BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

O. Lavoie – System Labour Relations Officer, Montreal

L. F. Caron – Manager, Labour Relations, Montreal

J. Wiebe – Manager, Rail Traffic Control Centre, Winnipeg

T. B. Hewitt – Rail Traffic Controller, Kamloops

And on behalf of the Union:

Peter Taves – National Vice-President, Winnipeg

Philippe Wojtowiez – System Chairman, Montreal

A hearing in this matter was held at Montreal on August 3l, l994.

The grievance has been filed as a Union grievance and contests the seniority standing attributed to Train Dispatcher T.B. Hewitt upon his return to the bargaining unit on December 29, l990. It maintains that the Company, by allowing Mr. Hewitt to accrue seniority over a period during which he held a position not covered by the Collective Agreement, violated the provisions of Article 47.11 of the Collective Agreement. It accordingly seeks adjustment of Mr. Hewitt's seniority standing to reflect the non-accrual of seniority during this period.

The Joint Statement of Issue presented to the Arbitrator is as follows:

The background facts and circumstances out of which the grievance arises are not in dispute. Mr. Hewitt first entered the service of the Company on April l8, l966. From that time he worked at various positions covered by the Collective Agreement until October 3l, l988, when he was promoted to the position of Relief Rules and Training Instructor, a non-scheduled official position within the Company outside the bargaining unit. At the time he held a position of Temporary Train Dispatcher in Kamloops, for which he had successfully applied on August 9, l988.

The non-scheduled position of Relief Rules and Training Instructor to which Mr. Hewitt was promoted had been bulletined as a temporary position in late summer l988. This non-scheduled position had been created to assist in the implementation of new Canadian Rail Operating Rules. Following Mr. Hewitt's tour of duty as Relief Rules and Training Instructor, he was, on May l9, l989, assigned another non-scheduled position, that of Relief Assistant Chief Train Dispatcher at the Kamloops dispatching office until August 5, l989, at which time he returned to a non-scheduled position of Relief Rules and Training Instructor.

While occupying the non-scheduled positions above-referred to, Mr. Hewitt successfully bid upon a number of bargaining unit positions, the last of which was that of Permanent Train Dispatcher on the Albreda sub-division, which he was awarded on September l3, l990, although he did not, at the time, assume active service in that position. He did, however, return to a bargaining unit position for two shifts on October 25 and 26, l990, resuming immediately thereafter his temporary non-scheduled position of Relief Rules and Training Instructor which he continued to hold until December 29, l990, when he returned to the bargaining unit as a Spare Board Train Dispatcher working as a Relief.

While in this latter capacity Mr. Hewitt, on January 22, 199l, applied for and was awarded a permanent bulletined position of 3rd Trick 2nd set Rail Traffic Controller in Kamloops. Upon his re-entry into the bargaining unit and with regard to his application for the bulletined position, the Company attributed to him seniority taking into account his service in the non-scheduled positions held by him since his promotion of October 3l, l988. It is the Union's contention that attribution of seniority to Mr. Hewitt should not include this latter period of service.

That the applicable provision of the Collective Agreement for purposes of computation of Mr. Hewitt's seniority is to be found in Article 47.11 is common ground. This provision reads as follows:

The position of the Union is that the effect of Article 47.11 is to limit to two consecutive years the period during which an employee who has been promoted to a position not covered by the Collective Agreement may continue to accumulate seniority. Following this period the employee may no longer include service in the non-bargaining unit position for purposes of computation of seniority. It sees in Mr. Hewitt's return to a bargaining unit position for two shifts on the days of October 25 and October 26, l990, immediately followed by resumption of his non-scheduled position of Relief Rules and Training Instructor no more than a ploy designed to circumvent the limitation imposed by the provision. For the Union, therefore, Mr. Hewitt, when he returned to the bargaining unit on December 29, l990, would no longer have been entitled to include, for purposes of his seniority, the period of service following October 3l, l988, in non-scheduled positions, since that period of service had exceeded two consecutive years.

For the Company, on the other hand, the various non-scheduled positions occupied by Mr. Hewitt since October 3l, l988, were temporary positions. As far as it was concerned the limitation of two consecutive years imposed under the applicable provision extended solely to permanent non-scheduled positions. Thus, argues the Company, Mr. Hewitt was entitled to retain and accumulate seniority so long as he continued in the temporary non-scheduled positions which he had assumed since October 3l, l988. In any event, adds the Company, Mr. Hewitt had returned to his permanent position in the bargaining unit prior to the expiry of the period of two consecutive years to which Article 47.11(a) refers, and so had not assumed a non-scheduled position within the meaning of Article 47.11(a).

Article 47.11 of the Collective Agreement governs the situation of promotion of an employee from a position covered by the Collective Agreement to "an official or any other position with the Company" beyond the bargaining unit. It extends also to employees who leave the bargaining unit to become a representative of bargaining unit members.

The opening sentence of the provision establishes the general rule that, in the case of these employees, seniority shall continue and accumulate during the period of employment in the position to which they have been promoted or in respect of which they have become a representative of bargaining unit members. The provision then goes on to state that the positions of employees promoted to positions in railway service are to be protected for six months, subject to extension not to exceed two years, by agreement. During this period such employees retain their position and may bid on other bulletined positions without obligation to assume such positions where their applications are successful. Following the period of protection such bidding rights are qualified by the obligation of the successful applicant to assume the position bid upon.

While the opening paragraph of Article 47.11 imposes no time limitation upon the right of an employee promoted to a non-bargaining unit position as regards accumulation of seniority, Article 47.11(a), on the other hand, to which the opening paragraph of the Article is subject, imposes such a limitation. This limitation is established as a period of two consecutive years from the date of promotion following which the employee may no longer accumulate seniority upon the basis of service in the non-bargaining unit position, retaining only seniority rights already accumulated to the date of promotion. The limitation, in the words of the provision, extends to "an employee promoted to a permanent non-scheduled, official or excluded position within the Company subsequent to July l, l978".

The opening sentence of Article 47.11 qualifies application of the general rule which it adopts by inclusion of the words "subject to the provisions of clause (a) of Article 47.11". It follows that general application of the rule established in the opening sentence of Article 47.11 of indefinite accumulation of seniority will not find application for the particular cases identified in Article 47.11(a) where the right to such accumulation is limited to two years. The references in Article 47.11(a) which serve to identify such cases are to the terms "permanent", which does not appear in the opening sentence of Article 47.11, and "subsequent to July l, l978", which likewise does not appear in that sentence.

The inference is that those employees falling within the classification of employees promoted to permanent positions with the Company beyond the bargaining unit subsequent to July l, l978, will be subject to the exception to the general rule as that exception is expressed in Article 47.11(a). All employees promoted to non-bargaining unit positions who do not qualify under such grouping will benefit from the general rule, that is, employees promoted to non-permanent positions beyond the bargaining unit generally or those promoted to permanent positions prior to July l, l978. In this regard the Arbitrator must interpret the Article in accordance with the intention of the parties as they have expressed it and, this being the case, the Arbitrator must give effect to the terms "permanent" and "subsequent to July l, l978", both of which do not appear in the opening sentence of Article 47.11.

While the Arbitrator is not insensitive to the position of the Union that some time limitation to the right of an employee to accumulate seniority while occupying a position beyond the bargaining unit must be in place in the interest of the integrity of the bargaining unit itself and its members who are required to earn their seniority by working under the Collective Agreement and paying Union dues, he is unable to say, given the wording chosen by the parties in sealing their bargain that such was the intent for all cases. It may just as well have been the intent that employees promoted to non-bargaining unit positions retain seniority rights so long as the positions which they hold beyond the bargaining unit have not become permanent and that employees promoted prior to July l, l978, to whatever positions, be they temporary or permanent, conserve the same rights that they enjoyed prior to that date. Thus, while Article 47.11 is not without its ambiguities, the choice of words employed by the parties in their drafting of Article 47.11(a) would suggest that application of the general rule expressed in the first sentence of Article 47.11 is excepted on one of two bases, the first being that the promotion is to a permanent position beyond the bargaining unit, and the second that the promotion has occurred after July l, l978. In all other cases the employee promoted retains the right to accumulate seniority while employed in the non-bargaining unit position to which he has been promoted by reason of the general rule expressed in the first sentence of Article 47.11.

It would not follow that the provisions of Article 47.11(a) affect bidding rights on bulletined positions as these are provided for in the opening paragraph of Article 47.11. Article 47.11(a), rather, deals strictly with the right to accumulate seniority and not with bidding rights as such. At issue simply are the cases under which an employee will be precluded from including service in a non-bargaining unit position for purposes of computation of accumulated seniority when bidding upon or returning to a bargaining unit position.

In the final analysis, the issue of interpretation of Article 47.11 confronting the Arbitrator may be reduced to a matter of whether the ambiguity revealed in the provision should be resolved in favour of the right of the individual on the one hand, or group rights on the other. In addressing this matter the Arbitrator cannot lose sight of the fact that the general rule expressed in the opening sentence of the provision favours individual rights in the sense that seniority rights of individuals promoted to non-bargaining unit positions are retained and accumulate so long as these individuals continue to be employed in a non-bargaining unit position with the employer. By providing that the general rule is subject to Article 47.11(a), this latter provision provides the exception. As an exception to a general rule, the provisions of Article 47.11(a) must receive a restrictive interpretation, so that in case of doubt the general rule favouring retention of individual rights must prevail. This being the case, the Arbitrator would have to find for the Company and in consequence for Mr. Hewitt's right to have accumulated non-bargaining unit service in this case if, as the Company pretends, the positions occupied by him over the period of more than two consecutive years were not permanent positions.

The evidence on this latter point is that all of the positions in question held by Mr. Hewitt during the relevant period were bulletined as temporary positions and were assumed by him as such. The position to which he was initially promoted as Relief Rules and Training Instructor was established for the express purpose of implementation of new Canadian Rail Operating Rules, a fact which amply demonstrates the temporary character of the assignment. The permanence of any of the subsequent positions assumed is nowhere indicated in the record and there is nothing in the evidence which would permit for a conclusion that there was any intent on the Company's part to artificially fashion the positions offered to Mr. Hewitt as temporary ones to achieve some improper purpose.

The fact that the Company bulletined Mr. Hewitt's permanent position in the bargaining unit at Kamloops following the expiration of the period of two consecutive years that he had spent in a position with the Company beyond the bargaining unit changes little. The Company, under any circumstances, would have been under the obligation to bulletin the position since the period of protection had come to term. As the Arbitrator has pointed out, however, the issue of protection is quite different than that of the right to accumulate seniority while in a position beyond the bargaining unit.

In the result, the conclusion of the Arbitrator is that Mr. Hewitt, not having assumed a permanent position beyond the bargaining unit by way of promotion, qualified under the provisions of Article 47.11 as an employee entitled to retain and accumulate seniority under the Collective Agreement throughout his period of employment in positions beyond the bargaining unit. This being the case, the Arbitrator need not consider whether Mr. Hewitt's return to service within the period of two consecutive years provided for in Article 47.11(a) operated to interrupt his period of absence from the bargaining unit for purposes of application of that provision.

For the foregoing reasons, the grievance is dismissed.

MONTREAL, September 9, l994

Arbitrator