BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Professor Bora Laskin, Q.C.

A hearing in this matter was held in July 1964.

In the Matter of an Arbitration Between Canadian National Railway company and Canadian Brotherhood of Railway, Transport and General Workers: Re Seniority Claim of J.C. Durant.

This case raises for final decision for the first time the meaning and application of article 7(b)(1) of collective agreement 5.8 between the parties, governing working conditions and rates of pay of employees in sleeping, dining and parlour car service. Article 7 is a seniority provision, and, in clause (a), it sets forth the principle that when the staff is reduced the senior employees with sufficient qualifications to perform the work in the occupational classifications affected shall be retained in the service. Clause (b)(l), which is immediately in issue here, then reads as follows:

The grievor was a sleeping car porter on Run 1702-1601, Montreal to Hamilton, on December 4, 1961 when the circumstances arose which precipitated his grievance. He had bid in on this Run which called for four employees who took it in sequence, and it was his turn to go out on December 4, 1961, when he was "bumped" out of his turn by a more senior employee who returned from sick leave. No issue arises here as to the right of the senior employee to bump Durant. What is in question is whether Durant was entitled to exercise his seniority to choose another Run or whether the Company was right in denying him that choice and keeping him on Run 1702-1601 in place of one Upshaw who was junior to Durant among the four men on the Run.

It is the Company’s position that the men assigned to a particular Run and who do it in sequence work in a pool and that there is no displacement within article 7(b)(1) unless it is the junior man of the pool who is ousted; it is he alone who can make the choice of another Run within this collective agreement provision. In this case, Durant was third in order of seniority, and, on the Company’s argument, he was properly given Upshaw’s turn out and was rightly retained on Run 1702-1601 until the change of time card. Although certain changes have taken place since the date of this grievance in the seniority arrangements and bulletining provisions in force between the parties, they do not affect the disposition of Durant’s grievance. There is, moreover, no question of money compensation involved but rather the claim of principle that a person in Durant’s position is entitled to exercise his seniority broadly under article 7(b)(1) and is not limited by pool considerations simply because he is one of a number of men on a particular run.

Durant had sought a place on the Montreal to Toronto run 1706-1606 against a junior employee, and in denying that opportunity to him but conceding it to be open to Upshav the Company claims it was following a consistent practice since August 15, 1945 when the present wording of article 7(b)(1) became effective. In one respect the Company did change its practice so far as concerns the right of an admittedly displaced employee to bump into another Run; formerly, the Company permitted him to bump only the most junior employee on the other Run but it abandoned this practice and permitted bumping into any place on the chosen Run with due regard, however, for seniority. There is, therefore, no problem here as to where in another Run Durant could claim to fit, but rather whether, he could rightly claim another Run. On this phase of the matter the Brotherhood insists it has not conceded the correctness of the Company’s practice, and indeed, failure to carry grievances to arbitration does not foreclose a party where it does go to arbitration unless there is evidence of an agreed interpretation which the party seeking arbitration desires to upset. There is no evidence here of any agreed interpretation in line with the Company’s practice, and the matter falls to be decided under the terms of the collective agreement, regarded, however, as an operating instrument.

The Company stated candidly, in answer to a question, that whether Durant or Upshaw should be the one to exercise seniority rights on another Run was simply a matter of limiting the potential of disruption arising from a senior man bumping into the Run to which Durant and Upshaw were assigned. It is a little difficult to appreciate how the disruption could be greater if Durant exercised his seniority on another Run rather than Upshaw. For Durant to do so would at least eliminate the shifting of Upshaw, and since in the normal course, one man from the pool assignment would be seeking to displace a junior on some other Run there seems little reason to deny this opportunity to the man who is immediately bumped out of his position in the Run sequence. No doubt the Company would agree that Durant could have taken over Upshaw’s position, although its contention would be that this was a matter of obligation rather than choice. The argument of obligation does not square with anything in the collective agreement nor is it in any way supported by the agreed interpretations and understandings between the parties. These do not touch the exercise of seniority by men in a pool assignment when a senior person bumps into the pool.

The Company’s brief exhibited apprehension that an employee would, on the Brotherhood’s submission, obtain a seniority claim to other work if his particular sequence of work were disrupted"for any reason". (See Company brief, para. 25.) However, what is in question is only disruption by reason of displacement, and this can only refer to the intrusion of another employee by virtue of higher seniority. The governing factor, when all is said and done, is the language of the collective agreement, and article 7(b)(1) speaks of displacement of an employee without qualification as to pool considerations, and goes on to give him a seniority right to displace a junior employee, again without pool limitations or, indeed, without any limitations other than those of qualification to perform work within the particular seniority group.

My conclusion is therefore, that the Brotherhood’s contention is correct and that Durant’s grievance should have been allowed.

Dated at Toronto this 17th day of August, 1964.