SHP – 421
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101
GRIEVANCE RE MULTI-LEVEL CARS FROM TORONTO TO VANCOUVER
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
A. Y. de Montigny – Labour Relations Officer
And on behalf of the Union:
Brian R. McDonagh – National Representative
Ron Laughlin – Vice-President, Local 101
William Nash – Local Chairman
A hearing in this matter was held in Toronto on September 30, 1996.
This is the arbitration of a grievance whereby the Union alleges a violation of Rule 23.25 of the collective agreement which relates to the transfer of work from one location to another. The Union maintains that the employees at Toronto are entitled to be transferred with their work to Port Coquitlam, B.C. The Company denies that there has been a violation of the collective agreement. The dispute and joint statement of fact and issue held at the hearing reads as follows:
Re-Assignment of work on Multi-level cars from Toronto to Vancouver.
JOINT STATEMENT OF FACT:
On November 24, 1993 the Company re-assigned preventive maintenance (PM) work on Multi-level cars from Toronto to Port Coquitlam, B.C. which created an additional 12 positions at Coquitlam, B.C.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that:
Therefore, the Union asks the Arbitrator to so award and require the Company to offer the appropriate number of employees the right to transfer to Coquitlam, B.C.
The Company denies the Union’s contentions and claim.
On the facts of this case, the arbitrator cannot sustain the grievance. Rule 23.24 reads, as follows:
23.24 When through an unusual development it becomes necessary to transfer work from a seniority terminal, Division or Region, to another seniority terminal, 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. Prior to any transfer of work taking place, the proper officer of the Company shall meet with the Regional Union Representative to discuss the transfer.
Employees who transfer, under this Rule 23.24, shall after 90 calendar days lose their seniority at the seniority terminal they left.
There is very little, if any, arbitral precedent with respect to the interpretation of the foregoing provision. On the facts, however, it is not disputed that there was no loss of work to any of the employees at Toronto, by reason of the transfer of their work to Port Coquitlam in November of 1993. The Union, nevertheless, asserts that the right to follow the work is absolute, regardless of whether there has been an adverse impact occasioned by the transfer. The Company, on the other hand, stresses that the language; of Rule 23.24 addresses "unusual developments", not the normal re-assignment of tasks between facilities , as occurred in this case. In support of its position, the Company refers the arbitrator to SHP 364.
In the arbitrator’s view, the award relied upon by the Company is of limited use for the purposes of this grievance. It concerned the transfer of certain locomotive equipment from the Saskatoon Yard Motive Power Shop to the Calder Yard Motive Power Shop, the Symington Yard Motive Power Shop and the Sarcee Yard Motive Power Shop. In SHP 364, the following analysis appears:
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 these 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 increase in the number of locomotives to be serviced at Calder. And while there was an 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. Includes 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 23.24 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.
The instant case is somewhat different. It is not disputed that positions were added to the bargaining unit at Port Coquitlam to perform the work in servicing the bi-level equipment which work was, in fact, transferred to that location. The more narrow issue raised in this case is whether employees have the right to transfer with the work, particularly where there has been no loss of employment at the Toronto location, where all employees concerned are fully occupied otherwise and, it appears, the work force has in fact increased. The onus on the Union in this case must be to establish that the intent of the Rule 23.25 is to confer on employees the unconditional right to follow their work wherever it may go, regardless of whether the transfer of work has caused them negative consequences. The representation made on behalf of the Company is that the Rule has never been invoked except in cases where employees at the location from which the work is transferred would otherwise be laid off. On balance, when regard is had to the words "an unusual development" appearing within Article 23.25, and considering that the article falls within the framework of provisions dealing with layoff and recall, the interpretation of the Company is to be preferred. This is not, in my view, a circumstance in which the employees whose work was transferred, and who suffered no loss of employment, can assert the protection of Rule 23.25.
For the foregoing reasons, the grievance must be dismissed.
DATED at Toronto this 9th day of October, 1996.
(signed) MICHEL G. PICHER