CASE-NO : AH092
DATE : 11/11/75
PARTIES : CN TC Division
IN THE MATTER OF ARBITRATON OF A DISPUTE
CANADIAN NATIONAL RAILWAYS
TRANSPORTATION-COMMUNICATION DIVISION (BRAC)
Pursuant to the provisions of a collective agreement between the parties, Mr. J.F.W. Weatherill was appointed sole Arbitrator to deal with this dispute. The arbitration hearing was held at Montreal, Quebec on 11 November, 1975.
Representatives of the parties at the hearing were
FOR THE COMPANY: R. St.Pierre
FOR THE UNION: F.E.Soucy
PARTIES: CANADIAN NATIONAL RAILWAYS
SUBJECT OF DISPUTE: Claim for pay at the time and one-half rate for time
travelled outside of regularly assigned hours.
COMMENTARY: The grievor travelled outside his regularly assigned hours
as a passenger in a Company car driven by another
employee and was paid for the travel time at the pro-rata
rate. The Company denied the grievorís claim for payment
of this travel time at the time and one-half rate.
DECISION: The grievance was dismissed.
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND: BROTHERHOOD OF RAILWAY AIRLINE AND
STEAMSHIP CLERKS, FREIGHT HANDLERS,
EXPRESS AND STATION EMPLOYEES
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Montreal on November 11th, 1975.
F.E. Soucy, for the Union
R. St.Pierre, for the Company
This grievance involves a claim to be paid at premium rates for certain travel time. The grievor was paid at the straight time rate for the time involved; he seeks to be paid at the rate of time and one-half.
The facts have been set out in the Joint Statement of the parties. The grievor, who is covered by Collective Agreement 7.4, is classified as a Gang Lineman, His headquarters is at Montreal. His regularly assigned hours of work are 8:00 a.m. to 5:00 p.m., Monday to Friday, with Saturday and Sunday rest days. In the instant case the grievor was assigned to work away from his headquarters and this claim arises with respect to the travel time involved. On Monday, January 13th, 1975, the grievor travelled from Montreal to Senneterre. He travelled as a passenger in a company vehicle driven by another employee. A portion of the travel time fell within the grievorís normal working hours, but some five and half-hours of travel time was after his regular hours. He seeks to be paid at time and one-half for the period of five and one-half hours.
On Saturday, January 18th, 1975, the grievor returned from Senneterre to Montreal, again as a passenger in a company vehicle. On this occasion of course, all the time involved - some ten hours - was outside the grievorís normal hours of work. Again, he was paid in respect of this time at straight time, and his claim is to be paid at time and one-half.
It is common ground that the grievor was entiltled to payment in respect of time spent in travel outside normal working hours. In this respect the situation before me here is different from that in the case of Wiberg and Treasury Board, (Public Service Staff Relations Board, 166-6-286) where the issue was whether time spent in travel to distant work location was compensable at all. It was held that such travel time constituted time "worked" for the purposes of payment. That question does not arise in the instant case, where there is no doubt that the grievor was entitled to be paid in respect of time spent in travel. The issue in this case is as to the rate of payment.
The union relies on Article 11(k) of the collective agreement. That article is as follows:
"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:
1. Where this Agreement provides for work in excess of eight (8) hours in a day being paid for at pro-rata rate;
2. Where such work is performed by an employee due to moving from one assignment to another;
3. Where such work is performed by an employee due to moving to or from an extra or laid-off list;
4. Where rest days are being accumulated under Article 12 (e).
If the grievor is properly said to have been at work within the meaning of this article while he was travelling on the days in question, then the general provisions of the article would apply, and he would be entitled to the payment claimed unless the company can show that the case comes within one of the exceptions set out in the article. In the instant case, while the company contends that Article 11(k) would not apply since the grievor was not at "work" within the meaning of the article, it is argued that even if he was considered to be at work, this was work which the collective agreement provides should be paid for at pro-rata (straight time) rates.
There are, it is argued, two provisions which deal specifically with the matter of payment for travel. One of these is Article 11 (g), which is as follows:
"(g) Lineman-Technicians, Linemen, Cable Splicers, Cable Splicer-Linemen, and Cable Splicerís Helpers will be paid et pro-rata rate for time travelled outside of regularly assigned hours of duty on orders of the Company, except that compensation will not be allowed for such time between the hours of 11:00 p.m. and the regular starting time when sleeping car accommodation is furnished. Employees must make every effort to obtain sleeping car accommodation. The provisions of this rule do not apply in respect of Linemen travelling outside of their regularly assigned hours on orders of the Company in connection with the clearance of line interruptions, in which event the provisions of Rule (a), (b) or (c) of this Article will govern."
That article would, if it applied, have required payment at straight time for the travel time in question here. It applies, however, only in respect of the particular classifications listed in the article, where the classifications of Gang Linemen does not appear. Both parties would appear to be agreed that this article does not apply in the instant case.
The second article which deals with the matter of travel time is Article 24(a), which is as follows:
SPECIAL RULES COVERING GANGS
(a) When a complete gang, outfit cars and crew, is moved from one location to another, employees in the gang will suffer no loss of wages (based on number of working hours in last previous work day) while in transit. If such movement occurs on the assigned rest days of the gang, they will be allowed actual travel time at pro-rata rates of pay with a maximum of eight (8) hours in each twenty-four (24) hour period.
To qualify for travel time under the provisions of this rule, employees must accompany the outfit cars or travel by other means provided or authorized by the Company.
When gang employees are assigned away from their outfit cars, on orders from the Company, they will be paid at pro-rata rates for time travelled outside of regularly assigned hours except that compensation will not be allowed for such time between the hours of 11:00 p.m. and the regular starting time when sleeping car accommodation is furnished. Employees must make every effort to obtain sleeping car accommodation.
While the first paragraph of this article does not apply in the instant case, it is argued that the third paragraph does, since the grievor was a "gang employee". The union argues that this article does not apply, since it provides for the moving of gang employees with outfit cars, and the grievor did not live in an outfit car. In my view Article 24(a) does not apply to the instant case. It deals generally with the movement of gang employees from one work location to another. The first paragraph refers to the movement of a complete gang with its outfit cars. The third paragraph, however, refers to moves of gang employees where there is no movement of the outfit car, that is , to just such a situation at that which occured here. To say that the article would not apply to the grievor because while headquartered at Montreal he did not live in an outfit car, would be to create the anomalous situation in which, depending on the interpretation given to Article 11(k), he would either be paid more than the lineman and others listed in Article ii(g) in the same circumstances, or he would be paid nothing for the time outside his regular hours. Since Article 24(a) may, I think, quite properly be read as applying to this case and thus avoiding these anomalous results, that is the interpretation which should be given to this language.
It would appear that the company has paid for travel time in excess of normal working hours at the premium rate in certain circumstances. These would certainly have to include the case where an employee is, while on route from one location to another, carrying out the duties of his classification. In such a case, he would no doubt have to be considered as "at work" in every sense of the term. An example of such a case may be seen in Boucher and Treasury Board, (P.S.S.R.B. 166-2-230). In fact, this company has paid employees at the premium rate where the conditions of travel have been such as to make it appropriate to consider travel time as time "at work" in the fullest sense. Thus, such payment has been made - and rightly, in my view - in cases where employees travel in the back of an open truck. Payment at premium rates in such cases does not involve any implications for cases such as the instant case.
In the instant case, I find that article 14(a) applies, and that the grievor would be entitled to payment at the pro-rata rate for time travelled outside his regularly assigned hours. He was paid at that rate. There was therefore no violation of the collective agreement. The grievance must accordingly be dismissed.
DATED AT TORONTO THIS 2ND DAY OF DECEMBER, 1975
(Sgd.) J.F.W. Weatherill_________