SHP - 11
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
DIVISION NO. 4, RAILWAY EMPLOYEES’ DEPARTMENT, AFL–CIO
RE:THE APPLICATION OF SENIORITY RULES TO ELECTRICAL WORKERS AT MONCTON
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
APPEARING FOR THE COMPANY:
W. H. Barton
A hearing in this matter was held in Montreal on July 10, 1974.
AWARD OF THE ARBITRATOR
In this grievance it is alleged that the Company is in violation of Rule 23 of Wage Agreement No. 16 in that it has not bulletined all vacancies arising at the Moncton Terminal.
The requirement of posting vacancies for permanent jobs is set out in rule 23.11 as follows:
23.11 When vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification in a craft for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 7 calendar days to employees in the classification at the seniority terminal where they are created, and will be awarded to the senior employees, subject to Rule 23.29, the local committee to be consulted. (See miscellaneous letters of understanding).
While the Company acknowledges its obligation under this provision, and does bulletin certain vacancies arising at Moncton, it is the Union’s position that the Company does not bulletin them throughout "the seniority terminal where they are created". The question in this case is as to the meaning of the term "seniority terminal" in its application to the Company’s operations at Moncton.
The collective agreement provides for the operation of seniority on both a "territory" and a "terminal" basis. By Rule 23.2, the "basic seniority territory" is, in the case of Canadian National Railways, an Area Manager’s Territory. Within the territory of the Maritime Area, there are a number of terminals, and in many cases all of the operations at such a terminal which involve employees covered by Agreement No. 16 would come within the scope of that terminal, that is, the scope of the "seniority terminal" would be that of the terminal itself. Seniority is exercised by craft within a seniority terminal, as Rule 23.3, which will be set out below, indicates. At certain terminals, however, in addition to the continuous-operation shops devoted to running maintenance, there are "main shops" which operate generally on a five-day week and are involved in more thorough maintenance or overhaul work. Rule 23.3 also deals with those situations. The rule is as follows:
23.3 Seniority of employees in each of the following crafts, covered by this Agreement shall, except as otherwise provided herein and in the respective craft special rules, be confined to the seniority terminal at which employed and to the date of entry into their respective classifications:
Boilermakers Helpers Blacksmiths Helpers
Carmen Helpers Coach Cleaners
(and other tradesmen represented by Carmen’s Organization)
Electrical Workers Helpers Machinists Helpers
Moulders Helpers Pipefitters Helpers
Sheet Metal Workers Helpers
Except as may be otherwise mutually agreed between the individual crafts and the railway concerned, the main shops of the respective railways will be regarded under this clause as separate seniority terminals for the purpose of seniority.
NOTE: The following shall be considered as main shops:
Point St. Charles Ogden
The seniority of employees for purposes covered by this Agreement is independent of the provisions of provident or insurance fund regulations.
By reason of this provision, where there is a main shop – and Moncton is designated as such a piece – then there may be two "seniority terminals" at one terminal. Thus the effect of Rule 23.3 is that at Moncton there are two "seniority terminals" one being the main shops and the other being the rest of the operations coming within the scope of the collective agreement. In posting bulletins for vacancies in these areas, the Company’s position is that it is required to post only in the "seniority terminal" in which the vacancy occurs.
In Rule 23.3, there is an exception provided to the provision by which main shops may be regarded as separate seniority areas. The exception may arise where there is mutual agreement between the individual craft and the railway concerned. It is the Union’s position in this case that such on agreement has in fact been made at Moncton, and that both the main shops and other operations are to be treated as constituting one terminal for seniority purposes. The question to be decided is whether in fact such an agreement has been made.
It may be noted that where agreement is made pursuant to the exception to rule 23.3, it is simply between the individual craft and the railway concerned. It is to be distinguished from the case where an agreement is made to alter the seniority territories, in which case there must be approval by Division No. 4, Railway Employees’ Department, AFL–CIO, and the Railway Association of Canada, pursuant to rule 23.31. There is no question of that in this case.
What had previously been three separate seniority lists for employees in the electrical trade at Moncton (Shops, Roundhouse and Coach Yard) were consolidated into one seniority list in 1957. The Company’s letter acknowledging its agreement to the consolidation of those lists, does not set out any particular purpose for which the consolidation was effected, nor does it set out any limitations on the use of the consolidated list. It is the Company’s position, however, that the consolidated list was prepared for use in cases of staff reduction only, and was not intended to affect the exercise of seniority rights except in such cases. The effect of this limitation would be that employees belonged to two seniority groups at the same time: a smaller one, restricted to the point or groups of points where they worked (on the one hand the main shops, and on the other hand the Diesel Shop, Coach Yard and perhaps other operations); and a larger one, being the whole of the material operations at Moncton Terminal (the main shops and all others). They could exercise seniority to apply for vacancies or new jobs only in the smaller group, but in cases of staff reduction, could exercise seniority within the larger groups, once those rights within the smaller group had been exhausted. At the time of the establishment of the consolidated seniority list, it seems that the collective agreement provided generally for "point" seniority only. It would be in the context of such a provision, and not in that of the provision now contained in rule 23.3, that the letter acknowledging agreement to a consolidated seniority list should be read. The use of the consolidated list would appear to have increased the scope of seniority rights in the event of staff reduction, but it is important to note that this increased scope became available to an employee only after his rights of displacement within the smaller group had been exhausted. Thus, it did not substitute one larger seniority group for a smaller one; rather, it provided certain additional seniority benefits to those whose rights within their regular group had been exhausted. It did not create one "seniority terminal" where several had existed before.
Further, the establishment of the consolidated seniority list preceded the provisions of the current agreement, which establish two seniority terminals at Moncton, subject to the exception described above. These provisions were first negotiated in 1965. The earlier seniority list, which consolidated lists of employees at several points in Moncton Terminal, could not properly be regarded as an agreement contemplated by article 23.3.
The Union has relied as well on a number of instances where the Company has posted bulletins or copies of bulletins in both of the "seniority terminals" which it considers to exist at Moncton. This practice might appear to indicate an agreement to the effect that the two terminals were really one. The evidence in this respect does not establish a consistent practice of bulletining vacancies in the manner now sought by the Union. While bulletins may have been issued to several "points" within the Moncton Terminal, and while they may now be issued to both "seniority terminals", this did not constitute an acknowledgement that those "points", or, now, those "seniority terminals", were in reality one point or terminal for the purpose of filling vacancies. The notices referred to the material portions of the collective agreement providing for application from the "point", or, now, "seniority terminal" concerned. It was the practice to bulletin "resultant" vacancies to all points or, in effect, on a "terminal-wide" basis, but the instant case is concerned with the rights of employees on "original" vacancies. It has not been shown that here exists an agreement of the sort contemplated by rule 23.3, which would except the main shops at Moncton from the effect of that article.
For the foregoing reasons it must be my conclusion that the Union has not established its case under the terms of the collective agreement. Accordingly, the grievance must be dismissed.
DATED at Toronto this 19th day of July, 1974.
(sgd.) J. F. W. Weatherill