IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 103
RE GRIEVANCE 1120: MIKE WARD OVERTIME CLAIM
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
M. J. Restoule – Manager, Labour Relations, North Bay
Tom Burton – Chief Mechanical Officer, North Bay
Ken Duquette – Area Supervisor
Appearing For The Union:
Brian Stevens – Local President, North Bay
Brian Kelly – Chief Steward
Tom McParland – Committee Person
A hearing in this matter was held in Toronto on May 24, 2000
The Union grieves that Machinist Mike Ward was denied overtime opportunities. The Joint Statement of Fact and Issue, filed at the hearing, frames the allegation as follows:
JOINT STATEMENT OF FACT AND ISSUE:
Machinist Mike Ward submitted time cards claiming that he was run-around when the Company did not call him for overtime work in his bulletined area.
The Union contends in doing so, the Company was in violation of Rules 14, 15 and any other related Rules, Letter of Understanding and Memorandums of Agreement and requested that the employee be made whole forthwith.
The Company denied the grievance.
It is common ground that the grievor has extensive seniority, having been hired in 1978, and has held a position in the machinist’s trade for some time. Mr. Ward was awarded the permanent position of machinist in the machine shop/wheelhouse effective March 3, 1997.
It appears that in July of 1998 overtime opportunities became available within the wheelhouse. The work in question was awarded to a machinist junior to the grievor from the wheelhouse, Mr. G. Urquhart. The Company’s position is that the grievor was not qualified to perform the overtime work in question, which involved the operation of a computer controlled boring mill.
The Union questions the Company’s ability to foreclose the grievor from an overtime opportunity involving machinist’s work. In that regard it submits that under rule 19.25 of collective agreement #12 the grievor must be deemed to be qualified for any machinist’s work. That provision reads as follows:
19.25 An employee claiming a position in the exercise of his/her 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 shall not be denied such position by management without prior consultation with the local chairperson of the union concerned.
An employee exercising his/her seniority who, in the judgement of the Company cannot reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that by mutual agreement between the local chairperson and the proper officer of the Company, such period may be extended up to 90 calendar days, in order to demonstrate his/her ability to perform the work required.
Should an employee be denied a position being claimed in the exercise of seniority, or should he/she fail to qualify during a trial period, he/she and his/her 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/her former position. This will not necessitate additional bulletins.
In essence the Union’s position questions on what basis an employee who can, as the grievor does, hold a permanent position as a machinist, be viewed as not qualified for any aspect of machinist’s work. It submits that the Company’s failure to award the overtime in question to Mr. Ward is in violation of paragraph 3 of a memorandum of understanding which governs the distribution of overtime for machinists and reads as follows:
3. When employees are required for overtime work, employees on the Overtime List for the bulletined area where the work is required, will be called first.
The Arbitrator cannot sustain the position so advanced by the Union. The position which the Union advances is not unlike the position advanced by the Union in SHP 162, an arbitration award between Canadian Pacific Limited and the Canadian Council of Railway Shopcraft Employees and Allied Workers, a decision of Arbitrator J.F.W. Weatherill dated September 6, 1984. In that case a fully qualified carman grieved that he was not recalled from layoff to a carman/painter’s assignment. The union there argued, in part, the language of article 23.9 of the collective agreement there in issue, the material language of which is identical to the provisions of rule 19.25. At pp 2-3 Arbitrator Weatherill commented as follows:
The matter of qualifications is in issue only as a matter of argument as to the effect of articles 58 or 23.9. These articles refer to persons entitled to be shown on the permanent Carmen’s Craft seniority list as “fully qualified Carmen”, and to those who have successfully completed their apprenticeship as “fully qualified mechanics”. While there appears to be no doubt as to the grievor’s journeyman status, and no doubt that Carmen generally perform a wide range of tasks, it has not been shown that the grievor was in fact qualified to perform the particular painting tasks which were required to be performed at the time in question. The company would appear to have considered employees’ qualifications in order of the employees’ seniority, and nothing in the material before me suggests that the company’s determination with respect to the qualifications of the grievor was wrong.
Arbitrator there concluded that the recall provisions of the collective agreement, mandating recall by seniority order did not, coupled with the fact that the grievor was deemed a “fully qualified carman”, necessarily override the right of the Company to assign tasks within the carmen’s trade to persons who are specifically qualified to perform those tasks. The Arbitrator declined to follow what he characterized as the Union’s “very literal” interpretation of the terms of the collective agreement. Ultimately Arbitrator Weatherill commented:
In my opinion, this argument is not supported by the terms of the Collective Agreement. On the contrary, when the Collective Agreement is read in its entirety is becomes obvious that employees are not entitled to positions they are not qualified to fill.
Arbitrator Weatherill further noted that the trial period provisions of the collective agreement can have no application as the assignment in question did not last as long as the trial period.
In my view the reasoning of the Arbitrator is SHP 162, and the language of the collective agreement, amply support the conclusion that the Union’s interpretation in the case at hand cannot prevail. Firstly, it is important to stress that rule 19.25 does not speak to overtime assignments, or indeed to any particular work assignment. It deals with the right of an employee to claim a permanent position, presumably by bulletin, by the exercise of his or her seniority. It is entirely consistent with the language of that provision for an employee to qualify for a machinist’s position by demonstrating, within the trial period provided for within the rule, the ability to perform the core functions of the job in question. That, however, does not speak to the entirely separate question of whether an employee is qualified for other assignments within the machinists’ trade.
In the Arbitrator’s view that is clearly reflected within the provisions of the parties own agreement in the form of the machinists’ overtime rules. Those rules, arising out of a memorandum reviewed March 3, 1995, govern the entitlement of employees on overtime lists. Article 3 of the memorandum calls for employees from the bulletined area where overtime work is required to be called first. However, article 13 reads as follows:
Employees not qualified for the job called, must turn down the call and will be charged for one 8 hour shift or actual hours worked, whichever is less.
In the Arbitrator’s view the foregoing language reflects the contemplation of the parties that there will be occasions where the person who would be otherwise entitled to an overtime call, by reason of being employed in the bulletined area and having prior seniority, will nevertheless not be entitled to the work by reason of a failure of qualification. The Arbitrator cannot accept the suggestion of the Union’s representative that qualification, as understood within article 13 of the memorandum of agreement, must mean extraneous qualifications such as the ability to operate the piece of equipment being serviced. There is nothing in the context or language of the memorandum which would suggest such a restrictive meaning.
As reflected in SHP 162, the fact that Mr. Ward is a long term employee who has successfully bid on a machinist’s position does not, of itself, mean that he is qualified to perform each and every job assignment which may become available on an overtime basis. On the material before me it does not appear disputed that he has virtually no experience in the operation of the computerized boring mill within the wheelhouse. While the Arbitrator can appreciate the Union’s concern as to the opportunity of a person in the grievor’s situation to gain experience on that equipment, I am compelled to apply the collective agreement as I find it, and plainly that issue must be a matter for negotiation between the parties. The Union’s concern is particularly understandable to the extent that an employee in the position of the grievor is docked overtime entitlement by reason of his inability to perform the overtime assignment in question, notwithstanding his willingness and availability.
For all of the foregoing reasons the Arbitrator is satisfied that in the circumstances disclosed the grievor was not qualified to perform the overtime assignment which was available, and that the Company did not violate the collective agreement when it assigned the overtime work to a junior qualified employee.
Dated at Toronto, May 30, 2000
MICHEL G. PICHER