SHP – 403
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (LOCAL 100)
IN THE MATTER OF THE GRIEVANCES RE D. AUSTIN AND T. MARTIN
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Corporation:
Ken Taylor – Senior Advisor & Negotiator, Labour Relations
And on behalf of the Union:
John Moore-Gough – President, Rail Division, Local 100
Tom Wood – Staff Representative
J. Leblanc – Observer
A hearing in this matter was held in Toronto on December 1, 1995.
The Union grieves that the Company has improperly returned two persons from the ranks of management to bargaining unit positions. The nature of the dispute is outlined in the following joint statement, filed at the hearing:
The alleged violation of Rule 11.9 of the Collective Agreement No. 7, when Mr. D. Austin and Mr. T. Martin, two supervisors, were permitted to displace two machinists in Windsor, Ontario upon their release from their official or excepted positions.
Messrs. T. Martin and D. Austin were released from their supervisory positions with VIA Rail in June 1994. Neither of the individuals had sufficient seniority to permit them to exercise such seniority at their seniority terminal in Toronto, in accordance with the provisions of Rule 11.9 of Collective Agreement No. 7. The Corporation permitted these two individuals to displace two machinists in another seniority terminal on the Ontario Region.
The Union submitted a grievance stating that these two employees should not have been permitted to displace bargaining unit members in another seniority terminal. It is the Unions position that the two supervisors were unable to return to the bargaining unit and therefore their names should be removed from the seniority list(s).
It is the Corporation’s position that the two supervisors had the entitlement to exercise seniority in accordance with Rule 13.4 if they could not hold a position in the bargaining unit as a result of Rule 11.9. As such it is the Corporation’s contention that these two individuals have properly returned to the bargaining unit.
Both parties agree that this issue is properly before the arbitrator.
The facts giving rise to the dispute are not in dispute. Both Mr. T. Martin and Mr. D. Austin were hired by the Corporation as machinists at Toronto. Mr. Martin has a seniority date of January 8, 1980 while Mr. Austin has a seniority date of October 23, 1979.
Toronto became the seniority terminal for both persons, based on the foregoing dates. As machinists, Mr. Martin and Mr. Austin were originally governed by Collective Agreement No. 7 between the International Association of Machinists and Aerospace Workers and the Corporation. That agreement has now come to be administered by Local 100 of the CAW.
In April of 1987, both Messrs. Martin and Austin were promoted to permanent supervisory positions in London, Ontario. They held those positions for some seven years. However, in June of 1994, both Mr. Martin and Mr. Austin were terminated from their management positions. Their ability to return to the bargaining unit was then governed by the provisions of Rule 11.9 of Collective Agreement No. 7. That rule provides as follows:
7. Effective July 1, 1992, 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 Corporation which is excepted from any provisions of this or any 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 for a period of twelve (12) consecutive months.
Thereafter, such employee will cease to accumulate any further seniority until he returns to a position within the bargaining unit. The General Chairman shall be advised when the promotion is of a permanent nature. The period of twelve (12) consecutive months may be extended through a regional accord.
Note: In the application of this paragraph, should an employee holding a non scheduled, official or excepted position be set back to a position covered by this Collective Agreement for a period of less than forty-five (45) consecutive calendar days, such time win be considered as part of the twelve (12) consecutive months.
If released from a permanent official or excepted position, the employee must within thirty (30) calendar days after such release, either displace the junior employee in his seniority terminal or exercise his seniority to a vacancy or a newly created position at his seniority terminal; if he falls to do so his name shall be deleted from the seniority list(s). The General Chairman shall be advised. An employee temporarily promoted to official or excepted employment will within seven (7) days of release from such temporary employment, revert to the permanent position held prior to being promoted. If the permanent position held prior to being promoted has been abolished, the employee must exercise his seniority in accordance with Rule 13. The appropriate officer of the Corporation shall advise the Local Chairman of such promotions, including the expected duration thereof (emphasis added)
It is common ground that at the time of their release from their permanent management positions, neither Mr. Martin nor Mr. Austin had sufficient seniority to displace the junior employee in their seniority terminal, Toronto. It is also common ground that there were no vacant or newly established positions which they could claim.
The record discloses that, in the circumstances, the Company formed the opinion that Mr. Martin and Mr. Austin should be treated as laid off, and it therefore allowed them to exercise the displacement rights of laid off employees under Rule 13.4 which provides as follow:
13.4 An employee laid-off from his seniority terminal may:
a) Within thirty (30) calendar days displace the junior employee in his respective classification at the nearest seniority terminal, then on the region Such employee shall retain his seniority rights at his home seniority terminal and shall be subject to recall to his home seniority terminal in seniority order for vacancies of expected duration of ninety (90) calendar days or more. An employee who accepts recall to his home seniority terminal within seven (7) calendar days will return thereto within fifteen (15) calendar days from the date of his acceptance and shall forfeit his seniority in his former seniority terminal. An employee who declines to accept such recall within seven (7) calendar days shall forfeit his seniority rights at his home seniority terminal and shall retain his seniority rights at his new seniority terminal; or
Note: In the application of this Rule 13.4a), should more than one employee elect to displace at the same terminal then they shall have the right, in seniority order, to displace any of the junior employees to be affected.
b) Elect to remain on lay-off status at his home seniority terminal subject to recall at that terminal."
Mr. Martin and Mr. Austin were allowed by the Corporation to displace the junior machinists at the nearest other seniority terminal, Windsor. In the result Mr. Martin displaced machinist R. Robitaille while Mr. Austin displaced Ms. Moran, both being junior employees at the Windsor seniority terminal The junior employees were unable to hold work and were compelled to take the layoff as a result.
The Union submits that the collective agreement does not permit the Corporation to treat Mr. Martin and Mr. Austin as though they had been laid off at their home seniority terminal. It submits that their rights are closely circumscribed by the language of Rule 11.9. In the Union’s submission, the only option available to the two supervisors, upon release from their permanent management positions, was to exercise their seniority in their home 5 seniority terminal Toronto. If, as in fact occurred, they should be unable to displace any junior employee at that location, their seniority is forfeited and their names are to be removed from the seniority list. The Union argues that the two supervisors who were released cannot, therefore, be described as employees laid off from their seniority terminal, within the meaning of Article 13.4 of the collective agreement.
In support of its position, the Union points, by way of comparison, to Rule 23.27 of collective agreement 12.32, governing Canadian National Railways and certain Shopcraft employees. That rule reads almost identically to the rule in dispute in the instant case, save that it provides that the employee released from an official or accepted position "… 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; he falls to do so, he shall forfeit his seniority."
The Union submits that the language of the above provision is to be contrasted with the language of Rule 11.9 in the instant collective agreement. The individual released from a management position within CN is, according to the Union, expressly given the broader protection of being able to displace the junior employee in his seniority group or trade on the broader geographical basis of the basic seniority territory. The Union’s representative submits that that provision is to be distinguished from the language of Rule 11.9, which confines the displacement rights of the returning supervisor to the junior employee at the seniority terminal.
The Corporation asserts that upon release from their supervisory or management positions Mr. Austin and Mr. Martin reverted automatically to the status of "employees" under the terms of the collective agreement. In that capacity, the Corporation’s representative submits, they were entitled to the fullest protection of the collective agreement, absent clear language to demonstrate otherwise. In this regard, the Corporation’s representative points to the language of Rule 2.7 which provides:
2.7 The word ‘employee’ means any employee holding seniority under this Collective Agreement.
The Corporation submits that the two supervisors cannot be said to have "failed" to exercise their seniority to a vacant position or to displace the junior employee in their seniority terminal. The Corporation’s representative submits that the concept of failure in that context implies that an individual chose not to exercise a right available to him or to her. Where, as in the instant case, there were no positions to which the supervisors could exercise seniority it cannot, in the Corporation’s view, be said that they ‘failed" to exercise their seniority in the sense contemplated in Rule 11.9. In this regard, the Corporation relies on the analysis of the phrase ‘fails to report’ made by Arbitrator Bird in Re Hudson’s Bay Company, Wholesale Union, Local 580 (1985), 21 L.A.C. (3d) 407. In that case, the arbitrator rejected the concept asserted by the employer, namely that the word "failed" is to be equated with "did not". The arbitrator found that, in that circumstance, an employee did not lose his seniority for having failed to report for work when recalled from a layoff where it was established that the employee was physically incapacitated, and could not return for reasons beyond his control. Similarly, in the instant case, the Corporation submits that it cannot be said that either Mr. Martin or Mr. Austin failed to displace the junior employee at their seniority terminal in the sense that they showed themselves unwilling to do so. It is argued, on behalf of the Corporation, that it is that unwillingness, and not some incapacity, which triggers the forfeiture of an individual’s seniority.
Alternatively, the Corporation submits that the two supervisors should be deemed to have displaced the junior laid-off employee at their seniority terminal. The Employer argues that on that basis they would likewise be entitled to trigger the displacement provisions of Rule 13.4. Finally, as a further alternative, the Corporation suggests that the grievors might be treated as having been on a leave of absence for the period of their promotion to supervisory ranks. On that basis, it is argued, the individuals could assert the protection of Rule 13.8. It is submitted that at the time they would have otherwise have been laid off at their seniority terminal, but for their promotions to excepted positions, they would have had 30 days to invoke their seniority rights under Rule 13.4. However, under Rule 13.8, that time period would have been delayed until their "… return from leave of absence".
I turn to consider the merits of the dispute. At issue is the extinguishing of the seniority rights of Mr. Austin and Mr. Martin, and the related question of their ability to utilize their seniority to protect their access to gainful employment under the terms of the collective agreement. Boards of arbitration have long recognized that seniority is among the most important rights which employees can enjoy, by virtue of their service and employment under the terms of a collective agreement. The importance of seniority was perhaps best expressed by Judge Reville in the often-quoted award in Tung-Sol of Canada Ltd. (1964), 15 I-AC. 161 where the following comment was made:
Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee’s seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee’s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.
A number of arbitration awards concerning disputes relating to the return of supervisors to bargaining unit positions were thoroughly reviewed in the award of Arbitrator Hope in an unreported award between B.C. Rail and the Brotherhood of Railway Carmen dated June 7, 1985. In that case, the Union objected to a supervisor who returned to the bargaining unit and asserted seniority at his home terminal, rather than being required to displace on a system basis, which would have involved the supervisor being required to move to a distant terminal. The arbitrator concluded that the returning supervisor was properly allowed to bid on a vacancy in the home terminal and that that was so notwithstanding that other employees were laid off from that terminal.
Arbitrator Hope expressed the general proposition that absent clear language to circumscribe their rights, supervisors who hold bargaining unit seniority are entitled to the full exercise of such seniority upon their return. At pp. 18-20, Arbitrator Bird commented, as follows:
Contests between returning supervisors and bargaining unit employees lie to be resolved on the same basis as contests between bargaining unit employees themselves. That is, a returning supervisor has as much right to exercise whatever seniority rights he possesses as an employee who has remained in the bargaining unit is entitled to exercise seniority rights. Here, the language in dispute supports the interpretation that home terminal seniority is retained. In particular, where an employee leaves the bargaining unit for more than six months the language provides:
… rights and accumulated seniority under this Collective Agreement shall be ‘temporarily suspended" until such time as he returns to the bargaining unit. In such event, only the seniority accumulated while in the bargaining unit shall be taken into consideration when exercising seniority as provided in this Rule.
That language prevents the employee from continuing to accumulate seniority but does not deprive him of the seniority he has accumulated. It contemplates a right in the supervisor to exercise his seniority upon a return to the bargaining unit. Granted it does not provide in express terms for a return to the bargaining unit after the elapse of six months, but recognition of such a right arises by clear implication. To paraphrase ICN Strong Cobb, it was not intended that supervisors who elected to remain out of the bargaining unit after six months would have a continuing right to return to the unit why provide for a retention of their seniority? Clearly it was intended that they could exercise their rights if the desire or need arose.
In a later decision, Canadian Pacific Limited and Transportation Communication Division BRAC, April 10, 1973, Case No. 406, Prof. Weatherill again addressed the rights of returning supervisors. That decision, which approves the decision in CP Transport supports the position of the employer. On pp. 2 Prof. Weatherill described the facts as follows:
It is the Union’s argument that Mr. Morency was not entitled to displace any junior employee from a position he held at the time Mr. Morency sought to exercise his seniority, and that the seniority rights retained by Mr. Morency could be exercised by him only by bidding on bulletined jobs. It was shown that in fact there were jobs available for which Mr. Morency could expect to have been selected by reason of his seniority and qualifications, but clearly this consideration does not affect the question whether it was proper for the senior employee, which protected rights of seniority, to displace a junior man on his return to the bargaining unit. The issue in this case would be the same even if there had been no bulletined jobs at the material times.
Those facts are more favourable to the union than to the facts in this dispute. Here the only right asserted by Mr. Hedin is the right to exercise his accumulated seniority rights. In dismissing the grievance, Prof. Weatherill said on p.2:
While, as was observed in Case 347, an employee outside the bargaining unit should not be accorded seniority rights of greater scope than those of an employee in the unit no reason appears for reducing the value of seniority rights held by an employee who has been returned to the bargaining unit.
To apply these provisions in Mr. Morency’s case was to give effect to the seniority rights which he had retained. Not to have applied these provisions would have reduced his seniority rights. I am unable to conclude that there was any violation of the collective agreement in what was done.
In that decision, Prof. Weatherill saw supervisory employees who had been removed from their positions as being in a position analogous to bargaining unit employees placed on layoff. It was his view that such employees could invoke their seniority rights to not only compete on bulletins (a right conceded by the union in that case) but to invoke bumping privileges available to displaced employees under the agreement.
In the arbitrator’s view, provisions such as those found in Rule 11.9 must of necessity, be read within the context in which they appear and should, insofar as possible, be reconciled with other provisions of the collective agreement, unless the language of the Rule does not admit of such a possibility. Rule 11.9 is obviously of critical importance to persons who accept promotion, whether temporary or permanent, into management ranks. It clearly provides for the preservation of their seniority rights, as well as the continued accumulation of those rights for a period of not less than 12 consecutive months.
The arbitrator must agree with the Union, in part, in its characterization of the operation of the first part of the fourth paragraph of Rule 11.9 which reads:
If released from a permanent official or excepted position, the employee must within thirty (30) calendar days after such release, either displace the junior employee in his seniority terminal or exercise his seniority to a vacancy or a newly created position at his seniority terminal; if he fails to do so his name shall be deleted from the seniority list(s)
I agree that the foregoing language speaks to the first step which an employee must take when returning to his or her status as an employee in the bargaining unit. The provision establishes to a time limit within which the returning employee must elect to displace a junior employee in his or her seniority terminal or to exercise his or her seniority to a vacancy or a new position at the same location. I agree that the provision defines the first possible point of re-entry, and the time period during which the employee must act. I cannot agree, however, that the parties intended by the above language to suggest that the returning supervisors seniority and, by implication, his or her entire job security, is forfeited in circumstances where his or her seniority does not obtain him or her a position at his or her seniority terminal, and where no vacancy exists at that location.
In my view, the provisions of the fourth paragraph must be understood within the general scheme of the collective agreement. In that regard, it is used to reflect on the language governing the return to the bargaining unit of an employee temporarily promoted to a management position. The parties clearly contemplate that a person in that circumstance is to return to the position which he or she left behind. Should that position be abolished, however, the individual is given the fullest protection of the exercise of seniority pursuant to Rule 13. In other words, a temporary employee who finds himself or herself unable to return to his or her original terminal position can revert to the full use of seniority, either locally or regionally, in accordance with the provisions of Rule 13. Bearing in mind that in some circumstances temporary promotions can be for relatively lengthy periods of time, on what basis can it be concluded that the parties would have intended persons temporarily promoted to management positions to have greater protections in respect of the exercise of their seniority than individuals who are permanently promoted to positions outside the bargaining unit? In my opinion, bearing in mind the principles expressed in Tung-Sol it would require clear and unequivocal language to suggest that such a distinction was agreed and intended.
In the arbitrator’s view, it is not reasonable to characterize the circumstances of the grievors as a ‘failure’ to exercise their seniority rights to claim positions at their seniority terminal within the 30-calendar day period described in Rule 11.9. The language of the provision contemplates that if an employee fails to displace another employee in a seniority terminal or exercise his or her seniority as described, within the time delay contemplated, he or she is to lose his or her seniority. Failure in that sense must be taken to mean neglect or inaction on the part of the individual. It does not in my view, speak to the circumstance of an employee whose seniority is insufficient to displace an employee in his or her seniority terminal, or to the circumstance in which there are no vacant or new positions to which he or she can bid on the basis of his seniority.
The position argued by the Union in the instant case is tantamount to saying that while Mr. Martin and Mr. Austin preserved seniority under the terms of article 11.9, the seniority rights which they retained are second class or inferior to the seniority rights of other bargaining unit employees who might find themselves laid off or otherwise deprived of employment. In my view, the flaw in the Union’s argument is the suggestion that the provisions of the fourth paragraph of Rule 11.9 are the only means by which the employees can return to the bargaining unit. It is more correct to say, and critical to appreciate, that in fact the employees in question never left the bargaining unit, at least from the standpoint of their seniority status. While it is clear that they could not exercise their seniority rights at any time they held a position outside the bargaining unit, upon release from their excepted positions, they must be deemed to be employees in the bargaining unit with seniority rights, to be exercised of course in accordance with the terms of the collective agreement. As noted by Mr. Weatherill in that circumstance, there appears to be no reason for reducing the value of seniority rights held by an employee who has been returned to the bargaining unit.
Clearly, if Mr. Austin and Mr. Martin had held sufficient bargaining unit seniority to displaced into positions at their seniority terminal - and failed to do so within the time limits and in the manner contemplated in Rule 11.9, their seniority would have been forfeited. That is not what transpired, however, as they did not have sufficient seniority to hold positions at their seniority terminal. There is nothing in the language of the collective agreement before me to suggest that in keeping with the comments of arbitrators Weatherill and Hope, that Messrs. Austin and Martin should not have been able to exercise their seniority in the same manner as any other employee who holds seniority and who is effectively laid off from his or her seniority terminal. In the result the arbitrator is satisfied that the Corporation is correct in its characterization of the circumstances of Mr. Austin and Mr. Martin. Once it was clear that they could not hold work in any bargaining unit position at their seniority terminal after their release from supervisory ranks, they were effectively laid off from their seniority terminal. As employees with the benefits of unqualified seniority, they were then entitled to exercise their seniority as laid-off employees under the provisions of Rule 13.4.
For all of the foregoing reasons, the arbitrator is satisfied that the Corporation correctly applied the provisions of the collective agreement in respect of the treatment of Mr. Austin and Mr. Martin. As long standing dues-paying members of the Union, with seniority rights expressly preserved by the collective agreement, they are entitled to the full exercise of those rights, absent any clear and unequivocal language to suggest that they are not. No such language appears in the agreement in the case at hand. As appears from the material before me, both employees made every effort to secure work at their seniority terminal within the time period stipulated in Rule 11.9. Being unsuccessful in that regard, they effectively became employees laid off from their seniority. terminal, with the right to displace junior employees at the nearest seniority terminal in accordance with the provisions of Rule 13.4. In these circumstances, therefore, no violation of the collective agreement is disclosed.
For the foregoing reasons, the grievance must be dismissed.
DATED at Toronto this 20th day of December, 1995.
(signed) MICHEL G. PICHER