AD HOC Ė 231

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE BRITISH COLUMBIA RAILWAY COMPANY

(the "Company")

AND

CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL #6

(the "Union")

IN THE MATTER OF THE GRIEVANCE OF B. A. DECKER

 

 

SOLE ARBITRATOR: Bryan E. Williams

 

There appeared on behalf of the Company:

Mary Saunders

 

And on behalf of the Union:

Terry Robertson

 

 

A hearing in this matter was held in North Vancouver on September 9, 1980.

AWARD

This arbitration was held on September 9, 1980 in North Vancouver, B.C. It was agreed at the outset that the arbitrator was properly appointed and had jurisdiction to hear evidence under oath and make a final decision binding on the parties.

At the outset, Ms. Saunders, on behalf of the Company, argued that there was a preliminary issue of timeliness. She stated that the time limits in this Collective Agreement are generous and should be complied with.

There is no doubt that the time limits are generous. There are definite procedures set out in the Collective Agreement for placing a matter in dispute before an arbitrator and these procedures were not complied with. The ninety (90) calendar day time limit expired on January 23, 1980 and Mr. Donald did not write to the Company until January 24, 1980.

Mr. Robertson, on behalf of the Union, argued that both parties were involved in exhaustive negotiations at the time of the grievance and that Messrs. Carkner and Teichman were attempting to deal with this grievance during breaks in the negotiations. He also stated that Mr. Donald was under the impression that the Company would not strictly adhere to the rules because of the negotiations.

The reasons for the delay in proceeding to arbitration have some validity. The Donald letter was dated January 24, 1980 and the time limit expired on January 23, 1980 - one day. I shall exercise my discretion under Sect ion 98 of the [British Columbia] Labour Code and relieve against the time limits.

JOINT STATEMENT OF ISSUE:

The issues on the merits are:

1. Was B.A. Decker senior to the appointee, W.R. MacDonald, thereby bringing into play Section 8.7 of the Collective Agreement; and

2. Did the Railway, in appointing W.R. MacDonald, breach Section 8 of the Collective Agreement.

JOINT STATEMENT OF FACTS:

1. The Railway posted Bulletin #364 indicating that the position of "Foreman B&B Gang #103" was available for qualified applicants.

2. The Grievor, Bruce Allan Decker, and another Railway employee, W.R. MacDonald, both made application for the foremanís position.

3. Both Bruce Allan Decker and W.R. MacDonald were appointed on the same date to the classification of B&B Foreman, April 9, 1979.

4. Bruce Allan Decker appeared as number 6 on the seniority list for B&B Foreman and W.R. MacDonald appeared as number 7 on the seniority list for B&B Foreman. (Seniority List: Exhibit 1).

5. Bruce Allan Decker entered service with the Railway on August 4, 1976. W.R. MacDonald entered service with the Railway on May 3, 1978.

6. Mr. Deckerís experience with the Railway was as follows:

B&B Labourer Gang 103 - 6 months

B&B Bridgeman 1 Gang 103 - 1 3/4 months

B&B Foreman Gang 104 - 3 weeks (regular foreman taking first aid course)

Machine Operator Helper, Heavy Duty Equipment Operatorsí Department 17 months

B&B Bridgeman 2 Gang 103 - 8 weeks

Section Foreman - 7 1/2 months

Relief B&B Foreman, all Gangs, - 2 weeks (did not work position)

7. Mr. MacDonaldís experience with the Railway was as follows:

B&B Bridgeman I Gangs 106 and 101 - 9 1/2 months

B&B Foreman Gangs 100 and 101 - 33,- months

B&B Bridgeman 4 Gang 101 - 31-4 months

B&B Carpenter Gangs 100, 101, and 103 - 2 3/4 months

8. The Railway appointed Mr. MacDonald to the position of Gang 103 pursuant to B.C. Rail Bulletin #364 on September 10, 1979.

THE COMPANYíS POSITION

1. The Railway says that Section 8.7 is not applicable to the circumstances of this case because the seniority dates for the two employees in question are identical for the position of B&B Foreman Gang #103. As a consequence, either Section 8.7 does not apply because there is no "order of seniority" within the seniority provisions of Section 9.3, or Section 8.7 has been satisfied because the successful applicant had as much seniority as the unsuccessful applicant.

2. In any case the Railway says that the position of B&B Foreman Gang #103 requires:

A. Timber

(1) Sufficient experience to do without direct supervision, ordinary maintenance, directing movement of pile driver, organizing pile driving procedure, shimming bridge, changing out of caps, bracings, teaching subordinates proper methods in using B&B tools and equipment, inspecting and recognizing causes and solutions for preventing additional fatigue or damage to structure.

(2) Sufficient experience to do, without constant supervision, reading blueprints, sizing timber, field framing, erecting, pile driving, recognizing each member to be erected and its condition.

(3) Knowledge of component parts of a bridge and their functions.

B. Concrete

(1) Sufficient knowledge to read blueprints, do forming, do reinforcing, recognize the quality of materials, understand concrete ratios, and do pouring, vibrating, finishing, grouting and mopping.

(2) Sufficient knowledge to inspect for failure in concrete.

C. Steel

(1) General knowledge of structure, ability to read blueprints, understanding of roller bearings and ability to make inspections.

D. General Supervision and Teaching of Crew Members

(1) That the foreman has worked his way through the gang to be able to teach and supervise members of the gang, which as a rule consist of the following:

One Foreman

One Carpenter

Three to Four Bridqemen

Two to Three Labourers.

E. An ability to control his outfit cars and equipment on it, arrange all moves and acquire necessities for his gang.

3. The Railway says that Bruce Allan Decker was not fully qualified to handle the assignment. His experience over more than three years of employment with the Railway involved only 10-1/2 months on the B&B Crew. Mr. Decker had not worked as carpenter, one of the prime requirements of the job and he had insufficient experience in bridge work generally to enable him to instruct his crew. He was considered by the Railway not to have the basic qualifications for the job.

4. Even assuming that Mr. Decker was more senior for the position of B&B Foreman than Mr. MacDonald, the Railway says that because Mr. Decker was not fully qualified, it does not matter whether Mr. MacDonald was fully qualified or not. However, in any case Mr. MacDonald was fully qualified to handle the assignment. His skills and experience with the Railway were adequate for the skills and experience required for the job of B&B Foreman.

THE UNIONíS POSITION

1. it is submitted that Mr. Decker, having been appointed previously by the Railway to the position of B&B Foreman was obviously "fully qualified" for the position of B&B Foreman.

2. It is the Unionís position that the question of whether Mr. MacDonald was more suitable for the foremanís position than Mr. Decker is an irrelevant consideration in terms of the provisions of Section 8 (7) of the Collective Agreement.

3. The position of the Railway would appear to be that there are degrees of being "fully qualified", and that notwithstanding Mr. Decker having been previously appointed and obviously fully qualified, was not "as fully qualified as Mr. MacDonald".

4. It is submitted that to interpret Section 8 (7) of the Collective Agreement in the way that the Railway did in appointing Mr. MacDonald, would fly in the face of common sense. Such an interpretation would allow the Railway to choose one fully qualified applicant over another, regardless of their seniority. The use by the parties to the Collective Agreement of the term "fully qualified" clearly indicates that there is no question of degrees of qualification involved in selecting applicants for the position.

5. It is respectfully submitted that if a person is "fully qualified" he is entitled to the position, and to exercise his seniority over the junior employee who is also fully qualified, if the parties intended to give a discretion to the Railway with respect to deciding who amongst the fully qualified was "more qualified than the other", then one would have expected the Collective Agreement to say so in clear and unequivocal language.

6. The position taken by the Railway would have the effect of virtually eliminating the protection that the seniority clause of the Collective Agreement has for the employees who are fully qualified for bulletined positions. It would leave the question of appointment up to the subtle nuances and differences in the skills and qualifications of the individual employees to determine who is to be appointed.

7. In the alternative, if the Railway does have the right under Section 8 (7) of the Collective Agreement to decide who is the most suitable of those who are fully qualified and apply, then it is submitted that in the circumstances the Railway wrongfully chose Mr. MacDonald over Mr. Decker in that Mr. Decker was at least equally suitable and qualified, or more qualified for the position than Mr. MacDonald.

8. The seniority lists for the B&B Foreman show the grievor, Bruce Allan Decker as #6, and William Ross MacDonald as #7. The effective date of their seniority is the same in both cases, that is April 9th, 1979. The date of entry of service with the Railway of Mr. Decker however is August 4th, 1976, and of Mr. MacDonald, May 3rd, 1978. When the seniority lists were drawn, on a department basis, the Railway representatives and the Union, as a matter of practice, took the position that where effective seniority dates for departments were identical as between 2 employees, that total length of service, and the date of entry of service, would be the governing factor in determining which employee was senior to the other. This was clearly understood, as between the Railway and the Union when the seniority lists were made up. It is respectfully submitted that it would be a complete repudiation of the clear understanding and past practice between the Union and the Railway, for the Railway to take the position that the seniority of Mr. Decker and Mr. MacDonald is equal, insofar as the disputed position is concerned. It is respectfully submitted in addition that the position of the Railway, as set out in the Joint Statement of Issue, is an after-thought and inconsistent with the clear inference to be drawn from the correspondence at various steps of the grievance procedure.

It is respectfully submitted that the management personnel of the Railway, in awarding the position in dispute to Mr. MacDonald, were not doing so on the basis that the grievor was fully qualified, but did so because they were of the opinion that Mr. MacDonald was more qualified.

It is submitted that once having proceeded to award the position on a wrong principle, that cannot be rectified by the position taken by Counsel at the arbitration.

SUMMARY

1. The members of the Union are given protection under the Collective Agreement, arising out of their rights of long service and seniority over other employees. It is in the interests of the Railway that employees competent and qualified employees stay in the employ of the Railway.

2. If the Railway had a management right to weigh the relative suitability of two fully qualified applicants, the Collective Agreement should clearly say so. Where the Collective Agreement plainly states that appointments shall be made in order of seniority, subject to the applicants being fully qualified, it is submitted it is clear that seniority must prevail in the case of two fully qualified applicants.

3. Alternatively, Mr. Decker was more qualified than Mr. Macdonald in the event that the Railway does have such a right to choose between two fully qualified employees.

The evidence of the Companyís witnesses indicated that the grievor (Decker) did not have the qualifications to fill the position. It was also noted that the successful bidder (MacDonald) did not have all the qualifications to fill the position, but he was better qualified than the grievor.

Article 8.7 states:

8.7 Appointments to bulletined positions shall be made in order of seniority subject to the successful applicant being fully qualified to handle the assignment.

Mr. Robertson argued that once appointed to the seniority list you are "fully qualified" and as such seniority prevails. He further argued that whether a person can perform is not relevant. If a B&B Foremanís job becomes available the most senior person is entitled to the job without inquiry.

Ms. Saunders argued that having established that the standards are fair the Company looked at Decker as being the most senior and MacDonald as being the most qualified. She further stated that the Companyís consideration was entirely proper when considering sufficient ability.

The evidence before me is that Decker and MacDonald were appointed to the B&B Foremanís seniority list on the same day. Decker had more seniority with the Railway.

In answer to the questions in issue:

1. Was B.A. Decker senior to the appointee, W.R. MacDonald, thereby bringing into play Section 8.7 of the Collective Agreement.

The answer to question 1 is yes. Decker was senior thereby bringing into play Section 8.7 of the Collective Agreement.

2. Did the Railway, in appointing W.R. MacDonald, break Section 8 of the Collective Agreement.

The answer to question 2 is no. The Company appointed the better qualified applicant to handle the assignment. The Company chose the applicant it felt to be sufficiently capable of carrying out the job function.

In view of these findings I must point out that my reasons are based on The Skill and Ability Requirement, Brown & Beatty, pages 251 and 252:

As noted previously, rarely will a collective agreement provide that seniority alone is the criterion to be used by the employee in determining who is entitled to a particular job. Rather, although they remain an integral criterion in making such determinations, seniority rights may be circumscribed temporally, geographically, or by occupational classification, and they may have application only in certain defined contexts such as promotions and lay-offs. However, perhaps the most critical, and by far the most pervasive limitation on the right of an employee to invoke his seniority rights, is the common proviso that together with the requisite seniority, an employee claiming entitlement to a particular job must possess the necessary ability or qualifications to perform that job. Such a limitation is critical not only because it may be determinative as to whom of several competing applicants will succeed to a particular job, but also because arbitrators have taken the view that if none of the applicants was capable of satisfying the requirements of the job, an employer is free to ignore the seniority provisions in the agreement and to appoint whomever it desired to the job, whether from within its workforce or from the labour market, so long as it acted fairly and without discrimination.

A further reason was restated by Professor Paul Weiler in Kysor of Ridgetown, supra, at P. 388, where he reviews Canadian Industries and notes:

There are two chief justifications for such a position. In the first place the arbitrator usually is not equipped as well as management to make technical decisions about employee competence and ability and thus should defer to the latterís judgement (with some limits). Secondly, management must always take the initiative in deciding the question and the arbitrator is asked only to review it retrospectively. If the arbitrator disagrees with and reverses the earlier management decision, the result will be a retroactive monetary award for additional pay to a person who did not do the work.

For these reasons, the grievance is dismissed.

DATED AT Langley, B.C. this 1lth day of October, 1980.

(signed) BRYAN E. WILLIAMS