BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Michel G. Picher

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:

The pertinent provisions of the collective agreement are as follows:

Appendix VIII provides, in part, as follows:

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:

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:

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