SHP – 502

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101

(the “Union”

IN THE MATTER OF THE GRIEVANCE OF LABOURER T. SMITH

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

John Bate

And on behalf of the Union:

Brian McDonagh

A hearing in this matter was held at Vancouver, B.C., September 28, 1999.

AWARD

The issue giving rise to this dispute concerns an alleged violation of Rule 23.28 and Rule 23.12 involving a Temporary Coal Passer vacancy.

On May 14, 1997, a notice was posted for a temporary position under the Labourers , classification for a Coal Passer at the Power House, Weston Component Shop.

The Union filed a grievance alleging that Labourer T. Smith, the grievor, should have been awarded the position under Rule 23.12, which reads as follows:

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 positions may be claimed by the senior qualified employees form the respective point within the home seniority terminal desiring same; the local Union Representative 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 positions 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. (See Appendix 4)

For Road and Terminal Electricians, temporary vacancies of less than thirty days in positions covered by this Agreement shall be filled by the senior qualified employee desiring same.

It is the position of the Union that the grievor was the senior and lone applicant and had worked as a Coal Passer in the past. The Union further argues that the Employer did not give adequate reason for his denial to the said position as required under the provisions of Rule 23.28 of the Collective Agreement, which reads as follows:

23.28 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 Union Representative.

An employee exercising seniority, who, in the judgement of the Company can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that be mutual agreement between the Regional Union Representative 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.

Where an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to his former position. This will not necessitate additional bulletins.

The Union asks that the grievor be compensated for lost wages he would have earned had he been assigned to the position.

It is the position of the Employer that the grievance should be denied based on the fact that the grievor, by his own admission, was not qualified to hold the position. Based on this fact, the Employer argues that it was in compliance with the provisions set out within Rules 23.12 and 23.28 of the Collective Agreement.

DECISION

During the course of the hearing a letter was submitted, written by the grievor, “To Whom It May Concern”. In that letter, the grievor acknowledges that he is not qualified to perform the position of Temporary Coal Passer.

As is readily apparent on a plain reading of Rule 23.12, employees are required to be qualified for the work for which they are claiming. Based on the grievor’s own submission as recorded in his letter, he does not possess the qualifications to perform the work of a Temporary Coal Passer.

In the result, the grievance is dismissed.

It is so awarded.

DATED AT VANCOUVER in the Province of British Columbia this 29th day of October, 1999.

(signed) VINCENT L. READY

ARBITRATOR