SHP - 66



Canadian National Railway Company

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey



J.R. McLeod



A hearing in this matter was held in Montreal on February 13, 1980



In this grievance the grievor claims the difference between his actual earnings and the amount he would have earned had he been advanced to a higher rated position, as the collective agreement entitled him to be. The Company does not dispute that the grievor was entitled to the advancement, what is in issue is the extent of the recovery possible by way of this grievance.

The Joint Statement of Issue is as follows:

During the period 11 December 1978 to May 1 1979 Carman Apprentice A. Lusk was advanced to the position of Carman at MacMillan Yard, Toronto.

On 10 May 1979 the Brotherhood of Railway Carmen of United States and Canada filed a grievance on behalf of Carmen Apprentice J.B. Young claiming that, because Apprentice Young was senior to Apprentice Lusk, he should have been advanced to Carman instead of Lusk. The Union alleged violation of Rule 58.20(b) and claimed payment of $630.76, the difference between the Apprentice rate and the Carman's rate for the period Mr. Lusk was occupying the Carman's position.

The Company declined payment of $630.76 but agreed to pay the difference between the Apprentice and Carman rates of pay for the time limit provided in the grievance procedure Rule 28.6, 20 days. Therefore the Company offered to pay the difference in rates for each day Mr. Lusk worked as a Carman during the period 11 April to 1 May.

The Union declined the Company's offer and insist on full payment of $630.76. The Company maintains that the amount claimed by the Union is unjustified.

* * * * *

Rule 58.20(b) of the collective agreement is as follows:

(b) Carman Apprentices who have completed their sixth term may be advanced to Carmen at point employed in the order they commenced their Apprenticeship and will be paid the basic rate of the position occupied. They will continue to be governed by the Apprenticeship Rules.

The grievor was a Carman Apprentice. Another Carman Apprentice, Mr. A. Lusk, commenced his apprenticeship after the grievor. During the period from December 11, 1978 to and including May 1, 1979, Mr. Lusk was advanced to Carman at MacMillan Yard, Toronto (the point at which he and the grievor were employed). Both employees had, it seems, completed their sixth term at any rate, no issue is raised to that. In the circumstances, there is no doubt that it was the grievor, and not Mr. Lusk, who ought to have been advanced, since by Rule 58.20 (b) advancement of apprentices in such cases is to be "in the order they commenced their Apprenticeship". As a result of what occurred, the grievor suffered a loss of earnings amounting to some $630.70. In the respect, while the Company sought to reduce that figure by several days on which the grievor "would not have been available for work as Carman since he was off the property on a Road Repair Truck". It appears, however, that such assignments were made on a daily basis, so that the grievor's being off the property for such purposes was the result of his not getting the advancement to which he was entitled. This is not, it appears, a proper ground for reduction of the claim.

The Company has offered to pay the grievor for his lost earnings for the period from April 11, 1979 until May 1. In refusing to allow the grievance in respect of the time before that, the Company relies on Rule 28.6 of the collective agreement, which deals with the matter of the time limit for the filing of a grievance. That article provides as follows:

28.6 Should an employee subject to this agreement believe he has been unjustly dealt with, or that any of the provisions of this agreement have been violated, he shall present his alleged grievance to his immediate supervisor for adjustment. If not so adjusted, and he wishes to have the matter progressed, he shall present it in writing to the authorized Local Union Representative(s) within 20 calendar days from the date of the alleged grievance, outlining all pertinent details and the date of the alleged grievance.

In my view, it is not important whether the grievance in this case be described as a "continuing" one, or as one relating to a repeated violation of the collective agreement. In most cases, and a number of pertinent arbitration cases were cited by the Company, compensation in respect of a period beyond the time allowed for the filing of a grievance would not be granted. The instant case differs from those cited in this important respect, however: That in the instant case the grievor did not know, and could not reasonably have been expected to know that there had been a violation of the collective agreement affecting him, until the matter eventually came to light. Further, one important cause of this situation was, no doubt, the Company's own failure to comply with Rule 58.21 of the collective agreement. That article is as follows:

58.21 The duly authorized committee at the point concerned will be consulted and mutual understanding arrived at prior to advancing Apprentices, promoting helpers, or transferring employees as Carman Trainees.

In these circumstances, where neither the grievor (nor, it world seem, the Union) was aware that there were grounds for a grievance, and where this lack of knowledge was related to the Company's failure to comply with the collective agreement, it may be concluded either that the "date of the grievance", was the date when the grievor became aware or should have become aware of it, or that in any event the Company cannot now rely on a situation created by its own default.

Accordingly, in the circumstances of this case, the limitation on recovery is not a proper one to impose. For the foregoing reasons, therefore, the grievance is allowed and it is my award that the Company pay to the grievor forthwith the sum of $630.76.

DATED AT TORONTO, this 5th day of March, 1980.

(signed) J.F.W. Weatherill