BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

A. Rotondo

And on behalf of the Union:

A. Rosner

K. Duquette

A hearing in this matter was held at Toronto on February 22, 1985.

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

There is no doubt that the temporary vacancy created by the illness of Mr. Pool was one with respect to which the provisions of article 23.12 of the collective agreement applied. That article is as follows:

There was consultation with the local committee. The vacancy, however, was not claimed by any of "the senior qualified employees", who would have been entitled to it. The reason for this would appear to have been the undesirability of the hours of the assignment in question. No senior employee claiming the job, the company assigned it to a junior employees but not to the junior employee on the mechanics’ seniority list at the point in question.

It was argued by the company that since the job had been offered to the senior employees, who had refused it, there had been no violation of article 23.12, and that no other provision of the collective agreement dealt with the matter, leaving the company free to exercise its discretion in the matter. The company followed what was said to be the past practice of assigning the junior employee in the pool to the job.

In fact, only a small proportion of the mechanics’ jobs at the point in question have as undesirable hours (for most employees, at least), as the one in question. It may be that a practice of assigning the junior pool employee to vacancies unclaimed by senior employees would not lead to complaints in most cases. Where the collective agreement is silent on the matter of work assignment, continuance of a reasonable past practice would not, in most situations, be found to be in violation of the agreement.

In my view, however, when article 23.12 is read with care, it will be seen that it does deal, if not expressly, then by necessary implication with the situation in issue. The article provides that vacancies such as the one which arose in this case "may be claimed by the senior qualified employees from the respective point". The "senior qualified employees" are all of the qualified employees except the most junior. Those employees may claim the job, in order of seniority. They are not required to advance a claim, but may waive their rights to jobs which they do not want. All of the senior employees did so in this case. The scheme of the collective agreement with respect to the exercise of seniority is that senior employees may exercise a right of choice with respect to what they may consider to be desirable jobs, as they become available. There appear to be no provisions contemplating that senior employees may deprived of such positions, for the convenience of the company, where junior employees are available. That is, the acquired benefits of seniority may be retained, subject to qualifications and the availability of work.

It would appear that there were, at the material times, three qualified persons junior to the grievor at the point in question. The junior man, said to be R. Barker, was "forced onto a revolving shift vacancy when he came out of his apprenticeship". That would appear to have been proper, and the conclusion for the purposes of the instant case would be that the job held by Mr. Barker, and that onto which the grievor was forced were equally undesirable. While that conclusion might not in fact be one with which the grievor would agree, I am prepared to assume, for the purpose of dealing with the present case only, that the three revolving-shift jobs should be regarded as equivalent.

The next junior man to Mr. Barker, Mr. Vandusen, was already on a second revolving shift job. The third junior man, Mr. Duquette, "had been placed onto a temporary 4 to 12 shift". This may be thought to have been, relatively speaking, an "undesirable job", but it would appear that to the grievor at least it was not as undesirable as the one to which he was assigned. The grievor had greater seniority than Mr. Duquette, and was entitled, as against him and those junior to him, to the benefits to which his seniority entitled him.

Some time after the assignment in dispute, Mr. Duquette was released from the 4 to 12 shift, and returned as junior man to the pool. He was then assigned to the revolving shift job, releasing the grievor to return to the pool and to his steady day job. That was correct, but in my view the grievor had at all times - by virtue of the provisions of article 23.12 as well as in conformity with the scheme established by the seniority provisions as a whole - been entitled to preference over Mr. Duquette and the other junior employees with respect to vacancies of the sort referred to.

Of course when assignments must be made to a number of undesirable positions, the junior person cannot be assigned to them all. It does not follow, as the company suggested, that "a see-saw situation could develop". Where a job vacancy has been refused by all but the junior qualified employee, the company may assign the junior to the job. As between two "undesirable" vacancies, the senior of the two junior employees would be entitled, under article 23.12, to exercise his choice. In the instant case, junior employees were left unaffected while the grievor, who was not the junior qualified employee on the relevant seniority list, was forced on to an undesirable job. This, I find, was contrary to the provisions of the collective agreement, and in particular of article 23.12.

For the foregoing reasons, the grievance is allowed. As there is no claim for compensation, my award is to declare that there was a violation of the collective agreement in the circumstances described.

DATED AT TORONTO, this 11th day of March, 1985.