SHP 408

IN THE MATTER OF AN ARBITRATION

BETWEEN:

ONTARIO NORTHLAND

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS OF CANADA (CAW-CANADA), LOCAL 103

(The "Union")

GRIEVANCE RE EMPLOYMENT SECURITY AND INCOME MAINTENANCE AGREEMENT

 

 

SOLE ARBITRATOR: Michel G. Picher

 

 

There appeared on behalf of the Company:

Mike Restoule Labour Relations Assistant

Tom Burton Chief Mechanical Officer

 

 

And on behalf of the Union:

Brian E. Stevens President

Andrew A. Mitchell Committeeperson

Brian Kelly Chief Steward

John Lunnin Committeeperson

 

 

 

A hearing in this matter was held in Toronto on June 3, 1996.

 

AWARD

This arbitration concerns a dispute between the parties with respect to the entitlement of certain shopcraft employees to employment security benefits. The dispute and joint statement of fact and issue, filed at the hearing, succinctly outline the matter to be resolved and read as follows:

DISPUTE:

Claim by G. Peever, A. Gravel, G. Pratt and G. Woolings for Employment Security payments and benefits following the closure of the Englehart Mechanical Shops, effective May 27,1996.

JOINT STATEMENT OF FACT AND ISSUE:

On February 14,1996 the company issued an Article 8 Notice to the union indicating its intent to discontinue servicing and maintenance of equipment at Englehart, Ontario. Due to the operational changes, all but one carman position will, as of May 27,1996, be eliminated.

The union contends that in the application of the seniority provision of the Employment Security and Income Maintenance Agreement, the four employees formerly represented by the IBF&0 have fulfilled their obligation to exercise their maximum seniority and are still unable to hold a position and therefore are entitled to Employment Security payments and benefits.

The company contends that these four employees are obligated to accept permanent vacancies at the North Bay terminal and failing to do so, lose their Employment Security but are nonetheless eligible for other benefits under the Plan.

A brief review of the history of collective bargaining within the present bargaining unit is necessary to an appreciation of the positions of the parties in this grievance. The employees who are the subject of the dispute were previously represented by the International Brotherhood of Firemen and Oilers (IBF&O). Pursuant to an application under Section 18 of the Canada Labour Code made by the Company, the Canada Labour Relations Board issued a decision, dated November 29,1995, whereby the CAW Canada became the bargaining agent for a consolidated unit which includes employees formerly represented by the IBF&O. Since that time, the Union has continued to administer the collective agreement of the prior unions, including the IBF&O. The employment security and income maintenance agreement negotiated by a number of unions, including the IBF&O and the CAW continues in force, although the CAW Canada now represents the employees covered by the terms of the IBF&O collective agreement.

[page 2]

On or about February,1996, the Company issued a notice under Article 8 of the ESIMA informing the Union of the planned closing of the mechanical shops in Englehart Ontario. What transpired was clearly an operational or organizational change upon the initiative of the Company, resulting in the abolishing of the positions of eight carmen, one electrician, three machinists and four engine attendants. As indicated above, this dispute has developed by reason of the disagreement of the parties with respect to the employment security obligations of the engine attendants, all of whom are covered by the former IBF&O collective agreement. The Union takes the position that in order to protect their entitlement to employment security benefits they are not obligated to exercise their seniority beyond the terminal of Englehart. The Company, on the other hand, submits that under the ESIMA they must protect work by filling available vacancies at other terminals on the system. The Union relies upon a strict reading of the seniority provisions of the IBF&0 collective agreement. The Company, on the other hands, relies on the terms of the ESIMA together with the practice applied in its previous administration.

[page 3]

Rule 19 of the collective agreement provides, in part, as follows:

19.2 Basic seniority territory shall be the railway system, except that employees represented by the I.B. of F. & 0. will have their seniority confined to the terminal at which employed.

The pertinent provisions of the ESIMA are as follows:

ARTICLE 7 Employment Security

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/she has completed 8 years of Cumulative Compensated Service with the Company.

7.2 An employee who has Employment Security under the provisions of this Article will not be subjected to layoff as the result of a change issued pursuant to Article 8.1 of The Plan.

7.3 An employee who has Employment Security under the provisions of this Article and who is affected by a notice of change issued pursuant to Article 8.1 of The Plan, will be required to exercise his/her maximum seniority right(s), e.g., location and system, in accordance with the terms of the collective agreement applicable to the employee who has Employment Security.

7.4 An employee who has Employment Security under the provisions of this Article and is unable to hold a position on his/her seniority district e.g., at a location and system, will be required to exercise the following options provided he/she is qualified or can be qualified in a reasonable period of time to fill the position involved. In filling vacancies, an employee who has Employment Security must exhaust such available options, initially on a local basis, then on his/her seniority district:

(a) fill an unfilled permanent vacancy within the jurisdiction of another seniority group and the same collective agreement;

[page 4]

(b) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group with another collective agreement and the same Union;

(c) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group and another signatory union; and

(d) there being none, fill an unfilled permanent vacancy in a position which is not covered by a collective agreement.

The position of the Union is straightforward. It submits that the ESIMA requires that an employee is obligated to exercise maximum seniority rights, as defined in the collective agreement, to protect employment security. Its representative argues the maximum seniority of employees formerly represented by the IBF&O is restricted to the terminal location at which they are employed, as provided in Rule 19.2. In this case, the Union's representative maintains that the language of the Rule is clear and that there is no latitude in this circumstance for referring to extrinsic evidence. He argues that any reference to "seniority district" found within the language of article 7 of the ESIMA must, as applied to former IBF&O members, be construed to mean the terminal at which they are employed.

The Company's representative takes a different view. He submits that it is the intention of the ESIMA which must be looked to, arguing that that agreement overrides the operation of the collective agreement, to the extent that the rights and obligations of employees in relation to employment security are concerned. He also argues that there is ambiguity in the concept of "seniority district", for the purposes of the ESIMA, as applied to the former IBF&O members. That ambiguity, he argues, is to be resolved by reference to past practice in the application of the employment security agreement to employees of the IBF&O bargaining unit who were previously dealt with under the terms of the ESIMA.

[page 5]

The Company's representative submits that the purpose of Article 19.2 must be understood in its context. The article, he submits, was intended to protect the seniority of IBF&O members on a terminal basis, for the purposes of the collective agreement. He submits that it was not drafted or agreed to in contemplation of the greater rights and obligations of the ESIMA. Noting that article 7 of the ESIMA provides, without qualification, for the exercise of maximum seniority rights "location and system" he argues that the obligation under the ESIMA was intended to be broader, insofar as the exercise of seniority is concerned, than the limits of the "basic seniority territory", defined for different purposes, within Rule 19.2 of the collective agreement.

[page 6]

The Company's representative submits that if there is ambiguity in the correlation of the provisions of the ESIMA and article 9.2 of the collective agreement, the practice of the parties in the past provides guidance to their agreed intention. In this regard, he refers the arbitrator to the treatment of two former IBF&0 employees, Mr. George Carcasole and Mr. Fred Therrien. In May of 1990, those employees were subject to an article 8 notice with respect to the relocating of the Northlander passenger train service from Timmins to Cochrane. At that time, the IBF&0 accepted that the employees in question were obligated to accept vacant positions in Cochrane which were offered by the Company in the face of the abolishment of their jobs at Timmins. The Company tenders to the arbitrator's attention correspondence between the parties and, in particular, a letter dated April 2,1990 from the Company's vice-president, confrming the Union's agreement to the movement of the employees in question from Timmins to Cochrane in the circumstances of the article 8 notice which then occurred. A further example, albeit only by analogy, is offered with respect to the treatment of another employee. In 1991, the position of labourer Carl Johnson which was abolished at North Bay. He was then placed on laid-off status with the protection of article 7A of the ESIMA. Thereafter, as a requirement to protect preferred employment security benefits under that article, he was obligated to take a position of car cleaner in Cochrane when it became available. As a result of doing so, he was paid an incumbency in accordance with article 7A. It appears that Mr. Johnson later returned to North Bay when a position of classified labourer once again became available on September 8,1992.

The arbitrator can appreciate the thinking which motivates the Union's position. On the face of it, Rule 19.2 would appear to suggest that employees formerly represented by the IBF&0 are to be treated as having seniority only at the terminal at which employed. The arbitrator must agree with the Company, however, that Rule 19.2 must be interpreted in light of the purpose for which it was negotiated, namely the displacement rights and obligations contemplated by the collective agreement itself.

[page 7]

Different considerations apply, however, when the more extraordinary protections of employment security under the ESIMA are concerned. The employment security and income maintenance agreement was negotiated, in part, to provide to employees with eight years or more of cumulative compensated service a virtual blanket protection against layoff by reason of technological, operational and organizational changes initiated by the Company. In exchange for that protection, as reflected in article 7 of the ESIMA, employees are put to an obligation to protect work by filling vacancies " initially on a local basis, then on his/her seniority district". In the arbitrator's view, the above wording indicates that, for the purposes of the ESIMA, the parties intended a distinction between protecting work locally and protecting work on a broader scale over the "seniority district". The term "seniority district" is not found in Rule 19.2 of the collective agreement, although reference is there made to the "basic seniority territory" of employees. When these provisions are compared, it would appear that the parties intended a broader requirement in respect of the obligation of IBF&O members for the protection of their employment security. Specifically, the reading of article 7.,4 of the ESIMA suggests that if an employee is unable to hold a position on a location basis, he or she is nevertheless required to exercise options listed under the article on a system basis.

Any doubt in respect of that interpretation, and any uncertainty in the ambiguity which I find to be inberent in references to the concept of "seniority district" and "seniority territory" under the collective agreement and the ESIMA are, it seems to me, resolved by reference to the practice which was accepted by the IBF&O itself in the administration of these provisions. Specifically, the treatment of labourers Carcasole and Therrien with respect to the abolishing of their positions at Timmins in May of 1990, and their transfer to Cochrane seems to confirm, with little doubt, that the Company and the IBF&O did mutually intend that employees having the extraordinary protections of employment security must, in keeping with the language of article 7 of the ESIMA, be prepared to protect work by taking vacancies on a system basis, if they are unable to do so at the location.

For the foregoing reasons the arbitrator is satisfied that the interpretation advanced by the Company is correct. The four engine attendants whose positions were abolished as of May 27, 1996 are, as the Company contends, obligated to accept positions at another seniority terminal, including North Bay, as a requirement to protect their employment security status. The arbitrator so finds and concludes that the grievance must be dismissed.

DATED at Toronto this 21st day of June,1996.

MICHEL G. PICHER

ARBITRATOR