SHP - 95



Canadian Pacific Limited

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey

A. Manocchio



M.M. Yorston



A hearing in this matter was held in Montreal on March 12, 1981.



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


During the 1980 closedown of Weston Shops for vacation purposes (July 14 - August 11) CP Rail promoted Labourer L. Kozminski to the Machinist Helper classification, and assigned him to operate the trackmobile in the Locomotive Department.


It is the view of the Union that in so doing the Company violated the provisions of Rules 23.15, 23.22 and 25 of Wage Agreement No. 16.

It is the view of the Company that Rules 23.15 and 23.22 were not violated as the grievors were not qualified to operate the trackmobile and that Rule 25 was not violated when it promoted Mr. Kozminski to operate the trackmobile for the four week vacation period at Weston Shops.

The trackmobile, an off-track/on-track vehicle which can be used to move freight cars and locomotives is regularly operated at the location in question by a Machinist Helper, a member of the bargaining unit. The regularly assigned employee was on vacation during the period in question, which was the annual vacation shutdown of the Angus shops. The grievors were not entitled to vacations for the full period of the shutdown, and there was not (apart from the work in question) sufficient work for them in their regular classification of Machinist Helper during that time. Thus, apart from their, vacation entitlements, two of the grievors were demoted to Labourer, and two were laid off during the period in question. At the same time, Mr. Kozminski, a Labourer, was assigned to operate the trackmobile, and was paid at the rate of a Machinist Helper for such work.

The union contends that in these circumstances the company was in violation of article 23.15, 23.22 and 25 of the collective agreement. Those articles are as follows:

23.15 When it becomes necessary to lay off employees for any reason, the force shall be reduced in reverse seniority order as per rule 23.3 unless otherwise provided in craft special rules.

23.22 In the restoration of forces, employees laid off shall be given preference of re-employment in seniority order. A laid off employee shall be notified by registered mail at his last known address and he shall be returned to his former classification. Local Committees shall be furnished with a list of men to be restored to service.

25.1 Labourers, or similar class of workmen, shall not be permitted to do Helpers work as outlined in craft rules if regular Helpers are available but if so used one hour or more shall be paid at Helpers rate for all work performed as Helpers.

It is clear from the seniority provisions of the collective agreement as a whole that employees are not entitled to positions for which they are not qualified. In the instant case, it appears that the grievors were not, at the material times, qualified to operate the trackmobile. The position in the instant case was only a temporary one, but even if it had been one claimed by the grievors under article 23.29 of the collective agreement, it does not appear that any of them had the apparent qualifications which would have entitled him to a trial period. It has not, therefore, been shown that the grievors suffered any loss (since they would not have been given the job in any event), whatever may be said of the assignment of the work to Mr. Kozminski

Since the trailmobile was regularly operated by a Machinist Helper, it may well be that, at least at the location in question, Machinists' Helpers as such would have a first claim (subject to qualifications) to such work. Where such persons are not qualified, however, then they cannot properly be said to be "available" to perform it. In such circumstances, and the instant case is an example, a Labourer may be permitted to do the work, again, of course, subject to qualifications. Article 25.1 expressly contemplates that possibility.

It was argued for the union that the company had not raised the matter of the grievors' qualifications at the proper time, and that the grievors must therefore be considered as being qualified. In my view, nothing in the collective agreement requires that conclusion. The grievors claim that they have been denied work, and in that claim they implicitly assert that it was work they would have been able to do. There is nothing to show, however, that the grievors had undergone the training or taken the tests that would qualify them for such work. In fact Mr. Kozminski had performed the same work on similar occasions in previous years. It was proper, in the circumstances, for the company to assign him to such work again and even if (although I do not here decide the point), the company ought to have advised the grievors of the reason why they were not assigned the work, that would not relieve them of the onus of proving their loss, which onus has not been met. The losses suffered by the grievors (in being demoted or laid off) were not caused by the assignment given to Mr. Kozminski, but simply by their own lack of qualifications.

For the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 17th day of March, 1981.

(signed) J.F.W. Weatherill