IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-TCA CANADA)
RE: HOURLY RATE OF ENGINE WATCHMEN – CAR CLEANERS
ARBITRATOR: MICHEL G. PICHER
Appearing for the Company:
Gilles Pepin Labour Relations Officer
Mario Troli Mechanical Manager, Commuter Services
Gilles St. Pierre Human Resources Co-ordinator
Appearing for the Union:
Abe Rosner National Representative
Sylvain Levert Vice-President, Local 101
Gilles Antinozzi President, Local Car-Side
A hearing in this matter was held in Montreal on July 12, 2002.
A W A R D
This grievance concerns the proper rate of salary to be paid to Engine Watchmen. The Union maintains that the Company unilaterally changed the rate of pay for Engine Watchmen following its purported discovery of an “error” in their pay rate in November of 1999. The Company denies that there has been any error in the decision made to adjust the wages of Engine Watchmen, who they refer to as Coach Cleaner/Engine Watchmen. It is common ground that there are five employees in the affected classification, located at Dorion, Delson and Ste-Thérèse, in the region of Montreal.
The material before the Arbitrator establishes that the position of Engine Watchmen has existed for many decades, and yet is not specifically listed in the classifications found in the collective agreement. It is also not disputed that for half a century or more Engine Watchmen have been paid on the basis of a weekly salary. In summary, the Engine Watchmen worked hours similar to those of other employees with weekly guarantees, with allowance for hours worked above the 40 hour per week limit at straight times rates, with statutory holidays and rest days paid at normal overtime rates. It appears that at one time the classification was referred to as Engine Watchmen/Car Cleaners. The employees in the classification have been assigned to work in the maintenance of commuter trains servicing Montreal.
The position of the Company is that the weekly rate of pay for the category it describes as Engine Watchmen/Coach Cleaner has historically been based on the Coach Cleaner hourly rate, in accordance with Rule 32 of the former Collective Agreement No. 16, as well as Agreement 51 and the principles of the “One Man Point” governed by Rule 58.14A of those agreements, now Rule 52.15A of the current collective agreement. The Company submits that being subject to the “Carmen One Man Point” basis of pay, the persons in the classification of Engine Watchmen/Coach Cleaners are properly remunerated at 160 straight time hours per pay period, augmented by 19.3 guaranteed overtime hours in a four week period.
The Company submits that the implementation of a new payroll system in 1999 caused a review of the rates of pay being received in the various classifications and uncovered what the Company believes was an error in the payment of the five persons employed in the classification in the Montreal area. The Company asserts that an error occurred in 1991, when the weekly rate of pay for an Engine Watchman/Coach Cleaner was converted to an hourly rate. It maintains that at that point the guaranteed overtime premium was blended by error into the basic hourly rate of pay. The Union maintains that there was no error, and that the calculation applied to the position in 1991 was correct and in keeping with the long standing method of paying the Engine Watchmen/Car Cleaners over many decades. The Union alleges that the Company has confused the classification of “Coach Cleaner” with the classification which is here an issue, which its representative maintains was always paid on a separate basis. The Union representative notes that the Company’s misinterpretation in fact resulted in the erroneous introduction of the classification Engine Watchman/Coach Cleaner into the most recently printed version of the collective agreement, a change which was apparently not communicated to the Union or detected by it.
Upon a review of the material the Arbitrator is persuaded that the Union’s position is correct. It does not appear disputed that the Company’s perception of the issue is coloured by the wording of Article 52.14A of the collective agreement which reads as follows:
52.14A Carmen working under the provisions of Rules 52.10 to 52.16 inclusive, including those assigned to 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.”
On the plain language of the provision, I must agree with the Union that it refers to Carmen who are assigned to work, as would occur at a one man point, to perform duties of Engine Watchmen and Car Cleaners. Secondly, even if the Article were to have the meaning which the Company asserts, it does not speak to the normal means of compensating Engine Watchmen/Car Cleaners. It also appears to recognize the function of “Car Cleaners” as distinct from “Coach Cleaners”, consistent with the Union’s position. The Arbitrator deems it significant that historically Coach Cleaners, whose rates of pay have appeared listed in the collective agreement, have been maintained on a separate seniority list. It does not appear disputed that Coach Cleaners have never had duties in relation to the protection of locomotives.
Most significantly, the evidence tendered by the Union with the respect to the manner in which Engine Watchmen have been paid reveals figures which are consistent with the Union’s interpretation, and contrary to the Company’s. Pay records reveal, for example, that in 1984 Engine Watchmen were paid the equivalent of a straight time hourly rate of $12.44 an hour. That is clearly distinguishable from the hourly rate of Coach Cleaners in 1984 which was $10.31. The Union’s figures confirm that what the Company viewed as an error first committed in 1991 was in fact a payroll practice of long standing, confirmed through documentary evidence of the amounts actually paid to Engine Watchmen well prior to 1991.
In summary, the evidence before the Arbitrator, which is extrinsic evidence in the nature of pay records from the 1980’s, confirms beyond any doubt that the manner in which Engine Watchmen were paid is precisely the manner in which the adjustment was initially made in 1991. To the extent that the collective agreement has never previously made reference to Engine Watchmen/Car Cleaners and their rates of pay, it is obviously necessary to have recourse to the evidence of past practice advanced in support of the Union’s argument. With respect, the Company’s position, based in part on the language of Rule 52.14A, and what appears to be come confusion about the term “Coach Cleaners”, would suggest that the real error by the Company was its mistaken conclusion that an error occurred in 1991. As noted above, the Arbitrator is satisfied that the method of payment utilized in 1991, when there was a conversion to an hourly rate for salary based Engine Watchmen, was correct and consistent with the standing practice of many decades.
For the foregoing reasons the grievance is allowed. The Arbitrator directs that the Company reinstate the method of remuneration for the Engine Watchmen/Car Cleaners to the system in place prior to November of 1999, and that the employees be compensated for any wages or benefits lost as a result of the adjustment applied to their rate of pay. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto this 29th day of July 2002.
“Michel G. Picher”____________
Michel G. Picher