SHP – 301-S
IN THE MATTER OF A SUPPLEMENTARY ARBITRATION
CP RAIL (WEST - HEAVY HAUL SYSTEMS)
UNITED TRANSPORTATION UNION
GRIEVANCE RE GRIEVANCE RE SOUTHSIDE INDUSTRIAL YARDMASTERS AT WINNIPEG: MAINTENANCE OF EARNINGS CLAIM OF L. COOK
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
M. E. Keiran – Assistant Manager, Labour Relations, Vancouver
B. P. Scott – Labour Relations Officer, Montreal
And on behalf of the Union:
M. A. Church – Counsel
L. O. Schillaci – General Chairperson
L. Cook – Grievor
A hearing in this matter was held in Montreal on July 16, 1992.
By the terms of a supplementary arbitration award dated July 19, 1990 the Arbitrator determined that Yardmaster L Cook should be afforded protection under the terms of article 15 of the collective agreement. However, the parties have been unable to resolve the treatment to be given to Mr. Cook in respect of the calculation of his maintenance of earnings. For the limited purposes of that issue, therefore, the matter has been returned to the Arbitrator for further consideration.
The award concluded that Mr. Cook was adversely impacted by the abolishing of the yardmaster positions in the Southside Industrial Yard at Winnipeg, originally planned for March 10, 1989, and eventually implemented August 17, 1990. Mr. L Cook worked as a spare yardmaster in the Southside Yard. He had previously held a position as a regular assigned yardmaster at the St. Boniface Yard, a position which had been abolished earlier. He was then moved to the performance of clerical duties and spare yardmaster work at the Southside Yard, with an incumbency rate based on his earlier earnings as a yardmaster in the St. Boniface Yard.
The decision respecting Mr. Cook is reflected at pages 5 and 6 of the Supplementary Award which reads as follows:
In my view there is some legitimate foundation to the approach taken by the Company, as a general matter. A reading of article 15 of the collective agreement would, on its face, suggest that the parties intended its protections to apply to those employees who are directly affected in their employment by the material change proposed. However, I am not persuaded, as the Company would have it, that persons who work in a relief capacity can never fall within that category. That is a matter to be determined on the facts, having regard to the circumstances of each particular case. Significantly, the parties did not circumscribe the definition of "… employees who are affected …" by a material change. In my view what the article must be taken to contemplate is employees who are directly and substantially affected by virtue of the impact of a material change on what would otherwise be their normal work opportunities.
What were the normal work opportunities of Mr. Cook, and what was the impact on him? That is the question which must be addressed to determine whether he falls within the class of employees adversely affected as contemplated under article 15 of the collective agreement. When the evidence in this regard is weighed, the scales tip in favour of the Unions position. The unchallenged representation of the Union is that for a good number of years the preponderance of service rendered to the Company by Mr. Cook has been in the capacity of a yardmaster, and not in his clerk’s position. Moreover, that condition appears to have obtained up to the date of the Company’s article 15 notice. It is common ground that between January 1, 1988 and the date of the notice Mr. Cook worked 106 tours of duty as a yardmaster, and 104 as a clerk. Where it is not necessary to settle on precise mathematical formulas, the evidence does seem to confirm that as a general rule, albeit by a slim margin, Mr. Cook was preponderantly employed as a yardmaster. There is no dispute that his earnings in that capacity were substantially in excess of what might be available to him in a clerical position. In these circumstances, on balance, I am satisfied that Mr. Cook falls within the category of adversely affected employees intended to be covered by the language of article 15 of the collective agreement. I therefore find that he is entitled to its protections in the same manner and to the same degree as the other yardmen.
As was noted at the hearing, the reference to "other yardmen" in the final sentence of the above passage is plainly in error, and should read "other yardmasters".
The position of the Union is simple. It submits that the above passage should be construed as conferring upon Mr. Cook the full incumbency rate of a regular assigned yardmaster. In other words, it submits that he should have the protection of the full maintenance of basic rates accorded to other yardmasters by the Arbitrator.
The Company puts forward a very different argument. It submits that the calculation of maintenance of basic rates benefits for Mr. Cook, in a manner that is equitable as between himself and persons who were regularly assigned yardmasters, should involve a formula which takes into account the tours of duty which he served as a spare yardmaster, as well as the tours of duty during which he was employed as a clerk. It submits that it is not appropriate to award to Mr. Cook the "basic weekly pay" of $823.08 provided for as the maintenance of basic rates pay for regular assigned yardmasters. Rather, it submits that the better approach is to adopt a formula analogous to the treatment of employees in road service, including employees on spare boards, whereby basic weekly pay is established as 1/52 of an employee’s total earnings during 26 full pay periods. In keeping with that approach, the Company notes that between January 1, 1988 and the date of the notice, the grievor worked 106 tours of duty as a yardmaster, and 104 as a clerk. On that basis it proposes that the basic weekly pay for Mr. Cook, based on a rateable blend of the yardmaster rate, as well as the clerical rate, should be $707.30.
Upon a careful consideration of the arguments submitted by both parties, the Arbitrator is satisfied that the approach suggested by the Company is appropriate. However, I cannot agree with the sample period which it has selected for the purposes of determining the relative breakdown of the grievor’s work, as between yardmaster’s work and clerical functions. The unchallenged representations of Mr. Cook, made at the hearing, establish that in 1988, the year which the Company uses for the purposes of calculating his basic weekly pay, certain of the conditions which led to the article 15 notice of December 7, 1988 had already begun to impact his earnings. The thrust of the submission advanced on behalf of Mr. Cook is that the year selected for examination by the Company is unrepresentative of the real impact of the change upon Mr. Cook. It is submitted that in the two years immediately prior, the substantial majority of his time was spent in service as a yardmaster and that it is inappropriate to disregard that record in determining his basic weekly pay for the purposes of establishing his maintenance of basic rates.
The Arbitrator must confess to some uncertainty with respect to the details of the Union’s argument. As disclosed in the facts presented in a recent arbitration before the Canadian Railway Office of Arbitration (CROA 2274) the Company consistently called relief yardmasters to work spare assignments in the Southside Yard until May 27, 1989, when it abruptly changed its practice. On that basis it is less than clear to the Arbitrator how the calendar year 1988 would necessarily result in some unfairness in the calculation of Mr. Cook’s incumbency. I am nevertheless, persuaded that fairness to him is better served by basing the calculation of his basic weekly pay on a blend of his average earnings as a yardmaster, and as a clerical employee, calculated over a longer period of time. That, in my view, is appropriate because of the uncertainty surrounding the reduction of operations at the Southside Industrial Yard and its resulting impact on Mr. Cook.
For the foregoing reasons the Arbitrator directs that the maintenance of basic rates payable to Mr. Cook be calculated on the basis of the formula advanced by the Company, but that the time utilized for averaging be the three year period prior to December 7, 1988, the date of the article 15 notice. In the Arbitrator’s view the formula so applied will eliminate any distortion which can, arguably, be said to have occurred by reason of a change in conditions over the course of 1988. Mr. Cook’s incumbency, which shall be of the same duration as that of other yardmasters, shall therefore be determined on the basis of a rateable blend of his earnings as a yardmaster and as a clerk over the three year period in question.
The Arbitrator continues to retain jurisdiction in the event of any further dispute with respect to the interpretation or implementation of this Supplementary Award.
DATED at Toronto this 27th day of July, 1992.
(signed) MICHEL G. PICHER