SHP - 18
IN THE MATTER OF AN ARBITRATION
BETWEEN
ONTARIO NORTHLAND RAILWAY
(the "Company")
AND
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
(the "Union")
RE:
GRIEVANCES OF E.C. YORKE AND E. TURCOTTE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
M. McClenaghan
APPEARING FOR THE COMPANY:
A. Rotondo
J. King
A hearing in this matter was held in Montreal on April 10, 1975.
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF FACT:
On September 15, 1971, and September 16, 1971, respectively, Machinist Helpers E.C. Yorke and E. Turcotte applied to take machinists’ qualifying trades tests and to be placed on the machinists’ permanent seniority list. These employees successfully completed the tests on February 8 and February 9, 1972 respectively.
On December 7, 1971, a letter of understanding was completed between Division No. 4 and Canadian National Railway and CP Rail reducing the qualifying time for set up mechanics from five years to four. The terms of this letter include retroactive skill pay and backdated seniority for employees affected. Ontario Northland agreed to apply the provisions of the letter to its employees in the same manner as it was applied on CN and CP.
It is the Company’s individual view that this statement should include the fact that the employees concerned applied to take trades tests which would be tempered to their areas of actual work experience and that they were allowed to take that type of test.
JOINT STATEMENT OF ISSUE:
The Union claims that Machinists Yorke and Turcotte are eligible for backdated seniority and retroactive skill pay under the terms of the December 7, 1971, letter. The Railway maintains that this letter applied only to those employees affected by the reduction in the qualifying time from five years to four and does not apply to Messrs. Yorke and Turcotte.
The grievors, who were first set up in 1962 and 1964, respectively, had each accumulated five or more years’ service as a mechanic by June 27, 1969, when the General Chairman was advised of their eligibility to be tested. Subsequently, in February of 1972, they completed the tests successfully, as a result of which, it seems, they would be eligible to go on the Machinist’s seniority list, and to receive skill pay. The delay was not attributable to the grievors themselves, but was due to negotiations respecting craft rule changes, and to discussions concerning the makeup of the tests.
During the period while the grievors were eligible, but through no fault of their own not yet able to be tested, the craft qualifications were altered, as appears from the December 7, 1971 letter of understanding. The material provisions of that letter are as follows:
This will confirm the understanding reached at the meeting held on November 11, 1971 that, as the Machinists, Sheet Metal Workers, Pipefitters, Boilermakers, Blacksmiths and Moulders’ classifications have in respect of their qualifications provision contained in the respective Special Craft Rules reduced the former 5-year requirement to 4 years, employees affected by these revised rules will have their seniority dates established as follows:
a) Employees who on October 1, 1971 had accumulated the required 4 years’ service as Mechanics and who, subsequent to that date have continued to work in the Mechanic’s classification, would be given the opportunity of taking the craft qualifying test and, if successful, have their names placed on the permanent Mechanics’ seniority list with a seniority date of October 1, 1971.
If, in respect of a particular seniority territory, more than one employee is involved, such employees shall have their names placed on the permanent Mechanic’s seniority list with a date of October 1, 1971 in the order in which they completed the 4 years’ service as Mechanics.
b) Employees who between October 1 and December 1, 1971 accumulate the required 4 years as Mechanics and who have continued to work in the Mechanic’s classification will be given the opportunity to take the craft qualifying test and, if successful, will have their names placed on the permanent Mechanic’s seniority list with a seniority date as of the date they completed the 4 years’ service as Mechanics.
...
In respect of the discussions concerning the payment of retroactive skill differential to employees governed by the above provisions, it is understood that the payment of skill differential will be made retroactive to Pay Period No. 23, November 5, 1971.
The acknowledged purpose of the letter was inter alia, to prevent "scooping" of seniority as between employees. Now the grievors had, at an earlier stage, refused to sign the option under which they might have entered the craft after five years. By the time of their eligibility to be tested, however, they were in a position substantially analogous to that of those employees who were affected by the change in requirements. They were, like the others, still ready to be tested after October 1, 1971, having previously accumulated the necessary service. They were not literally in the same position, and the change in the requirement from five years to four would not affect their own eligibility, but it would affect their seniority position relative to those whose requirement was thus reduced. The revision of the rules did, in this way, affect the grievors.
Accordingly it is my view that the grievors were entitled to the benefit of the letter of understanding. It is my award that they be given seniority accordingly, as well as retroactive pay. The payment should be simply that for loss of actual compensation: I cannot agree with the Union’s suggestion as to compound interest or as to the 1975 rate of wages.
DATED at Toronto this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill
Arbitrator