AH – 57a
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Canadian National Railway Company
(the "Company")
AND
Transportation Communications EMPLOYEES Union
(The "Union")
IN THE MATTER OF THE GRIEVANCE OF J. S. sharber
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
F.E Soucy
G. Hlady
F.M. Sheahan
F.E. Easterbrook
A hearing in this matter was held at Montreal on February 11, 1969.
AWARD
The grievor, a train dispatcher at Edmunston New Brunswick, alleges in effect that work normally performed by him was performed by another on Friday, April 12, 1963. The grievor seeks eight hours compensation at the Mr. Sharber is a train dispatcher assigned to the Napadogan subdivision. His regular hours of work are from 6:00 a.m. to 2:00 p.m. Monday to Friday, another dispatcher is assigned to the same territory from 2:00 p.m. to 10:00 p.m. Tuesday to Saturday. Mr. Sharber has Saturday and Sunday as rest days, and the other dispatcher has Sunday and Monday as rest days. A swing dispatcher relieves Mr. Sharber on Saturday and the other dispatcher on Monday. On Sundays, and at nights between 10:00 p.m. and 6:00 a.m. the Napadogan Subdivision is combined with the Monk Subdivision, under the control of train dispatchers on the Monk Subdivision.
Fridays were thus days on which the grievor would normally work as a train dispatcher on the Napadogan Subdivision. Friday, April 12, 1968, however, was Good Friday. This day was Holiday, pursuant to the collective agreement as amended, and according to those provisions the grievor was entitled to a holiday with pay on that day. Before the holiday, the company assessed its requirements for that day, and determined that in view of the lighter volume of traffic on Good Friday, it would combine the Napadogan and Monk Subdivisions on Good Friday, in the same manner as it did at nights and on Sundays. Accordingly the grievor was notified that he would not be required to work on good Friday and he received the holiday with pay, pursuant to article 5(1)(a) of the agreement, which is as follows:
5. (1) (a) An assigned employee qualified under section 2 hereof and who is not required to work on a general holiday shall be paid eight hours pay at the straight time rate of his regular assignment.
The union’s case is based on the fact that since the Napadogan Subdivision was combined with the Monk Subdivision for the day in question, there was fact work performed which would normally have been performed by the grievor. It is argue that the grievor was suspended on April 12, and that the hours of his regular assignment were changed, contrary to article 10(b) of the collective agreement. That article (so far as it is material) is as follows:
(b) The hours of regular assignments will be specified by the Chief Dispatcher, will be the same on all days of the week except on swing assignments, and will not be changed without at least forty-eight hours notice.
It is clear to me, however, that the grievor’s " regular assignment" was not changed. It remained his assignment to work from 6:00 a.m. to 2:00 p.m., Monday to Friday. As it happened, Friday, April 12, occurring in the course of his assignment, was holiday. He received that holiday with pay: there was no alteration of his regular assignment.
There are cases, however, where employees may be required to work on holidays. Such cases are provided for in article 5 of amending agreement as follows:
5.(2) An employee qualified under section 2 hereof and who is required to work on a general holiday shall, at the option of the Company,
(a) Be paid, in addition to the pay provided in subsection (1) hereof, at a rate equal to one and one-half times his regular rate of wage for the actual hours worked by him on that holiday with a minimum of two hours and forty minutes for which two hours and forty minutes service may be required but an employee called for a specific purpose shall not be required to perform routine work to make up such minimum time. When more a general holiday, the provisions of this clause (a) shall apply to the first shift only. For sleeping, dinning and parlour car service employees the time and one-half rate referred to in this clause shall apply only to the first eight hours of duty on the recognized general holiday:
Or
(b) Be paid for work performed by him on the holiday in accordance with the provisions of the applicable collective agreement with a minimum of four hours at the pro rata rate for which the equivalent hours of service may be required but employees called a specific purpose shall not be required to perform routine work to make up such minimum time and, in addition, shall be given a holiday with pay on the first calendar day on which the employee is not entitled to wages following the holiday: pay for such holiday shall be eight hours at the straight time rate of the position worked on the holiday: for sleeping, dining and parlour car service employees the first day of layover following the holiday shall be recognized as the holiday with pay under this clause (b).
On its face, this provision would appear to be of no help to the grievor, since he was not " required " to work on the holiday. It is argued, however, that since another employee performed his work, the work was "required" and the grievor was entitled to do it. I am unable to accept this argument, for two reasons. First, while some of the tasks normally performed by the grievor were performed by another employee on the day in question, these tasks (which were performed along with others the grievor would not have done) did not constitute, in holiday the whole of regular day’s work.
Second, even if a whole day’s work had involved, and some other employee had been called in to perform it exclusively for that day, there is nothing in the collective agreement which entitles the grievor to displace such an employee. Nothing entitles him to demand extra work on a holiday for which he is paid in any event. This was not the sort of situation to which article 12 (f) would apply. That article is as follows:
(f) WORK ON ASSIGNED DAYS
Where work is required by the Company to be performed on a day which is not part of any assignment, it may be performed by an available extra or unassigned employee who will otherwise not have forty (40) hours of work that week. In all other cases by the regular employee.
Whether the work done on Good Friday be regarded as part of any assignment or not the grievor was not the regular employee performing the whole of the work which was done. The employee normally assigned to the Monk Subdivision was entitled to that description, if anyone was.
For the foregoing reasons, it is my conclusion that the grievor was properly granted a holiday with pay on April 12, 1968. and that the circumstances of this case he was not entitled to demand employment on that date.
According, the grievance must be dismissed.
DATED AT TORONTO, 18th day of February, 1969.
(signed) J. F. W. Weatherill