BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. A. Cameron

And on behalf of the Union:

S. A. Horodyski

A hearing in this matter was held at Montreal on October 23, 1985.

The Dispute and Joint Statement of Issue in this matter are as follows:

The work in question was that of servicing and inspecting incoming and outgoing loads at the Canada Malt Plant, Transcona. That work constituted a regular position, held by a Mr. M. Boyko. During the period in question, the plant operated on a reduced capacity. Very little of the work normally performed by Mr. Boyko was required to be done. Mr. Boyko was not kept at work during the holiday period, and he too was off on paid general holiday leave. Whether or not that was pursuant to the memorandum of agreement between the parties with respect to the annual leave period, the fact is that both Mr. Boyko and the grievor, as well as others, were off work and receiving holiday pay in respect of the period in question, and this grievance raises no issue as to that.

During the course of the holiday period, certain inspection work was required to be done at the Canada Malt Plant. While the material before me does not permit precise identification of the work done or the time required, it would appear to have involved about three hours’ work, on December 29. That work was assigned to Carman R. Moore, an employee at Symington Yard, who was not on holidays at the time. It seems that Mr. Moore also performed certain car inspection at Transcona, but that involved "Symington" cars, which Mr. Moore would have inspected at Symington Yard, but which were held at Transcona due to congestion of cars at Symington over the holiday period when little work was being carried out.

The company did not apply the provisions of article 23.12 in the circumstances, and takes the position that no vacancy was created. Article 23.12 of the collective agreement is as follows:

In my view, there was no "vacancy" within the meaning of article 23.12 in the circumstances of this case. The regular incumbent of the position claimed, Mr. Boyko, was on holidays, and it was not considered necessary to fill the position during that period. Of course, had the work of the position been required substantially to be done and someone assigned to do it, then that would show that there was in fact a vacancy, and that the provisions of article 23.12 ought to have been followed. Had the company considered that there was such a requirement, it might well have retained Mr. Boyko, the incumbent of the position, at work rather than have him take holidays at the time. However that may be, the work of the position was not required to be done except to the very limited extent that Mr. Moore performed the small amount of inspection work which has been referred to. The requirement that that small amount of work be performed does not, in my view, show that there was a "vacancy" in the position within the meaning of article 23.12.

It is clear from the second paragraph of article 23.12 that "annual vacation relief", where required, would be considered a vacancy. While Mr. Boyko was off work on a series of holidays, had it been necessary to replace him, that is, to have the work of his position substantially performed during that period, then I would consider that article 23.12 applied. The brief performance of a part of his tasks on one day, however, does not constitute the requirement of a "vacation relief" position. What was done in the instant case was, I find, simply the performance of certain incidental work, and not the actual filling of a vacant position.

For the foregoing reasons, it is my conclusion that there was no vacancy or new job created in the circumstances, and that the provisions of article 23.12 of the collective agreement did not apply. As I have indicated, had there been a requirement for the work of the position to be done, then subject to any rights to the work which Mr. Boyko might have had, the "senior qualified employee from the respective point" would have been entitled to the assignment. It is not clear that the grievor would in fact have been that employee but since, as I have found, there was no vacancy within the meaning of article 23.12, no determination need be made of that issue.

For all of the foregoing reasons, I find that there was no violation of the collective agreement in the circumstances, and the grievance is accordingly dismissed.

DATED AT TORONTO, this 6th day of November, 1985.