SHP 116

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

Canadian Council of Railway Shopcraft Employees and Allied Workers

(the "Union")

 

GRIEVANCE RELATING TO THE SENIORITY OF G. C. GREVE

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

M. M. Yorston

 

 

And on behalf of the Union:

J. W. Asprey

A. Manocchio

 

 

A hearing in this matter was held at Montreal on January 14, 1982.

 

 

AWARD

At the outset of the hearing of this matter the company raised a preliminary objection to the effect that the union had not submitted a Statement of Issue, as required by article 29.14 of the collective agreement. That article is as follows:

29.4 A joint Statement of Issue containing the facts of the dispute and reference to the specific provision or provisions of the Collective Agreement allegedly violated, shall be jointly submitted to the Arbitrator In advance of the date of the hearing. In the event the parties cannot agree upon such joint Statement of Issue, each party shall submit a separate statement to the Arbitrator in advance of the date of the hearing and shall at the same time give a copy of such statement to the other party.

In fact the parties could not agree on a Joint Statement of Issue, and were therefore required to submit separate Statements, in accordance with that article. While I would consider that the requirements of the article are directory rather than mandatory, so that a failure of compliance would not mean an arbitrator had no jurisdiction, it would appear that statements were prepared by each party, but that the union statement was not in fact transmitted to the company nor to the arbitrator. That the statement existed and was intended to be transmitted appears from the parties joint letter to the arbitrator, confirming the arrangements for the hearing. Copies of the union statement were produced at the hearing, and it was apparent that there was no need for the matter to be adjourned, and each party was ready and able to proceed. In my view, the failure to meet the requirements of article 29.14 was corrected, and the matter is properly before me.

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

COMPANYíS STATEMENT OF FACT:

On January 14, 1981, Ogden Machinist G. C. Greve submitted his resignation to take effect on completion of his shift on January 23, 1981, at 1600 hours. Prior to the completion of his shift on January 23, 1981, Mr. Greve notified the Company that he had doubts about leaving his employment with C.P. Rail. He requested a short leave of absence for personal reasons, and resumed active duty on January 28, 1981.

COMPANYíS STATEMENT OF ISSUE:

It is the, Unionís position that Mr. Greve resigned on January 23, 1981, and by so doing forfeited his former seniority, and that his correct seniority date in the classification should be January 28, 1981.

It is the position of the Company that Mr. Greve did not resign and, therefore, he retains his full seniority in the classification.

The union Statement of Fact and Issue is as follows:

UnioníS STATEMENT OF FACT:

At 1600 hours on Friday, January 23/81, Ogden Machinist G. C. Greve voluntarily resigned from the Companyís service. The resignation was to become effective on 800 hours Monday, January 26/81. He was rehired on Wednesday, January 28/81.

UnioníS STATEMENT OF ISSUE:

It is the Unionís position that Mr. Greve resigned on January 26/81 and by so doing forfeited his former seniority, and that his correct seniority date in the classification (Machinists) should be January 28/81.

Mr. Greve, a Machinist, was hired by the company on October 11, 1966. It is his view, and the companyís, that he has been an employee ever since then, and that that should be his seniority date. The union contends that Mr. Greve resigned on January 26, 1981, and was hired anew on January 28, so that January 28, 1981, should be his seniority date.

If, in fact Mr. Greve did effectively resign from his employment, so that the employment relationship came to an end, then the unionís position would, I think, be correct: the collective agreement does not appear to provide any "bridging" provisions with respect to the seniority of former employees. It is service within a separate period of employment which counts. The union referred to other cases in which employees had resigned and had shortly thereafter (in one case, after only three days), been rehired. Their seniority dates were then those of their most recent hiring. It was the unionís view that it was simply applying the same principle in Mr. Greveís case.

On the evidence, however, Mr. Greve did not in fact resign. His case is therefore quite different from the others in this essential respect, and so should not have been considered as comparable to them.

It is true that Mr. Greve at one point intended to resign. He submitted a notice of resignation on January 14, 1981. His last day of work was to have been January 23, 1981. By the time that day came, however (that is, while there is no doubt that the employment relationship still existed), he had second thoughts about the matter, and he spoke to the General Foreman in the afternoon of January 23, asking if he could withdraw his resignation. It is not clear what reply was made to this. Mr. Grave asked the foreman for two daysí leave of absence to consider his position, and to deal with certain personal business. This request was, quite properly, granted. Mr. Greve was, then, on leave of absence on January 26 and 27.

The General Foreman expected Mr. Greve to telephone him over the intervening weekend, but he did not do so, nor did he call in to say that he was not well on January 26. He met with the General Foreman on the morning of January 27, and following that meeting decided to continue in the employ of the company. He returned to regular work on January 28.

It is clear that while the grievor had offered a resignation which would have been effective as of January 26, the resignation was never formally accepted, and was withdrawn before that time. The grievor was given leave of absence for that time, and on January 27 his time card was still in the rack. No entry was made by the company in its records showing a termination of employment, as there was, in fact, no termination of employment.

For all of the foregoing reasons, it is my conclusion that Mr. Greve remained an employee of the company at all material times from the date of his hire on October 11, 1966, and that such is his seniority date. The grievance is therefore dismissed.

DATED AT TORONTO, this 8th day of February, 1982.

(signed) J. F. W. Weatherill

Arbitrator