IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

 (the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(the "Union")

RE: CLAIM FOR LUMP SUM PAYMENT OF ELECTRICIAN MAURICE BOUTHILLIER

 

Sole Arbitrator:        Michel G. Picher

 

Appearing For The Union:

Abe Rosner                        – National Representative, CAW, Montreal

Ron Laughlin                       – Regional Vice-President, Eastern Region, Local 101

Sylvain Levert                     – Vice-President, Atlantic Region, Local 101

 

 

Appearing For The Company:

Gilles Pépin                        – Labour Relations Officer, Calgary

John Bate                            – Labour Relations Officer, Calgary

Dave Guerin                       – Labour Relations Officer, Calgary

G. St-Pierre                        – Human Resources Coordinator, St. Luc

 

 

A hearing in this matter was held in Montreal on November 17, 1999.

AWARD

The Union claims that the grievor, Electrician Maurice Bouthillier, was wrongly deprived of bonus payment of $25,000.00 when he was prevented from exercising a bridging opportunity under the terms of Appendix F of the Angus Special Agreement made on July 24, 1995. The Union maintains that as the grievor properly applied for an early retirement bridging opportunity and completed the necessary forms, including an irrevocable election to take bridging and early retirement on December 1, 1995, the Company could not deny him the bridging opportunity in question, including the bonus of $25,000.00, when it purported to advise him on or about December 7, 1995 that it had acted in error with respect to the calculation of his eligibility.

The claim is made under article 8 of Appendix F of the agreement which reads, in part, as follows:

8.         Angus employees who are or will become eligible for bridging or early retirement no later than December 31, 2001, shall be entitled to receive an additional lump sum of $25,000 paid at the time of retirement or in bi-weekly instalments during the period of bridging, as the case may be, on condition that:

(a)        Such employees desiring to receive the lump sum declare in an agreed-upon form, prior to December 31, 1995, their irrevocable intention to bridge or retire upon reaching eligibility; and

(b)        such employees actually bridge or retire no later than three (3) months after becoming eligible; and

(c)        by bridging or retiring, such employees cause the removal of an Angus employee (whether themselves or other employees) from Employment Security or Enhanced SUB status.

Additionally, employees who, by bridging or retiring, vacate a position with the effect of causing an Angus employee to be recalled to a permanent position, will be entitled to receive the $25,000 additional lump sum.

(emphasis added)

It is not disputed that on December 1, 1995, when Mr. Bouthillier completed the necessary documentation for his bridging and early retirement election, both parties believed his retirement would have the effect of causing an Angus employee, in receipt of employment security benefits, to be recalled to a permanent position. As things stood on that date he was the junior most electrician at the St. Luc facility in Montreal who would have been entitled to such an opportunity.

However, before what would have been the grievor’s last day of work, scheduled for December 15, 1995, the Company made staffing changes which had a negative impact on the possibility of his early retirement resulting in the recall of an Angus employee to a permanent position. The record reveals that on December 4, 1995, the St. Luc diesel work force was reorganized and that fourteen permanent positions were established to achieve what the Company considered to be the appropriate mix of craft complement. Among the adjustments was the addition of a further electrician’s position. In the result, under those circumstances the departure of Mr. Bouthillier on early retirement would not in fact have had the effect of causing an Angus employee to be recalled to a permanent position. Based on that development the Company advised the grievor that he had been offered early retirement, with the possibility of the $25,000 bonus, in error, and that he was in fact not entitled to receive that additional lump sum.

The Arbitrator can well understand the frustration and strong feeling of disappointment experienced by Mr. Bouthillier. The Union’s representative submits that he lost interest in working for the Company as a result of the incident, and it is common ground that in fact he took a subsequent early retirement bridging opportunity, without the additional bonus payment, some three months later, effective April 1, 1996.

The sole issue before the Arbitrator, however, is whether the grievor is entitled to the $25,000 bonus. There is nothing in the evidence before the Arbitrator to establish that the decision of the Company to reorganize the complement of shopcraft trades at the St. Luc Diesel Shop in early December of 1995 was taken other than in good faith, and for a valid business purpose. The material before me confirms that the effective date of the grievor’s early retirement was projected to be December 15, 1995. It is uncontroverted that as of that dated his departure would not in fact have had the effect of reducing the Company’s burden in respect of Angus employees not holding a permanent position and being in receipt of employment security benefits. Whatever the equities, it is clear that the grievor’s retirement would not, in the circumstances disclosed, have satisfied the conditions of the final two paragraphs of article 8 of Appendix F, reproduced above. Very simply he did not come within the conditions which would have affirmed his eligibility for the payment of the additional lump sum of $25,000.

With respect, the Arbitrator cannot accept the submission of the Union’s representative to the effect that the irrevocability of the grievor’s election, as recorded on December 1, 1995, was somehow tantamount to the creation of a countervailing irrevocable obligation on the part of the Company. When the documents before me are read fairly, the most that can be said is that the Company would have been irrevocably bound to pay the grievor the $25,000 lump sum if in fact his departure should have the effect of causing an Angus employee to be recalled to a permanent position. Its obligation cannot be characterized as anything more. Indeed, if the grievance were to succeed, it is not disputed that the Company would find itself obligated to pay the bonus lump sum in a circumstance which would give it nothing in return. That is plainly not the bargain which the parties made.

Nor does it appear that the facts as they unfolded necessarily would have prevented Mr. Bouthillier from having the benefits of the modified Angus agreement. Subsequent to his departure further opportunities to take early retirement while causing an Angus employee to be recalled did in fact present themselves. The grievor’s inability to access those opportunities is, of course, the result of his own decision, for reasons which he best appreciates, to voluntarily leave the active workforce effective April 1, 1996.

On the whole, the Arbitrator cannot conclude that the grievor has been deprived of anything to which he was entitled, and the grievance must therefore be dismissed.

 

 

Dated at Toronto, November 22, 1999

 

_________________________________________

MICHEL G. PICHER

ARBITRATOR