SHP 301
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC LIMITED
AND
Brotherhood Railway Carmen of Canda
re GRIEVANCE of G. BASTIEN - DENIAL OF A LEAVE OF ABSENCE
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
B.R. McDonagh – System General Chairman
L. Carozza – General Chairman, Atlantic Region
There appeared on behalf of the Company:
D.J. David – Labour Relations Officer, Montreal
A.Y. deMontigny – Supervisor, Personnel and Labour Relations, Mechanical Department
C. Thibault – Personnel Development Officer, Angus Shops
A hearing in this matter was held in Montreal on April 5, 1990.
AWARD
This arbitration is in relation to the Company's refusal of an unpaid leave of absence to the grievor, Carman G. Bastien The following statement was filed by the parties at the hearing:
DISPUTE
Grievance submitted on behalf of Carman G. Bastien, Angus Shops, Montreal, Quebec with respect to his being denied a leave of absence.
JOINT STATEMENT OF FACT
On September 19, 1988, a grievance was submitted on behalf of Carman G. Bastien concerning his being denied a leave of absence for the period of time between September 6, 1988 and December 6, 1988 inclusive.
JOINT STATEMENT OF ISSUE
It is the position of the Brotherhood Railway Carmen that the Company has treated Carman G. Bastien in an unjust manner and has violated Rules 15.1 and 153 of the collective agreement, therefore, Carman G. Bastien should have been granted his requested leave of absence.
The Company denies the claim.
The material establishes that on August 29, 1988 the grievor requested the leave of absence, without pay, from September 6, 1988 to December 6, 1988. It is common ground that the grievor wished the time off to pursue a personal business venture. The material further establishes that the Company did not then have any laid off carmen who could be recalled to replace the grievor. The following rules of the collective agreement are pertinent to this grievance:
15.1 When the requirements of the service will permit, employees will be granted leave of absence, not to exceed 90 days, with the privilege of renewal by consent of the Management and Committee.
15.2 Any employee engaging in other employment whilst on leave, except with consent of Management and Committee, shall be considered out of the service.
15.3 The arbitrary refusal of a reasonable amount of leave to employees when they can be spared, or failure to handle promptly cases involving sickness or business matters of serious importance to the employee, is an improper practice and may be handled as unjust treatment under this Agreement.
The Union alleges that the Company has violated Rule 15 by arbitrarily denying the grievor's request. The Arbitrator cannot sustain that position. The history of Mr. Bastien as an employee does not disclose unfair treatment of him by the Company with respect to requests of this kind. It is common ground that he was previously given an extended leave of absence of some ninety days in the early part of 1986, to enable him to complete a job which he had undertaken with a private contractor during the course of a layoff. When the subsequent request was made by Mr. Bastien in August of 1988 the circumstances at the Angus Shops were extremely pressing with respect to the services and availability of carmen. There was, very simply, no one to replace him, and because of the volume of work orders on hand, the Company could not spare his services. Additionally, as was previously noted by the Arbitrator in Ontario Northland Railway and Railway Employees' Department Division No. 4 (Award dated April 26, 1975):
A six month leave of absence to take other employment is simply not the sort of request which was contemplated in Rule 15.
In regard to all of the facts before me, and in particular the pressing requirements of the Company and the reasons underlying the grievor's request, I can find no violation of Rule 15 in the circumstances. For these reasons the grievance must be dismissed.
DATED at Toronto this 17th day of April, 1990.
(sgd) M. G. Picher
Arbitrator