IN THE MATTER OF AN ARBITRATION
BETWEEN
ST. LAWRENCE & HUDSON RAILWAY COMPANY
AND
National Automobile, Aerospace, Transportation and General Workers Union of Canada [CAW-CANADA]
RE: LAYOFF OF N. CASTELLI
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – National Representative, Montreal
S. Levert –Regional Vice-President, Montréal
APPEARING FOR THE COMPANY:
A. deMontigny – Labour Relations Officer, Montreal
J-L Durand – Plant Manager, Windsor Station, Montréal
G. St-Pierre – Human Resources Coordinator, Montreal
A hearing in this matter was held in Montreal on Monday, 10 November 1997.
AWARD OF THE ARBITRATOR
The Union grieves on behalf of Mr. N. Castelli, of Montreal, that he was laid off in violation of the provisions of the Job Security Agreement. It seeks a directive of the Arbitrator ordering the Company to pay him a maintenance of his basic rate under the terms of the Job Security Agreement.
Prior to the layoff of March 29, 1996 Mr. Castelli worked at Windsor Station, Montreal, assigned as a trainee-helper to a refrigeration mechanic. It is not disputed that the Company’s notice of layoff, dated March 19, 1996 indicated that the abolishing of the grievor’s position of Refrigeration Trainee was due to "budgetary constraints". The Union submits that in fact the reduction in complement at Windsor Station was occasioned by a substantial reduction in operations at that location, and the transfer of a great number of jobs from Windsor Station, Montreal to Calgary. This, it submits, constituted an operational or organizational change which would give rise to the provisions of article 8 of the Job Security Agreement, including maintenance of basic rates of pay protection for employees adversely affected. There is no dispute that Mr. Castelli knew, as of his notice of layoff, that he would be compelled to take a lower rated position as a labourer, by reason of the abolishment of his refrigeration trainee position.
The Company raises a preliminary issue with respect to the arbitrability of the grievance. Noting that the collective agreement contains mandatory time limits, and that grievances are to be filed within twenty-eight days of the event giving rise to the grievance, the Company’s representative submits that the filing of the grievance on behalf of Mr. Castelli, which only took place in January of 1997, some 200 days after the layoff, is in violation of the mandatory requirements, and that the grievance is therefore not arbitrable.
The Union submits that the failure to pay the grievor his maintenance of basic rate under the terms of the Job Security Agreement constitutes a continuing violation of the collective agreement which would sustain the filing of a grievance in January of 1997, subject only to an adjustment in the compensation which the grievor could claim, with no damages being payable prior to the date the grievance was filed.
Upon a review of the material filed the Arbitrator is compelled to sustain the position of the Company. The issue of whether claims under the provisions of a job security agreement relating to an alleged technological, operational or organizational change constitute an ongoing or continuing violation of the collective agreement was thoroughly addressed in CROA 2581. That case concerned a claim by the Union that certain track maintenance employees affected by a substantial track mechanization program of Canadian Pacific Limited were entitled to grieve the Company’s failure to treat them under the terms of the Job Security Agreement, notwithstanding that their grievance was filed well in excess of the twenty-eight day time limit, because the alleged violations were of an ongoing or continuing nature. In that award the Arbitrator reviewed the jurisprudence and reasoned, in part, as follows:
This is not a case which can be dealt with on the basis of an ongoing or continuing breach or a fresh event which can be said to renew the time limits. In the case at hand the Arbitrator is satisfied that the following comments of Arbitrator Christie in Re Canada Post Corp. and Canadian Union of Postal Workers (1993), 35 L.A.C. (4th) 300 are apposite:
In the contest of the principal grievance before me, C.U.P.W. No. N00-91-00001, it is not strictly necessary for me to decide whether breaches by the employer of arts. 11, 12 and 13 would give rise to continuing grievances; breaches of the collective agreement that could be grieved at any time but remedial only for the time limited by whichever paragraph of art. 9.09 applied. However, because the matter was fully argued and considering what I have to say in relation to the next preliminary matter, I will address the issue.
Brown & Beatty, Canadian Labour Arbitration, 3rd ed., looseleaf, state in para: 2:3128:
Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach. They usually involve the non-payment of money, an illegal strike or benefit premiums, or the assignment of work … It has been suggested that the correct test is the one developed in contract law, namely, that there must be a recurring breach of duty, not merely recurring damages.
(Emphasis added; footnotes omitted.)
The emphasized words certainly suggest that the sort of individual grievances, or properly defined group grievances, that would be likely to flow from the employer policy that is grieved here would be continuing grievances. On the other hand, the requirement that "there must be a recurring breach of duty" suggests the contrary conclusion. This test is drawn from the award of arbitrator Getz in Re Province of British Columbia and B.C.N.U. (1982), 5 L.A.C. (3d), quoting Gorsky, Evidence and Procedure in Canadian Labour Arbitration (1981), in a case that involved hiring the grievor into the wrong salary step. The learned arbitrator stated at p. 415:
The duty to assess Mrs. William’s experience was a single duty, not a recurrent one. The employer was under no obligation to make fresh assessments of that experience from time to time at periodic intervals. The decision that the employer reached in the discharge of its duty to assess, if wrong, no doubt has continuing consequences for her, in that each time she was paid a salary based on that wrong decision, she suffered harm. But that additional harm did not constitute a fresh breach of the employer’s promise. To describe this as a "continuing breach" is, in my view, to deprive the concept of all meaning.
In Re Port Colbourne General Hospital and O.N.A. (1986), 23 L.A.C. (3d) 32, cited by counsel for the union, at p. 328 the majority of a board of arbitration chaired by Kevin Burkett stated:
Allegations concerning … the improper awarding of a promotion … while they may have ongoing consequences, constitute discrete non-continuing violations of the collective agreement.
The key, in my opinion, is this. Time-limits are not put in collective agreements to suggest that where the time has expired no wrong has been done, which is why arbitrators always apply them reluctantly. They are there to allow a party acting under a collective agreement, usually the employer, to know where it stands after the lapse of the agreed time; until it takes a fresh step, with respect to which it must once again consider the consequences.
In the case before me the time-limits in the collective agreement do not mean that the employer could adopt the policy here in issue, wait 25 days and then administer the collective agreement in accordance with that policy free of any possibility of challenge through the grievance procedure. What they do mean is that the employer can rely on the fact that if there is no grievance within 25 days after it has made a particular promotion or work assignment based on the policy that action, and the consequences that flow automatically from it, cannot be grieved. However, the next such action based on the policy may be grieved and, of course, under this collective agreement there can be a policy grievance at any time.
In the case at hand the Company made its position known, and implemented its decision in a manner which permanently impacted employees in the bargaining unit commencing August 16, through October 4, 1993. The Company’s actions were complete by the final date, and went ungrieved by the Brotherhood for a period substantially in excess of the 28 day time limit for filing a grievance. This is not, therefore, a matter in which the Brotherhood can claim ongoing or fresh violations of the rights of the employees who are the subject of its policy grievance as occurred in CROA 2145.
Mr. Castelli knew, as of the time of the notice of his layoff that he would be adversely affected by the Company’s action. Had he acted, his bargaining agent was then in a position to process a timely grievance in respect of the manner in which he should be treated, allegedly under the terms of the Job Security Agreement. This is not a case, in the Arbitrator’s view, where the adverse impact of the Company’s action on the grievor became known or knowable only at a subsequent time, a circumstance which is apparently provided for within the terms of the Job Security Agreement. Apart from the observations reflected in CROA 2581, it must be appreciated that when an employer does implement operational or organizational change, it is important for both the Company and the employees to know, from the outset, which employees will be affected, or are claiming to be affected, so as to provide for an orderly implementation of the change, with some degree of certainty and finality as to the employer’s ultimate liability. If, as the Union would have it, an employee can wait months, or perhaps even years, to raise a grievance under the terms of the Job Security Agreement, the Company’s ultimate liability becomes uncertain on a virtually indefinite basis, an outcome which in my view the parties did not intend by the terms of the Job Security Agreement, when read together with the timeliness provisions of the grievance and arbitration clauses of their collective agreement. While it may be that in certain circumstances a goof faith failure of understanding on the part of an employee, or some excusable break-down in communication between the employee and his union representative may be taken into consideration in determining the timetable for calculating the twenty-eight days under the terms of the collective agreement, no such circumstances are disclosed in the case at hand. On the foregoing basis the Arbitrator is compelled to sustain the Company’s objection as to the arbitrability of this grievance, and it must therefore be dismissed.
In the alternative, should the Arbitrator be in error with respect to the arbitrability of this matter, the outcome would be no different. Upon a review of the evidence, I am satisfied that the abolishment of Mr. Castelli’s position was not, as the Union alleges, the result of an operational or organizational change. The evidence of Mr. Jean-Louis Durand, Manager of the Physical Plant at Windsor Station, confirms that the refrigeration work to which the grievor was assigned in fact has continued virtually unabated to the present. To achieve budgetary savings the Company has reduced the frequency of maintenance on some twenty-six refrigeration units within Windsor Station. However, it appears that only two such units have been eliminated, and the work continues, notwithstanding that it is performed on a reduced basis. On the facts disclosed, were it necessary to determine the matter, I would conclude that the Union has failed to establish that the grievor’s job was abolished by reason of an operational or organizational change within the meaning of the Job Security Agreement.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto this 24th day of November 1997
(signed)
MICHEL G. PICHERARBITRATOR