Cross-Craft Bumping

AWARD OF THE ARBITRATOR

This arbitration concerns a grievance alleging a violation of the provisions of the Job Security Agreement governing the Company’s ability to displace tradespersons from one trade into positions in another trade occupied by junior employees who are not entitled to employment security. The dispute is more concisely outlined in the statement of fact and issue filed at the hearing, which reads as follows:

DISPUTE:

Application of Cross-Crafting under article 7A.2(d) contained in Job Security/Employment Security Agreement and related contentions by the Union.

STATEMENT OF FACT:

On March 11, 2004 the Company issued an Article 8.1(c) notice of Job Security Agreement. During discussions concerning the aforementioned Article 8.a(c), the Company advised the Union of its intention to “Cross-Craft” a number of Trades persons from one trade to displace a number of Trades persons with less than eight years Cumulative Compensated Service working in another Trade.

The Union took issue with the Company’s interpretation of Article 7A.2(d) of the Job Security Agreement. Advising the Company that it was the Union’s view that the Company was improperly applying the Rules in regard to “Cross-Crafting”.

STATEMENT OF ISSUE:

It is the contention of the Union that:

- the Company stands in violation of article 7A.2(d) of the Job Security Agreement. The language was never finalized, as stated in the first sentence of this article.

The Union further contends that;

- the Company stands in violation of Rule 23.9 and Rule 23.10(c) of the Collective Agreement.

- the Company also stands in violation of Article 7A.2(d).4; as it has not exhausted all available options under 7B, prior to applying their interpretation of Article 7A2(d) – Cross-Crafting:

- the Company stands in violation of Article 7A.4.1, as it is clear that the Articles refer to Supplementary benefit payments (Top up of EI Payments) which would only flow after all options under 7B had been exhausted.

Therefore, with regard to the foregoing, it is the position of the Union that:

- the Company must rescind its application of Article 7A.2(d), (Cross-Crafting).

In the Alternative:

- the Company must offer all options available under Article 7B of the Job Security/ Employment Security Agreement to all eligible persons prior to applying any form of Cross-Crafting under the terms of Article 7A2(d);

In any event, it is further the position of the Union, that:

- all employees adversely affected by the Company’s improper application of the aforementioned Collective Agreement rules and Job Security/ Employment Security Articles, should be reimbursed with full redress for all lost wages, benefits and losses incurred as a result of their lay off, including but not limited to, interest on any moneys owing.

The Company denies the Union’s contentions and claim.

The facts in relation to the grievance are not disputed. Because of a diminished work load, on March 10, 2004 the Company notified the Union, under the provisions of article 8.1(c) of the Job Security Agreement, that it would be eliminating thirty-two trades positions at the facility of Alstom Transport in Calgary. The positions in question involved five boilermakers, four trades helpers, one crane operator, five electricians, five machinists, seven pipe fitters, three sheet metal workers and two labourers.

It was the Company’s intention to administer the resulting layoffs in such a manner as to minimize its own burden of employment security payments. It therefore invoked the provisions of article 7A.2(d) of the Job Security Agreement. Under that arrangement the Company took the view that it could identify employees who are ES protected, which is to say, having more than eight years of cumulative compensated service and having been hired prior to January 1, 1994, and require them to displace unprotected employees holding permanent positions in another trade or seniority group. The Company identified seventeen locomotive mechanics who were unprotected, and then compelled seventeen protected employees, who were otherwise adversely affected by the layoff notice under article 8.1(c), to displace those unprotected employees. In the result, the unprotected employees became laid off and the Company avoided the burden of making employment security payments to the protected employees who would otherwise have been laid off.

The Union took the position that the Company could not force the protected employees to bump across craft lines and displace the unprotected locomotive mechanics, as a result of which the instant grievance was filed. The Union takes a multi-faceted position which is best related by reference to the statement of issue reproduced above.

Central to the resolution of the dispute is article 7A.2(d) of the Job Security Agreement, a provision which resulted from the Adams arbitration process in 1995. It reads as follows:

7A.2(d) Consolidated Seniority – The parties agreed within a month to finalize the language for this provision on the basis of the following understanding:

The principle involving consolidated seniority within a seniority unit as contained in the JSA between the parties dated April 29, 1992 will remain.

In regard to cross-craft displacements, it was agreed that there would be no displacements between different seniority units within the bargaining unit except in the following sole circumstances:

1) At a single location, there is at least one “unprotected” employee holding a permanent position (that is, an employee not eligible for any protection under Article 7); and

2) There is another “protected” employee in the bargaining unit, but in a different seniority unit, at the same location; and

3) The “protected” employee has an earlier date of entry into the bargaining unit than at least one of the unprotected employees; and

4) The “protected” employee is unable to hold a permanent position pursuant to Article 7A.4.1.

In the above situation, the protected employee may be required to directly displace the most “junior” unprotected employee at the location (if qualified or can be qualified) in order to avoid the payment of ES benefits and to secure a permanent position.

For the purpose of protection against future displacement only, such displacing employees, while working in the other seniority unit, shall have his seniority recognized as date of entry into the bargaining unit.

The employee will continue to hold and accumulate seniority in his original seniority classification and be subject to recall to permanent positions therein.

Central to the Union’s position is its primary view that the provisions of article 7A.2(d) have never come into effect because there has never been a meeting “within a month to finalize the language for this provision on the basis of the following understanding:” as contemplated within that provision. Fundamentally, therefore, the Union maintains that the language appearing within that part of the Job Security Agreement is essentially a nullity. Alternatively, it submits that if there was an enforceable understanding between the parties emerging from the language which appears in relation to the “following understanding”, its representative submits that that understanding did not extend to cross-crafting whereby employees in a skilled trade could be compelled to displace other skilled trades employees. The Union’s representative submits that the limit of the application of the provision has been the displacement into non-skilled helpers and labourers jobs as a means of protecting job security, but nothing more.

The Arbitrator has substantial difficulty with all of the positions advanced by the Union, without dismissing the sentiment which may motivate the arguments its representative has advanced. Firstly, it is in my view significant that the language of article 7A.2(d) does appear in the Job Security Agreement, and that it has been maintained within that agreement over at least two renewals of the collective agreement. It is important to understand the context in which the language of that provision emerged. In 1995 the parties were involved in a complex interest arbitration process whereby certain substantive rights and obligations were being imposed upon them by a board of interest arbitration chaired by then Mr. Justice G. Adams. The directive of that board of arbitration compelled the parties, in a number of circumstances, to fashion their own language to implement certain general principles. In the result, whether by the direction of the arbitrator or by their own initiative, in a number of circumstances fundamental agreements of principle were reached, with the possibility of elaborating more detailed language at a subsequent point in time. In that context I am satisfied that the obligation which the parties took upon themselves to meet to fashion more detailed language cannot be construed as a condition precedent to the enforcement of the fundamental substantive rights which they then reduced to writing as part of their mutual understanding. In my view to conclude otherwise would be to fail to understand the dynamics and realities and of the arbitration and bargaining process which then took place, and would fail to give effect to the real intention of the parties.

In light of the foregoing, it is incumbent upon any board of arbitration to view the understanding of the parties in a truly purposive sense to give effect to their agreed intention. It appears to me to be inescapable that what was fashioned in the cross-crafting provisions of article 7A.2(d) was a mechanism of consolidated seniority whereby the employment security burden of the Company could be avoided or reduced by giving the employer the option of compelling a protected employee who would otherwise begin eligibility for employment security benefits to displace the most junior unprotected employee at the location, and to do so across seniority unit lines.

Can it be said that the intention of this understanding is that only employees holding non-skilled positions can be displaced under this arrangement? The Arbitrator cannot see how. The provision agreed to by the parties is that the Company may require a protected employee to displace “the most “junior” unprotected employee at the location”. Obviously, in many circumstances, that may well be a person occupying a helper’s or labourer’s position. That, however, will not always be the case, as appears to be the reality in the case at hand, where the most junior employees who might be subject to cross-craft displacements are in fact skilled tradespersons.

In coming to that conclusion it is not insignificant, in my view, that the evidence discloses that in fact before the negotiation of the language of article 7A.2(a) of the Job Security Agreement the Company had already negotiated with the Union the ability to have protected skilled tradespersons displace into the jobs of unprotected helpers and labourers within other seniority units. It appears, moreover, that the cross-crafting of protected machinists and electricians to unprotected carman positions, that is to say from skilled trades to skilled trades, was already implemented, at least on one occasion, on August 10, 2001 at Alstom Transport.

Nor can the Arbitrator accept the argument advanced by the Union’s representative with respect to what he claims must be the prior application of the benefits provisions of article 7B of the Job Security Agreement. That article provides, in part, as follows:

7B.1 An employee who has completed eight or more years (96 months) CCS and commenced service prior to January 1, 1994, and is affected by a change pursuant to Article 8.1(a), (b) or (c) of this Agreement and elects not to fulfill the obligations under Article 7A of this Agreement, will be required to do the following, in order, to become eligible for the benefits contained in Article 7B of this Agreement (Note: Article 9 – Transfer of Benefits may apply):

(a) full exhaust seniority in their own classification at their Location; if unable to hold work,

(b) full exhaust seniority in their own bargaining unit at their Location; if unable to hold work,

(c) full exhaust seniority in their own bargaining unit on their Basic Seniority Territory; if unable to hold work,

- Relocation benefits will be triggered only when permanent vacancies are filled or when an employee displaces onto a Permanent Position.

Note: Any employee may choose Option 1, 2 or 3 prior to accepting work in other bargaining units.

(d) fill vacancies in other bargaining units, non-scheduled or management positions at the home Location; if unable to hold work,

Note: Any employee may choose Option 1, 2 or 3 prior to accepting work outside of CP.

(e) accept work outside of CP Rail at the home Location as determined by the Labour Adjustment Committee;

As an examination of the foregoing provision reveals, the entitlements of an individual under the sequence of provisions of article 7B.1 only come into play “… if unable to hold work”. Clearly, where the Company avails itself of the option of directing a cross-craft displacement to keep a protected employee actively working, that condition does not come into play. The provisions of the Job Security Agreement must sensibly be read together. It would be inconsistent with the very provisions of article 7B.1 to insist that they be exhausted before the Company is entitled to invoke its discretion to implement cross-crafting under the provisions of article 7A.2(d) of the Job Security Agreement. For these reasons the Union’s submission in the respect of the application of article 7B cannot be sustained.

Nor can the Arbitrator sustain the submission of the Union to the effect that the Company’s actions constitute a violation of rules 23.9 and 23.10(c) of the collective agreement. Rule 23.9 deals with the obligation of the Company to discharge a mechanic where it is necessary to hire a mechanic who is not fully qualified, where that individual can be replaced by a qualified mechanic or a suitable helper. That general provision obviously must be read in tandem with the more specific provisions of the Job Security Agreement, and not be seen as being in conflict with those provisions, absent clear and unequivocal language to the contrary. Nor can the Arbitrator agree that the facts disclose any violation of rule 23.10(c) of the collective agreement which provides as follows:

23.10 (c) Positions requiring considerable skills, shall, to the extent possible, be filled by fully qualified mechanics. In following this principle, both parties will give full recognition to operational requirements of the Company and to any employee training arrangements that may be mutually agreed upon in respect of the craft.

The foregoing rule is one of general application, in recognition of the desirability of filling positions with qualified mechanics and the related value of positive training arrangements. There is nothing in that rule which, in the Arbitrator’s view, should be interpreted as effectively negating the more specific job security protection provisions mutually negotiated by the parties within the terms of their Job Security Agreement. It must be recognized that the Job Security Agreement provisions are an extraordinary balancing of last line measures designed, on the one hand, to give to employees the maximum job security protection while, on the other hand, maintaining the employer’s extraordinary employment security burden at a reasonable and justifiable level. Should there be any apparent conflict between the provisions of the Job Security Agreement and the general hiring and training obligations of the collective agreement, the Arbitrator is satisfied that in the situation at hand the Job Security Agreement provisions must prevail.

In summary, the Arbitrator is satisfied that article 7A.2(d) of the Job Security Agreement must be viewed as having been incorporated into the JSA for the purpose of recording the full and final understanding of the parties with respect to cross-craft displacements. The fact that the language in relation to the parties’ final understanding may not have been finalized within a one month period is, particularly in view of the renewal of the provision, not compelling as a basis to view the entire understanding as a nullity. Nor is there anything in the language of the understanding which would suggest that the Company is in any way prevented from displacing employees in skilled trades, provided that the persons displaced are the most junior unprotected employees at the location. Nor can the provisions of article 7A.2(d) be viewed as intended to be in some way subject to the prior exhaustion of article 7B of the Job Security Agreement, a provision which is itself predicated on an employee’s inability to hold work. Finally, for the reasons related, these provisions cannot be viewed as being in conflict with the provisions of rules 23.9 and 23.10 of the collective agreement.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Toronto, this 21st day of July 2004

(original signed by) MICHEL G. PICHER

ARBITRATOR