IN THE MATTER OF AN ARBITRATION HEARING
B E T W E E N :
(Hereinafter referred to as the "Company")
- a n d -
CANADIAN BROTHERHOOD OF RAILWAY, AIRLINE
AND STEAMSHIP CLERKS, FREIGHT HANDLERS,
EXPRESS AND STATION EMPLOYEES
(Hereinafter referred to as the "Union")
GRIEVANCES OF A.B. WEBSTER, J. PAYNE AND R. MCLEOD
(Hereinafter referred to as the "Grievors")
SOLE ARBITRATOR : R.H. McLaren
COUNSEL FOR THE COMPANY : R. Dunsmore
COUNSEL FOR THE UNION : H.F. Caley
A HEARING IN RELATION TO THIS MATTER WAS HELD AT TORONTO,
ONTARIO ON JANUARY 11TH, 1985.
A W A R D
Three Grievors, A.B. Webster, J. Payne and R. McLeod, alleged entitlement to overtime pay for one hour of work carried out immediately prior to commencement of their normal working hours.
The parties agree that the arbitrator had jurisdiction to hear the grievances and that they were properly before him. There were no preliminary objections on the day of the hearing. The parties proceeded by way of an agreed statement of facts and restricted themselves to putting arguments to the arbitrator.
On at least two different occasions there was work available in the employer’s facility. As a consequence a notice was posted by the Company indicating that those Employees who wished to come in to work one hour in advance of their shift could do so. The Grievors, Webster and Payne, choose to do so on September 21st, 1983 and Mr. McLeod did so on September 29th. The normal hours of work are 7:30 a.m. to 4:00 p.m. Each employee came in at 6:30 For personal reasons the two Grievors went home at 3:30 p.m. on September 21st. There is no issue as to the propriety of that action save to note that it was their own choice and not the action of the Employer that caused them to leave before 4 p.m. Mr. McLeod went home at 11:30 a.m. because of illness. The two Grievors were paid one half hour of overtime and Mr. McLeod was paid no overtime. They all claim the equivalent of one hour of overtime based upon Article 9.04 of the Collective Agreement.
The relevant provisions of the Collective Agreement read as follows :
HOURS OF SERVICE
8.1 Except as otherwise provided in Clauses 8.2, 10.5 and 10.6, eight (8) consecutive hours’ service, exclusive of meal period, shall constitute a day’s work. Where it has been the practice for employees to work less than eight (8) hours per day, that practice shall be continued unless changed on account of conditions beyond the control of the Company. Such employees may be required to work extra hours to take care of the requirements of the service but overtime shall not accrue until after eight (8) hours’ service exclusive of meal period has been performed in any one day.
8.2 In station service (not including Freight, Wharf Freight and Yard Offices, Freight Sheds, Stores), where work required in connection with train and ship service is intermittent, eight hours’ actual time on duty within a spread of twelve consecutive hours shall constitute a day’s work for which not less than eight hours shall be paid.
8.3 Employees filling positions under Clause 8.2 shall be paid overtime for all time actually on duty or held for duty in excess of eight hours from the time required to report for duty to the time of release within twelve consecutive hours computed continuously from the time first required to report until final release. Time shall be counted as continuous service in all cases where the interval of release from duty does not exceed one hour.
8.7 Hours of service shall be established at the various points as traffic and service conditions may require.
8.8 Hours of service shall not be changed without thirty-six hours notice, and every effort will be made to discuss any change first with the Local Representative.
8.9 The starting time of each position, except relief positions, shall as far as possible be the same on all days of the week.
8.10 Hourly rated assigned employees in Freight Sheds shall be paid for a minimum of three hours’ pay at straight-time rates for which three hours’ service may be required, and if held in excess of three hours they shall be paid for the actual time so held.
8.11 Employees under Clause 8.10, who are required to perform work during any period outside the initial three-hour period and, through no fault of their own, are released before a full day’s work is performed, shall be paid for not less than eight hours at straight-time rates.
9.1 Except as otherwise provided, time worked on proper authority on any day in excess of eight hours exclusive of meal period, shall be considered overtime and paid on the actual minute basis at the rate of time and one-half.
9.2 Work in excess of forty straight-time hours or five days in any work week shall be considered overtime and paid for at the rate of time and one-half, except where such work is performed by an employee due to moving from one assignment to another other than at the instance of the Company, or to or from an extra or laid-off list or where rest days are being accumulated under Article 11.
. . .
9.4 If an employee is called in advance of his regular starting time, he shall be paid for all time worked in advance of and continuous with his regular starting time at the rate of time and one-half on the minute basis with a minimum of one (1) hour at time and one-half.
9.5 Employees shall not be required to suspend work during regular hours to absorb overtime.
9.6 Except as otherwise provided in Clause 9.1, employees notified or called to perform work not continuous with, before or after, the regular work period shall be paid for a minimum of three hours at time and one-half and, if held on duty in excess of three hours, time and one-half shall be paid on the minute basis.
9.7 Employees regularly assigned to duty in connection with train service outside of regularly assigned hours of duty but within twelve hours from regularly assigned starting time shall be paid for
forty minutes at time and one-half for forty minutes’ work or less within the said twelve-hour limit ; if required beyond forty minutes or outside the twelve-hour limit in continuous service shall be paid at the rate of time and one-half on the minute basis for such additional continuous time.
. . .
9.10 Assignment of Overtime
(a) Work identifiable as belonging to a specific position.
Work which is required to be performed at overtime rates shall be asssigned, whenever practicable, to the occupant of that position.
(b) Work in a particular office, shed or work location which is not identifiable as belonging to a specific position due to there being two or more positions in the same job classification and performing the same work.
(1) Work which is required to be performed at overtime rates and which is brought about by an increase in work load or by an employee being absent from work and not replaced, shall first be assigned to the senior qualified employee in that job classification in such office, shed, work location and shift where such overtime is required who has signified a desire to work overtime pursuant to paragraph (3) of this Clause (b); however, if overtime work remains to be assigned, the junior available qualified employee in that job classification in such office, shed, work location and shift, will be required to work the overtime.
(2) Work which is rquired to be performed at overtime rates and which is brought about by an employee being absent and the Company requiring a replacement, shall first be assigned to the senior
qualified employee in that job classification in such office, shed or work location, where such overtime is required who has signified a desire to work overtime pursuant to paragraph (3) of this Clause (b); however, if overtime work remains to be assigned, the junior available qualified employee in that job classification in such office, shed or work location will be required to work the overtime.
(3) Employees who wish to work overtime shall so signify in writing and a list will be prepared with a copy to the Local Chairman. Except in extenuating circumstances, these employees will be required to work the overtime when so assigned. An employee whose name is on the list and who no longer wishes to work overtime may have his name removed from the list upon serving three days’ written notice. An employee whose name is not on the list and who wishes to work overtime shall have his name placed on the list upon serving two weeks’ written notice.
(4) Arrangements may be made to assign the overtime work on a different basis by mutual agreement.
NOTE: The provisions of Clauses (a) and (b) above shall apply to the extent they are consistent with the Canada Labour Code.
. . .
. . .
13.4 In order to qualify for pay for any one of the holidays specified in Clause 13.1, an employee:
(a) Must have been in the service of the Company and available for duty for at least 30 calendar days; this Clause 13.4(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 except that this does not apply in respect of an employee who is laid off or 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; a regularly assigned employee who is required to work on such general holiday shall be given an advance notice of four 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 the general holiday. (This Clause 13.4(c) does not apply to an employee who is required to work on the holiday).
. . .
13.9 An employee paid on an hourly, daily or weekly basis who is required to work on a general holiday shall be paid, in addition to the pay provided in Clauses 13.6 and 13.7 of this article, 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 to perform routine work to make up such minimum time.
The argument of the Union is that the specific provisions of Article 9.4 apply to these facts. It cites as cases that support its argument Canadian Railway Office of Arbitration, Case number 163, a decision of J. H. W. Weatherill dated July 8th, 1969 and Re Canadian Westinghouse Co. Ltd., 7 L.A.C. 102 (Fuller, 1956); Re Dominion Bridge Co. Ltd., 27 L.A.C. (2d) 399 (Adams, 1980) and Re Interchem Canada Ltd., 21 L.A.C. 46 (Weatherill, 1969)
It is the argument of the Company that there is a distinction in the Collective Agreement between "Notification" and "Called". It is the position of the Company that at best the facts suggest the employees were notified. Article 9.4 requires that they be called and is therefore inapplicable. The principle to be applied is found in 8.1 and 9.1 in which case there must be eight hours of work before overtime is appropriate. In support of its position the Company referred the arbitrator to Re County of Kent, 8 L.A.C. (3d) 188 (Swinton, 1982) and Re Campbell River and District General Hospital, 20 L.A.C. (2d) 425 (MacIntyre, 1978).
It is an agreed fact that the regular hours of work are from 7:30 a.m. to 4:00 p.m. These hours would be the "hours of service" referred to in Article 8.7. They have not been changed by Article 8.8 and 8.9 does not come into this analysis.
The Company by its posted notice was giving the employees an opportunity for extra work and therefore overtime without assigning it. The absence of an Assignment of Overtime means that the provisions of Article 9.10 do not apply.
The Union argues Article 9.4 governs. The Company argues it does not. Both counsels agree that Article 9.4 must be dealt with because the opening line of Article 9.1 indicates the general rule is a residual one after any specific provision such as Article 9.4, has been applied.
Overtime can arise before or after a regular shift or independent of it. To determine if work is before or after a regular work period depends on defining the period contemplated by Article 8.7. It is agreed that in this case that time frame is 7:30 a.m. to 4:00 p.m. To determine what constitutes a day for purposes of Article 9, the provisions of 8.1 and subsequent apply.
The rule of Article 9.1 indicates that overtime will be paid for time worked in excess of eight hours. Article 9.5 provides protection to the employees in this circumstance. For work which is to be independent of a regular work period, Article 9.2 and 9.6 govern. The provision which governs work done prior to the commencement of the regular work period is Article 9.4.
The Company argues that Article 9.4 does not apply because the Grievors were not "called in advance of their regular starting time". The dictionary definition submitted by the Company indicates the word "call" is defined as having a variety of meanings. Some would include and others would not include the facts here. In order to interprete properly the Collective Agreement, an
examination of other provisions is necessary to determine if the parties intended to restrict to some of its dictionary meanings the interpretation of the word "call". The alternative is that it is to have its full range of meanings.
The Company argues that there is a distinction in the Collective Agreement between notified and called. It suggests that the use of the latter requires a verbalized form of requiring an employee to be present or compelling him to do so.
Articles 8.1 and 13.4(b) use the phrases "required to report for duty or required to work" respectively. These phrases denote a degree of compulsion in that the employer obligates the employee to work. They do not in the arbitrator’s view assist in indicating the particular meaning to be put on the verb "call" in Article 9.4.
The Company argument focuses upon Article 9.6 and its use of the two verbs "notified or called". From that use it was argued that the use of the verb "called" was intended to exclude situations where employees were notified. The arbitrator does not find that the reference to the two words indicates that a particular interpretation ought to be placed upon the word "called" which would exclude the situation arising here from its application in Article 9.4.
There is no compulsion on an employee who was contacted by direct verbal communications to report early for work under the provisions of Article 9.4. The employee would be free to refuse the call in request. Perhaps in recognition of that fact the employer posted the notice so that the employees would voluntarily come in hoping that the number of employees who choose to report would not be excessive and would be sufficient to deal with the work which was available. All that the word "called" means in Article 9.4 is that there be a requirement that there be a communication to the employees and that it be in the form of an invitation to work in advance of the regular work day. Both of those requirements were fulfilled in this instance by the notice being posted on the board and the invitation being extended to anyone who wished to come in early and perform work. In those circumstances the employees were "called in advance of his regular starting time". Therefore, the provision of Article 9.4 does apply and each of the employees are entitled to the minimum guarantee of one hour’s work at time and one-half.
For all of the foregoing reasons the grievances are upheld. It is ordered that the employees receive the compensation owing to them as a result of the interpretation contained in this award. The arbitrator remains seized of the matter for the purposes of determining the compensation owing to the employees in the event that the parties are not able to agree as to the amount to be paid.
Dated at London, Ontario this 18th day of January, 1985.
R.H. McLaren, Sole Arbitrator