SHP - 435
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
National Automobile, Aerospace, and Agricultural Implement Workers Union of Canada [CAW CANADA] Local 101
RE: Layoff Notice Dated July 2, 1996 at St. Luc Diesel Shop
Sole Arbitrator:Michel G. Picher
Appearing For The Union:
A. Rosner – National Representative, Montreal
S. Levert – Regional Vice-President, Local 101, Montreal
A. Desmarais – Local Chair, Local 101 Unité Québec
G. Antinozzi – Local Chair, Local 101 Unité Québec
Appearing For The Company:
G. St-Pierre – Human Resources Coordinator
A. Y. de Montigny – Director, Labour Relations, Montreal
M. Bergeron – Manager, Mechanical Facilities, Montreal
G. Abran – Spec. Santé Sécurité, Resources humaines, Montreal
R. deMontignac – Manager, Benefits & Deployment, Calgary
G. Pepin – Employment Security Deployment Officer, Calgary
C. Thibault – HRIS Specialist, Montreal
D. J. David – Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on Monday, February 17, 1997.
A notice of layoff dated July 2, 1996 at the St. Luc Diesel Shop.
JOINT STATEMENT OF fact:
On July 2, 1996, the Company served a notice advising the Union of sixty-two (62) positions to be abolished at the St. Luc Diesel Shop, effective November 1, 1996.
JOINT STATEMENT OF ISSUE:
The Union claims that while the Company issued an Article 8.1(a) for forty-eight (48) of the sixty-two (62) positions at the St. Luc Diesel Shop, the remaining fourteen (14) positions abolished under an Article 8.1(c) at the Roundhouse should also have been served in accordance with the provisions of Article 8.1(a).
The Union further claims that a total of five (5) Boilermakers, three (3) Pipefitters and one (1) Electrician ought to have been returned to their previous status of Angus employment security (the total covers the November 1 layoff as well as that of May 10, 1996).
Finally, the Union contends that the displacement of six unprotected labourers by "Angus employees" was in violation of Article 12 of Appendix F and Article 7A.2(d) of the Job Security Agreement.
The Union requests that all employees affected be made whole.
The Company denies the Union’s claim.
FOR THE UNION: FOR THE COMPANY:
(SGD.) A. Rosner (SGD.) A. Y. de Montigny
National Representative Director, Labour Relations
The first issue to be dealt with is whether, as the Union contends, the layoff of the fourteen employees at the St. Luc Diesel Shop constituted a technological, operational or organizational change within the meaning of article 8.1(a) of the Job Security Agreement which provides as follows:
8.1 (a)The Company will not put into effect any Technological, Operational or Organizational change if a permanent nature which will have adverse effects on employees holding permanent positions without giving as much advance notice as possible to the President of Local 101 or such other person as may be named by the Union to receive such notices. In any event, not less than 120 days’ notice shall be given, with a full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected.
It is common ground that four of the fourteen employees affected by the layoff were formerly employed at Angus Shops. The material before the Arbitrator establishes that the employees were laid off upon the conclusion of work which was performed in the Special Projects department at the St. Luc Diesel Shop Roundhouse. The work performed in the special projects was, it is not disputed, main shop or "back shop" maintenance, as distinguished from the lighter maintenance done at running points. It is, it appears, the same kind of work which was previously done at the Angus Shops, and continues to be done at the Company’s Ogden Shops in Calgary. In fact it appears that what occurred at the closing of the Angus Shops in 1992 was the transfer of a portion of the main shop work previously done at the Angus facility to the St. Luc Diesel Shop.
The Company does not dispute that what has occurred is a permanent termination of the main shop work performed in the Roundhouse. It submits, however, that what transpired was occasioned by the completion of the planned project activities at the St. Luc facility, and the cancellation of other work by reason of budget restrictions. This, the Company submits, is akin to a decision that certain work was simply no longer necessary and that there has, in the circumstances, been a layoff by reason of a permanent lack of work. In this regard the Company refers the Arbitrator to CROA 316 where the following passage appears:
… In response to the general directive to cut costs, local supervision considered the work performed in certain positions and decided that some of it was not necessary to be performed. …
As to the particular case before me, the material put forward by the Company shows that in each case either the work load was insufficient or the work itself not necessary to be performed. Here, as in Case No. 284, there simply no longer a need for certain work to be done.
In the circumstances of these cases, then, it is my conclusion that these have not been the technological, operational or organizational changes contemplated by article VIII of the Job Security Agreement.
The Arbitrator is not persuaded that the facts disclosed in the case at hand are comparable to those dealt with in CROA 316. The reality is that prior to the change which caused the layoffs which are the subject of this grievance main shop maintenance was performed at three locations in Canada: the St. Luc Diesel Shop in Montreal, the Weston Shops in Winnipeg and the Ogden Shops in Calgary. It does not appear disputed that the Company’s main shop maintenance has now been rationalized to be performed solely at the Ogden Shops. The objective reality of what transpired in Montreal is that a main shop maintenance operation, of the type previously operated at Angus Shops, was continued in the St. Luc Diesel Shop, to deal with the servicing of certain locomotive equipment. For reasons which, on the basis of the evidence before me, cannot be characterized as caused by a normal reassignment of duties or "changes brought about by fluctuation of traffic or normal seasonal staff adjustments" within the exception enumerated in article 8.7 of the Job Security Agreement, back shop operations ceased at the St. Luc Shop. Rather, as the Union’s representative submits, what has occurred is a permanent partial shutdown of the projects department of the St. Luc Diesel Shop. In this respect it is useful to have broader regard to the language of article 8.7 of the Job Security Agreement which provides as follows:
8.7 The terms operational and organizational change shall not include normal reassignment of duties arising out of the nature of the work in which the employees are engaged, nor changes brought about by fluctuation of traffic or normal seasonal staff adjustments.
Any permanent shutdown or permanent partial shutdown of an operation, facility or installation, shall be considered as a Technological, Operational or Organizational change. Any permanent Company-initiated changes (excluding changes which are brought about by general economic conditions) which result from the reduction or elimination of excess plant capacity shall be considered as Technological, Operational or organizational changes.
In the Arbitrator’s view it is impossible to escape the conclusion that what transpired is a permanent partial shutdown of main shop activities which have been carried on on a regular and ongoing basis at the St. Luc Diesel Shop. It is not disputed that when the same work ceased to be performed at Weston Shops in Winnipeg, on or about February 1, 1997, an article 8.1(a) notice was issued to the Union. In the Arbitrator’s view while there may have been different kinds of considerations which applied in both locations, having to do with the nature of the work and equipment being serviced, the fact remains that in both circumstances the Company determined to permanently shut down operations devoted to the maintenance of locomotive equipment. That, in the Arbitrator’s view, falls squarely within the definition of the permanent partial shutdown of an operation, found within article 8.7 of the Job Security Agreement. In the circumstances, I must conclude that what occurred constituted an operational or organizational change, by reason of which the Company was obligated to provide a notice to the Union under the provisions of article 8.1(a) of the Job Security Agreement.
The second issue to be addressed is whether employees engaged in the back shop work at the St. Luc Diesel Shop, who were formerly employed at the Angus Shops, are entitled to return to their previous employment security status. Appendix D of the 1992 Angus Special Agreement provides, in part, as follows:
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.
At issue in the case at hand is whether it can be said that the employees, who formerly worked within the same bargaining unit in the Angus Shops, and who were part of a transfer of some sixty positions to the St. Luc Diesel Shop at the time of the Angus Shops closure in February of 1992, can be said to have been involved in work within their own seniority classification of a defined term or work which can be qualified as a special project within the meaning of Appendix D of the 1992 Angus Special Agreement. When close regard is had to the circumstances, the Arbitrator has some difficulty with the Union’s submission on that issue. As noted above, what essentially transpired was a transfer of part of the function of the Angus Shops to the St. Luc Diesel Shop. In other words, although on a smaller scale, main shop maintenance continued in Montreal, out of the roundhouse at the St. Luc Diesel Shop. For a period of several years that facility continued to perform ongoing maintenance on locomotive equipment, as one of the three locations in Canada where such work continued to be performed. There is no evidence before the Arbitrator to indicate that the work in question was for a defined term. Further, although the main shop work at the St. Luc facility is described as having being performed within the "Special Projects" department, the reality is that the facility simply continued to perform regular main shop maintenance on locomotive equipment, of the same kind previously performed in Angus Shops. Absent better evidence, the Arbitrator cannot conclude that the work in question can fairly be characterized as a "special project" in the sense contemplated within the language of Appendix D of the 1992 Angus Special Agreement. Rather, what occurred was the continuation of main shop maintenance locomotive service at Montreal, albeit on a reduced scale. The fact that the change in Montreal might have been part of a longer term rationalizing of main shop operations, which eventually resulted in a transfer of all main shop functions to Calgary, does not alter the nature of operation at Montreal. It was not a location which performed work of a defined term, nor can its continuation of maintenance previously performed at the Angus Shops be, in my view, fairly characterized as a "special project" in the sense contemplated within Appendix D of the Special Agreement. In the circumstances, although the employees in question are entitled to the protections of an article 8 notice, those protections attach to an article 8 notice relating to the closure of the main shop functions at the St. Luc Diesel Shop. I do not see upon what basis employees who left the Angus Shops to work at that location can be in any better position than an employee who might have transferred from the Angus Shops to Weston Shops, at the time of the closure of the latter facility. For these reasons the Union’s position with respect to the alleged right of the former Angus employees to revert to their Angus Shop employment security status cannot be sustained.
The third issue to be addressed is whether the Company has violated what the Union asserts is a prohibition against cross-craft bumping in the implementation of the layoff. It appears that although the Company abolished nine labourer’s positions at the St. Luc facility, it did not lay off the nine junior labourers. Rather, it laid off six of those labourers who were unprotected from the standpoint of employment security, and retained ex-Angus employees from other crafts who had been filling labourer’s vacancies, and who had thereby gained labourers’ seniority. By so doing the Company avoided the cost of returning the more junior labourers, who were former Angus employees, to their Angus employment security status. For the reasons related in the prior award of this Arbitrator, dated January 2, 1997, former Angus Shop employees who held positions outside their seniority classification would be entitled, in the event of layoff, to revert to their employment security protections under the Angus Special Agreement.
It is common ground that in July of 1995 the parties did negotiate, apparently for the first time, provisions within the Job Security Agreement which allow, in certain circumstances, for cross-craft bumping. Those provisions read as follows:
The principle involving consolidated seniority within a seniority unit as contained in the JSA between the parties dated April 29, 1992 will remain.
In regard to cross-craft displacements, it was agreed that there would be no displacements between different seniority units within the bargaining unit except in the following sole circumstances:
1.) At a single location, there is at least one "unprotected" employee holding a permanent position (that is, an employee not eligible for any protection under Article 7); and
2.) There is another "protected" employee in the bargaining unit, but in a different seniority unit, at the same location; and
3.) The "protected" employee has an earlier date of entry in the bargaining unit than at least one of the unprotected employees; and
4.) the "protected" employee is unable to hold a permanent position pursuant to article 7A.1 and would otherwise begin eligibility for benefits pursuant to article 7A.4.1.
In the above situation, the protected employee may be required to directly displace the most "junior" unprotected employee at the location (if qualified or can be qualified) in order to avoid the payment of ES benefits and to secure a permanent position.
For the purpose of protection against future displacement only, such displacing employee, while working in the other seniority unit, shall have his/her seniority recognized as date of entry in the bargaining unit.
The employee will continue to hold and accumulate seniority in his/her original seniority classification and be subject to recall to permanent positions therein.
The Union however, draws to the Arbitrator’s attention the provisions of article 12 of Appendix F of the Job Security Agreement, negotiated on the same date, July 24, 1995, which read as follows:
Notwithstanding anything in the revised Job Security Agreement, no employee will be permitted or required, pursuant to the Angus Special Agreement as modified by this Memorandum, to displace any "junior" employee in another seniority unit.
The Union asserts that the above provision protects the ex-Angus Electrical Helpers, who were working as labourers, against being compelled to displace unprotected labourers who held greater seniority as labourers within the St. Luc Diesel Shop. The Company counters that the electrical helpers had in fact become labourers, having acquired seniority within the labourers’ bargaining unit and could therefore not invoke the protections of article 12 of Appendix F of the Job Security Agreement.
On this issue the Arbitrator has substantial difficulty with the Company’s position. If it is correct, only employees who remain at home and inactive, or presumably who are recalled to work within their own seniority unit, can invoke the protections of article 12 of Appendix F. That, however, leaves little real practical protection to employees who would fall under the Angus Special Agreement, to the extent that such individuals could gain seniority standing in any other seniority unit by merely being recalled for work in a vacant position created within that bargaining unit for no more than a day. The Arbitrator finds it difficult to believe that the parties intended article 12 to operate in that manner. The better view, I think, consistent with the Union’s interpretation, is that an employee who falls under the Angus Special Agreement retains his or her seniority unit status for the purposes of cross-craft bumping, and cannot be compelled to displace a junior employee who falls within another seniority unit. That is precisely what the Company has sought to do with respect to the employees who are the subject of this part of the grievance. It should be stressed, however, as the Union’s representative notes, that these special protections for former Angus employees do not exist anywhere else within the Company’s system. For reasons which the parties best understand, they did make this concession with respect to affording greater protection to employees who could assert original bargaining unit seniority under the Angus Special Agreement. That is the circumstance of the employees who are the subject of this part of the grievance. It would, in the Arbitrator’s view, render the protections of article 12 virtually meaningless to give them the interpretation which the Company urges in this case.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator finds and declares that the six senior non-Angus employees who should have cross-craft bumped the unprotected labourers on or about November 1, 1996 should now be permitted to do so, and should be compensated for any wages and benefits lost. The Arbitrator further directs the Company to issue an article 8.1(a) notice in respect of the fourteen Roundhouse employees. The Company is directed to provide the notice required, and to engage in the process contemplated under the Job Security Agreement, with appropriate compensation, if any, to be made to the employees affected. Finally, for the reasons touched upon above, the Arbitrator dismisses the Union’s claim that former Angus Shop employees working at the St. Luc Diesel Shop within their own seniority classification are to return to employment security status under the 1992 Angus Special Agreement. Their protections are such as may be had as protected employees affected by the article 8 notice in respect of the permanent partial closure of the St. Luc Diesel Shop.
The Arbitrator retains jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.
Signed at Toronto, March 5, 1997
(signed) MICHEL G. PICHER