IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
National Automobile, Aerospace, and Agricultural Implement Workers Union of Canada [CAW CANADA] Local 101
re: reduction of 30 positions at St. Luc Diesel Shop, Montreal
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 Montreal
Appearing For The Company:
M. Bergeron – Manager, Mechanical Facilities, Montreal
G. St-Pierre – Human Resources Coordinator
A. Y. deMontigny – Director, Labour Relations, Montreal
C. Thibault – HRIS Specialist, Montreal
A hearing in this matter was held in Montreal on Monday, December 9, 1996.
This grievance concerns the allegation of the Union that the Company failed to provide the requisite notice under the Job Security Agreement in respect of the abolition of thirty positions at the St. Luc Roundhouse, and its related allegation that eight ex-Angus employees have been deprived of their entitlement to return to Angus employment security status. Although the matter was heard in early December of 1996, the parties agreed that consideration of its merits should be delayed pending the hearing of a companion grievance in respect of further job abolishments at the St. Luc Diesel Shop, pursuant to a separate notice issued on July 2, 1996, to be implemented November 1, 1996. That matter was heard on Monday, February 17, 1997 and the award in respect of it is issued as a companion to this award.
The nature of the disagreement between the parties is reflected in the Dispute and Joint Statement of Issue which reads as follows:
A notice of layoff dated May 1, 1996 at the St. Luc Roundhouse in Montreal.
JOINT STATEMENT OF fact:
On May 1, 1996, the Company served a notice advising the union of thirty (30) positions to be abolished at the St. Luc Roundhouse, effective May 10, 1996.
JOINT STATEMENT OF ISSUE:
The Union claims that the change in question is of a Technological, Operational or Organizational nature, that notice ought to have been service in accordance with Article 8.1(a) of the Job Security Agreement, and that all employees affected should be made whole accordingly.
In addition, the union claims that eight (8) of the employees concerned ought to have been returned to their original status on Angus employment security in accordance with Appendix D of the Angus Special Agreement, the is claim being irrespective of any determination as to the nature of the change. The Union additionally requests that these employees be so returned and made whole in all respects.
The company denies the Union’s claims.
For The Union: For The Company:
(signed) A. Rosner (signed) A. Y. de Montigny
National Representative Director, Labour Relations
The material before the Arbitrator reflects that some sixty-five employees were transferred directly from the Angus Shops in Montreal, at the time of their closure in February of 1992, to permanent positions in the St. Luc Diesel Shop. From that time forward the St. Luc Diesel Shop utilized the sixty-five additional positions to perform main shop or "back shop" work, of a kind which was previously performed at the Angus Shops. In addition to the work of the sixty-five positions, it does not appear disputed that additional jobs were established, generally on a temporary basis, to complete particular projects by recalling employees on employment security, for varying periods, some of which were in excess of sixteen months. It appears that in June of 1994 some thirty-four additional permanent positions were established within the St. Luc Diesel Shop. This brought the complement of permanent positions at that location to approximately 298, a figure which remained constant for some two years, until the announcement of the job abolishments which are the subject of this grievance.
In the interim, in October of 1995, as part of a reorganization of the St. Luc Diesel Shop, some twenty-nine positions in the roundhouse, which is the location for the performance of the main shop work, were converted from temporary to permanent. It appears that eight of those positions were occupied by incumbents who held rights claimed as ex-Angus employees under the terms of the Angus Special Agreement dated February 3, 1992, as well as the new Job Security Agreement, which became effective July 24, 1995. It is not disputed that the terms of Appendix D of the Angus Special Agreement of 1992 came to be incorporated in the new Job Security Agreement in the following terms:
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 first issue to be resolved is whether, as a general matter, the abolition of the positions in question can be said to involve an 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.
The Company asserts that the positions in question were terminated by reason of reductions in traffic, the retirement of ALCO locomotives and general budget reductions impacting project work, as well as a general lack of work within the shop. The Arbitrator has considerable difficulty with that submission. As appears from the companion award relating to the later layoff notice of July 2, 1996, the reality operating within the St. Luc Diesel Shop appears to be a deliberately gradual and irreversible reduction of main shop maintenance by the Company at that location. For the reasons related in that award, what ultimately occurred was a permanent partial shutdown of main shop activities at the St. Luc Diesel Shop. Upon a closer examination of the facts pertinent to this grievance, I am satisfied that the Union is correct in characterizing the notice of May 1, 1996, and the abolition of the thirty positions in the Roundhouse as inextricably related to the Company’s reorganization of its locomotive maintenance program. Indeed, it appears that on May 6, 1996 Company representatives, including the President of the St. Lawrence & Hudson Railway indicated to the Union’s representatives that the Company did not consider it viable to maintain two diesel shop establishments within 350 miles of each other, referring to the St. Luc Diesel Shop and the Agincourt Diesel Shop in Toronto. In the result, as is now clear, main shop maintenance positions, apparently numbering thirty-two, were transferred form the St. Luc shop to the Agincourt Diesel Shop, with all General Motors locomotive maintenance to be henceforth performed at Toronto. It does not appear disputed that with the retiring of the remaining MLW locomotives scheduled for September of 1997, the St. Luc Diesel Shop will have no further main shop maintenance role in respect of the equipment of Canadian Pacific Ltd., although it may continue, in a small scale, to do contract repair work on commuter locomotives of the STCUM.
Although the evidence before the Arbitrator does indicate that there was a reduction in locomotives dispatched form the St. Luc facility, there is simply no evidence to suggest that there was in fact a decline in traffic of the kind contemplated by 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.
What, then, does the evidence establish? It appears that following the closure of the Angus Shops the Company did maintain an indefinite or permanent main shop maintenance facility at the St. Luc Diesel Shop in Montreal. For the reasons related in the companion award concerning the layoff notice of July 2, 1996, I am not prepared to accept the submission of the Union that what occurred can be fairly characterized as simply a delayed impact of the Angus Shops closure, although it is obvious that the organizational adjustments at the St. Luc facility are not entirely unrelated. The better view, I think, is that employees transferred into permanent positions at the St. Luc Diesel Shop are in a comparable position to others who may have transferred from the Angus Shops to the Weston Shops in Winnipeg after February of 1992. As employees occupying permanent positions within their own seniority classification, they are entitled to the protections of an article 8.1 notice, in the event of operational or organizational change which might occasion their loss of employment at the St. Luc Diesel Shop. That, I am satisfied, is what transpired with the notice of May 1, 1996. The decision taken in respect of the thirty employees was prompted by the transfer of work to the Agincourt facility in Toronto, and an overall decision to wind down the locomotive maintenance function at the St. Luc Diesel Shop, in what constitutes the permanent partial shutdown of an operation, within the meaning of article 8.7 of the Job Security Agreement. On the foregoing basis, I am satisfied that the grievance must be allowed with respect to the Union’s claim to entitlement to notice under article 8.1(a) of the Job Security Agreement.
The next issue to be dealt with concerns the right of the eight ex-Angus Shops employees who, it appears, were working within their own seniority classification when they were re-designated from temporary employees to permanent employees at the St. Luc Diesel Shop in October of 1995. Again, I am compelled to conclude that the position advanced by the Union with respect to the rights of those individuals is to be preferred. Plainly, they were assigned to permanent positions within the St. Luc maintenance operations for no more than seven months before their jobs were abolished. They must, it seems to the Arbitrator, therefore have the protections of any employee recalled to fill what appears to be a permanent position, but which turns out to be temporary, and is terminated within one year, as contemplated under article 7A.14 of the Job Security Agreement. Such employees are entitled to revert to their ES SUB. For reasons related in a prior award of December 9, 1996 concerning the status of ex-Angus employees, the assertion of the Company that the parties agreed to the suspension of the twelve month protection of article 7A.14 of the Job Security Agreement must, in these circumstances, be rejected. I am satisfied that the Union is correct in its position that the eight employees who were placed on permanent position status in October of 1995 are, by the operation of that provision, entitled to be protected against layoff, and to return to the protections of ES SUB.
The grievance is therefore allowed. The Arbitrator finds and declares that the Company violated the terms of the Job Security Agreement by failing to provide notice to the Union and employees in respect of the abolition of thirty positions at the St. Luc Roundhouse on May 1, 1996. The Company is therefore directed to provide such notice forthwith, with all procedural and substantive protections to be granted to the employees affected. I further find and declare that the Company violated the provisions of the penultimate paragraph of Appendix D of the Angus Special Agreement of 1992, also expressed in the terms of article 7A.14 of the Job Security Agreement, by failing to allow the eight ex-Angus employees to revert to their ES SUB protection when the permanent position to which they were recalled in October of 1995 were abolished within less than one year. Such employees are to be restored to their rights accordingly. For the purposes of clarity, however, it should be stated that persons other than the eight identified employees are not, in the Arbitrator’s opinion, governed by the provisions of article 7A.13 of the Job Security Agreement as they were in fact incumbents in permanent positions within their own seniority unit at the St. Luc diesel shop not performing work of a defined term or a special project.
I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Signed at Toronto, March 5, 1997
(original signed by) MICHEL G. PICHER