Heard at Montreal, Tuesday, September 10, 1974

Concerning

and

Between the Brotherhood of Maintenance of Way Employees concerning the application of Section 2(c) of Wage Agreement No. 14.

On May 4, 1973 the hours of work for Sectionman C.J. Pomerleau were changed from 0800 to 1700 to 1800 to 0600. It is the position of the Union that since the Company did not notify the Union officers in accordance with Section 2, Clause 2(c), C.J. Pomerleau’s regularly assigned hours continued to be 0800 to 1700 and that all work performed outside such regularly assigned hours should be paid at overtime rates.

It is the position of the Company that the regularly assigned hours of Sectionman C.J. Pomerleau were changed to 1800 to 0600 and that the overtime rates paid for time worked after 0200 met the requirements of Wage Agreement No. 14.

There appeared on behalf of the Company:

M. Yorston – Supervisor Labour Relations, Montreal

M. G. Mudie – Assistant Supervisor Labour Relations, Montreal

J. E. Cameron – Labour Relations Officer, Montreal

And on behalf of the Brotherhood:

F. Borsa – System Federation General Chairman, Ottawa

G. D. Robertson – Vice-President, Ottawa

A. Passaretti – Federation General Chairman, Ottawa

H. J. Thiessen – General Chairman, Calgary

Section 2, Clause 2(c) of the collective agreement provides as follows:

While the Company appears to have advised Mr. Pomerleau of the change in his hours of work – a change which the Company was entitled to make – in timely fashion, it did not advise the appropriate Local Chairman or the General Chairman prior to the change being made. I am in agreement with the Union’s contention that the giving of such notice is a condition of the implementation of such change, and it would follow as the appropriate redress for this violation, that hours worked outside of the original scheduled hours would be overtime until the requirements of the collective agreement were met. I agree as well that no individual agreement between the employee concerned and the Company could operate so as to alter the effect of the provisions of the collective agreement, or to prevent the Union from proceeding in this matter as it has done.

It is therefore my conclusion that Mr. Pomerleau is to be paid at overtime rates in respect of hours worked outside of his old schedule. By Section 5, Clause 12 of the collective agreement, there is to be no retroactive payment beyond a period of 60 calendar days prior to the date the grievance was submitted. This limitation is not one which need be expressly raised or referred to in the Joint Statement, and effect must be given to it. This grievance was submitted on October 15, 1973. It is accordingly my award that Mr. Pomerleau be paid in accordance with the foregoing for the period from August 16, 1973, until the time notice was given to the Union. Since the Union obviously had notice of the change by the date of the grievance, no payment would be made in respect of that date or thereafter.