SHP
IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN NATIONAL RAILWAY COMPANY
AND
National Automobile Aerospace and Agricultural Implement Workers Union of Canada
GRIEVANCE RE M. HAWRELLUK
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
J. R. Moore-Gough – General Chairman, Great Lakes Region, Local 100
Tom Wood – System President, Local 100, General Chairman
John Fix – General Chairman, Mountain Region Local 100
There appeared on behalf of the Company:
D. A. Watson – System Labour Relations Officer, Montreal
S. A. MacDougald – Manager, Labour Relations, Montreal
L Dines – Equipment Supervisor, Northern Ontario District, Capreol, Ontario
D. Laurendeau – System Labour Relations Officer, Montreal
K. Hall – Labour Relations Officer, Edmonton, Alberta
A hearing in this matter was held in Montreal on July 13, 1992.
AWARD
This arbitration relates to the claim Of Carman M. Hawrelluk in respect of the refusal of his application for the secondary assignment as regular road repair truck operator at Capreol. The Dispute and Joint Statement of issue filed at the hearing are as follows:
DISPUTE:
Claim on behalf of Carman M. Hawrelluk account not awarded the secondary assignment under the terms of Appendix VIII of Agreement 12.35 which performed the duties of Road Repair Truck Operator at Capreol, Ontario.
JOINT STATEMENT OF ISSUE:
On July 23, 1990, the Company posted Bulletin #1 advertising a secondary assignment for a regular position as road repair truck operator at Capreol. Carman M. Hawrelluk bid on this secondary assignment.
The requirements listed by the company for Bulletin #1 were as follows:
"Must be fully qualified in the U.C.O.R. and be in possession of a valid Railway Watch. Have passed a CN Medical and hold an indate Form 773. Be qualified in the Road Repair Truck, E73057 operation and be certified by CN Driving Instructors. Must hold a valid "DZ" Ontario Driver's License. Must be physically capable to perform duties.
The successful applicant will be required, at times, to work in severe inclement weather."
On July 30, 1990, the Company posted Bulletin #1A showing the successful applicant to the position on Bulletin #1 of "Road Repair Truck Carman – Permanent" on Bulletin #1 to be Carman D. St. Cyr, who was junior to Carman Hawrelluk. Carman St. Cyr possessed a class "D" Ontario drivers licence and he had written the "D" book of the U.C.O.R. which the Union contends was outdated.
Carman Hawrelluk was advised by letter dated August 27, 1990 that he was not awarded the position in dispute because he did "not possess the necessary qualifications required for this position."
The Union contends that the Company violated Item 4 of Appendix VIII when Mr. Hawrelluk was denied the secondary assignment position of Road Repair Truck Operator in favour of Mr. St. Cyr, a junior employee to Mr. Hawrelluk.
The Union further contends the Company violated Rule 23.29 of Agreement 12.35 by not providing Mr. Hawrelluk a trial period of thirty calendar days or less in which to qualify for the position.
The Union also contends that the Company's actions were contrary to past practice.
The Union requests that Carman Hawrelluk be awarded the position of Road Repair Truck Operator for the Capreol Terminal and that Carman Hawrelluk be compensated for all wages and benefits lost, including overtime, as a result of not being awarded the position on July 30, 1990.
The Company disagrees and has declined the Union's request.
***
The road repair truck is a 10-ton vehicle which travels either on highways or on rail. It is generally utilized as an emergency vehicle in effecting field repairs, as well as in general yard operations. The driver of the truck must possess a "DZ" class of driver's licence. Appendix VIII of the collective agreement contains the following provisions:
1. At locations where Carmen are required to protect emergency services such as conventional auxiliaries, hy-rail cranes, wreck dozers, and road repair trucks, they shall be given an opportunity, by bulletin, to bid on the position they wish to protect. For each such service there shall be a regular list and a spare list. Where practicable Carmen will be permitted to hold a position in only one such service at any one time.
Vacancies in positions in regular list and on spare lists will be bulletined to Carmen at the point where protection is required within the Seniority Terminal. The allotment of positions will be based on qualifications, seniority and the conditions specified herein.
Carmen who are protecting a service which requires that they drive a motor vehicle on highways or other public roads must equip themselves with the necessary driver's license in accordance with the applicable Provincial Motor Vehicle Act. In addition they must pass the Company's driver's test and medical examination.
The qualifications contained in the job posting included passing the CN driver's test, holding a valid "DZ" class driver's licence and passing book "D" of the Uniform Code of Operating Rules. In addition, the applicant must be qualified in the operation of the road repair truck, and be so certified by CN instructors. It is not disputed, however, that all of the above qualifications could be obtained within the Company, following relatively routine instruction which is generally made available to employees. The material before the Arbitrator establishes that a number of carmen at Capreol were provided such training after they successfully bid on positions similar to the position that is the subject of this grievance.
In the case at hand there was a period of some 30 days between the time the position was awarded, and the commencement of the employee's responsibilities, effective August 31, 1990.
Rule 23.29 of the collective agreement 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 by 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.
When an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to the employee's former position, but if it has been abolished in the interim the employee must displace under the provision of the second paragraph of Rule 23.14. This will not necessitate additional bulletins.
As a general rule, boards of arbitration are reluctant to interfere where determinations in respect of the awarding of a job bulletin are, by the express terms of the collective agreement, vested within the judgement or discretion of the Company. In the instant case, however, the Arbitrator has substantial difficulty, absent any evidence advanced by the Company, in finding that it could reasonably, and in good faith, have formed the opinion that the grievor could not reasonably be expected to qualify to perform the duties of the bulletined position within the thirty calendar day period. It is common ground that the grievor had prior experience in driving the road repair truck, and that he had been successful in doing so. The material establishes that the passing of a two-hour road test would have been sufficient for the grievor to be qualified for a class "D" Licence, and that the test for the air brake endorsement, for a "DZ" licence could be written without great difficulty. This in fact occurred with respect to the grievor on November 5 and 8, 1990, some time after the events giving rise to this grievance. In addition, there was no extensive training required for the grievor to obtain his "D" book in the Uniform Code of Operating Rules. Orientation and testing for that accreditation is regularly conducted for employees on both a first time and renewal basis, by the Company's own instructors, at a number of locations in Ontario.
On balance, the Arbitrator is satisfied that Mr. Hawrelluk would have qualified to perform all of the duties required of the road service truck drive within a period of thirty calendar days or fewer from the awarding of the position, and that the Company had no reasonable basis, absent arbitrariness or bad faith, to arrive at any contrary judgement. The undisputed evidence before the Arbitrator indicates that prior bulletins for the same and similar positions have generally been expressed in terms of the applicant being willing to take the necessary qualifications. For example, bulletin no. 48, issued on October 4, 1989 for spare road repair truck operators, contained the following qualification:
Must be qualified in or be prepared to write and pass book "D" of the Uniform Code of Operating Rules and qualify under Form 836 and MBS.
The same bulletin further provided that the applicant must:
Be prepared to pass a CN Driver's Test and be qualified to drive and operate the Road Repair Truck on Public Highways at any time as required.
In the face of that evidence, and of the past practice of the Company, the Arbitrator is persuaded that the position advanced by the Union is well founded. Mr. Hawrelluk, the senior applicant, was in a position whereby the Company might, by the exercise of good faith, have judged him as reasonably to be expected to qualify to perform the duties of the position within thirty calendar days of it being awarded to him. In the circumstances, I must conclude that the grievor's rights were violated in respect of the application of Rule 23.29 of the collective agreement.
For the foregoing reasons the grievance is allowed. The position of Road Repair Truck Operator, Capreol, Ontario shall be deemed awarded to the grievor, effective July 30, 1990 and he shall be compensated for any wages or benefits lost, including overtime, as a result of the denial to him of the position. The Arbitrator retains jurisdiction in respect of any dispute between the parties regarding the interpretation or implementation of this award.
DATED at Toronto this 27th day of July, 1992.
(sgd) M. G. Picher
Arbitrator