SHP 134
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Ontario Northland Railway
(the "Company")
AND
Canadian Council of Railway Shopcraft Employees and Allied Workers
(the "Union")
IN THE MATTER OF GRIEVANCE OF P. BROUSSEAU
SOLE ARBITRATOR: J. F. W. Weatherill
And on behalf of the Union:
J. W. Asprey
L. Davis
There appeared on behalf of the Company:
A. Rotondo
G. A. Payne
A hearing in this matter was held at Montreal on October 15, 1982.
AWARD
The dispute and Joint Statement of Issue in this matter are as follows:
Dispute:
The Union Contends that Mr. P. Brousseau, the senior applicant should have been awarded the bulletined position of Carman in the Air Brake Room.
Joint Statement of Issue:
On February 16, 1982, a permanent vacancy in the Air Brake Room was advertised. Mr. P. Brousseau and Mr. G. Trudel were the only applicants. The position was awarded to Mr. Trudel, the junior applicant.
It was the Company’s position that the grievor was not qualified to perform the work of the position in question; and that he could not reasonably be expected to qualify to perform the duties required within 30 days. There was, as will be seen, an additional reason for the Company’s not assigning the grievor to the position.
Article 23.29 of the collective agreement is as follows:
23.29 An employee claiming a position in the exercise of seniority, who in the judgement of the Company cannot reasonably be expected to qualify to perform the duties required within a period of 30 calendar days or less, shall not be denied such position by Management without prior consultation with the local representative of the craft concerned.
An employee exercising seniority, who, in the judgement of the Company can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that by mutual agreement between the General Chairman and the proper officer of the Company, such period may be extended up to 90 calendar days, in order to demonstrate his ability to perform the work required.
Should an employee be denied a position being claimed in the exercise of seniority; or should he fail to qualify during a trial period, he and his authorized representative will be entitled to receive an explanation in writing from the proper officer of the Company, including the reason for the decision rendered, which shall be subject to appeal in accordance with the applicable grievance procedure.
Where an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to his former position. This will not necessitate additional bulletins.
It was the Company’s position that neither of the applicants was qualified for the bulletined job. As to the grievor, he had worked as a Carman Apprentice, then as a Carman (accepting premature promotion at the request of the Company), and then again as an Apprentice, in which capacity he completed the formal educational requirements of his apprenticeship. It would appear that he has worked for some time as an Apprentice, but most of this time has been spent as an Upholsterer, and he has relatively little experience in the other aspects of the carman’s craft, although it seems he had some limited experience on certain temporary transfers. I think it could not be said, however, that the grievor was able to perform the duties required in the air brake shops for which particular training is required. The determination which was made by the Company, that the grievor could not reasonably be expected to qualify for such work within 30 days has not been shown to have been unreasonable.
The Company did make that determination, and it did communicate it to the Union. Later, however, in explaining why the job had been given to Mr. Trudel, the junior employee who was also considered not to be qualified, the Company stated:
Please be advised that I can not accept your application for the permanent position in the Air Brake Room. The reason for this decision is that we would not have a qualified upholsterer to replace you at this time.
This reason, in itself, would not be a sufficient reason for refusing a posted job to a qualified applicant. In the instant case, however, that reason must be considered in the light of two particular circumstances. First, it was, as has been noted, the judgement of the Company that the grievor could not reasonably be expected to be qualified to perform the duties required within thirty days, and the grievor was so advised. Second, even if the grievor bad been qualified for the job in question, and so entitled to succeed on his application, since there were insufficient capable upholsterers, the Company, would have been entitled to assign him to perform upholstery work, which was required to be done. There was, it appears, no difference in rate of pay involved.
Thus, the grievor would not have been entitled to the assignment in any event, in the particular circumstances of this case. The decisive consideration, however, is that the grievor, despite his success in some aspects of the carman’s craft, was not yet qualified to perform the work in question with reasonable efficiency, and was not, therefore, entitled to the appointment under the terms of the collective agreement.
There has been no violation of the collective agreement, and the grievance must accordingly be dismissed.
DATED AT TORONTO, this 26th day of October, 1982.
(signed) J. F. W. Weatherill
Arbitrator