AD HOC 307

AWARD

In this dispute the Union alleges that the Railway was in breach of the collective agreement when it failed to post vacant jobs in a lumber reloading operation carried on as part of the Railway’s intermodal facility located in North Vancouver. The reloading operation consists of the unloading of lumber from rail cars hauled from lumber mills throughout British Columbia. Thereafter the lumber is either stockpiled or reloaded on trucks for delivery in the lower mainland of British Columbia or into the United States. Lumber that is stockpiled is usually delivered within 30 days. From schedules filed in evidence it would appear that the reload operation is active on a regular basis, Monday through Friday, on two shifts, one called a morning shift that normally commences at 6:00 a.m. and an afternoon shift that normally commences between 2:30 p.m. and 3:00 p.m. The question is whether the Railway is obligated to post one or more vacant positions with respect to the work performed on those shifts.

The dispute commenced in late January of 1989 when 14 employees filed grievances alleging that they were being required to work in un-posted positions in the lumber reloading operation. The essence of the grievances is captured in the one filed on January 25, 1989 by M.J. Mayne. His grievance reads as follows:

Having worked at least 2 years at 7 K (7 a.m.) to 15:30 K (3:30 p.m.) shift, driving truck, I feel this contravenes Rule 27.1 of our contract. Also Rule 27.5.

It was developed in the evidence that Mr. Mayne and a number of other employees working in the lumber reloading facility are what the parties describe as “unassigned employees”. Assigned employees are ones who have obtained a job by bid through the posting process. An unassigned employee is one who receives his job assignment on a day-to-day basis. The complaint of Mr. Mayne and the other grievors was that they were working regularly in substantially the same job but the Railway had refused to post their jobs.

In the result, the grievors were left as unassigned employees subject to re-assignment without notice. The two provisions of the collective agreement the grievors relied on to support their grievances read as follows:

27.1 New positions, or vacancies shall be bulletined promptly for a period of seven (7) calendar days. Employees desiring such positions shall file their applications with the designated Officer within that time, and an appointment shall be made within seven (7) calendar days thereafter. In the event of an employee withdrawing his application for a position, it must be done in writing.

…

27.5 Temporary vacancies of a known duration of thirty (30) days or more, other than annual vacation with pay, shall be bulletined. The employee awarded the temporary vacancy will return to his permanent position on completion of the temporary vacancy.

The position of the Union was that experience in the lumber reloading aspect of the intermodal operation disclosed that there were at least 10 jobs in the sense of 10 employees assigned to perform substantially the same duties every day. The Union position was that the Railway was obligated to post those jobs as temporary vacancies under Rule 27.5 or permanent vacancies under Rule 27.1. The position of the Railway was that it has an unfettered right under the management’s rights provision of the collective agreement to determine if and when a vacancy exists. The Railway said that it is only when it has determined that a vacancy does exist that it is required to comply with Rule 27.1 or Rule 27.5.

The position of the Union, as indicated, is that the Railway has a discretion to determine whether it wants particular work performed, but when it decides that the work is to be performed, it must comply with the provisions of the agreement. Before considering the issues further, it is helpful to consider the structure of the collective agreement and its implications in terms of how the question of work assignments is to be approached.

This collective agreement makes no express distinction between jobs and job classifications, although it is clear in context in the agreement and in the practice of the parties that a distinction exists. Hence, the precise nature of that distinction must be determined by implication. For example, Rule 10 is entitled, “Job Classifications”, but that term is only used in the title. The term used in the body of the rule is, “position”. The difficulty is that the same term is used in the job posting provision in Rule 27.1, but in a different context. In the job classification provision it means job classification. In the job posting provision it means a specific job, the duties of which fall within a particular job classification.

A further measure of complication arises in a reading of Rule 27.5, being the temporary vacancy provision. There the term used is “vacancy”, but it is used in a context that makes it synonymous with “position” as that term is used in the permanent vacancy provision, being Rule 27.1. In fact, the terms “position” and “vacancy” are used interchangeably in Rule 27.1. Hence, we have collective agreement language in which both jobs and job classifications are called positions. Each classification contains a number of different jobs. Finally, the temporary job provision describes jobs as vacancies.

However, any sense of complication is superficial in the sense that the intent of the parties is abundantly clear when the agreement is read as a whole and in the context of the practice of the parties. In particular, in the job classification provision the parties use the term “position” to mean job classification and in the job posting provision they use it to mean job vacancy, being a vacant position within a classification. Similarly, the term “vacancy” as it is used in Rules 27.1 and 27.5, means “Job vacancy”. That structure is commonplace in collective agreements. It permits parties to classify work into separate categories for purposes of negotiating wage rates and to designate specific jobs as falling within particular classifications or categories for purposes of assigning work. It is in the context of that structure that this dispute must be addressed.

The application of those provisions in this collective bargaining relationship can be appreciated by examining a typical job posting in which both the job classification, in the context of Rule 10, and the job, in the context of Rule 27, are included. One such posting filed in evidence reads as follows:

TRUCK DRIVER WAREHOUSEMAN NORTH VANCOUVER, INTERMODAL, (TRACTOR TRAILER) TTO-19

0600 to 1430, Wednesday to Friday, 0800 to 1630, Saturday to Sunday, Monday and Tuesday Off, 17.52 per hour

Looking at that posting, the “position” in the context of a job classification under Rule 10 is “Truck Driver Warehouseman (Tractor Trailer)”. The remainder of the posting identifies the “position” in the context of a job within the job posting provision in Rule 27.1. To find the definition of a job as opposed to a job classification, we must look to another provision of the collective agreement. In particular, the ingredients of a job are defined by necessary implication in the provision that sets out those factors that must be included in a job posting. That provision reads as follows:

27.8 Bulletins shall show location, title, rates of pay, hours of service, regular assigned rest days, nature of duties and, if temporary, the approximate duration.

Looking back at the sample job posting, it is noted that it contained the details set out in Rule 27.8, including location, title, rates of pay, hours of service, regular assigned rest days, and nature of duties. In summary, this collective agreement employs a structure in which job classifications consisting of a range of duties are negotiated under Rule 45, being the wage rate provision, during the renewal of each collective agreement. New or changed classifications occurring during the currency of a collective agreement are negotiated under Rule 10.1 of the job classification provision. That rule reads:

10.1 Where new positions for which rates of pay are not established by this Agreement are put into use, rates governing such positions shall be subject to negotiations between the parties. The rate established shall be retroactive to the date of implementation.

Having negotiated a job classification structure in which the work is divided into categories, called “positions”, and for which rates of pay are negotiated, the parties go on to divide that work into specific jobs, also called “positions”, which are then posted and filled by bid. The significance of that structure from the Union perspective is that it affords employees an opportunity to exercise their seniority, subject to qualifications, to bid into desired positions as they are posted.

I repeat my earlier observation that employees who hold a job obtained in that process by bid are called assigned employees and employees who do not hold a job are called unassigned employees. That does not mean, of course, that unassigned employees lack job security or occupy some secondary class of employment. The principal difference relates to such matters as length of notice of shift changes and layoffs. To appreciate the distinction, it is necessary to do a further review of the collective agreement.

As stated, there is no provision in which “assigned employees” and “unassigned employees” are specifically defined. The terms appear to be introduced in provisions where a distinction is required. For instance, Rule 19 deals with statutory holidays and a distinction is made as between assigned employees and unassigned employees. Rule 19.1 designates nine statutory holidays, called general holidays. Rule 19.2(b) provides in part that, ”a regularly assigned employee”, is entitled to four calendar days of advanced notice of being required to work on a general holiday. The implication is that an unassigned employee is not entitled to the same notice. That distinction is consistent with the manner in which the collective agreement makes implicit distinctions between assigned and unassigned employees. I will return to that point later.

Rule 19.5 makes a further distinction when it provides that, “an assigned employee”, not required to work on a general holiday will be paid eight hours of pay at “the straight time rate of his regular assignments”. However, because unassigned employees do not have ”a regular assignment”, Rule 19.6 provides that “an unassigned or spare employee” who is required to work on a general holiday will receive eight hours pay at the rate he was receiving in the position he worked during the last tour of duty.

It is made apparent in the seniority provision, Rule 25, that no distinction is made between an assigned and an unassigned employee in any general sense. Rule 25.1 defines a regular employee in the following terms:

25.1 A regular employee shall be considered as such an employee of the Railway when:

a) he has completed his probationary period.

b) he makes himself available to the Railway for full time employment. Employees not available for permanent employment shall not accumulate seniority.

c) he has no other outside employment except where such employment may be specifically permitted under provisions of this Agreement …

That definition of a regular employee makes no distinction between assigned and unassigned employees. Both accumulate seniority and appear to enjoy equal seniority rights. In fact, in a close reading of the collective agreement in the context of the evidence, it is apparent that the only differences between assigned and unassigned employees are those associated with the holding of a specific job. Unassigned employees represent a pool from which the Railway can draw with considerable flexibility to fill its labour requirements as they arise on a day to day basis. That same flexibility does not exist with respect to an assigned employee.

For example, an assigned employee, as is made clear in Rule 27.8, is assigned to a particular location to perform designated duties. The employee has designated hours of service and regular days off. The rigidity of that structure is implicit in Rule 27.9 in which it provides that a position must be “re-bulletined if there is a change in location, rate of pay, regular assigned rest days, or hours of service involving a change of two (2) hours or more”. Similarly, in the layoff provision, being Rule 26, assigned employees are entitled under Rule 26.2 to receive five working days of notice of a layoff.

I note by way of aside that the parties have had some difficulty with respect to the application of the literal language of that provision. It reads as follows:

26.2 When positions are abolished, five (5) working days’ advance notice will be given except in the case of a strike or work stoppage in the Railway industry, in which case a shorter notice may be given.

In context, it would appear that the tern, “positions”, is used in the same sense as in Rule 27.1. That is, a “position” under Rule 26.2 is a job. Rule 26 uses the title, “layoff and recall”, but the term “layoff” does not appear in the body of the provision. Instead, the parties use the terms, “abolished”, and, “displaced”. In context, the term “abolished” appears to mean a discontinuance of the job and displaced means bumped by a senior employee. The term “abolished” is the equivalent of a layoff. The provision does not make distinctions with respect to the duration of a particular job abolition. That is, it does not distinguish between a short term abolition of one day as compared with a seasonal or indefinite abolition. But, in context, it would appear that notice that an employee’s services in a particular job will not be required for a period of any duration amounts to a layoff and requires the requisite notice.

Unassigned employees, because they do not occupy a position, are not entitled to receive notice of layoff. I repeat that the term, “displacement”, reflects a circumstance in which a junior employee is displaced by a more senior employee. Hence, it is not relevant to the issues raised in this dispute because unassigned employees do not occupy positions. On that basis, although I am not required to determine that issue in this dispute, it would appear that unassigned employees are not susceptible to being bumped. However, I leave that open for a future dispute if one arises.

Returning to the relevant provisions of the agreement, a further distinction between assigned and unassigned employees in terms of flexibility of scheduling appears in Rule 14.2. It reads as follows:

14.2 Hours of daily service when established shall not be changed without thirty-six (36) hours’ notice. This shall apply to changes of less than two (2) hours.

Clearly that provision is intended to be read in conjunction with Rule 27.9. That is, a change of less than two hours requires 36 hours notice under Rule 14.2 and a change of more than two hours requires that the job be posted again under Rule 27.9. The position of the Railway was that the inflexibility of assignment which is characteristic of assigned employees cannot be reconciled with the scheduling requirements of the lumber reload operation.

The Railway called evidence from Del Baker, the supervisor of intermodal services, and Allan Saloka, the manager of intermodal services. Their evidence was to the effect that the lumber reload facility represented the very circumstance contemplated with respect to the use of unassigned employees. Their evidence, in effect, was that the workload was unpredictable and could not be serviced cost-effectively or efficiently by assigned employees. They said, in particular, that advance notice of when lumber cars would be arriving was unpredictable and insufficient in terms of lead time to permit regular scheduling. The features of an assigned position, by necessary implication, are those specified in the various provisions to which I made reference. By way of summary they include:

(1) A specified location;

(2) Designated hours of service;

(3) Regular days off;

(4) Specific duties;

(5) Five days notice of layoff;

(6) 36 hours notice of any change of shift times of less than two hours;

(7) Job abolition and reposting (presumably involving five days’ notice) of any change in location, days off or any change in the hours of work in excess of two hours.

The evidence on behalf of the Railway was that the lumber reload facility was established in an effort to complete with highway transport carriers and that the profit margin was necessarily small in order to remain competitive. Requiring the Railway to post jobs for unassigned employees working in the lumber reloading operation would deprive it of its flexibility and possibly result in its discontinuance, said the Railway.

I note in that context that the jurisdiction of an arbitrator is limited to the interpretation and application of the provisions of the collective agreement. The fact that a particular interpretation may have an adverse cost impact on an employer is no basis for rejecting the interpretation. Obviously cost effectiveness in the context of apparent absurdity is a factor to take into account in the interpretation process. Hence, one may say that it is unlikely that parties formed a mutual intention with respect to disputed language that would trigger an absurd result. However, I repeat the fact that a particular interpretation has a burdensome impact is not a basis for rejecting the interpretation unless that result is in balance with a proper application of the relevant principles of interpretation. See Air Canada and Canadian Airlines Employees Association (1975), 8 L.A.C. (2d) 239 (Brandt) @ p. 246.

Having said that, I say that the issue in this dispute turns on whether the evidence supports a finding that there are a number of “positions” in the context of the job posting provision which triggers a requirement to post within the context of Rule 27.1 or Rule 27.5. Before considering the evidence in that regard, it is useful to consider the Railway’s position with respect to the applicable governing principles and the arbitral authorities that govern a dispute of this kind.

III

I repeat, the collective agreement does not define the difference between assigned and unassigned employees in any express terms. The submission of the Railway was that the distinction is that assigned employees are job holders in the traditional sense and unassigned employees constitute a pool from which the Railway can draw to meet fluctuating requirements on a day to day basis. In support of that submission the Railway relied on the decision in B.C. Rail Ltd, and the General Truck Drivers and Helpers, Local Union No. 31 (Howard Grievance), June 17, 1987, unreported (Diebolt). On p. 1 the arbitrator wrote:

First, there are assigned employees who bid for and are assigned regularly scheduled work weeks, normally consisting of a five day forty hour period followed by a scheduled two day rest period. Second, there are unassigned employees holding themselves available who are called out as required to perform additional work.

The Railway relied on a number of authorities to support the proposition that an employer, in the absence of collective agreement language to the contrary, is entitled to make a unilateral determination as to whether it will declare a vacancy with respect to particular work. The employer saw that right as emanating from its management’s rights provision and from what it saw as a general arbitral principle that an employer, all else being equal, has a discretionary right to manage and direct the work force, subject only to the requirement to act in good faith. The management rights provision relied on by the employer reads as follows:

11.1 Subject to the terms of this Agreement, all matters concerning the operations of the Railway shall be reserved to Railway management. The Union recognizes that it is function of the Railway:

(a) to maintain order, discipline and efficiency;

(b) to discharge, suspend for proper cause;

(c) to increase and decrease the working forces; and

(d) to make or alter from time to time rules and regulations to be complied with by its employees. These rules and regulations are to be filed with the Union.

I will return to that provision shortly. In support of its general position with respect to the scope of an employer’s discretion in the allocation of work, the Railway relied on the decision of Professor George Adams in Re Corp. of Borough of Scarborough and Canadian Union of Public Employees, Local 368 (1975), 10 L.A.C. (2d) 188. On pp. 193-4 Professor Adams wrote as follows:

The starting position in these kinds of cases must be based on the arbitral principle that management is free to assign work as it wishes as long as it does so in good faith and with due regard to opposing provisions of the collective agreement that specifically impinge upon this freedom.

But Professor Adams went on to consider a number of circumstances in which restrictions on the right of the employer to assign work are seen to arise from the language and structure of the collective agreement and the nature of the disputed assignment. There is no doubt on a reading of the arbitral authorities that an employer is not required to fill a vacancy where it is concluded that it does not require the work to be performed. That is, the employer has a discretion with respect to what work will be performed. Further, even where there is work to be performed, an employer is not ordinarily required to fill a temporary as opposed to a permanent vacancy.

That subject was discussed in Re Disabled and Aged Regional Transit System and Canadian Union of Public Employees, Local 839 (1986), 20 L.A.C. (3d) 354 (Solomatenko). On p. 356 the arbitrator wrote as follows:

The Union acknowledges the statement in Brown and Beatty, Canadian Labour Arbitration, 2nd ed. (1984), para 5:2510, at p. 241 that, “where an absence is only a temporary one, it has been held that the vacancy created would not be one that required posting”, which is footnoted with the following cases: Re U.S.W. and General Steel Wares, Ltd (1955), 5 L.A.C. 2065 (Taylor); Re U.A.W. Local 523 and Reliance Electric & Engineering (Canada) Ltd. (1961), 11 L.A.C. 345 (Donley); Re U.A.W. Local 1256 and J.A. Wotherspoon & Son Ltd. (1964), 15 L.A.C. 179n (Lang), and Re U.S.W., Local 6571 and Lake Ontario Steel Co. (1967), 18 L.A.C. 424 (Weiler).

The employer relied on that general line of reasoning to support its assertion that it had an unfettered discretion to determine whether a vacancy existed and, in any event, it was not required to post temporary vacancies. As noted, previously, the right of an employer to avoid filling a vacancy is contingent upon the particular facts. An employer has a discretion not to have work performed. In Re Horton Steel Work Ltd., and U.S.W., Local 3598 (1973), 3 L.A.C. (2d) 54 (Rayner), the arbitrator wrote at p. 55 as follows:

It is well established that a vacancy need not be posted simply because an existing job in a classification is not filled. Rather the Company must first initially determine if they require a person to do that job.

Here the question is whether the Railway in fact determined that it did not want to fill the vacancy. That question is not answered by the Railway simply declaring that it does not consider that a vacancy existed. The question of whether a vacancy exists involves the test of good faith. In particular, the employer cannot declare that no vacancy exists and then take steps to have the work performed in some manner other than the one agreed to in the collective agreement. See Re City of Edmonton and International Brotherhood of Electrical Workers, Local 1007 (1988), 30 L.A.C. 353 (Jones), citing Canadian Labour Arbitration and Re Nat’l Public service Employees, Local 1000 and H.E.P.C. of Ont., (1963), 14 L.A.C. 64 (Anderson) at p. 366, Re Rothmans of Pall Mall Canada Ltd., and Bakery, Confectionery and Tobacco Workers’ International Union, Local 319, (1984), 12 L.A.C. (3d) 329 (Picher).

In that latter decision, the arbitrator found that the question of whether the employer is required to post a temporary vacancy is a function of the particular collective agreement.

Here the employer has agreed in Rule 27.5 that it will post temporary vacancies “of a known duration of 30 days or more”. In this dispute the Railway cannot rely on the management’s rights provision to give it an unfettered discretion in the issue of determining whether a vacancy exists, whether it be permanent or temporary.

The obligation on an employer in terms of determining whether to create a vacancy was expressed in clear terms in Re Pilkinaton Brothers Canada Ltd., and United Glass & Ceramic Workers (1976), 13 L.A.C. (2d) 287 (Burkett). on p. 291 the arbitrator wrote:

The right of the Company to unilaterally decide if work exists in a classification sufficient to create a vacancy is not, however, an unqualified right. First, it must withstand an examination of the Company’s practice. An employer cannot, on the one hand, assert that there is no vacancy and on the other, require the work of the classification to be done to an extent as would establish that there is a ‘job of work’ being done,

In my view a correct statement of the principle is that where the provisions of the collective agreement contemplate the categorization of jobs by job classification and the posting of jobs, the employer is required to comply with the provisions of the collective agreement. The employer cited a number of |arbitral authorities for the proposition that, in the absence of a provision to the contrary, an employer has a discretionary right to determine whether a vacancy exists.

That is the major thrust of the decision of the arbitration in Re Polymer Corp. Ltd., and Oil- Chemical and Atomic Workers, Local 9-14 (1974), 5 L.A.C. |(2d) 344 (Rayner). On p. 346 the arbitrator wrote as follows:

The threshold issue that must be decided before this article becomes operative is whether a vacancy does, in fact, exist. It is generally accepted that a vacancy does not exist simply because an employee is not filling a particular classification. Rather, a vacant position exists when there is adequate work to justify the existence of an employee in that position.

But that comment is subject to the facts. An employer who is obligated to post vacancies can elect not to fill a particular vacancy and thus not post it. But where the employer elects to have the work performed, it must have it performed in accordance with the provisions of the collective agreement. In applying that reasoning to the facts in this dispute, the issue to be addressed turns first on how the parties define a job and the obligation to post jobs and whether the evidence supports a finding that the Railway has required that permanent or temporary jobs be performed in the lumber reloading facility that it has failed to post in accordance with the provisions of the collective agreement.

The onus was upon the Union in that regard to call evidence establishing that the Railway was in breach of the provisions of the collective agreement in that context. In meeting that onus it called evidence from Kory Lenning. He said that he had been working on substantially the same shift at the lumber reloading facility since September of 1986 and that there were another four people on that same shift who had been working there for at least a year. He said that the afternoon shift was not as consistent, but that there are usually six men working on it.

Mr. Lenning said that he made an inquiry of his supervisor Mr. Baker, to determine why no positions had been posted.

He said that Mr. Baker had replied that the Railway was not sure how long the reload operation would go on and that it needed flexibility of scheduling in order to accommodate fluctuations in the workload. He said that the employees had offered flexibility of scheduling in return for a posting of the position, but the Railway declined. Mr. Lenning agreed that there was a fluctuating demand and that flexibility in shift scheduling was required. His reply was, “If he {Mr. Baker} took the flexibility we offered, there would be no problem”.

The Union filed in evidence a series of written statements disclosing that employees had worked various shifts over varying lengths of time in lumber reloading. In response to that evidence, the Railway adduced viva voce and documentary evidence to the effect that there is no consistency in the operation which permits the rigid scheduling required for assigned positions. It was established that scheduling for the intermodal operation, including lumber reloading, is done in advance on a weekly basis with assigned employees designated to their particular shifts and jobs and unassigned employees placed as required on a daily basis.

As stated, the underlying issue of fact is whether the Union succeeded in establishing on a balance of probabilities that there are “positions” within the meaning of that term in Rule 27 that the Railway has declined to post. As stated, the constituent elements of a job are implicit in Rule 27.8. I repeat that rule for convenience as follows:

27.8 Bulletins shall show location, title, rates of pay, hours of service, regular assigned rest days, nature of duties and, if temporary, the approximate duration.

On the basis of that provision, a vacancy exists when there is work sufficient to occupy one or more employees for 30 days or more and which can be described with respect to the following components:

(a) The title of the job in terms of job classification.

(b) The rate of pay.

(c) The hours worked.

(d) Regular rest days.

(e) A description of the duties of the job.

(f) The expected duration.

In short, where the Railway desires to have specific duties performed within a particular classification for a predictable period of 30 days or more at a specified time and location, it is obligated to post a vacancy for the position under the provisions of Rule 27.8.

But, I am not able to say whether any of the grievors meets the criteria with respect to the work they have been performing. On the evidence of the Railway, predictions with respect to duration cannot be made with any accuracy, and hours of service and regularly assigned rest days are subject to variation. The Railway said that the effect of posting positions in the reload operation would introduce an inflexibility which would have a profound effect on the viability of the operation.

On the evidence before me there are a number of employees who are assigned regular duties at the reload facility. However, the Railway cannot be compelled to post vacancies in that operation for positions that require variable starting and stopping times, variation in assigned rest days and an uncertainty of duration. In particular, the Railway is only required to post positions where it is established in evidence that there is work being performed at a particular location by one of more employees in a particular classification who work regular hours of service and who receive regularly assigned rest days. Finally, there must be evidence to indicate that the work in question can be predicted to extend for periods of 30 days or more.

The evidence of the Union was that those conditions exist with respect to various of the employees in the reload operation. Certainly there was evidence of continuity of employment by particular employees. But the evidence of the Railway was that continuity has been achieved only because of the flexibility of scheduling to meet changes in demand and other variables that cannot be accommodated in the rigidity of assigned jobs where the employer is required to give five days notice of a layoff and where scheduling is subject to the limitations imposed on the Railway with respect to employees in assigned jobs.

I disagree with the submission of the Railway that it has a unilateral right to determine whether it will post a vacancy in the lumber reload aspect of the intermodal operation. I pause to note that one of the submissions made by the Railway was that the lumber reload operation is an intrinsic part of the intermodal facility and that it cannot be compelled to designate specific jobs for the lumber reload facility as opposed to designating job functions at the intermodal operation which involve work at the lumber reload facility or elsewhere in the intermodal operation. That, however, is something of a red herring. It is for the Railway to designate the specific job by the designation of title, location, hours of work, rest days and particular duties. The Railway cannot avoid its obligation to post vacancies by making a unilateral decision that a particular location will not be considered separate for purposes of job posting.

In the same vein, the Railway cannot avoid its obligation to post by saying that it has exercised a management right not to declare a vacancy. The collective agreement obligates the Railway to post any vacancy that meets the criteria contemplated in Rule 27 as to duration and the various other factors. Further, the Railway is required to act in good faith in the application of the posting provisions and it cannot rely on artful or artificial distinctions to avoid the obligation. However, the Railway cannot be deprived of the flexibility of using unassigned employees to meet work demands where duration, volume of work, starting and stopping times, specific duties, and days of rest cannot be predicted with any consistency.

On the evidence, I am unable to say whether any of the grievors perform a pattern of work that meets the criteria contemplated in Rule 27. Even Mr. Lenning conceded that flexibility of scheduling is required to maintain continuity of work. In the result, while I am able to grant the declaratory relief the Union seeks by saying that the Railway cannot make unilateral decisions with respect to when it will declare a vacancy and that it is a breach of the collective agreement to withhold the posting of positions that fall within the criteria defined in Rule 27, I am not able to say whether any of the grievors fall within the scope of the declaration.

In the result, the grievance is granted in the terms indicated. I will reserve jurisdiction to determine whether the award has application to any specific positions, if that becomes necessary. Before leaving the dispute, it is appropriate for me to say that I agree with the Railway that the unique issues raised are the kind that yield more readily to a collective bargaining resolution than an adjudicative one.

DATED at the City of Vancouver, in the Province of British Columbia, this 2nd day of March, 19990.

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

ARBITRATOR