AD HOC

AWARD

This grievance claims that the Company failed to properly pay overtime rates to Signals & Communications Gang Helper Trevor Martin for October 29, 2001. Although the initial grievance claimed payment for the date of October 21, 2001 the Company has since conceded that the grievor is entitled to overtime for that day, and no outstanding issue remains in that regard, save that the Arbitrator retains jurisdiction in the event of any dispute concerning the calculation of overtime owed for October 21st.

With respect to October 29, 2001 the Union maintains that the grievor was not properly paid for the overtime hours attributable to that day. The Company says that he was, and denies that there was any violation of the collective agreement. The facts relating to the grievance are generally related in the Union’s ex parte statement of issue, filed at the hearing, which reads as follows:

UNION’S EX PARTE STATEMENT OF ISSUE:

The grievor was assigned to pick up and transport a S&C 3-ton truck and tool trailer on October 21, 2001 and to drive this Company vehicle from Winnipeg to Thunder Bay on the same date (which was his normal rest day). The grievor was also assigned to perform a pre-trip inspection, border inspection and ensure that the material arrived safely. The grievor was also assigned to perform certain tasks en route (i.e. delivery of certain equipment on behalf of the Company). This trip took the grievor approximately 10.5 hours, for which he was paid his normal hourly wage.

After arrival at Thunder Bay, the grievor worked his full scheduled work cycle commencing October 22 (8 days on, 6 days off). The grievor was assigned to drive the Company truck/trailer back to Winnipeg on October 29, 2001 where he cleaned and returned the vehicle to the Company’s premises. This return trip took 11 hours.

The grievor was paid straight time for his working hours on October 21 and 29, respectively notwithstanding the fact that he worked in excess of 80 regular working hours during his entire period (including his scheduled work cycle). The Company maintains that the grievor was properly paid only at straight time rates since he worked on a rest day and on a regular working day in his cycle in connection with his driving the Company truck and associated duties.

The Union submits that the grievor should be compensated at overtime rates for all hours outside his normal scheduled hours (beyond the 80 working hours) and for all hours worked on his rest day. The Union relies upon, inter alia, articles 2.11, 3.2, 4.5 and 6.1 of the collective agreement and the Canada Labour Code.

The Union requests a declaration that the Company violated the provisions of the collective agreement as alleged by the Union, a cease and desist order, an order that the Company comply with the provisions of the collective agreement as argued by the Union in this case, and payment to the grievor for all hours worked on October 21, 2001 and all other hours in excess of his regular working cycle at overtime rates.

As noted above, there is no dispute with respect to the grievor’s entitlement to the payment of overtime hours for all hours worked on his scheduled rest day of October 21st. The sole issue to be resolved, therefore, is the entitlement of the grievor to overtime hours for October 29, 2001. With respect to that claim, however, the Company raises an issue as to timeliness and the resulting arbitrability of the claim. I deem it appropriate to deal with that objection before considering whether the merits should be addressed.

The record before the Arbitrator confirms that the first notice which the Company had of any objection by Mr. Martin to the way he was paid for the nine day period between October 21 and October 29, inclusive, was the step 1 grievance dated December 3, 2001, filed on his behalf. On the face of that grievance the only claim made by Mr. Martin was for overtime for the Winnipeg to Thunder Bay portion of the trip he undertook on October 21, 2001. There was at that time no mention of any claim for the improper payment of his time on October 29, 2001.

It is useful at this point to appreciate the nature of the system whereby the grievor was scheduled and paid, and the respective positions of the parties as regards the facts. At the material time Mr. Martin was working on an 8-day work rotation followed by six days off. It is common ground that on October 21st, 2001, the day he drove the vehicle from Winnipeg to Thunder Bay, making deliveries en route, was his rest day, and that the Company now acknowledges that he was entitled to overtime for the hours worked on that day. The Union maintains that from the commencement of work October 22 through the end of his working day on October 28 the grievor had worked 82.5 hours. Articles 2.11 and 2.12 of the collective agreement deal with the payment of overtime beyond the completion of an employee’s normal work cycle. They read as follows:

2.11 Employees in S&C crews in order to get home for weekends and the men in the crew being agreeable may, upon request to the S&C Foreman and with the approval of the S&C Supervisor, work in excess of eight hours per day at the pro rata rate. Forty hours worked will constitute one work week. Any time worked over forty hours in any one week shall be considered as overtime. Where weekly trips cannot be arranged due to the crew working a long distance from their homes and arrangements are made for the crew to go home the second week, any time worked after the first forty-hour week will be considered as another work week and no overtime will be allowed until another forty hours have been worked.

2.12 The Company will have the ability to designate 8/6 and 4/3 work cycles for S&C crews. Where the Company established a 4/3 or 8/6 cycle, overtime will not be paid until an employee exceeds 40 hours, or 80 hours respectively during the cycle. The 8/6 cycle will preferably start on a Tuesday or Wednesday and the 4/3 cycle will preferably start on Monday or Tuesday, and the General Chairman will be consulted prior to any changes.

Essentially, the Union claims that the grievor had worked 82.5 hours over the first seven days of his eight day work cycle, before undertaking any activity on the morning of October 29th. On that basis it maintains that all of the hours which he put in on the 29th should be paid at overtime rates.

There are two differing accounts of the hours worked by the grievor during the period in question before the Arbitrator. The Company’s printout of its computer display time sheet data records shows the hours worked by Mr. Martin from October 22 through October 29 inclusive as totalling eighty-nine hours. On that basis it maintains that he was properly paid for nine hours at overtime rates, being his hours in excess of his normal eighty hour rotation. The grievor’s own private notes indicate that he worked 93.5 hours during the eight day rotation from October 22 through October 29, inclusive. The 10.5 hours which he worked on October 21, which bring his total hours to 104, are not here in issue. In the result, based on the parties’ own data, the difference between them in the case at hand is a matter of 4.5 hours payable at overtime rates.

By the grievor’s account he conveyed his calculation of hours to his foreman who, in turn, would have been responsible for communicating his working time to the Company’s payroll authorities, presumably through the SAP system. As noted above, it would now appear that there is a clear distinction between the figures recorded in the Company’s time sheet data base and the grievor’s own original notes.

The Company’s argument with respect to timeliness is that the discrepancy between the figures, and the delay incurred in bringing forward the grievor’s claim concerning his work on October 29, 2001, has effectively resulted in prejudice to the Company. Its representative stresses that while the Company received the original grievance, which addressed only the issue of October 21, 2001, in a timely manner on December 3, 2001, it was not until March 8, 2002, when the step 2 grievance letter was submitted by the Union, that any issue was raised with respect to the overtime rate of pay owing to the grievor for October 29, 2001.

Article 12 of the collective agreement governs, among other things, the time within which a grievance is to be processed. Article 12.7 provides, in that regard, as follows:

12.7 A grievance concerning the interpretation, or alleged violation of this agreement or an appeal by an employee who believes he has been unjustly dealt with shall be handled in the following manner:

STEP I

The employee, Local Representative or his duly authorized representative shall present the grievance in writing to his designated Manager within thirty-five (35) calendar days from the date of the cause of the grievance.

Designated Managers:

– Employees in S&C Maintenance and Construction

Manager, S&C Services – Calgary (BC & Alberta Services Areas)

– Winnipeg (Sask. & Manitoba Services Areas)

– Thunder Bay (N. Ont. Service Area)

–Agincourt (Eastern Network)

– Employees in S&C in the Network Management Centre

Manager, S&C Operations – Calgary

Note (i): The submission of a grievance does not preclude the employee and the S&C Supervisor from meeting to attempt to rectify the situation.

(ii) All grievances related to seniority lists will be coordinated through the office of the Manager, S&C Operations.

STEP II

Within thirty-five (35) calendar days of receiving the decision under Step I, the System General Chairman or his authorized representative may appeal the decision in writing to the designated District Manager.

– Employees in S&C Maintenance and Construction

General Manager – Calgary (BC & Alberta Services Areas)

Operation-Engineering – Calgary (Sask. & Manitoba Services Areas)

– Calgary (N. Ont. Service Area & Eastern Network)

– Employees in S&C in the Network Management Centre

General Manager, S&C – Calgary

In addition, the parties have addressed the issue of the consequences in the event that time limits are not met. In that regard articles 12.10 and 12.11 provide as follows:

12.10 The time limits referred to in Steps I and II and article 12.9 may be extended by mutual agreement between the parties referred to in each instance,

12.11 When a grievance based on a claim for unpaid wages is not progressed by the Union within the prescribed time limits, it shall be considered as dropped. When an appropriate officer of the Company fails to render a decision with respect to such a claim for unpaid wages within the prescribed time limits, the claim will be paid. The application of this rule shall not constitute an interpretation of the collective agreement.

As can be seen from the foregoing, the parties have specifically addressed their minds to the issue of the timeliness of claims for unpaid wages. That is the nature of the claim which is at issue in this case. They have agreed that when a claim is not progressed by the Union within the time limits provided in the collective agreement it is to be considered “as dropped”. The rationale for that rule is understandable. The keeping of time records is obviously a matter of some administrative burden to any employer, as well as to employees themselves. That may be even more so in the case of a large company with nation-wide operations. It is therefore necessary to the orderly handling of an employer’s payroll that any objection on the part of an employee that he or she has been underpaid in relation to hours worked must be raised in clear terms within a reasonable time of the alleged erroneous payment and the actual events surrounding the time worked. It obviously becomes unworkable if claims can be made outside of a reasonable period during which employees, supervisors or payroll staff can be expected to have retained reliable records of an employee’s hours worked. Under the instant collective agreement the parties have deemed thirty-five calendar days to be the reasonable limit of time for an employee to object that he or she has been underpaid for time worked. Failure of the time limits results in the grievance being considered closed, by the parties’ own agreement.

In the case at hand the Company had no notice of any complaint on the part of Mr. Martin with respect to his payment for October 29, 2001 until more than four months after the event, on March 8, 2002. The unrebutted representations of the Company’s representatives is to the effect that it was then without any adequate records to deal with or verify the merits of the claim made by Mr. Martin with respect to October 29th after such an extensive delay. Moreover, it does not appear disputed that the Company was given the impression, as of the step 1 grievance filed on December 3, 2001, that the only date at issue was October 21, 2001.

Obviously, on its face, the collective agreement would sustain the position of the Company that the instant claim with respect to the grievor’s payment for October 29, 2001 is not arbitrable. Under the provisions of article 12.11 of the collective agreement that claim must be considered as dropped. In support of the grievance, however, the Union argues that the Arbitrator should apply his discretion granted by the Canada Labour Code to extend the time limits under the collective agreement.

Section 60(1.1) of the Canada Labour Code, Part I provides as follows:

(1.1) Power to extend time – The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.

In the case at hand the arbitrator would appear to have the discretion to extend the time limits for the filing of the grievance as it relates to the wage claim concerning October 29, 2001. In all of the circumstances, however, I am compelled to accept the suggestion of the Company’s representatives that to do so would be unduly prejudicial. This is clearly a situation in which the keeping of records and the recall of individuals, after the expiry of some four months, effectively left the Company with little or no ability to deal with the claim advanced at a late date by Mr. Martin. In that regard the unchallenged representation of the employer’s representatives is that the Company simply did not have anything beyond the computer records in its own possession when first mention of the claim October 29, 2001 was made in early March of 2002. The stale dating of evidence, or the entire loss of evidence by the passage of time, is plainly a form of prejudice in the legal sense, and is the kind of concern specifically contemplated by the language of section 60(1.1) of the Canada Labour Code, Part I. I would therefore not, in these circumstances, exercise my discretion to extend the time limits.

The Arbitrator considers that it is essential to examine the merits of the claim made alternatively under the provisions of the Canada Labour Code, notwithstanding the timeliness provisions of the collective agreement governing wage claims. It is trite to say that the parties cannot contract out of the provisions of a statute such as the Code, and that in the event of any conflict the provisions of the Code must prevail.

The Arbitrator is not persuaded by the alternative argument of the Union with respect to the entitlement of the grievor to the wages claimed based on the overtime provisions of the Canada Labour Code, Part III. It is common ground that employees are entitled to overtime, on a statutory basis, quite apart from their collective agreement, as reflected in section 174 of the Code which reads as follows:

174. [32] Overtime pay – When an employee is required or permitted to work in excess of the standard hours of work, the employee shall, subject to any regulations made pursuant to section 175, be paid for the overtime at a rate of wages not less than one and one-half times his regular rate of wages.

There can be little doubt that the Arbitrator has jurisdiction to give relief where the evidence establishes a violation of an employee’s entitlement to overtime payments owing under section 174 of the Code. In that regard section 60(1) of the Canada Labour Code. Part I provides, in part, as follows:

60.[157](1) Powers of arbitrator, etc. – an arbitrator or arbitration board has

…

(a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;

In the application of the foregoing provisions the Arbitrator finds himself with some difficulty. The best records produced by the Company indicate that the grievor worked a total of 89 hours between October 22 and 29, inclusively, in the year 2001. The handwritten notes produced by the grievor would indicate that in fact the hours worked totalled 93.5 hours for that period. It would not appear disputed that the Company’s records would be derived, in part if not in whole, from information provided to it at the time by the grievor’s foreman. As noted above, all records in respect of the basis of that information were no longer available to the Company at the time the grievance was filed and plainly were not available at the time of the hearing of this matter. In the result, the adjudicator is faced with two conflicting figures as to the time worked by the grievor on the dates in question. At best those figures can be said to constitute equally balanced evidence. Bearing in mind that the Union has the onus proof, I consider that I have little alternative but to resolve the evidentiary balance against the Union. I am satisfied that it has not established, on the balance of probabilities, that Mr. Martin did work more than the 89 hours recorded for him by the Company in the period between October 22 and 29, 2001. Nor has it been proven, on the balance of probabilities, that the Company’s records are in fact incorrect or less reliable that the grievor’s.

For the foregoing reasons the grievance must be dismissed.

Dated at Toronto, this 17th day of March 2003

(original signed by) MICHEL G. PICHER

ARBITRATOR

AH 519