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AWARD

The Employer in this dispute operates a provincial rail network in the Province of British Columbia.

The operation of the railway is divided into various departments, one of which is the Maintenance of Way Service. Employees in different departments are represented by separate Unions. The Maintenance of Way employees are represented by the Union in this dispute. The Maintenance of Way Service is itself sub-divided into departments. Various job categories, called classifications, have been created in order to organize the performance of the work. There are nine such departments in the Maintenance of Way Service. Maintenance of Way employees acquire seniority within a particular job classification that affords to them certain rights and privileges with respect to job transfers, promotions and lay-offs. Classifications are rated in that structure and an employee entering a particular classification acquires seniority as of his date of entry in that classification and in any lower rated classification involving work he is qualified to perform.

Employees of the Maintenance of Way Service are scattered. throughout the province and seniority rights have application province-wide. In the ordinary course of events the means whereby an employee exercises his seniority rights is a job posting procedure. Vacancies are brought to the attention of employees throughout the province with a right in each employee to bid for a position anywhere in the province on the basis of his classification seniority. That basic right is set out in the following provision of the Collective Agreement:

18.01 Except for temporary vacancies of less than thirty (30) calendar day, and extra gang labourers' positions, bulletins advertising vacancies and new positions shall be posted in places accessible to all employees affected in the Monday following the first Thursday of each calendar month. …

The remainder of Article 8 then deals with the means whereby employees can exercise their seniority. The basic right is recorded in Article 8.7 which provides:

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.

A review of Article 8 makes it clear that there is a potential domino effect present in the acting out of seniority rights. An employee who obtains a position leaves a vacancy that will itself attract posting by bulletin and thus create the potential for further vacancies down the line of qualified employees in order of seniority until that particular job classification has stabilized itself. Employees are required to file an application within 15 (fifteen) days of the date of the posting bulletin.

A companion right to the seniority rights secured in the posting provision is a "bumping” right that permits employees who are displaced by reason of a reduction in the work force to claim positions elsewhere in the Railway from any junior employee in any classification for which they are qualified. Again, because of the potential domino effect, employees have a 15-day time limitation during which they must exercise their "bumping" rights. In the Agreement the parties speak of a lay-off in terms of a position being "abolished". Where an employee is "bumped" he is referred to as having been "displaced". The provision codifying the rights of employees in those circumstances appears as follows:

10.1 Not less than four (4) working days' advance notice will be given when regularly assigned positions are to be abolished …

10.2 An employee whose position is abolished, or who is displaced will within fifteen (15) calendar days of the job abolishment or displacement exercise seniority over any other junior employee subject to being qualified to do the work of the employee being displaced.

10.3 Displacement rights must be exercised and work commenced on position of choice within fifteen (15) days … an employee failing to exercise displacement rights within the times stipulated will be considered as having left the services of the Railway of his own accord and the Railway shall be under no obligation to that employee.

10.4 Employees unable to exercise seniority will be laid off and when staff is increased such employees will be recalled in order of seniority subject to being qualified to work the position to which recalled.

In 1981 the work available on the Railway was significantly reduced by reason of deteriorating economic conditions. Those conditions resulted in a reduction in the number c-10 trains. The resulting reduction in the work force caused a substantial increase in the number of positions being abolished in response to the reduced work requirements. It was anticipated by the parties that the sharp increase in the number of positions being abolished would create considerable chaos for both the Railway and its employees in the event that all employees were required to pursue their seniority "bumping" rights within the allotted fifteen days. It will be remembered that an employee who failed to exercise his bumping rights would be deemed to have quit the railway "unless otherwise agreed between the appropriate Officer of the Railway and the Union …" The Railway and Union did enter into an informal agreement pursuant to that provision whereby employees who found themselves displaced would be permitted at their option to waive the exercise of their "bumping" rights and move directly to the lay-off status contemplated in Article 10.4. In the exercise of that discretionary right the employees who waived their "bumping rights" joined what may be characterized as a recall list. That right was of particular significance to employees who had established permanent residences with their families in the smaller communities along the rail line who did not relish having to leave their families or move in response to what was generally perceived to be a temporary economic condition.

One such employee was the grievor in this dispute , Walter Speer. Mr. Speer worked in the job classification of Patrolman. He was located at Lillooet in the Fraser Canyon portion of the rail line. Because of the danger of possible rock slides and other natural hazards, trains travelling through the Fraser Canyon are preceded by a Patrolman whose duty it is to alert train crews to any unforeseen dangers on the track. The number of Patrolmen required is a function of the number of trains travelling the line. The reduction in train traffic resulted in the position of Mr. Speer being abolished. That left him in a position where he was required to exercise his "bumping" rights within the requisite fifteen days or face the presumption that he had quit the Railway. In his assessment of available positions Mr. Speer concluded that there were no jobs within his classification available to him short of moving his family from Lillooet or leaving his family to take a position elsewhere. On the basis of that understanding he took advantage of the informal agreement between the Union and Railway and went on a lay-off status, hoping to regain his employment when economic conditions improved.

Patrolmen are located at what the parties described as the "terminus" of a "patrol area". A terminus is located in the approximate geographic centre of a patrol area. In the case of Mr. Speer the terminus was Lillooet. From Lillooet the patrol area extended north to a place called Kelly Lake and south to a place called D'Arcy. Each of those points is approximately 35 miles from Lillooet. Patrol areas overlap. Thus the next terminus south from Lillooet is D'Arcy. Mr. Speer normally commenced work at 6:00 p.m., performing his work on a small vehicle called a "speeder". He usually travelled north to Kelly Lake where he would await the arrival of a train and he would then escort it south to D'Arcy. At D'Arcy he would await the arrival of a north bound train and escort it north again to Kelly Lake. He would then "deadhead" to Lillooet for the termination of his shift. "Deadheading" is the process of travelling without a train under escort.

The Patrolmen stationed at D'Arcy would normally reside in D'Arcy. At the time of the reduction in the work force that led to the abolition of various positions an employee by the name of Wilfred Alexander who was junior to the grievor held the Patrolman position in the D'Arcy, terminus but was permitted to reside at Seton, a community located between D'Arcy and Lillooet. Following the lay-off the senior qualified Patrolman in D'Arcy terminus was Michael O'Donaghey. Prior to the lay-off he had occupied the position of Powderman. His position was abolished in the same lay-off and he used his seniority to bump Mr. Alexander in the Patrolman position. Mr. Alexander, in turn, used his seniority to move into a Helper position. Mr. O'Donaghey continued to work in the Patrolman position from the lay-off until August 4, 1981 when he went on vacation for a period of 15 days, returning to work on August 25, 1981. During his absence on vacation he was replaced by Mr. Alexander. The first claim of the Union is that the grievor was entitled to replace Mr. O'Donaghey.

The second claim relates to 47-hours of patrolling done by an employee by the name of Barney Carelton between September 12 and September 21 1981. That overtime was earned by Mr. Carelton working in the capacity of Patrolman from Lillooet. The claim of the Union is that Mr. Speer was entitled to be recalled from lay-off to do that work by reason of the fact that he was senior to Mr. Carelton in the Patrolman category. Mr. Carelton was working in another position at the time and did the Patrolman job on overtime in addition to his own job.

The claim of the Union is based primarily upon the wording of the following provision:

10.6 Temporary new positions or temporary vacancies of under thirty (30) days may be filled by qualified laid-off employees living at or near the work location."

That provision appears in the Article dealing with lay-off and recall of employees. It is important to note at this stage that the section of that provision in question is permissive by reason of the use of the words “may be filled". The permissive nature of the provision is emphasized by reference to the other provisions in the lay-off and recall article. For instance, Article 10.1 uses the operative words "will be given". Article 10.03 uses the words "must be exercised". Article 10.4 uses the word "will be laid-off". Article 10.5 uses the term to must keep". Article 10.7 uses the term "shall not be required". On any standard of interpretation the use of permissive language in Article 10.6 in the context of an article in which various forms of mandatory language are used must be taken to have been intentional.

The Employer does not argue the fact that senior employees on lay-off are entitled to bump into any position occupied by a junior employee for which they are qualified including temporary new positions and temporary vacancies. The substantial difference between the Union and the Employer is with respect to the obligation of the Employer to inform employees on lay-off of temporary job openings as they arise. The Union asserts such an obligation and the Employer asserts that no such obligation arises. A subordinate issue arose with respect to the temporary position created for the replacement of Mr. O'Donaghey. That issue relates to whether or not Mr. Speer, the grievor, could be seen as "living at or near the work location" as compared with the junior employee, Mr. Alexander, who did fill the temporary vacancy. The vacancy, as noted previously, occurred in D'Arcy but Mr. Alexander resided in Seton, half way between Lillooet and D'Arcy. The Union mounted an intricate argument to the effect that Mr. Speer was "living at or near the work location" every bit as much as Mr. Alexander. The intricacy of that argument was based upon the fact that both employees would have to deadhead to the work location and home again and that the time spent deadheading would be exactly the same. The facts urged by the Union appear to be correct but they are irrelevant. The provision, as pointed out, is permissive rather than mandatory and cannot be seen as displacing the right of the Employer to exercise reasonable discretion in the selection of a person to fill a temporary new position or temporary vacancy. The explanation of the Employer for not selecting the grievor was that he did not apply for the position. Mr. O'Donaghey had selected his period of vacation long prior to the initial lay-offs while he was still working as a Powderman and Mr. Alexander had, at that time, bid to replace him in that position during his period of vacation. That same arrangement maintained after the lay-offs, extending to the position of Patrolman. Hence, it was not a case of the Railway selecting Mr. Alexander to replace Mr. O'Donaghey, it was the activation of a pre-existing arrangement. Certainly the explanation of the Employer is reasonable. In any event, a complete answer to the position of the Union is that the Railway is not compelled to post temporary new positions or temporary vacancies or otherwise advise employees on lay-off of those vacancies. The Union urged that the very existence of Article 10.6 presumed an obligation on the part of the Railway to post those vacancies but the matter is addressed specifically in the Collective Agreement in the following provision:

18.1 Except for temporary vacancies of less than thirty (30) calendar gays, temporary new positions of less than thirty (30) calendar days and extra gang labourers' positions, bulletins advertising vacancies and new positions shall be posted in places accessible to all employees affected … (emphasis added)

The former president of the Union, W.R. Carkner, a Union official who participated directly in the negotiation of the Collective Agreement and its administration, confirmed that the practice was not to post temporary new positions or temporary vacancies by bulletin but that senior employees on lay-off who became aware of those positions were entitled to bump into them where they were occupied by more junior employees. That practice is in accord with the language of the Agreement. On that basis the explanation of the Railway that Mr. Speer was not placed in the position because he did not apply for it also conforms with the language of the Collective Agreement.

The same rationale applies with respect to the overtime hours earned by Mr. Carelton. The grievor did not apply for that position. In both cases the grievor testified that he failed to apply for the positions because he was not aware that they were available. In the case of the relief position at D'Arcy it was not so much a question of not knowing that the vacancy existed as it was a failure to understand that the position might be open to him even though he did not reside at D'Arcy. In the case of the overtime work the grievor simply did not know that it existed. The Union argued that the least obligation of the Employer was to make qualified employees on lay-off aware that temporary jobs or vacancies were available. That submission is a variation of the argument that there is an obligation upon the Railway to post such vacancies, an obligation that is specifically excluded in Article 8.1. Article 8.1 does not preclude the Railway from issuing bulletins for temporary positions or temporary vacancies but that begs the question as to whether or not the Railway is under an obligation to post those jobs. The Railway did not dispute the right of a senior qualified employee to bump into temporary jobs but resisted the submission that it was obligated to post those jobs or otherwise inform employees of their availability.

The additional submission was that Article 10.6 was mandatory and required the Railway to seek out the senior qualified employee on lay-off in a job category for which there existed a temporary new position or a temporary vacancy of less than 30 days. Article 10.6 must be read in context and when it is considered in conjunction with the remainder of the Agreement its interpretation is most compatible with the interpretation urged by the Railway, that is, that senior qualified employees who learn of temporary vacancies or positions who reside at or near the work location have the right to bump senior employees from the position. The language cannot be read so as to impose upon the Employer an obligation to post the vacancies or take any other special steps to bring the temporary jobs to the attention of employees on lay-off. On the facts I am not able to say whether Mr. Speer would have been entitled to claim the job at D'Arcy. The wording of Article 10.6 stands out as permissive in language that is mandatory. It is difficult to find in that contrast an intention to confer positive rights on employees that would compel the Railway to employ Mr. Speer contrary to its judgement on productivity. I hesitate to interpret the provision in factual circumstances where its application is not in issue. I repeat, the Railway was not obligated to advise Mr. Speer of the temporary vacancy and he aid not apply for it. The result that would have occurred if he had applied and had been rejected is beyond the facts put before me. My view is that the language is not sufficiently compelling to entitle the grievor to attack a rejection made in good faith on reasonable grounds.

The Railway confirmed that usually the job would be granted to the senior qualified employee who applied who met the criteria of residing at or near the work site but resisted the submission that it was compelled to do so under the Agreement. If the Union is correct that the availability of Mr. Speer at Lillooet was the same in impact as the availability of Mr. Alexander in Seton then the Union is also correct in saying that reasonable interpretation would require that both employees be recognized as "employees living at or near the work location." But that does not solve the problems in Article 10.6. I repeat that the language is permissive and, in any event, it does not provide that the job should go to the senior qualified employee, it provides that it may go to qualified employees, with no expression that contemplates seniority ranking. The Railway confirmed that its practice and its preference, all things being equal, was to see the job go to the senior qualified employee at the work site who applies. It must be remembered that the work at issue was of a temporary nature and the right to compel an employer to fill short term jobs in some cumbersome fashion that may impact on cost or productivity is a right that should be spelled out in suitable language. The permissive language of Article 10.6 implies an intention in the Railway to retain its flexibility in short duration situations. In any event, I will leave that issue to be addressed on facts that squarely raise it. In this dispute the grievance is denied with respect to both claims because the grievor failed to apply for the jobs in question and the Railway was under no obligation to inform him of the jobs, seek his application, or recall him to work in response to the short-term vacancies.

DATED at the City of Prince George, in the Province of British Columbia this 5th day of August, A.D. 1982.

(signed) H. ALLAN HOPE, Q.C.