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, CARIBOO-PEACE RIVER LODGE NO. 30 and CAPILANO LODGE NO. 99
IN THE MATTER OF THE GRIEVANCE of I. Slibar
SOLE ARBITRATOR: Bryan E. Williams
There appeared on behalf of the Union: Michael Blaxland
There appeared on behalf of the Company: Mary Saunders
A hearing in this matter was held North Vancouver, B.C, on Friday, December 18, 1981.
This arbitration took place on Friday, December 18, 1981, in North Vancouver, B.C. It was agreed that the Arbitrator was properly appointed and had jurisdiction to hear evidence under oath and make a final decision binding on the parties. The question before me is:
Did the Company violate Rule 23 of the Collective Agreement presently in force between the parties by recalling Mr. C. Wood, who was junior to Mr. I. Slibar (the grievor) on the seniority list, on October 8, 1981?
The Union maintains that Carman-Helper Ivan Slibar should have been recalled instead of Carman-Helper Cecil Wood on October 8, 1981 and that the Union should have been furnished with a list of men returned to service. Evidence indicated that the grievor was notified by letter on July 20, 1981 that his position was abolished effective July 24, 1981 due to the strike action in the Forest Industry. A further letter to the grievor from the Company dated October 29, 1981 advised him that because of the depressed level of activity in the forest industry, his recall to active status was not expected in the near future. The grievor stated that he had never been laid-off because of a work shortage before and the fact that he had over ten years’ seniority with the Company, the lay-off would be of a short duration. When it became known to him that a junior employee was being recalled as a Carman-Helper, Trackmobile Operator, he applied to the company to be trained as a Trackmobile Operator. On November 5, 1981, the grievor was advised by letter that there were no training programmes in existence and further advising him that had he chosen to exercise his seniority rights at the time of lay-off on July 24, 1981 he would now be employed. The grievor stated that he chose not to exercise his seniority on the system, but elected to retain his home terminal seniority. He further stated that he had not taken the Training Course for Trackmobile Operator when it was offered in 1980 because he liked the job he was doing as a Carman-Helper, didn’t want to be a Trackmobile Operator and felt he had sufficient seniority to guarantee his employment. He also admitted that he had high blood pressure and felt that the job might affect his health.
The grievor further stated that while he liked his job as a general Carman-Helper in the shop, he would prefer driving the Trackmobile to facing a lengthy lay-off.
Mr. Vern Paull, Local Protective Board Chairman, Lodge No. 30 of the Union gave evidence that when he was advised that Wood was working as a Trackmobile Operator, he filed a grievance on behalf of four employees alleging a violation under Rule 23.20 and any other clause which may have been violated. He alleged that Rule 23.20 had been violated by recalling Wood out of seniority and also that the Union was not notified He stated that the Unit Committee did not approve of the hiring of Wood out of seniority. Mr. Paull further stated that the Union was not consulted as required by the Collective Agreement under Section 23.10, 23.11, 23.12 and 23.20 and, in fact, received no notification until after the grievance was filed. He also stated that he could not accept the Company’s position that the grievor was not eligible for recall because the grievor did not have a valid M.O.T. license to operate the Trackmobile. The grievor should have been recalled under Rule 23.20 and be given training.
Then Stan Horodyski, General Chairman of the Union, gave evidence that he has negotiated with the Company and serviced the bargaining unit for 10 years. He stated that the present language in Rule 23.20 and Rule 23.22 had not changed during this time and that the past practice was that recall was in the reverse order of lay-off by classification and seniority. He also stated that he does not know of any qualification bar and that qualifications are not mentioned in Rule 23.20. He could not recall the Company ever taking this stand before and in fact, complimented the Company for its attitude in respecting the very sacred seniority systems in all of their Collective Agreements. He was emphatic that it was a past practice and a continuing practice that the Company recalled by seniority and, if necessary, trained the recalled employed. He also stated that training went on continually and it was not unusual to train when a vacancy occurred.
Mr. Ken Prodeahl, General Car foreman at Prince George gave evidence that the Company acquired a Trackmobile first, in 1979 and that it was recognized as a Carman-Helper’s job. He stated that because an M.O.T. license was required, he first canvassed people in 1979 to take the training course and ended up training Mr. Allen. In March 1980 he posted a bulletin requesting people interested in taking the course to contact him. He again bulletined the course in November, 1980. As of the spring, 1981, only four people were qualified Two Carmen and two Carmen-Helpers.
Mr. Prodeahl explained the method of obtaining an M.O.T. license was first to supply the M.O.T. with medical proof that the trainee was medically fit. Then a temporary permit was issued. This permit was good for a period of 30 days but was renewable upon request. The trainee was now authorized to operate the Trackmobile. The trainee would then work with a licensed operator and, after a suitable familiarization period, an instructor would be brought in from Squamish for a two day course and the M.O.T. test would follow.
Mr. Prodeahl gave evidence that on October 7, 1981 it was decided to operate the Trackmobile on a second shift and that Mr. Wood was recalled on October 8, 1981 because of his qualifications, not because of his seniority. He further stated that it was decided that this would be a permanent position on October 13, 1981 and the job was bulletined under Bulletin No. 81-53. Mr. Wood was the only applicant. He admitted that he recalled Wood under Rules 23.10 and 23.11 without consulting with the Union, after which he wrote a letter of apology to Mr. Paull. He further stated that it was not intended to train any more operators at this time and that it was a unique situation – he was after qualifications – not the man. He did not consider approaching anyone else to cover the position while training the senior man to fill the position.
Mr. Dan Pysh, Industrial Relations Officer for the Company, gave evidence that the grievor was not recalled because he was not qualified and there was no obligation to train. He further stated that laid-off employees can bid on bulletined jobs during a lay-off under Rule 23.12. It was quite common for laid off employees to go down and look at the bulletin books therefore the grievor was not prohibited from applying under Bulletin No. 81-53.
Counsel for the Union argued that there had been a clear violation of Rule 23.20 in that:
..., employees laid-off shall be given preference to re-employment in seniority order ...
... A laid-off employee shall be notified by registered mail...and he shall be returned to his former classification ...
... Local Committees shall be furnished with a list of men to be restored to service.
He argued that none of these requirements were met. Counsel for the Union further argued that once the grievor was recalled, he could have bid into the position (Bulletin No. 81-53) under Rule 23.10 and should have been given the opportunity to qualify.
Counsel for the Company argued that Rule 23.20 had to be considered in the light of all of Rule 23 and that it did not necessarily mean that employees would be recalled strictly by seniority. She argued that Rule 23 did not contemplate taking somebody into a job they cannot do. She stated that Rules 23.11 and 23.20 must be applied together and that the senior qualified employee becomes the senior employee, therefore Wood was the appropriate employee to recall. As well, she stated that after Wood was in the position and it was decided to make it a full time position, the position was bulletined under Rule 23.10. Wood was the only applicant, therefore the appointment of Wood was correct.
Counsel for the Company also stated that the grievor could have been recalled but would not have been able to operate the Trackmobile which would subject him to being laid-off again. This would have been poor labour relations.
She went on to say that there is nothing in the Collective Agreement which compels the Company to train an employee at the time of the employee’s choosing and that when the training course was available, the grievor chose not to take the course. Counsel for the Company argued that the whole, of Rule 23 must be taken into consideration in making my decision. I have done that. Rule 23.20 is clear:
In restoration of forces, employees laid off shall be given preference of re-employment in seniority order.
The grievor was not given preference. He was not notified, nor was the Local Committee notified as required by Rule 23.20 Mr. Prodeahl stated in evidence that "he was after qualifications – not the man" and this was his reason for recalling Mr. Wood.
The Company argued that Mr. Wood was the most senior qualified Carman-Helper in accordance with Rule 23.11 because he was qualified to operate the Trackmobile. The Union argued that the grievor was the most senior qualified Carman-Helper and that he met all the qualifications in the Classification under Rule 58.4 which does not cover the operation of the Trackmobile, and if this is a requirement, then he must be given the opportunity to demonstrate his ability to perform the work required as per Rule 23.10.
Based on the evidence before me, I have concluded that the Company has breached the provisions of Rule 23.20 by not recalling the most senior Carman-Helper, Mr. Ivan Slibar.
On December 21, 1981, I advised the parties orally that the Grievor was to be immediately recalled and be given the opportunity to demonstrate his ability to perform the work required.
I based my decision on a literal interpretation of the seniority provisions of Rule 23 and Rule 58, Carmen’s Craft Special Rules.
Evidence indicated that Carman, Carman Helper and other jurisdictions operate Trackmobiles. Evidence also indicated that when Trackmobiles first came into use in 1979 it was agreed that it would be Carman-Helper function. Yet, only two Carman-Helpers have taken the course and met the M.O.T. licensing requirements. And now, because of hard economic times and a lay-off situation, the senior employees wish to exercise their seniority rights and are prepared to take the M.O.T. course.
The Company has the right to expect to operate in an efficient manner as well as to be expected to honour seniority rights.
The Union argued that Trackmobile-Operator is not included in the Carman-Helper Classification, yet, they agree that it is a Carman-Helper function.
The Union cannot have it’s cake and eat it. They cannot expect that every senior Carman-Helper to Wood be recalled, trained and paid for the period that Wood worked.
If the Union accepts the fact that the Trackmobile Operator is a Carman-Helper function, then it must accept the fact that the operator must meet the M.O.T. requirements.
If Mr. Slibar is successful in meeting the M.O.T. requirements he would displace Mr. Wood. If he fails to qualify, then he should revert to laid off status. The next senior Carman-Helper would be given the same opportunity and the same procedure would apply until one of them qualifies.
As to the issue of back pay, had Mr. Slibar exercised his System Seniority at the time of lay-off he would not have been unemployed. As well, had he taken the Training Course for Trackmobile Operator when it was offered in 1980, he would have been recalled instead of Mr. Wood. For these reasons, I am not awarding back pay.
SIGNED at Langley, B.C. this 13th day of February, 1982.
(signed) Bryan E. Williams
Note:After the hearing and my oral award, I received a written submission from Counsel for the Company. Counsel for the Union opposed the consideration of this further submission. Both Counsels have written letters as to the pros and cons of considering this written submission, which I have not read. After studying the evidence and argument made at the hearing, I decided to ignore any submission made after the hearing was concluded.