SHP – 467
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ST. LAWRENCE & HUDSON RAILWAY COMPANY
(the "Company")
AND
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA)
(the "Union")
GRIEVANCE RE ARTICLE 7 OF THE JOB Security Agreement - T. LITTLE
SOLE ARBITRATOR:
Michel G. Picher
There appeared on behalf of the Company:
A. Y. deMontigny – Labour Relations Officer, Montreal
G. St-Pierre – Human Resources Coordinator, Montreal
G. Pépin – Labour Relations Officer, Calgary
A. Ethier – Labour Relations Officer, Calgary
And on behalf of the Union:
B. McDonagh – National Representative, Vancouver
R. Laughlin – Regional Vice-President, Toronto
A. Rosner – Witness
S. Levert – Witness
G. Antinozzi – Witness
R. Laroche – Grievor
A hearing in this matter was held in Montreal on May 28, 1998.
AWARD
The instant dispute concerns the application and interpretation of article 7 of the Job Security Agreement (JSA). Specifically, the parties are in disagreement as to the displacement options which were available employee L. Little when his position as a carman at Trois-Rivières was abolished effective July 24, 1995. The Dispute and Joint Statement of Fact, filed at the hearing, read as follows:
DISPUTE:
The application of article 7 and in particular articles 7A.1 and 7A.11 of the Job Security Agreement, effective July 7, 1995.
JOINT STATEMENT OF FACT:
Mr. Little was affected by an article 8 notice in Trois-Rivières. In accordance with the Job Security Agreement, effective July 24, 1995 he chose to be governed by the rights and obligations of article 7A. The Company allowed Mr. Little to relocate from Trois-Rivières, Québec to Agincourt Yard, Toronto, Ontario.
JOINT STATEMENT OF ISSUE:
It is the opinion of the Union that: 1.) the options set out in article 7A.1 were not adhered to in their proper order. 2.) Mr. Little did not fully exercise his rights in accordance with article 7A.1, therefore he would have no right to displace outside his region. 3.) the application of 7A.11 gives Mr. Little the option of staying in Trois-Rivières and maintaining his ES or, on a voluntary basis, displacing to Montreal.
Therefore the Union asks that;: Mr. Little be returned to Trois-Rivières, Québec and be given the option to maintain his ES or be allowed, on a voluntary basis, to displace in Montreal.
The Company denies the Union’s contentions and claim.
The material before the Arbitrator establishes, beyond dispute, that Mr. Little opted to move to a vacant position in Toronto. It does not appear disputed that his local chairman, Mr. Gilles Antinozzi, essentially agreed to the move undertaken by Mr. Little. However, the Regional Vice-President for the Eastern Region, located in Toronto, objected to the transfer of Mr. Little to Toronto without the consent of the Union’s Regional Vice-President at that location.
At issue is the interpretation and application of the obligations and options available to Mr. Little under the provisions of article 7 of the Job Security Agreement. Initially, however, the Company raised a question of arbitrability. It submits that to the extent that the decision to move Mr. Little to the vacancy in Toronto was approved by the Labour Adjustment Committee (LAC), a bi-partite body established under the provisions of the Job Security Agreement to assist in locating employment options for employees, the matter is not arbitrable. The Company relies, in part, on article 2.5 of the Job Security Agreement which provides as follows:
2.5
One member from each party shall be a quorum. Questions arising before the Committee shall be determined by majority vote. Each member of the Committee present at a meeting shall have the right to cast one vote on each question except that where the two parties are not equally represented at a meeting, the matter will, upon request of either party, be decided by block vote, each party having one vote for that purpose. Decisions of the Committee shall be final and binding.The functions of the Committee are described, in part, under article 2.8 as follows:
2.8 The Committee shall:
(a) review the status of surplus employees as well as any change which may impact upon employees represented by the Union.
(b) examine and develop placement opportunities for surplus employees inside the Company across the system, as well as with external employers, where appropriate, and determine reasonable parameters for suitable employment outside the Railway …
The Arbitrator cannot accept the submission of the Company with respect to the issue of arbitrability. A review of the provisions of the Job Security Agreement governing the jurisdiction and functions of the Labour Adjustment Committee confirms, as the Union submits, that the role of the Committee is consultative. While it does have decision making power in such matters, for example, as determining whether certain work outside the Company will be deemed appropriate for the purposes of maintaining benefits under the Job Security Agreement, there is no language within the JSA which would confer upon the LAC the power to interpret, modify or rescind any substantive provision of the Job Security Agreement or the collective agreement. Whatever may be the case under the job security agreements governing other bargaining units, the Arbitrator must conclude that in respect of the jurisdiction of the LAC under the instant agreement, the position of the Company cannot be sustained. The fact that the move by Mr. Little was in some fashion considered and approved by the members of the LAC does not operate to oust the jurisdiction of a board of arbitration to deal with the merits the instant grievance.
I turn to consider those merits. The Union argues that Mr. Little should have been allowed to remain at Trois-Rivières on employment security, by the operation of article 7A.11 or the Job Security Agreement which reads as follows:
7A.11 Employees who have employment security SUB and who have exhausted maximum seniority at their home location, will not be required to displace beyond the home location if this would result in a junior employee being placed of employment security SUB. Employees exercising this option will not forfeit employment security SUB provided they otherwise maintain eligibility.
It is common ground that at the time of the abolishment of his position in Trois-Rivières Mr Little could have displaced to Montreal. In doing so, however, he would have placed another person on employment security benefits by the operation of the "8 on 8" concept. In that circumstance, by virtue of article 7A.11 Mr. Little was not under an obligation to displace to Montreal where, it appears arguable, he might not have been able to claim benefits in relation to moving expenses.
It is important, in the Arbitrator’s view, to appreciate the evolution of the concept of employment security and the scope of the protections and corresponding obligations which now operate in respect of employees under the terms of the Job Security Agreement. Following the decision of the Mediation-Arbitration Committee chaired by then Judge George W. Adams, substantial changes were made to the employment security regime within a number of bargaining units within the Company, including the instant bargaining unit. Central to the changes is an obligation on the part of employees to protect work over a greater range of territory up to and including the system, as a condition of maintaining employment security eligibility. Article 7A.1 of the agreement reflects that obligation reading, in part, as follows:
7A.1 An employee who has completed eight or more years (96 months) of CCS and commenced service prior to January 1, 994, and is affected by a change pursuant to Article 8.a(a) or (b) of this Agreement, shall be required to do the following, in order, provided he is qualified or can be qualified, prior to becoming eligible for the benefits contained in article 7A of this Agreement.
(a) fully exhaust seniority in their own classification at their Location; if unable to hold work,
(b) fully exhaust seniority in their bargaining unit at their Location; if unable to hold work;
(c) fill, on a voluntary basis, permanent vacancies in other bargaining units, non-scheduled or management positions, or work outside CP Rail as determined by the Labour Adjustment Committee, at the Location;
(d) fully exhaust seniority in their classification on their Basic Seniority Territory; if unable to hold work,
(e) fully exhaust seniority in their bargaining unit on their Basic Seniority Territory; if unable to hold work,
(f) fill, on a voluntary basis, permanent vacancies in other bargaining units, non-scheduled or management positions, or work outside CP Rail as determined by the Labour Adjustment Committee, on the Basic Seniority Territory;
(g) fully exhaust seniority in their classification on their Region; if unable to hold work;
(h) fully exhaust seniority in their bargaining unit on their Region; if unable to hold work;
(i) fill, on a voluntary basis, permanent vacancies in other bargaining units, non-scheduled or management positions, or work outside CP Rail as determined by the Labour Adjustment Committee, on the Region;
(j) fully exhaust seniority in their classification on the System; if unable to hold work;
(k) fully exhaust seniority in their bargaining unit on the System; if unable to hold work;
(l) accept work outside CP Rail at the location as determined by the Labour Adjustment Committee; if unable to hold work;
(m) fill permanent vacancies in other bargaining units, non-scheduled or management positions at the Location, Region, System.
(n) accept, on a voluntary basis, outside work on the System.
If the Union’s interpretation of article 7A.11 obtains, the Company would find itself in the position of maintaining an individual such as Mr. Little idle in Trois-Rivières, while in receipt of employment security benefits for a substantial period of time. This would happen notwithstanding that the Company has vacancies on its system for persons of the employee’s background and qualifications and would be required to hire additional employees. In my view the language of article 7A.11, interpreted in the context of the new order of employment security obligations reflected within the Job Security Agreement cannot be construed so as to sustain such a counter-intuitive result. In my view the interpretation of the Company with respect to the language of article 7A.11 is preferable, to the extent that it is more consistent with the purposive underpinnings of the Job Security Agreement.
The Company’s representative accepts that under article 7A.11, an employee can in an "8 on 8" situation decline to move to another position on the region without forfeiting his or her eligibility to employment security. Importantly, however, he stresses that the article contains the proviso that an employee must "otherwise maintain eligibility." In the Arbitrator’s view the Company is correct in asserting that the maintaining of eligibility requires the employee who is protected by article 7A.11 to nevertheless canvass the full range of options under article 7A.1. In other words, if in the case of Mr. Little he need not have fully exhausted seniority in his classification on the Region because of the "8 on 8" provisions of article 7A.11, he was nevertheless under the continuing obligation to exhaust seniority in the subsequent ranges of options provided under article 7A.1. In that regard, article (j) would have compelled him to fully exhaust seniority in his classification on the system. By moving to a vacancy in Toronto that is precisely what he did. In this circumstance the Arbitrator cannot sustain the position of the Union that the options available to the grievor were not properly administered, or that his transfer to the vacancy in Toronto was ultimately inconsistent with the requirements of articles 7A.1 and 7A.11 of the Job Security Agreement.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, this 25th day of June, 1998. (signed) MICHEL G. PICHER
ARBITRATOR