Heard at Montreal, Tuesday, February 13th, 1973

Concerning

and

Omission to Bulletin Fireman/Helper’s vacant position Trains 123 and 124.

Burlington Northern (Manitoba) Ltd.’s refusal to Bulletin the vacant position constitutes a violation of Part 1 of the Agreement dated November 10, 1912, which reads as follows:

The Union contends that the refusal to Bulletin the vacant position constitutes a violation of part 1 of that Agreement dated November 1, 1912, as well as Rule 32(a), Paragraph 1 of the schedule covering Firemen/Helpers and Hostlers, dated July 1, 1945.

There appeared on behalf of the Company:

W. G. Percy – Counsel, Winnipeg

J. A. Lowry – Superintendent, Winnipeg

And on behalf of the Union:

A. J. Roy – General Chairman, Prince George

0. W. Miles – General Chairman, Lucerne

D. V. McDuffe – Assistant Canadian Legislative Representative, Ottawa

The question in the instant case is whether the Company was required to bulletin a position of fireman/helper on trains 123 and 124. By an agreement made between a predecessor company and predecessor trade unions to the present parties, and whose terms appear to be accepted as binding (except as amended) on the present parties, provision was made (Rule 32(a) of an agreement dated June 30, 1945) for the bulletining of vacancies for firemen to the "Seventh Seniority District". This was a reference to a group of employees of another Company, the present Company, or its predecessor, having agreed to bulletin certain jobs to such persons.

In August, 1971, Fireman C.A.R. Buchanan, who had been employed on trains 123 and 124, left the Company’s employ in order to exercise certain rights which he retained pursuant to a collective agreement to which another company was a party. It is, essentially, the Union’s position that this created a vacancy which Burlington Northern was required to bulletin. Although there were apparently no Burlington Northern employees not presently so assigned who would have been entitled to the job, it may well be that if the Company were required to bulletin the job, then it would be required to do so pursuant to the agreement above referred to, to persons on the "Seventh Seniority District". The real issue before me, however, is whether the Company was required to bulletin the job at all.

It is clear that the Company did not consider that it was necessary for it to employ a fireman/helper on trains 123 and 124. Employment of firemen (helpers) on diesel locomotives in other than passenger service (and that is what is involved here) is governed particularly by the provisions of an agreement dated October 20, 1959 which, again, appears to have been adopted by the present parties as binding upon them. The rule there agreed to cancelled any previous conflicting rule. It was provided that certain work would be available for firemen having a certain seniority date, and that their rights of promotion to enginemen would be preserved. It was also provided as follows.

It would seem that Fireman Buchanan had been employed pursuant to rule 46, which gave him certain rights of employment by virtue of his seniority Whether his leaving created a "vacancy" or not is a question to be determined having regard to the circumstances and the applicable collective agreement provisions. Generally, a "vacancy" may be said to occur when there is a job of work which is required to be performed. In the past, there had been a job for Fireman Buchanan because, it seems, the collective agreement required it. Apart from its obligations to particular individuals, however (and the instant case does not involve an assertion by a fireman with the requisite seniority to be given work pursuant to the agreement above mentioned), it is clear that, by Rule 46(D)(5) above set out the Company has a discretion to determine whether or not it requires a helper in the operation of trains such as those in question The Company has decided that it does not require a helper. That is a decision which it is open to the Company to make, and there is no ground for concluding that the Company has in any way violated the collective agreement in making it.

Fireman Buchanan was entitled to be retained, by virtue of Rule 46(D)(5a), even though the Company might have felt his work was not required. He was in fact retained until he was promoted, and this was in compliance with the rule. Under Rule 46(D)(5), however, the Company was not then under any obligation to hire a new employee (as, it seems, would have been the case had the position in question been bulletined), nor indeed to make any assignment to a job which it then determined was not required.

For the foregoing reasons, it must be concluded that there was no vacancy requiring to be bulletined in the instant case. The grievance is accordingly dismissed.