©b59r AD HOC 134

IN THE MATTER OF AN ARBITRATION

BETWEEN:

VIA RAIL CANADA INC.

AND:

THE CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS

AND IN THE MATTER OF THE GRIEVANCE OF A. HALLAGAZA

SOLE ARBITRATOR: J.F.W. Weatherill

A hearing in this matter was held at Ottawa on October 27, 1982.

©u27rW.H. Matthew and A. Cerilli for the union

©u38rA. Egger, C.C. Bright and A. DeFreitas, for the company

©b59r A W A R D

In this grievance the grievor alleges that he was improperly refused

training for a position as Service Manager, an On-Board Services

position coming within the bargaining unit.

At the time of the November 15, 1981, general bid a number of

employees applied for positions as Service Manager. Among the

applicants were certain employees, including the grievor, who were

not then qualified for that job. Such employees were denied the

assignments, regardless of their seniority. Under the general

provisions of the collective agreement, these employees would not

have been entitled to the assignments, because of lack of

qualifications.

While the other employees who were refused the assignments have not

grieved, the grievor's position is that he was entitled to the

assignment, and to the training which would qualify him to perform

it, by reason of his seniority. In the material before me the

relative seniority of the grievor is not clearly set out, but subject

to proof thereof (that matter not having been put in issue), I

proceed on the assumption that the grievor had greater seniority than

one or more of the successful bidders for the job.

The grievor's position, that he was entitled to the assignment by

reason of his seniority, is based on a letter of understanding dated

October 16, 1981. This followed a notice, given by the company on

August 13, 1981, pursuant to a Special Agreement between the parties

dated July 7, 1978 and since continued in force.

The notice given by the company related to changes in Railway

Passenger Services which would have adverse effects on employees, in

that the number of regular assignments would be reduced. The notice

invited discussion with respect to the application of the Special

Agreement in the circumstances. These discussions were held, and

among the results was the agreement set out in the letter of

understanding of October 16, 1981.

This letter includes the following agreement: that for the November

15, 1981 General Bid only, employees would be assigned to any

position bid according to seniority only, even though the employee

may not have previously trained or qualified in such position. The

company would undertake training of those not qualified in any

position awarded.

There were two provisoes to the foregoing:

a) the right to such assignment applied only to employees

with two or more years' cumulative compensated service;

and

b) the assignment would be subject to suitability and

adaptability to perform the duties of the position as

determined by management.

In the instant case, it seems the grievor has more than two years'

cumulative compensated service, and no issue arises as to proviso

(a). As to proviso (b), however, a question does arise, which will

be dealt with later in this award.

The grievor bid on an assignment as Service Manager which was open in

the November 15, 1981 General Bid. As has been noted, I assume that

by reason of his seniority and length of service, he would have been

entitled (leaving to one side the matter of proviso (b)), to that

assignment, under the terms of the agreement of October 16, 1981.

The grievor was, however, refused the assignment, for the stated

reason that the training of Service Managers (and there is no doubt

the grievor would require training), was a System Headquarters

undertaking, and that the agreement of October 16 was a regional

agreement There was no training program. available in the Region.

The grievor was refused the position "because of the Region's

inability to train him".

This reason is, with respect, not a valid one having regard to the

commitment given in the October 16 agreement. While that agreement

is indeed one of regional application, the undertaking to provide

training is not limited to such training as may be provided within

the Region itself. Whether or not it would be necessary for the

company to send employees elsewhere for training is simply not a

consideration which arises under the agreement, negotiated between

officials of the parties having ample ostensible authority to do so.

Whether it be considered (as I think would be proper) as an agreement

within the contemplation of the Special Agreement, or as an amendment

(having effect on one occasion only) of the collective agreement

itself, the agreement of October 16, 1981 is one which it was open to

the parties to make, and its existence is not in issue. It creates

rights enforceable through the disputes procedure and ultimately

through arbitration.

For the foregoing reasons, it is my conclusion that the company was

in error in refusing the grievor's application for an assignment as

Service Manager on the grounds stated. His application ought to have

been accepted on the basis of his seniority (always assuming that

that was sufficient), subject only to the two provisoes noted above.

While there is no issue as to proviso (a), it was the company's

position - although this was not the reason first given for refusal

of the grievor's application - that the grievor did not meet proviso

(b). Under that proviso, it remains open to management to make a

determination that any applicant is suitable and adaptable to perform

the duties of the assignment.

In the instant case, it is my conclusion, for the reasons given

above, that the company ought to have considered the grievor's

application and ought (however awkward that might have been) to have

provided the training required, pursuant to the agreement of October

16, 1931. It is therefore my award that the company give

consideration to the grievor's application, pursuant to the

foregoing. It remains, however, that the grievor must satisfy

proviso (b), and that the company may make a determination as to the

grievor's suitability and adaptability to perform the duties of the

position. It would appear from the material before me that that

determination may be expected to be a negative one, and of course the

fact that it is now to be made in the light of potential liability

for loss of earnings makes objective determination of the matter more

difficult.

Such is, however, the award that must be made. While the company's

rejection of the application was based on the wrong principle, that

does not mean that proviso (b) has no application, nor that the

grievor is relieved from meeting its requirements. While the

agreement of October 16 gave certain rights of assignment to

employees who were not then qualified, proviso (b) required, in

effect, that such employees be capable of becoming qualified, given

appropriate training. That issue is still open in this case. Any

dispute as to the propriety of a determination made with respect to

the grievor's suitability and adaptability, as well as any dispute as

to the amount of compensation to which the grievor may be entitled if

it is determined that he ought to have been given the assignment, may

be brought before me for ultimate determination.

It is, subject to the foregoing, my award that the company assign the

grievor as Service Manager, and, provide any necessary training,

subject to its determination of his suitability and adaptability to

perform the duties of the position.

DATED AT TORONTO, this 2nd day of November,1982.

J.F.W. Weatherill

Sole Arbitrator