BETWEEN:

(the "Company")

AND

(the"Union")

SOLE ARBITRATOR: J. A. Hanrahan

There appeared on behalf of the Company:

R. Abbot – Assistant Manager, Labour Relations

P. A. McDiarmid – Labour Relations Assistant

W. S. Hodges – Labour Relations Assistant

S. J. Goldenberg – Senior Agreements Analyst

C. R. Kelley – Assistant Labour Relations Officer

And on behalf of the Union:

C. Beckerton – General Chairman, Toronto

L. K. Abbott – General Chairman, Moncton

J. A. Pelletier – Secretary, Joint Protective Board

G. Gagnon – Acting General Chairman

A hearing in this matter was held at Montreal in February 1966.

In this matter the Brotherhood claims the Company violated Article 12.9 of the agreement in not permitting Mr. C.D. Lipton to exercise his seniority rights for the position of Chief Ticket Salesman in Charlottetown, P.E.I.

Article 12.9 reads;

On behalf of the grievor, Mr. L.K. Abbott told the Arbitrator that Mr. Lipton, while holding a regular position locomotive foreman’s clerk at Sydney, Nova Scotia, elected a temporary vacancy as Issuer in the Stores Department at that station. This was pursuant to Article 12.9. When this temporary position expired he elected by written application April 22, 1965, to seek the position of Chief Ticket Salesman at Charlottetown, effective May 4, 1965.

Mr. Abbot submitted Article 12.13, the basis for the Company’s refusal to grant this claim, had no relevancy to the problem.

For the Company Mr. Goldenberg told that on April 5, 1965, as a result of his application Mr. Lipton was assigned to a temporary vacancy relieving in the position of ticket salesman during the regular incumbent’s two week annual vacation. Upon completion of that assignment, on April 21, 1965, the grievor was assigned to a five-day temporary vacancy relieving in the position of stores issuer. Again, the incumbent was on annual vacation.

As stated, on April 22, 1965, the grievor made written applications for the position of chief ticket salesman in Charlottetown, exercising his seniority rights under Article 12.9 of the agreement. He was advised by telephone on April 30 that is seniority rights did not entitle him to displace to the position of chief ticket salesman. On May 3, 1965, the grievor returned to his regularly assigned position as car foreman’s clerk.

Mr. Goldenberg traced three various moves with reference to the applicable provisions of the agreement. The first transfer was made under Article 12.7. The next was under Article 12.9.

The provisions of Article 12.9, Mr. Goldenberg contented, meant that upon completion of the temporary vacancy of stores issuer, Mr. Lipton had accumulated only five days’ seniority in the Stores Group but still had all his seniority rights in Group 1. Not exercising his seniority in the new group, once his temporary vacancy appointment was ended, his seniority rights in Group 1 remained unimpaired.

It was claimed that upon the return from vacation of his regular incumbent, Mr. Lipton’s temporary vacancy came to an end.

Mr. Goldenberg reasoned that Article 12.13 then became effective to chart the only course open to the grievor. It reads:

It was established that at the time the grievor made his application in April, 1965, there was no vacancy for the position of chief ticket salesman at Charlottetown. It had been bulletined on July 15, 1964, nine months earlier, and filled on July 31, 1964, by the appointment of E.J. Landry, who had seniority in Maritime Area Seniority Group 1. The successful applicant then became the regular incumbent of the permanent position of chief ticket salesman in that city.

It was disclosed that the grievor had made an application for this opening when it was bulletined, but as he described in his letter of application last April:

The only possible justification for an application being made by the grievor at this time for an opening bulletined and filled nine months earlier, is that he understood the advice he received to qualify himself, and that when a later opening occurred his application would be considered to mean the opening was being held for him while he applied himself.

This claim was made under Article 12.9. The first requirement for application of its provisions is a vacancy. As stated, when the grievor made the application about which he grieves there was no vacancy for the post he sought.

For these reasons this grievance must be dismissed.

Arbitrator

COMMENTARY: An employee completing a temporary vacancy in another seniority group under Article 12.9 sought to exercise his seniority in his own seniority group to displace onto a regular assignment other than his own. The Arbitrator supported the Company’s contention that under Article 12.13 the employee could not displace onto another regular assignment but must return to his own regular assignment.