SHP – 463
IN the MATTER OF AN ARBITRATION
Canadian Pacific Limited
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) LOCAL 101
re: UTILIZATION OF DROP TABLE AT WESTON SHOPS
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
B. R. McDonagh – National Representative, CAW
D. Cross – President, Local 101
A. Rosales – Vice-President, Local 101, Prairie Region
G. White – Local Chairman, Weston
J. McLean – Member
Appearing For The Company:
D. E. Guerin – Labour Relations Officer, Calgary
D. T. Cooke – Manager, Labour Relations, Calgary
G. S. Sichello – Facility Manager, Car Department, Winnipeg
A hearing in this matter was held in Winnipeg on April 27, 1998.
By this grievance the Union alleges that the Company has violated the collective agreement, and in particular rule 23, by assigning employees of the Winnipeg Yard to work on the drop table adjacent to the Weston Car Shop. It maintains that the work in question must be assigned exclusively to carmen in the seniority terminal of the Weston Shops, and that it cannot be assigned to carmen in the separate seniority terminal of Winnipeg Yard. It is common ground that while all of the employees belong to the same union, employees from the Weston seniority terminal are represented by CAW Local 101 Lodge No. 6 while those who work in the Winnipeg Car Department, assigned to the Winnipeg Yard, belong to CAW Local 101 Lodge No. 35. The position of the Union is that the Company has improperly assigned to employees at Lodge No. 35 work which it maintains should be assigned to employees of Lodge No. 6. The Company denies any violation of the collective agreement, asserting that light repairs previously performed at the Weston Car Shop were properly transferred to employees of the Winnipeg Car Department, following the closure of the Weston Car Repair Facility.
The nature of the dispute and issues are reflected in the ex parte statement of fact and issue filed by the Union, which reads as follows:
The alleged violation of Rule 23.22, 23.12, 23.17.1, 23.21 in connection with the operation of the Drop Table at Winnipeg.
STATEMENT OF FACT:
On February 1, 1997, Weston Car Repair Facility was closed. The work and 46 employees transferred to Calgary; 17 employees took early retirement, 48 and 20 employees accepted bridging packages for 5 years and 7 years respectively, 6 employees chose severance packages, 6 employees transferred to Weston Component Shops for Trackmobile operation and 14 positions were transferred to Winnipeg Yard.
On March 26, 1997 the drop table was reactivated with employees from the Winnipeg Yard Terminal performing the operations.
JOINT STATEMENT OF ISSUE:
It is the submission of the Union that the Company is in violation of Rules 23.11.1, 23.12, 23.17.1, 23.21.
Rule 23.21.1 reads:
"Except as provided in Rule 23.11.2 below, when vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification the craft for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 7 calendar days to employees in the classification at the seniority terminal where they are created, and will be awarded to senior employees, subject to Rule 23.28, the Local Union Representative to be consulted."
Rule 23.12 reads, in part:
"When vacancies occur or new jobs are created or additional staff is required in a classification, in the craft for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the Local Union Representative to be consulted in each case."
Rule 23.17.2 reads:
"When layoff occurs, an employee laid off from his respective classification at his seniority terminal may, within 30 calendar days, displace the junior employee in his respective classification on his basic seniority territory carrying his seniority in that classification with him, except as may be provided in the Craft Special Rules. An employee who declines to displace the junior employee in his respective classification on his basic seniority territory under this Rule 23.17, shall be laid off subject to recall to his home seniority terminal. A trainee may only exercise seniority pursuant to this rule after complying with Rule 52.22A(j)."
Rule 23.21 reads:
"In the restoration of forces, the employees laid off shall be given preference to re-employment in seniority order. A laid off employee shall be notified by registered mail at his last known address and shall be returned to his former classification. Regional Vice-President shall be furnished with a list of employees to be restored to service."
It is the position of the Union that the Company has violated the above provisions of the collective agreement and asks that the appropriate number of carmen be recalled to Weston Car Facility to perform the work being performed at the drop table. The Union asks that the appropriate number of carmen be made whole from the time the drop table was reactivated.
The Company denies the Union’s contentions and claims.
There is no dispute as to the facts pertinent to the resolution of this grievance. For many years the Company has maintained a main shops maintenance facility at Winnipeg. Included in the Weston Shops facility were both car and locomotive maintenance shops. Immediately adjacent to the car shop was a drop table, a device to facilitate the changing out of wheels on rail cars. The drop table is an outdoor service pit with a short segment of vertically mobile track which allows for the hydraulic lowering and raising of wheel sets for replacement on a rail car which is partially elevated on jacks, over the pit.
Approximately 200 carmen, members of Lodge No. 6, were employed in the Weston Car Shop prior to its closure effective February 1, 1997. The changing out of wheel sets in the car shop by means of the drop table was work traditionally assigned to members of Lodge No. 6, as part of the Weston seniority terminal. It is also not disputed that in addition to scheduled and heavy main shop maintenance on cars, the Weston Car Shop also performed a certain amount of light bad order repairs, of a type which might also be performed at smaller running point shops on the Company’s system.
In 1996 the Company decided to consolidate "main shop" car and locomotive repairs within the Ogden Shops at Calgary. In furtherance of that decision it served notice upon the Union on September 30, 1996 that certain main shop repair work and positions would be transferred to Ogden Shops from the Weston car and locomotive facilities, effective February 1, 1997. For the purposes of the instant grievance, it is not disputed before me that the Weston Car Shop was entirely closed as a result of the notice. Some 171 carmen positions in the car shop were abolished and the parties proceeded to negotiate a Special Agreement, executed on November 11, 1996, as provided under article 8.4 of the Job Security Agreement, for the purpose of minimizing the adverse effects upon the employees concerned. It appears that no one was in fact laid off, in the sense of being put out of employment. A number of employees transferred with their work to the Ogden Shops, while others took early retirement or bridging benefit packages as well as severance packages. Fourteen carmen from the Weston Car Shop transferred to the Winnipeg Car Department. It may further be noted that the Weston Shops are not closed for all purposes. The Weston Component Shops, to which six employees from the car shop transferred, continues to operate, and is said to employ some four hundred persons at the present time.
It is not disputed that the closure of the Weston Car Shop in February of 1997 saw the dispersal of tools and pieces of equipment to other Company shops and facilities, including the car departments located at Thunder Bay, Calgary as well as the Winnipeg Car Department. The Winnipeg Car Department, whose employees form CAW Local 101 Lodge No. 35, generally works in the location described as the Northwest Yard at Winnipeg, a marshalling yard facility which is closely adjacent to the boundaries of the Weston Shops. Equipment such as hydraulic jacks, fork lifts, cranes, loaders, trackmobiles, tractors and wagons were assigned to the Winnipeg Car Department, as was use and control of the drop table. It is the latter assignment, of course, which gives rise to the instant grievance.
The position of the Union is well reflected in a letter dated April 2, 1997 from then Regional Vice-President Glenn Michalchuk. In his letter of protest to the Company he alleged that by utilizing the drop table the Company has effectively re-opened a part of the closed car shop facility, and that it was under a collective agreement obligation to assign work in respect of the drop table to those who traditionally held such work, the employees of the Weston Shops seniority terminal, Lodge No. 6. The Union’s position is that the Company was then obligated to recall carmen transferred to Calgary back to Winnipeg to perform any work done in relation to the drop table. Mr. Michalchuk’s letter reads, in part, as follows:
On March 26 I attended a meeting at Weston Shops between local management and representatives of Lodge 6. Mr. Sichello was in attendance and the issue of the drop table located at Weston Car Shop was discussed. Mr. Sichello indicated that the table was in again in use. Could you please provide me the date that the drop table was returned to service.
The drop table, of course, was closed as the result of the closure of Weston Car and Locomotive. The carmen working that position were served with an article 8 notice as the result of their positions being abolished due to a TO&O change.
The Union submits that with the reactivating of the drop table the Company has reopened part of a closed facility. Therefore, it is incumbent on the Company to recall the appropriate number of carmen and any other classification which was associated with the operation.
It is not disputed that the Weston Shops, including the Weston Car Shop, and the Winnipeg Yard or Winnipeg Car Repair Facility are separate and distinct seniority terminals for the purposes of the application of seniority under the collective agreement as well as under the provisions of the Job Security Agreement. In that regard, rule 23.3(a) provides, in part, as follows:
Except as may be otherwise mutually agreed between the Union and the Company, the Main Shops will be regarded as under this Rule 23.3 as separate seniority terminals for the purpose of seniority. For Labourers, Main Shops will be regarded as forming part of the Seniority Terminal at which they exist.
Note: The following shall be considered as main shops: Angus, Ogden, Weston.
As explained by the Union’s representative, under the instant collective agreement, traditionally each terminal was a "seniority island unto itself". A person laid off at a given seniority terminal could not, absent an agreement or special arrangement, assert a right to displace to another seniority terminal. While over the years certain modifications were made to the collective agreement regime to allow for some scope for displacement out of an employee’s seniority terminal, the basic delineations remain in place under the seniority rules.
While the seniority rules are relatively complex, and were dealt with extensively in the argument of the Union’s representative, in the end the Union rests its grievance on the application of rule 23.20, which reads as follows:
23.20 A laid off employee who displaces another employee on his basic seniority territory or Region, shall retain his seniority rights at his home terminal in accordance with rules 23.17 and 23.18 and shall be subject to recall to his home terminal in seniority order for vacancies of expected duration of 90 calendar days or more. An employee who declines to accept such recall within 7 calendar days shall forfeit his seniority rights at his home terminal and shall retain his seniority rights at his new seniority terminal. An employee who accepts recall to his home terminal within 7 calendar days will return thereto within 15 calendar days from the date of his acceptance.
The Union submits that the employees formerly employed in the Weston Car Shop, presently assigned to Ogden Shops, retain their seniority in the Weston Shops, and are entitled to recall to the work being performed on the drop table, work which the Union characterizes as work which must be bulletined to the Weston Shops seniority terminal.
The Company argues that the Union incorrectly characterizes what has occurred. It draws the Arbitrator’s attention to the provisions of rule 23.24 which read as follows:
23.24 When through an unusual development it become 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 and to determine the number of employees who shall transfer.
In the Company’s submission, as part of the overall bidding and reassignment process which took place following the article 8 notice in relation to the closing of the Weston Car Shop, some fourteen employees were transferred to the Winnipeg Car Department, or the Winnipeg Yard. It submits that those employees, or a portion thereof, were transferred along with the work previously performed within the Car Shop, relating to light running repairs, including the changing out of wheels by the utilization of the drop table. Evidence adduced by the Company confirms that for a time it was contemplated that the drop table might in fact be physically removed from its position adjacent to the Car Shop, and relocated within the Northwest Yard. It would appear that that was, at some point, discussed with the Union’s representatives. In fact, the Company later determined that such a move was cost prohibitive, and opted instead to utilize the drop table in its established location, assigning its operation to carmen of the Winnipeg Yard, from Lodge No. 35. Its representative stresses that the work performed by the Winnipeg Yard employees is identical to the light bad order maintenance previously done by the former employees of the Winnipeg Car Shop. He submits that what occurred was a transfer of the work from the car shop to the Winnipeg Yard, as contemplated by rule 23.24 of the collective agreement. In the Company’s submission the fact that the drop table remains physically located within the geographic confines of the Weston Shops seniority terminal is neither here nor there for the purposes of determining the substance of what transpired.
I turn to consider the merits of the parties’ competing positions. At the outset, the Arbitrator can appreciate the concern which motivates the Union’s grievance. To all appearances, a piece of equipment associated with a main shop, and in particular the supposedly closed car shop at Weston, has been either continued or restored to operation. If what occurred is viewed as a re-opening of a portion of the closed car shop, a prima facie reading of the collective agreement might suggest that there has been a restoration of work to the car shop which would trigger the recall provisions of rule 23.21.
Upon a careful consideration of these provisions, and of the facts of the case, however, the arbitrator cannot sustain the Union’s argument that there has been a violation of the collective agreement. In approaching these provisions it is, I think, important to retain a purposive view of the intention which underlies them. As is evident from rule 23.3(a), the parties agreed to establish main shops as separate seniority terminals. In making that arrangement, however, I think it important to appreciate that the parties did so predicated upon an understanding of the nature of work and assignments normally associated with main shops. They obviously intended, in part, to protect the heavy maintenance and overhaul work associated with main shops for the benefit of employees who would hold seniority in a shop as a separate seniority terminal.
However, in the instant case the work performed in relation to the drop table cannot be characterized as work normally or exclusively associated with main shop repairs. Indeed, the record before the Arbitrator confirms that drop tables are commonly used in performing light repairs at running points, and are found at such locations as St-Luc, Québec, Vaughan, Ontario and Golden, British Columbia. It appears that drop tables are also scheduled for installation at Moose Jaw and Coquitlam. On balance, on the facts before me, the position of the Company, to the effect that the work in relation to the drop table was transferred as part of the transfer of the fourteen employees to the Winnipeg Car Department, in accordance with rule 23.24 of the collective agreement, is more compelling than the contrary position of the Union.
In the instant case there is no evidence before me that the Company has taken initiatives to re-open the Weston Car Shop as a main shop facility. If such evidence were proved, to the extent that the drop table could be shown to be utilized much as it had previous to the closing of the Weston Car Shop, the Union’s case might be more compelling. I must, however, deal with the grievance on the facts as presented. At most, what appears to have transpired is the transfer of the drop table, albeit not physically, to the Winnipeg Car Department, or Winnipeg Yard, for the purpose of accomplishing light running point repairs. Needless to say, the conclusions drawn by the Arbitrator are drawn solely for the purposes of the facts as presented. Should the Company in fact reopen the Weston Car Shop as a main shop facility, making use of the drop table in a manner similar to operations which pre-existed the closure of the shop on February 1, 1997, the Union might well be in a position to advance a meritorious claim. However, as those facts are not made out on the evidence before me, I am satisfied that the position of the Company must be preferred.
In the result, the Arbitrator is satisfied that the evidence adduced by the Union, which bears the burden of proof in this matter, does not establish that the use of the drop table by employees of the Winnipeg Yard constitutes a re-opening of a part of the closed car shop facility at Weston. In the circumstances, no violation of the provisions of rule 23 are disclosed, and the grievance must therefore be dismissed.
Dated at Toronto, May 7, 1998 (signed) MICHEL G. PICHER