SHP 233
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO NORTHLAND RAILWAY
(the "Company")
- and -
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
(the "Union")
GRIEVANCE RE SUTHERLAND, SPROULE AND SEGUIN
SOLE ARBITRATOR:
Michel G. PicherAPPEARING FOR THE UNION:
Andre Bedard – General Chairman
S. A. Horodyski – National President
Brian Stevens – Secretary to General Chairman
APPEARING FOR THE COMPANY:
A. Rotondo – Manager, Labour Relations
R. G. Leach – Chief Mechanical Officer
W. G. Bishop – Superintendent Car Maintenance
Fred G. Mepham
Neil Drury – Director, Human Relations
A hearing in this matter was held in North Bay, Ontario on February 29, 1988.
AWARD
The dispute and joint statement of issue in this matter are as follows:
Joint Statement of the Parties
The Dispute
Non appointment of Carmen G. Sutherland, D. Sproul and R. Seguin to two positions of painter.
Joint Statement of Fact
On November 17, 1986 a bulletin was posted for two painters in the paint shop.
In the opinion of the company, none of the applicants were qualified nor could they be expected to qualify within a period of thirty calendar days.
The Brotherhood claimed that the three applications should have been allowed a trial period of up to 30 calendar days under Rule 23.29.
The Company does not agree.
It is common ground that a memorandum of agreement between the parties, executed on October 24, 1986 establishes rules for closed seniority areas in the paint and upholstery shops at North Bay. That agreement provides, in part, as follows:
3. When permanent vacancies occur in the Paint Shop or the Upholstery Shop, they will first be bulletined within the respective shops, the North Bay Terminal and then to the system in accordance with Rules 23.11 and 23.13.
A qualified application who is appointed to the vacancy will, after 90 days, be placed on the permanent Paint Shop or Upholstery Shop list and will not thereafter be allowed to bid out. He may, within the ninety day period, revert to his former position and employees affected thereby will revert to their former positions.
Should there be no qualified applicants, the company will have the option of:
(i) appointing an unqualified applicant who will transfer his seniority into the respective closed seniority group after 90 calendar days, or,
(ii) set up an apprentice or a trainee who will, upon appointment, be subject to Section 1 hereof, or of
(iii) hiring a qualified person directly into the vacancy.
Article 23.29 of the collective agreement is also pertinent to the resolution of the grievance. It provides as follows:
23.29 An employee claiming a position in the exercise of seniority, who in the judgement of the Company cannot reasonably be expected to qualify to perform the duties required within a period of 30 calendar days or less, shall not be denied such position by Management without prior consultation with the local representative of the craft concerned.
An employee exercising seniority, who, in the judgement of the Company can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that by mutual agreement between the General Chairman and the proper officer of the Company, such period may be extended up to 90 calendar days in order to demonstrate his ability to perform the work required.
Should an employee be denied a position being claimed in the exercise of seniority, or should he fail to qualify during a trial period, he and his authorized representative will be entitled to receive an explanation in writing from the proper officer of the Company, including the reason for the decision rendered, which shall be subject to appeal in accordance with the grievance procedure.
Where an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to his former position. This will not necessitate additional bulletins.
The material facts are not n dispute. Pursuant to the implementation of the memorandum of agreement of October 24, 1986 two painters transferred out of the paint shop and their positions were bulletined accordingly. The Company judged that the three grievors were not qualified applicants and could not reasonably be expected to qualify within 30 calendar days or less. The Company then proceeded to appoint an apprentice pursuant to article 3(ii) of the memorandum of agreement and also decided to allow an unqualified applicant to bid for the remaining position effective March 16, 1987. An unqualified employee senior to the three grievors succeeded in obtaining that position, although he chose to vacate it within ninety days. The Company then reverted to hiring a qualified person from outside the bargaining unit, pursuant to subparagraph (iii) of article 3 of the memorandum of agreement.
Whether the grievance is determined on the language of the memorandum of agreement or on the specific provisions of article 23.29, the arbitrator has some difficulty seeing how the Union can succeed. Firstly, the memorandum of agreement clearly provides three options to the Company in the event that there are no qualified applicants. It does not appear disputed that that was the situation in the instant case. The Company was therefore justified in establishing an apprenticeship and, secondly, appointing the senior, unqualified applicant, as it did. I can see nothing in the language of the memorandum of agreement that would have prevented the Company from pursuing either of those options or, when the unqualified applicant reverted from the position in the paint stop within ninety days, to avail itself of its right to hire a qualified person directly into the vacancy. If it had been the intention of the parties in establishing tie memorandum of agreement that all vacancies must first be made available to unqualified bargaining unit members, the parties could have so provided in clear and unequivocal language. Absent any such terms the Arbitrator cannot conclude that they did so intend.
The language of article 23.29 leads to the same conclusion. If anything, the position of the Company is stronger under the language of that article. The thrust of the Union’s complaint is that the grievors were denied a trial period in the paint shop. Before being allowed such an opportunity, the applicant must "in the judgement of the Company" reasonably be expected to qualify for the position. The language so framed vests a subjective discretion in the Company. In the face of such language an arbitrator ought not lightly interfere, absent evidence of arbitrary, discriminatory or bad faith treatment on the part of the Company. Those things are clearly not alleged in the instant grievance.
For the foregoing reasons the Arbitrator must conclude that the Company’s actions in filling the two vacancies within the paint shop fell within its prerogatives under the collective agreement, and no violation of the memorandum of agreement or article 23.29 is disclosed. For these reasons these grievances must be dismissed.
DATED at Toronto this 3rd day of March, 1988.
(signed) Michel G. Picher
Arbitrator