Heard at Montreal, Tuesday, July 11th, 1972

Concerning

and

Alleged violation of Article 151 of Agreement 4.16.

In 1970, Conductor F.A. Wilson was granted four weeks annual vacation for the time worked by him in the preceding calendar year. At the time of taking his vacation, which commenced on June 29, 1970, he was regularly assigned to a yard service assignment working within the switching limits of Toronto Terminals.

Conductor Wilson submitted time returns claiming payment of the vacation on the basis of 8 % of his 1969 gross wages. The Company allowed payment on the basis of twenty working days (4 weeks) at the yard service daily rate, pursuant to Article 151-A, Annual Vacation Yard Service, of Agreement 4.16.

The employee subsequently submitted a claim for $250.33, being the alleged difference between the payment sought by the claimant and the amount paid by the Company. The claim was declined by the Company and the Union contends that, in so doing, the Company violated Article 151, Annual Vacation Road Service, of Agreement 4.16.

There appeared on behalf of the Company:

A. J. DelTorto – System Labour Relations Officer, Montreal

D. C. Fraleigh – System Labour Relations Officer, Montreal

S. Nicholson – Assistant Superintendent, Toronto

And on behalf of the Union:

G. R. Ashman – General Chairman, Toronto

F. R. Oliver – Secretary General Committee, Toronto

Article 151(1)(c), relied on by the Union, provides as follows:

Article 151 deals with "Annual Vacation – Road Service". At the beginning of the calendar year 1970, it seems that the grievor met the service requirements set out in Article 151(1)(c) and, if he was an employee in road service, it would seem he would be entitled to vacation pay based on 8% of his gross wages for 1969. Strangely, the material before me does not state expressly what type of service the grievor was engaged in at the beginning of 1970, but he seems to have been a "15th Seniority District trainman", and he is described as a conductor, and it may be assumed for the purpose of this decision that he was in road service. The Union contended that it is the class of service in which the employee was engaged at the beginning of a calendar year which determines he applicability of section 151. I am unable to read the provision of the article that way. The reference to "the beginning of the calendar year" is surely a reference to the point in time at which vacation entitlement is determined. Article 151 does not deal explicitly, or implicitly, with the question of the effect on vacation entitlement of a change in class of service.

Article 151-A, relied on by the Committee deals with "Annual Vacation – Yard Service" and provides in section (1)(c) as follows:

Again the section simply details the vacation entitlements of employees to whom the article applies, that is yard service employees. It is silent as to the effect of change of class of service. But there is a provision within Article 151-A which does deal with the matter, namely, section (1)(f), which is as follows:

At the time he became entitled to vacation pay, the grievor was an employee in yard service. That is a fact set out in the Joint Statement of Issue. Whatever his status at the beginning of the year, the grievor became an employee in yard service when he was awarded, by bulletin, a job described as T-19 (530) Yard. This was one of the assignments described as "yard assignments" in the memorandum of agreement set out on p.224 of the collective agreement. The Union contended that the assignment was really one in road service, but the contention simply cannot be considered, since the matter of the grievor’s class of service at the material times is expressly and clearly dealt with in the Joint Statement of Issue and must be taken as an agreed fact.

The conclusion must be that at the time of taking his vacation, the grievor was in yard service. Article 151-A (1) (a) provides expressly that in such a case, the employee is to be compensated for vacation on the base of such service. It would be to contradict the clear provision of the collective agreement to come to any other conclusion.

Accordingly, the grievance must be dismissed.