AH 110

ARBITRATION AWARD

CONCERNING         CANADIAN NATIONAL RAILWAY COMPANY

AND                           CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION

GRIEVANCE OF H. PITRE

Case heard before:                  J.F.W. Weatherill, Arbitrator

On behalf of the Association:             H. Lebel, Attorney

On behalf of the Company:                E. Gagnon, Attorney

Case heard at Montreal, November 27, 1980

ARBITRATION AWARD

            In this grievance dated April 25, 1979, the grievor, who was a constable at the time, claims payment for the period from 5 p.m. to 10 p.m. on March 30, 1979 at the rate of a sergeant.

            The facts in this case are not seriously contested.  The grievor has been employed in CN Police since November 1964; he was a constable in March 1979 and became a lieutenant in September 1979.  By March 1979, he was already qualified to be a lieutenant and his name was on the seniority list.  At the time of the grievance, he was working in the regional office’s communications center where, at any given time, he could be assigned to a patrol car, to gate duty or to some other work done by constables.  On March 30, 1979, he was on the 3 p.m. to 11 p.m. shift.

            On this particular shift, tasks are assigned by a sergeant, and on the day in question, Sergeant Martin found himself with an extra man, namely the grievor, after assigning his men to their duties.  Once Sergeant Martin had completed his work at the beginning of the shift, since nothing out of the ordinary was happening, he took advantage of the situation to “go out in the field” as he was encouraged to do by Company policy.  He joined a CN police car patrolling an area with which he was unfamiliar.  He assigned the grievor to the desk of the communications center between 5 p.m. and 10 p.m. to carry out the necessary duties during his absence.  When Sergeant Martin returned to the center at approximately 10 p.m., he relieved the grievor and finished off his duties for the end of the shift.  It was Sergeant Martin who signed the shift register, even though it was the grievor who had made the entries between 5 p.m. and 10 p.m.

            The work done by the grievor between 5 p.m. and 10 p.m. was of the same nature as that normally done by a sergeant.  It is however, normal that constables from time to time relieve sergeants of their duties, whenever, for example sergeants leave for meal breaks or go to the washroom.  Insofar as possible, the Company requires constables to have a certain amount of experience and training to be able to do this, but in the present case, it is agreed that the grievor was fully qualified in this respect.

            Whilst he was so assigned, the grievor only had to carry out quire ordinary task:  answering telephone and radio calls and possibly questions put by individuals in person.  He passed on, received and recorded standard reports.  Nothing out of the ordinary occurred, with the possible exception of the report of an incident in Sainte-Phillippe in which the dispatcher advised the grievor of an accident and that the Quebec Provincial Police were taking care of the matter.  The grievor considered he should report this incident to Sergeant Martin over the radio, and the latter’s response was simply “10-4”, meaning message received and understood – end of message.  This was, in effect, a normal response, given the circumstances.

            Although the grievor did not experience any difficulty doing this work, it remains a fact that the work he did would normally have been done by a sergeant and not, with the exception of the above-mentioned circumstances, by a constable.  I see no relevance in the fact that certain of these tasks (for example, answering telephone calls, etc.) are carried out by constables or even clerks in various locations.

            It should be noted that the grievor was not supposed to carry out certain important duties which were the sergeant’s responsibility, namely preparing the register and assigning men at the beginning of the shift.  Nevertheless, it should be pointed out that the grievor used the time available to prepare constables’ time cards, daily control cards and, as I have already mentioned, to record various incidents in the register as they were reported.  I would stress here that in my view, the grievor was indeed in a position of responsibility.  Although constables do not have the power of discipline (indeed neither do sergeants except with the approval of a lieutenant or superior officer), a situation could have arisen at any given moment in time (when the sergeant was, by chance unavailable) in which the grievor would have had to assume this particular responsibility.

            In the light of these circumstances, was the grievor entitled to payment at the sergeant’s rate?  We may find the answer to this question in the provisions of Article 17.1 of the collective agreement which states:

17.1 L’employé affecté à titre temporaire à un poste mieux rémunéré que le sien pendant une heure ou plus par jour touche le salaire établi pour ledit poste et doit en assumer les tâches et responsabilités pour la durée de la suppléance.  Le fait d’aider le titulaire d’une poste mieux rémunéré quand il est temporairement surchargé de travail ne constitue pas une affectation temporaire à un poste mieux rémunéré.

Since the agreement was originally written in English, I shall quote this version too:

17.1 An employee temporarily assigned to a higher rated schedule position for one hour or more cumulative in any day shall receive the higher rate during such temporary assignment.  A temporary assignment to a higher rated schedule position contemplates the fulfillment of the duties and responsibilities of the position during the time.  Assisting a higher rated employee due to a temporary increase in the volume of work does not constitute a temporary assignment to a higher rated position.

            In the circumstances of the instant case, I find that the grievor took over the sergeant’s duties and responsibilities during the period of 5 p.m. to 10 p.m., that is for the time he replaced the sergeant.  It is of little importance that during this period, the grievor did not have to carry out certain of the duties for which the sergeant was responsible.  He did carry out a segeant’s work during this period as was required of him.  It is significant that Article 17.1 only provides for a higher rate of pay in cases where the employee works in a higher rate position for more than one hour.  Even over a period several hours long, it cannot be expected that every possible duty would be carried out.  The employee temporarily assigned to the position should nevertheless be entitled to the higher rate of pay.  I might add here that his is not a case where the grievor helped a sergeant who was “temporarily overloaded with work”. On the contrary, since it was convenient, the sergeant thought it fitting to hand over his work to the grievor.

            With regard to the English version of Article 17.1  of the agreement, I am even more convinced that the Article can be applied to the circumstances of this case, thus providing for a higher rate of pay whenever a temporarily assigned employee works for one hour or more cumulatively in any day.  This means that even if a constable replaced a sergeant only during brief, intermittent periods during the day, this Article would apply.  In the English version, temporary assignment “contemplates” that the duties and responsibilities of the position be assumed during the time the position is temporarily responsibilities occurring during the period of temporary assignment.  In the instant case, I find that the grievor assumed these duties and responsibilities and that, at the sergeant’s request, he simply took the place of the latter for a five-hour period.

            For the foregoing reasons, I conclude that the grievor was temporarily assumed to a higher rated position, that is to the position of sergeant, during a five-hour period on March 30, 1979, and that given the circumstances of the case, Article 17.1 of the collective agreement applies.  My decision is that the grievor is entitled to be paid the difference between what he is fact received for these five hours’ work and what he should really have received at the sergeant’s higher rate of pay for the same period.

TORONTO, December 30, 1980

__________________________

J.F.W. Weatherill

Arbitrator