BETWEEN

(the "Company")

AND

(the "Union")

SOLE REFEREE: J. F. W. Weatherill

J. H. Clark

J. A. McGuire

A hearing in this matter was held in Montreal on October 13, 1972.

The matter now before me is a claim by the Company for reimbursement from the job security fund of wages and surcharges paid to the senior clerk, Park Avenue station, for the period from February 1, 1969 to September 30, 1971.

The job security agreement binding on the parties provides for a fund held by a trustee and subject to the direction of an administrative committee. Pursuant to article II, section 3, the trustee shall, as directed by the administrative committee, make certain payments out of the job security fund including by subsection (i):

In the past, certain claims have been made on the fund by the Company pursuant to this provision and such claims have been paid. The claims now before me, however, which are the accumulated claims for the period from February 1, 1969 to September 30, 1971, have not been approved of by the administrative committee and accordingly have not been paid. The administrative committee not having been able to reach a decision on this question, the matter had been referred to me as referee pursuant to article III, section 7 of the job security agreement. The claim is certainly the sort of claim contemplated by the job security agreement and the question before me is simply whether this particular claim is well founded. That is, whether it represents a reasonable increased expense incurred by the Company for services performed by it in the administration of the job security agreement.

The Company has incurred certain expenses by employing the senior clerk at the Park Avenue station to perform certain work in connection with the administration of the job security agreement. It is not necessary that the administrative committee approve of the hiring of any particular individual by the Company: the agreement contemplates that the Company is to perform certain services in connection with the administration of the job security agreement. The manner in which these services are performed is a matter for the Company; it is entitled to reimbursement for its costs insofar as the provision of such services involves "reasonable increased expense" to the Company. The determination of whether or not such expenses have reasonably been incurred is to be made by the administrative committee. Where the committee is unable to make such determination, then as has been noted, the matter may be put before a referee.

The senior clerk at the Park Avenue station handles all job security claims on the Montreal terminal and Laurentian division. All the duties of the position relate in one manner or another, to the administration of the job security agreement. These duties were listed in a survey prepared by Company and Union nominees in October of 1968. The duties were set out at that time as follows:

It was agreed at the time that survey was made, that items 1 to 11 constituted some 60% of the job, while items 12 to 15 constituted some 40%. It will be seen that items 1 to 11 refer particularly to the handling of claims against the fund whereas items 12 to 15 involve matters which, while related to the administration of the job security agreement, relate as well to the general seniority rights of employees.

Subsequently, the Company took the position that some 70% of the duties of the position involved the handling of individual claims while some 30% involved the administration of master seniority lists. This view was apparently based on a revised statement of the duties of the position in question. There appears to be no new joint survey on the position and the Company’s assertion that 70% of the duties of the position involve the handling of individual claims is not supported by any of the material before me. At the hearing of this matter, it was asserted on behalf of the Union that less than 5% of the duties of the position could be considered as coming within article III of the job security agreement. This assertion is likewise without support from the materials before me. There is nothing to support the conclusion that there had been any substantial change in duties of the position since the joint survey was made and in my view, that survey must still be relied on as the best evidence as to the nature of the job in question.

The services for which the Company may recover payment from the job security fund are those it performs in the administration of the job security agreement and not those which it would otherwise perform in the administration of the seniority provisions of collective agreements. More particularly, the expense which the Company may recover is the "reasonable increased expense" which it may incur in the administration of the job security agreement. From the material before me, it is clear that the 60% of the work of the senior clerk at the Park Avenue station which is concerned with the administration of individual claims is indeed an increased expense to the Company incurred by it in the administration of the job security agreement. While there could be some question as to the efficiency with which the senior clerk performs his work, it is my view on the material before me that the expense so incurred is reasonable. On the other hand, that 40% of the senior clerk’s work which relates to the maintenance and administration of seniority lists, transfer of personnel, bulletining and awarding out of vacancies and the like, cannot properly be said to constitute an increased expense incurred by the Company in the administration of the job security agreement. Indeed, from the Company’s own submission in this matter, it is clear that the work of the senior clerk in this regard simply replaces work formerly done by a number of clerks in respect of the administration of a number of collective agreements. While such work no doubt relates to the administration of the job security agreement it does not constitute an increased expense incurred in that regard. Accordingly, it must be my conclusion that the Company is not entitled to recover this portion of its claim from the job security fund.

A question was raised by the Union as to the propriety of the Company’s claiming to recover not only the wages but also certain "surcharges" in respect of the senior clerk’s position. Under the job security agreement, the Company is entitled to recover its increased expense and there can be no doubt that the expense incurred in respect of an employee includes not only his wages but other costs relating to his employment, including costs of equipment, pensions and other benefits. The inclusion of surcharges in the claim is accordingly appropriate. The cumulative claim for the period in question mounts to $22,720.00. In my view, the Company is entitled to recover only that portion of the claim which can be said to relate to the administration of individual claims. On the material before me, there is no ground for otherwise reducing the claim. Accordingly, it is my conclusion that the Company is entitled to payment of $13,632.00 from the job security fund in respect of the period from February 1, 1969 to September 30, 1971 and the trustee is directed to make such payment.

DATED this 26th day of October, 1972.

Referee