This is the arbitration of a grievance concerning an appropriate rate of pay. At the hearing the following dispute and joint statement of issue was filed:

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The instant grievance involves the application of the following rules of the collective agreement;

Malport Yard is some ten miles west of MacMillan Yard in Toronto. The Union contends that Malport is an outlying point from MacMillan Yard, and that work at that location performed by Carman Tucker should have been compensated at the "one man point" rate of pay. The Company submits that the concept of an outlying point contemplates a location that is some substantial distance from the yard from which it is deemed to be outlying, and that that condition does not exist in the case at hand. The Company emphasizes that the carman's position in dispute fell within the Toronto seniority terminal, and that the incumbent In the position was under the supervision and direction of the MacMillan Yard Car Department.

In, support of its position the Corporation points to the fact that Malport is not an "outside point" within the meaning of Rule 23.7 which is as follows:

The Corporation notes that as Malport falls within the seniority terminal of Metropolitan Toronto, it cannot be considered an outside point within the contemplation of article 23.7. It argues that not being an outside point, it should not be construed as an outlying point, as in its view rule 53.10 contemplates that an outlying point should be something more than an outside point within the meaning of rule 23.7.

In further support of its argument that an outlying point involves a degree of substantial distance its representative refers the Arbitrator to rules 7.1, 7.2 and 7.4 which provide:

The Company emphasizes the distinction between the "home station" and the outlying point reflected in the provisions of rule 7. It submits that as Malport is part of the home station of Toronto it cannot be considered to be an outlying point. Apart from the concept of travel and distance reflected in rules 7.2 and 7.4, the Company stresses the recognition in rule 7.2 that bulletined hours at the outlying point may differ from the bulletin at the home station. Again, the Company notes that in the case of Malport there is no separate bulletining as between that location and MacMillan Yard, as they are both within the Toronto seniority terminal.

The Union relies, in part, on past practice, and in particular in the settlement of an earlier grievance. It notes that in July of 1982 the Union grieved the failure of the Company to pay one man point rates at both Malport and at the Ontario Food Terminal, which the Union then alleged were outlying points to MacMillan Yard. In a letter dated September 14, 1982 the Company's acting Regional Mechanical Officer, Mr. F.J. Sass registered the Corporation's agreement that Malport and the Ontario Food Terminal should be classed as one man points. As reflected in the joint statement of issue, the practice implemented pursuant to that settlement continued until August 5, 1985, at which point Malport was bulletined as a regular forty-hour per week carman position. which eventually resulted in this grievance.

As noted, the collective agreement provides no direct definition of the term "outlying point" used in rule 53.10 nor has that term been the subject of extensive arbitral interpretation. The only case to which the Arbitrator has been referred involved the Arbitration of a grievance between Canadian Pacific Limited and the Canadian Council of Shopcraft Employees and Allied Workers (SHP 97), an award dated March 17, 1981. it may be noted that in that case rule 53.10 defined a one man point in the same terms as the rule in the instant case. In resolving the dispute in that case Arbitrator Weatherill made the following comments at pp. 5-7:

It appears from the above authority, the arbitrator. while not required to provide an exhaustive definition of a point which is "outlying", was persuaded that it must involve some degree of contrast with main shops and, possibly, with running points.

In the Arbitrator's view the approach of the Company, insofar as it draws a distinction between outlying points and a home station as reflected in rule 7.1 is of dubious value. What that article appears to address is the circumstance of any carman who is assigned temporarily to fill a vacancy at a location other than his or her home station. Absent any definition of the term "home station" within the collective agreement, the context would suggest that for the purposes of rule 7 an individual's home station would be the location at which he or she is normally and regularly assigned. In that sense, while Mr. Tucker was permanently assigned to Malport, that location may well have been his home station for the purposes of the application of rule 7 had he been required to temporarily fill a vacancy at some other location. It seems to the Arbitrator that whether a given location is considered to be "outlying" or alternatively to be a "home station" is a relative question to be determined on the facts of each particular case.

In the instant case Metropolitan Toronto as such does not appear to be a home station, although it is a seniority terminal. It does not appear disputed that Toronto contains a number of points or home stations for the purposes of the collective agreement, in that it contains a number of yards, repair facilities and work locations within it. In these circumstances the Arbitrator is inclined to accept the position of the Union that an outlying point is a yard, repair facility or work location which lies outside the physical boundaries of any other yards, repair facilities or work locations within a seniority terminal.

That approach appears, moreover, to have been reflected in the past practice of the parties. The Toronto seniority terminal includes a number of locations or points falling both within Metropolitan Toronto and the surrounding area. These include MacMillan Yard, Brampton, Georgetown, Malport, Stouffville, Mimico, Oshawa, Ajax, Oakville, Bradford, Barrie, Uthoff and Willowbrook. It is not disputed that at various points in time Georgetown, Malport, Stouffville, Mimico, Ajax, Bradford, Barrie and Uthoff have all been treated by the parties as carman one man points for the purposes of the collective agreement. That continues to be so at Georgetown, Stouffville, Ajax and Barrie at the present time. Against that background, the Arbitrator has substantial difficulty in concluding that the parties intended to restrict the concept an outlying point as falling outside a given seniority terminal, or that all of Metropolitan Toronto is to be considered as a single home station for the purposes of defining outlying points. Nor is the concept of "outside points" contained in rule 23.7 particularly instructive, as that rule relates solely to the administration of the seniority lists. It was obviously necessary for the parties to refer to outside points for the purposes of assigning a seniorIty terminal to employees stationed at locations outside any other seniority terminal. If anything, the use of the phrase "outside points" in that context rather than "outlying points" suggest that the parties drew a deliberate distinction in recognition of the fact that outlying points can fall within the same seniority terminal as another location to which they are outlying.

For all of the foregoing reasons the Arbitrator is satisfied that the grievance must be allowed. I am also satisfied that as the failure to pay the appropriate wage constituted an ongoing breach of the collective agreement, the grievance is not time barred, although the period of compensation may be limited by the delay in filing the grievance. In the instant case it appears to the Arbitrator that the failure of the Union to take any action between August 5, 1985 and February 2, 1988 was tantamount to acquiescence in the Company's violation of the collective agreement. I am therefore not persuaded that the claim for compensation should be allowed to pre-date the date of the grievance, and that compensation should, as the Company submits, be limited to the period in time following February 2, 1988, presumably until the position was abolished effective September 2 of the same year. That, moreover, is the principle which appears to have been followed in SHP 97, discussed above.

The Arbitrator therefore orders that the Corporation pay Carman E.C. Tucker compensation according to the provisions applicable to a carman one man point for the work performed by him at Malport between February 2, 1988 and September 2, 1988. I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this Award.