IN THE MATTER OF AN ARBITRATION
Canadian Pacific limited
CANADIAN COUNCIL OF RAILWAY EMPLOYEES AND SHOPCRAFT WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF A. RANGER AND S. WHITNEY
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
M. M. Yorston
And on behalf of the Union:
W. K. Redhead
A hearing in this matter was held at Montreal on November 12, 1981.
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
Electrical Helpers S. Whitney and A. Ranger have periodically been promoted on a temporary basis to replace Electricians absent account illness, annual vacation or other reasons. While temporarily promoted, they have been compensated at the Trainee Mechanic’s rate of pay, Rule 32.) of Wage Agreement No. 16.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that the grievors are governed by Rule 11, "Temporarily Replacing Other Employees"; and Rule 47.4(a) and should be paid the same rate as the Electricians they replace, and they claim payment of the difference between the "Trainee" rate and the Electrician’s rate for all time worked in the promoted status.
It is the Company’s position that the grievor’s are not fully qualified Electricians and, therefore, do not qualify for the higher rate of pay, but are properly compensated at the Trainee rate for all time replacing fully qualified Electricians in accordance with Rule 32.4(c) of Wage Agreement No. 16. The Company also maintains that inasmuch as claims in the instant case were filed on January 26, 1981, in the event the employees were successful in this dispute an award could not provide for payment at the higher rate for time worked prior to January 26, 1981.
Mr. Ranger, who was hired by the company on March 7, 1979, as a Car Cleaner, was promotion to Electrical Helper on March 26, 1979. He has since been promoted from time to time to perform temporary relief Service as an Electrician. Mr. Whitney was hired on October 6, 1976, as an Electrical Helper. Since then, he too has been promoted from time to time to fill an Electrician’s position an a temporary or relief basis.
The grievors, it is clear, are not qualified Electricians, and are not journeymen. They would not, it appears, have been entitled to the "skill differential" which previous collective agreements provided for fully qualified Mechanics as opposed, to those who were not fully qualified. Later, the "skill differential" was incorporated into the basic rate of pay. I do not think that it can properly be concluded from that history alone that a person temporarily promoted to be a Mechanic (or, more particularly, an Electrician) should receive anything other than the rate for that position.
The general provision relating to the pay of persons temporarily promoted to a higher-rated job is set out in article 11 of the collective agreement, which is as follows:
Rule 11 – Temporarily Replacing Other Employees
11.1 When an employee is required to fill the place of another employee receiving a higher rate of pay, he shall receive the higher rate but if required to fill, temporarily, the place of another employee receiving a lower rate, his rate will not be changed.
The application of this article does not depend on an employee’s qualifications for a higher-rated job. That question is resolved – or left aside – by the company’s appointing someone to a higher rated job. It may be that the employee is not qualified to perform all aspects of the job, but that is a situation which the company must be deemed to accept upon making the appointment.
In the instant case, therefore, the grievors would, by virtue of article 11, appear to be entitled to receive the Electricians’ rate when they are promoted to work as Electricians, since that is a higher rate than their rate as Electrical Helpers. That at least is the general effect of article 11. The question arises, however, whether there is any other provision in the collective agreement dealing more particularly with situations such as this.
Article 47.4(a) may be mentioned in passing. It deals with the provision of vacation relief, and contemplates that while mutual arrangements may be made to carry on work while avoiding additional expenses, employees may be temporarily promoted and in such cases where employees are "definitely assigned to fulfil the duties and responsibilities of a higher rated position", they are to be paid the rate of the position. This is of course consistent with article 11, although it provides for the making of arrangements which, would make promotions unnecessary. In this case, however, it is clear from the Joint Statement that there were promotions, and it would again follow that the higher rate would be payable.
It is the company’s position that the matter is governed by article 32.4(c) of the collective agreement. Article 32 deals generally with hourly rates of pay. The rates payable to the various classifications (including Electricians, Electrical Helpers and Trainee Mechanics) are set out in article 32.1. Article 32.4 is as follows:
32.4 (a) Effective from December 31, 1973 the thirty-cent (30(cents)) skill differential previously in effect has been incorporated into the basic rate of pay.
(b) An employee who is promoted to or hired in a mechanic or trainee mechanic position on or prior to January 1, 1968, shall, until such time as he becomes a fully qualified mechanic and is placed on a permanent craft seniority roster, be paid the basic rate of the mechanic’s position or positions occupied. The basic rate of the position occupied shall continue to be paid to such employee during all periods that he occupies a position of mechanic subsequent to January 1, 1968.
(c) Effective January 1, 1968, a helper who is promoted in a craft for the first time to a mechanic’s position shall until qualified for a higher rate under the terms of this Agreement be paid at the trainee mechanic’s rates as shown in Rule 32.1 except as otherwise provided for in Special Craft Rules. Employees covered by Rule 23.10 (b) shall be paid at the trainee mechanic’s rate.
(d) Employees governed by Rules 23.9 (a) and 23.9 (b) shall be paid the full rate of the mechanic’s position occupied.
(e) Apprentices temporarily promoted to fill mechanics’ positions in accordance with the provisions of this Agreement will receive the full rate of the mechanic’s position occupied.
There is nothing in the Craft Special Rules which would affect the application, if any, of article 32.4(c) in the instant case. Further, the grievors do not come under article 23.10(b), which deals with employees in the training program who fail to meet the requirements of trade tests.
In my view, however, article 32.4(c) does not apply in the instant case. It is to be remembered that the general rule respecting pay in cases of temporary replacement is set out in article 11. Under that rule, the grievors are entitled to the higher rate, that is, in this case, the rate of Electrician. A different rule would prevail only if it clearly applied to the particular case. Article 32.4(c), however, does not deal with the "temporary replacement" situation, but with that of "promotion" in general. The grievors were not "promoted" in any definitive sense; the term "promotion" in the phrase "temporary promotion" refers to the performance of some duties in a higher classification for a limited time, not to establishment as a full-fledged member of the higher classification. The distinction between "promotion" and "temporary promotion", is seen in article 32.4 itself: while article 32.4(c) deals with helpers who are "promoted in a craft for the first time to a mechanic’s position", article 32.4(e) deals with apprentices (the grievors, to be sure, were not apprentices) "temporarily promoted to fill mechanics’ positions". There is, further, a distinction to be drawn between "temporarily replacing" another employee (as contemplated by article 11), and being promoted to "temporary electrician" pursuant to article 57.8 or 57.9. In the latter case, insufficiently qualified employees are "promoted" to increase the work force "until such time as qualified electricians become available".
In my view, it is this latter class of cases to which article 32.4(c) is addressed, and the payment of the Trainee Mechanics’ rate would seem to be appropriate to that situation. The "temporary replacement" situation is different, and is clearly covered by article 11. Article 32.4(c) is not inconsistent with article 11, and does not set out an exception to it, nor deal more particularly with a case which would otherwise come within it. Rather, it deals with a different sort of "promotion" than that which occurred in this case.
For the foregoing reasons it is my view that article 11 applies in the instances in question, and that the grievors were entitled to pay at the Electricians’ rate. Accordingly, the grievances are allowed. It is noted that these grievances were filed on January 26, 1981. Since article 28.6 of the collective agreement calls for the filing of a grievance within 20 days of it occurrence, no award is made in respect of any claim for pay prior to January 6, 1981.
DATED AT TORONTO, this 18th day of December, 1981.
(signed) J. F. W. Weatherill