BETWEEN:

(the "Company")

AND

(The "Brotherhood")

SOLE ARBITRATOR: J. A. Hanrahan

There appeared on behalf of the Company:

D. O. McGrath – Labour Relations Assistant, Montreal

P. Zwicker – Superintendent

And on behalf of the Brotherhood:

F. C. Johnston – Regional Vice President

R. Corrigan – Local Chairman

A hearing in this matter was held at Toronto, Ontario, on October 30, 1967.

Pursuant to the provisions of a collective agreement between the parties, Mr. J.A. Hanrahan was appointed as Arbitrator to deal with this dispute.

The Arbitrator met with the parties in Toronto, Ontario, on October 30, 1967, when arguments were heard.

The Brotherhood alleged that the Company violated Article 3 of the Agreement when it permitted Miss M.H. Olson to return to a schedule position after having been released from an excepted position, contending that she forfeited her seniority when she was transferred to an excepted position.

In addition it was asked that the names of all employees who transferred to non-schedule offices with work from schedule positions be dropped from the seniority list.

Article 3(f) of the agreement provides:

The facts established that Miss Olson entered the service of the Company in a position covered by the agreement on February 17, 1953. In accordance with Article 3 she was allowed a seniority date of February 17, 1953.

Prior to April 1, 1962, employees covered by the Agreement, in addition to various other duties, manually processed time returns of employees in the Sleeping, Dining and Parlor Car Department. With the introduction of computer equipment, new mechanized procedures were implemented to process the timekeeping of S.D. & P.C. employees. The Company then decided to have this work removed from the Regional Comptroller’s office and performed by employees of the S.D. & P.C. Department. To accomplish this, two positions of Timekeeper were to be established in the S.D. & P.C. Superintendent’s office in Toronto and two in Montreal. Four positions were at the same time abolished in the Regional Comptroller’s office.

It was established that the title "Regional Auditor" was changed to Regional Comptroller in the period between 1961 and 1963 Clerical staffs in Regional Offices of the S.D. & P.C. Department are not organized.

Miss Olson was a successful applicant for one of the timekeeping positions established in the non-schedule office of the Superintendent, S.. & P.C. at Toronto and commenced in this position on April 1, 1962.

It was established that Miss Olson’s name was contained in seniority lists for the group in the Regional Comptroller’s Office for the years 1963, 1964, 1965 and 1966. On these lists Miss Olson’s name is shown as occupying an excepted position.

When released from employment on October 20, 1966, Miss Olson was said to have exercised her seniority rights in accordance with Article 3(f) to a position covered by the Agreement. On November 14, 1966, Miss Olson claimed the position then held by Mr. Robert Merill, resulting in that employee being "bumped" to a lower position.

The crux of the submission by the representative for the Brotherhood was that the provisions of Article 3(f) have no application to a situation where the work covered by the agreement went with the employee who was transferred out of the bargaining unit. Emphasis was placed upon the words "… promoted or transferred from a position covered by this agreement to an official or excepted position with the Railway or its subsidiaries …" Verbally underscored in that wording was the word "from".

In support of this reasoning the Brotherhood referred to circumstances in 1955 when certain employees who were transferred with their work did in fact forfeit their seniority. For the Company it was stated the situation at that time was created by the transfer of some accounting functions from the Regional Comptroller’s Office in Toronto to the Accounting Department of Canadian National Telegraphs. Because many of the employees who were transferred had previously moved with their work from CN Telegraphs to the Regional Comptroller’s Office and had been granted seniority dates at the time of that transfer, it was said to be recognized by the Brotherhood and the Company that there was justification for terminating this seniority. It was then mutually agreed between the Brotherhood and the Company that these employees should forfeit their seniority within six months after the date of the transfer.

It was contented for the Company that had the provisions of Article 3(f) been interpreted as the Brotherhood now contends, no such mutual agreement would have been necessary in 1955.

It was established that following the transfer of Miss Olson and other employees on April 1, 1962, the Company received a letter from the then General Chairman of the Brotherhood requesting that the names of employees transferred be removed from the seniority list.

The Company replied stating that before such action could be taken it would necessary to amend Article 3(f) of the agreement.

It was noted by the representative for the Company that although the names of the employees transferred appeared on successive seniority lists from 1963 to the present time no further protest or request for change was received until Miss Olson returned to the bargaining unit

The first search of the pertinent sections of Article 3 of the agreement is to find if the parties agreed on a special provision to deal with an employee who transfers from an organized unit, with or without her work, to an unorganized group in the employ of the Company.

It is noted agreement was reached in Article 3(d) covering the situation where an employee "while filling a position under this agreement is promoted to a position covered by another wage agreement on this Railway or its subsidiaries". In such event protection of attained seniority at the time of the transfer, is protected and increased for a period of six months. Unless the employee returns to his former position within that period his seniority rights under this agreement are forfeited.

Nowhere, however, is there any special provision dealing with what occurred in Miss Olson’s transfer, namely, to an unorganized group.

This brings into consideration whether the general terms of subsection (f) of Article 3 can be used for protection of Miss Olson’s seniority rights.

The important words in subsection (f) are "… transferred from a position covered by this agreement to an official or excepted position …" It was not contended Miss Olson was transferred to what would normally come within the meaning of the word "official". It was claimed by the Company, however, it has always been recognized by the Brotherhood that an "excepted position" is one not covered by any collective agreement.

If that is so, those giving the term such recognition in the past have not, in my opinion, sufficiently considered the wording agreed to by the parties in the specific meaning placed thereon by Article 1 of the agreement.

Subsection (a) of the Article reads:

Article (1) then continues, under the heading "Exceptions":

There follows a list of eleven classifications including "Chief Timekeeper" and "First Assistant Chief Timekeeper", neither of which it was contended Miss Olson occupied.

One of the "following rules" mentioned in subsection (a), of course, is Article 3(f). Then, consider the wording agreed to by the parties:

The "excepted positions", as directed have been specifically detailed by the parties, and do not include that of plain "timekeeper", Miss Olson’s classification.

Manifestly, only those transferred to the named "excepted positions" are to have the benefit of the protection as to seniority covered in Article 3(f).

If the term "excepted positions" had not been so explicitly defined by the parties, as it has in Article 1(1) the more general connotation suggested for it by the Company as applying to any position in the Company not covered by an agreement would bear consideration. In my opinion, however, this is not so having regard to the precise language of the agreement in that respect.

For these reasons I find this grievance must succeed. The necessary adjustments flowing from this finding should be made forthwith.

DATED at Brampton, Ontario, this 7th day of November, 1967.

Arbitrator

COMMENTARY: The award in favour of the Brotherhood was made strictly in accordance with the wording of the Agreement and destroys the interpretation given the words "excepted position" by both the Company and the Brotherhood for many years. An "excepted position" had always been considered a position not covered by any collective agreement. The award now restricts the scope of the words "excepted position" to cover only those classifications specifically excepted in the particular agreement.