AD HOC 551
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION
GRIEVANCE OF G. McCRATE RELATING TO BOOKING REST
SOLE ARBITRATOR: J.F.W. Weatherill
APPEARING FOR THE COMPANY:
APPEARING FOR THE UNION:
A hearing in this matter was held in Toronto on March 18, 2004
The union’s ex parte statement of issue in this matter is as follows:
Between January 4th and February 7th 2003 GO Train Conductor W. McCrate exercised his right to book personal rest under the provisions of Article 51.11 of Agreement 4.16
As a result of booking rest the Company, effective February 11th, 2003, assessed Mr. McCrate 30 demerits for “Failure to meet work obligations while employed as Conductor in GO Commute Service between January 4 and February 7, 2003".
It was the Union’s position that Mr. McCrate should be exonerated from any wrongdoing for any of the following reasons:
(i) The discipline was void ab initio as the Company did not conduct a fair and impartial hearing,
(ii) The discipline was void ab initio as the Company violated Mr. McCrate’s rights as provided for in Article 82 of Agreement 4.16,
(iii) Mr. McCrate fulfilled his employment obligations consistent with the terms and conditions of the Collective Agreement 4.16.
The Company granted the Union’s request. The discipline was removed.
In granting such request the Company and the Union remained in disagreement as to the application of Article 51.11. Therefore, the parties require the Arbitrator to issue a decision regarding the dispute between the parties concerning the application of Article 51.11.
The company’s statement of issue is set out in paragraphs 7 to 14 of its presentation at the hearing:
7. From no later than October 11, 2002 to February 7, 2003, the Grievor, a GO Commuter Service Conductor, booked off on rest each and every Friday afternoon.
8. The Union maintains that employees, including the Grievor, have an unqualified entitlement to book rest and that the Company has no corresponding right to question an employee’s conduct in that regard.
9. The Company disagrees. In the Company’s submission, the Grievor maintained a systematic and improper practice of using Article 51 to justify his chronic and culpable absenteeism.
10. Given the parties’ conflicting views, the issue for the Arbitrator in the instant Grievance is whether employees have the right to book rest without restriction or justification to the effect that an employee potentially enjoys a regular, weekly absence from work, taken without regard to the purpose of the rest provisions. In other words, is an employee entitled to be habitually absent from work under the guise of booking rest?
11. The Company submits that the Grievor’s behaviour constitutes misconduct that would merit serious discipline, but for procedural problems with the investigation.
12. In the Company’s respectful submission, Article 51 cannot reasonably be applied to allow employees free reign to abuse the rest provisions without restriction or consequence.
13. Further, the Company argues that employers are entitled to discipline employees for persistent culpable absenteeism.
14. Finally, the Company states that, although employees have relatively broad rights under Article 51 of the Collective Agreement, they also have a duty to exercise those rights reasonably and to otherwise fulfill their obligations to the Company.
As appears from the foregoing, the grievor was assessed 30 demerits for what the company describes as improper and persistent use of the rest provisions. The matter proceeded to arbitration in the usual way and in an award dated May 16, 2003, the arbitrator, according to the company’s statement, rescinded the discipline on procedural grounds, but ruled that the company did have the right to impose discipline where an employee’s booking of rest results in his or her deliberate and chronic absenteeism.
The union sought judicial review of the award, and on January 15, 2004, the Ontario Divisional Court heard and decided the matter. The award was set aside on grounds unrelated to the question of interpretation or application of the collective agreement, and was remitted to another arbitrator. Notwithstanding this, the company removed the 30 demerits from the grievor’s record, and the parties agreed to proceed before me on the question of interpretation set out above. This may thus be considered as in the nature of an advisory award. Nothing set out herein constitutes a finding of fact, and no determination is made with respect to the grievor’s conduct in the circumstances which led to this case, and which is referred to merely by way of example.
As an employee in GO Commuter Service, the grievor is a train service employee, and entitled generally to the benefit of the provisions of article 51, “Booking Rest”. Article 51.4 provides as follows:
51.4 Rest En Route
Train service employees who have been on duty 10 hours or more will have the right to book rest en route, if they so desire, in accordance with the provisions of paragraphs 51.4 to 51.10. Train service employees are to be the judges of their own condition.
NOTE 1: En route may also include the initial or final terminal.
NOTE 2: [not material].
Article 51.11 is as follows:
51.11 At Terminals – Road Service
(a) at the home terminal – 6 hours minimum
– 24 hours maximum
(b) at the away-from-home – 1 hour minimum
terminal – 8 hours maximum
Provisions with respect to booking rest have been in effect for many years, and have been set out in many collective agreements. Employees in GO Train service work on a different basis from that of most other train service employees, in that they work on a regular Monday-to-Friday schedule, usually on a split shift, to accommodate the obvious needs of the GO commuter service. While on occasions employees may work more than the scheduled five hours, they have the advantage of generally established working hours, and can plan their lives accordingly. The grievor bid on such an assignment, knowing that it required regular attendance in the mornings and late afternoons, Monday to Friday. It would appear that over a prolonged period, he booked rest every Friday afternoon.
While employees in GO Train service work on a differently-scheduled basis from those in other sorts of train service, they are nevertheless entitled to the benefit of article 51, or at least to most of it. By article 51.1, regularly assigned employees who book rest on arrival at the home terminal and who thereby lose a trip, are entitled to payment of a basic day for each trip or tour of duty so lost. Addendum No. 50 to the collective agreement, which deals specifically with the manning and operation of GO Commuter trains operating out of Toronto, however, provides that article 51.1 does not apply to employees on GO train assignments. Thus, there is, to a degree, a disincentive for employees on GO train service to book rest at the home terminal (that might be considered to be consistent with the nature of their schedule), although the parties have clearly agreed that employees on GO train service have the same general entitlement as others to book rest.
The right to book rest is, it has been held, “absolute and unqualified” – see CROA case no. 3373. The general purpose of the provision, as has frequently been said, is to help ensure the safety of operations. It is not necessary, however, for an employee booking rest to bring him or herself specifically within that general purpose, or to assert that he or she is fatigued and in fact requires rest. Rather, as article 51.4 states, “Train service employees are to be the judges of their own condition”. Where an employee books rest, the employee is entitled to take rest, at least within the time limits set out in the collective agreement in respect of various sorts of circumstances. It would not be open to the employer to allege that the employee was not in fact tired or did not “really” need rest. I do not agree with the company’s contention that employees “have a duty to exercise those rights reasonably”. In the normal course, an employee cannot be called upon to justify his or her exercise of the right to book rest.
That is not to say, however, that the right to book rest is theoretically incapable of being abused, or that the employer may not take any steps to correct abuse if it occurs. It is clear, for example, that where employees act in concert in booking rest, as with any other concerted action intended to force the employer to concede something, it may be found that they are participating in an illegal strike, and that they are subject to penalties because of that: see, for example, the Canadian Pacific Limited case, (1981) 42 di. 40, a decision of the Canada Labour Relations Board, as well as a series of arbitration cases, including CROA No. 2547 for example, where the assessment of demerits was upheld in cases of employees held to have booked rest in furtherance of an unlawful work stoppage.
It was argued for the union that the situation here was analogous to that where a collective agreement provides that overtime is voluntary: in such a case an employee could not be disciplined for persistently refusing to work overtime (except perhaps where the refusal was in concert with other employees). In such a case, however, the right the employee asserts is to decline extra work beyond that of his regular assignment. In the instant case, the employee declined the performance of his regularly scheduled assignment. The analogy with the voluntary-overtime situation is not exact.
In its statement of the issue the company, at paragraph 13 of its presentation, set out above, argued that employers are entitled to discipline employees “for persistent culpable absenteeism”. That general proposition, however, is not really in issue, and begs the question before me, that is, whether or not the grievor’s absences could in fact be considered “culpable” and so subject him to discipline. As a general matter, as should be clear from what is set out above, an employee who books rest is not “culpable”. An employee may, however, be culpable, where he or she, while purporting to rely on the rest provisions, does not in reality book rest, even in the broad traditional and historical sense in which that term has been used in the railroad industry. An example has been referred to above: where an employee, in the guise of booking rest, is in fact participating in an illegal strike.
By article 51.4, employees are indeed to be “judges of their own condition”, but this means that they are to exercise judgment, and not indulge in a whim or a charade, relating to their condition or ability to work. The company may not second-guess this judgment where it is exercised in good faith, but it would be open to it to prove, if it can, that an employee’s absence is not due to the exercise of judgment contemplated by article 51, but rather to some improper conduct not contemplated by that article. That is, “booking rest” is not some sort of magical incantation by which an employee can transform an improper absence into one which cannot be questioned.
In the instant case, it is alleged that the grievor purported to book rest on every Friday afternoon over a substantial period, and the company argues that the grievor’s absence was, in reality, nothing more than his granting himself a long weekend every week, albeit at some cost to himself. I make no finding as to whether that is so in this particular case. The issue here is whether or not it is open to the company to make such an allegation at all or whether, by invoking the provisions relating to booking rest, employees may shelter themselves from the consequences of their real actions, properly characterized.
It is my conclusion, as a matter of interpretation of article 51, that while the booking of rest on any particular occasion is a matter for the judgment of the individual employee, and may not be “second-guessed” by the employer, where an employee has, in fact, abused the right to book rest by, in effect, granting himself or herself time off under the false guise of booking rest, it is open to the employer to prove this, if it can, and, in a proper case, to discipline the employee therefor.
This conclusion does not involve the adverse implications suggested by the union. It was argued, at para. 75 of the union presentation, that if the company’s position were accepted,
The right to book rest could only be exercised if it did not have an impact, in the subjective view of the Company, in its ability to have employees work.
I do not understand that to have been the company’s position, but in any event it could not possibly be correct. Of course, where an employee books rest, that affects the company’s ability to have the employee work during the rest period. The employee’s right to book rest in accordance with the provisions of the collective agreement is, as has been noted, “absolute and unqualified”. Nothing in what I have said changes that, or purports to change that.
Again, the union notes at paras. 78 and 79 of its presentation that the parties had agreed to meet during the closed period of the contract in an attempt to expand the right of employees to book rest to obtain more time off from their work obligations, and that spare board employees in particular had been allowed the right to book 48 hours’ rest once during their mileage period. Nothing in what is said here could properly be read as restricting employees in the proper exercise of these rights. As the union quite forcefully argued, “a deal is a deal”; nothing in article 51, however, supports the conclusion that the “deal” was that employees could work when it suited them.
It was also suggested that to accept the company’s position would put the exercise of the right to book rest by spare board employees in jeopardy. In the case of spare board employees, the suggested analogy with voluntary overtime may have somewhat more force. It would, I should think, be even more difficult for the company to establish, if it could, that a spare board employee regularly booking rest at specific times was abusing the rest provisions of the agreement than it would be in a case such as the present one, where the employee held a bid assignment involving regular Monday-to-Friday hours. In any event, in these as in other cases, the right to book rest remains “absolute and unqualified”.
It bears repeating that there is no requirement on employees to establish that their right to book rest is exercised “reasonably”, although where it is shown that an employee has simply purported to exercise that right while in fact acting in bad faith, then the real nature of the employee’s actions may be considered. What is decided here is that an employee who engages in misconduct relating to attendance is not necessarily protected by the mere assertion (if that is all it is), that he or she is “booking rest” when in fact that is a mere disguise.
For all of the foregoing reasons, it is my conclusion that the company’s position with respect to interpretation of article 51 must be upheld (to the extent set out above), and the grievance (this being the only outstanding issue) is accordingly dismissed.
DATED AT OTTAWA, this 8th day of April, 2004,
(signed) J. F. W. WEATHERILL