SHP 375

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS

RE SEVERANCE BENEFITS PURSUANT TO THE ANGUS SPECIAL AGREEMENT

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, CCRSU

A. Mancini President & Secretary Treasurer, System Council No. 7, IBF&O

A. Iacobaccio General Chairman, Montreal

B. Gascon Local Chairman, Montreal

 

 

There appeared on behalf of the Company:

J. J. Worrall Labour Relations Officer, IFS, Toronto

J. S. McLean Manager, LabourRelations, IFS, Toronto

L. G. Winslow Labour Relations Officer, Montreal

C. Thibault Employment Security Office, Montreal

K. E. Webb Observer

 

A hearing in this matter was held in Montreal on January 26, 1993.

 

AWARD

At the hearing the parties filed the following joint statement:

Dispute:

Entitlement to severance benefits of St. Luc Diesel Shop Labourers D. Racine, M. Couture, N. Lariviere and G.Meunier.

Joint Statement of Fact:

D. Racine, M. Couture, N. Lariviere, G. Meunier, requested a severance benefit as contained in Article 4 of the Special Agreement dated February 3, 1992 between the Company and the International Brotherhood of Firemen & Oilers, et al.These requests were not approved.

Joint Statement of Issue:

It is the position of the Union that the four employees are entitled to the severance benefit. It appears to the Union that junior and non-eligible employees have improperly been given the severance benefit ahead of the senior employees. Therefore, the Union requests that these four employees be given a severance benefit in accordance with their seniority rights.

The Company declines the request of the Union for four additional severance benefits inasmuch as the employees did not meet the eligibility provisions of the Special Agreement.

***

The material facts are not in dispute. On September 16, 1991 the Company issued article 8 notices under the Job Security agreement notifying the Union that effective January 3, 1992 Angus Shops would cease operations. The notification also covered other staff reductions on the former Atlantic Region. Following an arbitration award the changes were eventually initiated on February 3, 1992.

The parties negotiated a Special Agreement to minimize the adverse impact of the job reductions on employees affected by them. Article 1.2 of the agreement provides as follows:

The benefits contained in Articles 2 to 10 of this Special Agreement shall be offered to Eligible Employees who are protected by Employment Security and satisfy one of the following conditions:

· the employee's position is abolished as a result of the Atlantic Region Mechanical Reductions, or

· the employee is displaced by a senior employee where such displacement is brought about by the Atlantic Region Mechanical Reductions, or

· an employee who by accepting one of the benefits provided in Articles 2 to 10 would provide permanent employment for himself or another employee with Employment Security adversely affected by the Atlantic Region Mechanical Reductions.

It is common ground that 51 benefit opportunities became available to Angus Shops employees. The parties were agreed that the first opportunity to elect such packages would be offered to employees whose positions were abolished as a result of the reductions, that is to say employees falling under paragraph (i) of article1.2. The position of the Company is that thereafter any unused remaining opportunities would be offered to employees falling under paragraphs "(ii) and (iii)" on a seniority basis. On March 1, 1992, 28 opportunities remained available to employees on the basic seniority territory. That number was reduced to 17 following the establishment of two temporary positions at Angus Shops and 9 permanent positions at St. Luc Yard in Montreal. There were 33 applicants for the remaining benefits, including the four grievors, who sought severance benefits under article 4 of the Special Agreement.

It is common ground that pursuant to an agreement between the Union and the Company, the Company rebulletined all positions on the basic seniority territory on March 26, 1992. Employees were asked to elect one of three options: to take a working position, to assume employment security or to claim a benefit opportunity. Subsequently, the Company proceeded to award working positions, employment security designations and benefit opportunities all in seniority order. When the bidding was finally done, Messrs. Racine, Couture, Lariviere and Meunier were not included in the benefits allocation, as they did not have sufficient seniority to qualify as against the successful applicants.

The Union maintains that the Company departed from the terms of the Special Agreement by offering the remaining opportunities on a seniority basis to all employees who fell within paragraphs (ii) and (iii) of article 1.2 of the Special Agreement. It submits that the opportunities should have been exhausted first by offering them to employees who fell within paragraph (ii), and that only after that should the remaining opportunities be offered to employees falling within paragraph (iii). The four grievors fall within paragraph (ii), as they held positions as St. Luc Yard were displaced as a result of the closure of the Angus Shops.

The arbitrator cannot sustain the interpretation advanced by the Union. Firstly, there is nothing in the language of the Special Agreement which suggests that paragraphs (ii) and (iii) were to apply sequentially, although it was understood that paragraph (i) was to apply first. If anything, the general terms of the Special Agreement appear to accept the principle that opportunities were to be made available to employees on the basis of seniority. For example, where positions are concerned, articles 11.5 and 11.6 of the Special Agreement provide as follows:

The positions shall be awarded to the senior eligible employees making application in keeping with Rule 23.11.1 of the applicable Collective Agreement (Craft Agreements) and rule 6.1 of the IBF&O Collective Agreement.

If insufficient eligible employees make application for the positions advertised pursuant to Article 11.2 above, those positions remaining vacant followingthe awards made pursuant to Article 11.5 above shall be filled in seniority order by junior eligible employees remaining unassigned.

While it is true that there is nothing directly addressing the pecking orderfor available severance opportunities, it is, on the balance of probabilities, more plausible to conclude that the parties intended those benefits to be similarly available to all employees within the seniority district, on a seniority basis. That would, at a minimum, be consistent with the understanding of the parties that all positions were to be rebulletined, with bids to be received from all employees and awarded by seniority. In my view, if any contrary intention existed, it would have been expressed within the Special Agreement in clear and unequivocal language. Absent any such language, the arbitrator cannot conclude that the interpretation advanced by the Company, which is consistent with the well established principle of employees' access to benefits through seniority, is incorrect.

For the foregoing reasons the grievance must be dismissed.

DATED at Toronto this 8th day of February, 1993.

(sgd) M. G. Picher

Arbitrator