SHP – 400
IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, SYSTEM COUNCIL NO. 34
IN THE MATTER OF THE GRIEVANCES OF J. MASSICOTRE and A. TREMBLAY
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Michael Restoule – Manager of Labour Relations
Ron Leach – Chief Engineer
George Payne – Director, Corporate Affairs
Terry McCarthy – Labour Relations Assistant
Tom Burton – Chief Mechanical Officer
And on behalf of the Union:
John E. Platt – International Representative
Tom Diggles – General Chairperson
W. G. McMurray – Local Representative
A hearing in this matter was held in North Bay on May 26, 1994.
This arbitration concerns a grievance filed on behalf of two electrical apprentices, alleging that they have been improperly red circled in respect of their wages. The dispute and statement of issue, filed at the hearing is as follows:
Electrical Apprentices, J. Masicotte and A. Tremblay, claim that they should have received a three percent increase in salary on January 1st 1993, under the terms of the Collective Agreement negotiated in 1992.
STATEMENT OF ISSUE:
The Union contends that, in accordance with the provisions of Article 24.11 and 24.12 of the Collective Agreement, Electrical Apprentice’s are entitled to the annual improvement factor that is accorded all other plant employees.
The Company disagrees with the Union’s contentions.
The following articles are pertinent to the resolution of this grievance:
24.11 Apprentices in each of the trades covered by these standards shall be paid a progressively increasing schedule of wages as follows:
1st 1,000 hours - not less than 70% of the journeymen’s/women’s wage rate.
2nd 1,000 hours - not less than 73 % of the journeymen’s/women’s wage rate.
3rd 1,000 hours - not less than 77% of the journeymen’s/women’s wage rate.
4th 1,000 hours - not less than 80% of the journeymen’s/women’s wage rate.
5th 1,000 hours - not less than 83% of the journeymen’s/women’s wage rate.
6th 1,000 hours - not less than 86% of the journeymen’s/women’s wage rate.
7th 1,000 hours - not less than 90% of the journeymen’s/women’s wage rate.
8th 1,000 hours - not less than 93% of the journeymen’s/women’s wage rate.
The apprentice shall also receive the annual improvement factor and all cost of living increases that are accorded all other plant employees, where such contract provisions exist. Apprentices who are given credit for previous experience shall be paid, upon receiving such credit, the wage rate for the period to which such credit advances them. This shall not be made retroactive. (emphasis added)
When an apprentice has successfully completed 8,000 hours of training and after recommendation for his/her journeymen’s/women’s certificate by the Committee, he/she is to receive not less than the minimum rate to skilled journeymen/women in the trade in which he/she has served his/her apprenticeship.
24.12 Should members covered by the provisions of this agreement be selected as an apprentice under this rule, he/she may be credited hours and shall have his/her wages maintained until the rate is increased by accredited hours under Rule 24.11.
It is common ground that Rule 24.12 was added to the collective agreement at the last round of negotiations, and first came into force effective January 1, 1992. The article was prompted by concern of the Union that employees who held positions which were higher rated than the positions of apprentices in the trades were discouraged from moving to trades positions because of the loss of income which would be incurred. The Company agreed, in principle, that it was not fair to expect an employee to leave an established 3 position and receive a reduction in pay while furthering their skills for the ultimate advantage of the Company.
The Company submits that the intention of Rule 24.12 is to "red circle" the trades apprentices at the rate of pay which they received in their former position. In its submission the intention was to protect employees from having their wages reduced, by freezing them until the basic rate of the job into which they are moving equals or surpasses the frozen rate.
The Union stresses the first sentence of the second paragraph of Rule 24.11 which provides that apprentices "… shall also receive the annual improvement factor …" Its representative submits that the language of that provision is clear, and reflects the understanding of the parties that the wages paid to apprentices are to be increased in accordance with the generally established wage increases, as well as cost of living increases, in accordance with contract provisions.
A number of witnesses, including representatives of other trade unions, testified with respect to the discussion which occurred during the course of negotiations regarding the amendment of Rule 24 of the collective agreement. While all of the witnesses confirm that the intention of the parties in respect of Rule 24.12 was to protect employees against a reduction in wages when leaving their former positions, the witnesses were unanimous in 4 their recollection that there was no discussion of the meaning of the reference in Rule 24.11 to apprentices also receiving the annual improvement factor and cost of living increases.
This case clearly cannot be resolved on an analysis of the understanding or intention of either party. There appears to be little doubt that the parties had a differing understanding of the operation of the provisions of Rule 24, even as they agreed to the language which is now before the arbitrator. In the result, it is the intention of the document, as reflected in its language and context, which must govern. When the whole of the collective agreement is examined, there is reason to doubt the interpretation advanced by the Company. It is clear that the parties are familiar with the concept of red circling, as they have made specific reference to it in other parts of the collective agreement. For example, Rule 24.21 reads as follows:
24.21 It is understood that all current employees classified as trainees will be red circled. Their duties will continue as per the April 1, 1989 Collective Agreement No. 12. No further employees in the above classification will be hired effective on signing of this Collective Agreement.
All current trainees may apply to enter the apprenticeship program when openings occur.
It is apparent that the parties did not utilize the term "red circling" for the purposes of Rule 24.12. Considering that the language of the Rule was proposed by the Union, it is not unreasonable to conclude that it had a minimal purpose, being to ensure that employees not receive less than their previous wage rate when moving into an apprenticeship position. Logically, however, that purpose need not exclude the possibility of their receiving more, by 5 remaining entitled to annual increases as well as cost of living increases, separately protected under the terms of Rule 24.11 of the collective agreement.
In my view, while the position of the Company is understandable, given its own intention, I cannot, on the balance of probabilities, come to the conclusion that the language adopted by the parties can be said to reflect an agreement for the full red circling of trades apprentices, as contended by the employer. As noted above, when the parties have such an intention they are capable of adopting express language to convey it. Moreover, the interpretation advanced by the Company would contradict or remove any meaning from the language of Rule 24.11, which purports to provide to all apprentices entitlement to the annual improvement factor. It is a well established principle of interpretation that wherever possible, a collective agreement should be interpreted so that its terms are complementary, and not contradictory.
For the foregoing reasons, the grievance is allowed. The arbitrator finds and declares that the Company has violated the provisions of Rule 24.11 in denying the annual improvement factor to employees Massicotte and Tremblay. The arbitrator therefore directs that the Company compensate the grievors for an increase of 3% effective January 1, 1993. I retain jurisdiction in the event of any dispute between the parties having regard to the quantum of compensation or any other aspect of the interpretation or implementation of this award.
DATED at Toronto this 8th day of June, 1994.
(signed) MICHEL G. PICHER