SHP 234
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO NORTHLAND RAILWAY
(the "Company")
- and -
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
(the "Union")
GRIEVANCE RE J. P. RICHARDSON
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 fact are as follows:
JOINT STATEMENT OF THE PARTIES
Dispute
Claim of J.B. Richardson that he should have been assigned as truck driver on Friday, May 9, 1986.
Joint Statement of Fact
On Friday, May 9, 1986, the regular truck driver was set up as relief foreman. It was decided by the company not to fill his position that day. The duties of the truck driver's position include the inspection of the Northlander train at the station on Fridays when the regular car inspector is on his assigned rest day.
On this particular Friday, the supervisor sent carman Schiavo from the rip track to inspect the train. On his return trip from the station, Mr. Schiavo was required to pick up some material. The total time involved for the inspection and the pick-up was approximately two hours.
The Brotherhood claims that Mr. Richardson, who was occupying a position of checker, and who was senior to Mr. Schiavo in the pool, should have been offered the work performed by Mr. Schiavo on the truck job.
The company does not agree.
The Union relies on the terms of article 23.12 of the collective agreement:
23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the respective crafts for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the local committee to be consulted in each case.
Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this clause annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23.12.
Rule 11 of the collective agreement also addresses the circumstance of a temporary assignment:
11.1 When an employee is required to fill the place of another employee receiving a higher rate of pay, he shall receive the higher rate but if required to fill, temporarily, the place of another employee receiving a lower rate, his rate will not be changed.
The Company's representative maintains that it is not bound by the obligations of rule 23.12 in the circumstances of this case because the assignment in question, being of some two hours, was less than a day in duration. It is not disputed, however, that the junior employee assigned to the truck driver's duties was, for the duration of that time, replacing the regular truck driver who was assigned as relief foreman. In the arbitrator's view this plainly falls within the concept of a "vacancy" within the collective agreement. If the truck driver's position had attracted a higher rate of wage, there can be little doubt that rule 11.1 would have applied for the benefit of the employee temporarily assigned to fill the vacancy. It appears that that would be so, whether or not the assignment was for a day or more.
The collective agreement contains no definition of "vacancy" to which the arbitrator was referred, nor did the Company point to any provision in the collective agreement to support its position that a vacancy must involve an assignment in excess of one day. It is common for collective agreements to address the concepts of permanent and temporary vacancies, and frequently to define with some precision the length of what is considered a temporary vacancy. The instant agreement contains no such limitations. In the circumstances the Arbitrator cannot accept the interpretation advanced by the Company.
The material establishes that for a substantial portion of the working day on Friday, May 9, 1986, that being some two hours, an employee junior to the grievor was assigned to perform the work of the regular truck driver who was himself temporarily reassigned.
I am satisfied that in these circumstances the regular truck driver's position must be viewed as temporarily vacant and that the grievor, as the senior qualified employee, had a right to claim the position.
The grievance is therefore allowed. As there was in fact no difference in wages impacting upon the grievor, that no remedial order beyond the foregoing declaration is necessary.
DATED at Toronto this 3rd day of March, 1988.
(signed) Michel G. Picher
Arbitrator