BETWEEN

AND

SOLE ARBITRATOR: J. F. W. Weatherill

F. Klamph

S. J. Williams

S.A. MacDougald

A hearing in this matter was held at Ottawa on March 31, 1987.

The Dispute and Joint Statement of Issue in this matter are as follows:

The grievor was declared fit to return to duty on October 7, 1985. At that time, which was following the transfer of many employees to VIA Rail, the grievor did not have sufficient seniority to bold a position with Canadian National, and he was accordingly laid off.

On November 7, 1985 VIA Rail offered the grievor temporary employment, which he accepted. Subsequently, the grievor became a permanent employee of VIA Rail. His seniority date is November 23, 1985. What is in issue by way of relief in this case, then, is certain limited compensation for loss of earnings, together with the assignment of the seniority date which the grievor would have had at VIA had he been transferred there in June, 1985.

It is not doubted that the grievor, had he been aware of the matter and able to do so, would have applied under the Special Bulletin. There is no doubt, either, that the grievor was a qualified employee having sufficient seniority, and that he would have been accepted and subsequently transferred to VIA Rail, had he applied on the Special Bulletin.

The grievor did not apply because he was, it appears, in a comatose condition for a considerable period of time following the accident in which he was involved. It is not disputed that the grievor was unaware of the Special Bulletin, and not alleged that he ought to have been aware of it.

Rule 23 of the collective agreement deals with the matter of seniority and its application in certain situations, including cases of vacancies. Rule 23.28, Which the Union relies on in the instant case, is as follows:

I think there can be no doubt if what was in issue had been a position bulletined in accordance with the provisions to that effect set out elsewhere in Rule 23, the grievor would have been entitled to make his application at the time he did, that is, upon his return to service following recovery from his injuries. It is the Company's position, however, that Rule 23.28 does not apply in the circumstances, the matter being governed by the terms of the Memorandum of Agreement of May 14, 1985.

That Agreement was made between the Company, the Union, other Unions and VIA Rail Canada Inc., in respect of conditions and benefits to apply "to employees adversely affected by the transfer of passenger related work from Canadian National Railway Company to VIA Rail Canada Inc., made in accordance with regulations established by Order-In-Council". By section 1 of the Agreement, the conditions and benefits applying to employees affected by the transfer of passenger related work from Canadian National to VIA are, subject to certain amendments, to be those contained in the Special Agreement of July 7, 1978 between Canadian National, CP Rail and the Railway Employees' Department, Division No,. 4, A.F.of L.- C.I.O., being the predecessor trade union.

Schedule "C" to the Memorandum of Agreement deals with the "transfer of shopcraft employees from CN to VIA", and calls for the issuance by the Company, in certain designated locations, of special bulletins in respect of positions to be transferred to VIA at those locations. Such a bulletin was issued at the grievor's location. The grievor, for the reasons set out above, did not apply.

Clearly, the Memorandum entered into between the Company and the Union (and other parties) served to amend, to a certain extent, the provisions of the collective agreement. Thus, for example, by agreement with a third party, VIA Rail, provision was made for the bulletining of positions to be transferred to VIA. The collective agreement itself, of course, does not deal with that. The existence of this separate agreement, the Memorandum, which has among its effects the amendment of the collective agreement in certain respects, does not imply that the collective agreement has been completely displaced, nor is that suggested. The collective agreement, in my view, has full force and effect as between the parties to it and in respect of the employees covered by it, except to the extent that it may be amended, specifically or by necessary implication, by the Memorandum.

The Memorandum does not specifically refer to Rule 23.28 of the collective agreement. It does contemplate the existence of seniority rights established under the collective agreement. It really sets out bulletining provisions in addition to, and not generally inconsistent with those of the collective agreement. The general provision protecting absent employees is not, in my view, one which as between the parties to the collective agreement is taken away by any necessary implication of the provisions of the Memorandum. The matter was one involving, among other things, the assertion of seniority, and the grievor was entitled, in my view, to the protection of Rule 23.28.

It is not suggested that the Company was unaware of the grievor's whereabouts or condition. In another major shop location, the Company did take steps to ensure that employees were aware of their rights under the agreement and the special bulletin. It is suggested that the Union was under some obligation to the grievor in this regard, and while I consider that that may well have been so, any failure in that respect would not give rise to a claim enforceable under the collective agreement. In the instant case, while the collective agreement itself did not impose any obligation on either party to give the grievor special notice, the agreement did, by Rule 23.28, give the grievor, in effect, a right of "late" application in the circumstances.

For the foregoing reasons, it is my conclusion that the Company was in violation of the collective agreement in not according to the grievor the benefit of a right arising under the collective agreement and which was not abrogated by the Memorandum of May 14, 1985. It will accordingly be my award that the Company, to the extent it is open to it to do so, put the grievor in the position he would have been in had his rights been respected. It is clear, as noted above, that had the grievor's application been received and considered, he would have been transferred to VIA Rail in the normal course. Any loss of earnings which the grievor may have suffered as a result of his not being so transferred is, I find, a loss for which the Company must be responsible.

The grievor's rights under Rule 23.28 are not, however, rights applicable in respect of the Memorandum, and not enforceable against VIA Rail, which is not in any event a party to these proceedings. The claim for relief by way of transfer to VIA is not one with respect to which I would have jurisdiction but it is now, fortunately, academic, since the grievor has now become an employee of VIA Rail.

A more difficult question is that of the grievor's seniority. Apart from such rights as the grievor might retain (and both the collective agreement and the Memorandum contain provisions in this respect), with the Company, I would have no jurisdiction in the instant matter to make an award affecting the grievor's seniority as an employee of VIA Rail. The Company itself may be subject to some continuing potential liability in this regard. The Memorandum would appear to contemplate that persons such as the grievor, even although not transferred to VIA Rail pursuant to a special bulletin, nevertheless "transfer all their service and seniority to VIA", and it may be that on a consideration of these provisions and of what is said in this award that the grievor's seniority as an employee of VIA Rail will be adjusted appropriately. It would clearly be to the Company's benefit to attempt to facilitate that result. The elementary fairness of that (in the context of the substantial transfer of employees and the nature of the special arrangements made), should be clear: unless that is done, the grievor, through no fault of his own, and because he was not accorded a benefit to which he was entitled under the collective agreement, will have lost seniority relative to other persons whose material employment commenced later than his own.

For all of the foregoing reasons, the grievance is allowed. It is my award that the grievor be made whole by the Company, bearing in mind the limitations on my jurisdiction in the instant case as noted above.

DATED AT TORONTO, this 13th day of April, 1987.