CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4013
CANADIAN PACIFIC RAILWAY COMPANY
MAINTENANCE OF WAY EMPLOYEES DIVISION
Dispute concerning the 2011 Pacific Region Initial Gang Bulletin (Awards).
JOINT STATEMENT OF ISSUE:
The Union requests that the Arbitrator (1) declare that the Company actions are in violation of the collective agreement, the past practice between the parties and the Canada Labour Code and (2) order that the Pacific Region Initial Gang Bulletin positions in question be re-bulletined in accordance with the collective agreement and that every employee who is required to bid again do so on Company time or, if that is not possible, be compensated with a minimum of three hours at the overtime rate pursuant to section 3.5 of the collective agreement.
denies the Union’s contentions and declines the
(SGD.) WM. BREHL (SGD.) B. LOCKERBY
PRESIDENT LABOUR RELATIONS OFFICER
There appeared on behalf of the Company:
B. Lockerby –
Labour Relations Officer,
S. Seeney –
Director, Industrial Relations,
M. Chernenkoff –
Labour Relations Officer,
There appeared on behalf of the Union:
Wm. Brehl –
D. Brown –
A. R. Terry – Vice-President, Revelstoke
S. Brighton – Local Chairman,
AWARD OF THE ARBITRATOR
objects to what it characterizes as an improper correction of the job bulletin
for the Pacific Region Gang originally awarded on
Initial gang bulletins are dealt with in a note to section 10.1 of the collective agreement which reads:
Note: Initial gang bulletins, when issued, will remain open for a minimum of twenty-one (21) days to a maximum of twenty-eight (28) days. Positions advertised will be awarded fourteen (14) days following the close of the bulletin.
10.13 (c) An employee will only establish seniority in a higher classification by being awarded a bulletined vacancy in such higher classification. An employee filling a temporary vacancy under this article 10.13 other than by bid will, at the conclusion of such temporary vacancy, revert to their former position.
10.14 (a) A qualified employee appointed to a higher classification by bulletin will be accorded a seniority date from the date of appointment on bulletin in such classification and in all lower-rated classifications in which they are qualified to work and in which they had not previously established seniority. This Article 10.14(a) does not apply to Bridges and Structures Department Employees.
(b) An employee appointed by bulletin to a position in a B&S classification listed in Article 9.15(c) will be accorded a seniority date from the date of appointment in such classification and all lower rated B&S classifications in which they are known to be qualified to work and in which they had not previously established seniority. Notwithstanding the foregoing, an employee will only establish a seniority date in those groups in which they are known to be qualified to work and which they had not previously established seniority. (For purposes of this article 10.14(b) each position listed in classifications 2, 3, 4 and 6 is a separate group.)
(c) Employees establishing seniority as Extra Gang Foremen or Assistant Extra Gang Foremen on a District Seniority List will not establish such seniority and seniority in lower-rated classifications pursuant to Articles 10.14(a) and 10.14(b) on another seniority list without first being awarded a bulletined vacancy to which such other seniority list applies. An employee establishing seniority as Extra Gang Foreman on a District Seniority List will also establish seniority as an Assistant Extra Gang Foreman on that District Seniority List if not previously established.
(d) An employee who has been appointed by bulletin to a higher classification and is not qualified to work in all lower-rated classifications or other group(s) within their classification at the time of their appointment, will be accorded their original seniority promotion date in the event they subsequently qualify for the classifications or group(s) for which they were previously unqualified.
In the Union’s
perspective the prospect of the Company unilaterally changing bulletined job
awards without any discussion with the Union effectively undermines the
While the Company acknowledges that in the past there have been circumstances in which award bulletins have been changed after they initially issued, sometimes, though not always, after consultation with the Union, it stresses that there is no express provision within the collective agreement that would give the Union a right to be consulted prior to the issuing of a corrected or amended award bulletin. Its representatives rely, in part, on the established jurisprudence, including awards of this office such as CROA 2638, 3054 and 1729, which confirm that it is within the discretion of the parties to a collective agreement to correct errors in its administration.
carefully considered the submissions of the parties and the facts of the case,
the Arbitrator has substantial difficulty with the position of the
On what basis
can it be argued that the Company is without discretion to issue a correcting
bulletin, when the sole basis for the correction is its own determination that
the original bulletin violated the collective agreement and the seniority
rights of the employees under it? The instant award bulletin is arguably the
best case in point to support the Company’s case. Following the initial award
bulletin the Company identified over sixty positions which were awarded in
error based on the true seniority entitlement of the employees concerned. Each
error and change was effectively identified by print highlighting which the
Company included in the correcting award bulletin. How, in light of that, can
I find it difficult to conclude that the parties would have intended once the Company has issued an awards bulletin its hands are tied. Is it then to await the filing of in excess of sixty grievances, to be dealt with through a grievance and arbitration procedure to restore the employees to the very position which it acknowledges they should occupy by reason of its amending award bulletin? Alternatively, is the Company, not to mention the employees, to be subjected to the abolishment of all positions and an entire repetition of the bulletining and bidding procedure which, arguably, may produce different results based on the information as to bids of other employees gained by the publishing of the initial erroneous awards bulletin? To follow that course of action would, in my view, court not only administrative inefficiency but labour relations unrest. The course followed by the Company avoids those outcomes, restores the employees to their proper entitlements based on the correct assessment of their relative seniority and avoids the disruption and ripple effects of nullifying and restarting a complex and sensitive bidding process. In my view clear and unequivocal language in the collective agreement would be required to foreclose the Company’s ability to correct a bulletin so as to respect the collective agreement itself. No such language is identified to me.
In my view
there is also a certain logical discontinuity in the submission of the
In the result, I am compelled to conclude that the Company’s actions giving rise to this grievance do not involve any violation of the rights of the Union under the collective agreement nor do they constitute a violation of the Canada Labour Code by undermining the representative rights of the Union as exclusive bargaining agent on behalf of the employees. For these reasons the grievance must be dismissed.