IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
GRIEVANCE RE REMOVAL OF EMPLOYEES FROM ES STATUS
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
Gilles Pépin – Labour Relations Officer, Calgary
Len Wormsbecker – Manager, Labour Relations, Calgary
S. Samosinski – Director, Labour Relations, Calgary
Appearing For The Union:
Abe Rosner – National Representative, Montreal
Sylvain Levert – Vice-President, Local 101, Atlantic Region
Gilles Antinozzi – Representative, Labour Adjustment Committee
A hearing in this matter was held in Montreal on Friday, March 14, 2003
This grievance concerns the removal from employment security status of five employees home stationed in Montreal: F. Azzoug, A. Charest, A. Girard, A. Guertin and S. Hughes. The Company maintains that the named grievors effectively refused to assume vacant positions in Golden, B.C., as a result of which it treated them as having lost their employment security entitlement under article 7A of the Job Security Agreement (JSA). The Union maintains that the Company made a number of procedural and substantive errors in its treatment of the grievors and submits that they did not in fact forfeit their employment security entitlement in the circumstances. The outline of facts pertinent to the grievance, and the objections of the Union, are found in a Joint Statement of Fact and Issue filed at the hearing, which reads as follows:
JOINT STATEMENT OF FACT:
As of May 2002, the grievors were all employees of the Company at Montreal who had previously been displaced from their employment and were on employment security status in accordance with article 7A of the Job Security Agreement (JSA).
Following advice by the Company to the Union of the existence of a number of vacant positions in Golden, B.C., and various discussions thereafter, the Company advised the Union in June of its position that the grievors had refused, contrary to article 7A, to relocate to occupy those positions. (In the case of grievor Bujold, this advice was provided in January of 2003.) Accordingly, the Company stated that under the provisions of article 7A.8 of the JSA, the grievors had forfeited 7A employment security and were now eligible for 7B (Enhanced SUB) benefits instead.
JOINT STATEMENT OF ISSUE:
The Union submits that article 7A.8 was not properly invoked, for a number of reasons: 1) the grievors were not properly advised of the existence of vacancies and their obligations in this regard, nor were they given an opportunity to find alternatives to relocation, nor did they refuse any proper requests to relocate; 2) the vacancies, according to the available information, did not satisfy the criteria of unfilled permanent vacancies as required to trigger relocation obligations; 3) the Company violated article 7A.2(a) of the JSA in refusing a proper request to convene the Labour Adjustment Committee (LAC) in order to “review whether any alternatives” to relocation were available; 4) the Company sought to force employees to relocate before providing information requested by the Union side of the LAC which was indispensable in determining whether the relocation was appropriate; 5) the Company failed to in its duty to advise the LAC or the Union of other vacancies and/or potential candidates for vacancies, and it ignored such information when it was brought to its attention; 6) the Company violated article 7A and article 2.8 of the JSA be declining requests for approval of jobs outside the Company the Company for Mr. A. Guertin and Mr. F. Azzoug with the sole motive of forcing these two employees to relocate across the country into other Company positions.
The Union seeks declarations to the above effect. The Union further requests that the grievors be made whole.
The Company denies the contentions and requests of the Union.
In May of 2002 the grievors, who are long service, shopcraft employees, were not in active service. They resided in the Montreal area, their original home terminal, where they enjoyed the benefits of employment security status under article 7A of the JSA. By reason of the provisions of the JSA employees having eight years or more of cumulative compensated service displaced from their active employment by a technological, operational or organizational change initiated by the Company, are entitled to five years of protection in respect of their salary and benefits. A condition for the continuation of those benefits, however, is that the employee be prepared to exercise his or her seniority to fill positions within the railway, as well as outside, on a national basis.
In May of 2002 the Company had four vacant engine attendant positions at Golden, British Columbia. Following the bulletining of those positions locally and regionally they remained unfilled. In the circumstances the Company took the position that it could require employees on employment security to take up the vacancies, failing which they would forfeit their entitlement to employment security.
On May 24, 2002 Manager of Labour Relations, Len Wormsbecker, addressed the following email to Mr. Tom Murphy, President of Local 101 of the Union:
This is in regard to our discussions concerning the creation of 4 Engine Attendant positions at Golden, British Columbia. These positions have been bulletined both locally and on the Region, and no applications have been received.
There are currently 5 employees in receipt of Article 7A benefits that are required to fill these positions effective today, namely Mr. F. Azzoug, Mr. A. Charest, Mr. A. Girard, A. Guertin and Mr. S. Hughes.
In this regard a LAC meeting via conference call has been scheduled for 0900 MST, Tuesday, May 28, 2002, to review this matter further. I will arrange to contact Mr. Antinozzi, Mr. Pritchard and yourself at 0900.
The reference to the “LAC” in the above message refers to the Labour Adjustment Committee established under article 2 of the JSA. It is a bilateral committee comprised of ten members, five being appointed by the Company and five by the Union, with co-chairs from both the management and union side. The structure and mandate of the Committee is generally described in the following provisions of article 2:
2.2 The members of the Committee shall be appointed yearly and shall hold Office until the 31st day of December next following the date of their appointment, At the same time and in the same manner, a like number of substitutes shall also be named. Should a vacancy occur on the Committee, whether temporary or otherwise, the vacancy shall be filled by one of the substitute members appointed by the same body which appointed the original member. Each party shall notify the other, in writing, of the members and substitutes appointed to the Committee within five days of the date of their appointment. However, nothing in this Agreement shall prevent either party from appointing to the Committee, on an ad hoc basis as deemed appropriate by that party, any person or persons to fill any of the positions allocated to that party.
2.3 The Notice referred to in Article 2.2 shall be given in the manner following:
(a) Notice on behalf of the Union shall be given by the President, CAW Local 101 (or a person authorized by him) addressed, and mailed by registered post, to the Director, Labour Relations, Canadian Pacific Railway, Calgary, Alberta.
(b) Notice on behalf of the Company shall be given by the Director, Labour Relations of the Company (or a person authorized by him) addressed, and mailed by registered post, to the President, CAW Local 101.
2.4 The Union and the Company shall appoint one Co-Chair each from among their respective delegate groups who shall hold office until the 31st day of December of the year for which they are appointed or until otherwise replaced by the respective party.
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.
2.6 The Committee will meet at least quarterly, unless otherwise mutually agreed, and additionally as required by the terms of this Agreement, and/or as deemed appropriate by the Co-Chairs.
2.7 Part-time union officers participating in labour Adjustment Committee meetings will not lose any pay or benefits. The Company will reimburse any expenses incurred as per the provisions of the collective agreement.
2.8 The Committee shall:
(a) review the status of surplus employees as well as any changes 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.
(c) receive, review and approve any reasonable request from surplus employees to perform work in outside industry and/or enrol in training and educational programs in accordance with the terms of this Agreement.
(d) engage, as may be deemed appropriate, the services of agencies which have expertise in labour adjustment and the identification of employment opportunities.
(e) decide and manage any matter relating to training or upgrading of employees, consistent with the terms of this Agreement, except insofar as such training or upgrading is handled under the terms of the Skilled Trades Program, in which event the pertinent committees shall maintain communication and cooperation in their work.
Article 3 – Grievance Procedure and Final Disposition of Disputes
3.1 Except as otherwise provided in this Agreement, should any dispute arise respecting the meaning, interpretation, application, administration or alleged violation of this Agreement, such dispute shall be progressed in accordance with the provisions of the applicable collective agreement commencing at the final step of the grievance procedure.
3.2 In the event the Labour Adjustment Committee is unable to reach a decision, either party may require the question to be referred to arbitration pursuant to Rule 29 of the collective agreement on an expedited basis. The parties will submit a Joint Statement of Issue or Issues to a single arbitrator. In the event that the parties are unable to agree on an arbitrator, then the party requesting arbitration shall request the Minister of Labour to appoint an arbitrator.
The Union co-chair of the LAC is Mr. Gilles Antinozzi. Although he apparently did not receive the initial email from Mr. Wormsbecker, who is not a regular member of the LAC, he did learn of the conference call meeting and participated in it on May 28th. It would appear that the Company’s regular co-chair, Mr. Gilles Pépin, was not available to reach the Union and that Mr. Wormsbecker was mandated by the Company to do so. Mr. Pépin, the Company Co-Chair, did participate in the conference call. It appears clear from the record that Mr. Antinozzi registered a protest during the course of the conference call, taking the position that what was occurring was not a properly constituted meeting of the LAC. The Company maintained then, and before the Arbitrator, that the conference call was a properly constituted meeting of the LAC.
There can be no doubt but that the rights and obligations of the grievors were very much at stake depending on the nature and outcome of the conference call, assuming that it was a properly constituted meeting of the LAC. Article 7A.1 of the JSA lays out a sequence of obligations for the exercise of seniority at the level of the location, the basic seniority territory, the region and the system as a condition of retaining employment security status. Additionally, sub-paragraph (L) contemplates that an employee might “… accept work outside CP Rail at the Location as determined by the Labour Adjustment Committee …”. The article further contemplates that employees might fill permanent vacancies in other bargaining units, non-scheduled or management positions on a location, region, or system basis. In addition, article 7A.2(a) of the JSA provides as follows:
7A.2(a) Prior to an employee being required to fill a permanent vacancy or displace beyond the Region pursuant to 7A.1, the Labour Adjustment Committee will meet and review whether any alternatives are available.
Article 7A.8 delineates the consequences for an employee who declines to protect work in accordance with the obligations under article 7A.1 of the JSA. It provides as follows:
7A.8 An eligible employee electing to be covered by the benefits contained in this article 7A, who fails to meet the requirements outlined in article 7A.1(g) to (m), may opt to receive the benefits contained in article 7B. Such employee will forever forfeit entitlement to benefits under Article 7A of the Job Security Agreement. Article 7B benefits will be reduced by an employment security SUB received under article 7A.
On the day following the conference call of May 28th, Mr. Antinozzi sent an email addressed to Mr. Wormsbecker and Mr. Pépin objecting to the procedure being followed by the Company. Among other things, he submitted that the Company was unduly focussing on the Montreal employees, and not considering other alternatives, including some laid off engine attendants in the Eastern Region as well as other employees in Western Canada. Several days later, on June 3, 2002, Mr. Antinozzi wrote a letter to the Company’s General Manager of Operations for Mechanical Services. In that letter he again objected to the procedure followed in the telephone conference call, and formally took the position that there had not been a proper meeting or agreement of the LAC and that he was proceeding to arbitration under article 3.2 of the Job Security Agreement. Mr. Antinozzi nevertheless indicated that he would contact the affected employees to ask whether they would be willing to move, under reserve of his intention to take the matter to arbitration.
The next day, June 4th, Mr. Antinozzi responded to Mr. Wormsbecker and Mr. Pépin with respect to the responses he obtained from the employees. His email in that regard reads as follows:
Here the answer for the employees that you did ask;
F. Azzoug he find a outside job in Montreal starting June 5th, I will send you more detail for approval.
A. Charest before giving his answer he need some information for his kid because his kid have problem to talk and he need some specialized services. If they don‘t have those kind of services, he will not move. By tomorrow I will have those information because I will phone Mr. Lawson
A. Girard he told me that he will have 55 years old in October and he receive a letter about it. The problem is that the way that I understand is that he don’t have 85 points he will have 83 points. The question is, his he allow to a pension and if the answer is yes if he move in 1 an a half year he will be eligible, with you allow him to take his pension?
A. Guertin he did find an outside job that I did send to M. Pépin for approval.
S. Hughes told me that he was disqualify in the past as engine attendant because he was color blind, I did talk to Gilles St-Pierre and he doesn’t know if is a requirement for the job.
That the answer that I got for now.
It appears that on June 5th, Mr. Antinozzi communicated with Mr. Pépin to the effect that the grievor F. Azzoug had found employment with a renovation company, doing plumbing repairs, on a full time basis. He asked Mr. Pépin whether the employment would be acceptable, as the employee could commence work for the renovation company on June 5, 2002. Several days later, on June 10th, apparently following a further conference call, Mr. Pépin responded as follows:
Gilles, confirming our discussion this morning during the LAC conference call, the Company does not approve Mr. Azzoug outside work under article 7A of the Job Security Agreement. The Company’s decision is based on the employee obligation to fill vacancies as per the requirement of article 7A.1. In this particular situation the Company advised CAW president Tom Murphy by letter on May 24th, 2002, that 4 engine attendant positions were available to all employees in the receipt of 7A benefits. Further, an employee on 7A benefits MUST fully exercise his seniority into his classification system wide. As you are aware, there are several unprotected boilermakers (less than 8 years CCS) working at Ogden, (Alstom) Calgary.
Interestingly, Mr. Azzoug was only able to find outside work after being advised of the requirement to meet the obligations of article 7A.1 in an effort to avoid meeting his employment obligations. Therefore, as a result of Mr. Azzoug choosing not to comply with his obligations under article 7A.1 he will be governed by the provisions of article 7A.B effective June 10th, 2002.
By the foregoing communication the Company effectively advised the LAC co-chairman, Mr. Antinozzi, that Mr. Azzoug’s article 7A employment security protection was effectively terminated.
In fact the Company promptly came to the conclusion that all of the grievors forfeited their employment security entitlements. On June 11, 2002 Mr. Pépin emailed Mr. Antinozzi and Mr. Murphy as follows:
This is further to our discussion on June 10th, 2002 during which the LAC conference call, with respect to the 5 Montreal employees receiving 7A Benefits.
Mr. Antinozzi advised that all of the above employees have elected not to relocate either to Calgary or Golden, as required by Article 7A.1 of the Job Security Agreement.
Therefore, as a result by choosing not to comply with their obligations under 7A.1, they will be governed by the provisions of article 7A.8 effective June 10th, 2002. The employees are:
Alain Guertin, Boilermaker
F. Azzoug, Boilermaker
A. Girard, Pipefitter
A. Charest, Machinist Helper
S. Hughes, Machinist Helper
As indicated above, Mr. Antinozzi ultimately got back to Mr. Pépin with respect to the status of the five grievors. Mr. Azzoug found the outside employment described above. Mr. A. Guertin was described as also having found outside work with a trucking company, although it appears that that work lasted only a few days. On June 7th Mr. Antinozzi advised the Company that Mr. Guertin had found other work which he requested to have approved by the LAC. The grievor André Girard did not respond positively to the request of the Company, but rather conveyed a question through Mr. Antinozzi as to whether he might be not required to displace to British Columbia by reason of his proximity to retirement. The response which was related from Mr. A. Charest was to the effect that he needed further information as to the availability of services for his child who has a speech disability. Mr. Hughes also did not respond in the affirmative, raising a question as to whether his colour blindness might be an impediment to performing the work of an engine attendant at Golden.
The first issue to be addressed is whether, as the Union contends, there was some fundamental procedural irregularity in the process of the Labour Adjustment Committee which would, of itself, vitiate the Company’s decision to terminate the article 7A employment security status of all of the grievors. Upon a careful review of the chronology of events, the Arbitrator is not persuaded of the merits of the Union’s argument in that regard. Firstly, as the record confirms, the co-chairs of the LAC were both present on the occasion of the initial telephone conference call held on May 28, 2002. I find nothing substantive or significant in the fact that the manner in which the call was convened took the form of a communication from Mr. Wormsbecker to Mr. Murphy, the president of Local 101. Of significance, for the purposes of the Job Security Agreement, is the fact that both Mr. Pépin and Mr. Antinozzi, the co-chairs of the LAC, were participants in the conference call of May 28th and indeed continued to have contact both by email and by telephone in the ensuing days. Given the national nature of the Company’s operations it is not, in the Arbitrator’s view, unreasonable to expect that meetings of the kind contemplated for the LAC might, on occasion, have to be held by means of telephone conference call. Clearly there is nothing in the language of article 2 which would prevent such a telephone conference meeting.
In the circumstances I am compelled to conclude that the protestations of Mr. Antinozzi are more technical than persuasive as to the status of the conference call and ensuing telephone conversations and emails. I am satisfied that what transpired over the days in question did constitute deliberations of the LAC in a manner consistent with the intention of the JSA. Nor, as a general matter, can I sustain the argument of the Union to the effect that the Company’s actions were precipitate or unduly hasty, subject to certain qualifications elaborated below. Fully two weeks elapsed between the initial telephone conference meeting of May 28, and the ultimate decision of the Company, taken on June 10, 2002, that all of the grievors were effectively declining to move to Golden, and therefore forfeited their entitlement to article 7A ES benefits.
The Arbitrator also has concerns with respect to the nature of the alternatives which the Union co-chair appeared to believe were part of the Company‘s obligation to discuss and possibly implement prior to compelling the grievors to displace to fill the vacancies at Golden, B.C. Notably, Mr. Antinozzi appears to have been under the impression that it was the Company’s obligation to first consider whether employees elsewhere on the system, including in Western Canada, who were on layoff could first be prevailed upon to assume the work at Golden. While such an arrangement might obviously serve to protect the employees at Montreal, it does not appear to be what is contemplated by the terms of the Job Security Agreement itself. Appendix G of the JSA expressly addresses the sequence to be following in filling vacancies, and establishes that employees receiving “ES SUB” under article 7A of the JSA are to be the first persons called for that purpose. Thereafter the appendix provides for the calling of employees on “Enhanced SUB” under article 7B and, finally, employees on layoff under article 4 of the JSA. In the result, by the parties’ own agreement, it is entirely proper for the Company to first seek to fill vacancies by calling upon those employees who have the extraordinary benefits of article 7A ES protection.
On a review of the facts of the case at hand the Arbitrator has considerable difficulty sustaining the position of the Union as regards the ultimate treatment of all of the grievors, with the exception of Mr. Azzoug and Mr. Guertin. I am compelled to agree with the Company’s representative that Mr. Girard could not, by virtue of his proximity to retirement, seek to avoid the obligations which were commensurate with his receipt, for some time, of article 7A ES benefits. It appears that historically there was once a provision exempting ES recipients from the obligation to relocate within five years of qualifying for early retirement. However, that protection has not been found within the JSA since 1992. There is, very simply, nothing in the circumstances of Mr. Girard to conclude other than that he declined the opportunity to assume a vacancy at Golden, as he was bound to do as a condition of continuing his article 7A ES status.
Unfortunately, the same conclusion must be drawn with respect to Mr. Charest. As difficult as the circumstances of his son might be, or for that matter of other members of his family, Mr. Charest was under an obligation to accept the vacancy at Golden or forfeit his article 7A ES entitlement. The Arbitrator can see no basis upon which the Company can be said to have violated the rights of Mr. Charest.
The same conclusion obtains with respect to Machinist Helper S. Hughes. While he initially inquired as to whether his previous disqualification, apparently twenty-two years ago, from engine attendant responsibilities by reason of colour vision impairment might prevent his being able to work at Golden, the Company’s response, communicated through Mr. Antinozzi and Mr. Murphy on June 13, 2002, was to the effect that engine attendants at Golden do not have to deal with signal lights to perform their duties. In the circumstances, even allowing for a certain overlap of the dates, the Arbitrator has difficulty seeing how it can be concluded that Mr. Hughes’ rights were in any way violated. I can therefore see no merit in the grievance as it pertains to employees Girard, Charest and Hughes.
In the Arbitrator’s view it can fairly be concluded that different circumstances attach to the rights of the grievors Azzoug and Guertin. At the point of being asked to relocate each of them communicated, through Mr. Antinozzi, that they had found outside employment which they wished to have considered for approval by the LAC. The Company’s representatives then effectively took the position that they could not then ask for that consideration, because they were effectively without outside employment at the time vacancies were communicated to them through their Union. In that regard the Company relies substantially on a prior arbitration award in CROA 3276. That case involved a dispute between the Company and the Brotherhood of Maintenance of Way Employees. The arbitrator concluded that under the terms of the Job Security Agreement there in effect an employee who received a recall to work could not hold up the fact that he had found outside employment after the recall as a defence to the JSA obligation to fill work available in the bargaining unit of another union. In fact the work under consideration in that case is the very engine attendant positions at Golden which are the subject of this grievance. An examination of that award, and of the specific provisions of the JSA which were then in issue, confirms to the Arbitrator that the award in CROA 3276 is clearly distinguishable from the facts and JSA provisions in the case at hand.
Firstly, it must be stressed that the JSA governing of the Brotherhood of Maintenance of Way Employees does not contain the provisions of article 7A.2(a) reproduced above, to the effect that before an employee is required to displace beyond the region the LAC is to review whether any alternatives are available. The more narrow issue in CROA 3276, under the different terms of the JSA of the BMWE, was whether the grievor in fact held outside employment at the time he was given notice of the vacancy at Golden. The arbitrator concluded that he did not, and that he could not ameliorate his position by obtaining outside employment after he was put on notice of the vacancy by the Company.
In my view, having regard to the substantially different and very clear language of article 7A.2(a) of the instant JSA, different considerations operate. For reasons they best appreciate, the parties to the instant agreement have categorically stated that before any employee is required to fill a permanent vacancy beyond his or her region pursuant to article 7A.1, the LAC must meet and review alternatives available in respect of that employee. Unfortunately, for reasons best appreciated by the Company’s representatives, they effectively refused to turn their minds to considering the outside employment opportunities identified for Mr. Azzoug and Mr. Guertin prior to forcing them beyond the region. It appears that they in fact concluded that they could have no better right than the employee governed by the JSA of the BMWE who was the subject of CROA 3276. With respect, that analysis cannot be sustained on the very different language of the JSA which governs the grievors Azzoug and Guertin, and in particular the express language of article 7A.2(a) of the JSA here under consideration.
In coming to this conclusion the Arbitrator should be taken as drawing no conclusion as to the appropriateness of the outside employment which Mr. Azzoug and Mr. Guertin apparently secured. Whether the work which they found is or is not appropriate or consistent with the purposes of the JSA is a matter first to be considered by the LAC. Clearly, in light of the language of article 7A.2(a) of the JSA, there was nothing improper in the grievors themselves seeking to obtain outside employment even after they had received notice of the need to fill a permanent vacancy beyond their region, as they were then fully entitled to an analysis of the alternatives as contemplated within that article. Very simply, the position taken by the Company was to effectively deny any real consideration of the alternative of outside employment which they had identified. In that regard the Arbitrator is compelled to conclude that there was a denial of their rights by the Company, resulting in the vacating of their article 7A ES entitlements. Conversely, I am satisfied that the deliberations of the LAC, through the conference call and ensuing correspondence, did give reasonable consideration to the issue of alternatives in relation to the grievors Charest, Girard and Hughes
With respect to the grievors Azzoug and Guertin, therefore, the appropriate remedy is to place them in the position in which they should have been had the LAC properly deliberated upon the alternatives available to them prior to requiring them to fill a permanent vacancy beyond their region, as contemplated under article 7A.2(a) of the JSA. They are therefore reinstated into their article 7A ES status, with full compensation for all wages and benefits which they may have lost by reason of the termination of that status by the Company. They are nevertheless subject to the LAC now properly considering whether, for the future, any outside employment which they may hold is approved by the LAC as contemplated under article 2.8(c) of the JSA. Should they, as of the date of this award, no longer hold any outside employment they shall revert to their normal obligations under the JSA, including the obligation to relocate to Golden to fill the positions of engine attendant which were first offered to them.
On the foregoing basis the grievances are allowed, in part. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, this 11th day of April 2003
MICHEL G. PICHER