SHP – 143
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the "Company")
AND
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
(The "Union")
IN THE MATTER OF THE GRIEVANCES OF EIGHT EMPLOYEES AT WESTON
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
R. Falzarano
D. J. David
And on behalf of the Union:
J. W. Asprey
L. Biniaris
A hearing in this matter was held at Montreal on May 12, 1983.
AWARD
The Dispute and Joint Statement of issue in this matter are as follows:
DISPUTE
Claim by the Union that the 8 Machinists should not have been denied the right to displace Junior Machinists at Winnipeg Diesel Shop.
JOINT STATEMENT OF FACTS
Having been laid off a West Shop on June 11, 1982, Machinists J. Chrol, H. Lofti, V.S. Jorgenson, W. Machalek, A.D. Rosales, J.S. Sidhu, J.C. Simpson, and C. Villamor were disqualified from exercising their seniority to the Winnipeg Diesel Shop.
JOINT STATEMENT OF ISSUE
The Union contends that the Company violated Rules 23.15 and 23.17(b) by not allowing them to displace.
The Company contends that these Machinists were disqualified from exercising their seniority to displace at the Winnipeg Diesel Shop after a fair and objective evaluation in accordance with Rule 23.29 and therefore there was no violation of Rules 23.15, 23.17(b) and 23.29.
Articles 23.15 and 23.17(b) of the collective agreement are as follows:
23.15 When it becomes necessary to layoff 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.
23.17 (b) When layoffs occur, and employee laid off from his respective classification at his seniority terminal, may, within 30 calendar days, displace the junior employee in his respective classification on the basic seniority territory carrying his seniority in that classification with him, except as may be provided in the respective Craft Special Rules. An employee who declines to displace the junior employee in his respective classification on his basic seniority territory under this Rule 23.17, shall be laid off subject to recall to his home seniority terminal.
Reference is also made to article 23.29, which is as follows:
23.29 An employee claiming a position in the exercise of seniority, who in the judgement of the Company cannot reasonable 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.
In 1982, the company closed down its Main Shops for a period of four weeks, in addition to the regular annual vacation period. Employees thus became, subject to the exercise of seniority, subject to layoff for that period. The grievors, employed at Weston Main Shop, sought to exercise seniority at Winnipeg Diesel Shop. On the basis of certain tests, the company concluded that the grievors were not qualified to perform the work available, and accordingly did not permit them to exercise their seniority. The issue is whether or not that constituted a violation of the collective agreement.
There is no issue as to the propriety of the grievors’ layoff from Weston Shops, which, by article 23.3 of the collective agreement, is a separate seniority terminal. It would appear that some fifty-one Machinists, laid off from Weston Shops for the period referred to, sought to exercise seniority as Machinists at Winnipeg Diesel Shop. Twenty-five of these lacked the necessary seniority. Eighteen were accepted, and displaced junior employees. While the grievors had the necessary seniority, the company concluded that they could not reasonably be expected to qualify to perform the duties required within the time set out in article 23.29.
Article 23.29 applies generally to employees claiming a position "in the exercise of seniority", and that is what the grievors were doing in this case. A person seeking to displace another from his job must (assuming his general entitlement to make such a claim) be qualified to perform the work, or at least to have such qualifications as to make it reasonable to expect him to be able to perform it within a certain time. That provision does apply in cases such as this, as other cases have held.
In the instant case, the company’s judgement (which the collective agreement allows it to exercise) was that the grievors could not reasonably be expected to perform the duties involved at the Winnipeg Diesel Shop within the period referred to. Nothing suggests that that judgement was arrived at arbitrarily or in an improper way. Many of those laid off at Weston Shop were, it will be remembered, allowed to exercise seniority at Winnipeg Diesel Shops. The grievors, however, while generally qualified as Machinists, could not reasonably be expected to perform "the duties required" at Winnipeg Diesel Shop. That is clear from their responses to the standardized objective test which was administered, and which related to the work at Winnipeg Diesel Shop, work of a different nature, and involving different equipment from that at Weston Shops. Most of the grievor’s had never worked on a diesel unit before, and none appears to have had any substantial experience in such work. With respect to a great many of the questions asked relating to the equipment, tools and procedures involved, the grievors’ answers were "don’t know". In the circumstances, the company’s determination appears to have been correct, and its judgement properly exercised.
For the foregoing reasons, it is my conclusion that there was no violation of the collective agreement, and the grievances must therefore be dismissed.
DATED AT TORONTO, this 6th day June, 1983.
(signed) J. F. W. Weatherill