SHP - 485

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(the “Union”)

RE WAGE INCREASES FOR EMPLOYEES ON ARTICLE 7B STATUS

 

 

SOLE ARBITRATOR:                       Michel G. Picher

 

 

There appeared on behalf of the Company:

D. T. Cooke                                           – Manager, Labour Relations, Calgary

S. J. Samosinski                                    – Director, Labour Relations, Calgary

L. S. Wormsnbecker                            – Manager, Labour Relations, Calgary

And on behalf of the Union:

A. Rosner                                              – National Representative, Montreal

S. Levert                                                – Regional Vice-President, Montreal

G. Antinozzi                                          – Union Co-Chair, Labour Adjustment Committee, Montreal

 

A hearing in this matter was held at Montreal on Wednesday, May 19, 1999.

 

AWARD

The Union maintains that the Company has violated the terms of the Job Security Agreement by denying employees who elect under article 7B of the Job Security Agreement top-up of wages to 100% of the pay of the position held at the time of layoff, calculated on the basis of the current rate of the position, including wage increases subsequent to the abolishment of the employee’s position. The Joint Statements of Fact and Issue, submitted at the hearing, read as follows:

DISPUTE:

The appropriate rate of pay for employees on Article 7B status (Job Security Agreement) while performing work in accordance with the requirements of that status.

JOINT STATEMENT OF FACT:

On September 4, 1997, the Union filed a Step II grievance contesting the position taken by the Company at the Labour Adjustment Committee, to wit that employees who perform work in accordance with their requirements under Article 7B of the Job Security Agreement should have their pay topped up (if necessary) to 100 percent of the rate of pay of the position they held at the time of layoff, without regard to subsequent wage increases. The Union, in its grievance, maintains that the appropriate topup is, rather, to 100 percent of the current rate of pay to the position held at the time of layoff. The parties agreed to submit this difference of interpretation to arbitration.

JOINT STATEMENT OF ISSUE:

The Union continues to maintain that its interpretation is correct, namely that the topup to employees, while they are working, must be to the rate of pay as it is currently, that is, including wage increases subsequent to layoff. The Union requests a declaration to this effect. Given that the Company has applied its own interpretation, the Union further requests that any adversely affected employees be made whole.

The Company continues to maintain its position as set out above.

The Union’s position is based on what it submits is the clear language of the Job Security Agreement. It refers the Arbitrator to article 7A.4.1(c) which deals with employees who elect article 7A status and provides as follows:

7A.4.1 (c)              Notwithstanding the provisions of Article 7A.4.1(a), employees performing any work pursuant to Article 7A will be topped up to 100% of the rate of pay of the position they held prior to being affected or the rate of the position they are filling, whichever is the greater.

The Union’s representative then points to the provisions of article 7B.2.2(b) which deals with employees who elect article 7B status and reads as follows:

7B.2.2 (b)              Notwithstanding the provisions of Article 7B.2.2(a), employees performing any work pursuant 7B will be topped up to 100% of the rate of pay of the position they held prior to being affected or the rate of the position they are filling, whichever is the greater.

The Union’s representative further notes that article 7A.1, Note 2 confirms the principle which he argues for in the instant case. That provision, which deals with employees working outside the Company whose wages are topped up, reads as follows:

Note 2    Employees working outside of CP Rail will not have their employment security entitlement period reduced by the number of weeks so employed. They will be topped up, if necessary, to the full rate of the original position from which displaced.

Finally, the Union’s representative draws the Arbitrator’s attention to an example of a provision which he maintains reflects the ability of the parties to expressly indicate when they intend to freeze an employee’s benefits on the basis of rates in effect at the time of his or her layoff. In that regard he notes article 4.6(a)(1) of the Job Security Agreement which deals with temporary layoff, and expressly provides protection to the employee at the rate of “80 per cent of his Basic Weekly Rate at time of layoff.” The Union submits that the general language and framework of the agreement support its interpretation that there is no basis upon which to conclude that employees with the protections of article 7B are not to have wage protection based on the current rate for the position which they previously held, including annual wage increments.

The Company argues a substantially different position. It submits that article 7B.2.2 must be read in its entirety to understand the parties’ intention. In that regard it refers the Arbitrator to the following language:

7B.2.2    (a)           An Eligible Employee will be allowed a gross layoff benefit credit in accordance with the table below:

                8 – 22 complete years CCS                                 ............... – 3 years

                23 – 29 completed years CCS                             ............... – 4 years

                30 plus completed years CCS                             ............... – 5 years

Benefit Level                 – 1st year                           – 90% Basic Weekly Rate

                                        – 2nd year                         – 85% Basic Weekly Rate

                                        – Remaining Years           – 80% Basic Weekly Rate

The number of years of CCS will be calculated from the last date of entry into the Company’s service as a new employee. The benefit level will be calculated as per the rate of pay of the permanent position held on the date of the change.

                (b)           Notwithstanding the provisions of Article 7B.2.2(a), employees performing any work pursuant 7B will be topped up to 100% of the rate of pay of the position they held prior to being affected or the rate of the position they are filling, whichever is the greater.

(emphasis added)

In addition to the language of article 7B.2.2(a), the Company points to the history of these provisions. Noting that article 7B benefits are also known as enhanced SUB benefits, its representative stresses that in the history of the Job Security Agreement, prior to the instant claim by the Union, SUB has always been calculated on the rate of pay in effect at the time of the adverse effect which triggers the application of the Job Security Agreement. He stresses that the enhanced SUB provision, first negotiated in 1995 with the three other unions of non-operating employees, has continued to have the same meaning and effect. In other words, the Company submits, the parties to these agreements, including the instant agreement, did not intend to make any change in an arrangement based on the history of the payment of regular SUB, in place since 1969.

I turn to consider the merits of the parties’ competing positions. In doing so, the Arbitrator must interpret the terms of the parties’ agreement in the context of their negotiating history, and the general history of SUB payments within the industry. It is not disputed that prior to the instant grievance there has never been a claim on the part of any union that persons in receipt of regular SUB were entitled to benefits calculated on the current rate of wage of their last held position, including annual increments. As the Union’s representative conceded during argument, the possibility of a new arrangement under article 7B was never discussed between the parties at the bargaining table. In that circumstance it is clear that the matter must be determined on the basis of the objective language of the agreement.

In my view in looking at the language of article 7B.2.2(a) and (b), read together, the position of the Company is more compelling. Sub-paragraph (a) deals with the general issue of benefit levels and specifically states that such levels are to be on the basis of “the rate of pay of the permanent position held on the date of the change.” That, it is not disputed, is entirely in keeping with the history of SUB payments within the industry, and within the instant Job Security Agreement. In my view, sub-paragraph (b) then goes on to establish a higher percentage figure for the benefit level, namely 100%, for employees performing work pursuant to the option of article 7B. In my view if the parties had intended that sub-paragraph (b) was to also negate the benefit level provisions of sub-paragraph (a), which are based on the rate of pay of the position held on the date of the change, they would have done so expressly. That, in my view, is further supported by the fact that there was simply no discussion of that issue at the bargaining table. On balance, I am satisfied that the language of the Job Security Agreement more compellingly supports the position advanced by the Company.

On the foregoing basis the grievance must be dismissed.

Dated at Toronto, May 27, 1999.

(signed) MICHEL G. PICHER

ARBITRATOR