AD HOC – 223
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN DIVISION BROTHERHOOD RAILWAY CARMEN OF THE UNITED STATES AND CANADA
IN THE MATTER OF THE GRIEVANCE OF D. ROBINSON
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
S. A. MacDougald
And on behalf of the Union:
A hearing in this matter was held at Montreal on March 23, 1988.
In this grievance the grievor claims certain benefits under article C.4 of a Special Agreement dated November 18, 1985.
The parties filed separate Statements of Facts as it is contemplated they may do pursuant to article K.9 of the Special Agreement. The union Statement is as follows:
UNION’S STATEMENT OF FACT:
As a result of an Article "J" notice issued December 29, 1986 taking effect April 1, 1987, Mr. D.A. Robinson was being laid off and applied for a Student Trainman’s position. After sustaining a duty related injury March 28, 1987 the grievor was declared fit and commenced the Trainman’s position July 13, 1987.
Various inquiries were made as to compensation for the training as a Brakeman, which led to a period of confusion and uncertainty which finally resulted in the grievor ascertaining he would be compensated at $4.00 per hour and he would not receive 80% of his previous Coach Cleaner’s rate with CN at which time a grievance was filed and Mr. Robinson temporarily ceased training as a Brakeman and began collecting his 80% laid off benefit.
The Company contends the grievance was untimely under time limits provided in Article "K" of the Special Agreement.
The Union maintains the Company violated Article C.4 of the Special Agreement, that the grievance was timely and is seeking D.A. Robinson’s reinstatement in the Trainman’s training position with wages matching 80% of his previous Coach Cleaner’s rate and reimbursement for expenses incurred during the training program.
The company’s Statement is as follows:
COMPANY’S STATEMENT OF FACT:
On December 29, 1986, the Company served a notice upon the Brotherhood under the provisions of Article J of the Special Agreement dated November 18, 1985. The notice provided for the reduction and transfer of certain passenger related positions at Sarnia, Ontario, effective April 3, 1987, which were covered by the Company’s collective agreement No. 12.35 with the Brotherhood.
On February 2, 1987, Mr. Robinson voluntarily applied for transfer to the position of Trainman. After successfully passing Company testing requirements on February 11, 1987, Mr. Robinson was interviewed in the Company’s Employment Office at Toronto. During this interview, he was advised that his application for transfer had been accepted, that he would be placed on a Student Trainman course and that the rate of pay while attending this course was the Federal minimum wage, i.e. $160.00 for a forty-hour week or $4.00 per hour. At this time he was still employed as a coach cleaner at Sarnia.
On July 13, 1987, Mr. Robinson commenced his attendance at the Student Trainman course where he was again advised of the $4.00 per hour rate of pay which applied during the course of approximately seventeen weeks duration. The Student Trainman course is not covered by any collective agreement and the training positions are non-unionized.
By letter dated September 10, 1987, Mr. Robinson advised the Company of his voluntary withdrawal prior to the completion of his Student Trainman course.
On September 4, 1987, the Great Lakes Region General Chairman of the Brotherhood presented a grievance under the terms of Article K.2 of the Special Agreement dated November 18, 1985 alleging that the Company was violating Article C.4 of that Special Agreement. The grievance requested that Mr. Robinson he awarded the following monetary .adjustments:
1) That Mr. Robinson be compensated during his training an amount equivalent to 80% of his coach cleaner’s rate for each week so engaged.
2) That he be reimbursed for all expenses associated with the training program. (Subsequently the Brotherhood has identified these expenses as being comprised of $100.00 for a Railway Grade Watch and $14.00 for a Trainman’s hand lamp.)
By letter dated September 21, 1987, the Company advised the Brotherhood that it could not accept the grievance submitted on behalf of Mr. Robinson because the time limits provided by Article K.1 of the Special Agreement dated November 1985 had been exceeded prior to the presentation of the grievance under the provisions of Article K.2 on September 4, 1987. The Company’s letter also provided certain facts which described the events leading up to the dispute.
The Brotherhood subsequently progressed the grievance through all steps of the "Disputes Procedure" provided by Article K of the Special Agreement where it was consistently denied by the Company.
The Brotherhood request the above cited monetary payments be made to Mr. Robinson. The Company contends that the dispute is not arbitrable and denies that it has violated Article C.4 of the Special Agreement dated November 18, 1985.
As contemplated by article K of the Special Agreement, the undersigned was appointed by the Minister of Labour to be the single arbitrator in this matter.
As appears from the parties’ Statements of Fact, there is no substantial dispute as to the facts, and these give rise to two questions, first, whether the grievance is timely and second, whether the grievor is entitled to the relief asked.
As to the first issue, that of the timeliness of the grievance, the material facts are these: the grievor began training as a Student Trainman on July 13, 1987; this grievance was filed on September 4, 1987; the grievor withdrew from the training program on September 10, 1987. It is not clear from the material before me when the grievor received his first pay cheque while in the program, but there is no doubt that it was some time more than fifteen days prior to the filing of the grievance. Article K.2 of the Special Agreement dated November 18, 1985 provides as follows:
K.2 No later than fifteen days following the cause of the dispute either party (the General Chairman or equivalent for the Unions and the highest Regional officer designated to handle grievances for the Companies) may submit the dispute in writing to the other party.
While the training position in question may not be one coming within any bargaining unit or covered by any collective agreement, the claim in the instant case is made under the Special Agreement, and there is no doubt that it is the sort of claim which, as a general matter, it would be open to the union to submit on behalf of the grievor. The grievance was filed while the grievor was in the training program, and (at least for the purposes of the instant case), I think it is quite clear that the grievor was entitled to the benefits of the Special Agreement at the material times.
The grievance, however, was filed more than fifteen days after the grievor began the program and, it is fair to conclude, more than fifteen days after the grievor received his first pay cheque (apparently on July 24, 1987), at which time it was apparent to him that the payment did not include any augmentation of the rate payable to Student Trainmen which would bring his wages to 80% of those of his last position, as contemplated by article C.4 of the Special Agreement.
While I conclude from the foregoing that the grievance was late in respect of any claim for the first payment of wages made to the grievor as a Student Trainmen, and while it may well also have been late in respect of some subsequent payments, it does not follow that the grievor could not grieve in respect of later payments, or that the grievance was not arbitrable at all. A claim in respect of wages paid periodically is in the nature of a continuing grievance, and if overlooked in respect of earlier payments it is nonetheless one which may be made in respect of later ones, just as an employer who has made an overpayment of wages in error may subsequently correct that error and begin to make payments at the correct rate. As to the claim in respect of expenses, that claim is in respect of expenses associated with the training program in which the grievor was engaged at the time of the grievance, and in this case is in respect of items which the company was under an obligation to provide "for the training period" (the claim does not involve "one-time" matters, such as claims for meals or travel on a particular day), and could not properly be said to have become stale, or to be beyond the period when the dispute was "caused".
The company’s position, that the time for filing any grievance in this matter began to run on February 11, 1987, when the grievor was advised that the rate of pay for Student Trainmen was $4.00 per hour, is without merit. The giving of that information was not a "cause" of any grievance. The grievor would only have cause for grievance when some action was taken felt to be in violation of the Special Agreement. In this case, such actions occurred when the grievor was paid, and when those payments did not meet the grievor’s expectations under article C.4 of that agreement.
For the foregoing reasons, it is my conclusion that the grievance is arbitrable, although relief in respect of the claim for wages may only be made in respect of wage periods for which payment was made during the fifteen-day period preceding the filing of the grievance.
I now turn to the merits of the claim. The claim is based on article C.4 of the Special Agreement, which is as follows:
C.4 An employee will receive 80% of the rate of his last Company position during his period of training. In addition he will be provided for the training period with books, equipment. tools and allowed other necessary supplementary expenses associated with the training program.
It is common ground that the grievor did not receive 80% of the rate of his last Company position while he was in the training program. At the hearing of this matter the company advanced what are essentially two arguments in justification of its payment to the grievor of an amount less than that contemplated under article C.4 of the Special Agreement. The first argument is to the effect that the grievor knew before entering the program that the company would pay only $4.00 per hour to Student Trainmen. With respect, this argument is also without merit. It is not open to the company to make individual bargains with employees which would alter their entitlements under the Special Agreement. Whatever the rate paid to trainees generally, and whatever advice may be given about that rate, the company’s obligation under article C.4 (whose benefits, of course, may not be available to other trainees), is to pay, to those entitled under the Special Agreement, 80% of the rate of that employee’s last company position. To speak of "the rate" paid to trainees is simply not apposite in the case of an employee entitled to the benefit of the Special Agreement.
The company’s second argument is to the effect that the grievor was not entitled to the benefit of article C.4 in any event. This argument does not appear to have been raised during the course of the grievance procedure and is not set out in the Statement filed prior to the hearing. The argument is that article C.1 of the Special Agreement does not apply to the grievor, and that article C.4 accordingly has no application in his case either. I agree that the employees to whom article C.4 applies are those who have been considered and accepted for training pursuant to article C.1. From the material before me, the grievor was accepted for training pursuant to that article, and it is no longer open to the company to assert that he was not entitled to the consideration he was in fact given. Whether or not the grievor in fact came within the various conditions of article C.1 may be debatable, but the company’s case can, at this stage, be put no higher than that. Well before the grievance was filed, the grievor had raised the matter of his entitlement to 80% of his former rate (at first thinking, erroneously, that such entitlement arose under collective agreement 12.35: an error of which he was not disabused by the company), and the fundamental question as to the applicability of the Special Agreement was not raised by the company. On the material in this case, article C at least appears to apply, and in any event no issue in that respect has been properly put before me.
For all of the foregoing reasons, it is my conclusion in the circumstances and on the material before me in this case, that the grievor ought to have been paid 80% of the rate of his previous Coach Cleaner’s position during his period of training, and that he ought to have been provided with the necessary equipment, being in this case (as is not disputed), a Railway Grade Watch and a Trainman’s hand lamp. In failing to provide the rate of pay and the equipment referred to the company was, I find, in violation of the collective agreement.
The matter of the relief appropriate to be granted is a difficult one. The grievor left the training program shortly after the grievance was filed. It would appear that he was then on lay-off status, and that he received, for a certain period, lay off benefits equivalent to 80% of his former wages. It may be that he will now be able to return to the training program. At such point, however, it is not clear that he would do so pursuant to article C of the Special Agreement. Such questions are not before me, and I make no determination of them. The grievance before me did not make any claim for reinstatement (although mention of that is made in the union Statement), no such issue having arisen at that time. Accordingly, I consider that my jurisdiction is limited in that regard. Having regard to all of the foregoing, I make the following award:
That the company pay to the grievor, in respect of any pay periods ending within the fifteen-day period prior to the grievance, and in respect of the time thereafter until the time the grievor left the training program, an amount which will bring the wages paid him up to 80% of the rate of the grievor’s previous position; and
That the company reimburse the grievor in respect of amounts paid by him for a Railway Grade Watch and a Trainman’s hand lamp, those items then becoming the property of the company.
DATED AT TORONTO, this 25th day of April, 1988.
(signed) J.F.W. WEATHERILL,