AD HOC: MALLOTT, K.:

AWARD

This arbitration concerns the right of Locomotive Engineer Ken Mallott, employed by CN at Hornepayne, to assume the position of VIA locomotive engineer at Hornepayne, by bidding onto a vacancy made available by the retirement of VIA Locomotive Engineer G. Emard. Mr. Mallott seeks to exercise the right to transfer into service with VIA pursuant to the Special Agreement of June 4, 1987 made between VIA Rail Canada Inc., the Brotherhood of Locomotive Engineers and the Canadian National Railway Company. Simply stated, that agreement makes provision for locomotive engineers transferring from service with CN into service with VIA Rail, with seniority protections and flow-back rights which are not the subject of this dispute. This dispute arises by reason of the fact that when the VIA vacancy being claimed was posted at CN, in conformity with the Special Agreement, Mr. Mallott was not in normal road or yard service, but was working as an “on-the-job trainer”, or rules instructor. Mr. Mallott assumed the training responsibilities which took him out of normal service for the period between August 19, 1998 and June 4, 1999. The vacancy for a VIA locomotive engineer at Hornepayne was posted on October 22, 1998 and was awarded to the senior applicant, Locomotive Engineer M. Latoski effective October 29, 1998.

At the conclusion of his service as an on-the-job trainer Mr. Mallott sought to exercise his greater seniority to claim the position awarded to Mr. Latoski. Although he was initially trained by the Corporation on the position, on June 23, 1999 the grievor was advised that he could not displace Mr. Latoski under the terms of the Special Agreement.

It is common ground that the position taken by the Corporation prompted a difference of opinion between the General Chairman of the Brotherhood responsible for CN employees, Mr. Richard Dyon, and the General Chairman of the Brotherhood responsible for VIA employees in the same region, Mr. John Tofflemire. VIA and Mr. Tofflemire took the view that Mr. Mallott was eligible to apply for the vacancy when it was posted in October of 1998, and that he cannot assert a right to claim the position in question only months later, at the conclusion of his service as a rules instructor. Through its National office and its CN General Chairman the Brotherhood asserts a different position. It submits that the grievor was effectively on a leave of absence from normal bargaining unit service, in circumstances which did not allow him to bid out of CN and into VIA, and that he was entitled to claim the work in question pursuant to article 49.3 of collective agreement 1.1 between CN and the Brotherhood, at the conclusion of his extraordinary assignment. Article 49.3 of that collective agreement reads as follows:

49.3 Locomotive Engineers on leaves of absence or on vacation with pay will be permitted to exercise seniority on such assignments bulletined and filled during the period of such leave of absence or vacation with pay, provided application is made in writing within 7 days after reporting for duty, setting forth the date of the bulletin advertising the run or job claimed.

As an initial position the Brotherhood submits that the Corporation in fact agreed to be bound by the finding of the Brotherhood’s International President. That position is based on a letter dated October 30, 1999 written by Mr. George Benn, the Corporation’s officer of labour relations to Mr. Claude Provencher of the Crew Management Centre of Canadian National Railway at Moncton. The letter reads as follows:

This letter is in response to your letter concerning the transfer of Mr. K. Mallott from CN to VIA Rail Inc. by means of displacement.

It is the understanding of General Chairman Tofflemire that the only way a CN employee may come over to VIA Rail is by means of a bulletin, your General Chairman Dyon has a different view of this matter. It is the Corporation’s view to allow these General Chairmen time to iron out their differences and let the both Corporations (sic) know the outcome.

It is common ground that the Brotherhood’s Canadian Director and International Vice-President, Mr. Gilles Hallé, ruled in favour of the position asserted by the Brotherhood, as elaborated in a letter addressed to the Brotherhood’s International President, Mr. Edward Dubroski, dated January 6, 2000. In answer to the question as to whether the grievor was entitled to displace Mr. Latoski, Mr. Hallé reasoned, in part, as follows:

The answer is YES for the following reasons:

1. Item 4B of Transfer Agreement:

During the reciprocal rights period referred to in paragraph (a) of this item 4, Locomotive Engineers’ permanent vacancies at VIA will be advertised to both CN and VIA Locomotive Engineers, including those not working as such, pursuant to the terms and conditions of Agreement 1.1 or 1.2, as the case may be, and the senior qualified applicant will be assigned based on his/her relative standing on the applicable seniority lists(s). The application of this paragraph (b) will not result in a junior locomotive engineer at CN being assigned to a position at VIA when there is a senior locomotive engineer at VIA either laid off or not working as such at that terminal.

2. Article 49.3 of collective agreement 1.1:

Locomotive Engineers on leaves of absence or on vacation with pay will be permitted to exercise seniority on such assignments bulletined and filled during the period of such leave of absence or vacation with pay, provided application is made in writing within 7 days after reporting for duty, setting forth the date of the bulletin advertising the run or job claimed

3. It has been also a practice on VIA, CN and CP to let locomotive engineers on leave of absence on duties such as O.J.T., fuel conservation and other special projects to displace on jobs that were bulletined when they were on such leaves.

4. Brother Mallott was representing the Brotherhood on this project and he was paying full dues to our organization.

The fundamental position of the Corporation is that Mr. Mallott was entitled to bid on the vacancy at VIA when it was posted, and that he was not in fact on a leave of absence within the meaning of article 49.3 of the collective agreement between CN and the Brotherhood. The Corporation’s representative stresses the language of item 4(b) of the Special Agreement, also referred to as the Transfer Agreement, which reads as follows:

4(b) During the reciprocal rights period referred to in paragraph (a) of this item 4, Locomotive Engineers’ permanent vacancies at VIA will be advertised to both CN and VIA Locomotive Engineers, including those not working as such, pursuant to the terms and conditions of Agreement 1.1 and 1.2, as the case may be, and the senior qualified applicant will be assigned based on his/her relative standing on the applicable CN seniority list(s). The applicant of this paragraph (b) will not result in a junior Locomotive Engineer at CN being assigned to a position at VIA when there is a senior Locomotive Engineer at VIA either laid off or not working as such at that terminal.

The Corporation’s representative submits that the phrase “… including those not working as such, …” encompasses persons in the category of Mr. Mallott who, at all material times, was not working as a locomotive engineer but was assigned as a rules instructor. He argues that the thrust of the provision, as well as the intent of article 49.3 of the collective agreement, is to give to employees who have actual notice of a vacancy at VIA the opportunity to bid on it, and stresses that Mr. Mallott was in a position to become aware of the vacancy and was not prevented from applying by reason either the language of item 4(b) of the Special Agreement or the provisions of the CN-BLE collective agreement, including article 49.3.

As its initial position the Brotherhood argues that VIA is bound by the ruling of the Brotherhood’s International Vice-President, based on the letter sent to CN by Mr. Benn of October 30, 1999. The Arbitrator cannot sustain that part of the Brotherhood’s submission. Viewed in its context, the letter from Mr. Benn to Mr. Provencher of CN was clearly not an undertaking to the bargaining agent, which was in fact not a recipient of the letter, but merely an attempt to steer a common sense course of action between the officers of the two railways. In essence Mr. Benn was simply saying to Mr. Provencher that it would be wise to wait and see what the Brotherhood might itself work out with respect to the differences between its two general chairmen. There is plainly nothing in that letter which can be construed as an undertaking made to the Brotherhood, much less a surrendering to the Brotherhood of a unilateral ability to amend or waive the provisions of the tri-partite Special Agreement. For these reasons the Arbitrator cannot sustain the initial position advanced by the Brotherhood with respect to the letter of October 30, 1999.

The real issue in this dispute is whether Mr. Mallott can fairly claim the right to displace Mr. Latoski by the application of article 49.3 of the CN-BLE collective agreement, or whether, as the Corporation submits, he is precluded from doing so because he was not on a leave of absence and was in fact eligible to make application for the vacancy when it was posted, pursuant to item 4(b) of the Transfer Agreement.

Upon a careful review of the submissions of the parties and the language of the documents in question, the Arbitrator is persuaded that the position of the Brotherhood, endorsed by counsel for CN, must prevail. The Corporation’s representative relied, in part, on the prior decision of the Canadian Railway Office of Arbitration in CROA 2293. That case involved a dispute as to whether Locomotive Engineer B. Fletcher was entitled to exercise his seniority to transfer from CN to VIA after the expiry of a temporary promotion into an non-scheduled position outside the bargaining unit, which Mr. Fletcher occupied at the time of the original positing of the original vacancy within VIA. The reasoning of that award, which was relatively brief, is as follows:

The Arbitrator is satisfied that Mr. Fletcher was entitled to the protections of the Transfer Agreement between the Canadian National Railway Company, the Corporation and the Brotherhood. Included in those rights is the benefit of bidding for service in VIA Rail during the reciprocal rights period provided for in item 4 of the Transfer Agreement. When those provisions are read together with article 45.10 of the collective agreement, which protects the accumulation of Mr. Fletcher’s seniority rights while on leave from the bargaining unit in CN, the Arbitrator must accept the submission of the Corporation that he was entitled to exercise those rights upon the conclusion of his leave of absence. The rights which Mr. Fletcher enjoyed are no less than those of any other locomotive engineer in the employment of CN, including the rights available to him under the Transfer Agreement. There is nothing in the material before the Arbitrator which would justify the submission of the Brotherhood that Mr. Fletcher’s rights upon the conclusion of his leave of absence must be limited to service as a locomotive engineer within CN. On the contrary, I am satisfied that Mr. Fletcher was entitled to avail himself of positions bulletined to both VIA and CN employees during his absence, and which were awarded to employees junior to Mr. Fletcher.

For the foregoing reasons the grievance must be dismissed.

The Corporation maintains that Mr. Mallott’s situation is distinguishable from Mr. Fletcher’s, as he continued to be paid as a member of the bargaining unit at the time of the posting. The Brotherhood, supported by CN, submits that the circumstances of Mr. Mallott are indistinguishable from those of Mr. Fletcher. It appears that at the time of CROA 2293 the practice within CN was to treat bargaining unit employees assigned to rules instruction duties as being on a leave of absence for the purposes of the collective agreement, and in addition that the person so assigned occupied an excepted position which did not fall within the bargaining unit. It is common ground that in the instant case Mr. Mallott was not temporarily assigned outside the bargaining unit, and that collective agreement 1.1 between the Brotherhood and CN now makes specific allowance for an individual to be assigned to rules training while continuing be paid and otherwise dealt with within the terms of the collective agreement. By the same token, however, both parties to the CN-BLE collective agreement affirmed to the Arbitrator at the hearing that locomotive engineers who are withdrawn from road or yard service to serve in what was formerly referred to as rules training, now called on-the-job training, are effectively taken out of normal service for the period in question, and are treated as being on a leave of absence from normal service, including a leave of absence for the purposes of article 49.3 of their collective agreement.

Needless to say it is difficult for an Arbitrator to assume an interpretation of a collective agreement which is inconsistent with the agreed interpretation of the very parties to that agreement. The parties to collective agreement 1.1 speak with a single voice in these proceedings, and affirm to the Arbitrator that employees assigned to rules training, as was Mr. Mallott, are treated as being on a leave of absence for the purposes of article 49.3 of their collective agreement. The parties confirm that, for example, Mr. Mallott could not have bid on bulletined vacancies within CN during the agreed term of his service as an instructor in the on the job training program. They explain that the stability of the training system, a value of importance to both parties, would be undermined if instructors, who are generally bargaining unit employees, could abandon their training duties at short notice to bid on other job vacancies. The Arbitrator can find no basis upon which to prefer the interpretation of the CN-BLE collective agreement offered by the spokesperson for VIA, given that both parties to that collective agreement hold to a common contrary position.

Additionally, the Arbitrator is satisfied that a close reading of item 4(b) of the Special Agreement does sustain the argument advanced on behalf of the grievor. It may be noted that the Special Agreement stipulates that the filling of permanent vacancies at VIA is to be done “… pursuant to the terms and conditions of agreement 1.1 …”. The thrust of that position is that bidding rights under the Special Agreement are controlled by the bidding rights provisions of the CN-BLE collective agreement. As noted above, the parties to agreement 1.1. are agreed that in the circumstances at hand Mr. Mallott enjoyed the rights of an individual on a leave of absence, for the purposes of bidding any permanent vacancy, as expressly contemplated under article 49.3 of collective agreement 1.1. That article clearly contemplates that an individual may exercise a right to bid an assignment bulletined during the period of their leave of absence. So understood, as argued by the Brotherhood and counsel for CN, the circumstances and rights of Mr. Mallott are effectively indistinguishable from those relating to Mr. Fletcher, as ruled upon in CROA 2293.

For the foregoing reasons the grievance is allowed. The Arbitrator declares that VIA violated the Special Agreement by denying the grievor access to the position occupied by Mr. Latoski. Mr. Mallott is entitled to assume that position forthwith, and to be compensated for any losses of wages and benefits which may have resulted. The Arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

Dated at Toronto, November 8, 2000 (signed) MICHEL G. PICHER

ARBITRATOR