IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY COMPANY
(the "Company")
AND
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL 11
(the "Union")
GRIEVANCE RE ENTITLEMENT TO SUB BENEFITS
Sole Arbitrator: Michel G, Picher
Appearing For The Brotherhood:
D. Wray – Counsel, Toronto
J. Platt – International Representative, Ottawa
K. W. Kearns – System General Chairman, Boston Bar
L. Couture – System General Chairman & Secretary/Treasurer, Beloeil
Appearing For The Company:
R. Hempel – Labour Relations Officer, Calgary
E. MacIsaac – Manager, Labour Relations, Calgary
S. Samosinski – Direcotor, Labour Relations, Calgary
A hearing in this matter was held in Toronto on Monday, July 9, 2001.
AWARD
This grievance concerns the claim of the Brotherhood that the Company has wrongfully denied SUB benefits to some sixty S&C helpers who have been subject to layoff under the terms of the Income Security Agreement. It asserts that the S&C helpers are permanent employees who should be given the benefits in question. The position of the Company is reflected as follows in its ex parte statement of issue, which reads:
The Company takes the position that according to Definition (d) of the Income Security Agreement, “Temporary and Seasonal Employees” are excluded from the provisions of the ISA. It is also the Company position that Article 8.10 of the Collective Agreement does not necessarily deem S&C Helpers, and higher classifications, to hold permanent positions for the purposes of SUB entitlement. A grievance was filed by the Brotherhood on this matter and was subsequently denied by the Company.
The Company contends:
1. The Company’s actions are in compliance with Definition “d” and are consistent with the intent of the parties.
2. The Company is properly applying the terms of Article 8.1.
It is not disputed that individuals brought into the Company as S&C helpers are hired in the capacity of apprentices who, after a period of apprenticeship which generally lasts eighteen months, become fully qualified as S&C maintainers. As part of its submission to the effect that S&C helpers are contemplated to be permanent employees the Brotherhood refers the Arbitrator to article 8.10 of the collective agreement which reads:
8.10 S&C Labourers will be employed for temporary work only, such employment not to exceed four months in any twelve-month period. The Company may, on or prior to completion of such temporary period, promote a Labourer to the classification of S&C Helper if he passes the qualifying test. Employees hired for permanent employment will be classified as S&C Helper or higher. A regular employee who has been laid off and is recalled for temporary work will be paid not less than the helper rate for which he is qualified.
Counsel for the Brotherhood submits that the sole question to be examined is whether the employees in question are permanent, and whether they satisfy the eligibility requirements found in article 5.1(i) of the Income Security Agreement which provides as follows:
5.1(i) An employee who is not disqualified under Clause (iii) hereof, shall be eligible for a benefit payment in respect of each Claim Week provided he meets all of the following requirements:
(a) He has two years or more of continuous employment relationship at the beginning of the calendar year in which the period of continuous layoff in which the Claim Week occurs began (calendar year shall be deemed to run from January 1st to December 31st);
(b) For Supplemental Unemployment Benefit payment, a continuous waiting period of seven days in the period of layoff has expired. Each period of layoff will required a new seven-day waiting period in order to establish eligibility for Supplemental Unemployment Benefits, except that once an employee has been on layoff for more that seven days, and is recalled to work for a period of less than ninety calendar days, such employee will immediately become eligible for Supplemental Unemployment Benefits upon layoff with such ninety days;
(c) He has made application for benefits in the prescribed form and in accordance with the procedures prescribed by the Committee;
(d) He has exercised full seniority rights in his own bargaining unit at the location; then on his Basic Seniority Territory as provided for in the collective agreement, except as otherwise expressly provided in clause (iii), paragraph (b) of this article 5.1.
In summary, the Brotherhood advances the view that the parties could not have intended, by the terms of the newly negotiated Income Security Agreement, which became effective January 1, 1997, to effectively foreclose from the protections of the agreement some sixty employees in the S&C Helper classification out of a bargaining unit which involves 250 maintenance positions.
The Company, however, submits that the language of the Income Security Agreement is itself clear, and expressly excludes any employee who does not hold a bulletined position, which is admittedly the case for all S&C helpers. In that regard its representative draws to the Arbitrator’s attention the definition provisions of the Income Security Agreement:
DEFINITIONS
…
(d) “Temporary and Seasonal Employees”, as distinguished from employees who work permanent positions, are entirely excluded from the provisions of this Agreement.
…
(m) “Permanent Position” means a position that has been bulletined as permanent.
The Company maintains that the intention of the agreement, as reflected in these definitions, is plainly that the benefits of the Income Security Agreement are intended to be available only to employees who hold bulletined positions. It is on that basis that the employer submits that the S&C helpers, whether before or after they qualify to perform maintainers’ work, continue in the capacity of “temporary employee” until such time as they successfully bid upon a bulletined position.
In the face of these submissions the Arbitrator has little alternative. While the position of the Brotherhood may be understandable, and in its own mind during the course of bargaining it believed that the benefits of the Income Security Agreement would be available to S&C helpers who satisfied the eligibility requirements of article 5.1, the Arbitrator is compelled to acknowledge that that intention was plainly not shared by the employer, and that in such a circumstance it is the intention of the document which must prevail.
Compelled as I am to take the agreement as I find it, I have substantial difficulty interpreting the definitional terms of the Income Security Agreement in a way inconsistent with the approach of the Company in the case at hand. Sub-paragraph (d) of the definitions section of the Income Security Agreement is obviously extremely important, as it delineates those employees who are entitled, and those who are not entitled, to protections under the agreement. It must prevail in the event of any conflict with a provision of the collective agreement. In any event, I am satisfied that article 8.10 of the collective agreement does not speak of the issue of entitlement under the Income Security Agreement. When paragraph (d) of the definitions is read together with sub-paragraph (m) of the Income Security Agreement, it appears undeniable that what is intended by the document is that for the purposes of eligibility employees fall into two categories: employees who work permanent positions, on the one hand and temporary and seasonal employees on the other hand. Employees who work permanent positions are expressly defined as those who hold “a position that has been bulletined as permanent.” S&C helpers do not hold positions that are bulletined. In that circumstance I cannot conclude that the document intends that they are to be covered by the provisions of the Income Security Agreement.
As indicated at the hearing, this matter, which is of obvious importance to both parties, is one which they can address as they are currently in the process of re-negotiating their collective agreement, including the Income Security Agreement. In that circumstance any change which might result in an interpretation more consistent with the position advanced by the Brotherhood, obviously not available through arbitration, must be achieved through the process of negotiation.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, this 16th day of July 2001
_________________________________________
MICHEL G. PICHER
ARBITRATOR