SHP - 397
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA)
RE: SECONDARY ASSIGNMENTS DURING TEMPORARY PROMOTIONS
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
J. R. Moore-Gough – General Chairman, Great Lakes Region
F. Fix – General Chairman, Mountain Region
APPEARING FOR THE COMPANY:
Joan Watt – System Labour Relations officer, Montreal
John Pasteris – System Manager, Labour Relations, Montreal
Derek Duckworth – Equipment Officer, Car Equipment, Northern Ontario District
Mitch Skopyk – Supervisor/Car Equipment
Mark Ethier – Supervisor/Car Equipment
A hearing in this matter was held in Monday, Monday, 7 November 1994.
This arbitration concerns a dispute between the parties with respect to the status of persons temporarily promoted out of the bargaining unit as supervisor. The Union maintains that such individuals cease to hold secondary assignments which they previously obtained by bulletin. The Company takes the position that such positions continue to be held by the temporarily promoted supervisor, although he or she is not entitled to work them during the course of the promotion. In the Company’s view, at the conclusion of the temporary promotion an employee is entitled to return to his or her secondary assignment without being required to bid a vacancy.
The Dispute and Joint Statement of Issue are as follows:
A dispute concerning the alleged violation of Rules 2-3, 27, 27.1 and Appendix VIII of Agreement 12.35 when Mr. M. Ethier and Mr. M. Skopyk of MacMillan Yard did not forfeit their secondary assignments upon being temporally promoted out of the bargaining unit as supervisors.
JOINT STATEMENT OF ISSUE:
The Union contends that the Company is in violation of Rules 27.1, 23.27 and Appendix VIII of Agreement 12.35 by allowing M. Ethier and M. Skopyk, who have been promoted to official or excepted positions, to continue to retain their secondary assignments under the provisions of Appendix VIII of Agreement 12.35. It is the Union’s contention that when an individual is promoted to an official or excepted position, whether temporarily or not, that individual no longer holds any position in the carman craft. As such, if Mr. Ethier or Mr. Skopyk were released from an excepted or official position and wished to hold a secondary assignment, the employee must exercise seniority in one of these secondary assignments by bid.
The Union requests that Mr. Ethier, Mr Skopyk and any other such individuals promoted to official or excepted positions, whether temporarily or permanently, have their names removed from the list of employee holding secondary positions. If replacements are required for those employees so removed, the positions in question should be bulletined in accordance with Appendix VIII of Agreement 12.35.
It is the Company’s contention that Agreement 12.35 is silent on the matter and therefore individuals who are promoted to official or excepted positions are not required to relinquish their secondary assignments. It is further the Company’s contentions that Item 9 of Appendix VIII which requires that an employee cannot vacate a secondary assignment for a period of two years unless otherwise mutually agreed, applied to individuals who are promoted to official or excepted positions. The Company also believes that Rule 12.1 is relevant in this grievance. As such the Company declines the Union’s request
FOR THE COMPANY: FOR THE BROTHERHOOD:
(Sgd.)John Pasteris (Sgd.)Thomas Wood
for: Assistant Vice-President Labour Relations General Chairman
The pertinent provisions of the collective agreement are as follows:
12.1 Foremen shall not be allowed to do mechanics’ work when mechanics are working on a reduced hourly basis and are available. This is not intended to restrict the use of working foremen in accordance with established practice at small points.
23.27 An employee holding seniority under this agreement and who is presently filling or may in the future be promoted to an official or any position with the Railway which is excepted from any provision of this or any other collective agreement will have his name continued on the seniority list of the group from which promoted at his home seniority terminal and will retain seniority rights and continue to accumulate seniority while so employed. The General Chairman be advised.
If released from such official or excepted position, the employee must within 30 days after such release, either displace the junior employee in his seniority group on his basic seniority territory or exercise his seniority to a vacancy or a newly crated position at his home seniority terminal if he fails to do so he shall forfeit his seniority. The General Chairman will be advised.
An employee temporarily promoted to an official or excepted position will within 7 calendar days of release from such temporary employment, exercise his seniority in his craft at his home seniority terminal. The appropriate officer of the Company shall advise the local representative of such promotions, including the expected duration thereof.
Appendix VIII provides, in part, as follows:
MEMORANDUM OF AGREEMENT between the Canadian National Railway Company and the Brotherhood of Railway Carmen of Canada with respect to provisions for the protection of emergency services effective I January 1979.
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.
2. Carmen assigned to protect a position in a regular list or assigned to a spare fist will place their telephone numbers with the proper officer of the Company. Such carmen will be required, except as otherwise provided herein to be available for call and able to report for duty within one hour at all times. If available requirements differ for any particular such will be indicated in the bulletin.
4. 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.
9. Effective (the first of the month following signing of the Master Agreement), Carmen who after that date are assigned to protect a position in a regular list or assigned to a spare list will be required to remain on that position for two years from the date of award of the bulletin before being permitted to apply for another position under this Appendix VIII at the same seniority terminal. However, spare list or regular list Carmen will be permitted at any time to apply for a vacant regular list or spare list position for which the Carman is already fully qualified. Carmen may be released from their position at any time after they have provided a justifiable reason and if then mutually agreed between the Local Chairman and the Local Management.
It is common ground that the secondary assignments which are the subject of Appendix VIII are of considerable importance to both parties. The Company, on the one hand, needs a core of qualified persons available to do emergency work in the event of unpredictable circumstances, such as a derailment. To that end, it must be able to count on an established list of individuals committed to performing such work as it becomes available. On the other hand, the existence of secondary assignments, whether on the regular list or on the spare list, are of value to employees who wish to augment their earnings by access to such extra work as it becomes available.
The material before the Arbitrator establishes, beyond controversy, that paragraph 9 of Appendix VIII was negotiated in or about 1989. The two year "lock in" of employees bidding and receiving secondary positions was apparently established at the request of the Company to avoid fluctuations in and depletions of the emergency work force. In the result, the bulletining of secondary positions has become somewhat less frequent, as openings are reduced. If, as the Union contends, carmen accepting promotions into positions of temporary supervisors forfeit their bid secondary positions, upon returning to the bargaining unit they would be required to await a bulletined vacancy before being able to secure another secondary assignment. The Union submits that it is inconsistent with the provisions of the collective agreement for temporarily promoted supervisors to retain their hold on a secondary position while they are no longer in the bargaining unit. The Company, on the other hand submits that the position of the Union is tantamount to an erosion of the seniority rights acquired by such supervisors which it maintains are protected by the terms of rule 23.27.
The Arbitrator can readily understand the practical concerns of the Company. The option of temporary promotion to supervisory ranks would become less desirable to employees if they must be concerned about the loss of their secondary assignments, a significant source of supplementary earnings. However, it is difficult to sustain the Employer’s view based on the language of the collective agreement and on general principal. The approach taken by Canadian arbitrators has long confirmed the view that when an employee leaves the bargaining unit for reassignment elsewhere within an employees operations, that person is no longer viewed as a member of the bargaining unit and has no further rights under the terms of the collective agreement, save as they may be specifically protected within its terms.
The general view was well expressed by Arbitrator Weatherill in an award in an arbitration between Canadian Pacific Limited and Division No. 4, Railway Employees’ Department AFL-CIO, an unreported award dated August 1, 1980. In that case the arbitrator dealt with the return to the machinists’ ranks of a supervisor in the Angus Shops. The Union grieved the placement of the returning supervisor directly into his former position, without bulletin or bid, and took the view that he was required to displace in accordance, with rule, 23.27, which was the same as the rule at issue in the case at hand. Arbitrator Weatherill sustained the grievance and commented, in part, at p.4:
At the time of the appointment, the entry made by the company on Mr. Gauthier’s employment record was "Asst. Foreman & Mach.", meaning that he was considered to hold two classifications, and he was shown as having a "dual rate".
While such an entry may have served the company’s administrative purposes it is not at all clear that it properly reflected the requirements, explicit or implicit, of the collective agreement. An employee is either in or out of the bargaining unit at any given time; either he has managerial duties and responsibilities or he has not. In the instant case, it seems clear that Mr. Gauthier was appointed Assistant Foreman,, an excluded position. As such, he was no longer in the classification of Machinist, although no doubt his qualifications therefor would remain. Further, the duration of the appointment was unknown, although it was anticipated that it would exceed ninety days.
A similar conclusion is implicitly reflected in the reasoning of the arbitrator in Ontario Northland Railway and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-CANADA) (M.G. Picher), an unreported award dated September 17, 1990. In that case the Union grieved the case of a temporarily promoted carman to auxiliary service. The grievance was dismissed on the basis that the individual in question was not temporarily promoted on the dates the work was performed. At p.3 of the award the arbitrator commented as follows:
As a general matter it appears to the Arbitrator that the Union’s position is well founded in principle. If it can be shown that an employee has accepted a temporary promotion into a supervisory position for a definite period of time, it would follow that during that time the individual so scheduled can no longer be entitled to the rights of a bargaining unit employee within the collective agreement, save as they may otherwise be spelled out in its specific terms. For example, Rule 23.27 of the collective agreement makes provision for the return to the bargaining unit for a person temporally promoted to an official or excepted position. In the Arbitrator’s view it is significant that that rule further provides that the Company provide to the Union such particulars as the expected duration of a temporary promotion. Such provisions are consistent with the Union’s argument that an employee temporarily promoted to a supervisory position necessarily forfeits certain rights which would otherwise be available to him or her under the collective agreement. It would therefore seem inescapable that an individual who is scheduled to fill a supervisory position on, for example,, a thirty day relief assignment leaves the bargaining unit for all practical purposes during the course of that period.
The Company has directed the Arbitrator to no specific language which would indicate that a person who accepts temporary promotion out of the bargaining unit can continue to retain his or her claim to a previously bulletined secondary position. The language of rule 23.27 specifically addresses the preservation of and ongoing accumulation of seniority for persons who accept promotion out of the bargaining unit. In the Arbitrators view the concept of an employee being able to "retain his seniority rights",, as expressed in Rule 23.27 cannot necessarily be taken to include the retention of advantages or perquisites achieved by the exercise of seniority rights. It is not part of an individuals seniority rights to continue to hold down a bulletined position, or a right to return to such a position, after he or she has left the bargaining unit. It would, in the Arbitrator’s view, require clear and unequivocal language within the terms of a collective agreement to establish that the parties have intended such an extraordinary protection. There might, of course, be good reasons, in the interests of both parties, to provide, at least for a fixed period of time in the case of temporary promotions, for the preservation of secondary assignments. Indeed, it appears that in Vancouver the Company and the Union have made such an arrangement locally, based on a period of sixty-five, days. Absent any such agreement, however, the Arbitrator cannot find within the terms of rule 23-27, or of Appendix VlII, any language which can fairly be construed as providing an exception to the general rule that an employee who leaves the bargaining unit for the purposes of a promotion ceases to have rights under the terms of a collective agreement, save as expressly provided. Nor can I find that rule 12.1, which speaks to issues of work jurisdiction, supports the Company’s position.
In the result, the Arbitrator must sustain the interpretation advanced by the Union, and declare that, subject to any binding local agreement as may exist, persons temporarily accepting promotion out of the ranks of the bargaining unit cease to retain secondary positions which they previously bid and obtained. Should the Company deem them necessary, such positions are to be bulletined in the normal course, under the terms of the collective agreement, and upon return to the bargaining unit a temporary supervisor must resort to the exercise of his or her seniority rights in bidding upon such vacancies as may then become available in respect of secondary positions.
On the language of the collective agreement, the grievance must succeed, whatever the practical impact of the outcome. It seems arguable, however, that it may be in the interests of both parties to consider a formula whereby bargaining unit members accepting temporary promotion may do so, at least for a period of time, without jeopardizing their secondary positions. It is important, on the one hand, for the Company to be able to temporarily promote qualified individuals, and on the other hand for carmen within the bargaining unit not to be unduly limited in their access to supervisory experience. Any resolution of these interests and concerns must, however, be addressed at the bargaining table.
For the foregoing reasons the grievance is allowed. The Arbitrator finds and declares that, absent the consent of the Union, a member of the bargaining unit who is temporary promoted to a supervisor’s position forfeits all positions held within the bargaining unit, including his or her secondary assignment and must, upon returning to the bargaining unit, exercise his or her seniority to bid on such vacant secondary assignments as are, or may become, available. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Signed at Toronto, 14th November 1994
(signed) MICHEL G. PICHER