OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3729
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Claim on behalf of Mr. H. Deol.
JOINT STATEMENT OF ISSUE:
The grievor, Mr. H.S. Deol, bid for and was awarded a temporary flagging position. When the position concluded he expressed a desire to displace a junior employee, Mr. M.S. Grewal, who was working a temporary Track Maintenance Foreman (TMF) position in Coquitlam. However, the grievor was advised by the Company that he would not be permitted to displace Mr. Grewal because he did not possess all the required qualifications, specifically an air brake endorsement. Instead, the grievor was required to return to, and to occupy, his permanent TMF position. A grievance was filed.
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) K. HEIN
PRESIDENT FOR: DIRECTOR, LABOUR RELATIONS
There appeared on behalf of the Company:
K. Hein – Labour
D. Freeborn – Manager, Labour
M. Foot – Service Area
And on behalf of the
Wm. Brehl – President,
D. W. Brown – Legal Counsel,
H. Deol – Grievor
AWARD OF THE ARBITRATOR
The main issue in this case is whether the grievor can displace a junior employee without possessing an operator’s license with an air brake endorsement. The grievor claims he has the right to displace the junior employee on the basis of section 11.3 (a)(1) of the Wage Agreement.
One of the minimum qualifications
for the TMF position is a class DZ license, a qualification which the grievor
does not currently hold. The grievor has been provided with opportunities in
the past to attain this qualification but so far has been unsuccessful. The
Company, as noted, will not permit the grievor to displace the junior employee
because he has been unable to obtain the required air brake qualification. It
has, however, “accommodated” the grievor by allowing him to remain in his TMF
position at the
In the Arbitrator’s view this grievance must be resolved by
recourse to certain basic principles. As a general matter, it is within the
prerogatives of the Company to establish qualifications for particular job
assignments, subject only to limitations negotiated by the
The Union further submits that there
is no bona fide business purpose that
can justify the Company’s decision to allow the grievor to work as a TMF on the
The Union further points out that the 1993 section vehicles were not equipped with air brakes. The introduction of this multi-purpose section vehicle in 1993 led to the creation of a new position, the TM/TD, which in turn led to the parties bargaining section 9.9(b), as found in the current collective agreement, which reads:
9.9(b) The Track Maintainer/Section Driver shall have the primary responsibility for the operation of the BTMF Section Vehicle. This operation will consist of the regular driving and daily inspection of the Section Vehicle. The principal duties of an employee working in the position of Track Maintenance/Section Truck Driver shall be that of a Track Maintainer.
In 1999, as noted, a newer and
larger version of the BTMF vehicle was introduced with air brakes. The
2 (g) If for any reason a Track Maintainer on the section is unable to drive the Section Vehicle, that duty will be performed by the Leading Track Maintainer or the Track Maintenance Foreman.
Bearing in mind the history of the
section vehicle, the Union submits that the above language, which was
originally bargained in 1993, cannot have been intended to apply to section
vehicles with air brakes because such a vehicle did not even exist at the time
the provision was adopted as part of the collective agreement. Further, the
possession of specialized licences has never been a general requirement of the
maintenance of way service. The
11.3 (a) … in the event of displacement or lay off from a temporary position or at the conclusion of a temporary vacancy (over or under 45 days), an employee must, do any of the following:
(1) Displace a junior employee working a temporary position in any classification or group in which he holds seniority, or
(2) revert to his permanent position, or
(3) may fill a vacancy in any class or group in which he holds seniority.
The Arbitrator has sympathy for the grievor and his predicament. He is a long-serving employee who has provided dedicated service to the Company over a lengthy career.
The Union has also provided creative
arguments to support their case that the grievor does not have to hold an air
brake endorsement on his licence in order to fulfill the duties of a TMF,
whether those duties are being performed in
The Company, in my view, is correct that there is no language in the collective agreement that suggests that it cannot implement new qualifications that are put in place for valid business purposes. The fact that the Company has adopted the air brake endorsement as part of its current requirements for section vehicle drivers is not arbitrary, but rather consistent with the legal licensing requirements for operators of vehicles equipped with air brakes.
It is evident, in turn, from a plain reading of Item 2(g) that an LTM or TMF must be able to step into the shoes of an absent TM/TD and perform their duties as required. The grievor, regrettably, does not have the ability to perform those specified duties as a result of his lack of qualifications of the air brake licence endorsement. The requirement for an air brake licence endorsement, in my view, is a reasonable qualification without which the grievor is unable to bid or displace a junior employee of his choice under article 11.3(a)(1). The fact that the old section vehicles did not have air brakes at the time item 2(g) was negotiated does not alter the implicit requirement for only qualified employees to perform the work. A variation in wages between the holders of an air brake endorsement and those without is insufficient basis to alter the plain meaning of the item 2(g).
For the above reasons, the Arbitrator dismisses the grievance.