Heard at Montreal, Tuesday, March 10, 1987

Concerning

and

The Brotherhood contends the grievors, former Leading Track Maintainers currently holding the position of Trackman, were entitled to maintain their incumbencies when they did not bid on a bulletined temporary vacancy of Assistant Track Maintenance Foreman. The Brotherhood contends an employee does not have to protect a classification in which he does not hold seniority, therefore the grievors are entitled to maintenance of basic rates in accordance with article 8.9 of the Employment Security and Income Maintenance Plan.

The Company disagreed with the Brotherhood's contention.

Resulting from the July 1985 Track Reorganization, a number of former Leading Track Maintainers could only hold positions of Trackman. Their rates of pay were thus protected under article 8.9 of the Employment Security and Income Maintenance Plan.

On 20 August 1985, Mr. P. K. McCully was awarded by bulletin a temporary vacancy of Assistant Track Maintenance Foreman. As a result of this award, all former Leading Track Maintainers with Leading Track Maintainer seniority greater than Mr. McCully were advised, pursuant to article 8.9 of the Plan, that their incumbency was being reduced temporarily.

The Company considers that in accordance with article 3.4(b) of collective agreement 10.8, Leading Track Maintainers are qualified to fill temporary vacancies of Assistant Track Maintenance Foreman. Therefore in accordance with article 8.9 of the Plan the grievors, in order to maintain their incumbencies, were required to bid on the highest-rated position to which their seniority and qualifications entitled them.

The grievors, former Leading Track Maintainers, were qualified to bid on the temporary vacancy of Assistant Track Maintenance Foreman. Had they bid on the position, it would have then been awarded to the "senior qualified" applicant. The fact that the temporary position of Assistant Track Maintenance Foreman in question was awarded to one of the former Leading Track Maintainers receiving the incumbency is proof that the grievors are "qualified" to hold such a position.

The Brotherhood submitted because the grievors had not established seniority in the classification of Assistant Track Maintenance Foreman in accordance with article 3.4(c) of collective agreement 10.8, they were not required to bid on that temporary vacancy in order to protect their seniority. The grievors would only be required to protect their seniority in the highest classification which they have held, such position being Leading Track Maintainer.

There appeared on behalf of the Company:

T. D. Ferens – Manager Labour Relations, Montreal

J. Dunn – Labour Relations Officer, Montreal

S. J. Williams – Labour Relations Officer, Montreal

And on behalf of the Union:

J. Roach – General Chairman, Moncton

P. G. Legros – System Federation General Chairman, Ottawa

L. Boland – Federation General Chairman, London

W. Montgomery - General Chairman, Belleville

At the hearing the Union took the position that the grievors were not required to protect their incumbency rates of pay solely because the bulletined position of Assistant Track Maintenance Foreman was at a location different from where they were employed. The Union appears to be taking a position contrary to that of the Company with respect to the meaning of the word "location" appearing in paragraph (ii) of article 8.9 of the Employment Security and Income Maintenance Plan. That article provides, in part, as follows:

The Company objects that the Agreed Statement of Issue makes no reference to any dispute concerning the definition of "location" in sub-paragraph (ii) of the foregoing provision. The Arbitrator must agree that the Joint Statement of Issue appears to deal only with the contention of the Union that an employee is not required to protect a classification in which he or she does not hold seniority.

Article 12 of the Rules of Procedure of the Canadian Railway Office of Arbitration provides as follows:

The foregoing provision makes it plain that it is not open to this Arbitrator to deal with any matter that is not within the Joint Statement of Issue. For these reasons, the instant grievance cannot be considered, and must be dismissed. That finding is, of course, without prejudice to the right of the Union to assert its position in respect of the meaning of the word "location" in any appropriate case in the future, provided that that issue is properly progressed through the grievance procedure.