IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
AND IN THE MATTER OF A GRIEVANCE RELATING TO THE ADEQUACY OF BULLETIN NO. 40 AT THE MONTREAL MAINTENANCE CENTRE
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
K. W. Taylor
K. A. Pride
A hearing in this matter was held in Montreal on February 23, 1989.
The grievance in this matter, dated December 1, 1987, reads as follows:
La compagnie viole la convention collective no. 7 article 12 et tout autre article si correspondant, en ne respectant pas la séniorité et ne mentionnant pas le département auquel est référé le poste lors de l’affichage du bulletin no. 40 et tout autre bulletin antérieur au Centre de Maintenance de Montréal.
Je réclame donc l’affichage mentionnant "le département comme par exemple: le "servicing". le "heavy repair", le "fuel plan", etc.
Separate statements of fact and issue were submitted by the parties. There are, however, no very significant differences in the two statements, and it will be sufficient to set out that of the company:
Prior to December 1987, bulletins advertising vacancies for positions covered by Collective Agreement No. 7 and other Shop Craft Agreements identified the work areas as being Ville St. Pierre (VSP), MMC or Central Station.
On December 1, 1987, the Association submitted a grievance, copy attached, claiming that the bulletins should indicate the departments, for example: servicing, heavy repairs, fuel plant, etc.
With the opening of new MMC facilities and the closing of the VSP shops, and after consultation with representatives of the unions, it was agreed by the other unions that thereafter bulletins would identify the work areas as being:
The Association has grieved that these work locations are in violation of Rule 12.
It is the Corporation’s position that the locations being advertised properly reflect the type of work to he performed and thereby comply with the intent of Rule 12.
The bulletin complained of, bulletin M-40, was issued on November 27, 1987, was addressed "to all Machinists", and listed some ten vacant positions (one temporary) for which applications might be made. A typical position was described as follows:
Un (1) machiniste/One (1) machinist
Quart/Shift: 08h00 a 16h00
Conges/Rest Days: Sam.-Dim./Sat.-Sun.
In each case, the location of the vacant job was given as either Ville St-Pierre, or Maintenance Centre. The issue is whether or not such a description of the vacancy was a sufficient compliance with the requirements of the collective agreement, and in particular of Rule 12.1. Rule 12 deals generally with bulletining and filling of positions. Rule 12.1 is as follows:
12.1 When vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification 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 Rule 12.4. The Local Chairman is to be consulted accordingly.
In Shopcraft Case No. 45, (17 October, 1977), a case between different parties (although the parties there may, by succession, be considered to have included the present parties), but involving collective agreement language substantially identical to that of the present collective agreement, the issue was put in the following way in the award (at p. 6 thereof):
The union contends that the job bulletins are insufficient in that they do not set out sufficient detail with respect to the job in question to permit employees to exercise a meaningful choice with respect to the vacancy. The company’s position is that employees in the Shopcraft trades may be expected to perform any work in the trade for which they are qualified. These two positions are, in fact, not contradictory. The issue to be determined is, of course, whether the bulletins referred to comply with the requirements of article 23.11. That article requires the posting "to employees in the classification in the seniority terminal where they are created" of "vacancies … for which [replacements] are required" or "new jobs – in a classification in a craft".
That case was cited in the submissions of both parties to the present grievance. The general principle on which the case was determined was not put in issue, although the company in the present case referred to certain other changes in the collective agreement which it considered affected the interpretation of Rule 12.1. I shall deal with those arguments later in this award, but it will be well first to set out the principle grounds for the decision in the earlier case, which in my view apply (at least as a general matter) equally in the present case:
In my view, this article calls for the posting of a particular vacancy, in the sense of a particular job of work to be done, and not simply the announcement of an increase in, or the continuation of the complement required in any classification. Thus, in the first example above cited [which appears, in fact, to have been slightly more detailed in terms of location than the notices in the instant case] … the description of the work available simply as "Machinist" is not sufficient, because of the wide range of possible work to which it might refer. It may be, as the company argues, that anyone classified as a "machinist" should be expected to perform any machinist’s work, but the issue here is as to the sufficiency of a bulletin, and in that respect, however qualified a machinist may be, he may only be interested in applying on Job bulletins referring to particular vacancies. The second example given satisfies the requirements of the collective agreement in this regard, in that it indicates the particular sort of machinist’s work which is being offered.
It was argued by the company that under the present collective agreement, certain references which appeared in Wage Agreement No. 16 (which was the one to which Shopcraft Case No. 45 referred) are not to be found in the present agreement. Such references, such as to "section (department)" of a shop, in an appendix to the agreement, or to "the designated work area", in what was Rule 23.14, were not relied on in reaching the conclusion set out in the award in Case No. 45. In that case, as in the instant case the issue was as to the sufficiency of bulletins posted in respect of "vacancies" or "new jobs". The purpose of the provision in each case is to provide information to employees so they may bid for such jobs. The purpose of the provision is met, in my view, and the agreement complied with, where sufficient information is set out to allow the employees to exercise a meaningful choice. In the instant case, it would, for example, be a relevant and important consideration for an employee considering a bid that the posted job was one required to be performed, to a substantial degree at least, in an outdoor location.
The employer itself appears not to disagree with this, and notes that in some cases the specification in the job notice of particular qualifications will indicate to employees where the work is to be performed. That may be true for some jobs, although there would appear in such cases to be no good reason not to mention the work area explicitly rather than leave it to the employees to make the necessary deductions, but there may be other cases where, although no special work qualifications are required, the area in which the work is to be performed would be of considerable, and proper, interest to a potential bidder.
The union does not seek unreasonable particularity in the indication of work locations or in the description of the assignment. Indeed, the particular relief requested involves only slightly more detail than that which the company appears to have agreed to with other unions. It may be that this simply reflects differences in the nature or number of assignments made to Machinists in these areas.
Certain general comments were made in [SHP] Case No. 45 which in my view apply equally here, and are not affected by the other changes in the collective agreement which have been referred to. Those are found at pp. 7 and 8 of that award, as follows:
While article 23.11 [here, Rule 12.1] requires, in my view, the description (in general terms) of the vacancy or job involved, there are certain comments which should be made, having regard to the arguments presented at the hearing, and to the general nature of this interpretation. One is that the sufficiency of the posting is to be determined having regard to the circumstances of each case. It is to be noted, for example, that the posting of a vacancy for a "Welder" in the Welding Department at Angus shops, and the description of the work as "welding" was considered by the union to convey sufficient information to permit potential bidders to appreciate the nature of the work involved. Where, however, significant details can be given as to the particular work involved, as in the various examples offered by the union, that should be done.
It is further to be noted that the description or detailing of the particular work involved in a job bulletin does not in itself commit the company to any sort of exhaustive or exclusive definition of the job. The company’s entitlement to assign work Is not restricted to any greater degree by what is held in this award than it may already be by the provision of the collective agreement (nor could it be, since this award does more than indicate the application of article 23.11 to particular circumstances). Again, article 23.11 does not create "job ownership". The union explicitly acknowledges that the company may, where the requirements of operations necessitate, assign different work to any employee holding a bulletined job, and that it may assign other employee(s) to fill in, temporarily, for the employee so assigned.
In the instant case, the union agreed that in two cases, "Coach Yard" and "Central Station", the descriptions of the work location were sufficient. In the other three, the union sought what I consider, on the material before me, to be a reasonable additional degree of particularity. The list of locations proposed by the union is as follows:
A. Locomotive Maintenance
C. Plant Maintenance
D. Coach Yard
E. Central Station
For all of the foregoing reasons, the grievance is allowed. My award is to declare, as requested, that the list of locations above cited is – or at least was at the material times – an appropriate one from which to indicate the general work locations at the Montreal Maintenance Centre, for the purposes of Rule 12.1. Simply to refer to "Maintenance Centre" was inadequate, and not sufficient compliance with the Rule.
DATED AT TORONTO, this 27th day of February, 1989.
(signed) J. F. W. Weatherill