SHP 207

IN THE MATTER OF AN ARBITRATION

BETWEEN

BRITISH COLUMBIA RAILWAY COMPANY

AND

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 170

IN THE MATTER OF THE GRIEVANCE of S. Malleapah

 

 

SOLE ARBITRATOR: Bryan E. Williams

 

 

There appeared on behalf of the Union: Michael Suter

 

 

There appeared on behalf of the Company: Daniel M. Pysh

 

 

A hearing in this matter was held North Vancouver, B.C, on Friday, December 11, 1981.

 

AWARD

This arbitration took place on Friday, December 11, 1981 in North Vancouver, B.C. It was agreed by both parties that the arbitration was properly constituted and that the decision of the arbitrator would be binding on them.

The question before me is:

Did the Company violate Rule 23.20 of the Collective Agreement when a Machinist junior to the grievor was recalled to service at Prince George following a period of layoff and if so, to what if any compensation is the grievor entitled?

The Union maintains that the grievor, Mr. S. Malleapah, a Machinist on lay-off from his home seniority terminal in Squamish, should have been recalled to service in Prince George under Rule 23.20 of the Collective Agreement instead of Mr. C. E. Fedoruk who was recalled to his home seniority terminal in Prince George. Mr. Malleapah has a seniority date, January a, 1919 and Mr. Fedoruk has a seniority date, March 31, 1981.

Rule 23.20 reads as follows:

23.20 In the restoration of forces, employees laid-off shall be given preference of re-employment in seniority order. A laid-off employee shall be notified by registered mail at his last known address and he shall be returned to his former classification. Local Committees shall be furnished with a list of men to be restored to service. Where Royal Mail is used, postmark will determine date of advice to employee.

Counsel for the Union argued that the grievor had indicated that he wished to exercise seniority on the system in accordance with Rule 23.16, however during the thirty day period following his lay-off, there were no junior machinists working that were junior to him at any other point on the system.

Rule 23.16 reads as follows:

23.16 When layoffs occur, an employee laid-off from his respective classification at his seniority terminal, may, within thirty (30) calendar days, displace the junior employee in his respective classification on the system carrying his seniority in that classification with him, except as may be provided in the respective craft special rules. An employee who declines to displace the junior employee in his respective classification on the system under this clause, shall be laid-off subject to recall to his home seniority terminal.

The Union stated that after Mr. Fedoruk was recalled, the grievor advised the Company that he wished to exercise seniority to displace Mr. Fedoruk at Prince George but was refused on the grounds that there was no provision in the Collective Agreement permitting such a move.

The Union argued that there were no junior employees to the grievor that he could displace within the thirty calendar days provided for in Rule 23.16. However, once a junior employee was recalled, the thirty day provision of Rule 23.16 automatically commences on the date of recall.

Counsel for the Company argued that, while Rule 23.20 provides for recall in seniority order, the Rule is silent as to whether an employee is recalled in accordance with system seniority or terminal seniority. He further argued that Rule 23.20 cannot be viewed in isolation from the other recall provisions of the Collective Agreement which refer to "recall to his home seniority terminal."

The other Rules dealing with recall are as follows:

23.16 When layoffs occur, an employee laid off from his respective classification at his seniority terminal, may, within thirty (30) calendar days, displace the junior employee is his respective classification on the system carrying his seniority in that classification with him, except as may be provided in the respective craft special rules. An employee who declines to displace the junior employee in his respective classification on the system under this clause, shall be laid off subject to recall to his home seniority terminal.

23.18 A laid off employee who displaces another employee on the System, shall retain his seniority rights at his home seniority terminal in accordance with Rule 23.16 and shall be subject to recall to his home seniority terminal in seniority order for vacancies of expected duration of ninety (90) calendar days or more. An employee who declines to accept such recall within seven (7) calendar days shall forfeit his seniority rights at his home seniority terminal. An employee who accepts recall to his home seniority terminal within seven (7) calendar days will return thereto within fifteen (15) calendars days from the date of his acceptance.

23.22 A laid off employee who has not displaced in accordance with Rule 23.16 shall retain his seniority rights in his respective classification at his home seniority terminal and shall be subject to recall to his home seniority terminal in seniority order. If the employee declines to accept recall to vacancies of an expected duration of sixty (60) calendar days or more at the end of seven (7) calendar days, unless satisfactory reason is given therefore, shall forfeit his seniority and notwithstanding the provisions of Rule 23.27, his name will be stricken from the seniority list and he will no longer be considered as an employee of the Railway.

While the Union argued that the grievor, under Rule 23.16, should have the right to displace a junior employee in another terminal once that junior employee is recalled, and that the thirty day period should start from the recall date, there is no evidence that a recall and displacement has ever been conducted in this manner. There is no doubt that if, for example, the junior employee had been laid-off and recalled within the grievorís first thirty days of lay-off, the grievor could have exercised his displacement right.

As well, the Union argued that System seniority prevails under Rule 23.20. The senior employee on the System should have been recalled to Prince George and once recalled could have declined the recall at his home seniority terminal at Squamish. There is no evidence that a recall has ever been conducted in this manner.

Evidence indicated that it was a practice to recall to home seniority terminals and this is substantiated by all of the recall provisions of the Collective Agreement.

The only references to displacement of a junior employee is the Collective Agreement is at the time of lay-off. There is no reference to displacement at the time of recall.

There is no provision in Rule 23.16 or anywhere else in the Collective Agreement that would allow the grievor to exercise his System seniority at the time of recall except within the first thirty days of his lay-off.

Rule 23.20 provides for recall of laid-off employees in seniority order, but is silent as to whether an employee is recalled in accordance with System seniority or Terminal seniority.

However, Rule 23.20 cannot be viewed in isolation from the other recall provisions of the Collective Agreement. Rules 23.16, 23.18 and 23.22 all clearly spell out that employees are subject to recall "to his home seniority terminal".

The past practice of recall has been to home seniority terminal. While Rule 23.16 is silent on the rights of employees who are unable to exercise their seniority on the System and Rule 23.20 is silent as to whether an employee is recalled in accordance with System seniority or Terminal seniority, Rule 23.22 is explicit:

23.22 A laid-off employee who has not displaced in accordance with Rule 23.16 shall retain his seniority rights in his respective classification at his home seniority terminal and shall be subject to recall to his home seniority terminal in seniority order. If the employee declines to accept recall to vacancies of an expected duration of sixty (60) calendar days or more at the end of seven (7) calendar days, unless satisfactory reason is given therefor, shall forfeit his seniority and notwithstanding the provisions of Rule 23.21, his name will be stricken from the seniority list and he will no longer be considered as an employee of the Railway.

In view of the foregoing, I cannot find that there has been a violation of Rule 23.20, therefore this grievance is dismissed.

DATED at Langley, B.C. this 30th day of December, 1981.

(signed) Bryan E. Williams

Arbitrator