The Union submits that by blanking virtually all of the non-required positions the Company has effectively reduced the number of pool assignments, rendered all first brakeperson’s positions "non-required" and forced protected employees to the spareboard in a manner not contemplated by the agreement of the parties governing conductor-only operations. The Union further suggests that in some locations, particularly in the west, the Company has simply declined to allow protected trainpersons to apply for any non-required positions, thereby compelling them to bid onto required positions, foreclosing the opportunity to establish a maintenance of basic rates for those persons. The Union submits that by effectively "wiping out" the first brakepersons’ pool and forcing protected employees to the spareboard the Company has rendered the obligation to bulletin all positions, including non-required positions, virtually meaningless. It submits that an overall interpretation of the provisions of article 9A does not sustain the approach taken by the Company.

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The Company asserts a different view. It submits that if the interpretation of the Union is to be accepted, the employer gained virtually nothing from the Conductor-Only Agreement. Firstly, it’s representative stresses that the Conductor-Only Agreement resulted in the payment of substantial sums by the Company in relation to voluntary separation packages made available to maximize the attrition opportunities taken up by protected employees. It estimates the cost of retirement and separation incentives in support of conductor-only operations to be in excess of fifty million dollars. Implicit in that arrangement, according to the Company, is the understanding that the employer would not be put to the obligation of hiring new employees to replace those who had left pursuant to the incentives established. However, the Company notes that if the interpretation of the Union in respect of the operation of article 9A of the collective agreement should obtain, the Company will in fact be compelled to hire new employees. Whenever an employee holding a required position on the spareboard should claim a vacancy in a non-required first brakeperson’s position, in accordance with the Union’s view of the bulletining procedure, the Company would be compelled to backfill the required positions so vacated, if necessary, by resorting to hiring. In the result, in the Company’s view, the Union’s interpretation would place large numbers of protected employees into non-required positions, while required positions would become filled by newly hired junior employees. This, it submits, was not intended or contemplated by the Conductor-Only Agreement.

The Company argues that a protected employee holding a required position on the spareboard cannot claim a non-required brakeperson’s position unless the non-required position is one which the Company has in fact regularly filled by assigning it to a protected employee, and a temporary vacancy of six days arises by reason of the absence of that employee.

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In the Company’s view the bulletining process, which includes identifying non-required first brakeperson’s positions, is not rendered academic or meaningless by reason of the approach which it takes. It stresses that the Conductor-Only Agreement provides to protected employees the ultimate guarantee that if they should be unable to hold a required position they retain the right to claim an available non-required position, which would include any first brakeperson’s position which was previously bulletined and blanked. In other words, the protected employees retain a significant protection against layoff, in that unoccupied non-required first brakeperson’s positions must first be made available to them.

In the Arbitrator’s view the interpretation advanced by the Company is more compelling than that pleaded by the Union. Firstly, the Arbitrator accepts, as submitted by the Company, that the prerogative to determine whether a job of work exists so as to give rise to a vacancy remains vested in the employer, absent clear and unequivocal language in the collective agreement to the contrary. While in most industrial relations settings the bulletining of a position is prima facie evidence of the employer’s view that a vacancy exists, that alone is not determinative, and it is generally considered that it remains available to an employer to cancel a bulletin prior to the filling of a vacancy. Most importantly for the purposes of this grievance, the bulletining provisions of the Conductor-Only Agreement found in article 9A have a clear purpose which is unrelated to the identification or filling of a vacancy. As argued by the Company, the requirement to bulletin first brakeperson’s positions, and indeed second brakeperson’s positions, even though they may not be filled, is significant for the exercise of the residual right of a protected employee to claim a non-required position in the event that he or she is not successful in holding a required position. Other rights under the agreement, including the right to take layoff and have the benefit of Supplementary Unemployment Insurance benefits, may flow from the manner in which the non-required positions become filled.

In the Arbitrator’s view the language of article 9A of the collective agreement lends substantial support to the interpretation of the Company. As the second sentence of paragraph 3(b) of article 9A clearly reflects, the parties agreed that following the bulletining of positions only required positions are to be filled, "... unless circumstances are such that the other provisions of this Clause 3 pertaining to the placement of protected employees in non-required positions can be applied."

In my view the foregoing provision has reference to the operation of paragraph 3(h) of article 9A, whereby protected employees unable to hold required positions are permitted to claim non-required first brakeperson’s positions to the extent that they are available. In this context it is not disputed by the Company that availability refers to first brakeperson’s positions which were bulletined at a terminal and which have not been filled. The hurdle which the Union’s position cannot overcome is the language of the second sentence of paragraph 3(b) of article 9A. It provides that, in the normal course, following the bulletining process, only required positions are to filled. The Union’s submission, however, rests on the premise that all bulletined positions, including non-required first brakeperson’s positions, are to be considered filled, even if the incumbents in such positions are thereafter forced to the spareboard. In my view that position flies in the face of the language of paragraph 3(b). If the parties had intended that all bulletined positions, including non-required positions were to be filled, they could plainly have said so. They did not, however. In the result, I am satisfied that the employer’s course of blanking non-required first brakeperson’s positions, and forcing protected employees to take required positions on the spareboard is in keeping with the contemplation of article 9A of the collective agreement. I do not see how the interpretation of the Union can be accepted without doing violence to the language of paragraph 3(b) which expressly stipulates that only required positions are to be filled unless conditions require the placement of protected employees in non-required positions. Moreover, if a choice must be made between two arguable interpretations, the general purpose of the Conductor-Only Agreement is achieved through the interpretation advanced by the Company and is substantially frustrated, if not defeated, by the interpretation of the Union.

The authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance … There is also substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance is identical in substance. …