AD HOC 294

AWARD

In this arbitration the Union alleged that the Railway was in breach of the collective agreement when it refused to permit the grievor to reclaim a temporary position as a bus driver on Gang 314. The position was that of a Heavy Duty Machine Operator 3. The grievor was assigned to the position on May 5, 1989 by the superintendent of the gang, Fernando Correia, to replace the incumbent in the position, Garry Chubb. Mr. Chubb was going to be absent for five days on vacation commencing Monday, May 8, 1989. Mr. Chubb was awarded the position in accordance with the posting provisions of the collective agreement on April 14, 1989. He holds seniority in the Heavy Duty Machine Operator 3 classification.

At the time of the assignment, the grievor was working as an extra gang labourer. He did not hold classification seniority in the Machine Operator 3 classification, but he was otherwise qualified to operate the bus and was placed in the position under the provision of Article 8.8. That provision reads as follows:

8.8 Temporary vacancies or positions of less than thirty (30) calendar days required by the Railway to be filled shall be filled by the senior qualified employee immediately available.

The classification of extra gang labourer is unique in the collective agreement in the sense that it is included in Article 18.3 as one of the classifications in the extra gang department. However, vacancies in the classification do not have to be posted by bulletin. Further, the only manner in which seniority in the extra gang labourer classification can be obtained is under Article 8.1(a), which dates from when an employee is “hired into the classification”. Thereafter, extra gang labourers are able to defend their positions or to bump junior extra gang labourers based upon their seniority in the classification.

There is some argument about whether classification seniority exists with respect to extra gang labourers, but, for purposes of administering the collective agreement, that issue would appear to be academic. That is, there is no doubt that seniority in the classification of extra gang labourer can only be obtained by having worked as an extra gang labourer and that it dates from the first day the employee works in that classification. Hence, for all practical purposes, it appears to be the equivalent of the classification seniority recognized in any other classification. The significant difference is that extra gang labourer vacancies do not have to be posted. Hence, extra gang labourers obtain positions in the classification by assignment of the Railway or by exercising their seniority.

The parties refer to positions for extra gang labourers as “unbulletined positions” or “unassigned positions”. The Union stressed the fact that the grievor was occupying an unbulletined position as an extra gang labourer on Gang 314 when he was assigned to the bus driver position. In that context, the Union took the position that the bus driver job was also “unassigned” because it had been “filled” under Article 8.8.

The dispute giving rise to the grievance arose out of unique facts. In particular, the grievor never completed the five-day relief assignment because he sustained injuries in a motor vehicle accident off the job that incapacitated him. The accident occurred on Saturday, May 6, 1989. The grievor was able to work on the first day of his assignment, being Monday, May 8, but he continued to experience difficulty from his injuries and he advised his foreman at the end of shift on May 8 that he would be consulting his doctor. He was off work thereafter on the advice of his doctor until May 29, 1989. If the grievor had not been injured, he would have completed his temporary assignment on May 12. In the four days remaining in the relief assignment, Mr. Correia assigned a non-bargaining unit employee to drive the bus because he could not find a qualified replacement. If the grievor had not gone on sick leave, he would have returned to his extra gang labourer’s position on Monday, May 15 when Mr. Chubb returned.

A further coincidence then occurred that contributed to the dispute. When Mr. Chubb did return on May 15, he resumed his duties. But he too, went on sick leave one week later, on May 23. Mr. Correia then filled that unexpected vacancy with an appointment made under Article 8.8. In the absence of an “immediately available” employee holding seniority in the classification, he appointed Keith Hinsche, an employee from the Williams Lake section gang who did not have classification seniority but who was qualified to operate the bus and who, according to his employment record, returned from sick leave on May 23.

The final coincidence giving rise to the dispute was the fact that Mr. Hinsche is junior to the grievor in service seniority. Hence, when the grievor returned from sick leave on May 29, he confronted a circumstance in which an employee who lacked classification seniority and who was junior to him in service seniority, was operating the bus he had been operating when he went on sick leave. His reaction was that he “wanted his job back”. The response of the Railway, in effect, was that it was not his job, it was Mr. Chubb’s job, and that the grievor’s temporary assignment to it had ended on May 15 with the return of Mr. Chubb. The Railway advised the grievor that his position was that of an extra gang labourer on Gang 314 and he was instructed to return to that job. He complied, under protest, and initiated the grievance that gave rise to this dispute.

In the meantime, Mr. Chubb remained on sick leave until June 9, 1989, when he bid successfully on a vacancy as a Heavy Duty Machine Operator Helper on Gang 312. It would appear that his decision not to reclaim his bus driver position led to it being posted in the July bulletin. In any event, the position was posted and was awarded to Harjinder Brar on July 14, 1989 and Mr. Hinsche, according to his employment record, was “assigned” to an extra gang labourer’s position on Gang 314. The pattern of coincidence continued in the sense that Mr. Brar went on sick leave on August 8, 1989 and the grievor was assigned to the bus driver job under Article 8.8.

I note by way of aside that the original posting for a bus driver included two positions. It was not clear what occurred with respect to the second position but that issue is not relevant. The positions were posted to last for approximately 20 weeks. Hence, they were temporary positions of 30 days or longer and were required to be posted. On that basis, the successful applicants, one of whom was Mr. Chubb, “owned” his position subject only to being bumped by employees in a position to exercise their seniority who were senior to him in classification seniority. In particular, Mr. Chubb continued to own the position while absent on vacation or sick leave and he had a continuing right to return to it, subject only to being bumped or the job being abolished in his absence.

There was confusion about the precise procedural basis upon which the grievor returned to work. Mr. Correia said he was returned to his existing position as an extra gang labourer. The grievor’s evidence was to the effect that when he was denied the position as a bus driver, he went back to work as an extra gang labourer. The Union urged that the grievor must be seen in those circumstances as having exercised his seniority against a position as an extra gang labourer. The employment history of the grievor filed in evidence does not support a finding that he exercised his seniority. He is recorded as having gone on sick leave effective May 9 and as being “back to work” effective May 29 in the classification of “extra gang labourer”. The expression used in the employment history when an employee bumps into a position is “exercising seniority”. That notation does appear at various points in the employment history of the grievor, but his return to work from sick leave was not recorded as being an exercise of seniority.

In any event, the grievor is next recorded on June 7, 1989 as having been “assigned to [a] vacancy” as a machine operator helper – track. On July 17, 1989 the records disclose that his position as an extra gang labourer was abolished and, on August 8, 1989, as stated, he was again “assigned to [a] vacancy in the bus driving position as a Heavy Duty Machine Operator 3”. There follows a series of moves over the remainder of the season until the grievor took a voluntary layoff on November 22, 1989. However, for purposes of this dispute, the relevant facts are that the grievor returned from work on May 29 and that his claim on the bus driver position was denied. The issues in dispute turn on that fact.

III

This dispute is one of a series arising with respect to the rights of the parties in the filling of short-term vacancies. In this collective agreement a short-term vacancy, is defined in Article 9.1, being the posting provision, as any vacancy with an expected duration of less than 30 calendar days. Short-term vacancies occur for a variety of reasons and in a variety of circumstances. They include vacancies that are predictable and unpredictable and vacancies that are planned and unplanned. In practice, short-term vacancies attract varying degrees of notice, including those for which there is no notice. The vacancies arise in the broad context of absenteeism and in the form of absences which arise in the ordinary course of the administration of the provisions of the collective agreement, such as leaves of absences and vacation.

On the evidence of Mr. Correia, the Railway faces unplanned absences on a daily basis, as well as a broad range of planned short-term absences. The Railway meets those absences by exercising the right to place employees in short-term positions under Article 8.8. The term used in that provision is, “filled”. Once again, there was some controversy about precisely what procedure is involved when a vacant position is “filled” by the Railway. The term used by Mr. Correia is that he “assigns” employees to fill short-term vacancies. That is the term used in the employment histories filed in the proceedings. In any event, and regardless of the term used, what occurs is that when the Railway confronts an absence in a position deemed critical or necessary to the operation, an employee is appointed to fill that vacancy under Article 8.8, and, if necessary, other positions are shuffled to meet the needs of production.

The interests of the Railway in that process is to ensure that the integrity of the operation is maintained. The sometimes contrary and competing interests of the Union and its members is to ensure that the integrity of the seniority system is maintained and that senior employees have first choice in the filling of desirable positions on an ongoing basis. The disputes, that arise out of the short-term vacancy problem, of which this dispute is one, are rooted in a clash between those two competing interests. This dispute is a case in point. As stated, when the grievor returned to work from sick leave, he confronted a circumstance in which an employee junior to him had been appointed by the Railway to operate a bus that he had previously been assigned to operate. He considered that he was entitled, as the senior employee, to reclaim his position.

This dispute is particularly bedevilling to the parties because there was no apparent operational reason for not replacing the junior man, Mr. Hinsche, with the grievor. Further, there was no apparent potential to compromise productivity if the grievor had simply been assigned to operate the bus. In responding to the grievance in this hearing (and presumably in the grievance procedure) the Railway, in the person of Mr. Correia, said that the grievor was denied his request, in effect, for two reasons. The first was that it was not the practice of the Railway to recognize a right in employees to claim a proprietary interest in a position to which they were appointed under Article 8.8. The thrust of the evidence of Mr. Correia was that assigning bumping rights to movements made in response to Article 8.8 could throw production on the gangs into chaos and could gravely prejudice operations on the Railway.

Secondly, Mr. Correia said that placing the grievor in the position could trigger the filing of a grievance on behalf of Mr. Hinsche on the basis that the Railway, having assigned him to the position under Article 8.8, then removed him arbitrarily in response to a demand by the grievor. I pause to note that Mr. Correia did not articulate the Railway’s position in those precise terms, but that was the gist of what I understood to be the position advanced by him on behalf of the Railway. In any event, the issue raised in the dispute is whether the grievor was entitled to claim the position under the provisions of the collective agreement and whether the Railway was in contravention of any express or implied term of the agreement when it turned down his request.

It has been noted in a number of prior arbitrations between these parties that the seasonal nature of much of the work performed by this component of the multi-union bargaining unit and the procedures that have evolved to balance the needs of the Railway with the job security of the employees involve a seniority system that, to a large extent, drives the manning initiatives of the Railway. It has been noted repeatedly in prior arbitrations between the parties that seniority in any collective bargaining relationship is an important benefit and, in the unique industrial relations environment present between these parties, is a benefit of fundamental and vital importance to this Union and its members.

Seniority in this agreement is the key that provides access to job continuity, job security and job preference. Employees are required to endure a period, and sometimes a lengthy period, of uncertainty of employment, less desirable job assignments in poor locations, and generally the frustrations of novices or apprentices in any calling. Employees who put their time in do so in the expectation that their seniority will prevail. Seniority rights are jealously guarded and any circumstance that places those rights in question provokes controversy and challenge. However, again as pointed out in a number of prior arbitrations, a clear distinction is made in this collective agreement between short-term vacancies of less than 30 days and long-term vacancies of 30 days or longer. The rigid structure imposed with respect to long-term vacancies has as its quid pro quo a flexibility with respect to the filling of short-term vacancies.

In short, the presumption that seniority is a dominant factor in filling long-term vacancies does not extend to the filling of short-term vacancies. Long-term vacancies are filled under the posting provisions of Article 9. Short-term vacancies are filled by appointment under Article 8.8. The protection for the bargaining unit with respect to the exercise of seniority rights is found in the fact that employees in a position to exercise seniority can bump into positions filled under Article 8.8 and, in any event, if the vacancy extends beyond 29 days, the Railway is obligated to post it and make it available to all qualified employees.

I pause to note that an employee who bumps into an Article 8.8 vacancy does so subject to vested rights. That is, if the vacancy is created by the absence of an employee who “owns” the position, an employee bumping into it can only exercise the rights his seniority will allow. That is, if he is senior to the employee with whom the Railway has filled the position under Article 8.8, but junior to the employee who owns the job, he can only bump into the position for the duration of the short-term assignment. If he is senior to both the person who owns the job and his replacement, he is entitled to claim the position despite the fact that the incumbent is absent and has been temporarily replaced.

Turning back to this dispute, the question raised is, what right did the grievor have to claim the position occupied by Mr. Hinsche? Firstly, what was the grievor’s status while he was absent on sick leave? The answer is that he was in the same position as the grievor in the Baldev Sekhon Arbitration, March 10, 1986, unreported. That is, he continued to have a right to return to the position he owned at the time he left on sick leave. What position did he “own”. The answer must be the extra gang labourer position on Gang 314. Does that mean he had no right against the bus driver position? The answer must be, no. He had the same rights he possessed when he went on sick leave. That is, he had a continuing claim to the assignment he was given by the Railway under Article 8.8, being the replacement of the job incumbent, Mr. Chubb, for five days while he was absent on annual vacation. So, if he had returned during that five-day absence, he would have been entitled to be placed back into the temporary assignment for the balance of the five days.

But the grievor’s absence on sick leave did not vest in him any right to claim the temporary vacancy that arose by coincidence on May 2 3, more than 10 days after his Article 8.8 assignment expired. The right in an employee to claim a position arises under Article 10.2, being the bumping provision, and Article 9, being the posting provision. In order to exercise the rights under Article 9, there must be a posted vacancy. Where a vacancy is posted, employees can bid on it under Article 9.7. All employees have the right to bid, whether or not they are free agents. In order to exercise bumping rights under Article 10.2, the employee must be a free agent. That is, employees must be in a position to exercise their seniority by reason of having had their positions abolished or by some other process that leaves them free to exercise their seniority.

Here there was no basis for the grievor to exercise his right to bid on the position because it had not been posted. In any event, he did not have the necessary classification seniority to prevail against an applicant who did have seniority. Hence, the grievor, if he was to succeed in this arbitration, had to establish that he was entitled to return to it as of right, or that he was entitled to exercise his seniority to claim it as against Mr. Hinsche. I have already set out the facts that make it plain that he had no continuing claim to be returned to the position because his temporary assignment to it had expired. That leaves the question of whether he was in a position to exercise his seniority under Article 10.2 to bump Mr. Hinsche.

In order to exercise that right, it was necessary for the grievor to establish that his “position” had been abolished and, in addition, that he was qualified to claim the position. What was his position? The Railway said his position was that of an extra gang labourer on Gang 314. The Union said that because there is no obligation to post extra gang labourer positions, the grievor should be seen as occupying an “unassigned” position while he worked in that classification. Similarly, said the Union, positions “filled” under Article 8.8 must be seen as “unassigned”. On that basis, said the Union, the grievor, because he had no assigned position to return to following his illness, must be seen as a free agent entitled to exercise his seniority against any position he wanted. That being so, said the Union, and accepting that the position of bus driver filled by the appointment of Mr. Hinsche under Article 8.8 was an unassigned position, the grievor should be seen as having the right to claim it on the basis of his greater service seniority.

However, the collective agreement does not contemplate “assigned” and “unassigned” positions. It speaks of “positions” and “vacancies” synonymously in the sense of the creating and filling of vacant positions. Vacancies created by the Railway by posting are filled by bid. Vacancies in existing positions created by the absence of the incumbent in the position are filled by posting if the vacancy is expected to exceed 29 days and by appointment under Article 8.8 if it is 29 days or less. In any case, all employees in active employment occupy positions, including extra gang labourers. Article 9.1 exempts extra gang labourer’s vacancies from posting, but also speaks of “Extra Gang Labourers, positions and vacancies”. Article 8.1(a) speaks of “a new employee hired into the classification of Extra Gang Labourer”. That is, it is clear in the agreement that extra gang labourer is a classification, that there are extra gang labourer positions and that there can be vacancies in extra gang labourer provisions. Hence, however extra gang labourer positions are filled, they are positions and the grievor occupied one such position on Gang 314 at all material times. His position was never abolished at any material time and nothing else occurred to terminate it.

The Union argued in part that assigning an employee to fill a short-term vacancy under Article 8.8 amounts to the abolition of the position occupied by the employee at the time of the assignment. But that is not in accord with the practice of the parties in the administration of Article 8.8. What occurred here was that the grievor was assigned to fill a five-day vacancy in the bus driver position while the incumbent was absent on annual leave. He went on sick leave before the assignment was completed and the assignment had long since expired by the time he returned on May 29. The Union was unable to assert any provision of the agreement under which he could claim the driver position. He was not in a position to bump into the temporary position to which Mr. Hinsche had been assigned. In the result, the grievance is dismissed.

DATED at the City of Vancouver, in the Province of British Columbia, this 25th day of November, 1991.

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

ARBITRATOR