SHP 307

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

Brotherhood Railway Carmen of Canda

GRIEVANCE RE MATERIAL EXPEDITOR POSITION

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

Tom Wood System General Chairman

John Moore-Gough Great Lakes Region General Chairman

F. Gadbois St. Lawrence Region General Chairman

 

 

There appeared on behalf of the Company:

S.A MacDougald Manager, Labour Relations, Montreal

B. Laidlaw System Labour Relations Officer, Montreal

W.Armstrong Equipment Officer MacMillan Yard, Toronto

 

A hearing in this matter was held in Montreal on May 3, 1990.

 

AWARD

The Union grieves the failure of the Company to bulletin a carman's position at MacMillan Yard. The Statement of Dispute and Joint Statement of Issue are as follows:

DISPUTE:

The bulletining of the position of Carman R. Edgar at MacMillan Yard Toronto.

JOINT STATEMENT OF ISSUE

In October of 1987, Carman R. Edgar held a position of Carman at the MacMillan Yard Cleaning Plant. He was subsequently reassigned to the Car Shop at MacMillan Yard.

The Brotherhood submitted a grievance which alleged a violation of Rule 33.11 of Agreement 12.35 contending that the position should have been bulletined in accordance with Rule 23.11. During the grievance procedure the Company agreed that such a bulletin should have been issued. The Brotherhood contends that the position should have been bulletined as a Material Expeditor position separate from any other Carman position existing within the Car Shop.

The Company disagrees with the Brotherhood's contention and has declined to issue the job bulletin in the manner requested by the Brotherhood. The Brotherhood contends that the Company is in violation of Rule 23.11 by not issuing the job bulletin in the manner requested.

The Company disagrees and denies the alleged violation of Rule 23.11.

The material establishes that for some years Carman D. Sheen held a position on the 08001600 shift with Saturday and Sunday as rest days in the stores area of the car shop. While there is some dispute as to what the position was called during Mr. Sheen's incumbency, it does not appear disputed that the duties and responsibilities which he discharged have come to be designated by the job title of "Material Expeditor". The function of the position is largely clerical, and involves assisting in the ordering, purchasing and distributing of parts and materials required by the car department. The incumbent in the job works principally at a desk in the stores department has a telephone, access to the micro-fiche system and occasionally leaves that location to either obtain or deliver parts and materials as required. Because of the duties as well as the days and hours of work involved, the position of Material Expeditor is one which some employees would view as highly desirable.

The material discloses that Mr. Sheen successfully bid onto an Industrial Inspector's position and that on October 14, 1987 Carman R. Edgar was assigned to the Material Expeditor's position with Fridays and Saturdays as rest days, working on the 0800 to 1600 shift. The Union then objected to the Company's failure to bulletin the position under the provisions of article 23.11 of the collective agreement. During the course of subsequent discussions the Union suggested that the Material Expeditor's job should be designated as a "light duty position". Superintendent H. Emmerson then indicated that the Union's suggestion would be considered by the Company. However, nothing further transpired and the Union filed a formal grievance on January 18, 1988. Subsequently, on July 11, 1989, the Company awarded Mr. Edgar a position of carman in the car shop on the 08001600 shift with Friday and Saturday as rest days, pursuant to Bulletin C1789.

Thereafter, on September 27, 1989 the Company, in its Step IV reply acknowledged that it had violated article 23.11 by assigning Mr. Edgar to the Material Expeditor position. It asserted however, that the violation had been rectified when Mr. Edgar successfully bid into a car shop position with the same hours of work and rest days on July 11,1989.

The Union's representative submits that the Company could not arbitrarily designate the position of Material Expeditor as being within the car shop, and argues that it should have been separately designated as a specific position in stores which could be bid on by employees on the basis of their seniority. The Company's spokesman, on the other hand, maintains that it was within the discretion of the Company to designate the Material Expeditor's position as falling within the car shop, and that once Mr. Edgar had successfully bid into the car shop the Company was entitled to assign him to that job.

In the Arbitrator's view neither of the positions put forward by the parties is fully compelling in the context of this grievance. Rule 23.11 provides as follows:

23.11 When vacancies occur for which replacements are required, or new jobs are created or additional staff is required in a classification in the craft for an expected period of 90 calendar days or more such vacancies or new jobs shall be bulletined for a period of not less than 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 23.29, the local committee to be consulted.

Within a main shop, successful applicants will be permitted to move within fifteen (15) calendar days of the close of the bulletin. The period may be extended to 30 days by mutual agreement with the General Chairman.

It is common ground that rule 23.29 referred to within rule 23.11 relates to the qualifications of an employee claiming a position.

Article 33.14 also relates to bulletins in the context of displacement. It provides as follows:

23.14 The exercising of seniority within a seniority terminal to displace a junior employee shall not be permitted except when positions are abolished, or rate of pay or hours of work or days off are changed.

The affected employee shall have the right to displace the junior employee in the designated work area of his choice with the shift, days off, hours of work and rate of pay of his choice of except as may be provided in the Craft Special Rules. Apprentices shall be considered to be in the same Classification as Carmen for the purposes of determining who is the Junior Employee.

For the purpose of this Rule 23.14 the designated work area shall be as defined in bulletining positions in accordance with Rule 23.11.

Such employee initially affected shall be given, during his regular working hours, as much advance notice as possible, but in any event, not less than twenty-four hours. The affected employee shall make his intentions known within forty-eight hours of notification and subsequent displacement shall be made without undue delay. The Local Committee shall be consulted.

(Emphasis added)

The Company stresses that the designated work area referred to in the above rule is the basis for the bulletining process. It argues that positions in a designated work area are not discrete positions, but rather a pool of positions with certain shifts, days off, hours of work and rates of pay attached, among which the employees may be assigned interchangeably. It submits that the car shop is a designated work area within the context contemplated in rule 23, and has for many years been the "designated work area" shown on bulletins issued under rule 23.11.

In my view this grievance must be resolved having regard to the prior award of Arbitrator Weatherill in a grievance between the Railway Association of Canada and Division No. 4, Railway Employees Department (Award dated October 17, 1977). That grievance concerned five job bulletins issued in respect of machinists' jobs by CP Rail at its Angus Shops. The Union contended that the bulletins which simply designated the nature of the work as "machinist" were insufficient for the purposes of informed bidding by employees as contemplated by article 23.11. That grievance was sustained by the arbitrator. In so concluding Arbitrator Weatherill made the following comments at pp.6-9:

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 at the seniority terminal where they are created", of "vacancies for which new jobs are required" or "new jobs in a classification in a craft".

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, Bulletin No. 22, the description of the work available simply as that of "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, Bulletin No. 65, 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.

While article 23.11 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. Again, with respect to a job bulletin at the Weston shops on the Prairie Region, the posting of a number of "Machinist" positions in the Millwright shop, and the description of the work as that of "Millwright or any other Machinist duties that may be required", was considered adequate in that case. Where, however, significant details can be given as to the particular work involved, as in various other 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 any provisions of the collective agreement (nor could it be, since this award does no 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 to fill in, temporarily, for the employee so assigned.

What is in issue in this case, however, is simply the sufficiency of the job bulletins referred to. It is my award, for the reasons above set out, that those notices did not sufficiently comply with the requirements of article 23.11. No other relief is sought than this finding, since the jobs were filled by senior applicants who apparently had sufficient appreciation in fact of what jobs were involved.

In the Arbitrator's view the above passage speaks appropriately to the merits of this case. Bulletin C1789, the instrument by which the Company maintains Mr.Edgar properly bid into the Material Expeditor's position provides no indication of the nature of the job made available by Mr. Sheen's departure. There is no material before the Arbitrator to disclose that the Material Expeditor's job was ever bulletined previously or, for that matter, treated as being part of the car shop. It appears from the record that for a time, in the early stages of the grievance, the Company asserted that the position was in fact related to the cleaning plant. In the Arbitrator's view what has transpired is the establishment of a new job within the car department. I am satisfied that it was within the prerogative of the Company to bring the Material Expeditor's position within the car shop for the purposes of bulletining under rule 23.11. For the reasons related by Arbitrator Weatherill in the above noted award, I am not satisfied that the bulletin provided sufficient information to enable employees to bid fairly in respect of that newly-created position, particular in light of its obvious distinction from other jobs within the car shop. In my view this conclusion is also supported by the reasoning of Arbitrator Weatherill in SHP 259, an award between VIA Rail Canada Inc. and International Association of Machinists and Aerospace Workers more recently issued on February 27, 1989.

For the foregoing reasons the grievance is allowed, in part. The Arbitrator finds and declares that the bulletining of the position of Material Expeditor was not done in accordance with article 23.11 of the collective agreement insofar as potential applicants were deprived of insufficient information in respect of this new position. I am satisfied, however, that the Company was entitled to establish the position within the car department, and see no reason to depart from the observations of Arbitrator Weatherill with respect to the Company's flexibility of assignments within the departments, a matter quite separate from the sufficiency of a bulletin. The Company is therefore directed to re-bulletin the position of Material Expeditor in accordance with rule 23.11 of the collective agreement, in accordance with the principles expressed in this award. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this Award.

DATED at Toronto this 7th day of May, 1990.

(sgd) M. G. Picher

Arbitrator