Heard at Montreal Wednesday, October 14th, 1970

Concerning

and

Claim of Yard Foreman W. Thompson for 8 hours’ pay August 4.

Yard Foreman W. Thompson was working Steelton Yard the week of 4 August and was cancelled on that date due to a Statutory Holiday. He only worked 4 days in that week.

W. Thompson claimed 8 hours pay for the Statutory Holiday under Article 88, a 5 day week guarantee.

Claim was denied by the Company.

There appeared on behalf of the Company:

H. R. Wootton – Manager Rail Operations, Sault Ste. Marie

And on behalf of the Brotherhood:

C. E. McClelland – General Chairman, Sault Ste. Marie

In the week of August 4, Yard Foreman Thompson would regularly have worked five days. He was, it would seem, available for work on five days and would have worked on August 4 had his shift not been cancelled. As a regularly assigned yardman on a permanent assignment, Mr. Thompson was entitled to the benefit of article 88 of the collective agreement, which guarantees a five-day week. The article provides as follows:

The permanent assignment was for a five day week, and it was such a week’s employment to which Mr. Thompson would be entitled under that article.

The Company’s position is that Mr. Thompson is not entitled to the payment claimed, because the work week in question was adjusted to one of four days, and because he was not entitled to pay in respect of the holiday as such.

Article 89 of the collective agreement provides for general holidays, and to the entitlement of employees to payment therefor. August 4, 1969, was a general holiday under the agreement, and the company made arrangements for as many as possible of its employees to enjoy a holiday on that day. Mr. Thompson did not qualify for a holiday with pay under the provisions of the article. The only reference in article 89 to article 88 is in article 89(8):

Since there was no payment to Mr. Thompson under article 89, there could be no "duplicate payment". Article 89 contains no provisions otherwise limiting employees in the guarantee of earnings provided by article 88. In particular, it does not provide that there is a guarantee of only four days pay in weeks in which a holiday occurs. The effect of the company’s contention would be to read such a provision into the agreement. The support for this contention is, as the company argues, that Mr. Thompson is in the result receiving pay for a holiday to which he is not entitled. In my view, however, this is not a correct characterization of the payment claimed. Mr. Thompson was not entitled to a holiday with pay on August 4. He could have been required to work on that day, and if he had done so would have been paid, it would seem, at his regular rate. This appears to be provided by article 89(4):

It was only because his shift was cancelled that Mr. Thompson did not work. The agreement does not require the cancellation of shifts on holidays, and as article 89(4) clearly contemplates, Mr. Thompson could have been required to work. His claim is not for holiday pay, but for the guarantee provided under article 88. These are distinct and independent provisions, unrelated except in the specific instances noted.

Article 88 itself does provide for a proportionate reduction of the work week guarantee where the permanent assignment is on only for a part of the work week. In this case the permanent assignment was on a five-day basis. Cancellation of one day’s shift did not change the assignment to a permanent four-day assignment. If this were its effect, then the guarantee would be virtually meaningless. This provision of article 88 serves rather to ensure that an employee is not guaranteed a work week greater than that of his permanent assignment. In the instant case Mr. Thompson’s permanent assignment was for five days per week. He was entitled to the benefit of article 88 with respect to that assignment, even though he was not entitled to any holiday.

For the foregoing reasons, the grievance is allowed.