AH – 72
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS
GRIEVANCE RE ESTABLISHMENT OF SENIORITY – W. A. THAUBERGER
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
A. D. Andrew
And on behalf of the Union:
A hearing in this matter was held at Montreal on July 12, 1972.
The grievor, an employee of some twenty years’ service, alleges that he was entitled to be recalled to work in the classification of Assistant Purser for the 1971 and 1972 sailing seasons of his ship. The S.S. Prince George.
The grievor was for many years employed as Radio Telegraph Operator, a position in group 2 of the Purser’s Department. In early 1970, a change in transport regulations eliminated the need for radio telegraph equipment on the vessel and the position of Radio Telegraph Operator was abolished. The collective agreement provides for group seniority and there was no other position in group 2 of the Purser’s Department. The grievor was not, therefore, able to exercise seniority rights with respect to any other position in the bargaining unit. Employment in the Stewards Department or in a shore job was nevertheless offered to the grievor, but these offers were refused. Subsequently, as a result it seems of the grievor’s personal approach to a senior officer of the company, an additional position of Assistant Purser was created for him on the vessel in order to provide him with employment for the 1970 season. The grievor was advised that this additional position would be abolished at the end of the season. There was, however, no agreement made between the parties to the collective agreement as to the grievor’s status either at the time or at the end of the 1970 season.
Article 3.1 of the collective agreement provides as follows:
3.1 Seniority lists will be compiled and posted to the respective seniority groups in June of each year. Such lists will show each employee’s name, position, and date of last entry into service in a position covered by this agreement, from which date seniority will accumulate. The name of an employee shall be placed on the seniority list immediately upon being employed in a position covered by this agreement. Copies of the seniority lists will be furnished to local chairman and Regional Vice-President.
In the absence of any agreement between the parties amending Article 3.1, it would seem clear that the seniority lists prepared in June of 1970 ought to have included the name of the grievor, showing his position at the time of the issue of the list and the date of his “last entry into the service in a position covered by this agreement.” This latter date would, it seems clear, be the date of his original employment as a Radio Telegraph Operator (the material before me does not show any history of the grievor’s employment in other classifications). Although the exercise of seniority as mentioned earlier, is according to groups as provided specifically by the collective agreement, the listing of seniority must be in accordance with the provisions of article 3.1. In my view, “last entry into the service” refers to the commencement of a period of unbroken employment relationship with the Company, although it may not be a period of full time service, that is, it may include periods of lay off. Employment would appear to be seasonal and employees are “discharged” within the meaning of the Canada Shipping Act at the end of each season. I do not take this mean that they are discharged from their employment relationship with the Company in the usual industrial sense of the tem. If I am wrong in this, however, then the date of the grievor’s last entry into the service in a position covered by the agreement, would be a date at the beginning of the 1970 season when it is clear he was employed as an Assistant Purser. It does not appear that any other employee had greater seniority than the grievor, whichever meaning of the phrase “last entry into the service” is accepted.
The Company did issue seniority lists in June of 1970, but the seniority list for Assistant Pursers group in the Purser’s Department, included only one name and it was not that of the grievor. Shortly after the list was issued the Union advised the Company that the grievor was in the Purser’s Department and that by reason of his working as an Assistant Purser he had established seniority as such. This protest with respect to the grievor’s seniority was made in compliance with Article 3.3 of the collective agreement, which is as follows:
3.3 Protests in regard to seniority standing must be submitted in writing within sixty (60) days from the date seniority lists are posted. When proof of error is presented by an employee or his representative, such error shall be corrected, and when so corrected the agreed upon seniority date shall be final. No adjustment shall be made in the seniority date of an employee after his name has been posted on the seniority lists without protest for two consecutive years.
The Company made no reply to this protests. Whether or not the Company’s failure to reply should be taken as acceptance of the Union’s contention that it was in error (an in this respect it is my view that there is no analogy to be drawn with the Northern Telephone case, 20 L.A.C. (86), it is clear that timely protest was made and that the Union is certainly not estopped from asserting what it considers to be the grievor’s proper seniority.
Articles 3.1 to 3.6 inclusive, of the collective agreement deal generally with the matter of seniority status and seniority lists. Articles 3.7 to 3.17 inclusive, deal in particular with the seniority rights of persons in the Steward’s Department and in this respect I am ion agreement with the contention of the Company as to the particularity of those provisions. Article 3.18 is the only provisions dealing particularly with seniority rights of employees in the Purser’s Department. That article provides as follows:
3.18 Pursers and Radio Telegraph Operator
When reducing forces, senior employees with sufficient ability to perform the work will be retained. Employees laid off on account of reduction of forces shall be given preference of employment when forces are increased and shall, if qualified, be returned to the service in seniority order. An employee failing to report for duty, or failing to give satisfactory reasons for not doing so within ten days after call by mail, shall be considered out of service and his name shall be dropped from the seniority lists. A laid off employee who desires to return to the service when work is available for him, must keep the proper officer of the Company informed of his address, or any change of address, so that he may be readily located.
When, following the conclusion of the 1970 season the additional post of Assistant Purser, which had been created for the grievor, was abolished, there was a reduction of forces within the meaning of article 3.18. In such a case the senior employee with sufficient ability to perform the work was entitled to be retained. In the instance case, there is no issue before me as to the grievor’s ability to perform the work in question. He did in fact act as Assistant Purser during the 1970 season. There were complaints with respect to him, but he was not subjected to discipline nor was he removed from his position for any reason relating to job performance. I am not called upon to make any determination with respect to such matters. As the Company acknowledged in its brief presented at the hearing, if the grievor established seniority as an Assistant Purser, then he was in deed entitled to be recalled in that capacity for the 1971 and 1972 sailing seasons.
As has been noted, there is no provision in the collective agreement whereby employees in the Purser’s Department are entitled to exercise seniority rights with respect to other job classifications. The grievor had no right of transfer to the job of Assistant Purser as has been made clear. He was, however, given employment in the classification of Assistant Purser and it is not suggested that the Company was not within its rights to do that. The rights, however, which the grievor now asserts flow from his employment in a particular classification within the bargaining unit. It is rights under the collective agreement and not rights which may be thought to arise under some individual bargain which are to be determined in these proceedings.
It should be apparent from the foregoing that the disposition of the instant case must be governed by the provisions of articles 3.1 and 3.18 of the collective agreement. The grievor’s entitlement to be shown on the seniority list issued on June of 1970, seems to me to be beyond doubt; he was an employee at the time and he was employed in a position as Assistant Purser. The date of his last entry into the service would appear to have been in the paid position of Radio Telegraph Operator and it is from the date of this entry into the service in such position that his seniority accumulates. In fact then, the grievor was the senior employee in the classification of Assistant Purser at the end of the 1970 season and was entitled under the provisions of the agreement, to be retained as such. There was no agreement as I have said which would estop the Union from asserting the proper application of the collective agreement in the grievor’s case. Any private agreement between the Company and an individual employee is not one to which an arbitrator, whose duty is to apply the provisions of the collective agreement made between the parties, could give effect.
For the foregoing reasons, the grievance must be allowed. The grievor was entitled to receive compensation for loss of earnings in the usual way. In the event that the parties are unable to agree as to the amount of compensation payable to the grievor, I retain jurisdiction to deal with that matter
DATED this 28th day of July 1972
(signed) J. F. W. WEATHERILL