Heard at Montreal, Tuesday, October 13, 1987

Concerning

And

Mr. K. Shaw and Mrs. J. Leese, who were allegedly improperly displaced contrary to article 11.9 of Collective Agreement No. 1.

As a result of an organization review the non-bargaining unit positions of Mr. Sommise and Mr. Zamaitis were abolished at Sarnia and London respectively. The employees were released from their excepted positions and exercised their seniority rights in accordance with article 11.9 of the Agreement.

It is the Brotherhood's contention that Messrs. Sommise and Zamaitis should not have been allowed to displace back into the bargaining unit ranks, because they were released from their excepted positions at their own request by virtue of not accepting another excepted position in another location.

The Corporation maintains that the fact that other excepted positions may have been available to them in Toronto does not negate their right to exercise their seniority at their home locations under article 11.9 of the Agreement.

There appeared on behalf of the Company:

M. St-Jules – Manager, Labour Relations, Montreal

R. Klimczak – Manager, Human Resource, VIA Ontario

C. Pollock – Officer, Labour Relations, Montreal

W. Wilson – Observer

And on behalf of the Brotherhood:

T. N. Stol – Regional Vice-President, Toronto

The rights of the Brotherhood must depend on the meaning of article 11.9 of the collective agreement which provides as follows:

It is common ground that the non-bargaining unit positions of Mr. Sommise and Mr. Zamaitis were abolished. They then had three choices: move to another non-bargaining unit position in Toronto, return to the bargaining unit or leave the employment of the Corporation. They chose to bump back into the bargaining unit, and the issue is whether they were permitted to do so under the terms of article 11.9.

The Union submits that there is a distinction between an excluded position and excepted employment, within the meaning of the article, and that it is only when they are forced out of employment in any excluded position that employees are entitled to exercise their seniority rights to return to the bargaining unit. In other words, it is argued, because non-bargaining unit jobs were available in Toronto, the employees could not exercise their seniority to return to the bargaining unit.

The Arbitrator has substantial difficulty with that submission. Article 11.9 speaks consistently of an "excepted position" and "excluded position" through the first three paragraphs of its text. The fourth paragraph then makes reference to an employee "released from such excepted employment". In this context, both grammatically and reasonably, it appears to the Arbitrator that the reference is to the excluded position held by the employee. In other words, when an employee holding an excluded position is released from that job, his or her rights under article 11.9 then obtain.

It is also clear that the phrase "except at his own request" refers to the release from the non-bargaining unit position, and not to the election to return to the bargaining unit. That is plain from the reference to article 12.19 which describes a circumstance in which an employee is removed from his or her regular position as a result of a disciplinary measure. In other words, if the two excluded employees had left their positions either because they so requested or they were disciplined out of them, they could not exercise their seniority rights as provided in article 11.9 of the collective agreement. In the instant case it is clear that neither Mr. Sommise nor Mr. Zamaitis was ousted from his non-bargaining unit position as a result of his own choice, or by the operation of discipline. In these circumstances there has been no violation of the collective agreement and the grievance cannot succeed.