SHP – 509

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 R. ST. DENIS

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 23.12, whereby the Company denied a vacancy to an Electrician, Mr. R. St. Denis, on August 27, 1998.

The facts are not in dispute in this case. On August 27, 1998, the Employer, using the overtime equalization list and Rule 5.14, called and asked employees to work overtime. Both Mr. St. Denis and Mr. J. Ramharakh volunteered to work overtime on the date in question.

Mr. Ramharakh worked his regular shift, 08:00 hours to 16:00 hours, and was solicited to work overtime on the 16:00 hour shift, and he agreed to work for four hours. Mr. St. Denis was called in for overtime on the 16:00 shift and worked from 16:00 hours to 24:00 hours. Mr. St. Denis is senior to Mr. Ramharakh.

The Union filed a grievance alleging that Mr. St. Denis was the senior qualified employee and was thereby entitled to a one day vacancy in the tool room at Winnipeg Diesel Shop pursuant the provisions of Rule 23.12, which read:

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 from 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 Employer violated the grievor’s rights under Rule 23.12 when it denied Mr. St. Denis the position and assigned a junior employee, Mr. J. Ramharakh, to the vacancy in the tool room.

The Union asks that the grievor be compensated for any lost earnings as a result of being denied the vacancy.

The Employer, for its part, denies that Rule 23.12 was violated. At the hearing, the Employer took the position that the grievor was denied the one day vacancy within the tool room based on the operational needs of the facility.

On the date in question, both employees were performing work on overtime. This was an event, argues the Employer, which is outside the regular assignment of both employees. The Employer submits that it reviewed the work areas and Mr. Ramharakh was assigned to fill the one day vacancy, on overtime for a period of four hours. The Employer contends that this did not adversely effect on the operational needs of the facility, however, if the grievor’s claim to seniority under Rule 23.12 was allowed, he would have had to work the tool room position for four hours and then be re-assigned for the remaining four hours.

The Employer also argues that overtime equalization is filled under the provisions of Rule 5.14, not through the provisions of Rule 23.12. Exercising of seniority is not a provision under Rule 5.14.

Finally, with respect to the Union’s claim of compensation for loss of earnings, the Employer submits that, although Mr. St. Denis was not allowed to claim the one day vacancy, he did not lose any rights to compensation for August 27, 1998. Both employees were working on August 27th and both were receiving the same rate of overtime compensation.

DECISION

I find the circumstances of this case to be somewhat peculiar. Were it not for the fact that Mr. St. Denis worked overtime in accordance with the Collective Agreement on the date in question, there is no doubt that he would be entitled to the vacancy under Rule 23.12. However, the grievor was, in fact, working on August 27th.

Consequently, I find there was no violation of the Collective Agreement for the reason that Mr. St. Denis did work overtime under certain provisions of the Collective Agreement during the time in question. Moreover, he did not suffer any monetary loss as a result of the circumstances giving rise to this grievance.

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