(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on August 14, 1984.

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

There is no substantial dispute as to the facts. The crew called at 0300 hours on July 19, 1982, was the full regular Auxiliary crew of eleven men. In such a crew, two of the carmen are usually assigned to kitchen work. In this case, however, the company felt that the workload in the kitchen would be reduced, and one of the carmen who would otherwise have worked in the kitchen was assigned to work on the ground. There is no complaint with respect to that. It was found, however, that there were more employees at the site than anticipated, and accordingly an extra man was required in the kitchen. Rather than reassign one of the employees in the crew working on the ground, the company called an extra man to join the crew, to assist in the kitchen.

The extra man who was called, Mr. Lewis, was first out on the spareboard, having the lowest cumulative overtime hours. The grievor was second out on the spareboard, but had greater seniority than Mr. Lewis. It is contended that the grievor was entitled to be called in the circumstances described, by virtue of clause 4 of Appendix "A" to the Memorandum of Understanding With Respect to Auxiliary and Emergency Service. That provision is as follows:

It is apparent from a reading of Appendix "A" as a whole (the entire Appendix need not be set out), and it is agreed, that for the purposes of clause 4, "the first named employee indicated on the spare list" means the senior employee, in this case the grievor. From the material before me, it appears that a number of persons on the regular Auxiliary list were there by virtue of the application of clause 4 of Appendix "A" that is, they had been senior on the spareboard and had been assigned to the regular list due to a known vacancy – a regular crew member being absent due to illness, vacation or leave of absence.

In the instant case, however, there was no vacancy in the regular crew. The regular crew of eleven persons had been called, and had reported. Had there been a vacancy in the regular crew by reason of sickness, vacation or leave of absence, then it is clear that the grievor would have been entitled to fill such vacancy. Here, there was no vacancy; there was, rather, a requirement for an extra employee for that particular assignment. This was spare work, and for such work employees are called in turn, not in seniority order, from the spare list. This is clear from clause 5 of the Memorandum, which is as follows:

It was argued that Mr. Lewis replaced a Mr. Bystrician, a regular member of the Auxiliary crew, who was on vacation. Mr. Bystrician, however, had been replaced by a Mr. Opaski, who is senior to the grievor. That was a proper application of clause 4 of Appendix "A". In the instant case, however, there was no vacancy in the crew itself; there was simply a need for an extra person, to be called in turn from the spareboard. In the instant case, Mr. Lewis, was the person in line to be called.

There has been no violation of the collective agreement, and the grievance must accordingly be dismissed.

DATED AT TORONTO, this 7th day of September, 1984.

Arbitrator