IN THE MATTER OF AN ARBITRATION
Ontario Northland Railway
International Association of Machinists and Aerospace Workers
GRIEVANCE re The filling of a vacant welder's position
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
Roger S. Barker – Regional Chairman, Lodge 413
There appeared on behalf of the Company:
M. J. Restoule – Labour Relations Assistant
R. G. Leach – Chief Mechanical Officer
J. J. Morrison – Superintendent, Car Equipment
R. Hardwick – Superintendent, Motive Power Maintenance
A hearing in this matter was held in Montreal on North Bay, Ontario on September 4, 1990.
The Dispute and Joint Statement of Fact and Issue filed at the hearing are as follows:
The filling of a vacant welder's position in the Diesel Shop when welder L.A. St. Amand was absent from work due to illness.
Joint Statement of Fact and Issue
Welder L.A. St. Amand was absent from work for an undetermined length of time for illness and the Company decided not to fill his position in his absence. Some minor welding was required on March 9, 1989 and the Company assigned another employee to perform the welding.
The Association entered a policy grievance requesting that the position be filled and claimed that the Company was in violation of Rule 23.12 of Agreement No. 12.
The Company denied the request stating that no violation of Rule 23.12 occurred.
A resolution was not reached through the grievance procedure.
The Union's claim is based on rule 23.12 of the collective agreement, which 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 be 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 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
The facts are not in dispute. Normally, welding is performed by a machinist permanently assigned to a bulletined welder's position When the incumbent in that job was temporarily ill the Company decided to let machinists perform their own welding on an "as needed" basis, rather than declare a temporary vacancy and assign one person to that function full-time.
The instant case does not involve the assignment of the welder's job to another employee in disregard of the seniority rights established in Rule 23.12 of the agreement. No one has been awarded a temporary position, as the work has been redistributed throughout the regular work assignments of the machinist in the shop. The Union has addressed the Arbitrator to no provision in the collective agreement which would prohibit the Company from redistributing the work on that basis. Indeed, it would appear to be free to do so should it decide to permanently abolish the welder's position There is, in other words, no requirement in the collective agreement that the Company maintain a permanent position of welder, or that it declare a temporary vacancy when the incumbent in that position is absent.
Canadian arbitral jurisprudence generally holds that the prerogative of declaring a vacancy is, subject to any contrary position in a collective agreement, exclusively the employer's. Moreover, this case is to be distinguished from the facts giving rise to the Award of this Arbitrator in a prior grievance between the Company and the Brotherhood of Railway Carmen of Canada, dated March 3, 1988. There it was found that the Company had assigned the work of a transferred employee to another employee, without regard to the requirements of Rule 23.12 of the collective agreement. On that basis the grievance was allowed. There is nothing in that award, however, to support the suggestion implicit in the Union's argument, that the Company is under an obligation to declare a vacancy. It can, as it did in the instant case, redistribute the work in question by assigning it, piecemeal, to all of the employees in the shop. In so reorganizing the assignment of work it has not violated any rule of the collective agreement.
For the foregoing reasons the grievance must be dismissed.
DATED at Toronto this 17th day of September, 1990.
(sgd) M. G. Picher