filed at the hearing are as follows:
Alleged violation of Rule 23.25 of Agreement 12.32 when the Company reassigned the maintenance of 25 locomotives from Saskatoon Motive Power Shop to Calder Yard Motive Power Shop Edmonton, Symington Yard Motive Power Shop Winnipeg, and Sarcee Yard Motive Power Shop Calgary.
JOINT STATEMENT OF ISSUE:
In December 1989, the Company removed twenty-five (25) GR 12 units from the Saskatoon Yard Motive Power Shop as part of its ongoing rationalization program of Equipment Maintenance activities across the System. Twelve (12) of these units were reassigned to the Calder Yard Motive Power Shop, ten (10) were reassigned to the Symington Yard Motive Power Shop, and three (3) were reassigned to Sarcee Yard Motive Power Shop.
As a result of the reassignment of the units, six (6) Machinist positions were abolished, effective March 4, 1990 at Saskatoon, Saskatchewan under the provision of Article 8.1 of the Employment Security and Income Maintenance Plan (The Plan).
The Union contends in this instance that when the Company served the Article 8.1 notice to the Union, then the choice should have been given to the employees in seniority order before the layoffs, to elect the Plan benefits in the location, area, region, or transfer with the work under the provisions of Rule 23.25 of Agreement 12.32. The Union requests that the Company apply the bulletin process and allow active and laid off employees to bid for the following positions:
1) Three (3) Machinist positions at Calder Yard Motive Power Shop;
2) Two (2) Machinist positions at Symington Yard Motive Power Shop;
3) One (1) Machinist position at Sarcee Yard Motive Power Shop.
The Company's position is that the transfer process outlined in Rule 23.25 of Agreement 12.32 applies only if the Company requires and establishes additional positions at the new location. In this case, the existing Machinist staff at these new locations was able to absorb the transferred work and no new Machinist positions were created. Since there were no new positions created at Calder, Symington or Sarcee, Rule 23.25 of Agreement 12.32 has no application.
The Company denies the Union's contention and has declined its request.
The Union's claim relates to the application of Rule 23.25 of the collective agreement, which is as follows:
23.25 When through an unusual development it becomes necessary to transfer work from a seniority terminal, Area (Division) or Region, to another seniority terminal, Area (Division) or Region, not more than a sufficient number of employees to perform such work shall, in seniority order be given the opportunity to transfer, carrying their seniority rights with them. The proper officer of the Railway and the General Chairman shall cooperate to determine the number of employees who shall transfer.
The position of the Company, as reflected in the Joint Statement of Issue, is that Rule 23.25 has no application in the instant case by reason of the fact that no new machinist positions were created as a result of the transfer of locomotive maintenance work from Saskatoon to the other locations. It maintains that the employees negatively affected at Saskatoon, who in fact number five, rather than six as originally planned (one position having been vacant at the time of the Article 8 Notice) cannot invoke the protection of Rule 23.25 where there has been no increase in the need for manpower at the location to which the work is transferred. For example, it points to Calder Yard in Edmonton which, although it received fifteen locomotives reassigned from Saskatoon, lost seventeen locomotives through contemporaneous transfers from Calder to Taschereau, MacMillan, and Symington Yards. The seventeen locomotives lost to Calder were offset by the fifteen locomotives transferred from Saskatoon, in addition to two locomotives which were transferred from The Pas. In the result, according to the Company, the workload at Calder remained unchanged, with the same number of locomotives being serviced both before and after the transfers. In the circumstances, it maintains that the provisions of Rule 23.25 can have no application.
In further support of its position, the Company stresses that to interpret Rule 23.25 as the Union suggests would be to grant bidding or displacement rights which would in effect modify the rule allowing employees in one seniority region to displace junior employees in another seniority region. This, the Company maintains, is beyond the contemplation of the wording and intention of Rule 23.25.
At the hearing the Union's representative elaborated the reasons for its concern. By being denied access to the positions at Calder, in order to protect their employment security the affected employees at Saskatoon were required to displace, in their own seniority region, junior employees at Melville, Saskatchewan and Sioux Lookout, Ontario. Meanwhile, because of attrition, a number of machinist positions had become vacant at Calder during the period between May of 1989 and May of 1990. These positions were partially filled by the transfer of a laid-off machinist from Vancouver and another, on a temporary basis, from Winnipeg. In addition, because of the introduction of cabooseless trains, the Company had a number of Mountain Region Shopcraft employees who were then on employment security status, that is to say drawing wages without any assigned work. The Company assigned those three persons to machinist apprentice positions at Calder, thereby filling the complement of vacant positions. In the result, the Union submits that it is contrary to the intention of Rule 23.25 that the five Saskatoon employees adversely affected by the Article 8 Notice (three of whom have since resigned) should be forced to exercise the less desirable option of moving to either Melville or Sioux Lookout, which they declined to do, thereby forfeiting their employment security, as a result of which they were required to take lay-off. This, it submits, is inequitable given the more favourable treatment accorded to other laid-off machinists, and those in the newly-established machinist helper positions at Calder.
The Union relies, in part, upon the decision of arbitrator Weatherill in SHP–147, which involved Canadian National Railways, Canadian Pacific Limited and the Canadian Council of Railway Shopcraft Employees and Allied Workers. That award, dated February 3, 1984, concerned the transfer of employees pursuant to the Special Agreement executed by the parties relating to the transfer of passenger related work to Via Rail. The dispute concerned a disagreement between CP and CN as to whether CP employees, whose positions were abolished, had priority access to any additional positions created as a result of the transfer of passenger related work from CP to CN or whether, as CN contended, the number of additional positions available to CP employees were subject to reduction by the placement of recalled or reassigned CN employees. Arbitrator Weatherill sustained the position of CP reasoning, in part, that, in accordance with the purpose of the Special Agreement, any additional positions were to be made available to CP employees negatively impacted by the transfer of passenger work, and that CN could not reduce the number of such available positions by first assigning them to its own laid-off employees.
While the Arbitrator is sympathetic with the motives which underlie the grievance, on the different facts of the instant case, the Union's position is not compelling. Firstly, in the Arbitrator's view, the facts at hand are to be distinguished from those which obtained in the award issued by Mr. Weatherill in SHP–147. In that case a number of CP employees were adversely affected by the transfer of certain passenger work. A Special Agreement, whose primary purpose was to mitigate the adverse impact of the transfer, specifically provided that additional positions created within CN should be made available to affected CP employees. There was, in that case, a special document, outside the general terms of the collective agreement, expressly giving access to certain designated "additional positions" to adversely impacted CP employees. By contrast, the instant case does not concern the implementation of an agreement whose terms are expressly intended to override the general terms of the collective agreement. The instant case turns on the application of one of the rules found within the collective agreement, in a context which does not disclose the same purpose as the extraordinary Special Agreement interpreted and applied in SHP–147.
The Union stresses that the instant case involves the first dispute respecting the interpretation, or application of Rule 23.25 since its inception in 1923. The Arbitrator is not provided, however, with any evidence of past practice or prior case comparisons which would be instructive to the resolution of this grievance. That may be, in part, because for many years the Company's operations were relatively stable and, insofar as maintenance operations were concerned, did not involve substantial rationalization and transfer of work. To the extent that recent years have seen a greater degree of such changes, some of which have involved the lay-off of employees, as well as the designation of some employees to employment security status, the application of Rule 23.25 may have come into sharper focus.
In the Arbitrator's view, given that the dispute in respect of Rule 23.25 is one of first impression, it would be inappropriate to interpret the provision more broadly than is necessary for the purposes of the dispute at hand.
As the case has been presented, the Union's claim is narrowed to the asserted right of the five Saskatoon employees to be placed in three positions at Calder, and two positions at Symington. As noted above, fifteen of the Saskatoon locomotives were reassigned to the Calder Yard Motive Power Shop, and ten were reassigned to the Symington Yard Motive Power Shop. However, because of the transfer of an identical number of units from Calder to other Yards, there was in fact no net increase in the number of locomotives to be serviced at Calder. And while there was an increase of seven locomotives to be serviced at Symington, there was no increase in the complement of staff at that location, as the Company determined that the existing complement of staff could absorb the transferred work.
Rule 23 of the collective agreement is a broad provision governing the seniority rights of employees. Included within its terms are provisions for the recall of laid-off employees in order of seniority, "... in the restoration of forces," as provided in Rule 23.22. Rule 23.24 specifically addresses rights of recall, which are to be administered at an employee's home seniority terminal in seniority order. It is in that context that Rule 23.25 appears, providing for the transfer of employees from one seniority terminal, area (division) or region to another. The Rule is predicated upon a transfer of work resulting through "... an unusual development" and contemplates that opportunities for transfers are to be provided in seniority order so as to provide "... not more than a sufficient number of employees to perform such work ...".
In the instant case the parties made no submissions as to whether what transpired in respect of the reduction of maintenance work at Saskatoon was "an unusual development" within the meaning of Rule 23.25. In the circumstances, the Arbitrator deems that that issue is not in dispute. I must agree, however, with the Union with respect to the nomenclature adopted by the Company's representatives in dealing with this matter. It cannot, in my view, be argued that Rule 23.25 is triggered only where there is a transfer of "positions", as suggested in the Company's letter of October 10, 1990 to the System General Chairman of the Union. It seems clear, I think, that the intention of the provision is to provide a right to a certain number of employees to follow work which can be said to have been transferred from one location to another. It is, to some extent, begging the question to assert that no employees are to be transferred as no positions have been transferred. Rather, as the Union contends, the question to be asked is whether work has been transferred.
In the Arbitrator's view it is important to draw a distinction, in the instant case, between work and the equipment which is the subject of work. Without further evidence as to past practice, the Arbitrator has some difficulty accepting the suggestion of the Union, implicit in its position, that employees have a right to follow certain locomotive units to various locations throughout the country as they are transferred from one seniority terminal, area or region to another for the purposes of ongoing maintenance. It would, for example, be out of keeping with the intention of the provision if the employees who are the subject of this grievance claimed the right to follow the locomotive units transferred to Calder, Symington, and Sarcee Yards in circumstances where an identical number of locomotives had been transferred from other yards to Saskatoon for maintenance work. Plainly it is the work, and not the equipment, which is the focus of the Rule.
Can it be said that there was a transfer of work to Calder in the circumstances at hand? I think not. Both before and after the events giving rise to this grievance Calder was the site of routine locomotive maintenance. The volume of work available at that location before and after the Article 8 Notice to the employees in Saskatoon remained the same. From the standpoint of the employees at Calder Yard, while it can be said that there has been a transfer of equipment to their location, as well as a transfer of a like amount of equipment out of their location, it cannot, in my view, be said that there has been a transfer of work in the sense contemplated by Rule 23.25.
It appears undisputed, that notwithstanding the figures revealed in the Joint Statement of Issue, in fact fifteen locomotives were reassigned to the Calder Yard Motive Power Shop and ten were reassigned to the Symington Yard Motor Power Shop. In the result, there was a net increase of seven locomotives to be serviced at Symington Yard. In that circumstance, I think it appropriate to characterize what has occurred as a transfer of work from Saskatoon to Winnipeg. The unchallenged representation of the Company, however, is that the work made available at Winnipeg was such as to be fully absorbed by the existing complement of employees at that location. The issue then becomes whether Rule 23.25 can be said to apply where the receiving location already has a sufficient number of employees to perform the transferred work. On this more difficult issue the Arbitrator has been given no guidance from the prior jurisprudence, save the Union's argument, by analogy, from the interpretation of a Special Agreement, considered in an entirely different context, as discussed above. It therefore becomes necessary to reflect on the purpose of the provision, as it appears within the general scheme of the collective agreement.
Rule 23.25 is inserted as a clear exception to the general provisions governing rights of seniority provided within Rule 23. It stands, for example, as a clear exception to Rule 23.11 which provides for the mandatory bulletining of positions when vacancies occur, when new jobs are created, or when additional staff is required, with such positions to be awarded to the senior employees at the seniority terminal where they are created. The Arbitrator cannot accept the suggestion of the Union's representative that Rule 23.25 would be devoid of meaning if the instant grievance should not succeed. It would seem that it must, at a minimum, provide protection to employees in circumstances where work is transferred, including access to vacancies or positions at the receiving location, notwithstanding the general bulletining and bidding procedures of Rule 23.
In the Arbitrator's view it is counter-intuitive, however, to conclude that the parties would have intended to confer upon employees the right to transfer to a location to which work has been transferred where, to all outward evidence, no new positions have been created. Such an extraordinary outcome should not be found without clear and unequivocal collective agreement language to support it. The Union's representative argues that employees who transfer with the work under the terms of Rule 23.25 would themselves be the subject of the exercise of seniority by other employees, and might indeed be unable to hold work, in the long term, at the new location. However, in the Arbitrator's view that prospect raises more questions than it answers, and seems at odds with the general thrust of Rule 23, which is to provide a degree of certainty in the job security rights of employees, insofar as they are governed by seniority.
The uncontroverted evidence before the Arbitrator is that no additional positions have been created, either at Calder or at Symington, among the ranks of machinists. Moreover, there is no evidence to indicate that there was a reduction of other work at Calder Yard so that maintaining the complement of employees there could be said to have concealed the assuming of additional work. As noted above, there cannot, in the circumstances disclosed, be said to have been a transfer of work to Calder. While it does appear that work was transferred from Saskatoon to Symington, the complement of employees at that location was sufficient to absorb the transferred work. In the Arbitrator's view the language of Rule 23.25 indicates a mutual intention of the parties to provide access to transferred work to employees at the location from which that work is transferred where there is a need for additional manpower at the location which receives the work. When, as in the instant case, the conditions are such that there is no need for additional employees at the receiving location to perform the transferred work, no number can be identified as "a sufficient number of employees to perform such work" within the terms of Rule 23.25.
The Arbitrator is satisfied that the parties generally intended Rule 23.25 to be available to facilitate the transfer of employees to a location to which their work has been transferred, where such transfer results in creating additional work at the receiving location and, where, as a result, a sufficient number of additional employees are needed to handle the transferred work. In the instant case the conditions for the operation of Rule 23.25 are not established. No transfer of work can be said to have occurred between Saskatoon and Calder Yard, and any transfer of work which can be said to have taken place to Symington Yard was fully absorbed by the existing complement of employees at that location.
No violation of the collective agreement having been disclosed, the grievance must therefore be dismissed.
DATED THIS DAY OF JUNE 1992.
(sgd) M. G. Picher