SHP – 518
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) (LOCAL 101)
RE: SENIORITY TERMINAL OF ALLISTON, ONTARIO
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
B. R. McDonagh – National Representative
R. Laughlin – Vice-President – Eastern Region Local 101
Sterling Smith – Local Chair – Lodge 511 – Local 101
Bill Nash – Member – Lodge 258 – Local 101
Appearing For The Company:
Doug Cooke – Manager, Labour Relations
Dave Guerin – Labour Relations Officer
Jerry Worral – Labour Relations Officer
Bruce Scarlett – Process Manager
Russ Degnan – Human Resource Specialist
A hearing in this matter was held in Toronto on February 15, 2000.
The Company has recently established a new terminal at Alliston, Ontario to serve a newly opened Honda automobile manufacturing plant. Some 15 employees in the classification of carman have been assigned to work at this facility. The Union submits that the employees in question are to be treated as part of the Trenton Basic Seniority Territory. The Company maintains that the Trenton Basic Seniority Territory no longer exists, and that the Allison facility falls within the Toronto Basic Seniority Territory. The issue is one of importance for the purposes of the Job Security Agreement, as well as the collective agreement, as it relates to job bidding and displacement obligations and rights of the employees concerned.
The nature of the dispute is reflected in the Statement of Fact and Issue signed jointly by the parties and submitted at the hearing, which reads as follows:
Whether the Trenton Basic Seniority Territory continues to exist and whether the established new seniority Terminal of Alliston, Ontario falls within the confines of the Trenton Basic Seniority Territory or the Toronto Basic Seniority Territory.
Statement of Fact:
On July 28, 1999, the Company issued an Article 8.1(a) Job Security Notice, advising the Union that it would be abolishing fifteen (15) Carmen positions at Toronto Yard, while simultaneously, offering fifteen (15) work transfer opportunities to the new Facility at Alliston, Ontario.
On September 3, 1999, the Company formally advised the Union that the newly established Facility at Alliston, Ontario would be considered as a new seniority Terminal that falls within the confines of the Toronto Basic Seniority Territory.
Statement of Issue:
The Union contends that the Trenton Basic Seniority Territory is still in existence and that the new Terminal at Alliston, Ontario property falls within the confines of said Trenton Basic Seniority Territory. The Union further contends that the position of the Company is in violation of Rule 23.30 and Appendix 39 of the Collective Agreement.
The Union asks the Arbitrator to so find, declare and order.
The Company denies the Union’s contentions and requests that the Arbitrator declare that the Trenton Basic Seniority Territory is defunct and that Alliston properly falls within the confines of the Toronto Basic Seniority Territory.
It is common ground that historically the Trenton Basic Seniority Territory extended over three separate subdivisions, and included terminals at Peterborough, Havelock, MacTier, Port McNicoll, Trenton, Oshawa and Kingston. Alliston is located north of Toronto at mileage 44.7 of the MacTier subdivision.
The definition section of the Job Security Agreement notes basic seniority territory as “...that seniority territory as set out in Appendix “A”.” Within Appendix “A” of the Job Security Agreement, as it has been since 1995, the following definition is found for the Toronto Basic Seniority Territory:
Belleville Sd. (Mi. 184.8 to 206.0), MacTier Sd. (Mi. 0.0 to 126.9), Canpa Sd., North Toronto Sd., Galt Sd. (Mi. 0.0 to 15.0), Havelock Sd. (Mi. 62.5 to 182.4), Nephton Sd., Parry Sound Sd. (Mi. 0.0 to 0.4).
On the face of the foregoing provision all of the territory of what was the Trenton Basic Seniority Territory would now be contained within the Toronto Basic Seniority Territory.
The collective agreement makes additional reference to seniority territories. In that regard, Rule 23.2 reads, in part, as follows:
23.2 Basic seniority territory shall be defined hereunder:
CP Rail – Divisional Superintendent’s Territory (See Note 1)
Dominion Atlantic Railway – System
Quebec Central Railway – System
Esquimalt and Nanaimo Railway – System
Note 1 (Carmen Only): The Basic Seniority Territory for employees employed on the London Division is as described in the Memorandum of Agreement, dated February 25, 1987, attached as Appendix 16.
It is also common ground that for decades the collective agreement has contained a rule which stipulates that seniority territories are not to be altered save by agreement. In that regard the current Rule 23.30 reads as follows:
23.30 The present seniority territories shall not be changed except by mutual agreement between the Railway and the President of Local 101, CAW-TCA Canada.
The Company submits that the history of these provisions, and their application, discloses that there was agreement, as early as 1971, to abolish the Trenton Seniority Territory, along with the related superintendent’s division, and to bring it within the Toronto Basic Seniority Territory. In that regard it notes that in 1964 the Job Security Agreement, which then covered both national railways and associated railway unions which included carmen, contained the following provision with respect to basic seniority territories:
NOTE: “Basic Seniority Territory” as referred to in Clause I, paragraph (d) and clause 3, paragraph (c) of this Appendix “B”, shall be defined in each of the relative collective agreements and shall be the seniority territories in effect for the various groups under the relative collective agreements as at January 1, 1964, except that in those agreements where “point” or “terminal seniority” existed on January 1, 1964, the “basic seniority territory” shall be the Area or equivalent in the case of the Canadian National Railways and the Superintendent’s Division or equivalent in the case of the Canadian Pacific Railway.
Very simply, in the Company’s submission, from that time the concept of basic seniority territory was directly tied to the territory overseen by a divisional superintendent. In the 1960’s, as the Trenton Division had its own superintendent, its locations, including the MacTier subdivision, fell within that superintendent’s territory and comprised the Basic Seniority Territory of Trenton.
On September 1, 1969 the Company abolished the Trenton Division as an operating entity. The divisional superintendent’s position was terminated and segments of the division were apportioned to the territory of the Smith Falls superintendent and the Toronto superintendent. To that end a notice issued to the shopcraft unions on August 20, 1969 which contained advice of the change and included the following description of the newly organized Toronto Division:
East Switch Oshawa, Mile 172.8 to Mile 194.5
Belleville Sd. Mile 9.4 to and including MacTier, MacTier Sd.
Port McNicoll Sd.
Tweed, Mile 62.5 to Mile 178.6 Havelock Sd.
Nephton and Bobcaygeon Sds.
Present Toronto Terminals Division
The Job Security Agreement, concluded on May 20, 1971, reflected the following understanding with respect to basic seniority territories within the various shopcraft collective agreement and read, in part, as follows:
NOTE: “Basic Seniority Territory” as referred to in Clause 1, paragraph (e) and Clause 4, paragraph (c) of this Appendix “B”, shall be defined in each of the relevant collective agreements and shall be the seniority territories in effect for the various groups under the relative Collective Agreements, except that the “basic seniority territory” shall be no lesser area than the Superintendent’s Division or equivalent thereof. The basic seniority territories as they exist on the date of the signing of this Agreement shall not be changed without the mutual consent of the parties. [emphasis added]
The Company submits that wage agreement No. 16, dated October 5, 1971 negotiated between the Railway Association of Canada and Division No. 4 of the Railway Employee’s Department (R.E.D.), which then included all shopcraft employees, reflected the agreement as of that time that the basic seniority territory of employees coincided with the divisional superintendent’s territory. Rule 23.2 of that agreement was identical to the current collective agreement and provided, in part, as follows:
23.2 Basic seniority territory shall be defined hereunder:
CP Rail – Divisional Superintendent’s Territory
In the Company’s submission correspondence between the Company and then R.E.D. President J.H. Clark, the bargaining representative of all shopcraft employees, dated October 5, 1971, clearly confirms that segments of the Trenton Division fell under the Toronto Division. That document reads, in part, as follows:
This has reference to discussions concerning the up-dating of the 1966 document which outlined the location of Shopcraft Employees, their Basic Seniority Territories and the names of Division Officers.
Enclosed herewith, as requested, are copies of the up-dated document.
(Sgd.) J. A. McGuire
Manager, Labour Relations
The document contains a description of the Toronto Seniority Territory as including the “Former Trenton Division” including MacTier, Havelock, Port McNicoll and Oshawa. It does not appear disputed that an appended note makes reference to a grandparenting provision which was then agreed for a carman at Oshawa and three carmen at Toronto. Further, appended to the Company’s brief submitted to the Arbitrator, is the full document provided to President Clark in 1971. It lists the basic seniority territories for all shopcraft employees on the system, all related to a divisional superintendent, or one of three works managers designated at the main shops, totaling 28 in number. Employees in the former Trenton Division are described as falling under the divisional jurisdiction of the superintendents at Smith Falls and Toronto, respectively.
Based on the foregoing documentation, the Company maintains that the parties were agreed, as early as 1971, that the Trenton Basic Seniority Territory no longer existed. Its representatives stress that the correspondence with then President Clark reveals that he requested clarification of the various seniority territories, and that when it was provided there was no objection made by him or any other Union representative. On the issue of agreement, the Company stresses that the specific grandfathering of four individuals in Oshawa and Toronto, as reflected in the note, is clear evidence that there was specific discussion and agreement in respect of these matters.
It appears that for many years there were no substantial consequences flowing from the change in seniority territories documented by the Company in the above correspondence and notices and the Job Security Agreements which were negotiated contemporaneously with them. In 1992, however, disputes did arise concerning the filling of positions at Oshawa, and the establishment of the Vaughan Terminal on the MacTier subdivision. Those disputes were resolved on a without prejudice basis, by the signing of two memoranda of agreement dated May 8, 1992, the text of which became Appendix 21 and Appendix 22 of the collective agreement. Appendix 22 provided, in part, that the basic seniority territory of employees at Vaughan yard is to be the Toronto Division. Appendix 22 contains a without prejudice understanding that the basic seniority territory of employees “... represented by the Union presently employed on the former Trenton Division locations of Havelock and Oshawa will remain unchanged.”. Appendix 22 also provided that employees newly commencing work at the Toronto yard will have as their basic seniority territory “... the entire Toronto Division including Havelock and Oshawa.”.
It is clear to the Arbitrator that in 1992 the parties were disagreed as to the continued existence of the Trenton Seniority Territory. The language of the two appendices of May 8, 1992 clearly acknowledges that the Company did away with the Trenton Division as an operational entity. Just as clearly, however, it expressly reflects the parties reserving their differing interpretations as to seniority-related rights. In that regard, the final paragraph of Appendix 22, for example, reads as follows:
This Agreement has been concluded without precedent or prejudice in respect to past agreements, agreements presently in effect or agreements that may be negotiated at a future time and resolves all disputes in connection with the bidding and awarding of positions at the locations set out in this Agreement.
Finally, the Company submits that the Award of Interest Arbitrator Judge George Adams, which issued in June of 1985 and resulted in a newly negotiated Job Security Agreement on July 24, 1995, further reflects the agreement of the parties with respect to the MacTier Subdivision being contained within the Basic Seniority Territory of Toronto. Appendix “A” of the Job Security Agreement, which is the Job Security Agreement before the Arbitrator for the purposes of this grievance, lists all of the basic seniority territories on the system including the following designation for the Toronto Basic Seniority Territory:
Belleville Sd. (Mi. 184.8 to 206.0), MacTier Sd. (Mi. 0.0 to 126.9), Canpa Sd., North Toronto Sd., Galt Sd. (Mi 0.0 to 15.0), Havelock Sd. (Mi. 62.5 to 182.4), Nephton Sd., Parry Sound Sd. (Mi. 0.0 to 0.4).
As the foregoing description of territory clearly includes the location of Alliston at mileage 44.7 of the MacTier subdivision, the Company submits that it is correct in treating the newly established Alliston Terminal as part of the Basic Seniority Territory of Toronto.
The Union does not dispute that the collective agreement, and in particular Rule 23.2, defines seniority territories by reference to a divisional superintendent’s territory. Its basic position, however, is that there has never been an agreement to abolish the Basic Seniority Territory of Trenton. It stresses that the Job Security Agreement of August 31, 1992 expressly provided, under the definition section, a note which preserves the fundamental understanding that no such territory could be changed save by the mutual consent of the parties. The note in question reads as follows:
Note: “Basic Seniority Territory” as referred to in Article 4.1(i)(d) and Article 4.1(iv)(c) in this Agreement shall be as identified in each of the relevant Collective Agreements, and shall be the seniority territories in effect for various groups under the relevant Collective Agreements, except that these shall be no lesser than the Superintendent’s Division or equivalent thereof. The Basic Seniority Territories as they existed at May 20, 1971 or subsequently changed by mutual agreement of the parties, shall not be changed without mutual consent of the parties.”
The Union acknowledges that in the 1995-96 round of bargaining, it sought a more definitive description of basic seniority territories. When Interest Arbitrator Judge Adams handed down an Award which established basic seniority territories based on the seniority territories established by agreement between the Company and the R.C.T.C., the parties had a period of time in which to engage in their own negotiations to amend the provisions handed down by Judge Adams. In fact they adopted the list of basic seniority territories which now comprises Appendix “A” to the Job Security Agreement. As noted above, within that listing the entire MacTier Subdivision falls within the Toronto Basic Seniority Territory. The document contains no reference to a Trenton Basic Seniority Territory, either actual or former.
The Union submits that the face of Appendix “A” does not reflect the understanding of the parties. It submits that the parties remained in disagreement as to the status of the Trenton Basic Seniority Territory and that they made an agreement to work out any differences they might have in that regard, and in respect of any other details in respect to basic seniority territories, by the appending of a letter of understanding to the collective agreement, a document which is now Appendix 39. The Appendix, in the form of a letter dated July 4, 1999 from the Company’s Manager of Labour Relations, Mr. K. Webb, addressed to the President of Local 101 of the Union, reads as follows:
During recent discussions at the National negotiations the parties reviewed the subject of Basic Seniority Territories as defined in Rule 23.2 of our Collective Agreement 52.1.
It was determined that in-depth examination of the issue was required to reconcile the similarities and/or differences between Divisional Superintendent’s Territories and Basic Seniority Territories.
Consequently, it was agreed that the matter would be referred to a joint committee of Company representatives and the President and/or Vice-Presidents of Local 101 for resolution during the closed period.
It is common ground that the joint committee referred to in Appendix 39 was never struck during the closed period of the collective agreement, which apparently expired in 1997. There was, as a result, no “resolution” of any issue concerning basic seniority territories by agreement of the parties. The Union’s representative nevertheless maintains that the letter in question reflects the understanding of the parties that no agreement was ever made with respect to changes in basic seniority territories. In his submission, Appendix 39 is evidence that any reservations that the Union maintained with respect to the existence of the Trenton Basic Seniority Territory remained outstanding through the conclusion of the collective agreement in 1995. As there has been no agreement of the Union to any change concerning the Trenton Seniority Territory, its representative submits that that territory continues to exist and that the newly established terminal at Alliston must be deemed to fall within it.
The Arbitrator has substantial difficulty with the position advanced by the Union in this grievance. Firstly, applying normal principles of interpretation, on its face the language of the Job Security Agreement would not support the existence of the Trenton Basic Seniority Territory. The definition section of the Job Security Agreement refers the reader to Appendix “A” for identification of the basic seniority territories. Within that Appendix the MacTier Subdivision falls entirely with the Toronto Basic Seniority Territory. There is no reference whatsoever to the Trenton Basic Seniority Territory.
Likewise, on its face, Rule 23.2 of the collective agreement which defines “basic seniority territory” as “...Divisional Superintendent’s Territory” would not support the conclusion that the Trenton Basic Seniority Territory exists any longer, as it has had no divisional superintendent for a substantial number of years and is no longer an operational division of the Company.
These provisions are not, on their face, ambiguous. They are clear and categorical and would lead to an unqualified conclusion that the Company is right in its assertion that Alliston falls within the Toronto Basic Seniority Territory.
It is not disputed that the existence of the Trenton Basic Seniority Territory could not have ceased without the agreement of the Union. That is mandated by Rule 23.30 of the collective agreement, a provision which has existed for many years and which, it does not appear disputed, would have existed at the time of the purported abolishment of the Trenton Basic Seniority Territory in 1971.
In the Arbitrator’s view, the issue which then arises is whether the Union has not in fact agreed to the elimination of the Trenton Basic Seniority Territory. On a careful review of the evidence and materials before me, I am unable to conclude that the Union did not in fact agree to such a change. More particularly, I am persuaded that the change was in fact agreed to by the Union’s predecessor, the Brotherhood Railway Carmen of the United States and Canada, as represented by Division No. 4 Railway Employees’ Department, the bargaining representative for shopcraft employees of the Company at the times material to the supplemental agreement of July 1, 1971. In that context the correspondence between the President of Division No. 4 R.E.D. and the Company’s Manager of Labour Relations Mr. J.A. McGuire, as reflected in Mr. McGuire’s letter of October 5, 1971 takes on great importance. Significantly, the supplemental agreement of July 1, 1971, signed by both the President of the Brotherhood Railway Carmen of the United States and Canada and the President of Division No. 4 R.E.D. expressly provides “...’basic seniority territory’ shall be no lesser area than the Superintendent’s Division or equivalent thereof.”. As the Trenton Division was abolished as an operating entity of the Company as of September 1, 1969, the only Superintendent’s Division which could refer to employees within that geographic area must be that of the adjacent Superintendents of Toronto or Smith Falls.
Any doubt in that regard appears to be resolved in the letter forwarded to Mr. Clark by Mr. McGuire on October 5, 1971. It contains the updated basic seniority territory list and related division officers. That document, specifically requested by the Union and never objected to by the predecessor bargaining agent, clearly reflects that sections of the former Trenton Division are henceforth contained within the Basic Seniority Territories of Smith Falls and Toronto. MacTier is clearly indicated as falling within the Toronto Basic Seniority Territory. As noted above, the fact that that document contains a specific note describing the grandparented rights for some four carmen, one of whom is to retain the former Trenton Division as his basic seniority territory, while the other three are to come under the former Toronto Terminals Division, reflects that there was advertence to this issue by the then bargaining agent and a conclusive agreement reached with the Company.
Does Appendix 39, being the letter from Mr. Webb dated July 24, 1995 which agrees to the establishment of a joint committee to examine the issue of divisional superintendent’s territories and basic seniority territories constitute conclusive evidence that the Union has not in fact agreed to any changes with respect to the Trenton Basic Seniority Territory? I cannot see how. For the reasons touched upon above, I am satisfied as a matter of interpretation of the collective agreement that the predecessor bargaining agent, the Brotherhood Railway Carmen of the United States and Canada, did, both of its own initiative and through its umbrella representative, Division No. 4, R.E.D., agree to the abolishment of the Trenton Basic Seniority Territory, subject only to the establishment of grandparenting rights for some four designated employees.
There can be little doubt that the parties ran into subsequent disagreements as to the precise status of the Trenton Basic Seniority Territory. That is reflected, in part, by the fact that they executed a “without precedent or prejudice” memorandum of agreement on May 8, 1992 to facilitate the integration of Havelock and Oshawa employees into the Toronto Division. That is, in essence, an artfully crafted agreement designed to fashion certain prior rights for employees of the former Trenton Division. Critically, however, it does so in a manner which reserves to the parties their fundamental positions as to the existence of the Basic Seniority Territory of Trenton. There is, from the standpoint of legal interpretation, nothing within that memorandum of agreement, or the contemporaneous memorandum of agreement relating to Vaughan Yard, that is indicative, much less persuasive, for the purposes of resolving the dispute at hand.
Nor can the Arbitrator find in the language of Appendix 39 anything which would categorically suspend the basic seniority territories as explicitly described within Appendix “A” of the Job Security Agreement. On its face, Appendix 39 appears to contemplate a joint committee negotiation process to seek resolution of differences concerning basic seniority territories. Significantly, however, the document makes no reference to the binding resolution of any eventual impasse, by arbitration or otherwise. Nor does it contain any language which would constrain the Company from dealing with employees, for the purposes of the collective agreement and the job security agreement, on the basis of the basic seniority territories as described in Appendix “A” of the Job Security Agreement. For reasons which it must best appreciate, the Union apparently accepted the letter offered by the Company, presumably in the expectation that some meaningful negotiation and agreement would result. The fact that they did not cannot now be advanced as a basis to strike down the otherwise clear and unequivocal language of Appendix “A” of the Job Security Agreement and its clear definitions of the basic seniority territories. If the parties had intended such an extraordinary condition, they could only be taken to have done so by clear and unequivocal language. No such language can be found in Appendix 39 or anywhere else within the collective agreement or the job security agreement.
Finally, the Arbitrator can see no basis for the assertion of an estoppel against the Company on the facts as presented. As noted above, the text of Appendix 39 falls well short of a representation by the Company to the effect that it will not apply the strict letter of the basic seniority territories as defined in Appendix “A” of the collective agreement. What the history of this issue discloses is that the parties did encounter difficulties and disagreements between themselves with respect to the meshing of the former Trenton Basic Seniority Territory and the Basic Seniority Territory of Toronto. When they did, as happened in 1991-1992, they finessed the problem by reaching stand-alone “without prejudice” agreements to get the matter off center to their mutual satisfaction. Unfortunately it appears that they have never, before the instant grievance, come to grips with the core issue of whether the Union in fact agreed that the Basic Seniority District of Trenton ceased to exist as of 1969 or alternatively as of 1971. A review of the documentation from that time leads the Arbitrator to the compelling conclusion that the predecessor bargaining agent, the Brotherhood of Railway Carmen of the United States and Canada, did agree, as reflected in the memorandum of agreement of May 20, 1971, that a basic seniority territory “...shall be no less area than the superintendent’s division or equivalent thereof.”. That agreement, coupled with the predecessor union’s acquiescence in the subsequent letter of Mr. J.A. McGuire of the Company to Mr. J.H. Clark, President of Division No. 4 R.E.D., dated October 5, 1971 leads to the inescapable conclusion that the Union did agree to the elimination of the Basic Seniority District of Trenton, an area which had ceased to have a divisional superintendent since September of 1969, well before the execution by the carmen’s union of the memorandum of agreement of May 20, 1971.
In the result, the Arbitrator is compelled to sustain the position of the Company. For the purposes of the Job Security Agreement and the collective agreement, the terminal of Alliston falls within the Basic Seniority District of Toronto. The Arbitrator so declares and finds that the position of the Union is not consistent with the language of the collective agreement and the Job Security Agreement. The Union’s grievance with respect to the Alliston terminal is therefore dismissed.
Dated at Toronto this 23rd day of February, 2000.
(signed) MICHEL G. PICHER