©b16r AD HOC 141

©u42rIN THE MATTER OF A GRIEVANCE INVESTIGATION

©u42rPURSUANT TO SECTION 112 OF THE B.C. LABOUR

©u17rCODE IN A DISPUTE

BETWEEN: THE BRITISH COLUMBIA RAILWAY COMPANY

(Hereinafter Referred To As "The Company")

AND: THE UNITED TRANSPORTATION UNION, LOCALS NO. 1178 AND 1923

(Hereinafter Referred To As "The Union")

Section 112 Investigator: Brian Foley

Appearing For The Company: D. Pysh, D. Sawchuk, A. Shannon

Appearing For The Union: C. Mulhall

Date Of Meeting With The Parties: November 30, 1983 at Vancouver,

B.C.

Date Of Written Report: December 12, 1983

Issue: Article 131 - General Holidays

©b69r I

By agreement between the Company and the Union, the undersigned was

appointed under Section 112 of the B.C. Labour Code to investigate

grievances and make written recommendations to the parties for their

resolution. In November 1983, the parties requested a recommendation

with respect to the interpretation of Article 131, General Holidays.

A meeting with the parties was held in Vancouver on November 30,

1983.

At this meeting, the parties agreed that the grievance investigator

was properly constituted and had the jurisdiction to deal with the

matter in dispute. In addition, the parties agreed that the

investigator's recommendations would be final and binding.

©b67r II

The present grievance arose over the interpretation of Article 131,

General Holidays. It concerns the claim of Spare Trainmen S.T.

Young, H.A. Ulch and R.G. Rourke for eight hours' pay because they

held themselves available for work on the Victoria Day General

Holiday, May 24, 1982. Although the three employees did not work on

May 24, 1982, they filed a grievance on the basis of their belief

that the collective agreement provided for payment of eight hours'

pay when employees are held but not used on General Holidays.

In order to properly assess the present grievance, the background to,

and evolvement of Article 131 must be considered.

Prior to 1974, all employees in the UTU bargaining unit were

required to hold themselves available for duty on General Holidays.

Those employees who did not actually work on the General Holidays

were not paid any monies for having held themselves available for

duty, a matter of some contention between the Company and the Union.

The issue was addressed in the fall of 1973 by Industrial Inquiry

Commissioner R.R. Smeal. After considering the representations

of the parties, Mr. Smeal came to the conclusion that:

(a) only a designated minimum number of employees should hold

themselves available for duty on General Holidays; and,

(b) each employee so designated but then not called for duty

shall receive, in addition to his regular pay for the

General Holiday, another day off with pay (i.e., eight

hours' pay).

Mr. Smeal's decision was incorporated into the collective agreement

effective January 1, 1974. It read in part as follows:

" The Railway shall advise by bulletin at least 48 hours in

advance of the General Holiday at each home terminal, or

point where spare boards are maintained, the number; of

unassigned crews required in each terminal and the number of

spareboard men required on each spareboard for that holiday.

... Each employee among the number required will be regarded

as holding himself available for duty on the General Holiday.

Each employee qualifying for payment on a General Holiday

and held available for duty on the holiday, and not used on

the holiday shall be paid in addition to the amount as

provided in Sub- section (1) of Section 5 of this Article,

another days pay as provided in Subsection (1) of Section 5

of this Article."

The provision remained unchanged for some seven years and when

employees were required to hold themselves available for duty on a

General Holiday, they were provided eight hours' pay in addition to

their regular pay for the specific General Holiday.

During 1981, negotiations ensued between the parties respecting a

renewal agreement. During those negotiations, the UTU took the

position that the provision for eight hours' pay for employees held

but not used on General Holidays should be incorporated into any

renewal agreement. However, the collective agreement, which was

signed in late 1981 and remains in effect at the present time,

contains no provision for extra payments for employees held but not

used on General Holidays. Clause 131(2) provides as follows:

" The Railway shall advise by bulletin at least forty-eight

(48) hours in advance of a General Holiday at each Home

Terminal, or points where spare boards are maintained, the

number of unassigned crews and individual assignments

required at each terminal and the number of spareboard men

required on each spareboard for that Holiday. It will be the

responsibility of the employees to ascertain their standing

on the respective Boards as of 0001 on the General Holiday.

Crews at outlying points shall also be advised at least

forty-eight (48) hours in advance of a General Holiday as to

whether they are required."

Other related sections of the collective agreement deal with such

matters as:

- the amount of monies paid to individual classifications for

the General Holiday {Clause 131(4)(a) and (b)}

- the means of determining which rate of pay applies to spare

employees on a General Holiday {Clause 131 (4) (c) }

- the payment applicable to Trainmen assigned to regular trains

who may be required to work on their days off {Clause 301(f)}

- the salary "guarantees" applicable to sparemen {Article 308}.

The Company argues that Article 131 is clear and unambiguous in its

terms and clearly does not provide any payment for employees in the

UTU bargaining unit who are held but not used on General Holidays.

The Company submits that the earlier provision incorporated into the

agreement by Industrial Inquiry Commissioner Smeal in 1974 was

negotiated out of the collective agreement in 1981. It is argued

that improvements were negotiated in other clauses in Article 131 to

offset the deletion of the provision for payment to employees held

but not used on General Holidays. In the Company's view, the former

provision for payment to employees held but not used on General

Holidays is conspicuous by its absence; there is therefore no

collective agreement requirement to pay any employee in the UTU

bargaining unit an extra day's pay when he is held available but not

used on a General Holiday.

The Union argues that employees held available on General Holidays

are in fact rendering service and therefore should be paid pursuant

to the provisions of Clause 301(f). In the Union's view, it is

unreasonable and unfair to deny extra payment for employees held but

not used on General Holidays. In this regard, the Union points to

the provision for such payment in the existing collective agreement

between the Company and the Canadian Union of Transport Employees,

Local No. 1.

The Union submits that it was not its intention to negotiate the

payment applicable when held but not used out of the collective

agreement in 1981 --- the UTU negotiators did not intentionally or

consciously write out of the collective agreement the provision

incorporated into it by Mr. Smeal in 1973. The Union argues that

one must infer that the provision for payment for employees held but

not used on General Holidays still exists, if not in Article 131,

then in other articles or clauses. In the alternative, the Union

argues that in the absence of any clear language denying payment in

such circumstances, one must conclude that employees should receive

extra payments when they make themselves available for service on

General Holidays.

©b67r IV

I have considered the present collective agreement provisions as a

whole and I cannot find any provision in the collective agreement

which supports the position argued by the Union. There must be

clear and unambiguous wording in the collective agreement to

substantiate an extra payment when employees are held but not used on

General Holidays. The fact that there was clear wording in this

regard in the collective agreements from 1974 until 1981 and the fact

there is no such wording in the present collective agreement leads me

to the conclusion that the provision was negotiated out of the UTU

collective agreement in 1981 negotiations.

I have considered the Union's argument that other clauses under

Articles 131, 301 and 308 can be read to achieve the same result as

the former specific provision incorporated into the collective

agreement by the decision of Mr. Smeal. However, the wording in

those sections of the collective agreement deal with such matters as

the payments for work performed or with sparemen payment guarantees

in general. They cannot be interpreted to provide any extra benefit

for employees held but not used on General Holidays.

As noted earlier, the fact that the present collective agreement is

silent on the matter leads me to the conclusion that no extra

payments are applicable when UTU members are held but not used on

General Holidays. If such a result is to be achieved, then a

specific provision will have to be negotiated in the next collective

agreement.

I would dismiss the grievance in question.

All of which is respectfully submitted.

Dated at Vancouver, British Columbia, this 9th day of December,

1983.

BRIAN FOLEY, Investigator