SHP 267
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO NORTHLAND RAILWAY
(the "Company")
- and -
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
(the "Brotherhood")
GRIEVANCE RE LYLE DAVIS
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
Brian Stevens –
André Bedard – General Chairman
APPEARING FOR THE COMPANY:
Michael Restoule – Labour Relations Assistant
R. Leach – Chief Mechanical Officer
W. G. Bishop – Superintendent Car Maintenance
A hearing in this matter was held in North Bay, Ontario on June 8, 1989.
DISPUTE
Assigning of Checker’s duties to Carman L. Davis.
JOINT STATEMENT OF FACT
On June 29, 1987, Mr. L. Davis was assigned to assist the regular checker, Carman B. Richardson, with checking duties.
The Brotherhood claims that this was a vacancy under Rule 23.12, that it should have been offered to the employees in the pool in seniority order and that Mr. Davis should not have been assigned to it as he was not the junior employee.
The company maintains that a vacancy did not occur and that the assigning of Mr. Davis was simply the proper exercise of a management function to assign tasks as indicated by work priorities.
For the Company: For the Brotherhood:
"P.A. Dyment" "A. Bedard"
AWARD
The material establishes that on the morning of Monday, June 29, 1987 Pool Carman Lyle Davis was assigned by Relieving Supervisor John Baker to leave his regular assignment and work for the day in the Checker’s Shack doing billing repair for the spot repair track. It is Mr. Davis’ view that under the provisions of Rule 23.12 he could not be forced onto the temporary vacancy in question if a junior carman was available in the pool. Rule 23.12 is as follows:
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.
It is common ground that in the instant case the need for Mr. Davis’s services in the Checker’s Shack was created by the temporary promotion of one of the two employees normally assigned to that location. The person regularly assigned to one of the two Checker’s jobs, Carman Sam Maisano, was assigned to a three-week temporary foreman relief position effective June 29, 1987. The Union maintains that the Company should have filled Mr. Misano’s vacancy in the Checker’s Shack by the operation of Rule 23.12 rather than simply assigning Carman Davis.
The Company’s position is that the situation did not involve a creation of a vacancy within the terms of Rule 23.12. Specifically it submits that as the replacement of Mr. Misano did not involve annual vacation relief, leave of absence, sickness or injury, the rule has no application. With this position the Arbitrator cannot agree. The list of circumstances giving rise to the creation of a vacancy for the purposes of Rule 23.12 is plainly not intended to be exhaustive or definitive. This, in the Arbitrator’s view, is reflected by the use of the phrase "etc." appearing within the rule immediately following the types of circumstances that may give rise to a vacancy. I find it difficult to believe that the parties would not have intended the provision to operate in the event of an extended absence from a position by virtue of the temporary promotion of the incumbent. Generally, the length of time an individual may be assigned for replacement duty cannot, on the language of rule 23.12, be seen as determinative of whether or not a vacancy has been created. This is not, moreover, an instance where an employee was assigned for only one or two hours or as extra help for the existing complement.
For the foregoing reasons the grievance must be allowed. The Arbitrator therefore finds and declares that the Company violated Rule 23.12. In light of that determination and the expectation that the Company will in good faith observe the provisions of the collective agreement, I find it unnecessary to make any express order that the Company refrain from any such violations in the future.
DATED AT TORONTO, this 12th day of June, 1989.
(signed) Michel G. Picher
Arbitrator