SHP653

DISPUTE

1. On February 13, 2009, the Company issued Bulletin C-04-2009 (“the Bulletin” / “the job bulletin”) for eight new positions of Car Mechanics at the Oakville location. In addition to performing Car Mechanic duties at Oakville, the successful applicants were to be required on request to report to the BIT (Brampton Intermodal Terminal) location to perform Car Mechanic duties.

2. The Union contends that the Company’s proviso contained in the Bulletin allowing the Company to reassign Oakville employees to BIT on a temporary basis was in violation of Rules 23.11, 23.12 and 23.14 of Agreement 12, the collective agreement.

3. The Company disagrees with the Union’s contention and has declined the Union’s grievance.

4. This case, unlike many of the cases cited, is not about the sufficiency of the Bulletin. It is about the Company’s entitlement to make an assignment across two separate work locations.

RELEVANT PROVISIONS OF AGREEMENT 12

5. The relevant provisions of Rule 23 are the following:

23.11 When vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification in a respective trade 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, and will be awarded to the senior employees, subject to Rule 23.29, the local committee to be consulted. An employee who is awarded a position under this Rule 23.11 will not be awarded the vacancy caused by the employee's departure from the employee's former position unless the employee is the only qualified applicant. The foregoing sentence will only apply when the bulletined duties, hours of work and rest days are identical to the bulletined position the employee has vacated during the ninety (90) calendar days previous to the closure date for applications to the new bulletin.

(See Appendices II and IX)

Within a main shop, successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. This period may be extended to 30 days by mutual agreement with the Regional Vice-President.

23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the trade for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the local committee to be consulted in each case.

Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this clause annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23.12. An employee assigned to fill a position under this Rule 23.12 may not claim or apply for another position under this Rule 23.12 which will commence work during the first thirty (30) calendar days of being assigned to the position, unless the employee was placed upon the position directly upon recall from layoff.

(See Appendix IX)

…

23.14 The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay or hours of work or days off are changed.

The affected employees shall have the right to displace the junior employee in the designated work area of their choice with the shift, days off, hours of work and rate of pay of their choice except as may be provided in the Trade Special Rules. Apprentices shall be considered to be in the same Classification as mechanics for the purposes of determining who is the Junior Employee.

For the purpose of this Rule 23.14 the designated work area shall be as defined in bulletining positions in accordance with Rule 23.11.

Such employees initially affected shall be given, during their regular working hours, as much advance notice as possible but, in any event, not less than forty eight hours. The affected employees shall make their intentions known within forty-eight hours of notification and subsequent displacement shall be made without undue delay. The Local Committee shall be consulted.

STATEMENT OF ISSUE

Facts

6. The parties did not agree a joint statement of issue. What follows is my combination of the facts they provided and their submissions.

7. The Bulletin included the following:

This position will be required to perform Car mechanics duties at Brampton Intermodal Terminal (BIT) dependent upon workload fluctuations at Oakville and/or BIT, as well as the protection of temporary vacancies at BIT. When required to report to BIT, successful applicants will be advised at least 24 hours in advance of the assignment and will commence and end their shift at BIT. When reassigned to BIT to address workload fluctuations, the successful applicant will retain their shift and rest days. When reassigned to BIT to protect temporary vacancies, the successful applicant will assume the shift and rest days of the temporary vacancy.

8. The Oakville and Brampton Intermodal locations are each defined work locations within the Toronto Seniority Terminal, which is within the Toronto Seniority Area.

9. Each seniority area has seniority terminals. Each seniority terminal is divided into locations or points. This cascading application of seniority plays a part in the application of the various seniority provisions of the collective agreement.

10. The Seniority List for the Great Lakes Region contains three seniority areas: Toronto, South Western Ontario, and Northern Ontario. The Toronto area consists of three seniority terminals: Hamilton, Toronto and Belleville. The Toronto seniority terminal consists of five defined work locations or points: Oshawa, MacMillan IRC, MacMillan ERC (East Repair Centre), Brampton Intermodal (BIT) and Oakville.

11. The Bulletin was the first occasion on which the Employer has posted a vacancy in two locations. Those bidding for the vacancies were required to work at the Oakville terminal, and to work at the Brampton terminal if workload fluctuations required it.

12. The work at the Company’s Oakville terminal is sited primarily to serve the Ford Motor Company’s truck assembly plant in Oakville.

13. The Company justifies the Bulletin on its operational needs. The workload fluctuations and the decrease in volume at Oakville were outside of the Company’s control. The automobile industry faced a significant downturn in business. While in the past the Oakville Terminal had the capacity to load 120 to 150 bi-level cars per day, during 2008 the facility loaded an average of 49 cars, and, in 2009, 39 cars per day, considerably below its capacity.

14. The situation in Brampton was quite different. The Company faced the opposite problem, not a surplus of employees, but a shortage, the result of employee vacation and illness. The Company approached the Union to discuss the possibility of temporarily assigning employees from Oakville to Brampton Intermodal. The Union canvassed employees at Oakville for volunteers to fill the temporary shortage in Brampton. None volunteered.

15. The Company must ensure uninterrupted service in Brampton. The BIT handles the Ontario traffic of the Company’s Intermodal operations, currently the busiest Intermodal terminal on the CN system with about 750,000 containers annually. The gate transaction at BIT, which involves either the in-gating and or out-gating of tractor trailers, entails approximately 2,100 transactions each business day.

16. In February 2009, with the downturn in demand in Oakville and the staff shortage in Brampton continuing, the Company decided to address the two contrary situations by abolishing 8 positions in Oakville and posting the Bulletin, which advertised 8 positions working primarily at Oakville, with the Company’s entitlement to reassign to BIT when the need arose. Having this flexibility was intended to enable the Company to maintain current staffing levels at Oakville without layoffs, and to meet temporary staff shortages in Brampton.

17. The Company says its solution in the Bulletin avoided layoffs and bumping across the Toronto seniority terminal.

18. To date, the Company has reassigned only 4 of the employees appointed under the Bulletin from Oakville to cover vacancies at BIT when required. When there is a need to reassign an employee to BIT, the Company canvasses the 8 successful applicants to the Bulletin, in seniority order. When the employees are reassigned to BIT they have been compensated for their mileage and, upon completion of the reassignment, have returned to their positions at Oakville.

19. The Union points out that in the most recent round of bargaining the Company sought to amend Rule 23 in various ways. Included in the Company’s proposals were the following:

17. Amend Rule to provide greater flexibility in dealing with assignment of employees. Amend temporary vacancy provisions, designated work areas, and displacement process to expedite employee placements when workforce adjustments are required.

…

23. Reduce the restrictions on assignment of work between yards and terminals based on operational needs.

20. These proposals were not accepted and Rule 23 remained unchanged.

21. The Employer responds that the bargaining proposal had nothing to do with Oakville and with the facts giving rise to this grievance. The Employer wanted flexibility for MacMillan ERC and MacMillan IRC and the seasonal shutdowns in Oshawa, and between Symington Yard in Manitoba and Winnipeg.

Submissions

22. The Company says the Bulletin meets the requirements of Rule 23.11 because the Company identified: the specific shift and rest days; the nature of the work; and that the positions would predominantly work at Oakville. The Bulletin included notice that the successful incumbent may be temporarily reassigned to BIT (the closest location to Oakville).

23. The Union argues that the effect of the Employer’s combination of the distinct areas of Oakville and Brampton into the job bulletin is to disturb the specified hours of work and rest days. The Union submits that, by arrogating to management the authority to assign the incumbent to Brampton in slow periods at Oakville, the Employer effectively acquires the unlimited ability to set hours of work, rest days, shift and work location. The Union suggests that the effect of this is to nullify the seniority provisions of the collective agreement, particularly in Rules 23.12 and 23.14.

24. The Employer disputes this. It says Rule 23.14 has no application. The provision is invoked only if positions are abolished, or rate of pay or hours of work or days off are changed.

25. As a remedy, the Union seeks: a declaration that the Company violated the collective agreement when it posted the Bulletin; that the Bulletin and Award Bulletin C-4-2009 be struck down and that any re-bulletin adhere to the agreement; and that all employees impacted by having to report to BIT contrary to the provisions of the agreement be compensated.

26. The Employer responds that the individual grievances regarding the Bulletin were not pursued, so no individual remedies of compensation are appropriate. The Union replies that the request for “reasonable punitive damages” for the successful applicants and for those refused temporary vacancies was included in the Union’s grievance and is properly part of it.

AWARD OF THE ARBITRATOR

27. There is no suggestion of bad faith by the Employer. The Bulletin efficiently addressed CN’s operational needs in the manner that accomplished two objectives: maintaining employment at Oakville, despite a decline in work; and ensuring staffing at Brampton, despite staff shortages. Throughout, the Employer has been motivated only to address these genuine operational concerns.

28. The structure of Rule 23 is that long-term or permanent vacancies are addressed by Rule 23.11 and short-term vacancies (under 90 days duration) are addressed by Rule 23.12.

29. Rule 23.11 requires that the bulletining of vacancies will be “in the classification at the seniority terminal where they are created”.

30. Leaving aside, for a moment, consideration of Rules 23.12 and 23.14, the blending of two locations within a single bulletin does not offend Rule 23.11. The difficulty is that Rule 23.11 cannot be read it isolation from other provisions in Rule 23. The Bulletin has an adverse impact on seniority rights under Rules 23.12 and 23.14 that makes it unsustainable.

31. For the reasons that follow, I find that the Bulletin offends Rule 23.12 for both aspects of temporary work contemplated at BIT (“to address workload fluctuations”, when the incumbent retains their shift and rest days; and “to protect temporary vacancies”, when the incumbent takes the shift and rest days of the temporary vacancy). I find also that the latter type of temporary work at BIT offends Rule 23.14.

32. Rule 23.12 entitles the senior qualified employee to claim any temporary vacancy: see SHP 234 (M. Picher). The senior qualified employee is one from the respective point [my emphasis] “within the home seniority terminal”. A point is a work location. Oakville is a point, as is Brampton.

33. The entitlement to any temporary vacancy under Rule 23.12 is denied the senior qualified employee because, under the Bulletin, temporary vacancy hours are to be filled by those from Oakville in the newly created blended positions. The opportunity to bump into and work those hours is lost to the senior qualified employee. See SHP 268 (M. Picher):

… Rule 23.12 in the instant collective agreement required the Company to respect the right of senior qualified employees from the home Seniority terminal involved to claim vacancies, should they desire them. …

34. The Employer says that Rule 23.14 does not apply because no position is abolished, and no rate of pay or hours of work or days off changed. That is accurate when, as the Bulletin says, the Oakville employee is reassigned to BIT “to address workload fluctuations” because the employee retains their shift and rest days.

35. But it is not accurate of the second type of reassignment to BIT, “to protect temporary vacancies”. In that circumstance, the employee assumes “the shift and rest days of the temporary vacancy”. To assume the shift of the temporary vacancy means that the employee’s own shift no longer applies. In other words, the employee’s own “hours of work” (Rule 23.14) are changed. In that circumstance, they are entitled to what follows in Rule 23.14.

36. However, the incumbents of the new positions under the Bulletin do not have the entitlements in Rule 23.14. Because they can be transferred from the Oakville to BIT “to protect temporary vacancies”, they lose the opportunity to displace a junior employee in Oakville. As the Union argues, those who fill the blended position will no longer be a position in which they can use the entitlement under Rule 23.14. The change in their hours of work will result in their working at the other location. It will not enable them, as provided in Rule 23.14, to displace the junior employee in Oakville.

37. There is a further problem with the Bulletin. It provides for 24 hours notice to the incumbents of the new blended position of their reassignment to BIT. If Rule 23.14 applies, as it does in the circumstance I have described, the requirement is to give the affected employee 48 hours.

38. The Company refers to SHP 268 (M. Picher) and CN and CAW Local 100 (Foucault) (award of M. Picher, July 23, 2009), in support of its case. The awards help to explain an important distinction. Arbitrator M. Picher ruled that the Company has the authority to force the temporary assignment of a junior employee to a different work location (in SHP 268, from North Bay to Timmins and Englehart; in Foucault, from Capreol to North Bay). The Company’s authority for this is its management right to direct its workforce, which includes the right to assign and transfer employees. Obligatory transfers of junior employees to other locations, when no employees volunteer to fill the vacancies, are not a violation of Rule 23.12.

39. That outcome is quite different, though, from the situation in this grievance. We are not here dealing with an obligatory temporary assignment. We are dealing with the creation of a blended position, covering two locations. In SHP 268 the temporarily assigned employees retained their “home” positions in North Bay; in Foucault, he retained his “home” position in Capreol. Their assignment was for temporary relief in other locations. In the present case, although the base assignment in the Bulletin is Oakville, the potential of temporary assignment to Brampton is permanent. In effect, the “home” position is itself a combination of two locations. There is no temporary assignment; there is a permanent assignment within two different locations, depending on the Company’s operational requirements, with Oakville as the presumptive location. That is not contemplated by Rule 23.12.

40. This point is made clear by the sentence: “Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignment” [my emphasis]. The parties contemplate that each employee will have a “basis regular assignment” and that the temporary assignment will be different. In contrast, the Bulletin entails that the temporary assignment is an intrinsic, immanent, and permanent feature of the basic regular assignment. That is not within the parties’ expectation, as expressed in Rule 23.12.

41. I find, therefore, that the collective agreement requires a job bulletin to specify the only location or point within which the work is to be performed, and that the Bulletin did not comply with this requirement. The Employer is limited in a job bulletin to stipulating one location or point where the work will be performed. This does not detract from the Employer’s entitlement to reassign an employee temporarily to another location or point, subject to the seniority provisions of Rule 23.12 (namely, senior being first offered the opportunity; junior obliged to accept, if required).

42. The Union is therefore entitled to a declaration of a breach of the collective agreement. Given the notice it gave to the Employer of its request for compensation, it is entitled to pursue its claim for compensation for actual loss. It is not entitled to any punitive damages because no wilful wrongfulness has been established. As I have said, the Employer’s action was well motivated, driven only by reasonable operational considerations.

43. In the circumstances:

I uphold the grievance;
I find that the Company violated the collective agreement when it posted Bulletin C-04-2009 with the job assigned to two locations;
The Bulletin and Award Bulletin C-4-2009 are set aside;
To the extent any compensation is payable, the issue is referred back to the parties for resolution.

44. I remain seized of the implementation of this award and of any issues of difference between the parties arising from the implementation.

DATED at TORONTO on June 1, 2010.

______________________

Christopher J. Albertyn

Arbitrator