SHP 314
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
AND
Brotherhood Railway Carmen of Canda
GRIEVANCE RE P. KYDD
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
There appeared on behalf of the Company:
D. A Watson – System Labour Relations Officer, Montreal
S. A MacDougald – Manager, Labour Relations, Montreal
W. A Armstrong – Equipment Officer - Car, Northern Ontario District
W. F. Duk – Assistant Superintendent Car, Northern Ontario District
A hearing in this matter was held in Montreal on July 5, 1990.
AWARD
At the hearing the parties filed the following Statement of Dispute and Joint Statement of Issue:
DISPUTE
Claim on behalf of Carman P. Kydd account not being permitted to displace onto a position which performed the duties of Hi-Rail Crane Operator at MacMillan Yard, Ontario.
JOINT STATEMENT OF ISSUE
Mr. Kydd was advised on January 25, 1988, that he was displaced by a senior employee from his permanent bulletined position. Mr. Kydd attempted to displace Carman Irving from the Carman position which also worked as Hi-Rail Crane Operator. Mr. Kydd did not possess the necessary Class "A" license required for the Hi-Rail Crane Operator position that existed at that time and thus was not permitted to displace onto the position.
The Brotherhood contends that the Company violated Rule 23.29 when Mr. Kydd was not permitted to displace Carman Irving and that the Company's actions were discriminatory and contrary to past practise, in that Mr. Kydd was subsequently awarded the position on May 11, 1988, as a result of Bulletin C-10-88. The Brotherhood requests Mr. Kydd be compensated all lost wages including overtime as a result of not being permitted to displace onto the original position.
The company denies the alleged violation and has declined the Brotherhood's request.
The grievor is a carman employed at MacMillan Yard in Toronto. Having being displaced from his own position, on February 2, 1988 he sought to exercise his seniority to displace Carman R. Irving from the position of relief Hi-Rail Crane Operator on the 08:00 - 16:00 shift, with Tuesdays and Wednesdays off. He was refused the opportunity to so bump, on the basis that he did not have a Class `A' driver's license. It is common ground that the Hi-Rail Crane Operator requires such a license to drive the mobile crane to various work sites. The position of the Union is that the Company was under an obligation to give Mr. Kydd a reasonable opportunity to obtain that license as part of the exercise of his displacement rights. The Company maintains that it has no such obligation in respect of a displacement, although it does in a job posting.
It is common ground that subsequently Mr. Kydd was a successful applicant pursuant to a job bulletin for the position of relief Hi-Rail Crane Operator, on the very shift which was earlier denied to him. He then successfully completed a trial period, which included training provided by the Company, and obtained his Class `A' driver's license.
The position of the Company is that upon its initial refusal to allow Mr. Kydd to exercise his seniority into the relief Hi-Rail Crane Operator's position, there was no violation of the collective agreement. It maintains that while article 23.29 provides for a trial period, it does not require that the Company provide training, and that in the circumstances the Company was reasonably entitled to hold the opinion that the grievor did not have the necessary qualifications, and could not be expected to have them within the span of the 30-day trial period.
The Union relies, in part, on a prior agreement made in respect of the settlement of an earlier grievance. It submits that a position then agreed to by the Company prevents it from taking an opposite approach in the case of Mr. Kydd. Article 23.29 provides as follows:
An employee claiming a - position in the exercise of seniority, who in the judgement of the Company cannot reasonably be expected to qualify to perform the duties required within a period of 30 calendar days or less, shall not be denied such position by Management, without prior consultation with the local representative.
An employee exercising seniority, who in the judgement of the Company can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that by mutual agreement between the General Chairman and the proper officer of the Company, such period may be extended up to 90 calendar days, in order to demonstrate his ability to perform the work required.
Should an employee be denied a position being claimed in the exercise of seniority, or should he fail to qualify during a trial period, he and his authorized representative will be entitled to receive an explanation in writing from the proper officer of the Company, including the reason for the decision rendered, which shall be subject to appeal in accordance with the grievance procedure.
Where an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to his former position. This will not necessitate additional bulletins.
The prior agreement relied upon by the Union concerned the settlement of a grievance on September 29, 1983. At that time Company officer J.K Watson and General Chairman R. Hanlon reached an agreement, the terms of which were to have a more general application to MacMillan Yard. The letter of Mr. Watson is as follows:
Car Department, MacMillan Yard 30 September 1983
Mr. R. Hanlon Mr. J. Moore-Gough
General Chairman Local Chairman, 110
B.R.C. of U.S. and Canada B.R.C. of U.S. and Canada
3 Blakely Ave. Car Shop
Toronto, Ontario MacMillan Yard
As agreed to at the time of our meeting which was 29 September 1983 and having particular reference to a grievance involving Mr. R. Sproule which was originally submitted to my office on 18 November 1982, addressed to W.F. Duke who was Acting General Foreman at that time.
As requested by Mr. Hanlon and agreed to by the writer, because Mr. Sproule is now in a position on the Road Repair Truck your request is to cover future instances which are covered by Article 23.11 and 23.14 of the Wage Agreement 12.1. Your request was specifically that we will provide training for the senior applicant who bids a job where a class of license is a part of the requirements. For example, if there are three bids received on a Road Repair Truck position and the senior applicant does not have an appropriate license, he will be given training to allow him to upgrade his license thereby qualifying for the position. The amount of time provided for the training will be negotiated between the Local Chairman of the B.R.C. of U.S. and Canada and the General Foreman.
This will be considered as sufficient for full settlement of the original grievance.
In the grievance involving Mr. Dasilva, submitted on November 8, 1982, addressed to W.F. Duke who was Acting General Foreman at the time, as requested and agreed to by the writer, Mr. J. Moore-Gough will approach Mr. Dasilva who has changed his shift from the 1600-2400 to the 0800-1600 shift. Mr. J. Moore-Gough will ascertain whether Mr. Dasilva is still interested in securing a position on the afternoon 4-12 Road Repair Truck. If Mr. Dasilva is interested then we will make arrangements to allow him to occupy the position. If Mr. Dasilva indicates that he is not interested in the 4-12 Road Repair Truck Job, the grievance will be dropped.
J.K Watson
General Foreman
Article 23.14 concerns the exercise of the seniority in a displacement setting, such as obtained in the case of Mr. Kydd in February 1988. 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 except as may be provided in the Craft Special Rules.
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, no 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.
It is common ground that the agreement between Mr. Watson and Mr. Hanlon was not revoked at the time of the instant grievance. In these circumstances, therefore, and without making any comment on the distinctions that may be drawn between articles 23.14 and 23.29, the Arbitrator is compelled to conclude that the Company is estopped from denying the grievance of Mr. Kydd. The Union has plainly proceeded on an agreed understanding reached between the parties that article 23.14 would be interpreted so as to allow training for a senior applicant bidding into a job where a particular class of license is part of the requirements. That is what obtained in the instant case, and Mr. Kydd must be entitled to the protections so agreed.
For the foregoing reasons the grievance is allowed. The Arbitrator finds and declares that Mr. Kydd must be deemed to have been awarded the position of relief Hi-Rail Operator effective February 2, 1988. He shall be compensated for any wages or benefits lost, including overtime. The Arbitrator retains jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this Award.
DATED at Toronto this 19th day of July, 1990.
(sgd) M. G. Picher
Arbitrator