AD HOC 303: GENERAL HOLIDAY PAY

AWARD

The parties agreed that this Board of Arbitration is properly constituted with the jurisdiction to hear and determine the matters in dispute.

The Arbitration concerns a grievance brought by the Union on behalf of four grievors each of whom had their reassigned General Holiday (which was their first work day subsequent to a General Holiday which occurred on one of their rest days) assigned, by the Employer, as a day off and in each case the Employer then filled that assignment with an extra or unassigned employee (spare).

The Union does not dispute the Employer’s right to assign the grievors the day off, if the Employer makes the operational decision that the grievors are not required. However, the Union claims that it is in contravention of the Collective Agreement to assign spares to cover the grievor’s assignments.

The Employer asserts that no violation of the Collective Agreement has occurred and the Railway is free to cover reassigned General Holidays, in the manner grieved.

The dispute first surfaced as described in a November 12, 1991 letter from Mr. Gatzka of the Union, to the Manager of Train Traffic Control Mr. M. G. Brown. The following excerpt from the letter describes the dispute:

This grievance arises because of the Railway’s decision to work a Relief Train Dispatcher on an assignment while holding the regular employee off due to a General Holiday (Remembrance Day).

The Railway (Mr. D. Roy) advised Mrs. Burgers on Sunday Nov. 10, 1991 that she would not be required to work on her first day back after the General Holiday, Tuesday Nov. 12, 1991 and that the Railway would be using Relief Train Dispatcher, D. Durward to cover her assignment on Tuesday Nov 12, 1991.

The Union hereby submits a claim on behalf of Mrs. L. Burgers for eight hours and fifteen minutes pay at one and one-half times the regular rate of pay for the shift of Nov. 12, 1991 because the Railway has violated the collective agreement (Article 14, 9 and all other applicable Articles).

All other grievors grieve identical situations which occurred on subsequent General Holidays. All grievors received their reassigned General Holiday day off at straight time rates of pay.

The question before the Board is: Does the Employer have the right to assign a spare to work the assignment of another employee who has been assigned the day off as the result of such day being a reassigned General Holiday?

Union witness and grievor Pat Mercer testified to the particular circumstances of his grievance. He also testified that, in his twenty-one (21) years with the Railway he could not recall the Employer ever using spares in the grieved manner. In cross-examination Mr. Mercer conceded that he could not speak with certainty, with respect to the grieved matter, outside of his personal experience.

Mr. Mercer was the only witness.

III

Mr. Gatzka’s argument was one which, in essence, asserts that the language says what it means. That Article 9.3 precludes the Railway from using spares to deny assigned employees work on their regularly assigned work days whether that work day is a General Holiday (or reassigned General Holiday) or not. That 9.3 restricts the use of spares to “Unassigned Days” and then only if such spares will not otherwise receive forty (40) hours work that week.

Article 9.3 is titled “Work on Unassigned Days” and reads as follows:

Where work is required by the Railway to be performed on a day which is not part of any assignment, it may be performed by any available extra or unassigned employee who will otherwise not have forty (40) hours of work that week. In all other cases, by the regular employee.

Counsel for the Union argues that spares are for unassigned work only.

Mr. Gatzka, in support of the Union argument, also pointed to provisions of the Collective Agreement which outline the normal process of bidding, filling temporary assignments, cancellation of assignments and seniority provisions which he asserts show that the construction of the Collective Agreement establishes a system of work assignments by which the Employer is barred from the unilateral action of giving one employee’s assignment to another employee.

Mr. Gatzka argued the Railway has access to provisions of the Collective Agreement which allow management scheduling flexibilities, however, spares working regular employees assignments is not one of those flexibilities.

Mr. Gatzka asserts that Article 14 supports his 9.3 argument in that 14.3 clearly contemplates that the assigned employee work the General Holiday not the spare.

Mr. Leche contends that the Union’s interpretation of Article 9.3 would produce an absurd Labour Relations result as the Union’s reading of “in all other cases” would preclude the use of spare employees in the replacement of absent regular employees in circumstances such as illness, bereavement leave, annual vacation, Union business and various other leaves.

Counsel for the Employer suggests that the Railway’s opinion of the meaning of “in all other cases” is the more plausible meaning. He asserts that the provision means that spare employees, who do not otherwise have forty (40) hours work in the week, are to be allocated unassigned shift work prior to regular employees at overtime rates. Regular employees have first rights to unassigned shifts at overtime rates prior to spares who have forty (40) or more hours in the week.

Mr. Leche reminds the Board that the grievors suffered no loss in pay as a result of the Railway’s application of the language. The Grievors received the day off with pay.

In a review of the evidence presented at the hearing, the Board must consider the provisions of the Collective Agreement and what was testified to and, of some importance, what was not testified to.

There is agreement between the parties on the factual matters. The Railway, on four occasions, gave four regular employees a (reassigned) General Holiday off and replaced each of them, for the day, with a spare employee who would otherwise have worked less than forty (40) hours in that week.

Mr. Mercer’s testimony, on it’s own, is not of significant help, however, in combination with the absence of any other testimony advanced by either party concerning the application of the Agreement provisions, his is the only testimony of practice before the Board.

For Mr. Mercer’s testimony to be given any weight, in this case, the Board must find some ambiguity in the language.

Such ambiguity is not found in Article 9.3.

I find the Employer’s interpretation of Article 9.3 to be the one most consistent with the words of the Clause. Article 9.3 simply delineates the system of prioritizing the order in which employees are allocated work on Unassigned Days. That order, quite clearly, is spare employees who would otherwise have less than forty (40) hours work that week followed by regular employees. Article 9.3 is not ambiguous and, therefore, the Mercer testimony can not be used to assist in it’s interpretation.

Having assisted in narrowing the interpretative task of the Board any further finding with respect to Article 9.3 is no longer germane to the narrow matter in dispute.

The pertinent provisions with respect to the narrow dispute are found in Article 14 and, in a peripheral sense, the bidding and seniority provisions.

Both parties have assisted the Board in painting a picture of the work place with regard to the procedures used in bidding assignments, rest days, temporary vacancies (“mark ups”), etc.

From the Collective Agreement provisions associated with those procedures the Board is able to conclude that, except for spares, virtually all other bargaining unit employees have specific assignments as a result of their permanent bid or “mark up”.

The Board can also conclude that spares are used in the absence of regular employees to cover short term (less than five (5) days) absences which arise as a result of illness, leave of absence, Union business, etc.

The disputed use of spares is distinct from other uses in that the disputed use is not simply to fill a vacancy arising from an absence which the Employer has no control over or an absence as a result of the Employer acceding to an individual or Union request but instead it is the filling of a bid assignment in which the decision to replace the incumbent with a spare is made solely by the Employer.

The question before the Board is whether that particular use of spares is prohibited by the Collective Agreement or not?

The Board has concluded that Article 14 is, in the main, the article germane to this dispute. The following are excerpts from Article 14:

14.1 An employee who qualifies in accordance with Clause 14.3 of this Article 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. …

14.3 In order to qualify for pay for any one of the holidays specified in 14.1 of this Article, an employee:

…

(b) Must be available for duty on such holiday if it occurs on one of his work days excluding vacation days. When an employee is required to work on such General Holiday, he shall be given an advance notice of four (4) calendar days, except for unforeseen exigencies of the service, in which case he will be notified not later than prior to the completion of his shift or tour of duty immediately preceding such holiday that his service will be required. …

The preceding provisions mandate that if the General Holiday falls on an employees rest day that such holiday will be moved to the employees first working day back. In order to qualify for General Holiday pay the employee must be available for work.

In addition, the preceding language as well as a number of other Article 14 provisions clearly state that an employee may be required to work the General Holiday. The language is unambiguous in it’s conferring to the Railway the right to require that the employee work the Holiday. The language, with equal clarity, confers on the Railway the right to not require that the employee work the Holiday. In both cases the employee is the regular assigned employee.

In interpretation matters it is the Union who has the onus of proof. This case is no exception. The Union must provide evidence to support it’s contention that the Employer’s actions have contravened provision(s) of the Collective Agreement.

In arbitration discharge of the burden of proof is commonly based on the civil standard which one arbitrator described in this way: If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal it is not.

In the instant case the Union’s argument had several planks. The Board, earlier in this finding, rejected the Union’s position on Article 9.3. What remains of the Union case is the assertion that the bidding and seniority Collective Agreement provisions must lead one to conclude that at the Railway work is allocated on the basis of work assignments and the assertion that Article 14 in concert with the bidding and seniority provisions mandate that if the Employer requires work on a General Holiday (including reassigned General Holiday) that such work belongs to the regular employee who bid it.

The Board finds that the Union has succeeded in showing that work is allocated by work assignments except for “spare” employees.

Mr. Leche submits that British Columbia Railway Company and Canadian Union of Transportation Employees, Local No. 6 May 19, 1987 H. Allan Hope, Q.C. may assist this Board in it’s deliberations. The 1987 case dealt with the Employer’s temporary transfer of two section gangs for a four day period.

Mr. Hope dismissed the grievance as the Union had failed in it’s onus to prove a breach of the Agreement.

This Board has no difficulty with Mr. Hope’s decision. We do note that the Hope decision is with respect to a different Collective Agreement, that the dispute was about a different matter and that the provisions relied on were different.

The similarity to the instant case is confined to the Union having the burden of proof which has been commented on earlier in this award.

The Union has successfully discharged it’s burden of proof.

The Board finds that it is more probable than not that the parties intended that, when work is required on General Holidays or reassigned General Holidays, the regular assigned employee work the General Holiday or the reassigned General Holiday.

As stated earlier the Board rejects the Union’s Article 9.33 argument, however, accepts the Union’s Collective Agreement construction argument and it’s interpretation of Article 14.

The Collective Agreement provisions lead to the conclusion that, for regular employees, work is based on assignments which are bid either as permanent assignments or “mark up” assignments.

The “mark up” provisions and assignment cancellation provisions are examples of specific Collective Agreement flexibilities which are operational tools for the use of the Railway at the sole discretion of management.

In addition, management has the sole discretion, via Article 14, whether to require an assigned employee to work on a General Holiday (or reassigned General Holiday) or to require that an assigned employee not work the General Holiday (or reassigned General Holiday).

Article 14 also requires that an assigned employee be available to work such Holiday and, if required, to work same.

From the plain meaning of the words the Board concludes that the parties intended to ensure that there would be adequate coverage for the Railway’s operation on General Holidays and also recognized that on some General Holidays the operation may not require the same level of coverage as may otherwise be the case. Those intentions are clearly spelled out in the wording. No such written intentions exists with respect to the grieved application.

Mr. Mercer provided the only testimony concerning practice and while not conclusive on it’s own, his testimony was consistent with the language of Article 14. It is noteworthy that the Employer advanced no evidence concerning practice beyond cross examination of Mr. Mercer.

A review of the language of Article 14, the Mercer testimony, the bidding procedures, the Railway’s flexibilities and in particular the requirement of the regular assigned employee to “be available” in the event the he/she is required to work the General Holiday does, on the balance of probabilities, lead to the conclusion that it is the regular assigned employee who works the General Holiday on these occasions when the Railway deems it to be required.

To put it another way, it is unlikely that the parties would include such specific provisions to ensure that the regular assigned employee be available to work General Holidays if it were their mutual intention to fill the requirement with another employee.

The Board is satisfied that the balance of probabilities onus has been discharged, in the main, based on a reasoned interpretation of the clear wording of Article 14. Other interpretations of Article 14 are simply not reasonably compatible with the wording of the Article.

In the result, the grievance is allowed. The grievors are to be paid the applicable overtime rates for the Holiday.

All of which is so ordered.

DATED AT Vancouver, B. C. this 16th Day of July 1992.

(signed) RONALD S. KERAS

ARBITRATOR