SHP - 74
IN THE MATTER OF AN ARBITRATION
Ontario Northland Railway
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF A. BEDARD
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Ottawa on May 8, 1980.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and Issue in this matter is as follows:
In the Matter of a Dispute Between Railway Employees' Department, Division No. 4, A.F. of L. C.I.O. involving Brotherhood of Railway Carmen and Ontario Northland Railway
Joint Statement of Fact
On June 18, 1979, a bulletin was posted advertising for the position of one carman to work in the pool with Saturday and Sunday off. Mr. F. Mepham was appointed to the position on June 26, 1979. He commenced his assignment in the pool on July 5, 1979 and was placed on "spot repair". On that day, Mr. A. Bedard, who already held a position in the pool with Saturday and Sunday off, but working on "heavy repair" requested to displace Mr. Mepham. He was not allowed to do so.
Joint Statement of Issue
Mr. Bedard claims he should have been able to exercise his seniority within the pool to displace Mr. Mepham.
The "Pool" referred to in the joint statement is the Freight pool, formed when the company built a new shop complex at North Bay in 1975. Carmen at North Bay work in one or another of some eight areas. The number of positions in each area varies considerably. Thus, the Rose Mounting Room involves one position. The pool, however, involves some thirty-seven positions. The pool is concerned with freight car repairs. The next most numerous area is the coach Shop, with some seventeen positions, and which is concerned with passenger car repairs.
In most areas, work is performed on more than one shift, and positions vary with respect to hours of work and days off. In the pool, some twenty-one persons work the day shift (8:00 a.m. to 4:00 p.m.) with Saturdays and Sundays off. These persons are assigned to a variety of particular tasks or sets of tasks in the pool: seven are on heavy-repairs; two are checkers; two are air brake men; one is a van supply man; one a material man; two are on spot repairs; two are on light repairs; three men work outside and one is a "Dupont man" outside.
When the new shop was established, vacancies were bulletined on the basis of area, hours and days off. They were not bulletined on the basis of the particular tasks or sets of tasks which an individual might be assigned to perform. Indeed the company does, when circumstances require it, assign persons within an area to perform other tasks within that area than those they regularly perform. Thus, a carman who ordinarily works on heavy repairs might be assigned to spot repairs, for example.
Nevertheless, at the outset, employees who had applied successfully on the bulletin for pool employees, and who had thus become, for instance, pool employees on the day shift with Saturdays and Sundays off were allowed, as between themselves, to bid on particular jobs within the pool, and these were awarded on the basis of seniority. Thus, the initial distribution of tasks was accomplished in a mutually satisfactory manner.
Since that time however, bulletins have indicated that a vacancy was, where it involved the pool, a "pool" vacancy, and the position was described, as a job in the pool, with certain hours and days off. An employee would be assigned within the pool as needed, although it would seem that where possible the wishes of senior employees were accommodated.
In the instant case the bulletin was for a position in the pool, on days, with Saturday and Sunday off. The grievor, who worked on heavy repairs, was already in the pool, and worked days with Saturday and Sunday off. He was not allowed to bid on the job. The job was awarded to Mr. Mepham, an employee junior to the grievor, who was assigned to spot repair. The grievor claims entitlement to that assignment.
Rule 23.14 of the collective agreement provides as follows:
23.14 The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay or hours of work or days off are changed.
The affected employee shall have the right to displace the junior employee in the designated work area of his choice with the shift days off, hours of work and rate of pay of his choice except as may be provided in the Craft Special Rules.
For the purpose of this Rule 23.14 the designated work area shall be as defined in bulletining positions in accordance with Rule 23.11.
Such employee initially affected shall be given, during his regular working hours as much advance notice as possible but, in any event, not less than twenty-four hours. The affected employee shall make his intentions known within forty-eight hours of notification and subsequent displacement shall be made without undue delay. The Local Committee shall be consulted.
Since the grievor's position was not abolished nor his hours of work or days off changed, it would appear that pursuant to the first paragraph of article 23.14, it would not be open to the grievor to displace Mr. Mepham in any event. Even if the grievor did have displacement rights, however, those are to be exercised "in the designated work area of his choice . . . etc.)". The "designated work area" is to be as defined in bulletins issued under Rule 23.11. Rule 23.11, does not deal with the matter of what constitutes a "esignated work area", but simply with the general circumstances in which bulletins are to be issued. It is the bulletins themselves, it would appear, which establish the "designated work area".
Rule 23.11 makes reference to the "Miscellaneous Letters of Understanding" and there is such a letter, appended to the collective agreement and relating to the interpretation of the rule. The letter is as follows:
INTERPRETATION OF RULES 23.11, 23.13 and 23.16
Discussions between the Railways and the Negotiating Committee of Division No. 4 with regards to Rule 23.11 have resulted in the Railways issuing instructions to the supervisor staff that in the instance of the transfer of men from one section (department) of the shop to another for a period of over 90 days when there is no change in the rate and no change in hourly or rest days and where no overall increases in total staff was involved. The Union representatives claimed that such situations were covered by Rule 23.11 and, consequently, the new positions would have to be bulletined and awarded, to the senior qualified employees making application.
The Railways contended that this rule was only intended to apply in respect of staff additions when there were additions being made in a craft in a shop proper and not to addition in a section (department) of a shop with equivalent reductions in another section (department) of the shop with no overall increase taking place. The union representatives were not adamant that bulletins would be issued in every case if this were unnecessary, especially at small points, so long as senior qualified employees desiring to transfer were given the opportunity to do so.
The Railway stated that without prejudices to their interpretation of the meaning of the rule, they would advise all concerned that in such circumstances, senior men desiring to transfer will be allowed to do so subject to qualifications, of course, that this does not apply in respect of staff adjustments within a section (department) of a shop but only to transfers between sections (departments) of a shop where no overall chance occurs in total employment in the shop. This understanding does not prejudice the interpretation of the Unions concerning 23.11.
While that letter does not deal expressly with the particular situation in issue in this case, it is worthy of note that in the situation there dealt with the union sought to require bulletining where transfers were made as between sections (departments) of a shop. In the instant case, the company's position would appear to be even stronger than in, the situation referred to in the letter. If there is doubt as to a right to exercise seniority in a transfer from one section (department) to another, there must be much greater doubt in the instant case, where it is sought to exercise seniority with respect to a particular task.
While, following the original bulletin for carmen to work in the pool on days with Saturday and Sunday off there was a second bulletin - for the successful applicants only - under which they could exercise seniority with respect to choice of tasks, subsequent bulletins were not for positions described in terms of particular tasks but were simply for pool positions with the hours and days off referred to. The "designated work area" was, in my view the pool.
For the foregoing reasons it is my conclusion that the company's understanding of the matter was correct. The grievor already had a position in the pool with those hours, and days off. Certainly, having regard to article 23.14, his position was not abolished, nor where his rate of pay hours of work or days off changed. While he might (as he successfully did) ask for a change of task having regard to his seniority, he was not entitled as of right to claim any particular task pertaining to the position he held.
For the foregoing reasons it is my conclusion that there was no violation of the collective agreement in these circumstances. The grievance must accordingly be dismissed.
DATED AT TORONTO, this 23rd day of May, 1980.
(signed) J.F.W. Weatherill