SHP537
IN THE MATTER OF AN ARBITRATION
BETWEEN
ONTARIO
NORTHLAND TRANSPORTATION COMMISSION
(the
“Company”)
and
NATIONAL
AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND
GENERAL WORKERS OF CANADA
(CAW
– CANADA) LOCAL 103
RE:
A CLAIM FOR RELOCATION BENEFITS UNDER ARTICLE 6 OF ESIMA
APPEARING
FOR THE COMPANY:
Michael Restoule Manager – Labour Relations
Tom Burton Chief
Mechanical Officer
Ken Duquette Labour Relations Officer
Trevor Prescott Superintendent – Equipment
Maintenance
APPEARING
FOR THE UNION:
Brian Stevens President – CAW Local 103
Brian Kelly Chief Steward
Dan Ciesla Committee Person
A
hearing in this matter was held in Toronto on November 20, 2000.
This arbitration relates to a claim by the Union that some employees were denied relocation benefits under the provisions of the Employment Security and Income Maintenance Agreement (ESIMA). The Company maintains that the individuals in question were not entitled to the relocation benefits in the circumstances of a temporary layoff.
The Joint Statement of Fact and Issue, filed at the hearing reads as follows:
On July 29, 1999, the company laid off thirty-five (35) employees represented by C.A.W. Local 103, account of a Labour dispute at the Kidd Creek Mine in Timmins. A number of these employees displaced to other terminals to hold work.
The Union filed a grievance contending that under E.S.I.M.A. those employees, who displaced to other terminals to hold work were entitled to relocation benefits as prescribed in Article 6 of the E.S.I.M.A.
The company contends that Article 6 of E.S.I.M.A. does not apply as the lay off is temporary and due only to the Kidd Creek strike and the temporary loss of revenue therefrom. The company denied the grievance.
The facts are not in dispute. When a major customer of the Company, the Metallurgy Division of Kidd Creek Mines in Timmins, suffered a strike, the Company found itself obliged to lay off some 35 employees at the North Bay Shop effective July 29, 1999. Fifteen of the laid off employees exercised their seniority to work at Cochrane. It is common ground that they were obliged to do so as a condition of protecting their employment security status pursuant to Article 7A of the ESIMA. It is not disputed that the employees in question properly exercised their seniority in keeping with the procedures of Rule 19.3(b) and 19.14 of the collective agreement. It also appears that the remaining employees received SUB benefits under the ESIMA, and remained subject to recall.
The Union submits that the 15 employees who were compelled to relocate some 400 kilometres from their home terminal to Cochrane, are entitled to relocation expenses pursuant to the terms of Article 6 of the ESIMA. That provision reads, in part, as follows:
6.1 To be eligible for relocation expenses an employee:
...
(d) must have Employment Security under provisions of
Article 7 or Preferred Employment Security under Article 7A and be required to relocate to hold work under the provisions of Article 7 or 7A of The Plan.
Article 7A of the ESIMA is a concept unique to these parties within the railway industry. Article 7 of the ESIMA provides for normal employment security whereby employees who enjoy employment security are not to be subjected to lay off in the event of an technical, operational or organizational change within the meaning of Article 8 of the ESIMA, subject of course to exercising their seniority to protect work on a location and system basis, in accordance with the collective agreement. Article 7A, on the other hand, relates to a concept referred to “Preferred Employment Security”. That designation relates to an employee who was in service on April 2, 1998 and who has, or subsequently attains, seven years’ service. Employees with that status have employment security protection in the face of a wider range of circumstances, including a reduction in work by reason of reduced traffic. It is common ground that in the facts at hand, which did not involve any operational or organizational change at the initiative of the Company, but rather a fluctuation in traffic by reason of events outside the Company’s control, the provisions of Article 7A did apply. Those provisions are, in part, as follows:
7A.1 An employee who was in the service on April 2, 1998 and who has, or subsequently attains 7 years’ service shall be defined as having “Preferred Employment Security”.
7A.2 Such employee, who is displaced or has his/her job abolished, shall exercise his/her seniority as presently provided in his/her collective agreement, up to and including his/her basic seniority territory if necessary, in order to retain his/her Employment Security.
7A.3 If still unable to hold a position, then in order to retain
Employment Security he/she shall (subject to qualifications);
(i) fill an unfilled vacancy within the jurisdiction of another seniority group of the same union covered by the same collective agreement;
(ii) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group and another signatory union;
(iii) there being none, fill an unfilled permanent vacancy within the jurisdiction of another seniority group and a non-signatory union or in a position which is not covered by a collective agreement.
NOTE: In the application of above Clauses (i), (ii) and (iii) maintenance of basic wage rates shall apply.
(iv) there being none, unless eligible for job protection under Article 7, be placed in a “waiting” status until such time as a vacancy occurs within his/her classification on the seniority territory, or as per Clauses (i), (ii) and (iii) above. During this period the employee’s U.I. benefits (subject to U.I. approval) and/or outside earnings, will be supplemented to a level equal to 80 percent of his/her weekly base pay continuing until such time as a position is found for the employee in accordance with the foregoing.
Also during this period the employee must accept temporary work at his/her layoff location.
...
7A.7 An employee who declines to exercise any of the options detained in Article 7A.3 hereof, or who while on “waiting” status refuses to recall to any permanent vacancy or temporary work as therein described, or refuses to recall to a permanent position on his/her original basic seniority territory, shall forfeit his/her employment security. Such employee will, however, be entitled to such other benefits under The Plan for which he/she is eligible.
The Company’s representative submits that in the circumstances at hand it cannot be said that the jobs of the 15 employees in question were abolished. Rather, he argues that the facts reflect a temporary layoff. He submits, however, that the employees were required to exercise their seniority to protect work, including work at the from home location of Cochrane, failing which they would forfeit their employment security. It does not appear disputed that forfeiture of employment security in that circumstance would be the full and permanent loss of employment security for all future purposes.
The Arbitrator has substantial difficulty with the position argued by the Company. It does not appear disputed that in the case at hand the grievors did not simply leave their jobs temporarily and then return to them without a bulletining process. In fact, it appears that the parties agreed to rebulletin all positions when the strike at Kidd Creek came to an end and the 35 employees were recalled to work at North Bay. More significantly, I have difficulty understanding how the Company can maintain, on the one hand, that the employees were under the obligations of Article 7A of the ESIMA and were compelled to protect work on the entire seniority territory, failing which they would lose their employment security, while on the other hand maintaining that the employees were not subject to a job abolishment for the purposes of Article 7A. The Company plainly cannot have it both ways. The obligations of Article 7A are predicated on their being displaced or having their jobs abolished. If, as both parties appear to agree, the employees with the seniority to hold positions at Cochrane were under an obligation to relocate to Cochrane to protect work failing which they would lose their employment security, it appears to the Arbitrator, on the balance of probabilities, that the parties intended a correlative right of a relocation allowance to facilitate the fulfilment of that obligation by the employees. If a given set of facts triggers the obligations of the ESIMA, absent clear language to the contrary, it must be presumed to also trigger its benefits.
When reference is had to Article 6.1 of the ESIMA which governs relocation expenses, it is notable that subparagraph (a) provides that employees are eligible for relocation expenses where they “...have been laid off or displaced under conditions where such lay off or displacement is likely to be of a permanent nature, with the result that no work is available at his/her home location and in order to hold other work in the Company, such employee is required to relocate;”. If that were the sole condition for entitlement for relocation expenses, the Company’s case would be compelling. The wording of Article of 6.1, however, is disjunctive, and sets out four separate conditions which trigger eligibility for relocation. Subparagraph (d), which follows the preposition “or” separately provides that employees are eligible for relocation expenses if they have Preferred Employment Security under Article 7A and are required to relocate to hold work under the provisions of Article 7A of the ESIMA. That condition precisely describes the circumstance of the grievors in the case at hand. All of them have Preferred Employment Security under Article 7A and, by the Company’s own admission, were required to relocate to Cochrane to hold work under the provisions of Article 7A of the plan, failing which they would have lost their employment security.
Given the unique nature of Article 7A of the parties’ ESIMA, it is arguable that full consideration might not have been given to the consequences of the language which the parties adopted. That, however, does not change the obligation of the Arbitrator. I must take the agreement as I find it. There is plainly no qualification with Article 6.1(d) based upon whether a given lay off or job abolishment is permanent or temporary. In that circumstance the entitlement to relocation expenses is clear and categorical. Any different consequence must be the result of negotiations between the parties.
The grievance is therefore allowed. The Arbitrator finds and declares that the grievors were entitled to the payment of relocation expenses in relation to their obligation to protect work at Cochrane and directs that they be compensated accordingly. The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the quantum of compensation, or any other issue relating to the interpretation or implementation of this Award.
Dated at Toronto this 30th day of November 2000.
_________________________
Michel
G. Picher
Arbitrator