AH 108
IN THE MATTER OF AN ARBITRATION
BETWEEN:
International Longshoremen’s Association,
Local 1259, hereinafter called “the Union”,
Of the one part
- and –
CN Marine Inc., hereinafter called “the Company”,
Of the other part
PURSUANT to the terms of the Collective Agreement, the parties agreed upon Judge Nathan Green to act as a single arbitrator in the matter of a dispute between the parties.
The Union was represented by Mr. J. Reeves Matheson, Barrister and the Company was represented by N. B. Price Manager of Labour Relations for the Company.
The grievance is a claim for wages for the Thanksgiving Holiday, which occurred in 1979. There are 94 persons involved in the grievance and they all fall within eight patterns, depending on the shift worked. The categories are defined in a letter of January 18,m 1980 but the Company to the Union and the Union agrees that all the partied fail in these categories and the cases are as follows:
“Case No. 1
Mr. Shirley Scott (Unassigned)
Called for work on Sunday October 7 (did not work).
Called for work on Monday October 8 (did not work).
Worked Tuesday, Wednesday and Thursday
Mr. Scott was paid for three days worked and does not qualify for the holiday because he was not available for duty on such holiday as per article 8.2 (B) of your assignment.
Case No.2
Mr. Doug Fillier (Unassigned)
Worked on Sunday, October 7.
Called for work on Monday, October 8 (did not work).
Worked on Wednesday, Thursday and Friday.
Mr. Fillier was paid for four days worked and does not qualify for the holiday (October 8th) because he was not available for duty on such holiday as per article 8.2 (B) of your agreement.
Mr. Henry Bird (Unassigned)
Layoff days – Saturday and Sunday
Booked off sick on Monday, October 8th. This man was on the property on Monday, October 8th, therefore does not qualify for the holiday because he was not suffering from a bona fide injury, or who is hospitalized on the holiday, or who is in receipt of, or who subsequently qualifies for weekly sickness benefits because of illness on such holiday as per article 8.2 (B) of your agreement.
Mr. Len Doucette (Assigned)
Layoff days – Saturday and Sunday.
Identical circumstances as case number 3
Mr. Bill Tobin (Unassigned)
Called for work on Sunday,
October 7th (did not work).
Called for work on Monday, October 8th (did not work)
Worked on Tuesday, Wednesday, Thursday, Friday and Saturday.
Mr. Tobin was paid for five day’s work and does not qualify for the holiday because he was not available for duty on such holiday as per article 8.2 (B) of your agreement.
Mr. Tobin should not have been called for work on Friday and Saturday by the timekeeper, he therefore picked up two extra days in that week.
Mr. Bill Clark (Unassigned)
It is my understanding all employees called for the 3 p.m. shift on Monday, October 8th were offered work at 11 p.m., Monday, October 8th, and I can find no evidence to support Mr. Clarke’s claim. Therefore, he does not qualify for the holiday because he was not available for duty on such holiday as per article 8.2 (B) of your agreement.
Mr. M. Batemen (Assigned 3 –11)
Layoff days – Wednesday and Thursday.
Did not work his assignment 3 –11, October 8th, therefore, he does not qualify for the holiday because he was not available for duty on such holiday as per article 8.2 (B) of your agreement.
Mr. Bateman was called for work on the 11 p.m. shift, October 8th because extra Parking Lot Attendants were required, but refused this call.
Mr. M. White (Assigned 3 –11)
Layoff day Friday and Saturday.
Identical circumstances as case number 7.”
The Union contends that the Company has violated Article 8 of the Collective Agreement, between the parties, and did not pay holiday pay for Thanksgiving Day which fell on the 8th of October 1979 to a number of employees.
On the 7th of October at about 3:00 there was an illegal work stoppage which was not settle until 11:00 on the evening of October 8th. This resulted in many employees not receiving holiday pay, as provided for in Article 8 of the Collective Agreement between the parties.
The ILA filed a grievance dated November 23rd 1979 with the Terminal Manager, relating to the eight test cases, which represented at total of 94 employees that the Union felt should have received their holiday pay. This claim was declined by the Company by letter dated December 5, 1979.
On December 12, 1979, the Union wrote the manager of Gulf Service progressing its grievance to Step II. On January 18th, the Manager of Gulf Service wrote the Recording Secretary of the Union, outlining the eight test cases above spelled out and why they were declined. This decision was in excess of the 28 days provided for in the grievance procedure.
The Union then appealed the decision to the Director of Industrial Relations, Step III, by a letter dated January 30th, claiming that the grievance should be paid by virtue of Article 13.10, which reads:
“When a written grievance based on a claim for unpaid wages is not progressed by the Union within the prescribed time limits, it shall be considered as dropped. When the appropriate officer of the Company fails to render a decision which respect to such a claim for unpaid wages within the prescribed time limits, the claim will be paid.”
In effect the Union takes the position that the Article 8 provides a mandatory holiday, which shall be paid for by the Company and as such this is a guaranteed form of part of their income, part of their wage package and is a claim for wages under Article 13.10 and since the Company was outside of the time in answering the grievance, the claim should be automatically paid.
It is the Company’s view that payment for general holidays under Article 8 are subject to the proviso in Article 8.2 (B) that employees be available for duty in accordance with that Article, for the purpose of clarity, Article 8 is herewith spelled out in its entirety.
“8.1 An employee who qualifies in accordance with Article 8.2 shall be granted a holiday with pay on each of the following general holidays. When a general holiday falls on an employee’s rest day, such holiday shall be moved to the normal working day immediately following the employee’s rest day.
New Year’s Day Labour Day
Good Friday Thanksgiving Day
Easter Monday Remembrance Day
Victoria Day Christmas Day
Dominion Day Boxing Day
In the event Parliament establishes “Heritage” Day (the third Monday in February of each year) as a statutory holiday, this day will be added to the above list of general holidays.
In 1980 one additional General Holiday shall be added to the existing ten. Such additional General Holiday shall be the day that applies to the majority of CN Marine Employees in the Province of Nova Scotia. Should the Government of Canada designate Heritage Day or such other day as a General Holiday, the day so designated will be substituted for this additional day.
When any of the above holidays fall on Sunday or Saturday, the day observed by the by the Federal Government in respect of its employees as the holiday shall be recognized.
If a holiday is more generally recognize than any one of the holidays specified above, the signatories hereto will substitute such holiday therefore. If such signatories fail to agree that such holiday is more generally recognized, the dispute will be submitted to arbitration for final decision.
8.2 In order to qualify for pay for any one of the holidays specified in Article 8.1, and employee:
a) must have been in the service of the Company and available for duty for at least 30 calendar days. This Clause (a) does not apply to an employee who is required to work on the holiday.
b) must be available for duty on such holiday if it occurs on one of his work days excluding vacation days, unless otherwise authorized, except that this does not apply in respect of an employee who is laid off or suffering from a bona vide injury or who is in receipt of, or who subsequently qualifies for, weekly sickness benefits because of illness on such holiday; a regularly assigned employee who is required to work on such general holiday shall be given an advance notice of 4 calendar days, except for unforeseen exigencies of the service, in which case he will be notified not later than the completion of his shift or tour of duty immediately preceding such holiday that his services will be required.
c) must be entitled to wages for at least 12 shifts or tours of duty during the 30 calendar days immediately preceding general holiday. This Clause ( c) does not apply to an employee who is required to work on the holiday.
8.3 A qualified employee whose vacation period coincides with any of the general holidays specified in Article 8.1 shall receive an extra day’s vacation with the pay to which the employee is entitled for the general holiday
8.4
a) An assigned employee qualified under Article 8.2 and who is not required to work on a general holiday shall be paid 8 hours’ pay at the straight time rate of his regular assignment.
b) An unassigned or spare employee qualified under Article 8.2 and who is not required to work on a general holiday shall be paid 8 hours’ pay at the straight time rate applicable to the position in which such employee worked his last your of duty prior to the general holiday.
2)
An employee who is required to work on a general holiday shall be paid, in addition to the pay provided in Article 8.4 (1) at a rate equal to one and one-half times his regular rate of wages for the actual hours worked by him on that holiday with a minimum of 3 hours for which 3 hours’ service may be required, but an employee called for a specific purpose shall not be required ton perform routine work to make up such minimum time. When more that one shift is worked by an employee on a general holiday, the provisions of this article 8.4 (2) shall apply to the first shift only. For employees whose hours of work are averaged the time and one-half rate referred to in this Article 8.4 (2) shall apply to the first 8 hours of duty on the recognized general holiday.
8.5 Shifts or tours of duty commencing between 2400 hours on the eve of the general holiday and 2359 hours o the night of the general holiday, both times inclusive, shall be considered as work on that holiday.”
Whether it is “pay” or “wages” I do not think is material. For the purpose of this Aware I will treat them as synonymous. The Fundamental rule of construction is reading a contract, is that it must be read in its entirety and the proviso for payment under Article 8.1 cannot be divorce from Article 8.2 (B). I find no ambiguity. I think simply the proviso is that if a man qualifies, he then is entitled to a holiday pay and in the instances cited the individuals in question did not qualify and are therefore not entitled to be paid.
The interpretation placed on Article 8 by the Union constitutes, what might be called, a wage guarantee. Certainly as far as the unassigned men are concerned this is not a logical conclusion as they are not guaranteed any work unless they are called, so how can they have a wage guarantee.
I agree with the views expressed by the Aribtrator Adell in Re T.C.F. of Canada Ltd. And Textile Workers’ Union of America, Local 1332, 1 L.A.C., 382, a to the nature of holiday pay as he analyzes it on page 384 but what he is talking about is a holiday period that has been earned and in which the employer by reason of the layoff, in that particular case, attempted to take advantage of its own actions in making it impossible for the employee to qualify with the day before and day after employment, a clause similar, obviously, to the one that exists in the instant case. The marked distinction between the cases cited by the Union and the instant case is that the employer did not create a situation which resulted in the failure of the employees to comply with the provisions in the agreement. This was not a lay off by the Company created to defeat the employees from enjoying the benefits of a holiday provided for in the collective agreement.
There could be no unpaid wages in this situation since by the very terms of the collective agreement and the failure of the Union members to qualify for the holiday pay , there were no wages earned for that particular period and in my view Article 13.10 is not relevant to the issue.
I note in the case cited by the Company that the Arbitrator Mr. Weatherall deals with the question of “unpaid wages” and it is his view that it is not in every case that every claim for compensation even though involving the assertion that wages ought to have been paid, constitutes a claim for unpaid wages within the meaning of the case he was deciding, however, I do not find it necessary to deal with that point the instant matter since it is clear that the issue falls within the matter of “entitlement”.
The interpretation of holiday pay provisions and their accompanying eligibility requirement have been a source of considerable controversy. The general principles behind holiday pay and the arbitral approaches are discussed in Brown & Beatty, Canadian Labour Arbitration (1977) p. 436-438. There are two approaches:
1. A statutory holiday is not a part of the wage structure but essentially is a guarantee that the worker will not lose pay by reason of an enforced lay-off call on a statutory holiday or
2. Statutory holiday pay must be regarded as part of the total monetary package along with wages and other fringe benefits as such payment for statutory holidays must be regarded as an earned benefit and as an additional form of remuneration for work already performed rather than a means of indemnifying employees against losing a day’s wages as a result of the enforced lay off caused by a holiday.
The text goes on to say and these are key words:
“That fundamental difference in perception aside, it nevertheless remains true that ultimately entitlement to statutory holiday pay falls to be determined on the language is clear effect must be given to it.”
Throughout all discussions the key work is “entitlement”. In the instant contract the parties have spelled out the grounds of “entitlement”. It is clear and unambiguous the grievors do not qualify within the terms of the agreement to entitlement.
Article 13.10 cannot be read in limbo, it must be read in the light of the entire contract. Before a claim exists there must be entitlement, the burden is on the Union to establish the entitlement. This, it has failed to do.
The parties had agreed that if the arbitrator found that the Union claim failed on the relevancy of Article 13.10 that would end the matter and I so find.
I do believe that some comment should be made about the payment which had been made to Charles Eavis who had been paid. He had been involved in the situation as well but it is clear from the evidence that at 11:00 that evening he had asked to book off sick and a decision was made by management to accept his statement that he was not in proper physical condition to work and as such he didn’t fall within the exception of 8.2 (B) but does fall within the substitutionary holiday rule of 8.1 since he worked the day following the holiday and could not work on that particular day.
The Union had put forward certain arguments in the matter estoppel resulting form the conduct of the Company allowing certain practices to go on in so far as employees having their cards checked by the timekeeper but since the basic issue has been resolved on the first ground I do not deem it necessary to proceed with the respective positions put forth by the parties on that particular issue since by their own agreement it would not be relevant in the light of the decision which I have made on a preliminary point.
For the foregoing reasons, I find that the grievance fails.
DATED at Halifax, Nova Scotia, this 28the day of August A.D. 1980
___________________
Judge Nathan Green