SHP - 78

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian Pacific Limited

(the "Company")

AND

DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO

(the "Union")

RE: GRIEVANCE RELATING TO THE ALLEGED VIOLATION OF ARTICLE 23.11 AND 23.27 OF WAGE AGREEMENT NO. 16

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

A. Manocchio

 

APPEARING FOR THE COMPANY:

M. Yorston

 

 

A hearing in this matter was held in Ottawa on July 30, 1980.

 

AWARD OF THE ARBITRATOR

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACTS

On March 7, 1979, Machinist A. Gauthier, Angus Shops, was promoted to the position of Assistant Foreman, Maintenance Department. Mr. Gauthier was released from that position October 9, 1979, and resumed his former position of Machinist, Crane Inspection and Repair, on October 12, 1979.

JOINT STATEMENT OF ISSUE

It is the position of the Union that on October 12, 1979, Mr. Gauthier was assigned by the Company to a permanent vacancy without a bulletin having been issued, in violation of Rules 23.11 and 23.27 of wage Agreement #16.

It is the position of the Company that Mr. Gauthier, having completed a temporary assignment on a Supervisory position, returned to his former assignment in accordance with the usual practice and that there was no violation of the Collective Agreement.

The background of the case is this. Mr. Gauthier, who joined the maintenance department in 1977, had been mainly involved in the inspection and repair of overhead cranes in the shop complex at Angus Shops. On March 7, 1979, as indicated in the Joint Statement, Mr. Gauthier was promoted to the position of Assistant Foreman in the Maintenance Department. That is a position excluded from the bargaining unit.

One issue which is in contention in this case is as to the nature of Mr. Gauthier's appointment as Assistant Foreman, and in particular, whether it was a, "temporary" position or not. In the instant case, I decide that question having regard to the materials before me and to the particular circumstances of the case. The question is one which might involve a number of other considerations than arise here, and the determination thereof should not be regarded as definitive.

It is the company's position that Mr. Gauthier's promotion was to a "temporary position" of Assistant Foreman. The position, it appears was created so as to assist in managing a backlog of work which had accumulated, and it was the company's intention to dispense with the position as soon as the maintenance work was being handled on a current basis. At the time of the appointment, the entry made by the company on Mr. Gauthier's employment record was "Asst. Foreman & Mach.", meaning that he was considered to hold two classifications, and he was shown as having a "dual rate". While such an entry may have served the company's administrative purposes, it is not at all clear that it properly reflected the requirements, explicit or implicit; of the collective agreement. An employee is either in or out of the bargaining unit at any given time; either he has managerial duties and responsibilities or he has not. In the instant case, it seems clear that Mr. Gauthier was appointed Assistant Foreman, an excluded position. As such, he was no longer in the classification of Machinist, although no doubt his qualifications therefor would remain. Further, the duration of the appointment was unknown, although it was anticipated. that it would exceed ninety days.

While the company may have considered this a "temporary" appointment, it was in fact of indefinite duration. It was not "temporary" in the sense of having a fixed, or even a "brief" term.

There is nothing in the collective agreement by way of an explicit definition of a "temporary" appointment to an excluded position, and in my view the fact of the matter is simply that Mr. Gauthier was appointed Assistant Foreman, the company hoping that one day the backlog of work would disappear, and with it the need for the appointment.

As a result of the appointment of Mr. Gauthier, there was a need for a Machinist in the maintenance department. Such a position was bulletined, and there was no indication that the position was to be temporary. This is further evidence that the "temporariness" of Mr. Gauthier's appoint ment was really a function of the company's hopes. The situation cannot properly be compared with that where an employee is temporarily promoted to fill a vacancy caused by a vacation, or a leave of absence, or an illness of a certain anticipated duration.

The vacancy in the position of Machinist, created by the promotion of Mr. Gauthier, was filled by a Mr. Coucheron, the successful applicant on the job bulletin. On August 20, 1979, Mr. Gauthier went on vacation and Mr. Coucheron was promoted on a properly temporary basis to replace him. When Mr. Gauthier returned from vacation, however, he was assigned to replace the "permanent" Assistant Foreman, Mr. Martel, while the latter was on vacation, and Mr. Coucheron stayed on as an Assistant Foreman. This was, perhaps, an extension of his temporary promotion. Then on Mr. Martel's return, Mr. Gauthier was returned to the bargaining unit.

There was nothing improper in that. Assistant Foreman is an excluded position, and the company's decision no longer to retain Mr. Gauthier in such a position is not in question. It was Mr. Coucheron who, thereafter, was an Assistant Foreman, whether on a temporary basis or otherwise. When Mr. Gauthier was returned to the bargaing unit, however, he was simply returned to the position of Machinist in the maintenance department. This was the position he had formerly held, and in which Mr. Coucheron had succeeded him on an apparently permanent basis, as has been noted. The issue in this case is whether or not it was proper for the company to assign Mr. Gauthier to the position of Machinist in the maintenance department in that manner.

The matter is governed by article 23.27 of the collective agreement. That article is as follows:

23.27 An employee holding seniority under this Agreement and who is presently filling or who may in the future be promoted to an official or any position with the Railway which is excepted from any provision of this or any other Collective Agreement, will have his name continued on the seniority list of the group from which promoted at his home seniority terminal and will retain seniority rights and continue to accumulate seniority while so employed. The General Chairman shall be advised.

If released from such official or excepted position, the employee must within 30 days after such release, either displace the junior employee in his seniority group on his basic seniority territory or exercise his seniority to a vacancy or a newly created position at his home seniority terminal; if he fails to do so he shall forfeit his seniority. The General Chairman shall be advised.

An employee temporarily promoted to an official or excepted position will, within 7 calendar days of release from such temporary employment. exercise his seniority in his craft at his home seniority terminal. The appropriate officer of the Company shall advise the respective local representative of the crafts concerned of such promotions, including the expected duration thereof.

It is clear from the first paragraph of that article that Mr. Gauthier, upon his appointment to the excepted position of Assistant Foreman retained, and continued to accumulate, seniority.

The second and third paragraphs deal with the situation where such a person is returned to the bargaining unit. I have indicated my view that the appointment of Mr. Gauthier as Assistant Foreman was not a "temporary" promotion within the meaning of the collective agreement, much as the company may have hoped it would be temporary, in the sense that it hoped the need for the job would disappear. Accordingly, I consider that the matter is governed by the second paragraph of article 23.27.

Under that paragraph, an employee in Mr. Gauthier's position is not simply to be returned to his former job; rather, he must do one of two things, within 30 days: he must either displace the junior employee in his seniority group, or he must "exercise his seniority" to a vacancy or a newly created position at his home seniority terminal. Mr. Gauthier did not displace the junior employee; rather, he was simply assigned to the vacancy which arose as a result of the promotion of Mr. Coucheron. That vacancy, of course, was in Mr. Gauthier's own old job.

The company was, however, bound to bulletin that vacancy pursuant to article 23.11, which is 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).

Within a main shop, successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. This period may be extended to 30 days by mutual agreement with the General Chairman of the Craft concerned.

The company did not post the vacancy, but simply assigned Mr. Gauthier to the position. This was, I find, a violation of the collective agreement. The vacancy ought to have been bulletined, and Mr. Gauthier, in the exercise of his rights under article 23.27, could have applied to "exercise his seniority" with respect to it. He might or might not have been successful. If not, he could have sought to exercise seniority with respect to any other vacancy occuring within the time referred to in article 23.27, or he would then have had to displace the junior employee or forfeit his seniority.

If I am wrong with respect to the nature of Mr. Gauthier's promotion, and if it was in fact a "temporary promotion" (although I find that it was not), he was entitled to "exercise his seniority within his craft" within seven days. The assignment of Mr. Gauthier to his former position was not the "exercise of his seniority within his craft"': there were, it appears, others of similar qualifications but greater seniority. In any event, nothing in article 23.27 displaces the requirement of article 23.11 that vacancies, such as that created by the appointment of Mr. Coucheron, be bulletined.

Even if it be considered that Mr. Coucheron's promotion was "temporary", so that article 23.12 rather than article 23.11 applied with respect to the vacancy created thereby, it would not help Mr. Gauthier. Such vacancies "may be claimed by the senior qualified employees". In the absence of such claim, an employee may be assigned, but the assignment is merely a temporary one. However the matter be considered, the company was not entitled simply to give Mr. Gauthier his old job back.

It is my conclusion, for the foregoing reasons, that the company was in violation of the collective agreement, and I so declare. The relief sought by the union was that the job be posted and awarded to the senior qualified applicant. That would, as a general matter be appropriate, but it would appear that Mr. Gauthier has left the employ of the company. If the vacancy thus created has in fact been bulletined, then no further action is necessary. If it has not been bulletined (and if there is in fact a vacancy), then that should be done forthwith.

DATED AT TORONTO, this 1st day of August, 1980.

(signed) J.F.W. Weatherill

Arbitrator