BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. R. Hnatiuk

J. A. Cameron

And on behalf of the Union:

J. W. Asprey

L. Biniaris

A hearing in this matter was held at Montreal on December 16, 1982.

The parties have submitted separate statements of dispute and issue in this matter. The statement of dispute submitted by the union is as follows:

That submitted by the company is as follows:

These statements in fact refer to the same dispute since the rate of wages claimed by the union to be in accordance with Rule 32.7 is indeed one in excess of that provided for in Rule 32.1.

The statement of issue submitted by the union is as follows:

That submitted by the company is as follows:

In each case the grievor, on being assigned to a position as Machinist Helper at Symington Diesel Shop, was paid the Helper's rate specified in Rule 32.1. The fact that Ms. Cormier was paid a higher rate for the brief period when she was assigned as a Helper at Transcona would not affect the company's right to correct that error - if in fact it was an error.

The issue to be determined is whether or not the grievors, on being appointed to Machinist Helpers positions, are entitled to be paid a rate higher than that specified in Rule 32.1 and, in particular, whether or not they are entitled to the benefit of Rule 32.7. More precisely yet, the issue is essentially as to the force and effect of Rule 32.7 at the present time.

Rule 32.1 sets out the hourly rates of pay for various classifications throughout various periods during the term of the collective agreement. Among the classifications for which rates are set out is that of Machinists' Helper. On the material before me, the majority of employees in that classification are paid in accordance with Rule 32.1. In a few cases, however, notably at Transcona and Symington, Helpers are paid a higher rate. It is only on the Prairie Region that instances of the payment of such rates are to be found. It is to be noted that this case relates to Machinists' Helpers as such, and not to any of the special Helper classifications for which rates are set out in Rule 32.1, nor to "wheel pressers and belt men", as referred to in Rule 32.7.

Rule 32.7 is as follows:

From the material before me, it is clear that this provision, or rather a predecessor thereof, was introduced into the collective agreement many years ago in what was a continuing effort to rationalize the rather widely-varying wage rates which existed across the system, mainly for historical reasons. It would appear that the original intention of the parties concerned was, in effect, to "red-circle" rates paid to some persons working as Helpers, in order to do away with anomalous - and unfair - differences in the rates paid for the same work. The creation of a regular system of payment in accordance with the rates set out in the collective agreement was to be achieved over time, through a process of attrition.

While that goal has been largely achieved, it has not been entirely achieved. Whether or not - unlikely as it seems - there may still be employees who would be entitled to have their established rates maintained where there exceed the negotiated rate for their classification, more importantly it appears that, at least at the points referred to, employees newly-appointed to positions whose incumbents had enjoyed higher rates than the collective agreement called for, have themselves been paid such higher rates. Further, the language of the provision in question has itself evolved over the years. Rule 32.7 as it now stands cannot properly be described as a provision whose effect is to "red-circle" individual rates. Rather - although I think the Rule is still addressed to the same general problem - the Rule, as presently worded, preserves certain rates of pay, established at various points on the system, as minimum rates `"for such classifications at such points".

The effect of the words just quoted is to provide, even for employees newly-assigned to jobs as Helpers at the points in question, the benefits of the "minimum rates" thus established. I agree with the union that article 32.7 is not ambiguous (although for its application, there would have to be evidence as to what the "established" rates of pay in fact were), and it is true, of course that the provisions of the collective agreement cannot be changed by one party acting unilaterally.

In the instant case, the company does not purport to have changed the provisions of the collective agreement (it could not do so), but rather to have applied them in accordance with their intent. The intent of Rule 32.7, the rule not being ambiguous, is to be gleaned from the rule as it now stands. Its effect, in my view, is to "red-circle" not an individual's wage rate, but rather the rate of a classification at a particular location. The "established" rate at a given location (as of the effective date of the collective agreement), is the minimum rate for persons in that classification, at that location, for the term of the collective agreement. That is what the collective agreement provides, and that is what must be given effect.

It may be added, however, that the collective agreement does not provide for increases in the "established" or "minimum" rate during the term of the agreement. When, during that term, the applicable rate as called for by Rule 32.1 exceeds the "established" rate as it existed at the effective date of the collective agreement, then the "minimum rate" would be surpassed, and the rate provided for in Rule 32.1 would apply. In that way, with the passage of time, the "red-circling" would be given effect for the classification at the location in question. That is, the "established rate" is not subject to increase, whereas the rate set out in Rule 32.1 does increase from time to time.

It appears from the material before me that the "established rate" at the points in question was, at the material times, $8.221 per hour. That is a rate in excess of the rates specified in Rule 32.1. The effect of Rule 32.7 is to make that rate the minimum rate for the classification in question, at the point in question. Unless the "established rate" is varied, the difference between it and the rate specified in Rule 32.1 will diminish and then disappear as rates increase. Until that occurs, however, the clear effect of Rule 32.7 is that the "established rate" is the minimum rate for "such classification at such points".

Since the grievors were in one of the classifications covered, at a point where rates of pay had been established in excess of the rates specified in Rule 32.1, it follows that they were entitled to such "established" rate as long as it exceeded the rate provided for by article 32.1, however anomalous that may appear.

Accordingly, the grievances are allowed.

DATED AT TORONTO, this 6th day of January, 1983.