BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Judge J.C. Anderson

There appeared on behalf of the Company:

W. Hodges – Labour Relations Assistant

D. McGrath – Labour Relations Assistant

J. G. Silcox – Training Assistant

S. Goldenberg – Senior Agreement Analyst

And on behalf of the Union:

J. A. Pelletier – Secretary, Joint Protective Board

G. S. Jones – General Chairman, Prairie Region

J. D. Hunter – Active General Chairman, Great Lakes Region

F. C. Johnston – Secretary, General Adjustment Committee, Great Lakes

A hearing in this matter was held at Montreal on Friday, August 27th, 1965.

The meeting in connection with the disputes between the above mentioned parties was convened at the Canadian National Railways Labour Board Room in Montreal on Friday, August 27th, 1965, and the full submissions of the parties with respect to two grievances (the first one that of Mrs. K.T. Savage, Unit Cost Clerk, and the second one that of Mr. B.V. Rootseart, Relief Train Messenger), were heard.

With regard to the grievance of Mr. B.V. Rootseart, the Brotherhood alleges that the Train Relief Messenger (B.V. Rootsaert ), was incorrectly compensated for his vacation period in the year 1964.

Mr. B.V. Rootsaert was awarded a bulletined position of Relief Train Service Employee at Winnipeg, Manitoba, on July 4th, 1963. When not working in Relief Train Service, the grievor was assigned to a position as Porter in the Winnipeg Express Terminal.

While working in the relief position, his work covered relief for the position on Train Messenger, Train Messenger Helper, and Train Value Guard.

His period of vacation was October 20th to November 10th inclusive, in 1964.

He worked as Porter on October 20th, 21st, 22nd, 23rd, 26th, 27th, 28th, 29th, and 30th, and November 3rd and 4th, and vacation pay was paid at the rate of Porter for three days, and they are not in dispute.

On October 31st, and November 1st, and 2nd, Mr. P.H. Guilbert performed worked as a Value Guard which would have been performed by the grievor if he had not been on vacation. Mr. R. Huuk worked as a Train Messenger on November 7th and 9th. This work would have been performed by the grievor if he ha not been on vacation, so that the dispute revolves around the vacation payments paid to the grievor on October 31st, November 1st, 2nd, 7th and 9th, during which time, since the grievor was on vacation, the work was performed by Mr. Guilbert and Mr. Huuk.

On October 31st, Mr. Guilbert was called for service at Winnipeg as a Value Guard and reported for duty at 8:30 p.m., for train no. 4, which was due to leave at 8:45 p.m. He was relieved of duty at 7:10 a.m. on November 1st, at the time of arrival in Armstrong. his payment for this run was 10 hours and 40 minutes, composed of 15 minutes preparatory time and 10 hours and 25 minutes running time.

Mr. Rootsaert claimed 10 hours and 40 minutes but was only allowed running time of 10 hours and 25 minutes. The Company treated the 15 minutes preparatory time as overtime. If the bulletin for this run provided for a period of time required to report for duty, previous to the schedule departure time of the train, under Section 27.3, then I think Mr. Rootsaert was entitled to be paid for this 15 minutes period of time as a bulletined requirement and therefore should not be considered overtime.

When Mr. Guilbert arrived at Armstrong, he was instructed to proceed to Oba, on an emergency run, due to a derailment on the line. His duty commenced with the time of departure, 7:10 CST His trip was delayed 1 hour and 30 minutes at Nakina an 3 hours and 30 minutes at Hearst, due to operating difficulties and he arrived at Oba at 9;00 p.m. instead of the normal arriving time of 3:50 p.m. He was paid for the total time elapsed of 12 hors and 50 minutes, while the grievor was paid for normal running time, 7 hours and 40 minutes, on the ground that detention time was an overtime payment to which he was not entitled.

Mr. Guilbert reported for duty as a Value Guard on train No. 3 at Oba at 9:00 p.m. on November 1st and departed at 9:20 p.m. The train was again delayed and arrived at Armstrong at 3:00 p.m. on November 2nd. He was paid 20 minutes preparatory time at Oba and for elapsed running time of 17 hours and 40 minutes, a total of 18 hours. Mr. Rootsaert claimed the 18 hours but was paid for only normal running time, 7 hours and 20 minutes.

On arrival back at Armstrong, Mr. Guilbert resumed his normal duties at 3:00 p.m. EST for service on Train No. 3 which left Armstrong for Winnipeg at 2:15 p.m. He arrived in Winnipeg at 10:30 p.m. on November 2nd and was relieved of duty at 10:46 p.m. He was allowed 15 minutes preparatory time, 8 hours 15 minutes running time and 15 minutes terminal time, a total of 8 hours and 45 minutes. Mr. Rootsaert claimed for this 8 hours and 15 minutes but was allowed 9 hours and 20 minutes because this was normal running time.

On November 7th, Mr. Huuk was called as a Relief Train Messenger for Train No. 4, Winnipeg to Armstrong, distance 391 miles. He reported for duty at 7:15 p.m. The train was due to leave at 8:45 p.m. It did not leave until 9:20 p.m. and after a 25 minute delay at Sioux Lookout, arrived at Armstrong at 7:10 a.m. He was relieved from duty at 7:35 a.m.

The Train Messenger Service was paid, at that time, $9.40 per hundred mile run, time on duty outside of actual running time, e.g. preparatory time, terminal time, delays, are paid on the basis that 1 hour equals 20 miles.

Mr. Huuk was allowed 391 miles for the run, 30 miles (11/2 hours) for preparatory detention , 8 miles (25 minutes) for terminal detention and 2 miles for delay enroute for a total of 431 miles, for which he was allowed, but Mr. Rootsaert who claimed the mileage was actually only allowed 391 miles.

Under Article 27.14 (f) if a Train Service employee whose regularly assigned duties are those of a Train Messenger, paid on a mileage basis, is paid for vacation on the basis of only the actual road mileage made on vacationing employee’s route be relieving employee, bur Mr. Rootseart was a Relief Train Messenger and as such does not have a regularly assigned duty as Train Messenger, but is assigned such trips when his turn comes about.

Mr. Huuk made a return from Armstrong to Winnipeg on November 9th and was paid 391 miles for the run. and 5 miles preparatory time, 15 miles terminal detention time and 17 miles for initial delay, for a total of 428 miles. Mr. Rootsaert was paid only actual road mileage of 391 miles.

The Brotherhood’s contention is that Mr. Rootsaert should have been paid the same payment as those employees who performed the work which he would have performed had he not been on vacation.

On the other hand, the Companies denies the claim on the basis that payments paid in addition to actual running time was a form of overtime an that Mr. Rootsaert was not entitled to anything more than payment for running them, and re-enforce it’s argument by interpreting Article 9.11 as meaning that this employee, while on vacation, should only be paid running time, under the wording of the Section.

The Section reads:

The Company’s view is that this Section should be interpreted to mean that he should be paid a vacation rate, for instance at the monthly rate of a Train Value Guard; that is $357.04 per month for 174 hours. or $2.052 per hour, and only for the normal running time of the particular assignments which came up while the grievor was on vacation.

The Company also point out that Article 41 defines a day as being 8 consecutive hours of service exclusive of meal period, and that the grievor was thus entitled on each day of his vacation to payment for the 8 hours at the rate of the position as set out in Section 9.11 of the contract, that he would have been filling had he not been on vacation.

Unless it is otherwise limited by the specific terms of the Collective Bargaining Agreement, payment for vacation is intended to provide the employee, while on vacation, with the same amount of money compensation that he would have been entitled to if he had performed his usual work during the vacation period.

The bulletined position which the grievor held does not provide for regularly assigned work, but provides for relief work on a first in and first out basis.

I have come to the conclusion that if the grievor had not been on vacation he would have performed work performed by Mr. Huuk and Mr. Guilbert, and that the rate of the position means the total compensation which would have been paid to the employee on vacation if he had covered the assignment, which he would have been entitled to if not on vacation, or in other words, that he should have received the same pay as Mr. Huuk received and Mr. Guilbert received when they relieved him of assignments he otherwise would have had, had he not been on vacation.

The rate of the position means a measure for reckoning his pay. This depends, in part, on the type of work performed, the time on duty, the various allowances to which he is entitled by reason of being on duty and having these time allowances converted into hours, at his rate per hour, according to the terms of the contract, in this case, $2.052 per hour.

I agree with Professor Laskin (now the Honourable Mr. Justice Laskin) when he said, in the case of Canadian National Railways and the Canadian Brotherhood of Railway, Transport and General Workers (Vacation Pay for Relief Train Messenger R.H. Jacobs), that it is not the work that might have been performed, but rather the work that would have been performed which determines the vacation pay to which he is entitled, and although this is not ascertainable in advance of the vacation period, it is ascertainable definitely, after the vacation period, and the payment of the exact amount for the work he would have had, had he not been on vacation is not difficult to ascertain.

It is clear that Mr. Rottsaert was allowed 16 days vacation instead of 15 days vacation, and therefore he has been overcompensated for one day. In arriving at the extra money figure that Mr. Rootsaert should be paid, by virtue of this decision, the Company of course, is entitled to deduct any over-payment arising out of the fact they allowed him for 16 days vacation instead of 15 days vacation.

In the net result, I agree with the interpretation placed on the contract by the Union representatives, and I disagree with the interpretation placed on the contract by the Company representatives, for the reasons above set out.

The Company will, in the result, pay vacation pay as claimed, but it will be less the pay for any assignment on November 9th which was allowed to him in error. In all other respects the grievance is upheld.

DATED, at Belleville, Ontario, this 1st day of October, A.D., 1965.

Single Umpire.