SHP 373

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

International Association of Machinists and Aerospace Workers

GRIEVANCE RE EMPLOYMENT SECURITY CLAIM OF A.M. BRUNT, HALIFAX

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

L. Biniaris System General Chairman, IAM

A. Brunt Grievor

 

 

There appeared on behalf of the Company:

S. A. MacDougald Manager Labour Relations, Montreal

D. Laurendeau System Labour Relations Officer, Montreal

J. Ivany Coordinator Projects - Operations, Moncton

L. F. Caron System Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on December 21, 1992.

 

AWARD

This is the arbitration of a grievance in respect of the entitlement of Machinist Anthony Brunt to the protections of the Employment Security and Income Maintenance Plan (ESIMP) negotiated between the parties. The Company abolished the supervisor's position which Mr. Brunt held, effective June 30, 1991. The Union submits that in the circumstances he is entitled to return to the ranks of the machinists, and to have the protection of employment security under Article 7.2 of the ESIMP. The Company maintains that Mr. Brunt held a permanent supervisory position at the time of his layoff, and is therefore not entitled to claim employment security benefits. The Union disputes the grievor's status as a "permanent" supervisor and argues, whether he was temporary or permanent in his supervisory position, he is nevertheless entitled to resume his status as a bargaining unit employee with the protections of employment security.

At the hearing the Arbitrator heard preliminary submissions with respect to the Statement of Issue. The Union sought leave to amend the Joint Statement of Issue filed, as it was not in agreement with a reference in the statement which indicated that the grievor held a permanent position. The Company did not agree with the requested change, although its representative took no issue with the jurisdiction of the Arbitrator to allow the Union to file an ex parte statement.

Article 29.4 of collective agreement 12.32, which governs the arbitration of disputes under the ESIMP, reads as follows:

A Joint Statement of Issue containing the facts of the dispute and reference to the specific provision or provisions of the Collective Agreement allegedly violated, shall be jointly submitted to the Arbitrator in advance of the date of the hearing. In the event the parties cannot agree upon such Joint Statement of Issue, each party shall submit a separate statement to the Arbitrator in advance of the date of the hearing and shall at the same time give a copy of such statement to the other party.

On the material before me, I am satisfied that, as at the date of the hearing, the parties are not agreed on a joint statement of facts, although the portion relating to the Joint Statement of Issue does not appear to be in dispute. It has long been the practice of the parties to append a joint statement of facts to the Joint Statement of Issue as a means of narrowing the issues in dispute and limiting the points upon which it might be necessary to call evidence. There is nothing, however, in the collective agreement to support the suggestion that when one party has made an error, in good faith, in the execution of a joint statement of facts, that it cannot seek correction of that error prior to or at the commencement of the arbitration hearing. While the Joint Statement of Issue and joint statement of facts are a procedural device developed by the parties to expedite the hearing of a grievance, they are not intended to be so rigidly applied as to defeat the substantive rights of either party by a technical irregularity. A board of arbitration constituted under the Canada Labour Code is, subject to the terms of the collective agreement, charged with following a fair and liberal procedure which will allow the parties the fullest opportunity to explore the substance of their claim with respect to the alleged violation of the terms of a collective agreement. Absent clear language in a collective agreement to the contrary, undue rigidity in the interpretation or application of grievance documents is to be avoided (see, Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, (1975) 8 O.R. (2d) 104 (Ont.C.A.) at p108).

In the circumstances, the Arbitrator ruled at the hearing that the amended statement of facts proposed to be tabled by the Union should be accepted as a separate or ex parte statement, in compliance with article 29.4 of the collective agreement. I am satisfied that the requirement to provide a copy of the separate statement to the Arbitrator was satisfied since it was provided to me in advance of the hearing, on December 19, 1992, with a copy to the Company. In the circumstances, therefore, it is appropriate to treat the original Joint Statement of Facts as the separate statement of the Company, and to accept the amended statement, as tendered by the Union, as its own separate statement for the purposes of this dispute.

The Statement of Issue and Statement of Facts filed by the Union at the hearing reads as follows:

Statement of Issue:

Alleged violation Article 7.2 of the Employment Security and Income Maintenance Plan (The Plan) when Mr. Brunt of Halifax, N.S., was not allowed the benefits of Employment Security status when he reverted back to the unionized ranks on July 1, 1991 from his management position of Supervisor.

Statement of Facts:

Mr. Brunt had been working as a "set-up" Foreman Motive Power, since March 10, 1985. On September 8, 1988, Mr. Brunt was displaced from his permanent position of Machinist at Halifax Motive Power Shop by Machinist G. Gartside of Moncton Gordon Yard.

That day, Mr. Brunt signed an Employment Security Election form. By doing so he indicated that he wished to take advantage of the benefits afforded by Article 7 of The Plan and agreed to be considered for employment, for which he had the adaptability and suitability, which was or could be available within the Company, as outlined in Paragraphs 7.3, 7.4, 7.5 and 7.6 of the Plan. The form was witnessed by Thomas W. Hobbs, Machinist Shop Steward at Halifax.

However, Mr. Brunt continued to work as a "set-up" Foreman until November 26, 1988 when he accepted the position of Supervisor Motive Power left vacant by the retirement of Supervisor P. MacPherson.

On November 21, 1990, due to administrative reductions, Mr. Brunt was advised that his position of Supervisor would be abolished effective June 30, 1991. During the meeting, the Company's Management Separation Plan as well as Mr. Brunt's option to return to the unionized ranks were explained to him. This was later confirmed to Mr. Brunt in a letter dated November 22, 1990 signed by C.E. Trueman, Superintendent Car, Moncton.

Mr. Brunt opted to return to the unionized ranks and was subsequently laid off on July 1, 1991 because he had insufficient seniority to displace onto a Machinist position. Upon his return to the unionized ranks Mr. Brunt was given his management separation lump sum payment on July 16, 1991.

The Union contends that Mr. Brunt, having fulfilled all the requirements as per article 7.3 and 7.4 of The Plan, retained throughout his Employment Security entitlement. Accordingly, he was not subject to layoff pursuant to Article 7.2 upon the completion of his supervisory assignment. The Union requests a ruling to this effect, reinstatement of Mr. Brunt to active service and full compensation for any losses incurred as of July 1, 1991.

The Company disagrees with the Union's contention and has declined its request.

***

For the purposes of clarity, it should be noted that the only difference between the statement of the Company and that of the Union is the use of the word "permanent" in the Company's version, appearing immediately before the phrase "position of supervisor" in the second line of the fourth paragraph of the Statement of Facts.

Many of the facts are not in dispute. The grievor was first hired as an apprentice machinist at Halifax in November of 1976. He was promoted to the rank of machinist in October of 1980 and, effective March 10, 1985, he was temporarily promoted to a position of relief foreman in the Motive Power Shop in Halifax. Mr. Brunt continued to work in the capacity of a foreman, in an excepted position outside the bargaining unit, from that date until his layoff, effective June 30, 1991.

On July 8, 1988 the company abolished 43 machinists' positions and transferred 25 others, as a result of the closure of the Moncton Main Shops. This caused Moncton based machinists to exercise their seniority against machinist positions in the Halifax Motive Power shop. On September 8, 1988, while he was working in the excepted position of temporary supervisor, Mr. Brunt lost his permanent machinist position in the Motive Power Shop to Machinist G. Gartside, who displaced from the Gordon Yard in Moncton pursuant to the Article 8 notice effecting operations at that location.

At the material time Mr. Brunt had completed more than eight years of cumulative compensated service with the Company, and therefore had the protection of employment security under Article 7.1 of the ESIMP. Article 7 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 completed 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.

...

7.4 An employee who has Employment Security under the provisions of this Article, and is unable to hold a position on his basic seniority territory under Article 7.3 above and who does not elect to displace a junior employee or fill a vacancy on the region in accordance with the junior employee or fill a vacancy on the region in accordance with the terms of his Collective Agreement, will then be required to exercise the following options provided he is qualified or can be qualified in a reasonable period of time to fill the position involved:

(a) fill an unfilled permanent vacancy within the jurisdiction of another seniority group and the same Collective Agreement, initially at the seniority terminal, then on the basic seniority;

(b) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group within another Collective Agreement and the same Union, initially at the seniority terminal, then on the basic seniority territory;

(c) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group belonging to another signatory Union, initially at the seniority terminal, then on the basic seniority territory;

(d) there being none, fill on a voluntary basis, an unfilled permanent vacancy within the jurisdiction of another seniority group belonging to a non-signatory Union, initially at the seniority terminal, then on the basic seniority territory.

NOTE: In this eventuality, the Company reaffirms its established policy of making such positions available to the affected employee.

(e) there being none, or if the employee decides not to fill a position under (d) above, fill an unfilled permanent vacancy in a position which is not covered by a collective agreement, initially at the seniority terminal, then on the basic seniority territory.

[emphasis added]

Upon being displaced from his permanent bargaining unit position on September 8, 1988, Mr. Brunt signed an Employment Security Election form, making the following declaration:

I wish to take advantage of the benefits afforded by Article 7 (Employment Security) of the Employment Security & Income Maintenance Agreement dated 1 March 1986, and agree to henceforth be considered for any employment, for which I have the adaptability and suitability, that is or may be available within the Company, as outlined in Paragraphs 7.3, 7.4(a), (b), (c), (d), (e), (f) and (g), 7.5 and 7.6.

It is understood that consideration for such alternate employment within the Company presupposes that I am qualified or that I could be qualified in a reasonable period of time to perform the tasks of the position involved. The Company will be the judge as to such qualifications.

It is common ground that the election made by Mr. Brunt made no difference to his immediate practical circumstances. He continued, without interruption, to work as a relief Supervisor, as he had done for some three years previous.

The next event of note occurred on November 1, 1988. Prior to that date the Motive Power Shop had been heavily involved in the servicing of equipment owned and operated by VIA Rail. VIA Rail then established its own service facility, thereby occasioning a reduction in the volume of work at Halifax and a corresponding reduction in the ranks of machinists. It is common ground that a number of machinists at Halifax were given the opportunity to transfer to positions in the new maintenance facility of VIA Rail. On or about November 1, 1988 Mr. Brunt was involved in a meeting with VIA Rail staff to obtain information as to how he and other employees would be given the opportunity to bid machinists' position at the new VIA Rail facility. In a letter to his System General Chairman, dated April 22, 1991, Mr. Brunt describes what transpired on that day in the following terms:

On November 1, 1988 I was attending a meeting with VIA Rail officials in anticipation of bidding a machinist position at their new maintenance facility. I was taken from this meeting to meet with Mr. C. Cormier, Mr. J. Ivany and Mr. W. Agnew. At this meeting I was told that supervisor P. MacPherson was leaving the railway on or about Nov. 10 and that I could fill this position. In the belief that I was obliged to accept a position for which I was qualified or forfeit my E.S., as stated in article 7.6, and, that I was in some way helping the railway during a difficult time, I agreed to fill the vacant position. That was the end of the conversation. There was no indication of any changes anticipated in my rights or obligations as they pertained to the E.S. agreement. Given that no changes in the rights or obligations held by me under the E.S. agreement were posited at this meeting, and that I have since signed no document relinquishing any rights I would quite naturally expect that no changes have taken place. If, at any time, it had been demonstrated that I was jeopardizing my E.S. by filling this position I would have declined this and any other offers made.

The first issue to be resolved is whether Mr. Brunt occupied a permanent supervisory position following his encounter with Mr. Cormier, Mr. Ivany and Mr. Agnew on November 1, 1988. The Company does not dispute that if Mr. Brunt remained a temporary supervisor, he would not forfeit his employment security protections, and would be entitled to revert to them at such time as his supervisory assignment terminated. If, as Mr. Brunt maintains, he did not assume a permanent supervisory position, it is unnecessary to deal with the alternative submission of the Union which holds that even as a permanent supervisor, the grievor would be entitled to resume his employment security protection.

The final point of fact, which is not in dispute, is that the grievor was advised on November 21, 1990 that his supervisory position was to be abolished effective June 30, 1991. The position was duly abolished and, as indicated in the Union's Statement of Issue, Mr. Brunt had insufficient seniority to obtain a machinist's position in the bargaining unit and was laid off, receiving the payment of a management separation lump sum.

It is, needless to say, important for the status of an employee who is entitled to rights under the terms of the collective agreement, or of an ESIMP, be clear and unequivocal. It is for that reason, in part, that the parties' collective agreement and the ESIMP, establish various processes of notices and bulletins for bargaining unit positions. While less formality may attach to employees filling temporary vacancies of short duration, as under Rule 23 of the collective agreement, permanent and longer term temporary positions involve some degree of bulletining and documentation.

The Union directs the arbitrator to rule 23.27 of the collective agreement which deals with the promotion of employees to "official or excepted" positions, which provides as follows:

An employee holding seniority under this Agreement and who is presently filling or who may in the future be promoted to an official or any position with the Railway which is excepted from any provision of this or any other Collective Agreement, will have his name continued on the seniority list of the group from which promoted at his home seniority terminal and will retain seniority rights and continue to accumulate seniority while so employed. The General Chairman shall be advised.

If released from such official or excepted position, the employee must within 30 days after such release, either displace the junior employee in his seniority group on his basic seniority territory or exercise his seniority to a vacancy or a newly created position at his home seniority terminal; if he fails to do so he shall forfeit his seniority. The General Chairman shall be advised.

An employee temporarily promoted to an official or excepted position will, within 7 calendar days of release from such temporary employment, exercise his seniority in his craft at his home seniority terminal. The appropriate officer of the Company shall advise the local representative of such promotions, including the expected duration thereof.

The Union representative submits that the notice requirement of the above Rule applies to all promotions, and stresses that in the case at hand no such notice was given to the Union with respect to the purported promotion of Mr. Brunt to a permanent supervisor's position.

The arbitrator finds the Union's submission to be compelling. It is, I think, understandable that the parties would have intended that the Union should be advised of any promotion whereby a member leaves the bargaining unit conclusively. I am satisfied that the rule must be taken to refer to all promotions described within it, and that if a promotion is to be of permanent duration, the Union is to be so advised.

What, then, does the evidence in the instant case disclose? It is common ground that for several years, commencing in early 1985, Mr. Brunt worked entirely in supervisory positions. His status was clearly that of a person temporarily assigned to fill vacancies as they arose. As indicated in his letter of April 22, 1991, on November 1, 1988 Mr. Brunt was advised of the resignation of Supervisor P. MacPherson, and was offered the opportunity to fill the vacancy which his departure would cause. The material before the Arbitrator confirms that the change caused no significant alteration in Mr. Brunt's day-to-day activities, as he continued to cover off various supervisory tasks, as he had done in the past. No written notice was provided to the Union, or for that matter, to Mr. Brunt, confirming that he was thenceforth occupying a permanent supervisor's position.

The evidence of the witnesses given at the Arbitration hearing, with respect to what transpired at the meeting of November 1, 1988, causes some concern as to the clarity of what transpired. Mr. Brunt's testimony, which the Arbitrator accepts as being given honestly and in good faith, is that he "... had no reason to believe that I was going to a permanent job". Mr. J. Ivany, who was Acting General Foreman in Halifax offers little in his evidence to dispel the uncertainty. In his testimony, he confirms that for some three and a half years prior to the meeting of November 1, 1988 Mr. Brunt had been temporarily staffed into "permanent positions", primarily replacing a Mr. Adams, who left his position and ultimately never returned. He confirms that following the events of November of 1988, Mr. Brunt experienced no change in his routine and continued to do the same work as when he had been replacing Mr. Adams. Significantly, in the Arbitrator's view, when asked in cross-examination by the Union's representative, whether there had been any discussion, at the meeting of November 1, 1988 as to whether the assignment that Mr. Brunt would assume was permanent or temporary, Mr. Ivany replied, "I can't say those words came up. It was brief". The Company tendered no documentary evidence, in the form of a memorandum, letter or otherwise which would confirm that the grievor knowingly forfeited his status as a bargaining unit employee on or about November 1, 1988, to assume a permanent supervisory position.

On the whole of the evidence, the Arbitrator is not satisfied that the Company has established that Mr. Brunt agreed to surrender his bargaining unit status, or that he knowingly agreed to assume a supervisory position which was permanent and substantially different from the relief supervisory position he had occupied for several years prior to November 1, 1988. On an objective view of the evidence, the more plausible conclusion is that he was offered yet another supervisory vacancy, for the time being, with no clear indication or understanding that in assuming that position he was abandoning employment security rights under the collective agreement (assuming, without finding, that taking a permanent supervisory position would have that result). On the whole, the Arbitrator accepts the evidence of Mr. Brunt that he was not given to understand that he was assuming the status of a permanent supervisor, or that his position and assignment was any different than it had been for several years prior. In the result, notwithstanding the contrary thought or intention held in good faith by the Company's supervisors, the Arbitrator must conclude that Mr. Brunt remained, for the purposes of the collective agreement, and of the ESIMP, a temporary supervisor in the Motive Power Shop at Halifax, and was, on that basis, entitled to revert to the protections of the ESIMP upon the termination of his assignment effective June 30, 1991.

The Arbitrator has some initial difficulty with the alternative argument put forward by the Union, namely, that even as a permanent supervisor Mr. Brunt would be entitled to return to his Employment Security status. That position would appear to implicitly advantage a supervisor over a bargaining unit employee if both had been initially displaced into their respective jobs by an operational or organizational change and both subsequently lost their positions as a result of general economic conditions. However, it is unnecessary to resolve that issue conclusively for the purposes of this grievance. Given the position of the Company, that a temporary supervisor is entitled to revert his or her employment security status, and the Arbitrator's finding that Mr. Brunt was at all material times a temporary supervisor, the grievance must be allowed.

The Arbitrator finds and declares that as of November 1, 1988, Mr. Brunt remained at all material times a temporary supervisor, and was entitled to the protections of the ESIMP upon the abolishment of his supervisory position, effective June 30, 1991. The Company is directed to compensate the grievor for all wages and benefits lost with due allowance for the separation payments and any other benefits paid to him. I retain jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this Award.

DATED at Toronto this 5th day of January, 1993.

(sgd) M. G. Picher

Arbitrator