IN THE MATTER OF AN ARBITRATION

B E T W E E N :

ONTARIO NORTHLAND RAILWAY

(the "Company")

- a n d -

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

SYSTEM COUNCIL NO. 11

(the "Union")

ARBITRATOR : Michel G. Picher

APPEARING FOR

THE COMPANY : Michael Restoule - Manager of Labour Relations

George Payne - Chief Engineer

APPEARING FOR

THE UNION : John E. Platt - International Representative

G. Louttit - Regional Chairperson

K. Guiney - Local Representative

A hearing in this matter was held in Toronto on February 15, 1994.

This is a grievance in respect of the alleged violation of the classification and wage rate provisions of the collective agreement. The dispute and statement of issue, filed at the hearing, read as follows :

The Brotherhood’s claim is based on the Letter of Understanding of March 10, 1978, and a subsequent amendment of the collective agreement. The Letter of Understanding arose as a result of a reduction in signal department personnel and ensuing negotiations, as required under Article VIII of the Supplemental Agreement of July 19, 1976 covering job security in the event of technological, operational and organizational changes. As indicated in the letter to the Union dated January 23, 1978, the Company contemplated reducing the ABS signalized territory north of Temagami from four territories to three. This involved a staff reduction, in respect of which the Article VIII negotiations were undertaken.

The official Article VIII notice was given to the Union on January 23, 1978 and the Letter of Understanding of March 10, 1978 was negotiated to minimize the adverse impacts of the change on the employees. The Letter of Understanding provides, in part, as follows :

It appears that from 1978 through 1983 Mr. Hebert held the position of leading signal maintainer, a position which was incorporated into article 1.12 of the collective agreement and in respect of which a premium rate of pay was established, as currently reflected in article 25 of the agreement. Mr. Hebert received the rate of pay for the leading signal maintainer, save when he worked as a testman, which was for some seven months of the year.

Mr. Hebert moved from Englehart to North Bay in February of 1983, at which time he gave up the leading signal maintainer position. While it appears that at that time a job bulletin issued with respect to the leading signal maintainer’s position, it is unclear whether it was in fact filled. For the purposes of the grievance, it does not appear disputed that at or about that time the Company ceased to pay the leading track maintainer’s rate to any employee. Thereafter, persons such as the grievor who were assigned to work as a testman on a temporary basis were paid the testman’s rate for the time so employed, but were not paid above the rate of signal maintainer when they were required to work

other than as a testman. It is common ground that no grievance was brought in respect of the Company’s failure to pay the leading signal maintainer’s rate until the instant grievance was filed in February of 1992.

The position of the Company is that the letter of understanding represents a one-time, finite undertaking which was fully satisfied at the time Mr. Hebert surrendered the position of leading signal maintainer in February of 1983. It submits that the purpose of the letter of understanding, namely to minimize the adverse effects on the employees affected by the reduction in staff implemented in 1978, had been fully satisfied, and that the Company was under no further obligation.

Secondly, the Company argues that it is within its prerogatives to determine that there is no longer any need to fill the position of leading signal maintainer. In this regard, its spokesperson notes that, because of changes implemented in recent years, signals are no longer used for train traffic control, as a result of which the period of time for which a testman is required has fallen from seven months of the year to one month a year. The Company submits that it was, in the circumstances, entitled to view the leading signal maintainer’s position as no longer being required, and is under no obligation to fill it.

The Union’s representative expresses a different view. While he acknowledges that no grievance was filed over the period of a number of years, he nevertheless maintains that the original intention of the letter of understanding, as reflected in the amendment of the collective agreement, is to establish a permanent position of leading signal maintainer. He argues, in effect, that the departure of Mr. Hebert did not, of itself, represent an event which entitled the Company to view its obligation as at an end. Essentially, according to the spokesperson for the Brotherhood, what the parties undertook with the Letter of Understanding of 1978 was that the work of a testman would be performed on an occasional basis by a person who would otherwise have been classified as a signal maintainer, and that the person qualified to perform that work on a regular basis would be entitled to hold the higher position of leading signal maintainer, and to be paid at the premium rate when not engaged as a testman, and at the testman’s rate when so employed.

Upon a review of the material filed, and the submissions of the parties, the arbitrator has some difficulty with the Company’s characterization of the original undertaking. It is, in my view, significant that the establishing of the rate for the leading signal maintainer was not expressed, in the parties’ agreement, as a right personal to Mr. Hebert, or any other single employee who was negatively

impacted by the staff reduction of 1978. Rather, as the language of the agreement reflects, the parties used general terms to establish the position of leading signal maintainer. Specifically, the provisions of paragraph (g) reflect the understanding of the parties that the incumbent in the newly established position could be any of a number of employees, to the extent that the headquarters of the leading signal maintainer was agreed to be the headquarters of the employee who would be the successful applicant for the position.

In the arbitrator’s view what the language and the overall scheme of the Letter of Understanding reveal is an agreement on the part of the Company and the Union to establish a new classification of employee. Implicit in that agreement was an understanding that a job of work for the leading signal maintainer existed, and would continue to exist so long as there was a need for an employee to be occasionally assigned to perform the work of a testman. I am reinforced in that conclusion by the fact that the parties incorporated their agreement into the collective agreement by an amendment of the classification and wage rate provisions, an amendment that has been permanent and ongoing to the present. In essence, therefore I am compelled to conclude that the parties did agree in 1978 that the position of leading signal maintainer was to be available to a person in the circumstances of Mr. McGuire. Nor am I persuaded that the reduction of the amount of work available in the testman’s classification would, of itself, terminate the obligation undertaken in the original letter of understanding so long as a reasonable amount of testman’s work remained. For the reasons touched upon above, neither am I prepared to conclude that the departure of Mr. Hebert would have had the same effect. In the result, I am satisfied that the Union is correct in respect of its interpretation of the provisions of the collective agreement as they would apply in the case at hand.

That, however, is not the full end of the matter. It is common ground that the Union did not grieve the failure of the Company to treat Mr. McGuire, or other similarly situated employees, as persons holding the classification of leading signal maintainer for a period of nearly 10 years, during which time the collective agreement was subject to renewal on more than one occasion. In the circumstances, I am satisfied that the Union is estopped from claiming the enforcement of the provisions respecting the leading signal maintainer for the currency of the present collective agreement. The estoppel, however, will be at an end with the conclusion of the agreement, at which time the parties will be in a position to deal fully with the issue in bargaining. Should the collective agreement be renewed without amendment, the Company will be under an obligation to classify Mr. McGuire as a leading signal maintainer, and to compensate him accordingly.

For the foregoing reasons, the grievance is allowed, in part. The Arbitrator finds and declares that the interpretation of the collective agreement advanced on behalf of the Brotherhood is correct. The Company violated the provisions of the letter of understanding of March 10, 1978, and of the collective agreement, by failing to classify and compensate Mr. B. McGuire as a leading signal maintainer. For the reasons related, however, the Union is estopped from claiming any remedy beyond a declaration, given its apparent acquiescence in the Company’s practice over a period of some ten years. Should the collective agreement be renewed without change, however, Mr. McGuire shall be entitled to be classified and compensated as a leading signal maintainer. The arbitrator retains jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this award.

DATED at Toronto this 2nd day of March 1994.

______________________________

Michel G. Picher - Arbitrator