Heard at Montreal, Tuesday, June 11th, 1974

Concerning

and

Claim of Yardman A. Bussey, Windsor, Ontario for guarantee payment, June 23, 1973.

Yardman A. Bussey held a regular assignment for which the work week was Saturday to Friday. During the work week from June 23 to 29, he worked four shifts on his regular assignment at pro rata rate, two additional shifts at time and one-half, and was paid a minimum day at pro rata rate, in accordance with Article 105, Rule (b) for deadheading from Chatham to Windsor.

Because he was regularly assigned on a permanent assignment, Mr. Bussey was entitled to a guarantee of five days’ pay per work week, exclusive of overtime. In respect of the work week from June 23 to 29, Mr. Bussey claimed a day’s pay in addition to his other earnings, because he had worked only four days on his assignment that week. The Company declined the claim on the basis that the day’s pay for deadheading could be used toward the guarantee. Mr. Bussey submitted a grievance contending that, by not allowing the claim, the Company had violated Article 94.

There appeared on behalf of the Company:

G. A. Carra – System Labour Relations Officer, Montreal

J. A. Cameron – Labour Relations Assistant, Montreal

M. R. Robinson – Transportation Officer, Montreal

And on behalf of the Brotherhood:

G. E. McLellan – Assistant General Chairman, Toronto

C. G. Reid – Vice-General Chairman, Toronto

K. C. Hillgartner – Secretary, General Committee, Windsor

J. H. Hillier – Local Chairman, Niagara Falls

Article 94 of the collective agreement provides as follows:

The grievor was entitled to the benefit of this article, and was entitled to be paid not less than five days in the week in question. In considering whether such payment has been made, overtime payments are not considered. In the week in question the grievor did work some overtime, and would appear to have been properly paid therefor. Those payments are not considered in determining whether he was paid the guaranteed amount.

The grievor worked for four days on his regular assignment. Apart from his overtime payments, the grievor also received one day’s pay for deadheading, as indicated in the Joint Statement of Issue. The question is whether that payment should count in determining whether he was paid the guaranteed amount.

From the general first sentence of Article 94, it would seem that the payment for deadheading would properly be included in determining whether the grievor had been paid not less than five days in any one work week. The exception specifically noted is for overtime payments. In the last sentence of the first paragraph it is noted that "extra service" may be used to make up the guarantee. The deadheading in this case may more properly be considered as a form of "extra service" than as overtime, and having regard to Article 94 above, it would be my view that the payment for deadheading should be counted in determining whether the guaranteed amount was paid.

The Union relies particularly on Article 93-A(g) of the collective agreement for the proposition that the payment for deadheading cannot be counted. The material provisions of that article are as follows:

In particular, the Union relies on the express language of Article 3-A(g)(2), that "special allowances such as ... deadheading" shall not "be utilized for this purpose", although there are certain exceptions then set out. The "purpose" there referred to, however, is, as the article makes clear the computing of "the five straight time eight-hour shifts referred to in such section (1) of this rule (g)", that is, the computing of the hours in excess of which overtime is to be paid. There is no connection between this calculation and the question whether a guarantee has been met, and I do not consider that Article 93-A(g) has any modifying effect on what appears to be the plain meaning of Article 94.

This case is quite different from that which arose in Case No. 415, where it was held that certain "arbitrary" payments were not to be counted in calculating a monthly guarantee under provisions quite different from those in the present collective agreement. A somewhat closer analogy might be found in Case No. 170, where it was held that payments of holiday pay could be counted in determining whether the guaranteed amount had been paid but again, the provisions involved are different from those involved here. One question raised in this case by the Union is, however, quite analogous to a question raised and dealt with in that case, namely, whether there can be said to have been any real payment for the deadheading, if that payment is to be included in calculating the guarantee. The same question could be raised with respect to the four days’ regular pay received for time actually worked, and the answer in each case is that what is provided for in Article 94 is a guarantee of a minimum payment in the event that amount is not paid under some other proper head; it is not a provision for an extra payment beyond that.

For the foregoing reasons, the grievance must be dismissed.