SHP 210

IN THE MATTER OF AN ARBITRATION

BETWEEN

BRITISH COLUMBIA RAILWAY COMPANY

AND

BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA, MOUNT GARIBALDI LODGE #1419

AND

IN THE MATTER OF THE GRIEVANCE of Dale Hedin (Supervisorís Seniority)

 

 

SOLE ARBITRATOR: H. Allan Hope, Q.C.

 

 

There appeared on behalf of the Union:

V. L. Paull

 

 

There appeared on behalf of the Company:

Dan Pysh

 

There appeared on behalf of the Intervenor:

D. P. Hassall

 

 

A hearing in this matter was held at Vancouver, B.C. on March 15, 1985.

 

AWARD

The issue in this dispute is whether the railway was in breach of the collective agreement when it appointed a non-bargaining unit supervisor, Dale Hedin, to a bargaining unit position at Squamish after he had been released by the railway as a supervisor. The railway recognized him as the successful applicant in a vacancy which had been bulletined pursuant to the provisions of the collective agreement. His selection was based upon recognition of "home terminal" seniority rights he had accumulated as a member of the bargaining unit. Home terminal Seniority is the effective seniority in the filling of vacancies under the agreement.

The position of the Union is that the home terminal seniority rights of Mr. Hedin expired six months after he was promoted out of the bargaining unit, leaving him with what the parties call "system" seniority. Recognition of those rights by the railway was a breach of the collective agreement, said the Union, because it had deprived employees on layoff status of a right to be recalled to the position awarded to Mr. Hedin.

The view of the Union was that Mr. Hedin should have been limited to the exercise of his system seniority in his return to the bargaining unit. That result would have limited the grievor to bumping rights against the most junior employee in Mr. Hedinís classification on the railway system. That limitation would have sent Mr. Hedin from Squamish, where he has lived and worked for many years, to Chetwynd, a community in northern British Columbia.

The dispute turns in large part on the recognition of the two types of seniority under the collective agreement. System seniority is the traditional concept of plant-wide seniority. However, under this agreement, system seniority is subordinate to home terminal seniority. As stated, each employee is assigned to a home terminal and accumulates what becomes the effective seniority in bidding on vacant positions which arise within that particular terminal. Home terminal seniority is provided for in Art. 23.3, which reads in part as follows:

23.3 Seniority of employees covered by this agreement shall, except as otherwise provided herein be confined to the seniority terminal at which employed and to the date of entry into their respective classification:

Carmen (and other tradesmen represented by Carmenís organization)

Coach Cleaners

Helpers

All vacancies and new positions anticipated to be in force for a period in excess of 90 days are required to be posted under the agreement and, as stated, are filled in the first instance on the basis of home terminal seniority. The requirement to post a vacancy is express and is set out in Art. 23.10, as follows:

23.10 (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.

The requirement to fill the vacancy on the basis of home terminal seniority is not express but arises as a necessary implication from Art. 23.10 and from Art. 23.12. That latter provision has application where a Vacancy has not been filled on the basis of home terminal seniority. It is only then that system seniority comes into play. The provision reads as follows:

23.12 If a vacancy or new position of expected duration of ninety (90) calendar days or more requiring additional staff is not filled by an employee in the classification at a home seniority terminal, it shall be bulletined for not less than seven (7) calendar days to the employees holding seniority in the classification in a craft on the system. Subject to qualifications, seniority will govern.

Mr. Hedin, the returning supervisor, had home terminal seniority in Squamish when he was promoted out of the bargaining unit in 1979. When he took up his Supervisory duties he remained in the Squamish terminal and continued working there until he was informed that he was no longer needed as a supervisor. He received that advice on September 4, 1984, from B.C. Rourke, acting works manager in the mechanical department at Squamish.

Mr. Hedin had worked as a carman in the Squamish shops and when he was let go as a supervisor he was informed by Mr. Rourke that he could return to the bargaining unit if he so desired. On September 6, 1984, he applied for a vacancy as a carman at the Squamish shops. On September 15, the Employer declared him to be the successful applicant. In placing Mr. Hedin in the position the Employer, as stated, recognized the home terminal seniority he had accumulated as a member of the bargaining unit.

In recognizing his seniority the Employer was acting in response to the following provision of the agreement:

23.25 An employee accepting a transfer within the Railway to a position not covered by a Collective Agreement, shall retain rights and continue to accumulate seniority for a period of six (6) months from date of transfer. If during the six (6) months he returns to the bargaining unit, 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 General Chairman shall be advised. If he elects to remain outside the bargaining unit at the expiration of six (6) months, his rights and accumulated seniority under this Collective Agreement shall be "temporarily suspended" until such time as he returns to the bargaining unit. In such event, only the seniority accumulated while in the bargaining unit shall be taken into consideration when exercising seniority as provided in this Rule.

The Union view of that language is that a supervisor retains seniority rights for six months after being promoted out of the bargaining unit, but that the language is ambiguous as to his seniority status thereafter. In the absence of what it saw as clear direction from the language itself, the Union took an extreme view. Its position, as noted, was that a returning supervisor, after the elapse of six months, is without home terminal seniority and is limited to exercising system seniority to "bump" the most junior employee in his seniority classification on the system.

The Union placed considerable emphasis on a decision of Prof. J.F.W. Weatherill made under the Office of Railway Arbitration [Canadian Railway Office of Arbitration]. In that decision, being [CROA] Case No. 347, Canadian Pacific Railway (CP Transport) and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, April 11, 1972, Prof. Weatherill dealt with an assertion that a non-bargaining unit supervisor could force himself into the bargaining unit by bumping an existing employee out of his job.

I will deal with the authorities later. At this stage I point out that the Union sees that case as having application by analogy to the present facts. In particular, the Union says that where a returning supervisor takes a bulletined vacancy in priority to the recall of employees on layoff, even accepting that the supervisor has greater seniority, his return will be seen to be in breach of the agreement because that exercise of seniority is not provided for expressly in the collective agreement.

The message taken from CP Transport by the Union is that a returning supervisor cannot exert his seniority unless the collective agreement so provides in express terms. In my view, as I will detail later, that is not what is expressed in that decision. However, I will postpone further consideration of it at this time and point out that the language of this collective agreement contemplates, at least implicitly, that supervisors will return to the bargaining unit, bringing their seniority with them, and that there is no provision limiting that seniority to system seniority. The only provision of the agreement that appears to contemplate an exercise of system bumping rights is one of the layoff provisions, Art. 23.16, which 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 at the nearest seniority terminal he can hold carrying his seniority in that classification with him, or he may displace the junior employee in his respective classification on the system carrying his seniority in that classification with him, except as may be otherwise provided in the craft special rules. An employee who declines to exercise seniority under this rule shall be laid off subject to recall to his home seniority terminal. (emphasis added)

The absence of similar language in Art. 23.25, the provision governing the rights of supervisors, mitigates against the interpretation urged by the Union. Art. 23.16 implies that when the parties intend to limit the exercise of seniority to system seniority, they make that provision in clear terms.

The cardinal principle of interpretation of collective agreements is that disputed language must be interpreted in the context of the entire agreement. The failure to limit or modify the term "seniority" in Art. 23.25 must be seen as reflecting an intention to encompass both concepts of seniority recognized in the collective agreement. There is simply no basis in the language for saying "seniority" in Art. 23.25 means system seniority, as opposed to home terminal seniority. The clear inference is that the term is intended to encompass both aspects of seniority.

II

The Union is concerned that Mr. Hedin was returned to the bargaining unit by management without prior consultation with the Union. It is further concerned with the fact that there were carmen from the bargaining unit who were on layoff from the Squamish shops at the material time who were entitled, in the Unionís view, to be recalled in priority to giving the vacancy to a returning supervisor.

Mr. Hedin, as noted, was informed on September 4, 1984 that he would no longer be required as a supervisor and that he was free to return to the bargaining unit. The recollection of Mr. Hedin was that he informed the Union the following day of his status and his intention to apply for a position at the Squamish terminal. He spoke with Robin Hurren, chairman of the local union lodge. The recollection of Mr. Hurren was that he was not informed about the return of Mr. Hedin until the next day, September 7, 1984.

The vacancy for which Mr. Hedin applied and into which he was subsequently placed was bulletined on September 6, 1984. In the bulletin the Position was listed as, "Carman" located at "Squamish Car Shop/Door Table (as and when required)." The grievor, as stated, was declared the successful applicant for that position on September 14, 1984. There was some question raised as to whether the vacancy was contrived by the railway to accommodate the return of Mr. Hedin. The evidence did not support such a conclusion.

The Union did not agree with the decision to grant the vacancy to Mr. Hedin and, anticipating that result, it filed a grievance on September 13, 1984 challenging the return of Mr. Hedin to the bargaining unit. Mr. Hurren said that the Union, in normal practice, signs off bids with the Company. In the case of the vacancy filled by Mr. Hedin, he refused to sign off the bid. The position of the Union was expressed in the grievance as follows:

The Union believes a violation of the agreement took place when Dale Hedin returned to the bargaining unit as a Carman. We believe the employee should only have been allowed to exercise his seniority to the junior position on the system. The recall of laid off employees has precedent over a man returning to the unit from a supervisory position.

Following his appointment, Mr. Hedin took up his duties as a carman, subject to the grievance filed by the Union, and the parties were not successful in reaching a resolution of the dispute. I note by way of aside that Mr. Hedin later made application for another position in the bargaining unit, that position being in the air brake shop in Squamish. He was appointed to that position on November 23, 1984.

The Union did not file a grievance with respect to his application for the later position or his appointment to it and the Employer viewed that failure as a form of waiver on the part of the Union. I agree with the submission of the Union that, having challenged the right of Mr. Hedin to return to the bargaining unit, it was not necessary for it to file a further grievance in order to preserve its rights.

III

When the matter came to arbitration the Employer and the Union were in agreement that Mr. Hedin was entitled to participate in the proceedings and to receive separate representation. That assertion is in accord with the principles laid down for separate representation in an arbitration by the Ontario Court of Appeal in Re Bradley et al. and Ottawa Professional Fire Fighters Assín et al., [1967] 2 O.R. 311, 63 D.L.R. (2d) 376 (Ont. C.A.) and the decision of the Supreme Court of Canada in Re Hoogendoorn and Greening Metal Products Screening Equipment Co. et al., (1968) 65 D.L.R. (2d) 641, [1968] S.C.R. 30 (S.C.C.).

In the arbitration the Union was taking a position contrary to the interests of Mr. Hedin. His right to return to the bargaining unit is a right secured under the provisions of the collective agreement and that right, whatever its extent, will be determined in this arbitration. Those circumstances bring the dispute within the ambit of the reasoning in the various authorities and entitles Mr. Hedin to the separate representation claimed on his behalf.

Mr. Hedin appointed D.P. Hassall as his counsel. Mr. Hassall is a former chairman of the local union lodge. The position he took on behalf of Mr. Hedin is that Mr. Hedin had acquired home terminal seniority while he was an employee in the bargaining unit in Squamish, that he had not lost it by operation of the agreement and that he was entitled to exercise it in the same manner as any other bargaining unit employee in the Squamish terminal in competition for bulletined vacancies.

The position of the Employer is that it had an interest in ensuring that employees promoted out of the bargaining unit had reasonable access back into the unit in order to enhance its capacity to enlist supervisory personnel from the ranks of the best source of qualified personnel, being the bargaining unit. The Employer perceived that if bargaining unit employees were required to risk a loss of their home terminal seniority rights in the acceptance of a supervisory position, there would be a reluctance to leave the security of the bargaining unit.

IV

In addition to serving as counsel, Mr. Hassall gave evidence of his experience as a negotiator on behalf of the Union during bargaining for prior collective agreements and his experience in the administration of the collective agreement on behalf of the Union in his capacity as chairman of the local union lodge.

The thrust of his evidence, which was substantially unchallenged, was that the parties had never addressed the issue in bargaining of the status of supervisors with respect to home terminal seniority or whether a distinction should be made between home terminal seniority and system seniority in the exercise of seniority rights by returning supervisors. He gave evidence of previous circumstances in which supervisors who had exceeded the six month period had returned to their previous home terminals. However, that evidence was unhelpful.

The test as to whether extrinsic evidence of past practice will assist in the interpretation of a collective agreement was discussed by Prof. Paul Weiler, a former chairman of the Labour Relations Board of B.C., in John Bertram & Sons Co. Ltd., (1967) 18 L.A.C. 362 (Weiler). On p. 368 Prof. Weiler said:

Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice.

The first aspect of that test is now subject to the broader approach to the question of ambiguity taken under the Labour Code. See: University of British Columbia and Canadian Union of Public Employees, Local 116, (1977) ] Can. L.R.B.R. 13 (Weiler). But the test, with that expansion, is an appropriate summary of the approach taken by arbitrators to an assessment of evidence of past practice.

Here the evidence does not meet the test in the sense that whatever uncertainties may emerge from the language, and I accept the submission of the Union that the language lacks precision, there is no conduct by either of the parties which can be seen as unambiguously favouring the meaning advanced by either of the parties or any evidence of acquiescence on the part of responsible officers of the union or management which supports either interpretation. In my view the meaning intended by the parties must be derived from the language itself.

V

The Union is correct in its submission that seniority is an extremely valuable right and that the rights of members of the bargaining unit who are on layoff must be weighed heavily in considering whether those rights can be preempted by a non-bargaining unit employee who is seeking to return to the unit.

The Employer argued that collective bargaining language dealing with the seniority rights of returning supervisors should be interpreted in favour of the individual rights of the supervisor as against the group rights of the bargaining unit. The Employer relied in that regard on a passage from Brown and Beatty, Canadian Labour Arbitration (1984), on pp 229-30. The particular extract relied on reads:

Indeed, where there is ambiguity and doubt in the agreement, it has been suggested that such doubt should be resolved in favour of the individualís rather than the groupís rights.

Reference was made in that context to the decision in Motor Wheel Industries (Chatham) Ltd. (1970), 22 L.A.C. 180 (Hinnegan). That reasoning was doubted in Windsor Machine Co. Ltd. and United Steelworkers, Local 7816, (1982) 4 L.A.C. (3d) 331 (Munroe). On pp 335-36 Mr. Munroe said:

In our view, that [the decision in Motor Wheel Industries) is not a very appealing approach. It is entirely too artificial. Cases such as this one rarely arise in the abstract. Rather, they arise because the purported use of seniority by the person being transferred into the unit has resulted in another individual, perhaps a few individuals, being affected to his or their disadvantage. This case, and others like it, is a contest between individuals. That fact simply cannot be, and should not be, camouflaged.

I agree with the reasoning of Mr. Munroe. On the facts in this dispute the question is not whether there should be a contest between Mr. Hedin as an individual and the bargaining unit as a group but whether a bargaining unit employee on layoff will be required to forego access to recall in deference to Mr. Hedin. In short, it is a question of reconciling the competing rights of individuals.

I return now to the decision of Prof. Weatherill upon which the Union relied. In that decision, CP Transport supra, Prof. Weatherill made the following statement on p. 2 upon which the Union relies:

There appears to me to be no good reason, and certainly no support in the collective agreement, for the proposition that a supervisor who has come from the bargaining unit may at any time and to suit his own preferences, return thereto and displace some junior employee. This would be to give to "Seniority rights" a meaning far greater than that which the phrase has for an ordinary employee, who may rely on those rights only in the particular circumstances provided for by the collective agreement.

I agree with that reasoning, but I do not agree that it has application to the language or facts in this dispute. The Union interpretation of the case depends upon acceptance of the fact that provisions dealing with retention of seniority rights by non-bargaining unit employees should be the subject of strict construction with respect to the right of an employee to return to the bargaining unit.

But the decision does not stand for that proposition. In the decision Prof. Weatherill concluded that returning supervisory employees cannot be extended rights which are not set out in the collective agreement. However, he acknowledged that the language, which was less assertive than the language in this dispute, contemplated a continuing right in a supervisor to return to the bargaining unit and claim seniority rights which are recognized in the agreement. On p. 2 he said:

Where a supervisor, having been promoted from the bargaining unit, does not prove satisfactory, or is by reason of shortage of work redundant, then it seems clear he may be returned to the bargaining unit and may exercise his accumulated seniority therein.

That reasoning is in accord with an arbitral consensus that provisions dealing with the seniority rights of non-bargaining unit employees should not be subjected to narrow or technical interpretations which limit the exercise of those rights. The leading decision recognizing those rights is Re ICN Strong Cobb Arner Ltd. and Intíl Assoc. of Machinists, Lodge 877 (1973), 5 L.A.C. (2d) 105 (Weiler). In that decision Prof. Weiler dealt with a submission not dissimilar from the submission made by the Union in this dispute. There the Union contended that while the language provided that a supervisor would retain his bargaining unit seniority the employee would not be entitled to exercise it until after he had been returned to the bargaining unit. Prof. Weiler disagreed with that approach on pp. 108-9 of his decision. He said as follows:

On reflection, though, I believe that this distinction between the accumulation of seniority and the exercise of seniority is an artificial one; to adopt it would destroy the whole point of the carefully-worded language of s. 3. Why would the parties take the time to provide for the retention and accumulation of seniority if the employee is debarred from exercising the critical job rights which depend on it? I do not deny that there are some conceivable cases where the senior employee might already have returned to the unit and only then need to use his accumulated seniority for some purpose. But in the vast majority of cases, that will not be true. Especially in situations of lay-off, the senior employee outside the unit will be competing with the junior employee inside the unit. To say that the junior person should be retained appears totally inconsistent with the principle the parties explicitly agreed to in s. 3.

Where a collective agreement recognizes a continuing seniority right in a supervisory employee who leaves the bargaining unit, the implication is that those rights will be available to the supervisor when he is obliged to return to the unit. The supervisor will not acquire any greater rights than bargaining unit employees, unless the language so provides, but neither will he suffer any less rights, unless the language so provides.

The significance of ICN Strong Cobb is that if seniority rights of supervisors are to be restricted below the rights of other members of the bargaining unit, the restriction must be expressed in the language itself. The corollary arises in the decision of Prof. Weatherill in CP Transport. That is, if returning supervisors are to acquire rights beyond other members of the bargaining unit, those additional rights must also be spelled out in the agreement but where the language provides for a retention of seniority rights without restriction as to their use, the assumption will be that a returning supervisor can exercise his rights to the same extent as employees still in the bargaining unit can exercise their very same rights.

The reasoning in ICN Strong Cobb was applied by Mr. Munroe in Windsor Machine Co. (see p. 338) and in Re National Windows Ltd. and International Association of Bridge, Structural and Ornamental Iron Workers, Local 712 (1984) 15 L.A.C. (3d) 72 @ p. 77.

At an earlier stage of arbitral jurisprudence it was perceived that there were somewhat divergent opinions with respect to the strictness to be brought to the interpretation of seniority. provisions relating to non-bargaining unit employees seeking to return to the unit. See: ICN Strong Cobb @ pp. 107-8 and Re Canadian Pacific Airlines Ltd. and International Assoc. of Machinists, Canadian Airways Lodge 764 (1977) 13 L.A.C. (2d) 232 (Smith) Q pp. 234-7. However, whatever may have been the early divergence, there now appears to be consensus on the view that senior employees, even though outside the bargaining unit, should not be deprived of seniority rights they have earned through long service unless the collective agreement compels that result.

The decision of Prof. Weatherill in CP Transport should not be taken as a departure from that reasoning. In fact, Prof. Weatherill cited with apparent approval the decision in Re Intíl Assoc. of Machinists and Gabriel of Canada Ltd. (1967) 18 L.A.C. 373 (Palmer) which was one of the early decisions favouring a liberal approach to such provisions. In that decision Prof. Palmer did an exhaustive analysis of existing arbitral authority. His view of the underlying principle was expressed as follows on p. 377:

Aside from the general sympathy that must accrue to a long-term employee, there is the obvious fact that the persons involved have had earned seniority at one time: such rights should not be quickly stripped from a person.

Again, because seniority rights carry with them such great value, the acceptance of the unionís position would place an unreasonable penalty upon those employees it represents for accepting a job with the Company outside of the unit and tend to place an unrealistic deterrent to management in preferring its own employees for promotion rather than hiring from outside. Finally, the difficulties in placing long-term employees in the Company covered by the proposed rule in the bargaining unit as probationers is obviously fraught with difficulties Ö

Here the Union proposal is the equivalent of requiring senior employees returning to the bargaining unit to start again. Depriving supervisors of their home terminal seniority requires them to go to the most junior employee on the system. It would, in the case of Mr. Hedin, require him to sell his home, uproot his family and leave the community in which he has worked for many years.

It is an extreme consequence. It is true that the consequence for existing bargaining unit employees is extreme in the sense that the senior employee on layoff will not be recalled to work. But the employees on layoff in this dispute had an equal right to compete with the grievor and lost to him only because he had greater seniority. That is a routine and fair consequence in a seniority system. Mr. Hedin was accorded no special rights, only those given to any other employee.

VI

Contests between returning supervisors and bargaining unit employees lie to be resolved on the same basis as contests between bargaining unit employees themselves. That is, a returning supervisor has as much right to exercise whatever seniority rights he possesses as an employee who has remained in the bargaining unit is entitled to exercise seniority rights. Here, the language in dispute supports the interpretation that home terminal seniority is retained. In particular, where an employee leaves the bargaining unit for more than six months the language provides:

Ö rights and accumulated seniority under this Collective Agreement shall be "temporarily suspended" until such time as he returns to the bargaining unit. In such event, only the seniority accumulated while in the bargaining unit shall be taken into consideration when exercising seniority as provided in this Rule.

That language prevents the employee from continuing to accumulate seniority but does not deprive him of the seniority he has accumulated. It contemplates a right in the supervisor to exercise his seniority upon a return to the bargaining unit. Granted it does not provide in express terms for a return to the bargaining unit after the elapse of six months, but recognition of such a right arises by clear implication. To paraphrase ICN Strong Cobb, if it was not intended that supervisors who elected to remain out of the bargaining unit after six months would have a continuing right to return to the unit, why provide for a retention of their seniority? Clearly it was intended that they could exercise their rights if the desire or need arose.

In a later decision, Canadian Pacific Limited and Transportation Communication Division BRAC, April 10, 1973, Case No. 406, Prof. Weatherill again addressed the rights of returning supervisors. That decision, which approves the decision in CP Transport, supports the position of the Employer. On p. 2 Prof. Weatherill described the facts as follows:

It is the Unionís argument that Mr. Morency was not entitled to displace any junior employee from a position he held at the time Mr. Morency sought to exercise his seniority, and that the seniority rights retained by Mr. Morency could be exercised by him only by bidding on bulletined jobs. It was shown that in fact there were jobs available for which Mr. Morency could expect to have been selected by reason of his seniority and qualifications, but clearly this consideration does not affect the question whether it was proper for the senior employee, with protected rights of seniority, to displace a junior man on his return to the bargaining unit. The issue in this case would be the same even if there had been no bulletined jobs at the material times.

Those facts are more favourable to the Union than to the facts in this dispute. Here the only right asserted by Mr. Hedin is the right to exercise his accumulated seniority rights. In dismissing the grievance, Prof. Weatherill said on P. 2:

While, as was observed in Case 347, an employee outside the bargaining unit should not be accorded seniority rights of greater scope than those of an employee in the unit, no reason appears for reducing the value of seniority rights held by an employee who has been returned to the bargaining unit.

To apply these provisions in Mr. Morencyís case was to give effect to the seniority rights which he had retained. Not to have applied these provisions would have reduced his seniority rights. I am unable to conclude that there was any violation of the collective agreement in what was done.

In that decision, Prof. Weatherill saw supervisory employees who had been removed from their positions as being in a position analogous to bargaining unit employees placed on layoff. It was his view that such employees could invoke their seniority rights to not only compete on bulletins (a right conceded by the Union in that case) but to invoke bumping privileges available to displaced employees under the agreement.

I acknowledge the concern of the Union with respect to the return of a supervisory employee to the bargaining unit without prior consultation. That would seem to be a provocative oversight, particularly during a period when there are bargaining unit employees on layoff and where the economy inhibits their prospects for recall. I further acknowledge its understandable desire to preserve the job security of its members. But, those are matters that go beyond my jurisdiction. I am limited to determining the dispute on the basis of an interpretation of the collective agreement and an application of that interpretation to the particular facts.

The Union submitted that the two questions raised for determination are:

1. Was Mr. Hedin correctly returned to the bargaining unit.

2. Can a vacancy exist or a position be created for a person returning to bargaining unit from a supervisory position when men from terminal are on laid off status.

The answer to the both questions is, yes. An employee returning to this bargaining unit, similar to CP Transport, brings with him his accumulated seniority. The rights he possesses with respect to the exercise of those rights are those defined in the agreement and possessed by any bargaining unit employee.

The Union argued on the basis of the decisions of Prof. Weatherill that an employee dismissed for cause by the railway would be denied an election to return to the bargaining unit. The Union raised that issue because it was of the understanding that Mr. Hedin had been so dismissed by the Employer. That is not the case, according to the evidence, and I need not address the issue further, except to say that I think the question is more complex than a simple determination that the Employer, in effect, can decide whether the supervisor will be permitted to return to the bargaining unit. That seems to be a dubious recognition of rights vested in the employee.

In any event, the question here is whether an employee who has been released as a supervisor can, with the consent of the railway, invoke his seniority rights in a return to the unit. In the case of Mr. Hedin, he reactivated his rights by bidding on a vacancy. His exercise of his seniority rights in that regard was in accord with the provisions of the agreement. Whatever may be the status of a supervisor who has been fired or who attempts to re-enter the bargaining unit against the wishes of the Employer, the facts in this dispute disclose no breach of the collective agreement. In the result, the grievance is dismissed.

DATED at the City of Vancouver, in the Province of British Columbia, this 7th day of June, A.D., 1985.

(signed) H. Allan Hope, Q.C.

Arbitrator