SHP Ė 171

IN THE MATTER OF AN ARBITRATION

BETWEEN:

ONTARIO NORTHLAND RAILWAY

(the "Company")

AND

CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF S. ANTILA

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

A. Rotondo

 

And on behalf of the Union:

A. Rosner

F. Klamph

 

A hearing in this matter was held at Montreal on February 22, 1985.

 

 

AWARD

The Joint Statement of Fact and Issue in this matter is as follows:

JOINT STATEMENT OF FACT

On May 10 and May 15, 1984, Helper Scott Antila at Cochrane, Ontario was promoted to Electrician and paid at the trainee mechanicís rate under Rule 32.4(c) of Wage Agreement No. 12.

JOINT STATEMENT OF ISSUE

The Brotherhood claims that all time worked by Scott Antila on the two days in question should have been paid under Rule 11.1 of the agreement. The company does not agree.

There is no substantial dispute as to the facts. The grievor is an Electrical Helper working at Cochrane. At that location the electrical staff consists of three employees, being two Electricians, Messrs. Robitaille and Calaiezzi, and the grievor. In May, 1984, Mr. Calaiezzi took same vacation; and Mr. Robitailleís schedule was altered somewhat in order to protect the service requirements in the absence of the other Electrician. The grievorís hours although not his rest days, were altered so that he would be working along with Mr. Robitaille.

On Thursday, May 10 and Tuesday, May 15 it was necessary for Mr. Robitaille to go to Fraserdale to work on some troubles. In his absence, the grievor worked alone. He was utilized to do more than helperís duties - that is, he did some work which would properly be that of an Electrician only, and the company took the position that he was thus "promoted" on those days. He was paid at the trainee mechanic rate provided for by Article 32.4(c) of the collective agreement. That article is as follows:

32.4 (c) Effective January 1, 1968; a helper who is promoted in a craft for the first time to a mechanicís position shall until qualified for a higher rate under the terms of this Agreement be paid at the trainee mechanicís 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 mechanics rate.

Neither the Special Craft Rules nor article 23.10(b) are material to the instant case. There has been no agreement with respect to the implementation of a training program.

It is the unions contention that the grievor should have been paid at the higher rate of Electrician on the occasions when he was promoted as described above. This contention is based on Article 11, "Temporarily Replacing Other Employees", which is as follows:

(11) 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.

While the grievor did not "fill the place" of Mr. Robitaille in the sense of displacing him from his job or inheriting his permanent assignment, that is not the sense in which that expression is used in Article 11, which is a form of the temporary transfer provision very common in collective agreements. It deals with the situation where an employee temporarily performs the work of another, while the other, temporarily absent, retains his rights to the job. In the instant case, of course, Mr. Robitaille was not absent from work entirely, but he was, in the performance of his work, absent from Cochrane, where the grievor was used to perform work which would otherwise have been performed by Mr. Robitaille. On those occasions it is proper to say that the grievor filled the place of Mr. Robitaille. The situation was one in which, in my view, the collective agreement contemplates that the higher rate (that of the employee whose place was filled), is to be paid.

A similar conclusion was reached in the Canadian Pacific (Ranger and Whitney) case (December 18, 1981) which, although involving different parties, involved the same collective agreement language. In that case as in this, the employer relied on Article 32.4(c). The effect of that provision is discussed at pp. 7 and 8 of the award as follows:

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 mechanicís position", article 32.4(e) deals with apprentices (the grievors, to be sure, were not apprentices) "temporarily promoted to fill mechanicsí 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 Mechanicsí 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.

It was argued that Article 32.4 was ambiguous, and reference was made to some of its negotiating history, to show that it had been intended to deal, inter alia, with the matter of "helpers and other employees promoted to fill mechanicsí positions temporarily".

That language had appeared in the Master Agreement of 1974, "from which", the company states, "the present agreement wording came". It must be said. however, that not all of the 1974 wording made its way to the collective agreement provisions now before me. While I would agree that extrinsic evidence might properly be considered as an aid to the interpretation of Article 32.4, the material now before me does not persuade me that its interpretation should be that urged by the company, or that the analysis set out in the Ranger and Whitney case is not correct. While argument was not addressed to this point, it would appear that the reference in Article 32.4(c) to a helperís being "promoted in a craft for the first time to a mechanicís position" (emphasis added), is consistent with what is said in the Ranger and Whitney case as to the use of the term "promotion". In the instant case, if the companyís position were correct, Article 32.4 would have applied in respect of May 10, 1984, but it would not have applied thereafter. That would appear anomalous.

For all of the foregoing reasons, it is my conclusion that the grievor was entitled to payment pursuant to Article 11 of the collective agreement on the occasions in question. The grievance is accordingly allowed.

 

DATED AT TORONTO, this 11th day of March, 1985.

 

(signed) J. F. W. Weatherill