AH 296

IN THE MATTER OF ARBITRATION

BETWEEN:

BC RAIL

(hereinafter referred to as the “Railway”)

AND:

CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6

(hereinafter referred to as the “Union”)

(Right To Bump Arbitration)

Arbitrator	H. Allan Hope, Q.C.

Counsel for the Employer:	David Cox
Counsel for the Union:	Robert Dhensaw

Place of Hearing:	Prince George, B.C.
Date of Hearing:	September 5, 1991

A W A R D

This dispute arose when the grievor, Brian Quiring, was working as an extra gang labourer on Gang 314. He was assigned by the Railway to replace Bernie Neurauter as helper on a pyke crane when Mr. Neurauter was on a leave of absence to obtain surgery. The surgery was elective and Mr. Neurauter was scheduled to be off for one week, from Monday, October 3 to Friday, October 7, 1988. Mr. Neurauter was scheduled to return on October 11, 1988. (It was not clear why the return date was October 11 instead of October 10. I presume October 10 was a statutory holiday). In any event, the greivor was not required to replace Mr. Neurauter after October 7. Once again, there was no evidence, but I presume Mr. Neurauter returned to work as scheduled.

The dispute arose when the greivor was instructed to return to his position as an extra gang labourer. His position was that the completion of his assignment amounted to the abolition of his position as a helper on the crane and thus he was entitled to exercise his seniority to bump into other positions on the Railway for which he was qualified and which were occupied by employees junior to him. The Union position was that when the Railway refused to permit the greivor to bump into other positions, it was in breach of the following provision of the collective agreement:

10.2 An employee whose position is abolished, or who is displaced will, within five (5) working days of the job abolishment or displacement, exercise seniority over any other junior employee subject to being qualified to do work of the employee being displaced.

The Union said that when the greivor’s temporary assignment as crane helper was completed, he was “an employee whose position [was] abolished” and he was therefore entitled to exercise his seniority under Article 10.2. The position of the Railway was that the greivor was appointed to a temporary relief position to cover a short-term sick leave. The Railway said that it has a discretion under the collective agreement to appoint employees to fill such vacancies pro tempore without abolishing the positions they occupy and on the basis that they will be returned to their original positions when the short-term replacement assignment concludes. In that regard, the Railway pointed to the following provision:

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 Railway assigned the greivor to the crane helper position under that provision on the basis that it considered him to be the most senior qualified employee who was “immediately available”. I digress to point out that the Union indicated in argument that it was of the view that the question of when an employee is “immediately available” is an issue3 to be assessed on the basis of the particular facts. However, as stated in prior awards, the concept of “immediately available” contemplates an exercise of discretion by the Railway in which it is free to asses the work force and make a determination as to which employee can be spared from an existing task to meet the short-term assignment. That is not to say that the Union cannot challenge an assignment under that provision on the basis that the senior qualified employee immediately available was not selected. It is to say that if the decision of the Railway is reasonable in the arbitral sense, it cannot be challenged on the basis that the Union would have made a different decision.

Returning to Article 8.8, the thrust of the provision is that it provides the Railway with the flexibility in manning to respond to short-term absences with a minimum of disruption and expense. In that context, tied up in the question of “immediately available” are issues that go beyond seniority and qualifications. In particular, there is a question as to which employee can best be spared. That is a decision reserved to management subject to review on the basis of unreasonableness of bad faith.

The reasoning with respect to the flexibility required to meet short term vacancies extends to the facts in this dispute. Article 8.8 was utilized to fill the vacancy created by the short term absence absence of Mr. Neurauter. The Union position was that once the greivor was assigned to the vacancy, however long its duration, the only way in which he could be removed from the position was either by being bumped by a more senior employee or by the abolition of his position by the Railway. Its submission was that when Mr. Neurauter returned from his surgery to reclaim his position, it should be seen as constituting a bumping of the greivor within the meaning of Article 10.2 by Mr. Neurauter or an abolition of the greivor’s position by the Railway to accommodate the return of Mr. Neurauter.

The position of the Railway was that a short-term assignment to a different position under Article 8.8 did not trigger any application of Article 10.2. In supporting that position, the Railway called evidence that its practice has always been to fill short-term vacancies caused by absenteeism through appointments under Article 8.8. Evidence was called from the Superintendent of Gang 314 at the material time, Fernando Correia, who said that short-term absenteeism is a routine problem that arises in the supervision and management of the work force. He said that replacements are required daily and are selected from qualified employees on the gangs on the basis of who can be spared consistent with maintaining productivity. The Railway’s evidence of practice was not challenged in the sense that the Union failed to assert or prove that employees appointed to replace absent employees under Article 8.8 are recognized as acquiring bumping rights under article 10.2 when the temporary assignment is complete.

On the evidence, such temporary assignments could be as short as one day. Mr. Correia said that there was one occasion he could recall on Gang 314 when he was missing 12 key employees after a long weekend and that if employees assigned to replace them for one day were entitled to bump when the absent employee returned, operations would be in a state of chaos. He said that absenteeism was a routine occurrence and had always been revolved through short-term assignments that saw gang members shuttled between jobs as the need rose.

As stated, the Union position relies on a determination that the completion of a short-term assignment through the return of the incumbent in the position amounts to the abolition of the position or a displacement under Article 10.2. But that interpretation is not consistent with the language of the provision or the facts. In the first instance, the position occupied by the greivor in the short-term assignment was not abolished. Nor was the greivor appointed to fill the crane operator position. Mr. Neurauter owned that the position and he continued to own it during hid five days of sick leave. He had won the position by bidding on it under the posting provisions of the agreement. The greivor was assigned to replace him during a short absence. It was open to the greivor to decline the assignment. His own position was that of an extra gang labourer and it was not abolished when he was given the temporary assignment to replace Mr. Neurauter.

I digress to note that the Union argued that there is no such thing as an extra gang labourer position because vacancies in that classification do not have to be posted. The Union noted that Article 9.1, the posting provision, provides in part as follows:

9.1 Except for temporary vacancies of less than thirty (30) calendar days, temporary new positions of less than thirty (30) calender days, and Extra Gang Labourers’ positions and vacancies occurring due to employees being absent on vacation with pay, bulletins advertising vacancies and new positions shall be posted… (emphasis added)

However, it is clear that an extra gang labourer occupies a position because the provision itself refers to “ extra gang labourers’ positions”. The collective agreement does not restrict the process of abolition of positions to those that have been posted. Article 10.2 merely speaks to a “position which is abolished”. There is no basis for concluding that extra gang positions are not abolished or to doubt that senior extra gang labourers can displace junior employees in an exercise of their extra gang seniority. My understanding of the facts is that the greivor occupied an extra gang labourer’s position and he accepted a temporary assignment to replace an absent employee. His position was not abolished and he was not appointed to the position to which he had been temporarily assigned. Conversly, Mr. Neurauter’s position was not abolished when he took sick leave. In the decision between these parties in the Baldev Sekhon Arbitration, March 10, 1986, unreported, it was determined on p.3 that employees do not lose any temporary or permanent position they have acquired by bid merely by reason of the fact that they are absent on sick leave.

The collective agreement makes a clear distinction between short-term and long-term vacancies. That fact has been noted in various contexts in a variety of previous arbitration decisions made between the parties. That fundamental differance was the determining factor in the Baldev Sekhon Arbitration. It was also determinative in the Kampe Arbitration, April 11, 1984, unreported on p.7. Article 8.8 contemplates expressly the right of the Railway to make temporary assignments. Further, the following provisions anticipates temporary assignments:

18.14 Employees temporarily assigned to higher-rated positions shall receive the higher rates while occupying such positions.

If the Union were correct in its interpretation, that provision would be redundant. That is, if appointing the greivor to a temporary vacancy had the effect of abolishing his existing position, and if placing him in that vacancy entitled him to remain in the position until it was abolished or he was displaced, he would not need rate protection. He would be entitled to the rate payable as an incumbent in the position. The only need for Article 18.14 is to provide rate protection in the sort of temporary assignment contemplated by the Railway in its application of Article 8.8.

The Union’s interpretation of Article 10.2 creates further problems. On the evidence of the Railway, unexpected vacancies can require considerable shuffling of the work force. In the case of the 12 vacancies created by absenteeism, for example, several employees were placed on temporary assignment for the day to redistribute the work load so that productivity could be maintained. The potential where there is a work force of 100 or more employees on a gang is for there to be many more than 12 temporary assignments made as employees are moved to fill in the gaps. On the Union interpretation, all employees reassigned would be seen as free to exercise their seniority throughout the system when their temporary assignments were complete the following day.

The sequential bumping touched off in that process would meet Mr. Correia’s description of chaos. It is an interpretation that would have to be supported by express language. Here the language is not express. In fact, it is not consistent with the Union interpretation. Further, the facts do not support the findings urged by the Union. That is, the Railway did not abolish Mr. Neurauter’s position when it assigned the greivor to replace him temporarily and it did not abolish the greivor’s position as an extra gang labourer to make him “available” for the assignment. It “filled” a temporary vacancy under Article 8.8 with the understanding that Mr. Neurauter would return and the Greivor would go back to his own position when the temporary assigned was concluded.

Finally, the Union indicated that there may have been an agreement made by the grievor’s supervisor to the effect that he could exercise his seniority upon completing his temporary assignment. But that agreement was not proven in this hearing and the Union did not rely on it in argument. The question at issue remained one of whether the appointment of the grievor to a five-day vacancy under Article 8.8 fell in some way within the scope of Article 10.2. The Union failed to establish that the circumstances did fall within the provision or that the refusal to recognize a right in the grievor to exercise his seniority was a breach of the collective agreement. In the result, the grievance is dismissed.

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

H. ALLAN HOPE, Q.C., - Arbitrator