BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Professor Bora Laskin, Q.C.

A hearing in this matter was held in July 1964.

The grievor’s vacation period for 1962 was from August 27 to September 10, and he was paid for it at the rate of the holder of a regularly assigned position as general clerk. He contended that he should have been paid for trips that he would have made during that time as relief train messenger, relying on article 9.11 of collective agreement 5.1 between the parties which came into effect on June l, 1962. That article reads as follows:

In substance, the claim of the grievor and of the Brotherhood on his behalf is that his proper classification at the material time was relief train messenger and that his vacation pay should have been calculated accordingly.

Vacation entitlement in terms of number of days earned is governed as to monthly-rated, hourly-rated or daily-rated employees by article 9, and as to mileage-rated employees by article 27.14 Article 27.l4(g) makes certain provisions of article 9 applicable to the vacation arrangements for employees paid on a mileage basis, and among these is article 9.11. The relevance of these references for the present case resides in the fact that a general clerk is monthly rated While a relief train messenger’s paid on a mileage basis. Moreover, a relief train messenger enjoys a better rate of pay than does a general clerk. An employee entitled to vacation pay gets it in arrears in the same way as he receives his regular pay and when it is paid following his enjoyment of his vacation period he receives it with such increments, if any, as would have inured to him during that period if he had remained at work. It is in this aspect that reliance is placed by the Brotherhood on article 9.11. The grievor came off an assignment as relief train messenger on August 24, 1962, and, being first out on the board for subsequent relief assignments, he would (it is alleged) have taken a relief call on August 27 if he had not then gone on his vacation. This relief call would have involved mileage going on August 27 and returning on August 28. It was also alleged in the original grievance, as filed on December 13, 1962, that there was another relief turn on September 3 and 4 to which the grievor would have been entitled if he had not been on vacation but there was a suggestion that the grievor was on Brotherhood business on those days. If this was so, the Brotherhood conceded that it would be improper to add this claim to the one first-mentioned.

I need not concern myself here with what relief turns the grievor would in fact have been involved. This can be left, if necessary, to be worked out between the parties. The main consideration is the issue of principle.

Relief train messenger is a regular assignment within the collective agreement and provision exists for bulletining it as such, but it is also clear that a relief train messenger must hold another job or be entitled to claim other work from the Company if it is going to be able to obtain men for relief train messenger work. The collective agreement recognizes this in article 27.10(b)(f), and it is important to reproduce parts of these provisions in order to highlight the facts of the grievor’s particular situation when he went on vacation. Article 27.10(b) prescribes bulletining of positions of relief train messenger and designation therein of the terminal where the position will be exercised, and also "the classification and shift to which assigned at the station or home terminal when not relieving a train service position as provided for in article 27.10(f)." This latter clause states that "when the available relief train messenger work will provide only intermittent employment for assigned relief train messengers the latter may between turns or allotments of relief train messenger works, displace a junior employee for whose position he is qualified in the classifications of porter or warehouseman grade 1 or 2 on the shift to which assigned at the station or home terminal where the relief train messenger positions are established."

The grievor was working out of the Sudbury-Capreol area, and it is common ground that there are no such classifications as porter or warehousemen there. Accordingly, the parties agreed that for the purpose of applying article 27.10(f), the position of general clerk could be claimed by a relief train messenger when not working as such, provided his seniority permitted. The parties differed, however, on the grievor’s classification at the time his vacation period arrived. The Company as already pointed out, considered him to be regularly employed as a general clerk while the Brotherhood regarded him as regularly assigned as a relief train messenger. The record shows that the grievor did successfully for the position of general clerk at Sudbury which was bulletined on March 20, 1962 and awarded to him on March 28, 1962. Later, in bulletin dated April 19, 1962 the Company solicited applications for "temporary positions" as relief train messengers at specified locations including Capreol. The grievor was one of the two successful applicants for Capreol and was so announced on April 27, 1962. When these bulletins were issued and the postings announced, the parties were still operating under agreement 5.10 applicable to express employees, but this agreement was consolidated as of June 1, 1962 with agreement 5.1. Although the consolidated agreement governs in this case, there is no difference in the wording of what is now Article 9.11 as it appears in the consolidated agreement and as it stood in agreement 5.10.

The governing collective agreement recognizes both regular and temporary assignments and provides (as in article 12.1) for the bulletining of both. Article 12.3 provides that in the case of a temporary assignment known to be of more than 60 calendar days’ duration the bulletin shall state the approximate duration of the position. (By article 12.6, a temporary position when known to be for 60 calendar days duration or less will not be bulletined but suitable advice notice will be posted). In the present case, although the relief train messenger position was bulletined as temporary, no indication was given as to its approximate duration. I do not think that this omission necessarily destroys the "temporary" character of the assignment. Since it was bulletined, it must be taken to have been of more than 60 calendar days’ duration and, indeed, the grievor has held the position over the past two years. Moreover, the parties are agreed that he (or anyone similarly situated) would normally remain on it until he bid off it. The peculiarity of the problem before me is that the collective agreement provides expressly for a regularly assigned relief train messenger to displace juniors in certain enumerated classifications and thus hold two positions, but it does not expressly provide the reverse, that is, that an employee in other positions may at the same time displace a regularly assigned relief train messenger. Yet it does envisage that a regularly assigned employee might hold a temporary assignment as well in another classification, but article 12.13 is specific that "a regularly assigned employee who is assigned to a temporary vacancy of any duration or to any position of sixty (60) calendar days’ duration or less shall upon completion of such temporary assignment ... return to his regularly assigned position."

The crucial question is the effect which these provisions have on vacation pay. The Company argued in substance that relief train messenger work is necessarily a temporary position and continues as such until the employee involved bids off. In any event, it pointed out that its practice has always been to pay an employee for vacation at the rate of the position held by him when not relieving as train messenger. I do not think that the practice is controlling when there has been no general acquiescence in it by the Brotherhood, and its only relevance is in the assistance it would give in construing ambiguous provisions of the collective agreement. Assuming that the Company is correct in its contention that relief train messenger work is always a temporary position, and, in any event, accepting (as the record compels) that the grievor here bid in the relief job as a temporary assignment, how does this affect vacation pay? Article 9.11 does not distinguish positions as regular or temporary, and since pay accumulates in the ordinary way during vacation period there is no reason to deny an employee the advantages that would ordinarily enure to him if he had not gone on vacation. It is not the work that he might have had but rather what he would have had. This is capable of ascertainment, and if in fact the grievor would have had the assignment of August 27 and 28 he is entitled to the consequent vacation benefit.

There is one reservation to be made, and this arises on the Company’s contention in respect of article 9.21. It provides for mutual arrangements to cover the work of employees on vacation by having others carry on for them notwithstanding the provisions of articles 12.1 and 12.6 respecting bulletining and filling of positions by seniority. There is no evidence that the grievor was asked to cover a train messenger on August 27 and refused to do so. What is alleged without contradiction is that he filed application for 1962 vacation prior to February 1, 1962 and received the dates August 27 to September 10.

In the circumstances, and under the terms of the collective agreement the grievance succeeds to the extent that the grievor would clearly have been on relief train assignments during his vacation period. There will be a direction accordingly.

Dated at Toronto this 17th day of August, 1964.