SHP 339

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

NATIONAL AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA

GRIEVANCE RE E. TUCKER

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

J. R Moore Gough General Chairman, Great Lakes Region

Tom Wood System General Chairman

 

 

There appeared on behalf of the Company:

S. A. Macdougald Manager, Labour Relations, Montreal

D.A. Watson System Labour Relations Officer, Montreal

T. Sanlon Inspection Control Officer, Car Dept., Northern Ontario District

 

A hearing in this matter was held in Montreal on March 6, 1991.

 

AWARD

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:

Dispute:

Claim on behalf of Carman E. C. Tucker of Toronto, Ontario

Joint Statement of Issue:

Prior to July 1982, the Carman position at Malport, Ontario was compensated at the regular Carman rate of pay, 40 hours per week. From July 2, 1982 to August 5, 1985, the Carman position at Malport was compensated at a "One Man Point" rate of pay. Effective August 5, 1985, Malport was bulletined as a regular 40 hour per week Carman position. Since August 1985, the successful applicants to this position have been compensated at the regular Carman rate of pay.

Effective September 26, 1986, Carman Tucker was the successful applicant to Bulletin C-38-86, Carman position at Malport, Ontario.

On February 2, 1988, the Union submitted a grievance contending that the Company was in violation of Rule 53.10 of Agreement 12.35 by failing to compensate the employee at Malport in accordance with the established rates for a "One man point".

The position was abolished effective September 2, 1988, and the service requirements as required within the Carman's classification are now performed by Carmen assigned to the MacMillan Yard Car Department road repair truck. Mr. Tucker is presently working as a Carman at Willowbrook, Ontario.

The Union contends that the Company violated Rule 53.10 of Agreement 12.35 when it failed to compensate Mr. Tucker in accordance with the established rates for a "One Man Point".

The Union requests that Mr. Tucker be compensated at the "One Man Point" rate of pay retroactive to 35 days prior to the filing of the Step 1 grievance, i.e. to December 30, 1987.

The Company denies the alleged violation and contends that the Carman position at Malport does not meet the requirements of a "One Man Point" and had been compensated at the regular Carman rate of pay for an extended period of time.

The Company has declined the Union's request for payment.

***

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

Carmen One Man Points

53.10 A one man point is an outlying point where there is employed one Carman, day, and one, night, or where there is only one Carman employed.

53.11 Carmen stationed at one man points shall be allowed 179.3 hours per four-week period made up of 160 hours at straight time and 19.3 hours at time and one -half at the hourly rate provided in Rule 32.

53.13 Employees covered by Rules 53.10 to 53.16 inclusive shall be assigned to work five days per week, their working hours shall be mutually arranged to suit conditions and less than 8 hours may be specified for certain days. The sixth day shall be considered as a standby day and employees must be available for call for work of an emergency nature or for the maintenance of customer services on such day. The seventh day, Sunday, if possible, shall be their regular assigned rest day.

53.14 Carmen working under the provisions of Rules 53.10 to 53.16 inclusive, including those assigned to the combined duties of engine watchmen and car cleaners, will be subject to call on the sixth day for emergency work or for the maintenance of customer services. Routine service, ordinary maintenance and construction work shall not be considered as emergency work.

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:

23.7 Employees at outside points where no immediate supervisor or foreman is located shall be placed on the seniority lists and retain their seniority at the seniority terminal where such immediate supervisor or foreman is located who has jurisdiction over such outside points. If not working under the jurisdiction of an immediate supervisor of foreman they shall retain seniority at the seniority terminal from which sent.

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:

7.1 Employees sent out to temporarily fill vacancies at an outlying point or shop, or sent out on a temporary transfer to an outlying point or shop will be paid continuous time from time ordered to leave home station to time of reporting at point to which sent, straight time rates to be paid for straight time hours at home station and for all other time, whether waiting or travelling. If on arrival at the outlying point there is an opportunity to go to bed for five (5) hours or more before starting work, time will not be allowed for such hours.

7.2 While at such outlying point they will be paid straight time and overtime in accordance with the bulletin hours at that point, and will be guaranteed not less than eight (8) hours for each day.

...

7.4 On the return trip to the home station, straight time for waiting or travelling will be allowed up to the time of arrival at the home station.

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:

The Company contends that the attributes of the job in question are not those set out in articles 58.11 to 58.16; that the job bulletin did not set out such features of the job; and that Aroostook is not an "outlying point". As to the first of these arguments, it appears to assume that the company has some discretion to exercise in determining whether or not to designate some point as a "one man point". In my view, however, section 58.10 of the collective agreement sets out a full and complete definition of one man point. If a point comes within that definition, then it is a one-man point, however the company, might designate it. The attributes of such a job are then set out in articles 58.11 to 58.16. The requirement or otherwise of these attributes of a carman's job does not indicate whether or not the job is one at a one man point". On the contrary, if the job is at a one man point (and that is determined by reference to article 58.10), then the various attributes set out in articles 58.11 to 58.16 apply to it.

...

As to the third argument, the collective agreement does not appear to, define or otherwise make clear what an "outlying point" is. The collective agreement, in speaking of locations where work is performed, appears to make frequent distinctions between "main shops and "running points". Mention is also made of "inspection points" and broad work", and in the temporary assignment article, article 7, reference is made to an "outlying point or shop". Article 58, it may be noted, sets out the Carman's craft special rules. The other craft special rules appear to contain no analogous rules to those set out in articles 58.10 to 58.16, except in the case of the Electricians, where payment provisions somewhat similar to those in question here are set out and which apply "At points where a special arrangement of hours is mutually agreed upon to meet the requirements of train service, and where only one electrician is employed". Finally, there appear to be at least some examples of "points" having characteristics analogous in material respects to those at Aroostook, and which are recognized to be one man points: such points would seem to be neither more nor less "outlying" than Aroostook. Without attempting any precise definition of the term, I would think that it should be read as connoting some degree of contrast with main shops (which seem to present no problem of definition), and with "running points", a term as to which I am less certain. For the purposes of the instant case, however, I am satisfied that it is appropriate to describe Aroostook as an "outlying point" within the meaning of article 58.10.

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.

DATED at Toronto this 8th day of March, 1991.

(sgd) M. G. Picher

Arbitrator