©b42r AD HOC 150
IN THE MATTER OF AN ARBITRATION
BETWEEN: VIA RAIL CANADA INC.
AND: CANADIAN BROTHERHOOD OF RAILWAY TRANSPORT AND GENERAL WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF J. SHYPIT AND OTHERS
SOLE ARBITRATOR: J. F. W. Weatherill
A hearing in this matter was held at Montreal on December 17, 1985.
©u25rT. N. Stol and J. Huggins, for the union.
©u40rM. St.-Jules, D. Andrew and C. 0. White for the company.
©b69r AWARD
The Dispute and Joint Statement of Issue in this matter are as
follows:
©b69r DISPUTE
Claim of Mr. J. Shypit and others for incumbency payment.
©b69r JOINT STATEMENT OF ISSUE
On October 23, 1983, Mr. J. Shypit was advised that the
Corporation erred in providing him Maintenance of Earnings in
accordance with the provisions of Article 8 Supplemental
Agreement. As a result of this decision, his records were
amended and the Base Hour Protection was removed from his
maintenance of earnings.
The Brotherhood contends that the Corporation is in violation
of article 8, 8.9, Maintenance of Basic Rates, of the
Supplemental Agreement dated April 26, 1982.
The Company contends that the four-week guarantee referred to
in article 8.9(b) is not applicable to OBS employees, but
rather to certain craft union employees who are required to
be on call during their layover period.
The grievor, a Steward-Waiter, is governed by the terms of Collective
Agreement No. 2, covering On--Board Employees (referred to in the
Joint Statement as OBS, or On-Board Service, employees). Article
29.1 of that collective agreement provides that the provisions of the
Supplemental Agreement governing Job Security Technological,
Operational and Organizational Changes effective April 26, 1982 and
amendments thereto will apply to employees covered by the collective
agreement. The provisions of the Supplemental Agreement are thus
incorporated by reference into the collective agreement and have the
effect of provisions of the collective agreement.
Article 8 of the Supplemental Agreement deals with technological,
operational and organizational changes, and provides for the giving
of notice and the provision of certain benefits in such cases. In
May, 1983, the company gave notice to the Brotherhood of certain
changes within the scope of the Supplementary Agreement, and in
particular advising of the cancellation of train 71/76. The grievor
and others, it appears, would be affected by that change.
The company recognized that the grievor would be entitled to certain
benefits under the maintenance of rates provisions of the
Supplemental Agreement. In September, 1983, it advised him that his
protected classification would be Steward-Waiter, with an incumbency
rate of $420.05 per week and base hour protection of 320 hours.
Subsequently, however, in October 1983, the company advised the
grievor that an error had been made, and that he was not entitled to
the base hour protection. The company's position is that it had
mistakenly treated the grievor's case as though it were one to which
the Special Agreement (signed on July 7, 1978, which provides
benefits to employees adversely affected by changes in railway
passenger services made in accordance with Government initiatives),
applied. The Special Agreement gives somewhat greater benefits than
does the Supplemental Agreement, as both parties have recognized.
It is not suggested that the Special Agreement applies in the instant
case, and it is clear that it does not. The grievor is, however,
entitled to benefits under the Supplemental Agreement and the issue
is as to the extent of those benefits. The benefits in question
arise under article 8.9 of the Supplemental Agreement, which is
headed "Maintenance of Basic Rates". It may be noted that the
analogous benefits under the Special Agreement are provided for in
Article E thereof, under the heading "Maintenance of Employee's
Earnings".
The provisions of article 8.9 of the Supplemental Agreement, insofar
as they are material to the instant case, are as follows:
8.9 An employee - - - will continue to be paid at the basic
weekly or hourly rate applicable to the position
permanently held at the time of the change providing that
- -
(a) - -
(b) if no position is available at his location, he
accepts the highest-rated position on his basic
seniority territory to which seniority and
qualifications entitle him.
The maintenance of basic rates, and four-week
guarantees if applicable, will continue until:
- -
- -
For the purpose of this article 8.9, the basic rate of a
position paid on a four-week guarantee basis shall be
converted to a basic rate on a forty-hour week basis.
In the instant case, the company quite properly notes the difference
between "basic rate of pay" and "earnings", the latter including,
potentially, not only the basic pay rate times hours worked, but also
shift differentials, clock punching payments, overtime hours,
and the like. The Supplemental Agreement would not appear to provide
for the maintenance of "earnings" in this sense. It is the
company's contention that the Supplemental Agreement provides simply
for the maintenance of a basic rate of pay, and that the only
assurance that an on-train employee, such as the grievor,
affected by a technological, operational or organizational change
has is that he will retain the weekly rate of his former position.
The number of hours worked on the previous position, it is argued,
is not a factor to be carried to the new position.
I agree with the contentions just referred to, but I do not consider
that they are dispositive of the present case. Article 8.9 of the
Supplemental Agreement does not, indeed, protect "earnings". It
provides rather for "the maintenance of basic rates" as the company
concedes, but it also provides for the maintenance of "four-week
guarantees if applicable". The maintenance of a guarantee, of
course, comes closer to the maintenance of "earnings" - although it
does not amount to precisely the same thing - than does the mere
maintenance of a rate, which does not mean much except to the extent
work is performed.
The grievor being entitled in the circumstances to the maintenance of
his basic rates, the only question to be determined under article 8.9
is whether or not a four-week guarantee was "applicable" in his case
or, to use the other expression used in the article, whether his was
"a position paid on a four-week guarantee basis". If such guarantee
was applicable to his position, then it is to be maintained in the
same way and to the same extent as his basic rate.
By article 4 of the collective agreement, the principle of the
40-hour week is recognized, and an average of 160 hours in assigned
service constitutes a basic four-week period. The effect of various
provisions in article 4 is to establish a guarantee of 320 hours of
work over an eight-week period. From the material before me, it
appears that the grievor had the benefit of such a guarantee in his
former position. The effect of article 8.9 in the instant case
is, in my view, to maintain that guarantee in the same way and to the
same extent as the basic rate. It may be worth repeating, however,
that this is not a guarantee of earnings, or of hours actually
worked.
It was the company's contention that the reference to a "four-week
guarantee basis" was not applicable to on-train employees but rather
to specific craft employees required to be subject to call beyond
their normal forty hours a week. The material provisions of the
Supplemental Agreement are of general application, however, and
nothing appears which would limit their application in the manner
suggested. The collective agreement itself, which covers on-train
employees, refers specifically to the nature of the work performed
in on-Board Services operations, in providing for the four-week
guarantee. Such guarantee is "applicable", in a case such as the
grievor's, under article 8.9 of the Supplemental Agreement.
The company also referred to a letter written jointly by the parties
to Transport Canada setting out their common view of the
difference between the level of protection of salary under the
Supplemental Agreement and that under the Special Agreement. That
letter read in part:
When the provision of the Job Security Agreement {the
Supplemental Agreement} is compared with the equivalent
provision of the Special Agreement, we believe it can be seen
that the Special Agreement has added several factors to the
benefit of the employee. The Special Agreement assures that,
not only the basic rate of his former position be maintained,
but that such factors as scheduled overtime, shift
differentials and clock punching payments will also be
included. Additionally, the number of hours of the former
assignment will be maintained, and that for on-train
employees, this will be a minimum of 320 hours per 8-week
averaging period.
What the parties jointly said then is not inconsistent with what the
union now contends: what is maintained is not "the number of hours"
an employee may have worked, but rather a guaranteed minimum number
of hours. In any event, that joint letter does not appear to have
been signed as constituting either an amendment to the collective
agreement or a binding interpretation thereof. The terms of the
collective agreement govern in the instant case, and in my view
their effect is as contended by the union.
Finally, it was contended by the company that the provision in
article 8.9 of the Supplemental Agreement for the conversion of the
basic rate of a position paid on a four-week guarantee basis to a
basic rate on a forty-hour week basis, was not an assurance of pay
for any minimum number of hours. That is quite so; that provision is
followed by an example of an employee who is guaranteed 179.3 hours
for each four-week period, comprised of 160 straight time hours and
19.3 hours at time and one-half. The basic hourly rate for such an
employee is calculated, using the conversion to a forty-hour basis
referred to, to be higher in fact than his basic hourly rate. That
provision simply has no application to the instant case. Nothing
suggests the grievor had or would be entitled to a guarantee of more
than minimum earnings of 320 hours over an eight-week period. The
question is, rather, whether or not he is entitled to any guarantee
at all. On the material before me, such a guarantee was applicable
to the grievor's former position. The effect of article 8.9 of the
supplementary Agreement is to maintain that.
For all of the foregoing reasons, the grievance is allowed.
DATED AT TORONTO,this 6th day of January, 1986.
J.F.W. Weatherill,
Arbitrator