©b42r AD HOC 150













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





Claim of Mr. J. Shypit and others for incumbency payment.


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


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


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,