SHP 209






IN THE MATTER OF THE GRIEVANCEs of Messrs. Luengo and Gill (Supervisorís Seniority)






There appeared on behalf of the Union:

Morley D. Shortt



There appeared on behalf of the Company:

P.M. Archibald


A hearing in this matter was held at Vancouver, British Columbia on November 24 and 25, 1982



Counsel for the Union and the Company agreed that the Board was properly composed.

The Company took the position that the Board did not have jurisdiction.

The Union took the position that they were not certain that the provisions under the Collective Agreement leading to Arbitration including conditions precedent had been met or waived and there was no agreement between the Parties on the question to be decided if the Board did have jurisdiction.

The first question to be decided then, is the matter of jurisdiction. That matter can only be decided when some conclusion has been reached as to the terms of the grievance.

The Company took the position that the grievance should read,

Does the Union have the right to represent Supervisors who have been terminated by the Railway?

The Union states that the question is,

Are Messrs. Luengo and Gill entitled, under the terms of Article 23.25 of the Collective Agreement, to go back into the bargaining unit?

As will be seen later in this Award, I do not think the question as posed by the Company, which is essentially a policy grievance, is properly phrased and it will be restated later in this Award. I think the grievance is as stated by the Union. However, in determining whether I have jurisdiction, it would appear that I must also answer a revised version of the Companyís terms of the grievance.

The matter of jurisdiction is to be determined from the meaning of the word "release" in Article 23.25 of the Collective Agreement which reads,

23.25 An employee accepting an official position will have his seniority protected and his name shown on the seniority list with proper standing unless the employee ceases to pay full local 170 union dues.

If released from such official or excepted position, the employee must within thirty (30) days after such release, either displace the junior employee in his seniority group on his basic seniority territory or exercise his seniority to a vacancy or a newly created position at his home seniority terminal; if he fails to do so he shall forfeit his seniority. The Business Manager shall be advised.

An employee temporarily promoted to an official or excepted position will, within seven (1) calendar days or release from such temporary employment, exercise his seniority in his craft at his home seniority terminal. The appropriate officer of the Railway shall advise the local representative of the Union of such promotions, including the expected duration thereof.

The Company took the position that the word "release" does not include termination of employment and that an employee who has been a member of the Union, was given the opportunity of being a supervisor and thus out of the bargaining unit and accepted this position, is no longer under the jurisdiction of the Union even after termination. His rights after termination are to be determined by the courts under common law and not under the Collective Agreement. The Union took the position that the word "release" has a very wide meaning covering any action taken by the Company which results in the cessation of his employment, for example suspension, termination or lay off.

The authorities quoted by counsel did not supply the answer to the definition of release. Case number 777 of the Canadian Railway Office of Arbitration being a case between Canadian Pacific Ltd. and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees ("Rail Union") is of some help but the parallel terms of the Collective Agreement in that case which had to be determined were different from this case and the grievor was not dismissed. Case number 347 in the Canadian Railway Office of Arbitration between the same Parties, again under different provisions that apply here, deals with a supervisor, who having been promoted from the bargaining unit, wished to return to the bargaining unit. The Arbitrators held that the Company could return him to the bargaining unit but further held the employee could not unilaterally elect to return.

The case of Re: Leslie and the Crown in Right of Ontario (Ministry of Community and Social Services) 22 L.A.C. (2) 126 does distinguish between dismissal of an employee (which I hold to mean the same as termination) and release of an employee. I take from this case that when a permanent employee is "released" it is a situation where the "release" arises from a non disciplinary termination such as redundancy, whereas termination or dismissal takes place when the position continues but the employee was unsatisfactory and was dismissed as a disciplinary measure or for cause.

Messrs. Gill and Luengo had been members of the Union, accepted positions which the Parties agreed were official or accepted positions, and then were "terminated" by a notice to them which reads in part:

As a result of the current economic conditions and the business downturn, the railway is forced to reduce staff levels.

Messrs. Gill and Luengo were then redundant and their positions were discontinued. Based on my findings on the meaning of the Leslie case, they, were "released" and the provisions of Article 23.25 of the Collective Agreement are applicable. As a consequence, I think I have jurisdiction to decide the dispute as stated by the Union.

In finding the meaning of release to be as above, and in finding that I have jurisdiction, I think I have also answered the Companyís version of the grievance if it were amended to read as follows:

Does the Union have the right to represent Supervisors who are ex-members of the Union and who have continued to pay their full local #170 Union dues and who have been terminated by the Company?

The answer is yes, under the provisions of Article 23.25.

There is no question that Mr. Gill paid his full union dues during the entire period that he was a Supervisor. There is a question whether Mr. Luengo did so.

Mr. Luengo was made Supervisor in January 1979. He requested and obtained the status of an honorary withdrawal. That status on the payment of $10. per year to the Union may be maintained and the member with that status can again be a full member of the Union upon paying a reinstatement fee of $20., rather than an initiation fee of $150. Mr. Luengo paid the $10. fee each year while he was a Supervisor. Mr. Luengoís employment was terminated on March 18, 1982. He applied for reinstatement towards the end of November, 1981. He was reinstated on December 29, 1981. He paid his reinstatement fee on January 20, 1982 and from that time on paid full Union dues.

The previous Collective Agreement contained a provision similar to the present Article 23.25 but without mention of a requirement to pay full Union dues. The addition of this condition was negotiated by the Union and incorporated in the present Collective Agreement.

The new Collective Agreement was executed by the Parties on October 15, 1982 and became effective on February 1, 1982. However, by a special provision, Article 23.25 because effective on November 16, 1981. Despite this provision, the Company informed Mr. Luengo in a memorandum dated 81-01-18 (which obviously should have been dated 82-01-18) that the requirement to pay full Union dues was effective January 1, 1982. It should also be noted that a Union seniority list dated 1982-01-29 issued by the Company contained the names of both Mr. Luengo and Mr. Gill (showing different seniority dates than given in evidence by the Union.) I think that in the circumstances, Mr. Luengo exercised reasonable diligence in paying "full Local 170 Union dues" during the period required. If I am wrong, I hereby relieve Mr. Luengo against any breach of the tine limits for paying those dues pursuant to the provisions of Section 98(e) of the Labour Code.

As a consequence, I hold that the answer to the Unionís version of the questions was to decide, is in the affirmative. Both Mr. Gill and Luengo are entitled to go back into the bargaining unit and exercise their seniority in accordance with the provisions of Article 23.25 of the Collective Agreement.

If the Parties cannot agree on the remuneration due Messrs. Gill and Luengo for the period from their dismissal (or last pay), then I retain jurisdiction to settle this matter. However, for the guidance of the Parties, I would point out that Messrs. Gill and Luengo are not entitled to the severance pay offered by the Company and reinstatement. I would also point out that I donít think Messrs. Gill and Luengo should receive any bonus because the Company took the position it did, which I think was reasonable but wrong. In settling the remuneration to be paid, I think consideration should be given to the earnings of these two gentlemen during the period concerned. On the other hand, any losses to them due to cessation of health and welfare benefits should also be considered.

DATED AT VANCOUVER, this 1st day of December, 1982.

(signed) Robert James Orr