SHP 519 IN THE MATTER OF A ARBITRATION:
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY,
(hereinafter referred to as the "Union")
-and-
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION ,
AND GENERAL WORKERS UNION OF CANADA
(CAW-CANADA), LOCAL 101,
(hereinafter referred to as the "Union ")
Re: Grievance of Non-Filling of an Engine Attendant
in Regina, Saskatchewan - 98ARB/48
BOARD OF ARBITRATION: P. S. Teskey, Sole Arbitrator
DATE OF HEARING: March 9th, 2000
LOCATION OF HEARING: Winnipeg, Manitoba
APPEARANCES: J. Bate, Counsel for the Company
G. Pepin, Counsel for the Company
B. McDonagh, Counsel for the Union
AWARD
At the commencement of the hearing, the parties agreed that I was
properly appointed and had jurisdiction to hear and determine this
matter which essentially involves contract interpretation.
The Joint Statement of Fact and Issue was tendered and reads as
follows:
"Statement of Facts:
On May 8,1998 the Union received a notice from S. J. Woodrow advising
that an Engine Attendant position at Regina, Sask. was abolished.
The Union grieved same suggesting that an operational change had
taken place. The Union also grieved that the Company was violating
its own Safety policies and practices by requiring the remaining
Engine Attendant to work alone and or to utilize Trades person to
perform the work of the engine Attendants position which had just
been abolished.
Statement of Issue:
It is the Union's position that:
the Company's own safety policies and practices in accordance with
the operation and movement of locomotive requires a crew of at least
two Engine Attendants;
Therefore, the Company must adhere to it's own safety policies and
practices and fill the position in question, then it is the position
of the Union that:
- the Company has violated Article 8 of the Employment Security/Job
Security Agreement by changing the operation at Regina, Sask. in
relation to the operation and movement of Locomotives;
Therefore, the Company must apply the provisions of the Employment
Security/Job Security Agreement.
The Union asks the arbitrator to so rule.
The Company denies the Union's contention and claims."
Written submissions were also provided with respect to this grievance
as well as further verbal argument.
Prior to dealing with the various authorities which were referred to
me, I might reproduce a portion of the Company's written submission
as follows:
17. First, the Company wishes to address the Union allegation that
the Company must fill the Engine Attendant position which was
officially abolished on May 8,1998.
18. To address the Union's assertion in this regard, the Company
submits that the narrow issue to be determined is whether or not
management has the right to discontinue, blank or abolish a
position. The Company, naturally, submits that it retains the sole
right to decide whether a vacancy exists to be filled, subject of
course, to any Collective Agreement restrictions.
19. Rule 23.11 of the Collective Agreement 101 governs the
requirement to bulletin permanent vacancies. It reads as follows:
23.11.1
"Except as provided in Rule 23.11.2 below, when vacancies occur for
which replacements are required, or newjobs are created or additional
staff is required in a classification in 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 ..
This provision in the collective agreement requiring the Company to
post vacancies does not become applicable simply because a position
is vacated. There must be adequate work in the opinion of the
Company to justify the filling of that position. In other words,
there must be work to be performed, and the Company is not mandated
to fill a position just because it existed, prior to an incumbent's
retirement."
The Union's written submission indicates as follows:
17. In its presentation the Union has made two arguments in regard
to this grievance. The first is that the Company's own safety
policies and practices in accordance with the operation and movement
of locomotives requires a crew of at least two Engine Attendants and
therefore the Company must adhere to it's own safety policies and
practices and fill the position of Engine Attendant abolished May
8,1998.
18. The Second is that should the Company be successful in its
arguments before the Arbitrator then it is the position of the Union
that an Article 8 notice as outlined in the Job Security/Employment
Security Agreement ought to have been served in this instance."
Further written submissions were provided as to the issue of
jurisdiction with respect to whether that was contained or not by the
original Agreed Joint Statement of Fact and Issue. The position
of the Union was that the issue of reassigning the Engine Attendant
work was inherent in the Union's overall argument that the work fell
within the bargaining unit. As well, the Union stated that it had
been unaware that work was being assigned outside the bargaining unit
and that would have been raised initially if there had been such
awareness. It had been the Union's understanding that the position
was being abolished because the work had been reduced to such an
extent as to establish a situation of redundancy.
The Union also felt that this was a new issue that was presented at
the hearing by the Company and, accordingly, it would be appropriate
that it be determined. Alternatively, the Union took the position
that, if I was not prepared to consider the matter based upon the
original Joint Statement, an opportunity should be provided to
withdraw that document and revise it or to submit a separate document
from the Union alone.
That is an important issue to consider.
In its' additional submission, the Company notes as follows:
"'7) We submit in reference to the above, the Company does not agree
to allow an expansion of this dispute. Our position remains that
the dispute placed before the Arbitrator requires an award based on
the issues and facts, and only those, submitted and acknowledged by
the parties in the Joint Statement of Fact and Issues which was
agreed to by the parties and which defines the Arbitrator's
jurisdiction.
g. In previous Arbitration awards, expansion of the issue and
dispute has been addressed. In ADH C 331, CNR verses IBEW, Mr.
Picher stated in part:
"At the hearing the Brotherhood sought to advance a different
position, indicating that it wished to contest fully the merits
of the allegation of misappropriation as against Mr. Gillespie,
save for certain specified items.
The Company objects to the position taken by the Brotherhood at the
hearing, asserting that the Brotherhood was seeking to depart from
the agreed terms of the joint statement of issue, and thereby to
expand the nature of the grievance. Counsel for the Brotherhood
submits that in fact the language of the joint statement of issue, as
originally framed, and particularly the statement that the discipline
assessed is unwarranted, is broad enough to allow the Brotherhood to
now take the position which it does.
The Arbitrator has substantial difficulty with the position advanced
by the Brotherhood.
It is not disputed that the parties have, for many years, followed
the established practice in the railway industry of attempting to
define the scope of their dispute through the format of a written
joint statement of issue. For a time, prior to 1989, the parties
resorted to the Canadian railway Office of Arbitration for the final
resolution of their grievances. In that forum they were subject to
rules which limited the jurisdiction of the Arbitrator to the issues
raised in the joint statement of issue. Although they withdrew from
the office in 1989, they continue to maintain the requirement for
the joint statement within the terms of their collective agreement.
In my view it would be to relieve against the intention of article
11.19 to effectively allow the Brotherhood or the Company to obtain
an amendment of the joint statement of issue at the hearing, by
direction of the Arbitrator. The collective agreement plainly does
not contemplate that possibility, and in that respect is consistent
with the general rules and practice within the industry, and the
rules governing the Canadian Railway Office of Arbitration.
Moreover, the fact that the parties have stated a preference to have
the incumbent arbitrator of the Canadian Railway Office of
Arbitration hear the grievances under their collective Agreement
is further evidence to suggest that the parties intended to
maintain established industry practice within their own grievance and
arbitration procedure. The purpose underlying that approach need not
be elaborated. It is in the interest of both parties to come to the
arbitration hearing with a clear, well-defined understanding of the
scope of the dispute and issues which will be the subject of the
hearing.
The Brotherhood cannot, however, in the case at the hand take the
position which it no v seeks to take, namely to put the employer to
the strict proof of all elements of misappropriation. It waived that
position in its communication with the Company in respect of the
meaning of the joint statement of issue, and cannot now reside from
that position.
The objection taken by the Company is therefore sustained. The
matter shall be remitted to the parties for the continuation of the
hearing."
In SHP 476; SL&H verses CAW, Arbitrator Mr. Picher stated in part:
"During the course of argumentation the Union's representative
further submitted that an article 8.1 notice should have been served
for the original layoffs. The company's representative takes
exception to that issue being raised, as it is not contained within
the Joint Statement of Issue. As a fundamental position, the
Arbitrator must sustain the argument of the Company on that point.
Rule 29.4 of the collective agreement contemplates the parties filing
a Joint Statement of Issue, to be submitted to the arbitrator at
least thirty days prior to the hearing.
"While the instant collective agreement does not, like others in the
railway industry, expressly preclude the arbitrator from dealing with
issues not mentioned in the Joint Statement of Issue, prior awards
have noted that the intention is essentially the same, and that
otherwise the requirement of a Joint Statement of Issue would have
little practical purpose. I would therefore conclude that the issue
of any violation of article 8 of the Job Security Agreement is not
properly before me.
10. In ADHOC 281, C.P. verses CSCU, the Arbitrator Mr. Picher,
stated, in part:
"The first issue advanced by the Union is the alleged failure of the
Company to comply with the requirements of article 12.4 of the
collective agreement. At the hearing the Union further submitted
that the Company s actions were in contravention of article 12.3.
In the circumstances of this case, however, I cannot allow the
objection advanced by the Union on the basis of the failure to comply
with article 2.3 of the collective agreement. As is apparent from
the terms of article 13.4 of the collective agreement the parties
have established a particular form of arbitration procedure which, it
may be noted. is generally consistent with the practice of the
Canadian Railway Office of Arbitration.
They have agreed that a joint statement of issue is to be filed, and
that that statement must make reference to the specific provision or
provisions of the collective agreement which it is alleged has been
violated. For reasons which it may best appreciate, the Union has
not included an allegation of any violation of article 12.3 as part
of the joint statement of the dispute submitted to this Arbitrator.
As is apparent from the restrictive terms of article 13.7, I am
without jurisdiction to amend or disregard the requirements of
article 13.4. In all of the circumstances, therefore, I am compelled
on these grounds to dismiss the objection of the Union in respect of
the alleged violation of article 12.3 of the collective agreement. "
The Union basically relied upon the general propositions as found in
Brown & Beatty, Canadian Labour Arbitration, as to assignment of work
outside of the bargaining unit, geographical definitions, unit
definitions in terms of employees, bargaining unit work, assignment
of bargaining Unit work to non-employees, and remedies for improper
work assignments.
Previous decisions between the parties are obviously of great import
and I particularly appreciate the comments of arbitrator Picher in
SHP 476 as quoted above at p. 5 herein. Variance from the joint
statement of facts and issues make such a process of "little
practical purpose" and an arbitrator must be extremely cautious about
expanding the hearing beyond what the parties agreed to put before
him/her.
However,the twist to the general proposition is that the Union now
indicates that the Agreed Joint Statement was based upon a lack of
knowledge as to the facts and that the new issue as to assignment of
work outside of the bargaining unit would have been dealt with if
they had been aware. The understanding which gave rise to the Agreed
Joint Statement was that the position (as indicated previously) was
being abolished as a result of redundancy as a result of reduction of
work. The request is that the documents should be revised or that a
separate document should be provided by the Union, either of which
possibilities would entail the possibility of a further hearing based
upon the new issues but quite clearly the evidence has been provided
already. In this particular instance I do not believe there is a
practical necessity for such additional hearing or additional
submissions but it would be my respectful view that, in the instance
of mistaken facts or issues by either party or in the instance of new
matters arising at a hearing, the general rule as stated by
arbitrator Picher should not be rigidly applied.
The practicality of a procedure such as has been used by the parties
is beyond doubt but also basic fairness and reality must always be
considered. It is not my intent to overturn the procedure which has
been utilized for a great length of time, which also has been
recognized as a valid one by various arbitrators, and which has
merits. What I am saying is that there are certain situations in
which rigidity is not appropriate although it may create some delay
in the proceedings. In this particular instance, I do not believe
that such delay is necessary. Accordingly, I have considered all of
the issues but I do feel that I am in a position to render an award
on the merits to which I now turn.
As set forth earlier, the basic issues are whether or not the
position of Engine Attendant was properly abolished or if such
position ought to have been posted (or an Article 8 notice served) or
if this is a matter of safety in terms of how the work is being
performed.
The initial evidence of the Union was provided by Mr. B. Green who
works as an Engine Assistant and performs the duties thereto. He is
required during the course of same to move locomotives for fueling
and oil changes and can be required to move the locomotive for a
distance of up to two city blocks from the station to the maintenance
area. There are time constraints in terms of doing same in terms of
scheduling and it was his view that it was dangerous for a single
Engine Assistant to operate a locomotive in a backwards direction due
to visibility constraints. Accordingly, a second individual was
required.
Given the realities of the situation, it was not possible to obtain
the necessary help in a timely fashion by assignment of somebody from
Moose Jaw upon a given day although such scheduling could be done in
advance and had happened at least once. If such advance scheduling
could be done, the work required could be performed twice weekly.
Mr. Green has been employed with the Company for some twenty-eight
years and has been in Regina since 1984. Originally he had served
as a Mechanical Supervisor until 1989 at which time there was a
change in that only three Engine Attendants were left in Regina of
which he was one.
At various times he had requested assistance which was sometimes
provided and sometimes not.
Although he knew that he was violating the rules, on occasion he
chose to move the locomotive by himself as the units had to be
serviced in order to work. He felt that there might have been
reprisals if he had not done so but he had never been disciplined for
refusing to do the work by himself. What he was trying to do was to
"get the work done" and everybody did that as well.
Mr. Green had raised the safety issue about the work being done with
his supervisor at the time (now retired) and the issue had been
"casually mentioned" at a safety meeting but there had been an
equally "casual" response that his position could be abolished if the
proposed action of the Union was followed. He had not discussed this
with any further supervisors.
The Company's position was that it did not disagree that there should
be two people involved in moving an locomotive but, given the changed
wording of the Agreement, not both of same had to be Engine
Attendants but simply a "person" which was what was occurring.
Individuals beyond the bargaining unit who were used for this purpose
did not fall within the ambit of the grievance procedure within the
Collective Agreement but did (and were) appropriately trained to
assist the one member of the bargaining unit who was assigned.
The issue as to whether the work was properly assigned beyond the
bargaining unit was something that was not within my jurisdiction
under the Agreed Joint Statements of Facts and Issues as discussed
earlier. It would appear to me that the role of the second
individual (and I fully accept that a second individual is necessary)
is for safety given the difficulties of visibility in terms of moving
the locomotive, particularly in a reverse manner.
On behalf of the Company Mr. J. Woodrow, the Service Area Manager
(Mechanical) for the Saskatchewan region which encompassed both
Regina and Moose Jaw, testified.
It was his evidence that it had been identified for some time that
there was not sufficient work for two Engine Assistants to be
assigned upon a full-time basis (forty hours per week) although there
were occasions when personnel would be sent from Moose Jaw to Regina
to do specific repairs or maintenance when necessary. The point was
that Regina would be supplemented as required but the new system that
was instituted allowed for some latitude to the Company in terms of
assignment or spotting and moving of locomotives when required. He
agreed that a qualified Yard Operations individual should be provided
when necessary but that was capable of being done by other employees
provided that they had received adequate training.
In cross-examination, he a reed that transport of the locomotives
should not take place if there was nobody qualified to be the second
spotter and that it would be appropriate for the Engine Assistant to
wait until such assistance was available rather than attempting to do
it alone.
The change in procedure had been made before Mr. Woodrow returned to
the Saskatchewan area.
Mr. Green testified briefly again and indicated that the number of
occasions upon which type of problem arose was greater than the 5% of
times estimated by the Company. There are no hard statistics that
were put before me but I am satisfied that it does happen time to
time and I am also satisfied that, certainly, two individuals should
be involved for safety purposes. However, the issue is essentially
whether this should be bargaining unit work or not and whether this
particular bargaining unit has exclusive jurisdiction. I do not have
the other "running trades" Agreements before me to review albeit the
Union has indicated that they have reviewed same and that this work
is not covered under those Agreement.
The Company's position in terms of the facts as presented in their
written submission were as follows:
"6. Prior to 1989, in addition Running Trades employees, (covered by
another Bargaining unit) the staff at the Regina Mechanical Facility
comprised of the following;
4 Carmen
2 Engine Attendants
4 Mechanical Supervisors
7. The activities performed by the Mechanical personnel were mostly
related to the inspections of Freight Cars, specifically Heated Box
Car and Refrigerated Cars. Also, the Regina Yard had a Car Compound
established for the purpose of unloading and loading automobiles.
In 1989, the Company stopped utilizing Heated Box Cars and CP Reefer
Cars at Regina to transport customer goods and also discontinued the
operation of the Car Compound at Regina.
9. Following the abolishment of all Mechanical positions only two
Engine Attendants were retained at Regina Yard. The duties and
responsibilities of these two Engine Attendants were to service
five Yard Locomotives. The servicing of the Locomotive consisted in
the following activities;
* fuel locomotive
* check oil level
* check sand boxes
* service cab, cleaning & refurbish supplies
Also, as required the Engine Attendants moved Locomotives within
the confines of the yard.
10. Prior to May 8,1998, Engine Attendant Harty, worked from 7:00am
to 15:OOpm with Saturday and Sunday as rest days. Engine
Attendant Green, worked from 6:OOam to l4:OOpm, Monday to Thursday,
Sunday 8:OOam to 16:OOpm with Friday and Saturday assigned rest days.
11. Based on the above work scheduling, the two Engine Attendants at
Regina. were working together four days a week, 6 hours a day. On
Sunday and Friday only one Engine Attendant was working at any
time in the servicing of Yard Locomotives at Regina.
12. Having reached 65 years of age, Engine Attendant Harty retired
on April l,1998.
13. Mr. J. Woodrow, Service Area Manager at Moose Jaw, also
responsible for all Mechanical activities at Regina., in consultation
with the Operating Department at Regina determined that the Engine
Attendant position held by Mr. Harty was redundant and would not be
filled.
14. By way of letter on May 7,1998, Mr. Woodrow formally advised Mr.
R. Cochrane, CAW Union Representative at Moose Jaw, of the
abolishment of the Engine Attendant position held by Mr. Harty at
Regina."
I have already quoted the relevant provisions of the Collective
Agreement but would note the following comments in the written
argument of the Company:
18. To address the Union's assertion in this regard, the Company
submits that the narrow issue to be determined is whether or not
management has the right to discontinue, blank or abolish a position.
The Company, naturally, submits that it retains the sole right to
decide whether a vacancy exists to be filled, subject of course, to
any Collective Agreement restrictions.
20. This provision in the collective agreement requiring the Company
to post vacancies does not become applicable simply because a
position is vacated. There must be adequate work in the opinion of
the Company to justify the filing of that position. In other words,
there must be work to be performed, and the Company is not mandated
to fill a position just because it existed, prior to an incumbent's
retirement.
21. For instance, in CROA 1287 between Canadian National Railway and
The Canadian Brotherhood of Railway in dismissing the grievance, the
Arbitrator stated;
"The company's position is simply that the Note dictates the
procedure that must be followed in filling vacancies in the
bargaining unit created by temporary assignments. It does not
impose a positive obligation, unless the company is acting in bad
faith, to fill the vacancy. In this particular case, the
uncontradicted evidence demonstrated that owing to the recession the
downturn in business rendered the position in question redundant.
I can discern nothing in the Note that is designed to supplant the
company's discretion to determine that a position is redundant by
virtue of a business decline. Or, from another perspective there
would have to be very clear language to compel me to conclude that
the employer must fill a position in circumstances were there is no
job to be performed.
Accordingly, it is my conclusion, that the Note directs the manner in
which a temporary vacancy is to be filled. It does not direct the
employer to fill such a vacancy.
(A Copy of the case CROA 1287 is attached as Appendix 3)
22. Also, in CROA Award No. 2475, involving the blanking or
abolishment of brakeperson's position, Arbitrator Picher wrote:
"Firstly, the Arbitrator accepts, as submitted by the Company, that
the prerogative to determine whether a job of work exists so as to
give rise to a vacancy remains vested in the employer, absent clear
and unequivocal language in the collective agreement to the
contrary."
(A Copy of the case CROA 2475 is attached as Appendix 4)
23. Moreover, in case AD HOC 356 between CP Limited and Canadian
Pacific Police Association in connection ,with the elimination of a
constable position created by the dismissal of a constable, Mr.
Picher stated in his award;
"It is, of course, well established that an employer is, absent
contrary language in a collective agreement, entitled to exercise its
own discretion as to whether a vacant position should be declared, or
if one exists, whether it should be filled. In this regard the
Company stresses the provisions of article 4.01 of the instant
collective agreement which are as follows:
4.01 All vacancies for a known duration of sixty calendar days or
more which the Company requires to be filled shall be bulletined
promptly to all employees over the seniority district. ... (emphasis
added)
The Arbitrator must agree with the Company that the language of the
above provision, consistent with many comparable agreements in the
field, reflects the understanding that it is for the Company to
determine whether it is necessary to fill a given vacancy. The
evidence before me is manifest that the decision not to fill the
vacancy created by the initial dismissal of Constable Moore was made,
arguably, as early as November of 1993, and certainly was well in
place at the time of his reinstatement. There is little in the
material or the evidence before me to suggest other than a decision
by the Company to continue its operations in the same manner, albeit
with a reduced complement of constables."
(A Copy of the case AD HOC 356 is attached as Appendix 5)
24. The Union suggested in the Step II grievance that the Company
violated it's own Safety Policies and practices in connection with
the movement of Locomotives by a single Engine Attendant.
25. The Company completely disagrees with the Union's allegation and
offers the following comments;
First, the Company must point out that all Engine Attendants must be
certified in order to operate a Locomotive. They must attend the
"Shop Track Operation Curriculum Training Program" and successfully
complete the qualification test. All general safety practices in
connection with the movement of Locomotives are outlined in the Shop
Track Operation Curriculum manual dated March 1996, which was the
current manual at the time of the grievance before you today.
27. Mr. Arbitrator, the program clearly details steps to be taken
in moving locomotives including the requirement to have someone ride
the point, checking around units before moving them, the bell that
must be rung as the move commences and while passing through
restricted areas, not leaving units foul of tracks, ensuring there
are not conflicting movements, hand signals and radio communications,
brake test performance and blue signal requirements. The course is
conducted in a classroom environment for 2 days followed by a written
examination.
28. As mentioned previously, prior to the abolishment of the Engine
Attendant position held by Mr. Harty, there were some periods during
the operation that only one Engine Attendant was assigned in the
servicing of locomotives, Friday and Sunday to be specific.
29. Occasionally, during the servicing of locomotives the Engine
Attendant is required to move a locomotive from point A to B. When
only one Engine Attendant was available to perform the movement of
locomotives, a procedure was developed and implemented by Mechanical
Services and the Operating Department at Regina.
30. The procedure in place at Regina, provides the assistance of an
Operating employee to the Engine Attendant in order to protect the
point of the movement. In any circumstances, an Engine Attendant
must follow all Safety Policies and practices during the movement of
locomotives. Mr. Jim Woodrow Area Service Manager is present and is
prepared to explain the procedure in place at Regina, should you so
desire, Mr. Arbitrator.
31. An Engine Attendant who believes while performing an assignment
that it doesn't fall within the Safety Policies or practices of the
Shop Track Operation Manual must not perform the activity and must
advise his supervisor.
34. The Company has taken all steps to ensure compliance with Safety
Policies and Practices in the movement of locomotives at Regina
Yard. However, it is also the responsibility of any CP employee to
comply with Company Safety Policies.
35. If for any reason an employee feels that it is unsafe to execute
an activity it is his responsibility to advise his supervisor and
indeed not to perform the activity.
36. Also, an employee while at work who has reasonable cause to
believe that a condition exists that constitutes a danger to him, the
employee has the right to refuse to work pursuant to Canada Labour
Code Part II, section 128.
37. Neither of the two Engine Attendants mentioned in this brief
have ever made recourse to the Labour Code to indicate a danger in
condition regarding the movement of Yard Locomotives at Regina Yard.
38. Furthermore, since abolishment of the Engine Attendant position
on May 8,1998 at Regina, no Safety or practices violations has been
reported to the Company in connection with the movement of Yard
Locomotive performed by the single Engine Attendant at Regina with
the assistance of Operating personnel, as required."
With respect to the Article 8 notice, the Company's brief indicates:
"40. Article 8 of the Job Security Agreement reads as follows:
"8.1 (a) The Company will not put into effect any Technological
Operational or Organizational change of a permanent nature which will
have adverse effects on employees holding permanent positions without
giving as much advance notice as possible to the President of Local
101 or such other person as may be named by the Union to receive such
notices. In any event, not less than 120 days notice shall be given,
with a full description thereof and with appropriate details as to
the consequent changes in working conditions and the expected number
of employees who would be adversely affected."
"8.1 (b) Where supervisors or employees holding expected or excluded
positions return to the bargaining unit and displace an employee
occupying a permanent position, the Company will provide the Union
with as much advance notification as possible, including all
appropriate details."
"8.1 (c) Prior to implementing any other permanent change of a know
duration of one year or more and having an adverse effect on
employees holding permanent positions, the Company will provide the
Union with as much advance notification as possible, including a
description of the change and the expected number of employees who
will be adversely affected."
41. Article 8.7 of the Job Security Agreements sets out some
parameters in the context of the terms "Operational and Organization"
Article 8.7 of the JSA reads as follows:
"The terms operational and organizational change shall not include
normal reassignment of duties arising out of the nature of the work
in which the employee are engaged, nor changes brought about by
fluctuation of traffic or normal seasonal adjustments."
42. It is clear that the language of the Article 8 of the Job
Security Agreement does not require the Company to issue an Article 8
in this situation, as no employee at Regina was adversely affected
by the Company's decision to abolish the position formally held prior
to Mr. Harty's retirement.
43. What transpired here was a normal reassignment of duties. A
situation occasioned by an employee's retirement.
44. Arbitrator Picher, in case AD HOC 356, in dismissing a grievance
where the Union claimed an operational or an organizational change
due to the elimination of a constable position, Arbitrator stated;
"The Company relies, in part, on the prior decision of Arbitrator
Weatherill in CROA 284. That case concerned the reduction of mail
room staff in the Saint John's operations of the Canadian National
Railway. The arbitrator rejected the contention of the union that
notice under article 8 of the Job Security Agreement was owing in
that case. He reasoned that what transpired was a reduction in
service, and not an operational change. The following comments
appear to express the rationale for the award:
The organizational or operating change, if any would appear to have
been in the reduction of mail deliveries. This is, as is the
abolisation of a position a change of "operations" in a narrow sense,
but it is not necessarily an "operational change" of the sort
referred to in Article VIII of the Job Security Agreement."
and furthermore,
"The sole issue presented for me to resolve is whether the Company in
fact implemented a technological, operational or organizational
change in its decision not to fill the vacancy at Vancouver created
by the initial discharge of Constable Moore. For the reasons related
above, I am compelled to conclude that the reduction of one position
in the circumstances disclosed, or to put it differently, the
decision not the fill the vacancy left upon the dismissal of
Constable Moore, cannot be characterized as an occupational or
organizational change as that concept is defined under the Job
Security Agreement.
Clearly there was no reduction of plant or plant capacity nor any
change in the manner, method, procedure or organizational structure
in place at Port Coquitlam or Vancouver which occasioned the change
in question. Nor is there any evidence of any permanent or permanent
partial shutdown of operations or any installation, or removal of
excess plant capacity. Very simply, it appears that the Company made
the judgment that the volume of work was such that it could be
performed by one less staff member. Such a decision, standing alone,
does not amount to an operational or organizational change."
(A Copy of the case AD HOC 356 is attached as Appendix 5)
45. The Union has the burden of proof to establish that a particular
reduction in staff is the direct result of a Technological,
Operational or Organizational change.
46. For example, in Case SHP 362 between Canadian National Railway
and Sheet Metal Workers International Association in connection with
Article 8 notice, Arbitrator M. Picher stated:
"It is well established that the adverse impact of a T.O. & 0.
change can be offset by attrition. In SHP 345 the arbitrator made
the following comment:
One point of principle which the Arbitrator accepts, apart from those
related in the jurisprudence cited above. is that the Company is
entitled to take into account attrition in its complement of
employees in determining whether an operational or organizational
change can be said to have adverse impact on employees. If a group
of 100 employees is affected by the abolition of ten positions, while
the same time ten employees quit, retire or are discharged for cause,
it can be said that the operational change has impacted the work
force in that it reduced the complement of employees from 100 to 90.
To the extent, however, that no employees are laid off, it cannot be
asserted that there has been an adverse effect on employees caused by
the operational change. On that basis the Arbitrator accepts the
position of the Company. In considering whether any change which it
has implemented might be an operational or organizational change,
requiring a notice under Article 8.1 of the ESIMP, it must be found
that no such notice is required where the job abolishments are offset
by contemporaneous attrition in the bargaining unit. Article 8.1 of
the ESIMP is concerned with operational or organizational change ".
. . of a permanent nature which will have adverse effects on
employees . . .". Where it is established that attrition has
cushioned the blow of any particular job abolishment, to the extent
that any particular job abolishment can be matched with an
identifiable incidence of employee attrition, article 8.1 of the
ESIMP has no application."
(A Copy of the case SHP 362 is attached as Appendix 8)"
I have not repeated all of the conclusions of the argument of the
Company with respect to the merits as I do not believe that is
necessary.
The Union's position (at least in relation to the material portion of
the written submission) was as follows:
"2. The circumstances which give rise to this matter is outlined in
the Joint Statement (Exhibit 1) as follows:
"On may 8,1998 the Union received a notice from S.J. Woodrow advising
that an Engine Attendant position at Regina, Sask. was abolished.
The Union grieved same suggesting that an operational change had
taken place. The Union also grieved that the Company was violating
its own Safety policies and practices by requiring the remaining
Engine Attendant to work alone and or to utilize Trades person to
perform the work of the engine Attendants position which had just
been abolished.
This action by the Company prompted the Union to progress this matter
to this step for final determination.
On April 0 ,1998 the Union wrote the Company expressing its concern
in
regard to the Engine Attendant in Regina working alone for the most
part. (Exhibit 2)
On May 8,1998 the Company responded in writing to the Union advising
that it had been determined that the second Engine Attendant position
in Regina was redundant and was therefore abolished. (Exhibit 3)
9. On the same date, June 9, 1998, the Union wrote the Company
claiming that the change in workforce in Regina was in its vie v an
T/0&O change and therefore an Article 8 notice should have been
served. The Union also raised the issue of safety with one Engine
Attendant left to work alone. (Exhibit 6)
12. On August 4, 1998 the Union wrote the Company (Exhibit 9)
claiming that it had violated its own safety practices and procedures
by allowing the remaining Engine Attendant to work alone.
13 . In the appeal the Union also raised the matter of adverse
affects to employees and the possible violation of Article 8 of the
Job Security/Employment Security Agreement.
17. In its presentation the Union has made two arguments in regard
to this grievance. The first is that the Company's own safety
policies and practices in accordance with the operation and movement
of locomotives requires a crew of at least two Engine Attendants and
therefore the Company must adhere to it's own safety policies and
practices and fill the position of Engine Attendant abolished May
8,1998.
18. The Second is that should the Company be successful in its
arguments before the Arbitrator then it is the position of the Union
that an Article 8 notice as outlined in the Job Security/Employment
Security Agreement ought to have been served in this instance.
19. Engine Attendants are defined in Rule 23.37 of the Collective
Agreement as follows:
"Engine Attendants
23 .37 An employee assigned to a regular position of engine attendant
from other than the ranks of laborer shall be granted a seniority
date as labourer which shall be the date assigned to the position of
engine attendant.
23 .3 8.1 Positions of Engine Attendant and Engine Attendant Helper
will be bulletined to the extent that such position are required on a
continuous basis.
23.38.2 When unexpected requirements occur for Engine Attendant
Helpers, the Company may assign a qualified available Labourer. In
such circumstances, Labourers so assigned will, in addition to the
rate applicable to the classification of Labourer, be compensated as
provided in Article 23.36.
23.38.3 Engine Attendant's Helpers may be assigned Labourer's duties
as required. In such circumstances, the provisions of Rule 11.1 will
apply."
2 . There is no indication that the Engine Attendant has been
instructed to ensure that the assistance from the Operating
Department is a person qualified to move Locomotives under the CPR's
own training procedure and practices.
26. Nor is there any evidence that those who end up assisting the
lone Engine Attendant have been properly trained and certified as
Engine Attendants.
27. In addition to this the instruction of the Company for the lone
existing Engine Attendant to solicit assistance from another
department who are in different bargaining units open the door to the
argument in relation to employees outside the CAW bargaining unit
perform work of our bargaining unit.
It is important that Article 23 .3 8 requires that positions be
bulletined if they are required upon a continual basis. From the
evidence, it would not appear that is the situation in Regina
although certainly the work is performed relatively regularly. The
real point is whether two Engine Attendants are required to get that
done or if, in accordance with the Company's own safety policies,
what I would describe as the "spotter position" can be performed by a
labourer with adequate training (which is contemplated under
23.38.2).
I would be quick to say that the appropriate training is required for
safety purposes but there was no indication that unskilled people
were being required to perform that work albeit there had been
occasions when the Engine Attendant had done it himself. That is not
appropriate and should not be allowed by either the Company or the
Union. It would be helpful if the Operating Department did issue
some form of bulletin to the employees involved that a properly
qualified employee was to be assigned to the task. It should also be
very clear that there should not be discipline for refusing to do the
work without any assistance as that would be absolutely unreasonable
in my respectful opinion. However, it is also incumbent upon
employees to refuse to do work which is unsafe and to at least allow
the Company the opportunity to make such safety conditions be a
reality.
If Mr. Green had requested assistance as he testified and was not
provided with same, that is not proper but it is also fair to say
that he chose to violate the rules at certain times in order to "get
the job done". While I truly do appreciate that the workplace is
never perfect in every respect in any context, it would appear to me
that both parties could do better in terms of dealing with the
present situation.
It would appear to me to be impractical to bring in an employee from
Moose Jaw every time that a locomotive was required to be moved for
the short distance necessary. In the event of long absences of the
individual Engine Attendant left in Regina, it would be appropriate
that those positions be filled.
I also note the previous decisions between the parties which would
indicate that there is no obligation necessarily to fill a position
created by retirement if it is not required or could be done another
way safely and not upon an absolutely continuous basis. That would
be in accordance with Article 23 . 3 8.1 and Article 23 . 3 8.2
which allows for the use of a qualified available labourer with the
appropriate compensation to flow.
There should be instruction to the Engine Attendant that certainly
assurance be provided from the Operating Department that a person
qualified to move locomotives is involved as the second person on the
team. There is no requirement that the second person be "properly
trained and certified as Engine Attendants".
Neither is there any restriction that I can see that the second
individual who helps the Engine Assistant be part of the CAW
bargaining unit albeit there is certainly a restriction that they be
adequately trained to do what is required but it would appear to me
that it would be reasonable and fair that the work, if required, be
provided to the bargaining unit initially if there are individuals
available to do it although it is not practical to bring employees in
from Moose Jaw to Regina except for extended circumstances as
discussed earlier and I would anticipate that such circumstances
would require the actual operation of the locomotive itself.
For all the above reasons, the grievance is denied but I would stress
that the Company is certainly under some obligations in my respectful
view as indicated above.
I wish to thank the representatives for their able presentations.
The parties shall share equally in the expense of the arbitrator.
DATED this 10th day of April, 2000.
Signed
Paul S. Teskey, Sole Arbitrator