SHP - 47
IN THE MATTER OF AN ARBITRATION
THE RAILWAY ASSOCIATION OF CANADA
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, A. F. OF L. - C. I. O.
IN THE MATTER OF A DISPUTE INVOLVING ONTARIO NORTHLAND RAILWAY AND INTERNATIONAL ASSOCIATION OF MACHINISTS CONCERNING THE SENIORITY OF A. PINCIVERO
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey, and others
APPEARING FOR THE COMPANY:
A. Rotondo, and others
A hearing in this matter was held in Montreal on November 9, 1977.
AWARD OF THE ARBITRATOR
The joint statement of fact and the joint statement of issue in this matter are as follows:
JOINT STATEMENT OF FACT:
On July 19, 1976, Mr. Anthony Pincivero was hired from outside of the Railway by the Facilities Maintenance Department of the Ontario Northland Railway replacing Mr. L. Owens, promoted, to work as a maintainer in the Maintenance of Way Repair Shop. His name was placed at the bottom of the Maintenance of Way Repair Shop Seniority List.
JOINT STATEMENT OF ISSUE:
The union claims that Mr. A. Pincivero's name should also appear on the Mechanical Department Seniority List and maintains that the provisions of Rule 23, Wage Agreement No. 16 and Sections 2 and 4 of the October 29, 1956 Local Agreement were violated. The Railway takes the position that since Mr. Pincivero was hired directly from outside of the Railway his name should appear only on the Maintenance of Way Repair Shop Seniority List.
* * * * *
There is no doubt that it was proper for the company, in the circumstances (no employees bidding on the job postings), to hire an employee to work in the classification of Maintainer in the Maintenance of Way Repair Shop. Under an agreement made between Ontario Northland Railway, the International Association of Machinists and the International Brotherhood of Electrical Workers, dated October 29, 1956. Maintainers are to be employed in a ratio of the Machinists to one electrician. Mr. Pincivero is a member of the machinists' union and his dues are remitted to the International Association of Machinists.
It is not necessary, for the purposes of this case, to make any determination of the question whether Maintainers employed in the Maintenance of Way Repair Shop are members of the bargaining unit represented by Division No. 4, Railway Employees' Department, A.F. of, L. - C.I.O., and covered as such by Wage Agreement No. 16 or whether they are members of a bargaining unit of "Maintainers" represented by the International, Association of Machinists and/or the International Brotherhood, of Electrical Workers, and covered by an agreement between those unions and the company dated. October 29, 1956. The parties are agreed that the agreement just mentioned does apply in respect of Maintainers, and that agreement refers to what is now Wage Agreement No. 16 as governing "working conditions, rates of pay, grievances, etc.".
Article 2 of the agreement dated October 29, 1956 provides that Maintainers are to be drawn from the crafts represented by the International Association of Machinists and the International Brotherhood of Electrical Workers by bulletin posted on Mechanical Department bulletin boards. Such bulletins were posted, but no application were forthcoming. It is agreed, as has been noted, that the company was then entitled to hire someone from outside, as it did: There has, then, been no violation of article 2 of the October 29, 1956 agreement.
Section 4 of the October 29, 1956 agreement is as follows:
4. A separate seniority list will be established for employees covered by this agreement and seniority as Maintainer will commence on date of transfer to such classification. (J.A. Charrette to be allowed seniority as Maintainer from June 1, 1945)
There is a separate seniority list kept for the employees (that is, Maintainers) covered by that agreement, and Mr. Pincivero's name was properly placed on such list, his seniority commencing on his date of hire (as noted above, there was no "transfer") in the classification. There is no doubt that Mr. Pincivero is properly shown on the seniority list for the Maintainer classification. There has been no violation of Article 4 of the October 29, 1956 agreement.
The October 29, 1956 agreement deals only with the classification of Maintainer in the Maintenance of Way Department. It provides, as has been noted, for a separate seniority list of employees in that classification. It also provides for the retention of "original seniority in his respective craft": (article 3 (a)). This is consistent with article 2 of the agreement which contemplates that Maintainer will be drawn from the machinists' or electricians' craft. Since Mr. Pincivero had been hired from outside, there was no seniority for him to retain in any other department or classification. It is the union's position, however, that he should accumulate seniority as a Machinist from the time of his entry into service, that is, that his name should appear on the Mechanical Department seniority list, as a Machinist.
Mr. Pincivero was qualified for the classification of Maintainer, and he had some, and may since have acquired all of the qualifications required of a Machinist in the Mechanical Department. Whether or not Mr. Pincivero was in fact qualified to be a Machinist is not the issue: even if he did have such qualifications, the question would remain whether he was entitled to be carried on the Machinists' seniority list.
The following provisions of article 23 - Seniority - of Wage Agreement No. 16 are material:
23.1 A new employee shall not be regarded as permanently employed until he has completed 65 working days cumulative service. In the meantime, unless removed for cause which, in the opinion of the Company renders him undesirable for its service, the employee shall accumulate seniority from the date he entered the classification in the craft, and shall be regarded as coming within, the terms of this Agreement.
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:
Carmen (and other tradesmen Helpers
represented by Coach Cleaners
Electrical Workers 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 Rule 23.3 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 provident or insurance fund regulations.
In the instant case, the situation is that Mr. Pincivero did not enter "the classification" - either Machinist or Helper - in "the craft" - that (?) machinist - covered by Wage Agreement No. 16. He entered a different classification - Maintainer - specifically provided for the October 29, 1956 agreement. By article 11 of that agreement, "Maintainers will not be classified as Machinists or Electricians but each Maintainer will do the work of both crafts to the best of his ability." From these provisions, it cannot be inferred that a Maintainer is, as such, entitled to accumulate seniority as a Machinist of Electrician (or both,) because he is neither. He will retain his position, if he has one, on a Machinists' or Electricians' seniority list, but he is not entitled to a position on such list merely by virtue of his being hired as a Maintainer, whatever his qualifications may be.
Whether or not. this arrangement is "fair" is a matter for the parties to consider in their negotiations, if they wish. It is not a matter for arbitration. It may be noted that if a Machinist sought to become a Maintainer, his name would not go on the Maintainers' seniority list until he was actually transferred to that classification. The Maintainers' situation appears simply to be the converse of that. There might, as the company suggests, be thought to be some unfairness to Helpers, who seek to become Machinists, if Maintainers, whose length of service as, employees may be much less, can benefit from being on the Machinists' seniority list at the same time as they are on the Maintainers' seniority list, without ever having become Machinists. In the analogous case of Mechanics employed at the company's Bus Garage, with respect to whom a separate agreement was also made (between the company and the International Association of Machinists) it is explicitly provided that employees laid off "will be given consideration for employment in other departments of the railway if there are any vacancies and before new men are hired." There does not appear to be anything inherently unfair in such an arrangement.
I am unable to find any provisions in article 23 or elsewhere in Wage Agreement No. 16 which would require that a person hired as a Maintainer would be entitled, as such, to a place on the Machinists' seniority list. It is clear that a person who had been a Machinist would retain his position on the list, but no such benefit is provided for the person newly hired in another classification.
For the foregoing reasons, the grievance is dismissed.
DATED at Toronto this 15th day of November, 1977.
(signed) J.F.W. Weatherill