BETWEEN:

(the "Company")

AND

(The "Brotherhood")

SOLE ARBITRATOR: Judge R. H. Reville

There appeared on behalf of the Company:

H. Abbott – Assistant Manager, Labour relations

P.A. McDiarmid – Labour Relations Assistant

W. S. Hodges – Labour Relations Assistant

T. H.Holmes – Comptroller, Purchasing and Stores Accounting Centre

And on behalf of the Union:

R. Henham

Paul Emile Jutras

A hearing in this matter was held at Toronto on 13th November 1964.

On Friday, the 13th November, 1964, at 10.00 a.m., I presided as Sole Arbitrator to consider two grievances brought by Mr. M.L. Recchi and Mr. J.G. Walker, respectively, and at the hearing, which took place in the Union Station, Toronto, there appeared for the company Mr. H.Abbott, Assistant Manager, Labour relations, Mr. P.A. Mcdiarmid, Labour Relations Assistant, Mr. W.S. Hodges, Labour Relations Assistant, and Mr. T.H.Holmes, Comptroller, Purchasing and Stores Accounting Centre, and for the union Mr. R. Henham and Mr. Paul Emile Jutras. I now propose to dispose of the grievances as follows:

This grievance involves a claim by the Brotherhood on behalf of Mr. Recchi that the company violated Article 5.2 of the collective agreement when it refused to pay punitive rates of pay to him for work performed on Saturday and Sunday, July 20th and 21st, 1963. The circumstances leading up to this grievance are as follows:

The grievor first entered the employment of the company on January 15th, 1957, as a temporary car-checker at Kamloops Junction, B.C. Subsequently, he has been employed as a yard clerk, a train clerk, a car-checker, and in various other clerical capacities at the same location. On the 36th October, 1959. The grievor was assigned to the permanent position of car-checker, working from 7 a.m. to 3 p.m., with assigned rest days of Saturday and Sunday. On the 1st July 1963, the grievor was awarded by bulletin the temporary assignment of train clerk, with hours of work from midnight to 8 a.m. and rest days on Friday and Saturday and he worked on this temporary assignment up to and including Sunday, July 14th, the day on which this temporary vacancy terminated. On Monday, July 15th, the grievor was awarded by bulletin another temporary assignment as a car-checker from 8 a.m. to 4 p.m. with rest days on Saturday and Sunday, and worked on this temporary assignment on the Monday and again on the Tuesday, July 16th. Previously, on June 17th, 1963, the company had bulletined a temporary vacancy of train clerk-yard, clerk-machine operator to be filled on Wednesday, July 17th, 1963, in order to relieve an employee who was commencing two weeks’ vacation on that date. No applications were received from employees to fill this vacancy, and in accordance with an understanding reached with the brotherhood, the junior qualified employee, the grievor, was assigned to the position, and on the 24th June, 1963, the grievor was notified that he would be assigned to the unfilled vacancy, to commence work as a train clerk-yard, clerk-machine operator on Wednesday, July 17th, 1963. The grievor worked on this last temporary assignment on Wednesday, Thursday, Friday, Saturday and Sunday, July 17th to July 21st, both dates inclusive, and was off work on his assigned rest days in that position on Monday and Tuesday, July 22nd and 23rd, 1963. The grievor submitted a claim requesting punitive rates for work performed on Saturday and Sunday, the 20th and the 21st July, 1963, being the rest days of his immediately preceding temporary assignment. The company denied this claim on the basis that the grievor commenced a new temporary assignment on Wednesday, July 17th, and that a new work week began on that date. The brotherhood protested that in denying the grievor’s claim the company had violated article 5.2 of the collective agreement between the parties.

It should be stated at the outset that the brotherhood does not question the company’s action in assigning the grievor to the unfilled position of train clerk-yard, clerk-machine operator, on Wednesday, July 17th, 1963, and from then on until Monday, the 21st July, 1963, because the brotherhood has agreed with the company that where a vacancy has been bulletined and no applications are received for the position, it is the right of management to assign a junior qualified employee to fill that vacancy, and the brotherhood agrees that the grievor was the junior qualified employee in question. However, the brotherhood took the position that it had not agreed to waive any of the rights of the employee in connection with the application of this understanding with the company. The brotherhood, therefore, took the position that the grievor was entitled to punitive rates of pay under Article 5.2 of the collective agreement for work performed on Saturday and Sunday, the 20th and 21st July, 1963, and cites Article 5.2 of the collective agreement as authority therefore. The portion of Article 5.2 which is material to this grievance reads as follows:

The brotherhood contended that the company established the grievor’s work week by its temporary assignment to the grievor of the work of a car-checker on Monday, July 15th, 1963, with rest days of Saturday and Sunday, and that consequently, by requiring him to work on those rest days by the subsequent temporary assignment to him of the work of train clerk-yard, clerk-machine operator on July 17th, 1963, it forced him to work in excess of forty hours in the work week, and consequently the provisions of Article 5.2 quoted above must apply to entitle the grievor to payment at time and one-half for all work performed on the Saturday and Sunday, the 20th an the 21st July, 1963. The brotherhood further contended that the company was precluded by the terms of the collective agreement from establishing two different work weeks during the same week.

The company contended that it could change an employee’s work week at any time and that an employee’s work week from time to time begins on the first day on which an employee is assigned by bulletin to work, and relies on the provisions of article 1.1 of the collective agreement, which reads as follows:

There is no question but that the grievor was not an extra or unassigned employee, but was a regularly assigned employee who was assigned as a train clerk-yard, clerk-machine operator, and that his work week on that assignment began on the first day on which the assignment was bulletined to work, namely, Wednesday, July 17th. 1963. Consequently, in accordance with Article 5.2., the grievor was not entitled to receive punitive rates until after he had completed forty hours of work on this new assignment. because when the grievor commenced the new assignment, he was, of course, governed by the terms and conditions of that assignment, which provided that his assigned rest days in that position were to be Monday and Tuesday, July 22nd and 23rd, 1963. It will have been noted, of course, that Article 1.1 refers to a work week, not a calendar week, and that the beginning of the work week for regularly assigned employees is determined by the first day on which the assignment is bulletined to work, not on any particular day of the week. Furthermore, it will be noted that the subsection does not delineate the termination of the work week as being any particular day of the week.

Quite apart from its claim that the company was in breach of the collective agreement by refusing to pay punitive rates for the work performed by the grievor on Saturday and Sunday, the 20th and the 21st July, 1963, the brotherhood is complaining about the company action in changing the assigned rest days of the grievor, with the result that the grievor was required to work eight consecutive days without an intervening rest day. This complaint was not mentioned in the union brief, but was raised during Mr. Henham’s submissions at the close of the hearing. Article 5.8 of the collective agreement provides as follows:

Had the grievor not been assigned to the temporary vacancy of train clerk-yard, clerk-machine operator on July 17th, 1963, and had the company then required him to work on his assigned rest days, Saturday and Sunday, then, of course, this article would have applied unless one of the exceptions of subsections (a) , (b) and (c) applied. However, that was not the case here because the temporary assignment of the grievor to the temporary vacancy of train clerk-yard, clerk-machine operator on July 17th, 1963. Changed the grievor’s assigned rest days from Saturday and Sunday to Monday and Tuesday, July 22nd and July 23rd, 1963.

Finally, in Article 6, entitled ‘Rest Days’, 6.1 thereof provides:

Once again, this article would have applied to the grievor had he not been given the temporary assignment of train clerk-yard, clerk-machine operator on July 17th, 1963, unless, of course, the company could bring itself within one of the exceptions in subsection (a), (b) and (c) of Article 6.1. However , due to his reassignment as train clerk-yard, clerk-machine operator on July 17th, 1963, he was assigned to rest days in each seven day period of the temporary assignment, namely, Monday and Tuesday, July 22nd and 23rd, and he was granted and took advantage of those rest periods.

The brotherhood complained that if this grievance were allowed, there would be nothing to prevent the company from giving employees temporary assignments in such a matter that the employees concerned would never be given any rest days at all and, indeed, under the collective agreement. This is a possibility, however remote. A careful perusal of this collective agreement discloses nothing to prevent the company from adopting this course of action if it wished to do so, and consequently the remedy of the brotherhood in this connection lies in negotiation and not in arbitration. In fairness to the company, there was no evidence that it had ever so adjusted temporary assignments as to deprive employees of their rest days for extended periods of time and, indeed, the evidence disclosed that some employees exercised their seniority so as to fill temporary vacancies scheduled to commence on the rest day of their previous assignment. By this manner they are able to work almost continuously if they so desire. These employees are referred to in the vernacular as ‘7-day jumpers.’

On all the evidence and on his interpretation of the collective agreement, the Arbitrator must find as follows:

For all these reasons, this grievance must be dismissed.

Sole Arbitrator