SHP 106
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Canadian National Railway Company
(the "Company")
AND
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
(the "Union")
IN THE MATTER OF THE GRIEVANCE OF L. G. GELDART
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
R. Wiebe
And on behalf of the Union:
J. W. Asprey
L. Biniaris
A hearing in this matter was held at Montreal on June 12, 1981.
AWARD
The Dispute and Joint Statement of Issue in this matter are as follows:
DISPUTE:
Application of Rule 23.14 of the Agreement as it applied to L.G. Geldart when reverted from the position of Temporary Machinist, to that of Machinist Helper
JOINT STATEMENT OF ISSUE
Mr. L .G. Geldart was set up from his regular position of machinist helper to that of temporary machinist at Gordon Yard Diesel Shop in accordance with Rule 53.12 effective 20 October 1979. A reduction was made in the number of machinists at this shop effective 13 June 1980 at which time Mr. Geldart was returned to the classification of machinist helper.
The Union submitted a grievance claiming that Mr. Geldart should have been permitted to displace another employee who remained as a set up temporary machinist but who was junior to Mr. Geldart on the helpers’ seniority list. The Union claimed violation of Rule 23.14 and requested that Mr. Geldart be paid the difference in wages between his rate as helper and the rate paid to temporary machinists.
The Company rejected this claim on the basis that Mr. Geldart’s seniority as a helper can not be so used for displacement purposes and that Rule 23.14 is therefore not applicable in this respect.
Article 53.12 of the collective agreement provides in essence, that where sufficient qualified machinists are not available, the work force may be increased by temporary promotion of other employees within the craft. During 1979, some eight Machinist Helpers were temporarily promoted to do machinists’ work at the location in question. Some of these were temporarily promoted as early as January, 1979. The grievor was the last to be promoted, being promoted in October, 1979. While there is no issue here with respect to the order in which the temporary promotions were made, the fact is that the grievor had greater seniority, as a Machinist Helper, than any of those who were promoted before him. The grievor seeks to rely on that seniority in this grievance, and protests his reduction from the temporary promotion ahead of those who were junior to him as Machinist Helpers, but who had in fact worked longer as machinists.
Under the collective agreement, seniority is by classification. Thus, article 23.3 of the collective agreement makes the following provisions:
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:
Boilermakers – Helpers
Blacksmiths – Helpers
Carmen(and other trades represented – Helpers
by Carmen’s Organization)
Coach Cleaners
Electrical Workers – Helpers
Machinists – Helpers
Moulders – Helpers
Pipefitters – Helpers
Sheet Metal workers – Helpers
Except as may be otherwise mutually agreed between the individual crafts and the Railways 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.
Where Helpers or others are temporarily promoted to be machinists pursuant to article 53.12, they do not thereby become members of the Machinist classification, and do not go onto the Machinists’ seniority list. Only after considerable experience and a qualifying test does that happen, as is clear from the second paragraph of article 53.12, which is as follows:
53.12 … An employee from within the craft promoted to temporary machinist may, after having accumulated four years’ experience as a machinist, be given the qualifying test of the craft and if successful will be placed on the machinists’ permanent seniority list and will be credited with one year’s seniority as of the date he accumulated the four years’ experience and will forfeit all seniority rights in the classification or classifications from which promoted as of that date.
Thus, the Machinist Helpers, junior to the grievor, who had been temporarily promoted before him and had thus worked as machinists longer than him, were still not members of the Machinist classification, and not on the Machinists’ seniority list. By article 23.15, layoffs are to be in "reverse seniority order as per Rule 23.3", which is clearly a reference to the order in which employees stand on their respective classification seniority lists. There are no craft special rules which provide otherwise.
Article 23.14 of the collective agreement is 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, day off, hours of work, and rates 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.
In the instant case, it follows from the seniority provisions set out above that the grievor ought not to have been laid off from the position to which he had been temporarily promoted while employees in his own classification, junior to him, were retained. While it may be thought undesirable, from one point of view at least, that the grievor although recently promoted, should thus "scoop" those who had been promoted before him, the fact is that the grievor had greater seniority, in the appropriate seniority group, than they did. The collective agreement does not establish a separate seniority classification for those temporarily promoted in cases such as this.
For the foregoing reasons, the grievance is allowed. It is my award that the grievor, who has again been temporarily promoted to machinist’s work. be compensated for loss of earnings attributable to his improper lay-off.
DATED AT TORONTO, this 24th day of June, 1981.
(signed) J. F. W. Weatherill
Arbitrator