IN THE MATTER OF AN ARBITRATION
BRITISH COLUMBIA RAILWAY COMPANY
BROTHERHOOD OF RAILWAY CARMEN OF THE UNITED STATES AND CANADA, MOUNT GARIBALDI LODGE NO. 1419
IN THE MATTER OF THE GRIEVANCE of J. Lyons
SOLE ARBITRATOR: Bryan E. Williams
There appeared on behalf of the Union: S. A. Horodyski
There appeared on behalf of the Company: Hugh Collins
A hearing in this matter was held North Vancouver, B.C, on Thursday, November 29, 1979.
This arbitration took place on Thursday, November 29, 1979, in North Vancouver, B.C. It was agreed by both parties that the arbitrator was properly constituted and that the decision of the arbitrator would be binding on them. The question before me is:
Did the Employer violate Rules 5.15, 23.11 (a), (b), (c), and (d), and 23.12 of the collective agreement presently in force between the parties by assigning Carman J. Sergent as additional staff in the Employer’s Locomotive Department in Squamish on May 21, 1979?
The Union maintains that Carman J. Lyons should have been given an opportunity to claim the position by reason of his seniority. It claims, on behalf of the Grievor, compensation equal to the pay received by Sergent for overtime between May 21, 1979, and June 22, 1979. That overtime amounted to 35 hours and 45 minutes.
The Rules in the collective agreement which give rise to this grievance are the following:
5.15 Record will be kept of overtime worked and men called with the purpose in view of distributing the overtime equally.
23.11 (a) When vacancies occur in a designated work area for which replacements are required, or new jobs are created or additional staff is required in a classification in a craft for an expected period of ninety (90) calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than seven (7) calendar days to employees in the classification at the seniority terminal where they are created, and will be awarded to the senior employees, subject to the following rules, the local committee to be consulted.
(b) An employee claiming a position in the exercise of seniority, who in the judgment of the Railway cannot reasonably be expected to qualify to perform the duties required within a period of thirty (30) calendar days or less, shall not be denied such position by appropriate officer of the Railway without prior consultation with the local representative of the craft concerned.
(c) An employee exercising seniority, who, in, the judgment of the Railway can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed thirty (30) calendar days, except that by mutual agreement between the General Chairman and the proper officer of the Railway, such period may be extended up to ninety (90) calendar days, in order to demonstrate his ability to perform the work required.
(d) 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 appropriate officer of the Railway, including the reason for the decision rendered, which shall be subject to appeal in accordance with the applicable grievance procedure.
23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the respective crafts for an expected period of less than ninety (90) calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the local committee to be consulted in each case.
Notwithstanding considerable argument and evidence, it is my opinion that there has been no breach of Rules 5.15 and 23.11. Rule 23.11 applies to "vacancies ... or new jobs ... or additional staff" required for "an expected period of ninety (90) calendar days or more". It is accepted by both parties that the position to which Sergent× was assigned was net expected to last ninety calendar days or more, nor did it last that long. Thus Rule 23.11 has no application to the facts before us.
Rule 5.15 requires that a record be kept of overtime worked "with the purpose in view of distributing the overtime equally". There is no evidence before me that the Employer has failed to keep a record of overtime worked or that it has failed to distribute that overtime equally between the Grievor and Sergent. It may be that the Employer has failed to distribute overtime equally in a general way. That question is, however, not before this arbitrator and as such must remain unanswered for the time being.
It was admitted by one Union witness that Rule 5.15 was included in the grievance solely because the Grievor was claiming overtime pay and the Rule might therefore have some bearing. For the reasons I have mentioned, I find on the facts before me that the Employer has not breached Rule 5.15 of the collective agreement.
Having excluded possible breaches of Rules 5.15 and 23.11, there remains only Rule 23.12 as the foundation for the grievance before me. That Rule requires that when "vacancies occur or new jobs are created or additional staff is required in a classification for an expected period of less than ninety (90) calendar days, such vacancies or new positions may be claimed by the senior qualified employees" and that "the Local Committee must be consulted in each case". The question before me becomes: were the dual requirements of Rule 23.12 met by the Employer at the time it assigned Sergent to the Locomotive Shop on May 21, 1979?
Prior to proceeding further, I wish to make a comment on the nature of the evidence before me. Neither Lyons nor the Foreman who assigned Sergent to the Locomotive Shop appeared as witnesses. The absence of these two key witnesses makes the evidence before me less than entirely satisfactory.
The evidence of the Union is that the job was not bulletined, that the employees were not canvassed, and that the Local Committee was not consulted. The evidence of the Employer is that the Foreman canvassed those employees with more seniority than Sergent and found none who would take the temporary posting. On behalf of the Union, one witness testified that he had not been contacted for the job and that he was senior to Sergent and qualified to do the work. Though much evidence was adduced as to the exceptional qualifications of Sergent, it was never alleged that Lyons was not qualified to do the work and therefore, for the purposes of this decision, it is assumed that he was qualified. On the balance of the evidence before me, I have concluded that while the Foreman may have canvassed employees other than Sergent, he did not canvass all of those qualified employees who were senior to Sergent.
The Employer argues that even if the Foreman failed to canvass the employees, there was no breach of the collective agreement for the reason that Rule 23.12 does not call for employees to be canvassed or for such vacancies or jobs to be bulletined as is required, for example, by Rule 23.11. The Union responds that it has been the Employer’s practice to bulletin the jobs or to canvass the employees. The Employer is correct; Rule 23.12 does not require that the job be bulletined or that the employees be canvassed. It does, however, state that the "senior qualified employees" can "claim" such positions. In other words, it does not matter how the Employer goes about its business, so long as its practice permits "senior qualified employees" to claim the jobs in question. Where it neither bulletins the job, canvasses the employees, nor consults the Local Committee, it risks creating a situation where "senior qualified employees" are effectively denied the right to claim certain jobs such as are guaranteed them by Rule 23.12.
This is precisely what has happened in this case. A "senior qualified employee" was denied his rights under Rule 23.12 by being kept ignorant of the availability of the job to which Sergent was assigned. Rule 23.12 does not state that the Employer is obliged to inform the employees of every job that becomes available under that Rule. However, if it is to have any practical application and it must be assumed that when the parties negotiated this Rule they meant it to have some effect it is essential that the "senior qualified employees" be informed of the existence of jobs if they are to be in a position to claim these jobs. No doubt the need for disseminating this information underlies in part the requirement in Rule 23.12 that "the Local Committee be consulted in each case". If the Employer does not advise the employees, then at the very least it must advise the Union.
The evidence before me is that the Employer neither advised all the qualified senior employees nor consulted the Local Committee at the time this job was available. Thus the Employer has breached that provision of Rule 23.12 which requires that it consult with the Local Committee and, in a more general way, it has breached Rule 23.12 by making it a practical impossibility for "senior qualified employees" to claim the job in question.
The Grievor is therefore entitled to an amount equal to the pay received by Sergent for overtime between the 21st of May, 1979, and the 22nd of June, 1979, while the latter was employed by the Employer in its Locomotive Shop in Squamish.
It is encouraging to note that the Employer has taken steps to insure that in the future jobs coming under Rule 23.12 will be bulletined. It is to be hoped that this practice will prevent the recurrence of grievances similar to this one.
One additional point remains to be made and that is that only the most "senior qualified employee" who would have claimed the job assigned to Sergent has the right to pursue a grievance against the Employer, based on the latter’s assignment of Sergent to the job in the Locomotive Shop on May 21, 1979. Presumably, that person is Lyons. Only one employee could have claimed the job assigned to Sergent and, accordingly, only one employee can grieve his failure to have been placed in a position where he could have claimed that job.
SIGNED at Vancouver, B.C., this 3rd day of January, 1980.
(signed) Bryan E. Williams