SHP 222

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

THE INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS BLACKSMITHS, FORGERS & HELPERS

IN THE MATTER OF THE GRIEVANCE of K. QUITTENTON

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Union:

D. J. Wray

 

 

There appeared on behalf of the Company:

M. Shannon

 

A hearing in this matter was held at Montreal on February 25, 1987.

 

AWARD

In this grievance, filed on February 5, 1985 (although the matter appears to have first been raised in December, 1984), it is alleged that the grievor, who was classified and paid as a Blacksmith Trainee, ought to be paid at the rate of Blacksmith. At the hearing, it was argued that the grievor should be paid at that rate in respect of the entire period from February, 1983, when he was first given the assignment in respect of which the grievance is brought. It is clear, however, that if the grievance were to succeed, the effect of Rule 28.6 of the collective agreement would be to limit compensation to the period commencing twenty days prior to the filing of the grievance.

There is no substantial dispute as to the facts. The grievor began his current service with the Company in September, 1986, as a Blacksmith's Helper. He worked in that classification for a number of years, and for most of that time acted as a Helper to a Mr. Fortin, a very experienced Blacksmith. From time to time, during absences of Mr. Fortin, the grievor would perform certain Blacksmith work, although he did not perform the full range of such work, and it is not suggested that he was then qualified as a Blacksmith. It is quite clear that he was not. As the grievor quite properly stated, "To be a Blacksmith, you need more than just experience as a Blacksmith Helper, for sure". At such times, however, the grievor was paid at the rate of Blacksmith Trainee.

The volume of business at the location where the grievor worked declined, and in May, 1982, the grievor was laid off.

In October, 1982, Mr. Fortin died. There had, previously, been a second Blacksmith employed at the location (previously a Carman Trainee with considerable experience as a Blacksmith, he had been tested and then promoted to Blacksmith, following representations on his behalf by the Union), but his employment had been terminated by the time of Mr. Fortin's death. There was then no Blacksmith at the location, and apparently no person working there in the craft.

The Company was not able to locate a replacement Blacksmith within the system. There was a vacancy in the position, but it was not argued, nor was it suggested at the time, that the grievor, whose classification was that of Blacksmith Helper, was entitled to recall to fill that vacancy. The evidence is clear that the grievor's qualifications at that time were not such as to have supported such a claim.

The evidence is that the Blacksmith General Chairman contacted the General Car Foreman at Sudbury (under whose responsibility the work came), to enquire whether, rather than hire a Blacksmith from outside, the Company would take the grievor on as a Blacksmith Trainee. That is what the Company did. The grievor was interviewed, and advised that his classification would be that of Blacksmith Trainee (this represented a recall to work and a promotion for him); that as there was no Blacksmith, he would have to learn the craft on a trial and error basis (he was encouraged to take certain courses); that the Company would accept the losses attributable to his lack of qualifications; and that at the end of four years (1044 working days) he would be eligible for qualification as a Blacksmith.

The grievor returned to work under those conditions. At the conclusion of four years (that is, since the grievance was filed), the grievor was, without the requirement of passing a test, considered to have become a Blacksmith, and is now in and is paid at the rate of that classification.

In the grievance, it was alleged that the grievor ought to be paid as a Blacksmith by virtue of the provisions of Rule 11.1 of the collective agreement. That provision is as follows:

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.

Rule 11.1, as has been said in other cases, is a form of the temporary transfer provision very common in collective agreements. The assignment of the grievor as a Blacksmith Trainee was not a temporary assignment, and did not involve the temporary replacement of anyone else in that classification. There had been a vacancy in the position of Blacksmith, but that vacancy was not filled. In the circumstances, and at the suggestion of the Union, the Company accepted to have the required Blacksmith work performed by someone not fully qualified, and to train that person (by experience and trial and error, since there was no person at the location qualified to provide training), to tradesman status. The appointment of the grievor as a Blacksmith Trainee was simply not, in the circumstances of this case, a "temporary transfer" within the meaning of Rule 11.1. There has, I find, been no violation of that provision.

At the hearing, it was argued that the grievor had in fact been working in the classification of Blacksmith since February, 1983, and that he was entitled to the rate of that classification. In support of this, reference was made to Rule 55.5 of the collective agreement, which is as follows:

Temporary Blacksmiths

55.5 In the event of not being able to employ blacksmiths qualified in accordance with Rule 55.1 and the regular apprenticeship schedule is not providing enough men to carry out the work, the work force may be increased by promoting other employees within the craft to temporarily fill such positions until such time as qualified blacksmiths become available.

An employee from within the craft promoted to temporary blacksmith may, after having accumulated four years experience as a blacksmith, be given the qualifying test of the craft and if successful will be placed on the Blacksmiths' permanent seniority list and will be credited with one years' seniority as of the date he accumulated the four years' experience and will forfeit all seniority rights in the classification or classifications from which promoted as of that date.

In fact, the grievor's appointment was not meant to be "temporary", in that the Company no longer sought to fill a vacancy in the position of Blacksmith, after appointing the grievor as a Blacksmith Trainee. The grievor might, however, have been displaced by a Blacksmith exercising seniority rights in certain circumstances, and he was so advised at the time of his appointment. The situation was, I consider, one of the sort generally contemplated by Rule 55.5, and as has been noted the grievor has had the benefit of that article in having been promoted to Blacksmith (and apparently credited with one years' seniority as such), on the completion of four years' work within the craft. That the Company did not insist on the requirement of a test at the time of the grievor's promotion to Blacksmith is not a matter which affects the question of the grievor's status or qualifications at any time material to this grievance.

It was argued that the grievor had more than four years' experience at the time he was given the assignment, in February, 1983. Of course at that time his experience was as a Blacksmith's Helper, with a total of some nine weeks' assignments as a Blacksmith Trainee. The experience which the grievor had accumulated by February, 1983, was not the sort of experience which Rule 55.5 refers to as the experience to count towards the accumulation of four years' experience "as a blacksmith". On the contrary, Rule 55.5 quite plainly contemplates that a person who may fill such a position, and begin to accumulate four years' experience, will be a person already "within the craft", although clearly not a person already qualified as a Blacksmith. The grievor was such a person. Rule 55.5 does, I think, apply in the circumstances, but its effect is not to entitle the grievor to the payment claimed. Rather, it supports the Company's action the action, it may be recalled, which the Union had requested that it take, for the grievor's benefit.

In my view, the Company is correct in considering that the matter is governed by Rule 32.4(c). Rule 32 deals with hourly rates of pay, and Rule 32.4(c) provides as follows:

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 rate 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.

In February, 1983, the grievor was a Helper, and he was promoted for the first time (I do not consider that any temporary promotions to act as Blacksmith Trainee are material), to a "mechanic's position", not being "qualified for a higher rate" than that which he was paid that, as Rule 32.4(c) contemplates, of Trainee. Rule 32.4(c), in my view, applied in the circumstances, and the Company's action was in accordance with it.

It was argued that the work done by the grievor was the work of a Blacksmith and that he should be paid accordingly. That is not in accordance with the facts of the matter. The grievor was, it would appear, given assignments that would have been given to a Blacksmith had there been a Blacksmith. He was not, however, able to nor expected to perform those assignments with the skill and efficiency of a Blacksmith. His job was to learn to be a Blacksmith by the experience and trial and error of doing Blacksmith work, but not to the standards of quality or quantity which might properly be required of a Blacksmith. There was no grievance as to the sufficiency of the "training" afforded the grievor. The fact is that the grievor was learning the craft, and it appears to have been acknowledged that by the end of the period contemplated in the collective agreement the grievor had learned it. During that learning period, the grievor was quite properly paid as Blacksmith Trainee, in accordance not only with the collective agreement, but with the arrangement that appears to have been satisfactory to all concerned at the time it was made.

There has, I find, been no violation of the collective agreement and the grievance is accordingly dismissed.

DATED AT TORONTO, this 16th day of March, 1987.

J. F. W. Weatherill

Arbitrator