In the Matter of an Arbitration
CANADIAN PACIFIC RAILWAY
(“CPR” or the Company)
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
(“CAW” or the “Union”)
(Insufficient Notice for Prairie & Pacific Region)
Heard at New Westminster, British Columbia, November 22, 2012
Company's alleged violation of Rule 23.16 when the Company provided less than 5 working days' notice of layoff on May 23,2012.
JOINT STATEMENT OF ISSUE
On May 19, 2012 the Company received a 72 hour strike notice to take effect at 0001 MDT on Wednesday, May 23, 2012 from the Teamsters Canada Rail Conference -Running Trades Employees and Rail Traffic Controllers (TCRC-RTE and TCRC-RCTC).
On May 23, 2012, after the commencement of the work stoppage the Company began laying off CAW employees.
The Union alleges that the Company was in violation of Rule 23.16 when the Company did not provide appropriate working days advance notice of the layoff.
The Union requests that compensation be paid equivalent to the appropriate notice period and for employees who remained at work be compensated at punitive overtime rates for being required to work outside their regular schedule and/or outside the provisions of the Collective Agreement, and that employees otherwise be made whole in all respects.
The Company disagrees and denies the Union's request.
FOR THE COMPANY: FOR THE UNION:
Jennifer Love (signed) Tom Murphy
Labour Relations Officer President, CAW Local 101
FOR THE COMPANY:
Jennifer Love – Labour Relations Officer
Brianne Deacon, Director, Labour relations
FOR THE UNION:
Brian Stevens – CAW National Representative
Ray Lawson – Vice-President, Local 101
The Collective Agreement
The dispute before me is based on Rule 23.16 of the Collective Agreement between the Company and CAW:
23.16 When it becomes necessary to make a reduction in staff at any seniority terminal, at least one week (5 working days') notice shall be given the employees affected before reduction is made. Whenever possible, longer periods of notice will be given and lists shall be furnished to the Local Union Representative and Regional Union Representative.
This does not apply in laying off employees who have been temporarily employed for a duration of less than 65 working days to meet special requirements. In the event that a strike or work stoppage by employees in the Railway industry is called on less than 5 days' advance notice, a shorter notice may be given under this Rule 23.16. In reducing forces, the ratio of apprentices shall be maintained. [Emphasis added]
The Collective Agreement also provides that senior employees may bump junior employees in the manner specified. Rule 23.17.1 reads:
23.17.1 When layoffs occur, an employee laid off from his respective classification at his seniority terminal, may, within 30 calendar days, displace the junior employee in his respective classification on his basic seniority territory carrying his seniority in that classification with him, except as may be provided in the Craft Special Rules. An employee who declines to displace the junior employee in his respective classification on his basic seniority territory under this Rule 23.17, shall be laid off subject to recall to his home seniority terminal. A Trainee may only exercise seniority pursuant to this rule after complying with Rule 52.22A(j).
The material facts are not in dispute.
On May 19, 2012, the Teamsters Canada Railway Conference (Running Trades Employees and Rail Traffic Controllers – TCRC-RTE and TCRC-RCTC (“TCRC”)) served 72-hours strike notice that effective 0001 (hrs.), May 23, 2012, the TCRC would be exercising its right to take legal strike action throughout each terminal in Canada in the event the parties failed to reach a negotiated settlement by that time. The strike notice encompassed some 5,000 employees in the two bargaining units.
CPR received the notice, and, the same day, informed the unions representing other bargaining units, including the CAW. The Company advised that it intended to “maintain partial railway operations should a work stoppage occur.” The Company also advised that the employees in the other units were required to report for work as usual, and that failure to do so would be considered unauthorized absence, subject to discipline. CPR stated, as well, that “[i]n the event of a prolonged work stoppage, it may become necessary to layoff employees you represent. You will be notified appropriately at that time.”
The TCRC and the Company failed to reach an agreement and the work stoppage commenced as set out in the notice, 0001 (hrs.), May 23, 2012. Around 1215 Hrs. on May 23, CPR made the decision to layoff CAW members.
Om May 24, CPR and CAW made an agreement (without precedent or prejudice) to minimize the impact of the layoff. The agreement allowed employees, who would in the ordinary course of events be laid off, to utilize banked time and vacation time rather than being laid off (the “May 24 Agreement”).
The Company provided individual layoff notice to each affected employee. In most cases, employees received written notice. Generally, the individual notices informed the employees of the layoffs effective upon completion of their shifts on May 23. In Sutherland, railcar mechanics, working 0800-1600 Hrs. shifts, were notified before the end of their shifts on May 23. In Calgary, at least one railcar mechanic received written notice of layoff on May 24, effective the end of his May 24 shift. One Sutherland mechanic got 40 minutes notice of layoff.
In Moose Jaw, the Local Union Representative was present when the employees received their individual notices. In Winnipeg, where the layoff was effective the following day, May 24, the Local Chair of the Diesel side of the operation received a copy of each individual notice. On the Car side, all employees were laid off, including the Local Chair. The Company Employee Resources Specialists informed the Local Chair that all staff would be laid off. In Brandon, CPR Employee Resources Specialists informed each of the three employees by telephone and emailed notices to the superintendent. Two employees, who were notified by telephone, were away from the workplace. The Local chair was copied with the notices. In Sutherland, the Local Chair was advised of the layoff verbally and each employee was given individual notice. In Thunder Bay, the Local Chair received the complete package of all employee layoffs. In Swift Current, where there is no Local Union Representative, CPR spoke with each of the affected employees. In Coquitlam, the Local Representative received copies of the individual notices given to each affected employee on the day of the layoffs. In Cranbrook the Local Representative received copies of the individual notices on the day of the layoff. In Calgary – Diesel and Car side - the Local Representative received copies of the individual notices given to each affect employee on the day of the layoff. In Edmonton the Local Chair was advised of the layoffs verbally. Employees were generally given individual notices on May 23 for layoff on May 24. In Lethbridge and Medicine Hat the Local Chair was given notice of the layoffs, each employee was given individual notice on May 23 for layoff on May 24. The Company submitted that layoff lists were also provided to Local Representatives. The Union did not dispute that.
On May 23, at 1820 Hrs., the Company notified the Union’s Vice President (Prairie Region) by email that a number of named (listed) CAW employees in Saskatchewan and Manitoba had been laid off effective May 23. The list contained the names, employee numbers and terminals of affected employees. CPR provided the list to the Vice President within a few hours after the individual layoff notices had been handed out. At 2234 Hrs., the Company informed the Vice President (Prairie Region) that a number of named employees in Brandon and Thunder Bay had been laid off effective May 23. This occurred some six hours or so after the notices had been handed to employees in Brandon. The list contained names, terminals and positions of affected employees. At the same time, the Company also advised that a number of employees in Car Department Winnipeg would be laid off effective the following day, May 24. The list contained names, employee numbers, positions and the department.
On May 23, at 1452 Hrs., the Company advised the Vice President (Pacific Region) that a number of employees in Edmonton, Lethbridge and Medicine Hat were laid off effective 0001 Hrs. May 24. The list contained names and employee numbers. On May 23, at 2224 Hrs., the Company further advised CAW’s Vice President that a number of Calgary employees had been laid off effective May 23. The list contained names, employee numbers, positions, and the department where the employees worked. On May 25, at 1527 Hrs. the Company informed the Vice President that a number of employees in Alberta and British Columbia had been laid off effective May 24.
The Union concedes that it may not be entitled to five days’ notice. However, “shorter notice” does not mean “no notice.” The Union argues that Rule 23.16 must be interpreted in light of the statutory amendments, which predate the Rule. The 1998 amendments to the Canada Labour Code introduced the requirement for 72 hours strike notice. Accordingly, the Union urges me to conclude that CPR should give at least 72 hours layoff notice. The Union says that the Company can rescind layoff notice, as has happened often. However, contrary to the Company’s pre-layoff representations, it did not wait for a “prolonged work stoppage” before starting to layoff CAW members. The Union also argues that the Company’s operations technically did not change between the commencement of the strike and the layoffs.
The Union submits that the purpose of the notice is to allow employees to exercise their seniority rights under the Agreement and to receive advice from the Union in that regard. The Vice President (Prairie Region) was provided a list of a number of employees who had been laid off effective May 23, until two hours after Sutherland employees had received written layoff notice effective at the end of their shift. One Sutherland employee received 40 minutes notice. The Union’s Vice President did not receive notice of the layoff of a number of employees in Brandon and Thunder Bay until six hours after the employees received written notice. While the Local Chairs were copied on individual layoff notices the Regional Representative was not notified until hours later. Untimely notice equals no notice. The notice provided by the Company frustrated the purpose and spirit of the Collective Agreement.
The Union argues that the strike did not come as a surprise to the Company. Until some time on May 23, the Minister of Labour, The Honourable Lisa Rait, encouraged the parties to reach an agreement themselves. It was not until May 23, mere hours after the layoffs were announced, that the Minister announced the federal government’s intent to introduce the Restoring Rail Services Act to end the work stoppage. The legislation was tabled in the House of Commons on May 28 and passed May 30. In short, the Union argues that the Company used the mass layoffs to put pressure on the Minister to intervene in the labour dispute. Employees returned to work when the legislation was introduced in the House.
The Company responds that the Collective Agreement language is clear. The Agreement does not provide an absolute right to have layoff lists furnished to the Union: “Whenever possible, longer periods of notice will be given and lists shall be furnished to the Local Union Representative and Regional Union Representative.” The Company says that the May 24 Agreement added a unique element of complexity to the normal layoff process and, in the circumstances, it was not always possible to provide the lists. While the normal notice of layoff is five (5) or more days’, in the event of a strike or work stoppage, a “shorter notice may be given.” Management, therefore, has the right to “provide the notice possible, dependent upon the situation.” Absent clear language in the Agreement, there is no minimum notice required to the Union (CROA 3034). CPR disagrees that Rule 23.16 should be interpreted in light of the 1988 changes to the Code. Rule 23.16 has been part of the Agreement through many rounds of bargaining subsequent to those changes.
CPR denies that the layoff was a strategy to get the Minister to intervene in its labour dispute with TCRC, but with her refusal to intervene in mind, the Company was left to make the decisions it did. The Company says it made the decision to layoff at 1215 Hrs. on May 23, 2012. Given a significant decrease in revenue and workload coinciding with the strike, the Company decided to significantly scale back its operations. CPR also points to a highly publicized proxy battle for control of the Company, and a resulting change of senior officers just a few days before the May 19 strike notice. Overall, CPR submits that it did its best to keep CAW informed, including calling the Union’s President the morning of the layoffs and offering to call the Regional Vice Presidents as well. It provided individual written notification to affected employees, and lists of affected employees were provided to Local Union Representatives and Regional Vice Presidents, “whenever possible.” CPR submits that nothing in the Collective Agreement requires that the Union be notified first.
In reply, the Union submits that the Company’s interpretation of Rule 23.16 is strained, artificial and unrealistic, it does not accord with how the parties have dealt with layoffs over the years. The “list” is required not simply for record purposes, but to enable the union to be aware of the situation and be able to advice its members. The bumping process is a complicated process. Moreover, CAW notes that management rights must be exercised in a reasonable fashion. Here the Company exercised its management rights in an unreasonable manner; in some case employees received only 20 minutes notice, and the Union was notified later.
Analysis and Decision
In my view, the thrust of the Union’s grievance is: first, the timeliness of the notice to the Union’s Regional representatives; and, second, the sufficiency of the notice given to affected employees.
There is no evidence before me with respect to bargaining history. It is not in dispute that Rule 23.16 predates the Code amendments. It is also not in dispute, however, that this particular Rule has remained in place unchanged through a number of rounds of bargaining and collective agreements since 1998, when the Code was amended. As well, there is no evidence before me as to how the parties have applied Rule 23.16 in the past. Finally, the parties did not refer me to any cases dealing specifically with Rule 23.16.
Fundamentally, the object of the construction of the Collective Agreement is to discover the intention of the parties, who are presumed to mean what they say. Generally, I have to give effect to the words, used by the parties, in their normal and ordinary sense. (See generally, Brown & Beatty, Canadian Labour Arbitration (Toronto: Canada Law Book, 4th ed. (looseleaf))
I first turn to the issue of notification of the Union. The Union submits that the layoff notice was ineffective because the Company failed to provide the lists to the Regional Vice Presidents in a timely manner, i.e., prior to issuing the individual layoff notices.
The Union refers me to CROA 462, 515, 517, 540 and 4036, which speak to the issue of “notice” to union representatives, albeit in the context of different collective language. The relevant provision in CROA 515, 517, and 540 read:
13.2 In instances of staff reduction, four working days’ advance notice will be given to regularly assigned employees whose positions are to be abolished, except in the event of a strike or work stoppage by employees in the railway industry, in which case a shorter notice may be given. The Local Chairman will be supplied with a copy of any notice.
The agreement in CROA 4036 was substantially similar. As in the present case, the collective agreements permitted the immediate exercise of bumping rights. Notification enables the union to be aware of the situation and be in a position to advise employees of their bumping rights. From a purposive standpoint, the arbitrators held that the furnishing of copies of the layoff notices in a timely manner to the local union chairperson was a condition for the proper implementation of a layoff. In CROA 462, the learned arbitrator implied that “timely” meant “prior” notification. However, he did so in the context of different factual circumstances and different collective agreement language.
While the Collective Agreement before me is somewhat similar to those relied upon by CAW, there are, at least on the face of the language, significant differences. First, it appears that COPR is not required to provide copies of the layoff notices to the local union representative. As mentioned, there is no material evidence before me with respect to bargaining history or past practice. Of course, CPR did generally provide the Local Representatives with copies of the layoff notices. Second, in CROA 515, 517, 540 and 4036, the requirement to provide copies of the layoff notices was unqualified. Rule 23.16, on the other hand, provides that “[w]henever possible, longer periods of notice will be given and lists shall be furnished to the Local Union Representative and Regional Union Representative.” In my view, the use of the conjunctive “and,” the phrase “whenever possible” qualifies both the longer notice periods and the furnishing of the layoff lists to the Local and Regional Representative. The parties must have intended that the words – “whenever possible” – have some meaning. It follows, on a normal, ordinary and grammatical reading of the language in this Collective Agreement, that there is no absolute right to have lists furnished to the Union. Similarly, there is no absolute requirement that the layoff lists be furnished to the Union prior to the employees. In this Agreement, the Company is required to furnish the layoff lists, “whenever possible,” and, in my view, that depends on the particular circumstances of each case. It is, in my view, trite law that the exercise of management rights is subject to a requirement that the employer acts reasonably.
Here, TCRC’s strike notice permitted it to take legal strike action at 0001 Hrs. on May 23, but clearly it left open the possibility that the parties could reach an agreement before the deadline, in which case, of course, there would be no strike. The Company communicated to CAW (and other unions) that it intended to “maintain partial railway operations should a work stoppage occur,” and that layoff could become necessary in the event of a “prolonged work stoppage.” There is no evidence to suggest that those representations were anything but the stated intentions at the time they were made. As it happened, TCRC and the Company failed to reach an agreement, and the work stoppage commenced as set out in the notice, 0001 (hrs.), May 23.
Around 1215 Hrs. on May 23, CPR made the decision to layoff CAW members. In light of the importance of the impending strike to the Canadian economy, CPR may well have expected the Minister to intervene sooner rather than later. CPR accepts that the Minister’s failure to intervene sooner rather than later in the labour dispute was a factor in its decision to layoff CAW members, but it also points to a significant decrease in revenue and workload coinciding with the strike. There is nothing before me to suggest that the Company’s decision was not made in good faith or unreasonably.
In this case, the affected employees received some, albeit minimal, notice of the layoffs. No issue is taken with respect to the content of the individual notices, copied to the local CAW representatives. The Company submitted that layoff lists were also provided to Local Representatives. The Union did not dispute that. CPR provided lists of employees affected by layoff to the Regional Representatives. The lists provided, in the main, information relevant to the exercise of seniority rights, names, positions and work locations of affected employees. In some instances, in Winnipeg, Edmonton, Lethbridge and Medicine Hat, the lists were provided to the Regional Representatives before the individual layoff notices. In other instances, the lists were provided to the Regional Representatives between two and six hours after the employees had received their individual layoff notices.
In the railway industry, the exercise of seniority rights is complicated, particularly in the event of larger scale layoffs. The May 24 Agreement likely added a unique element of complexity to the normal layoff process and I accept, in the circumstances, it was not always possible to provide the lists. In my view, it is precisely because of the need to respond to changing conditions and circumstances that the parties have agreed in Rule 23.16 that Company is permitted to lay off employees on the giving of less than five working day’s notice in case of a work stoppage or strike in the railway industry. On the evidence before me, there is nothing to suggest that the Company acted unreasonably in furnishing the layoff lists to the Union.
I turn next to the question of notice to affected employees.
The Collective Agreement expressly provides that in case of a work stoppage by employees in the railway industry, such as here, the Company may layoff employees, giving shorter notice than the five working days normally required. “Shorter notice” does not mean “no notice” – clearly, therefore, some notice must be given (CROA 515). On its face, however, the Agreement does not specify any minimum notice. In CROA 2597 and CROA 3034, Arbitrator Picher concluded that the right to exercise certain seniority rights required clear and unequivocal language given the agreement language, the nature of the issue, bargaining history and arbitral jurisprudence. I agree with the learned arbitrator. To specify some minimum layoff notice would essentially require writing terms into the Agreement that the parties – and these are sophisticated parties with a long history of collective bargaining – for whatever reason, have failed to do by themselves. In my view, it is because of the need to respond to changing conditions and circumstances that the parties have agreed have carved out an exception to the five working day’s notice requirement in case of a work stoppage or strike in the railway industry. In circumstances, I do not agree that the Collective Agreement requires CPR to give 72 hours notice or, indeed, some other minimum advance notice of layoff.
The only requirement in the Agreement is that there must be some notice. The amount of notice required depends on the particular circumstances of each case. It is, in my view, trite law that the exercise of management rights is subject to a requirement that the employer acts reasonably. In this case, the affected employees received some, albeit minimal, notice of the layoffs. In the circumstances, on the evidence before me, I cannot conclude that the Company exercised its management rights unreasonably.
In the result, based on the facts before me, the grievance is denied.
Ib S. Petersen