SHP - 28
IN THE MATTER OF AN ARBITRATION
BETWEEN
CP RAIL
(the "Company")
AND
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
(the "Union")
RE:
GRIEVANCE OF R. WILSON
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
M. McClenaghan
APPEARING FOR THE COMPANY:
J. A. McGuire
J. E. Cameron
A hearing in this matter was held in Montreal on April 11, 1975.
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF ISSUE
The Railway Employees’ Department, Division No. 4, claims that the provisions of Rule 23.11 of Wage Agreement No. 16 were violated when Machinist R. Wilson was denied the position of Lead Hand in the Millwright Department at Ogden Shops, Calgary.
JOINT STATEMENT OF FACT
On December 19, 1972 Bulletin No. AWM–63 was posted in accordance with the provisions of Rule 23.11 of Wage Agreement No. 16 calling for applications to fill a Lead Hand vacancy in the Millwright Department at Ogden Shops.
On receipt of all applications, including that of Mr. R. Wilson, the Company reviewed the qualifications of the employees concerned, with the local Committee. In the absence of an agreement, after consultation with the Committee concerning the qualifications of Mr. R. Wilson, the Company appointed the third senior applicant to fill the Lead Hand vacancy, as it was the Company’s position that Mr. Wilson was not qualified.
The Union contends that the Company violated the provisions of Rule 23.11 when it failed to appoint the senior applicant, Machinist R. Wilson, to fill the Lead Hand vacancy.
The Company contends that the Lead Hand vacancy in the Millwright Department at Ogden Shops was bulletined and awarded in accordance with Rule 23.11.
Rule 23.11 calls for the bulletining of certain positions, and provides that they shall be awarded to the senior employee, subject to Rule 23.29. Rule 23.29 provides, inter alia, that an employee claiming a position in the exercise of seniority, who in the judgment of the Company cannot reasonably be expected to qualify to perform the duties required within a period of 30 calendar days or less, shall not be denied such position by management without prior consultation with the local representative of the craft concerned.
In this case the job which was bulletined in accordance with the collective agreement was that of Lead Hand Machinist. The nature of the work was described in the bulletin as follows:
Assistant Millwright Foreman to supervise assigned work and to order required materials. A good working knowledge of Millwright work and work equipment is essential. Must be physically able to supervise work on overhead cranes and such other off the ground work as required at Ogden Shops.
The grievor was the senior applicant and would, if qualified, be entitled to the appointment. His age would not properly be a factor to be considered. He was a "fully qualified mechanic" within the meaning of Rule 23.9 (c). It was the Company’s position, however, that he was not sufficiently qualified for the job in question. There was, it seems, consultation with the Union as required, by Rules 23.11 and 23.29. The issue to be decided now is whether the Company exercised its judgment properly.
It is to be noted that under article 23.29 the determination of an employee’s qualifications is one to be made by the Company in the exercise of its judgment. There is no evidence in this case that that judgment was exercised in an arbitrary or unfairly discriminatory fashion. Rather, the Company based its decision primarily on the fact that the grievor’s work experience had not been directly related to the requirements of the job in question. As an apprentice, some forty-odd years prior to the posting, the grievor had worked in the Millwright Department for a period, as a part of his apprenticeship training. Since 1936, however, he had not worked in the Millwright Department. During thirty-five years as a machinist, he had not performed millwright duties. In these circumstances, it would be wrong for an arbitrator to conclude that the Company could not properly conclude, as it did, that the grievor was not qualified for a job whose duties are described as those of "Assistant Millwright Foreman", and which calls for acknowledge of millwright work and of the operations of the Millwright Department.
On the material before me, it cannot properly be said that the Company exercised its judgment under the collective agreement improperly, or that there was any violation of the agreement. Accordingly, the grievance must be dismissed.
DATED at Toronto, this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill
Arbitrator