IN THE MATTER OF AN ARBITRATION
Canadian Pacific Railway Company
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-TCA Canada), lOCAL 101
RE: status of ex-Angus employees
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – National Representative, Montreal
S. Levert – Regional Vice-President, Montreal
A. Desmarais – Local Chairman, Montreal
APPEARING FOR THE COMPANY:
D. Guérin – Manager, Labour Relations, Calgary
S. J. Samosinski – Director, Labour Relations, Calgary
G. D. Wilson – Counsel, Calgary
S. Moutinho – Labour Relations Officer, Calgary
C. Thibault – HRIS Specialist, Montreal
A hearing in this matter was held in Montreal on Monday, December 9, 1996
AWARD OF THE ARBITRATOR
Status of certain "ex-Angus" employees.
JOINT STATEMENT OF FACT:
Approximately 22 active "ex-Angus" employees have filled permanent positions outside of the original bargaining unit positions they held at the time of the 1992 Angus Shop closure.
JOINT STATEMENT OF ISSUE:
The Union alleges that any employee in the aforementioned group, who was previously on Angus Employment Security status, should be entitled to revert to such status as provided in Appendix ‘D’ of the 1992 Angus Special Agreement when affected by a job reduction of the permanent position the employee last occupied (outside of his 1992 bargaining unit).
The Company contends that the link to the 1992 Angus Special Agreement has been severed and denies the Union’s claim.
FOR THE UNION: FOR THE COMPANY:
(sgd.) A. Rosner (sgd.) D. GUéRIN
NATIONAL REPRESENTATIVE for: DIRECTOR, LABOUR RELATIONS
This grievance concerns the status of some twenty-two employees of the Company at Montreal. Each of the individuals in question was previously employed in the Company’s Angus Shops, prior to the closure of that facility on January 3, 1992. As part of an operational change which abolished over 900 positions, the employees became subject to the Angus Special Agreement, dated February 3, 1992. The agreement was wide-ranging in the benefits and opportunities which it made available to the employees adversely impacted by the closure of the Angus Shops, and included extensive provisions respecting the obligations of employees with eight years or more of cumulative compensated service who had the benefit of employment security.
During the course of negotiations the Union developed concerns about the possibility of an individual with employment security status being recalled to a permanent position in another bargaining unit, where his or her seniority would be extremely limited, and subsequently being subject to layoff for reasons other than operational or organizational change, thereby losing their Angus related employment security protection. To resolve those concerns, with a view to making an agreement, the Company’s Assistant Vice-President, Mr. Don Brazier, wrote to the Union a letter which came to be incorporated into the 1992 agreement as Appendix D. It reads as follows:
This has reference to employees placed on Employment Security status as a result of the Atlantic Region Mechanical Reductions and subsequently recalled to active service in keeping with the provisions of the applicable Collective and Job Security Agreements.
During the discussions which culminated in the signing of a Special Agreement today, you expressed concerns that employees might be recalled because of increased staff requirements resulting from additional traffic, the requirement to occupy positions in other bargaining units or to carry out work not associated with any particular bargaining unit and that on the completion of such work they would be laid off for non-Article 8 reasons, with the result that they would not then be eligible for Employment Security. You stated your view that such a result would in effect penalize long-service employees because of increased workload and leave them in a worse position than if the workload had remained at a low level.
By way of reply, the Company advised that it was certainly not its intention to establish positions and later abolish them as a means of reducing its Employment Security obligations, and that it would not tolerate any such practices. At the same time, the Company considers that when employees are recalled to work from Employment Security status on a permanent basis, other than in extenuating circumstances, such employees may be subject to future layoff in the event of non-Article 8 changes.
The Company understands the concerns of the Unions in the context of an operational change which is of unprecedented magnitude. For the sake of finalizing a negotiated agreement, and notwithstanding and without prejudice to its overall position as outlined above, the Company is prepared to make some further assurances to help alleviate the Unions’ concerns.
Specifically, when an employee on Employment Security status covered by this Agreement performs work outside his/her bargaining unit pursuant to Article 7 of the Job Security Agreement the Company agrees that when no longer required to perform that work, the employee will resume Employment Security status rather than being laid off. Additionally, when an employee is recalled to work within his/her own seniority classification, and where the nature of that work is that it is expected to be of a defined term, or a special project of any kind, etc., then the same result will apply.
Finally, there may well arise cases where an employee is recalled within his/her own classification on account of what appears in good faith to be a permanent increase in workload, but which turns out, within a reasonable period of time, not to have been the case. It is not the Company’s intention to use such situations to reduce its Employment Security obligations. Specifically, and for the sake of a negotiated agreement, the Company is prepared to agree that where such a recall to work is followed by a staff reduction within less than one year of recall, it will not give rise to a lay-off. It is understood that, in the application of this paragraph, the number of individuals going onto Employment Security status following the staff reduction will be no greater than the numbers recalled initially from Employment Security as a result of the apparent permanent increase in workload.
I trust that the foregoing meets your concerns.
Following the sittings of the Mediation-Arbitration Commission chaired by Mr. Justice George W. Adams, and its decision of June 14, 1995, the parties renegotiated the terms of the Commissioner’s award insofar as the terms of their Job Security Agreement are concerned. The new Job Security Agreement, effective July 24, 1995, contains the following two provisions:
7A.13 Employees on Employment Security, called to work outside their seniority unit, will revert to ES SUB at the termination of such work, provided they have exercised their obligations to hold work pursuant to the provisions of this Article. Additionally, when employees are recalled to work within their own seniority unit and where the nature of that work is that it is expected to be of a defined term or a special project of any kind, then, at the termination of such work, provided they have exercised their obligations to work pursuant to this Article, they will revert to ES SUB.
7A.14 Where employees are recalled within their own seniority classification on account of an apparently permanent increase in workload, and where such workload increase turns out to be temporary, a consequent staff reduction within one year of the original recall will not give rise to a layoff. It is understood that in the application of this provision, the number of individuals going onto ES SUB following a staff reduction will be no greater than the numbers recalled initially from ES SUB as a result of the increase in workload.
The Union’s representative submits that the above provisions represent a codification into the terms of the Job Security Agreement of the protections specifically originated in Appendix D of the Angus Special Agreement of 1992.
Negotiation of the Job Security Agreement also involved, however, further provisions governing Angus employees. Specifically, a memorandum of agreement signed between the parties on July 24, 1995, dealing with "the continuation and modification of the Angus Special Agreement" is appended to the Job Security Agreement as Appendix F. It provides, in part, as follows:
THEREFORE the parties to this Memorandum of Agreement hereby agree that the Angus Special Agreement be continued, subject to the amendments as set out herein.
1. For the purposes of this Memorandum of Agreement, the term "Angus employee" shall denote an employee belonging to the bargaining unit represented by the Union who satisfies at least one of the following conditions:
(a) As of June 14, 1995, the employee was deemed to be on Employment Security status, whether or not physically employed by the Company, as a result of the Atlantic Region Mechanical Reductions, dated February 3, 1992; or
(b) The employee is in the future subject to displacement, in an "involuntary" manner as defined elsewhere in this Memorandum of Agreement, by another employee satisfying condition 1(a) above and is unable, as a result, to hold a permanent position in his seniority classification.
(c) Within the twelve (12) months preceding June 14, 1995, the employee, previously satisfying the terms of condition 1(a) above, was recalled to a permanent position in his/her own seniority classification as provided in Appendix ‘D’ of the Angus Special Agreement.
The substance of Appendix F goes on to provide a number of adjusted benefits for persons defined as "Angus employees". For example, paragraph 3 confirms that the duration of the employment security benefit for such individuals is to be eight years, instead of the six years found in the Job Security Agreement. Paragraph 4 limits the displacement obligations of Angus employees in the filling of vacancies to the Region, as well as their obligation to displace junior employees. The agreement also provides, in paragraph 7, for an adjustment in benefit levels from the original Angus Special Agreement, in accordance with the newer provisions of the revised Job Security Agreement of July 24, 1995. Significantly, paragraph 10 of Appendix F provides for an extensive special bidding procedure for such options as early retirement, bridging, severance, relocation, enhanced SUB, paid education leave, and a one-time opportunity to bump back into a permanent position held by a junior employee at the home location.
The instant dispute arises out of what appears to be a misunderstanding of the parties during the course of a meeting between their representatives in late October of 1995. As explained by the Union, a problem presented itself when certain employees who sought to avail themselves of the bidding options were denied the opportunity to do so where it appeared to the Company that the vacancies which they would create would not involve back-filling by employees who would otherwise be inactive on the employment security rolls. It appears that the Company’s concerns were motivated, in part, by impending reductions in the workforce at St. Luc Yard in Montreal, which could be implemented in 1996 and 1997. In particular, the Company indicated that it did not want to be in the position of recalling employees to permanent positions within their own bargaining unit only to have them severed from employment at some future time, beyond the twelve month limit, and thereby open itself to a charge of sharp practice in an effort to reduce the employment security rolls. The Union’s response, it appears, was that it had no difficulty with the twelve month rule having no application in fact to the employees involved in the bidding procedure, as it did not concern "an apparently permanent increase in workload" within the contemplation of article 7A.14 of the Job Security Agreement of July 24, 1995. Its representatives therefore indicated to the Company that it would be in keeping with the parties’ agreement if employees who returned to permanent bargaining unit positions in a circumstance of attrition, and who presumably have the benefit of their own relatively strong seniority in their bargaining unit, do not have the protections of article 7A.14.
Following the meeting the Company’s negotiator, Mr. Steve Samosinski, wrote to Union representative Mr. Abe Rosner, in part, as follows:
It was agreed that the provisions of the Job Security Agreement, including the revised Angus Special Agreement, will apply. Specifically, for every employee who takes an Angus package, there will be a permanent reduction of one Angus ES employee. It was also agreed that articles 7.13 and 7.14 of the JSA are not applicable in this instance. Should there be additional reductions in 1996 for whatever reason, adversely affected employees would not fall under articles 7.13 or 7.14 of the JSA or the provisions of the Angus Special Agreement. Such employees’ entitlement would be determined based on the reason for the reduction and the terms of the JSA.
Mr. Rosner refused to agree with the characterization of the understanding put forward by Mr. Samosinski in the above passage. Specifically, he took the position, communicated by telephone to Mr. Samosinski at the time, that there was no intention on the part of the Union to waive the protections of article 7A.13 of the Job Security Agreement for any of its members who, like the twenty-two employees who are the subject of this grievance, might find themselves holding permanent positions in the ranks of another craft or bargaining unit, with extremely weak seniority, and little or no protection in the event of a future layoff. The Union’s position was subsequently recorded in a letter to the Company dated March 6, 1996. That letter reads as follows:
Dear Mr. Samosinski:
You will recall a problem which arose in Montreal in October 1995, when active shopcraft employees were temporarily prevented from opting for Angus buyout packages, notwithstanding the availability of employees in the same craft on Angus E.S. to replace such active employees.
The reason for this temporary situation was, as you explained to us at the time, the Company’s concern that "the offering of Angus buyouts at a time that budgetary staff reductions are occurring, may be perceived by the union and employees as a sharp practice" (see your letter to me dated November 15, 1995).
The Union gave you a twofold assurance at the time (recall our meeting also attended by Gary Fane and Don Brazier): 1) that it would not view the offering of buyouts in that context as a "sharp practice"; and 2) more specifically, it would not seek to invoke the provisions of article 7.14 of the Job Security Agreement (the "twelve-month protection") in respect of any employees recalled to fill the vacancies left by the departing senior active employees if the former were to be affected by reductions in 1996. On this basis, the problem was resolved.
In your November 15, 1995 letter, however, you characterized our agreement, in part, as saying that "adversely affected employees would not fall under Articles 7.13 or 7.14 of the JSA or the provisions of the Angus Special Agreement". The reference to 7.13 was erroneous, as I advised you by telephone immediately after receiving your letter last November. Our understanding was limited to the non-applicability of article 7.14.
In fact, to exclude the provisions of article 7.13 could have been potentially disastrous for employees. A machinist, for example, recalled from E.S. to fill a vacancy left by a departing labourer would enter those ranks at the bottom of the seniority list and would be vulnerable to the first layoff, temporary or permanent, that might come along. The whole intent of article 7.13 would have been subverted.
In any event, I advised you at the time that I might follow up our telephone discussion with a letter to that effect. I am now doing so at the request of some of my local union colleagues, who were concerned that there should be no misunderstanding at all on this score.
(sgd.) Abe Rosner
The instant dispute crystallized with the announcement of layoffs at Montreal effective November 1, 1996. With that event the status of the twenty-two employees at Montreal became the subject of a dispute between the parties. The Company takes the position that by virtue of Appendix F of the Job Security Agreement of July 24, 1995, the twenty-two ex-Angus employees holding permanent positions in other crafts or bargaining units could no longer invoke the protections of paragraph 7A.13 of the Job Security Agreement.
The Company does not dispute that the employees in question did, at one time, have the right to revert to employment security status upon the expiry of their employment in work outside their bargaining unit, in keeping with Appendix D of the 1992 Angus Special Agreement. Its representatives submit, however, that the agreement has undergone change and, specifically, has been overtaken by the provisions of Appendix F of the Job Security Agreement, the memorandum of agreement dealing specifically with the continuation and modification of the Angus Special Agreement of 1992. Its representatives maintain, in part, that the employees who are the subject of this grievance do not fall within the definition of an "Angus employee" as reflected in article 1 of Appendix F of the Job Security Agreement. In essence, the Company asserts that the availability of employment security under the Angus Special Agreement is redefined by Appendix F, and is limited to those employees designated as "Angus employees" within the definition contained therein. Specifically, sixteen of the grievors are noted as having occupied permanent employment in another bargaining unit. It similarly reviews the circumstances of the remainder of the grievors, noting that they would also fall outside the definition of an "Angus employee" for the purposes of Appendix F. In support of its position, the Company argues that a critical part of the rationale for the negotiation of Appendix F was to bring to bear a principle which sought to limit the number of ex-Angus employees who might, at any given time, be eligible for employment security benefits. This rationale, it submits, was already in operation to the extent that the Company maintained lists of Angus ES employees, which lists were provided to the Union, and showed reductions in absolute numbers whenever ES employees were given retirement packages, or returned to permanent positions in any bargaining unit.
I turn to consider the merits of the positions advanced by the parties. Firstly, the Arbitrator is fully understanding of the desire of the Company to work its way out of the potentially indefinite burden of employment security for a substantial number of persons negatively impacted by the closure of the Angus Shops. There can be doubt that it worked diligently, with the Union’s cooperation, to develop means to reduce its employment security burden, most particularly through the systematic offering of early retirement, bridging and severance packages. That is, quite obviously, a significant component of the substantive terms of Appendix F of the Job Security Agreement, negotiated on July 24, 1995.
However, when regard is had to the language of Appendix F, the position advanced by the Company would appear to lack support. Firstly, it must be noted that the definition of the "Angus Employee" appearing in article 1 is specifically said to be "for the purposes of this Memorandum of Agreement". When that limitation is taken into account, and is coupled with the declaration that "the Angus Special Agreement be continued, subject to the amendments as set out herein …" it becomes less than convincing that the parties intended to strike from the general protections of the Job Security Agreement, including article 7A.13, former Angus Shops employees who do not fall within the definition of "Angus employees" found within Appendix F. Plainly, on its face, Appendix F makes no specific reference to persons who fall within the circumstances of the twenty-two employees who are the subject of this grievance. It therefore becomes necessary to determine whether they are impliedly intended to be excluded from protections which they previously had, by necessary inference from the terms of the appendix.
The Arbitrator has some difficulty seeing how the Company’s position can succeed. Firstly, there is nothing on the face of Appendix F to suggest that it is intended to be in full replacement of the Angus Special Agreement of 1992, or of the provisions of the Job Security Agreement which would otherwise attach to ex-Angus employees. On the contrary, the memorandum of agreement which is Appendix F specifically confirms the continuation of the Angus Agreement, as modified by the terms of the memorandum. Secondly, the classification of persons designated as "Angus employees" is specifically said to be limited "for the purposes of this Memorandum of Agreement". In that circumstance it is difficult for a board of arbitration to conclude that the definition of Angus employees found within Appendix F is conclusive for all purposes, including those of other agreements, including the Angus Special Agreement of 1992 and the Job Security Agreement of July 24, 1995.
The logical result of that analysis is that, if the twenty-two employees who are here in question are not Angus employees, as the Company contends, for the purposes of Appendix F, they nevertheless continue to enjoy such status as they previously had under the terms of the Angus Special Agreement of 1992 and the Job Security Agreement. Quite simply, as the Union’s representative stresses, there is no language on the face of Appendix F which clearly indicates that any person who had the benefit of the Angus Special Agreement of 1992 forfeited their status, rights or benefits, save as specifically provided within the terms of Appendix F. More particularly, I must agree with his submission that the defining of Angus employees for the limited purposes of the memorandum of agreement, Appendix F, was not intended to wipe out entire classes of beneficiaries such as the employees in question. Indeed, it would appear that the Company itself acknowledged that the employees, assigned to permanent positions in other bargaining units, nevertheless retained rights as former Angus employees. It is not disputed, for example, that they continue to be paid wages and benefits on the basis of their trade or seniority group as Angus Shop employees, notwithstanding that they may be holding permanent positions in a lower paid trade or seniority group. Indeed, it is arguable that, by reason of their special wage and benefit status, the employees in question might be said to qualify as Angus employees within the meaning of paragraph 1(a) of Appendix F. That need not be determined, however, as the grievance can be disposed of more narrowly.
In the Arbitrator’s view a review of Appendix F simply does not support the assertion of the Company that the employees who are the subject of this grievance cease to have protections under article 7A.13 of the Job Security Agreement. The more specific intention of the memorandum of agreement which is Appendix F appears to be an effort by the parties to rationalize the situation of the Angus employees in the wake of the Adams award, and to effect some reduction in the employment security burden of the Company through the exercise of attrition fashioned around the special bidding procedure. There is, however, nothing in the language of Appendix F, nor necessarily to be inferred from its terms, which supports the view that the vested rights of persons covered by the Angus Special Agreement of 1992 ceased to operate, to the extent that those rights are not specifically dealt with within the terms of Appendix F.
Further, as a review of the correspondence indicates, although the Company’s representatives may have believed that the parties were at idem on the suspension of article 7A.13 with the negotiation of Appendix F, as reflected in the letter of November 15, 1995, that interpretation was clearly and forcefully rejected by the Union from the outset. It would seem to the Arbitrator that in the circumstances, if the Company wished to achieve a position in which it had assurances that employees who had the benefit of the Angus Special Agreement of 1992 who are placed in permanent positions in another seniority group by reason of the incumbent in the position having received an Angus severance or bridging package, with the result that they could no longer themselves revert to ES status, it should have insisted on contract language which would clearly produce that result. That is especially so where the alleged change would clearly reverse the vested contractual rights and obligations previously contained within the Angus Special Agreement of 1992 and the Job Security Agreement. There is, very simply, no language which would support the conclusion that the Company succeeded in gaining such a concession.
For the foregoing reasons the grievance must be allowed. The Arbitrator finds and declares that the employees who the subject of this grievance, who held employment security protection as a result of the 1992 closure of the Angus Shops and who filled in the past or presently fill positions outside their seniority classification, pursuant to their obligations under the employment security provisions of the Job Security Agreement, are entitled to revert to their employment security status upon their release, for any reason, from the positions held outside their seniority classification. Any employees who may have suffered a loss in wages or benefits as a result of the Company’s contrary interpretation shall be compensated accordingly. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.
Dated at Toronto, this 2nd day of January 1997
(original Signed by) MICHEL G. PICHER