148

 

 

IN THE MATTER OF AN ARBITRATION BETWEEN :

 

 

Canadian National Railway Company

(hereinafter referred to as "the Company")

- a n d -

The Rail Traffic Controllers

(hereinafter referred to as "the Trade Union")

 

And in the Matter of a Grievance of Mr. B.P. Bédard

 

 

Before : D.H. Kates

Sole Arbitrator

Appearing for the Employer : S.A. McDougald

Labour Relations Officer

W.W. Wilson, Manager

Labour Relations

Appearing for the Trade Union : F.M. Sheahan

National Chairman

N. Pugh

System Chairman

J.R. Leclerc

System Vice-Chairman

 

 

Heard at Montreal, P.Q. on June 14, 1985.

 

 

 

 

 

Decision

The issue to be resolved in this case is whether the grievor, Mr. B.P. Bédard, should be paid for the General Holiday (Good Friday) that fell on April 20, 1984, at the straight time rate of an Operator or a Train Dispatcher. Article 15(6) (a) and (b) of the collective agreement reads as follows :

15.6 (a) An assigned employee qualified under Article 15.4 and who is not required to work on a general holiday shall be paid eight hoursí pay at the straight time rate of his regular assignment.

(b) An unassigned or spare employee, qualified under Article 15.4 and who is not required to work on a general holiday shall be paid eight hoursí pay at the straight time rate applicable to the position in which such employee worked his last tour of duty prior to the general holiday.

The background circumstances precipitating this grievance are both straightforward and undisputed. The grievorís regular position with the company is that of an operator. And when he is assigned to his regular operatorís position he is paid in accordance with the appropriate operatorís rate under the collective agreement.

The grievor also serves the employer in the capacity of a Relief Dispatcher. He is "on call" to provide dispatcherís services as manpower needs may dictate. When called upon to perform train dispatcherís duties, the grievor is paid in accordance with the appropriate dispatcherís rate of pay provided under the collective agreement. And, as the most senior qualified Relief Dispatcher the grievor is called upon pursuant to Article 24.1 of the collective agreement frequently and for long periods to discharge dispatcherís assignments. Indeed, the grievor may face disciplinary action at the employerís instance should he not be available to accept train dispatcher calls. The procedure governing the assignments of dispatcherís duties to Relief Dispatchers is provided under Article 21.4 of the collective agreement :

21.4 A Relief Dispatcher will only be entitled to relief work on the Chief Dispatcherís Territory on which he is assigned as a Relief Dispatcher and must be called for relief work in the order of his seniority as a Dispatcher except that vacancies of less than three (3) working days may be filled by the senior available Relief

 

 

 

Dispatcher whose headquarters is at the location of the vacancy. Should there be none, preference will be given to the senior available Relief Dispatcher whose headquarters is within fifty (50) miles from the location of the vacancy. Relief Dispatchers will suffer no loss of regular wages due to moving from one assignment to another calculated on the basis of two pay periods.

The relevant facts that precipitated this dispute are as follows : Mr. Bédard was engaged in a relief train dispatcherís assignment between April 3 and April 17, 1984. Chief Train Dispatcher L.A. Meagher advised the grievor on April 12, 1984 that upon the completion of his relief train dispatcher assignment he was to return to his regular Operatorís position. Accordingly, on April 17, 1984, the grievor completed the relief dispatcherís assignment and, as he was required, protected the rest days of April 18 and 19, 1984, on the Swing 3 Dispatcher Assignment. The Good Friday Holiday fell on April 20, 1984. As is the practice at the Belleville station the Operatorís duties were "blanked out" on that day. In short, the grievor performed neither his regular Operatorís assignment nor was he "called in" to perform a relief train dispatcher assignment on the holiday. The relevant provision that governed the exercise of the grievorís seniority upon his release (on April 17, 1984) from his dispatcherís assignment in the particular circumstances of this case, is Article 7.37(ii) of the collective agreement.

7.37 A relief Dispatcher when released from temporary or relief work as a Train Dispatcher will exercise his seniority in the following manner :

(ii) If released on completion of work week, he must, after protecting the rest days, displace a junior Relief Train Dispatcher working in the same office ; there being none he will after completing the rest days, return to his regular assignment.

On April 19, 1984, the grievor was advised at home by telephone that his services as a Relief Train Dispatcher would be required on Saturday, April 21, 1984. The grievor, as requested, performed train dispatcherís duties on that day and was paid accordingly. The grievor held no work assignment on the Good Friday Holiday. The employer paid the grievor for the General Holiday at the Operatorís rate of pay. The difference between the Operatorís rate and the Train Dispatcherís rate for the day in question amounted to ten dollars ($10.00).

There is no question that pursuant to Article 15.06(b) the grievor satisfied each of the prerequisites for payment for the General Holiday in accordance with the dispatcherís rate save for the employerís challenge that Mr. Bédard was

 

 

neither an unassigned nor spare employee on April 20, 1984. Rather, it was argued that on that day the grievor held his regular operatorís assignment and was properly paid for the holiday in accordance with that rate. That is to say, the employer claimed that the grievor was paid the appropriate rate as provided under Article 15.6(a) of the collective agreement.

Simply put, the employerís argument rests on the notion that the grievor did not hold a relief dispatcherís assignment on the General Holiday thereby warranting payment at the applicable dispatcherís rate. Rather, as of the General Holiday, because the grievor was foreclosed from displacing a less senior relief employee holding a dispatcherís assignment pursuant to Article 7.37(ii) and because he was not called in to relieve a dispatcherís assignment pursuant to Article 21.4 of the collective agreement he could not legitimately be paid at that rate. Accordingly, the grievor by operation of the collective agreement held the status of his regular operatorís assignment and was paid the required rate pursuant to Article 15.06(a).

The trade union insisted that the grievor held the status of an "unassigned employee" who provided relief dispatcherís insurance on the General Holiday. Indeed, it was argued that should I confer any different interpretation to the grievorís status other than the conclusion that Mr. Bédard was "an unassigned employee" I would be giving that term, having regard to the purpose served by Article 15.06(b), a redundant and superfluous meaning. Moreover, it was suggested that on the General Holiday Mr. Bédard held the dual status of both an assigned and unassigned employee. On the one hand, it was conceded that his regular assignment was that of an Operator. On the other hand, he was an unassigned Relief Train Dispatcher who was required to be on call at all times to accept such assignments. Accordingly, because the grievor clearly held the status of an unassigned relief dispatcher on April 20, 1984, he should have been paid in accordance with the train dispatcherís rate.

Moreover, indicative of the grievorís status as an unassigned relief dispatcher was the employerís call on April 19, 1984 requiring the grievorís services as a train dispatcher on April 21, 1984. Accordingly, because the grievorís last shift worked on April 17, 1984 was prior to the General Holiday and because he was an unassigned relief dispatcher on that day, he should have been paid the dispatcherís rate in accordance with Article 15.06(b) of the collective agreement.

In my view much of the difficulty in resolving this dispute pertains to the partiesí use of the term "assignment" in Article 15.06(a) and (b) of the collective agreement. For example, the trade unionís written brief emphasized the notion

 

 

that because the grievor did not work on the General Holiday he cannot be considered to have held "any" assignment that day let alone the operatorís assignment. As a result, the trade union submits that the argument advanced by the employer that the grievor held his regular operatorís assignment on the General Holiday should be considered spurious and without merit.

I do not quarrel with the notion submitted by the trade union that the grievor did not hold a particular "work" assignment on April 20, 1984. He was home during the holiday. But, the collective agreement does not intend by the use of the word "assignment" to mean the actual performance of work of a particular position. Rather, the term "assignment" is inserted in Article 15.06(a) and (b) to mean "position". In this sense, Mr. Bédard, at all material times, held the regular position of an operator. For example, on his rest day although the grievor does not work a specific Operatorís assignment he still holds the "regular" Operatorís position. In my view his holding of a regular operatorís position represented the grievorís job security when no relief dispatcherís assignment was available to him even though his status was that of the most senior relief dispatcher. Unlike an unassigned or spare employee, when no dispatcherís work is available the grievor would always have a regular position to go to. And, irrespective of a General Holiday, he would then be paid in accordance with his regular operatorís position so long as there was work to be performed at his regular Operatorís assignment. Accordingly, when the grievor completed his dispatcherís assignment on April 17, 1984 and was precluded, by operation of Article 7.37(ii), from displacing a less senior relief employee performing dispatcherís duties, he thereby was assured employment in his operatorís position. And once returned to his regular Operatorís position the grievor would be paid accordingly. Neither an unassigned nor a spare employee enjoyed like advantages under the collective agreement. As a result, I cannot conclude, as the trade union urged me to, that Mr. Bédard holds the status of "an unassigned employee".

The notion that the term "assignment", when used in the context of Article 15.06(a) and (b) of the collective agreement, means "position" is expressed by Arbitrator Weatherill in CROA Case #790 where he states in part the following :

Under this article the grievor was required to protect the rest days which occurred on the completion of the work week. That he did. It was then open to him to displace a junior relief dispatcher.

The grievor was given a list of positions available to him, that is, a list of positions held by junior relief dispatchers. This list, perhaps unfortunately did not describe the assignments in any detail or mention the rest days.

 

 

 

From the list, the grievor selected the "Swing 2" position, said by the Union to be a superior position. The grievor does not appear to have made any enquiry as to the position or the rest days involved. He made a choice, based on whatever criteria may have seemed to him to be appropriate.

The Union argued that the list of positions given to the grievor was improper, because "It cannot be stated that a position is available unless such position works on that date". Such a view would drastically limit an employee in his choice of positions. If that view were accepted, then in this case there would have been only one position "available" to the grievor, namely position YB3, whose rest days happened to be Saturday and Sunday. If there had not happened to be a position with those rest days held by a junior employee, then -- if the Unionís argument were corrrect -- the grievor would have been entirely out of luck, even though there might be junior employees holding positions with other rest days.

In my view, that argument is quite unsound. Article 6.38(ii) allows a dispatcher released from temporary work to "displace a junior Relief Train Dispatcher working in the same office". Pursuant to that provision an employee in the grievorís position is quite properly given a list of such junior employees. He may then displace one of them, and may make his choice ; apparently, as he sees fit. It might be, for example, that someone else in the grievorís position would be quite pleased to have four consecutive rest days : the Unionís position would deprive him of that choice. (emphasis added)

As a result because the grievorís regular assignment at the material time of the Good Friday Holiday was the "operatorís" position, I cannot hold he was improperly paid the appropriate rate for that day. As hitherto explained the grievor holds only the one regular assignment and that is the operatorís position. And merely because he is also a relief dispatcher under Article 21.4 of the collective agreement, it does not follow from that situation that he holds a second regular assignment. Quite clearly, when not assigned to perform relief dispatcherís work he has no other regular assignment. He simply retains the status of holding his regular operatorís assignment. Moreover, so long as that remains the grievorís employment situation the employer is only obliged to pay him, whether for a regular work day or a General Holiday, the operatorís rate of pay.

The trade union complained, however, that if the employer should succeed in this case it would be permitted to arrange the work assignments of its relief dispatchers in such a manner so as to deprive them of the dispatcherís rate for a

 

 

General Holiday. This strategy would be sanctioned so as to deprive employees, such as Mr. Bédard, with the preferred rate of pay for a General Holiday when a vast majority of their working hours are involved in discharging Relief Dispatcherís duties.

In responding to that particular submission, I simply cannot agree that the employer is couched with the discretion under the collective agreement that the trade union suggests. The grievorís protection under the collective agreement with respect to the preservation of Relief Dispatcherís assignments (and the concomitant pay rate) in his seniority. As the most senior relief dispatcher at Belleville, the employer was obliged to call upon Mr. Bédardís services in the event he is needed for a dispatcherís assignment pursuant to Article 21.4 of the collective agreement. Moreover, upon the completion of a relief dispatcherís assignment the grievor is entitled pursuant to Article 7.37(ii) of the collective agreement to displace ("bump") a less senior relief employee holding another relief dispatcherís assignment. In other words, the employer would be duty bound pursuant to those provisions to confer upon the grievor the benefits of his cumulative seniority as a relief dispatcher provided the companyís manpower needs required those services. Quite clearly, the employer would be precluded from nefariously organizing the work schedules of its employees so as to cheat an employee of his seniority rights under the collective agreement.

In the final analysis the grievorís entitlement to a particular rate of pay on the General Good Friday Holiday was dictated by the employerís operational and manpower requirements on that day. Despite the grievorís status as the most senior relief dispatcher at Belleville the employer simply did not require his services as a dispatcher on that day. And given the employerís minimal service requirements, the protection afforded the grievor with respect to his status as the most senior relief dispatcher was of no avail to him. And because the grievorís status reverted on that day to that of his regular position, i.e. the operatorís assignment, he was properly paid for the General Holiday in accordance with Article 15.06(a) of the collective agreement. Or, from another perspective, the grievor was never an "unassigned employee" that rendered his employment situation relevant to the rate provided for a General Holiday under Article 15.06(b) of the collective agreement.

Accordingly, the grievorís grievance must be denied.

Dated this 24th day of June 1985.

________________________ David H. Kates