SHP – 499
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101
IN THE MATTER OF THE GRIEVANCE OF THREE GRIEVANCES OF T. APPLETON
SOLE ARBITRATOR: Vincent L. Ready
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Vancouver, B.C., September 28, 1999.
The issue giving rise to this dispute concerns an alleged violation of Rules 23, 23.12, 23.38.1, 23.38.2, 23.40, 5 and 5.14, whereby the Company, failed to assign the senior qualified Labourer to a vacant position of Engine Attendant Helper.
The Union filed three grievances related to one incident, which took place on August 25, 1998. The facts are clearly outlined in the parties , Joint Statement of Facts and Issues, as follows:
STATEMENT OF FACT:
On April 25, 1998 an additional Engine Attendant Helper was required. At the time Labourer T. Appleton was the senior employee available to fill said position on a temporary basis but was not assigned.
On April 25, 1998 the Company assigned Tow Engine Attendants to work together thereby eliminating the need to call in an Engine Attendant Helper or set up a Labourer to work in the capacity of Engine Attendant Helper. At that time Labourer T. Appleton was the senior employee available to fill said position on a temporary basis but was not assigned.
On April 25, 1998 the Company assigned Engine Attendant to perform the duties of Engine Attendant Helper thereby eliminating the need to call in an Engine Attendant Helper or set up a Labourer to work in the capacity of Engine Attendant Helper. At that time Labourer T. Appleton was the senior employee available to fill said position on a temporary basis but was not assigned.
Essentially, the Union alleges that the grievor, who is qualified to work as an Engine Attendant Helper, was not assigned to fill a one day vacancy in violation of his seniority rights.
It is the position of the Union that Mr. Appleton’s seniority rights were violated under Rules 23, specifically 23.12, 23.38.1, 23.38.2, 23.39, 23.40, and Rules 5 and 5.14 of the Collective Agreement. It is the submission of the Union that the Employer was required to fill this vacancy under Rule 23.12 of the Collective Agreement and also, under the provisions of Rule 23.39, Labourers are only entitled to fill the Engine Attendant Helper positions and not the Engine Attendant positions.
Consequently, the Union is seeking compensation for what the grievor would have earned as an Engine Attendant Helper – eight hours at the applicable classification rates.
For its part, the Employer takes the position that although three grievances were progressed related to this single incident, they are interrelated and can effectively be addressed as one dispute. The Employer submits that the key component to the whole issue is related to Rules 23.38.1 and 23.38.2, the relevant portions of which read as follows:
23.38.1 Positions of Engine Attendant and Engine Attendant Helper will be bulletined to the extent that such positions are required on a continuous basis.
23.38.2 When unexpected requirements occur for Engine Attendant Helpers, the Company may assign a qualified available Labourer (
The Employer argues that all other Rules in question flow out of these two, if in fact a violation exists.
The Employer asserts that there was no need to bulletin this one day vacancy, as the vacancy is not of a continuous nature as per Rule 23.38.1. Based on this, the Company cannot support any violation existed for the one day vacancy under Rule 23.38.1.
The Employer further argues that the provisions of the Collective Agreement provide it the unilateral right to choose when filling an Engine Attendant vacancy. In support of this argument, the Employer relies on the use of the word &may 8 within Rule 23.38.2. The Employer also submits that an unplanned vacancy falls within the language of Rule 23.38.2, “When unexpected requirements occur”.
With respect to the alleged violation of Rule 23.12, which deals with temporary positions, the Employer takes the position that it is not specific to the situation. The Rule states in part:
23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the craft for an expected period of less than 90 calendar days, such vacancies or new position may be claimed by the senior qualified employees from the respective point …
Rule 23.38.2 specifically addresses unique and explicit situations in reference to the Engine Attendant Helper’s classification and, it is the submission of the Employer, if this were not the case there would be no need to include it within the terms of the Collective Agreement. The Employer argues that Rule 23.12, on the other hand, applies to those claiming vacancies within classifications to which they have an inherent right. In other words, in order to claim a position under Rule 23.12 you must be senior and qualified within that classification. Labourers and Engine Attendant Helpers are two separate classifications.
With respect to Rule 23.40, the Employer submits that it outlines those employees included within the Labourer’s classification and is it not intended to identify the duties of Labourers. Thus, that Rule is not relevant to this dispute.
The Employer further argues that there is nothing in the Collective Agreement that prevents it from using Engine Attendants to fill vacancies within a lower classification of Engine Attendant Helper, provided of course that the individuals maintain their current rate of pay. To support this proposition, the Employer relies on the provisions of Rule 11.1, which state:
RULE 11 TEMPORARILY REPLACING OTHER EMPLOYEES
11.1 When employees covered by this Agreement are required to fill the place of another employee for more than one hour, or more than once on a shift, they shall receive the higher rate, if applicable, for all time worked with a minimum of one hour’s pay, but if required to fill, temporarily, the place of an employee receiving a lower rate, their rate will not be changed.
In the specific instance in dispute, the Employer claims there were more Engine Attendants than the workload required making it apparent that Engine Attendants could be used to perform Engine Attendant Helper duties without adversely effecting any other employees or the operational needs of the Facility.
Finally, the Employer submits that Rules 5 and 5.14 (Overtime Calls) have no application in this instance. It was not necessary to call-in for overtime or to equalize overtime as the vacant positions were properly filled under the provisions of Rules 23.38.2 and 11.1.
In the circumstances of this case I find that the Union’s submissions must succeed.
In my view, Rule 23.12 clearly sets out, in precise terms, how short-term vacancies of 90 days or less will be filled. In the circumstances of this case, I cannot agree with the submission of the Employer that Rule 11.1 overrides the provisions of Rule 23.12.
There is no dispute that Mr. Appleton was the senior employee available to fill the vacancy.
In the result, the grievance succeeds. The grievor is entitled to be compensated for monies lost as a result of not being assigned to work as an Engine Attendant Helper on April 25, 1998.
I shall retain jurisdiction to resolve any difficulties arising out of the implementation of this Award.
It is so awarded.
DATED AT VANCOUVER in the Province of British Columbia this 29th day of October, 1999.
(signed) VINCENT L. READY