AH – 40
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS
CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT and GENERAL WORKERS
IN THE MATTER OF THE GRIEVANCE OF Train Messenger K.D. Marchant
SOLE ARBITRATOR: H. Carl Goldenberg, Q.C.
A hearing in this matter was held at Montreal, Que., on April 20,1967.
The Brotherhood charges the Company with violation of the terms of the collective agreement in denying regular Train Messenger K.D. Marchant the right to relieve regular Train Messenger E.J. Dudgeon during the latter’s vacation period from July 4 to July 24, 1966. It claims that Mr. Marchant was thereby refused assignment to a temporary vacancy to which he was entitled under the agreement. The assignment was given to a Relief Train Messenger.
Article 1.4 defines "temporary vacancy" as follows:
1.4 A vacancy in a position caused by the regularly assigned occupant being absent from duty (including on vacation) or temporarily assigned to other duties.
Article 12.6 provides for notice of such vacancies:
12.6 Temporary vacancies, newly-created positions and seasonal positions, when known to be for sixty (60) calendar days’ duration or less, will not be bulletined. However, suitable advice notice will be posted, as required, at the station or terminal affected. Such position shall be awarded to the qualified senior employee on the Area who makes application therefore within five (5) calendar days from the date notice is posted. Applications from regularly assigned employees will only be accepted when it is known the vacancy is for more than five (5) working days or when it involves an increase in rate of pay, or a change in shift, or rest day or days. When other qualified employees are available regularly assigned employees will not be allowed to commence work on a temporary vacancy and their regular assignment on the same day.
Article 27.3 (d) and (e) provides for a Train Messenger to a temporary vacancy:
(d) Advice notice, referred to in Article 12.6, for train service positions, will be posted on the area to which the route of the train service position is attached and will contain the same information as bulletin referred to in Article 27.3 (b).
(e) An employee holding messenger seniority, assigned to a Train Messenger position, will not have any rights to a temporary vacancy of any duration or seasonal position, other than one in a position of Train Messenger. An assignment to a temporary vacancy in a Train Messenger position, posted in accordance with (d) above, will be made on the basis of the following:
First Preference – A qualified employee holding messenger seniority, on the basis of messenger seniority.
Second Preference – A qualified employee assigned to an established position of Relief Train Messenger or Train Messenger Helper, on the basis of Area seniority.
Third Preference – A qualified employee other than one entitled to first and second preferences, on the basis of Area seniority.
It follows from the foregoing that a temporary vacancy includes a vacancy created by absence on vacation and that a Train Messenger holding messenger seniority has rights to a temporary vacancy in a position of Train Messenger. If these were the sole relevant provisions of the agreement the Brotherhood’s case would be well-founded. However, Article 27.10 (a) restricts relief work on Train Messenger routes to Relief Train Messenger:
The relief work on train messenger and train messenger helper routes in each Area will be pooled, with each turn or allotment of train messenger helper relief work being considered the same as a turn or allotment of train messenger relief work. All such relief work will be performed by employees regularly assigned to the positions of Relief Train Messenger in the area in which the home terminal of the routes is attached.
It is apparent that there is a conflict between Article 27.3 (e) and Article 27.10 (a). The former confers on Train Messengers rights which the latter restricts to Relief Train Messengers. In these circumstances it is relevant to have regard to established practice.
I find that the established practice is for all relief of Train Messengers on vacation to be performed by Relief Train Messengers and that the present case is the first in which a regular Train Messenger asked for the right to relieve another regular Train Messenger during his vacation period.
Considering the established practice and that the relevant provisions of the collective agreement are in conflict, I find that the Company was not in violation of the agreement in refusing to allow Mr. Marchant the right to relieve another regular Train Messenger.
The grievance is dismissed.
Signed at Montreal, Que., May 25, 1967.
H. Carl Goldenberg
COMMENTARY: The Company’s position that the agreement was ambiguous was upheld and in such circumstances past practice governs