BETWEEN:

AND

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Union: A. Rosner

C. Robert

There appeared on behalf of the Company: D. J. David

A. Y. deMontigny

A hearing in this matter was held at Montreal on May 28, 1986.

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

The Company denies the Union’s contention and request. The grievor, who has been employed by the company since 1964, has been employed as a Machinist since 1972, working in the Frog Shop at the company’s Weston Shops. There are some 23 Machinists employed there. Eight of these have been selected and trained to be members of the frog-blasting crew, travelling from the shops to perform a steel-hardening procedure on frogs (heavy steel assemblies which permit flange wheels to move from one track to another at switches), by a blasting method. Employees are trained for this work and when trained and in possession of a provincial blaster’s licence, receive a higher rate of pay while performing such work.

The evidence is that blasting is performed irregularly, and for a part of the year only, from May to October. As the Foreman of the Frog Shop put it, "you might go blasting 30 to 35 times in a season". Thus, I do not consider that any vacancy (and there was a "vacancy" within the meaning of Rule 23.11) for such position was a vacancy to which Rule 23.11 applied, since it was not a vacancy for an expected period of ninety calendar days or more. Thus, the position was not one which was required to be bulletined.

The company had not in fact bulletined such positions during the ten years or so in which the procedure has been used. It has, rather, approached, in order of seniority, those employees whom it considered suitable to perform the work, or to receive training for it. It did not approach the grievor, although it did approach employees junior to him. Mr. Muir had performed the work in previous years, and had become qualified for it, although he was junior to the grievor. There had been no timely grievance about that, nor had there been any grievance with respect to the company’s failure to bulletin the position.

This is, rather, a situation to which the provisions of Rules 23.12 and 23.29 apply. Rule 23.12 deals with what might be called temporary vacancies, being those for an expected period of less than ninety calendar days. Such vacancies may be claimed by "the senior qualified employees". That rule also provides that the local committee is to be consulted in each case. In the instant case, the company did not consult the local committee. In this respect, it was clearly in breach of the collective agreement. Since, however, it was following a practice which the union had, until that point, condoned, the relief to be granted in respect of this breach of the agreement should be declaratory only,

Rule 23.29 contemplates a period of thirty days within which employees exercising seniority may qualify to perform the duties required. Where, in the judgment of the company, an employee cannot reasonably be expected so to qualify, there is to be "prior consultation" with the local representative of the craft concerned. In the instant case there was no such consultation. It would appear, however, that the grievor’s request to be assigned to the job was not made until after the assignment of Mr. Muir had become known. The denial of the position to the grievor might not, in these circumstances, be in breach of the collective agreement, but it is clear that the company’s position was that the grievor would not have been approached with respect to the job in question. There was no compliance at least with the spirit of Rule 23.29. Here too, however, what the company did here was no different than what it had been doing for some years, without complaint from the union. Again, it would be my view that if there was a violation of the collective agreement in this respect, any relief in the instant case would be of a declaratory nature only.

It was argued by the company that the matter was not arbitrable as it was raised by the grievor only as a "complaint". It has, however, been dealt with by the parties as a grievance, and has been submitted to arbitration as such. No preliminary question in that respect is suggested in the Joint Statement. In my view, any defect in the form of the grievance must be taken to have been waived, and I consider that the matter is properly before me for determination.

The question of substance which is raised by the grievance is whether or not the grievor was qualified, or could have become qualified within the appropriate time for the position in question.

The answer to this question depends on the definition of what was in fact the position in question. If it was indeed a position of frog blaster, I think it is clear that the grievor was not qualified to perform it. There is no suggestion that he had had the requisite training or that he held the requisite licence. A determination that he would not have qualified within the requisite period would not be unreasonable. If on the other hand, the position was that of "frog blaster trainee" (although the position was not so described by the company), then it would be my view that the grievor was in fact qualified. Certainly the company has not furnished an adequate explanation for its determination that he was not.

The grievor was a qualified Machinist, and the company seeks frog blasters from among the Machinists at the shops. Among the qualifications of a frog blaster, according to the DuPont Blaster’s Handbook, on which both parties rely, are "intelligence and common sense", and the following, relied on particularly by the company:

In support of its view that the grievor was not suitable for work as a frog blaster, the company relies on the fact that the grievor was assessed ten demerits for insubordination in October, 1979 (and that he was unrepentant), and that he was issued a caution for failure to carry out instructions in January, 1981. The incident leading to the latter discipline is said to have indicated a lack of cooperation on the grievor’s part. This evidence, together with certain material suggesting that the grievor has a tendency to be cantankerous at times, is not, in my view, sufficient to establish that his personality was such as to render him incapable of performing the work of a frog blaster safely and efficiently. I have already indicated that the grievor was not in fact qualified for the position itself. Having regard to the material before me, however, it is my conclusion that he was qualified for the training program. If, in the course of that program, it became apparent that he did not work well with others and that he was uncooperative or otherwise behaved unsafely in the performance of frog blasting work, or if he failed to obtain the necessary licence at the appropriate time, then certainly the company would be entitled to remove him from the program and from the position. The fact of past discipline, however, does not establish permanent incapacity. It does not appear that the grievor in fact had any current discipline record at the material times, in which case it ought to have been concluded that discipline had been effective.

For the foregoing reasons, it is my conclusion that it would have been improper to deny the grievor a position of "frog blaster trainee", as against any junior employee. It was not, however, open to the grievor to displace any junior employee who had already qualified as a frog blaster: the grievor had, in effect, let such opportunity pass. The reasons advanced by the company for its refusal even to approach the grievor with respect to training as a frog blaster are, as I find, clearly insufficient, and refusal to accept him for training where such a position arises would, in my view, be contrary to the provisions of the collective agreement.

Accordingly, my award in this matter consists of the following declarations:

1) the company was in violation of the collective agreement in not discussing with the union the grievor’s rejection for a "trainee" position, once the grievor’s interest in such had become known; and

2) it would not be proper for the company to reject the grievor’s application for such position on the grounds advanced. The material before me does not indicate that the grievor is entitled to compensatory relief in respect of this grievance, arising out of the assignment of Mr. Muir.

DATED AT TORONTO, this 23rd day of June, 1986.

Arbitrator