AD HOC 76

AWARD

The facts giving rise to this grievance are not in dispute. The Union's claim is that the Company has violated article 9, clause 4 of the collective agreement by refusing to pay the grievor and time an done-half for overtime for time worked on his rest days, i.e., Sundays from 11:30 p.m. to 12:00 midnight.

The grievor has worked for the Company for four and one-half years. His work week is from Monday to Friday and his days of rest are Saturday and Sunday. Normally, the grievor works from 12:30 a.m. to 7:30 a.m. However, for some time, the grievor has been requested to commence his work one hour earlier at the beginning of his schedule on Sunday night. In other words, instead of commencing his work at 12:30 a.m. Monday morning, he began his work week on Sunday night at 11:30 p.m.

The relative provision of the collective agreement is article 9 which is titled "Overtime and Calls". That article reads, in part, as follows:

Clause 1

Overtime accruing within eight (8) hours service in the basic work week shall be paid at the pro rata rate. Overtime after eight (8) hours service shall be paid for at one and one-half times the pro rata rate.

...

Clause 3

Time worked by an employee, not continuous with, before or after the regularly assigned hours, shall be paid for on the basis of a minimum of two (2) hours at one and one-half times the pro rata rate for two (2) hours work or less, and time worked in excess of two (2) hours will be computed on the basis of one and one-half times the pro rata rate.

Clause 4

Employees, if required to work on regularly assigned rest days (except when these are being accumulated as provided for in article 7), shall be paid at the rate of time and one-half for all time worked with a minimum of two hours and forty minutes for which two hours and forty minutes service may be required.

Clause 5

In computing hourly pro rata overtime rates, the weekly wage rates will be divided by 40, 37-1/2 and 35 hours for the 8, 7-1/2 and 7 hour tours respectively. The punitive overtime rate will be one and one-half times the pro rata rate.

Clause 6

There shall be no overtime on overtime; neither shall overtime hours paid for (other than hours paid at pro rata rate within eight (8) hours service) or hours not in excess of eight (8) paid for at overtime rates on holidays or for changing shifts, be utilized in computing the forty (40) hours per week, nor shall time paid for in the nature of arbitraries or special allowances such as attending court, deadheading, travel time, etc., be utilized for this purpose, except when such payments apply during assigned working hours in lieu of pay for such hours, or where such time is now included under existing rules in computations leading to overtime.

Article 8, clause 1 of the collective agreement establishes hours of work. For late night duty, duty to which the grievor is assigned, the hours of work are 7 hours. Quite clearly, the grievor is working 8 hours on the first shift of his duty tour. Mr. Churchill-Smith argued that under article 9.01 the grievor worked overtime accruing within the eight hour service in the basic work week and accordingly the grievor was properly paid at the pro rata rate. On the other hand, Mr. Sack, on behalf of the Union argued that the grievor was required to work on his regularly assigned rest day and therefore did not work in the basic work week. Rather, in Mr. Sack's view, the operative clause was clause 4 of article 9 and the grievor was therefore entitled to be paid at the rate of time and one-half for the half hour worked on the Sunday. Both counsel in their argument disputed the applicability of the clause relied on by opposing counsel. Mr. Churchill-Smith argued that article 9.04 did not apply to the situation and that article clearly was a "call in" article. On the other hand, Mr. Sack argued that article 9.01 had no application because the overtime did not accrue in the basic work week. Clearly, the half hours of overtime commencing from 12:00 a.m. Monday morning did accrue in the basic work week but in Mr. Sack's opinion, the half hour of overtime commencing at 11:30 on the Sunday did not accrue in the basic work week.

In the Board's opinion, article 9.01 cannot be applicable to the half hour worked on the Sunday. It is quite clear that the basic work week for the grievor does not included Saturdays and Sundays. For this reason, the article is inapplicable. This, then disposes of the argument presented by Mr. Churchill-Smith. The Board now wishes to turn to the argument presented by Mr. Sack concerning the applicability of article 9.04

Prior to is amendment, article 9.04 simply stated that employees required to work on regularly assigned rest days were to be paid time and one-half. However, on May 21, 1971, that article was amended so that employees who are required to work on their regularly assigned rest days are not only guaranteed payment at time and one-half, but are also guaranteed a minimum payment for two hours and forty minutes, of which two hours and forty minutes of service may be required. This amendment, in the Board's opinion, weakens Mr. Sack's argument insofar as the applicability of article 9.04 is concerned. This latter clause does raise the inference that the article is designed to meet a call in situation. Clearly the amendment is to guarantee to an employee whose regular rest days are interrupted a minimum amount of remuneration for such interruption. In the instant case, the grievor's rest days were not seriously interrupted. Rather, an extra hour was tacked onto the beginning of his first shift in this regular work week. Unfortunately, one-half of that hour falls on his regularly scheduled rest day.

In the Board's opinion, it would be a strange result if the grievor was, in fact, to receive two hours and forty minutes pay at time and one-half for the one-half hour worked on his rest day when his regular shift was to commence immediately at the end of that half hour or, the second half hour occurring in his basic work week. However, in the instant case, the Union is not claiming the minimum payment for two hors and forty minutes but simply overtime paid for the half hours in question. Accordingly, the Board does not have to concern itself with the result that might obtain given the full application of article 9.04.

In the Board's opinion, article 9.04 is applicable. The grievor does fall within the wording of the clause. He was required to work on his regularly assigned rest days for one-half hour on Sunday evening. Accordingly, in the Board's opinion, the grievor should be paid time and one-half pursuant to article 9.4 for the half hour in question. The grievance is therefore allowed.

DATED AT LONDON, this 23rd day of November 1973

(SIGNED) W. B. RAYNER (SIGNED) C. W. PETHICK

CHAIRMAN UNION NOMINEE

(DISSENT) S. E. DINSDALE

COMPANY NOMINEE

DISSENT OF COMPANY NOMINEE

I have had the opportunity of reading and carefully considering the award of the Chairman in this case, and wish to respectfully dissent from it.

The facts are not in dispute and are fully set out in the award of the majority. It is sufficient to note that the grievor's work week at the time in question was from Monday to Friday inclusive, and his days of rest were Saturday and Sunday. His normal daily schedule of hours was 12:30 a.m. to 7:30 a.m., but for some time, and on a regular basis, the grievor commenced work one hour earlier at the beginning of the week and commenced his shift at 11:30 p.m. Sunday night. Accordingly, he worked an extra hour on the shift in question, and it is agreed between the parties that that extra hour worked is an overtime hour. However, the grievor contends that he is entitled to be paid at the rate of time and one-half for the one-half hour worked on Sunday, while the Company contends that the grievor's entitlement is to payment at the pro rata rate.

Article IX of the collective agreement is headed "Overtime and Calls", and contains seven sub-clauses. These clauses are as follows:

Clause 1

Clause 2

Work in excess of forty (40) straight time hours in any work week shall be paid for at one and one-half times the basic straight time rate except:

(a) where such work is performed by an employee due to moving from one assignment to another,

(b) where such work is performed by an employee due to moving to or from a laid-off list.

(c) where rest days are being accumulated,

(d) as otherwise agreed between the General Chairman and the proper officer of the Company.

Clause 3

Clause 4

Clause 5

Clause 6

Clause 7

Overtime will be distributed as equitably as practicable.

In these circumstances it is the Company's contention that the provisions of clause 1 apply and that the grievor is entitled to be paid at the pro rata rate for the extra hour worked. The Union, on the other hand, contends that clause 4 applies in these circumstances and it is alleged that the grievor is entitled to payment at the rate of time and one-half for the one-half hour worked on his day of rest. As noted in the majority award, Mr. Churchill-Smith, for the Company, argued that article 9.04 had no application to the situation, as that article clearly was intended to deal with "call-in" situations. Mr. Sack, for the Union, argued that article 9.01 had no application because the one-half hour worked by the grievor on Sunday did not accrue in the basic work week. Mr. Churchill-Smith stated that there was a history of past practice of not paying at the time and one-half rate in these circumstances and requested that the Board hear such evidence if the Board were of the opinion that the relevant clauses were ambiguous.

In my judgement, the provisions of clause 4 of article 9 have no application in this case as that clause is clearly intended to apply to "call-in" situations. As noted in the award of the majority, that clause provides not only for payment at time and one-half, but also guarantees a minimum payment of two hors and forty minutes for work "not continuous with, before or after the regularly assigned hours". This indicates to me that it was the intention of the parties that these clauses were to cover "call-in" situations. This view is further reinforced by the fact that while the article is entitled "Overtime and Calls" in no instance is the actual expression "call-in" or "call-out" used in the body of the article.

In these circumstances it is my respectful opinion that section 9.04 has no application to the facts before us, as the grievor clearly was not called in. The grievor has not established an entitlement to payment at the rate of time and one-half for the hours in question, and I would dismiss the grievance.

The Chairman, in his award, notes that the amendment which was made to clause 4 of article 9 on May 21st, 1971, whereby a guarantee of a minimum payment for two hours and forty minutes for work on a day of rest was added to the clause, raises the inference that the clause is designed to meet a "call-in" situation. I agree with that inference, and that inference leads me to the conclusion that the provision does not apply in this case. However, be that as it may, it would seem to me to at least open the door to the Board to hear evidence relating to the history of past practice which the Board was informed is available to it.

DATED AT LONDON, this 16th day of November 1973

(SIGNED) S. E. DINSDALE

COMPANY NOMINEE