SHP Ė 185

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF J. MELBOURNE

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. A. Cameron

 

 

And on behalf of the Union:

L. Biniaris

G. Callendar

 

A hearing in this matter was held at Montreal on November 13, 1985.

 

 

AWARD

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

DISPUTE

Grievance of Machinist J. Melbourne, Moncton, due to being disqualified from a Machinistís position at North Sydney, Nova Scotia.

JOINT STATEMENT OF ISSUE

Machinist J. Melbourne, Moncton, N.B. was laid off Moncton April 1, 1985 and exercised his seniority onto a Machinistís position at CN Marine, North Sydney, N.S.

Machinist Melbourne was disqualified from the Machinistís position at North Sydney, N.S. on April 22, 1985.

The Union contends that the company violated Rules 23.9, 23.29, 53.1 and 53.12 when it disqualified a fully qualified Mechanic (Rules 23.9(c) and 53.1) and retained a temporary Mechanic (Rule 53.12). The Union seeks to reinstate Machinist Melbourne to the position with full pay for all time lost (including overtime), and other rights and benefits:

The Company contends that the above rules were not violated.

The union contends that articles 23.9, 23.29, 53.1 and 53.12 have been violated in this case. Article 23.9(c) defines "fully qualified mechanic", and it is clear that the grievor comes within that definition. The company does not deny that. The real issue is whether or not the grievor, who was allowed to exercise his seniority in the classification of Machinist precisely because he did have that qualification, was properly removed from the Machinist position to which he had exercised his seniority. That issue arises under article 23.29. Article 53.1 sets out what are Machinistsí qualifications. Again, the grievor must be considered to be a Machinist under that provision, and he was so considered. He was not considered qualified for the particular Machinist position in question, but that, again is a matter involving the application of article 23.29. Article 53.12 provides for the situation where qualified Machinists are not available; once again, however, while it is not denied that the grievor was a qualified Machinist in a general sense, the question of substance is whether or not the grievor was properly disqualified from the particular Machinist position in question. That issue does not involve article 53.

Article 23.29 of the collective agreement is as follows:

23.9 An employee claiming a position in the exercise of seniority, who in the judgment 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 judgment 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 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.

The grievor, laid off from his position at Moncton, telephoned the Supervisor of Plant Equipment at North Sydney to ascertain if he could hold a Machinistís position at that Marine facility. As a result of that conversation the grievor was told to report to North Sydney, and he was given a familiarization tour of the facility. The grievor was not denied the position at that time. This is not, then, a case which from the first was treated as coming within the first paragraph of article 23.29. The grievor was given a trial period. Such period would be for not more than thirty days, and there was of course no extension agreed to in this case. After about two weeks, the company concluded that the grievor would not become a productive worker without an extended period of training. The collective agreement does not require that such training be offered an employee exercising seniority to a position.

The companyís conclusion was not reached unfairly. The grievor was assigned to work with another Machinist, and the material before me does not support the conclusion that the company was not co-operative with the grievor, or sought to disqualify him simply so the existing staff could be maintained.

The grievor protested the conclusion the company had reached, and he was then permitted to continue in his position for another week. At the end of that time the company was still of the view that the grievor could not carry out the work required at that facility without extensive training. The grievor was then disqualified from the position. By the fourth paragraph of article 23.29, the grievor would then have been entitled to return to his original position. That position, of course, was one from which he was laid off, and in which there was no work at that time. It would appear that the grievor would, in effect, be in a similar position to that in which he found himself at the time he was laid off, and sought to exercise seniority at North Sydney. That, however, is not in issue in this case.

While the grievor was a "fully qualified mechanic", and classified as a Machinist within the meaning of the collective agreement, it does not necessarily follow that he could efficiently perform, without training, any of the many tasks which fall within the scope of the Machinistís trade. Indeed, if being a "fully qualified mechanic" meant that any Machinist could be required to efficiently perform any Machinistís work whatever, a Machinist who could not efficiently perform any one of the sorts of work set out in article 53.2 as constituting Machinistsí work, would find his job in jeopardy, even although he was in fact performing the work regularly required of him! The fact is that while "a Machinist is a Machinist" and so presumably capable of learning to perform all of the work which might be required of a Machinist, the work involved is very wide in its scope, and the particular work required to be done varies from place to place and from time to time. Indeed, the grievor himself, when interviewed in the company of the Local Chairman, agreed, quite properly, that there were certain jobs at the facility he could not perform, although he could learn them if he had time. That is not surprising, and no discredit to the grievor, who had only recently completed the apprenticeship program.

It is said that other laid-off employees are now reluctant to exercise their seniority to jobs at North Sydney, because of what happened to the grievor. What happened to the grievor, however, was simply the determination in his particular case that he was not able to perform the particular work available there without extended training. Other employees, having perhaps more or different experience might well be able to qualify for such a position within the trial period. It is a question of the particular individual and the particular job. An employee entitled to exercise seniority to it, and who qualifies to perform it within the trial period, is then entitled to the job, even though the previous incumbent might have been thought to perform it better.

If the unionís contention that "a Machinist is a Machinist" were taken to mean that any person holding general qualifications as a Machinist must be taken to be able to perform any Machinistsí work at all without training, then (quite apart from the danger described above for the employees), the provisions for a qualifying period set out in article 23.29 would be meaningless and contradictory. The provisions of the collective agreement, however, must be given meaning. The meaning of the material provisions of article 23.29 is that a person exercising seniority on a position must, to be assigned to the position at all, appear able to qualify for it (such was the grievorís case), and must then in fact qualify for it by performing the work to a reasonable standard within the trial period provided for. In the instant case, the grievor did not so qualify.

There was, I find, no violation of the collective agreement and the grievance must therefore be dismissed.

 

DATED AT TORONTO, this 28th day of November, 1985.

 

(signed) J. F. W. Weatherill