Heard at Montreal, Monday, September 11th, 1967

Concerning

and

Concerning the interpretation and application of article 2(h), second paragraph, article 3(a) and article 8(c) which are interlocking rules of the current collective agreement.

Steward F.R. Graham and crew arrived Toronto on delayed Train No. 12 June 6th, 1967, twelve (12) hours and forty (40) minutes late. Steward Graham and crew were required to report at 2.00 p.m. June 10th for their next regularly assigned trip. Steward Graham and crew claimed eight (8) hours at time and one-half for being required to work on what would have been eight (8) hours of normal layover time. These claims were rejected by the Company.

The Brotherhood contends that these employees were required to work on part of their normal layover period and, in rejecting the claims, the Company is in violation of article 2(h) of the collective agreement.

There appeared on behalf of the Company:

T. P. James – Manager, S.D., P.C. & N.S., Montreal

J. W. Moffatt – General Superintendent, S.D., P.C. & N.S., Montreal

And on behalf of the Brotherhood:

J. R. Browne – General Chairman, Montreal

As indicated, this dispute concerns the failure of the Company to pay the claims asked because of their interpretation of three provisions of the agreement, namely article 2(h), second paragraph, article 3(a) and article 8(c). The second paragraph of article 2(h) reads:

The posting for which this crew bid indicated a layover of four days.

The train arrived at Toronto on June 6 at 6.45 a.m., instead of the time it was due to arrive, namely, June 5 at 5.45 p.m.

The representative for the Brotherhood claimed the term "days" not being defined in the agreement, that recourse had been made to the interpretation given for the term "days" in the Dominion Interpretations Act, R. S. 1952 and that given in the Canada Labour Standards Code. The former, of course, would only apply to legislation in which the term was not defined. The latter, interpreting the term "day" as meaning any twenty-four hour period would have application to any provision enacted under its authority.

It was submitted for the Brotherhood that applying the definition "any twenty-four hour period", this crew was entitled to lay-over from the normal time of arrival until 6.45 a.m. June 9th. By being required to report at 2.00 p.m., June 10, it was claimed it had been held for service from 6.45 a.m. June 9 until 2.00 p.m. June 10, a total of 31 hours and 15 minutes. This, it was urged, would bring into operation article 3 of the agreement.

Article 3, under the heading "hours of Service" reads, in part:

The representative for the Brotherhood protested what he claimed was a digression from established past practice in the Company not specifying layover time in postings for vacant or new runs in hours and minutes, rather than by the undefined term "days".

Article 8 provides, in part:

Reference was made by the representative for the Brotherhood to decision in Case No. 32 of the Canadian Railway Office of Arbitration in which a favourable decision was gained by the Brotherhood. Of significance to this decision, however, is the fact that the provision in the preceding agreement, article 7(c), contained the words "required to forego layover". These no longer appear in existing provisions.

The principal thrust of the argument advanced for the Company was based reliance upon this paragraph of article 3(a), reading:

From this provision, it was argued, if a regularly assigned employee is scheduled to work 576 hours or more in a Quarter, which it was said was generally the case, and due to a late arrival he works additional time, this extra time would be paid at one and one-half his basic hourly rate in accordance with article 2(d), reading:

The claim being made, it was submitted, represented a request for time and one-half for late arrival, plus a penalty time for loss of layover.

It was stressed that neither article 2, clause (d), nor article 3, clause (a), makes any provision for payment of loss of layover due to late arrival of a train.

As to article 8(c) it was submitted for the Company that the Operating Schedule does not override the provisions of the collective agreement. Its purpose was merely to impart general information to employees, to assist them when bidding for assignments. Further, it had to be of a general nature because delayed trains cannot be provided for in such a schedule.

As to the second paragraph of article 2(h) the Company’s representative claimed before this clause became operative two conditions must be met: first, layover must have commenced and, second, the employee must have been called to perform road service before his next scheduled reporting time.

An analysis of the foregoing, after a study of the pertinent provisions, leads to the conclusion with respect to article 8, that the term "particulars" not being defined, there is nothing to prevent the Company, (apart from the desirability from the Brotherhood’s viewpoint to continue its former practice) to describe layover time by the use of the term "days".

Further, a study of the second paragraph of article 2(h) convinces its purpose is to provide for a call from layover for road service other than that required of an employee on his normal departure day. This is indicated by the words used, "If position of operation is not lost, he will be due out on normal departure day …"

Finally, it is clear the parties have specifically provided for payment for time worked in excess of the normal operating schedule due to late arrival of trains in article 3(a). To grant this request, therefore, would result in a pyramiding of benefits without specific authorization.

In that connection, of instructive value is the principle stated in the decision of His Honour, Judge Anderson, in Ault Milk Products and Retail Wholesale Workers, in which it was held:

For these reasons I find the claimants were paid in accordance with the existing provisions of this agreement.