AH – 304
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BRITISH COLUMBIA RAILWAY COMPANY
(the "Company")
AND
TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION
(the "Union")
IN THE MATTER OF THE GRIEVANCE OF E. Nicols
SOLE ARBITRATOR: Ronald S. Keras
There appeared on behalf of the Company:
R. E. Leche
And on behalf of the Union:
R. Derouin
A hearing in this matter was held Vancouver, B.C. on July 20, 1992.
AWARD
I
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 the grievor Mr. Nicols. The Union claims that the grievor was not given proper notice, as required by Article 14 of the Collective Agreement, of the Employer’s requirement that he work on the Thanksgiving General Holiday, October 16, 1991.
The Employer asserts that no violation of the Collective Agreement has occurred and that the Railway notified the grievor of the needs of the service in the long established and customary manner and that in any event the grievor was aware of his assignment as he called in sick for the day.
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. …
II
The facts are not in dispute. The Grievor was required to work on October 16, 1991 and phoned in sick for the day.
Manager and Railway witness Mr. Mel Brown testified with respect to the long standing method of advising employees of work requirements on General Holidays. Mr. Brown testified that there is a book located in the crew dispatch office to which all employees have access. Mr. Brown advised that the practice is for management to decide General Holiday requirements the week preceding the Holiday then on Thursday or Friday of the week preceding the Holiday management puts the requirements in writing and places those requirements in the book. Mr. Brown said that this was the Railway’s sole method of advising dispatchers of work requirements.
No other witnesses were called.
III
The Union argued that for dispatchers who have permanent bids or temporary bids (mark ups) there would be no reason to look in the book as the book deals with non bid assignments and, therefore, is of interest to spare employees only.
Mr. Derouin argued that whether the grievor knew of the assignment or not does not release the Employer from the proper notification requirements of Article 14. Counsel for the Union asserts that information placed in the book does not constitute proper notice and that Mr. Nicols should be specifically notified and was not.
Mr. Leche argued that the evidence proves that the accepted method of notifying employees of General Holiday requirements were used in this case. Further proof is the action of the grievor in phoning in sick on the Thanksgiving day as he knew he was required. If he were not required, or if he did not know he was required, there would be no reason for him to phone in.
In this case the onus of proof is the Union’s. That onus is based on the civil burden and in this case would require clear evidence in support of the Union’s contention in order to discharge that onus.
In Canadian National Railway Company and Canadian Brotherhood of Railway, Transport and General Workers October 15, 1975 arbitrator J. F. Weatherill, with respect to a similar incident and with respect to virtually identical language in dispute, said the following:
The issue in this case is whether the grievors received proper notice that they were required to work. If they did have such notice, then, by failing to report, they forfeited their holiday pay. If they did not have such notice, then they were entitled to pay for the holiday.
I agree with the general contention of the Union to the effect that there is an onus on the Company to advise each employee who is required to work, that it is necessary for him to report … There is nothing in Article 8, however, to support the view that each employee required to work must be given individual written notice to that effect …
From the material before me, it appears that at least some, if not all, of the grievors were advised, orally, that they would be required to work on the holiday. If such notice was given to them four days or more before the holiday, then it would be a proper notice under Article 8.3, even though not in writing. Any of the grievors who received such notice, but failed to report, have forfeited their holiday pay and their grievances are dismissed. In the case of any grievors who did not receive four days’ actual notice that they were required to work, their grievances are allowed. Where there is a question as to whether any employee in fact had actual timely notice, the onus is on the Company to establish that notice was given.
There is no question that the Weatherill decision is on point.
IV
Mr. Weatherill concluded that individual notice is required and that such notice may be oral.
In the instant case the uncontested evidence is that the Employer notifies the employees of General Holiday requirements through the posting of a notice in the book and has done so for many years. The Weatherill criterion would find such notice insufficient to satisfy the Article 14 provision.
However, this Board finds that the Union is estopped from relying on such interpretation in this case as they have allowed the book practice and in doing so have led the Railway to believe that such practice satisfied the notice provision.
In addition to the estoppel, from the evidence the Board is satisfied that the grievor was aware of the fact that he was required to work on October 16, 1991. The grievor was present at the hearing and the Union chose not to call him or any other witness with respect to the general practice or the specific notice in the grievor’s case.
For the onus to shift to the Employer to establish that proper notice was given, the Union must first provide a prima facie case of a violation of the Collective Agreement. As found earlier in this award the Union is estopped from succeeding in it’s contention that individual notice must be given.
There is no evidence before the Board that the grievor was not either verbally advised of the requirement nor is there evidence before us that he did not read the notice in the book in a timely manner. Without such evidence the Union fails in making a prima facie case and as a result fails to shift the onus to the employer.
In the result the grievance is dismissed.
Dated at Vancouver, B. C. this 20th Day of July 1992.
(signed) RONALD S. KERAS
ARBITRATOR