Heard in Montreal, Tuesday, 8 November 1994

concerning

and

Claim for General Holiday pay for Locomotive Engineer B.A. Harmer for Labour Day, September 4, 1989.

Locomotive Engineer Harmer was in unassigned service at Winnipeg. On September 3, 1989, Locomotive Engineer Harmer deadheaded from Dauphin to Symington and was paid 215 passenger miles. Locomotive Engineer Harmer was off duty at 1500 and booked 16 hours’ rest which expired at 0700 on September 4, 1989, a General Holiday.

Mr. Harmer submitted a duplicate claim for 215 passenger miles for the General Holiday of September 4, 1989.

The Brotherhood contends Mr. Harmer qualified for payment of the General Holiday under article 79 of Agreement 1.2.

It is the Company’s position that Mr. Harmer was not available throughout the General Holiday as required in article 79 of Agreement 1.2.

The Company denied the claim.

There appeared on behalf of the Company:

J. B. Dixon – System Labour Relations Officer, Montreal

J. T. Torchia – Manager, Labour Relations, Montreal

V. J. Vena – Coordinator, Transportation, Montreal

D. Gagné – System Labour Relations Officer, Montreal

J, Krawec – System Labour Relations Officer, Montreal

And on behalf of the Brotherhood:

W. A. Wright – General Chairman, Saskatoon

M. W. Simpson – Vice-General Chairman, Saskatoon

The issue concerns the availability of Mr. Harmer for service on the occasion of the Labour Day statutory holiday on September 4, 1989. It is common ground that he booked off duty at 15:00 on September 3 and booked sixteen hours’ rest. On that basis the Brotherhood maintains that he became available to work as of 07:00 on the general holiday, and should therefore be entitled to the payment of holiday pay for that day.

The entitlement to holiday pay is governed by the terms of article 79 of the collective agreement which provides, in part, as follows:

It is common ground that the grievor did not commence a shift or tour of duty on the general holiday within the meaning of the foregoing provision. The sole issue between the parties is whether he was "available for duty on the holiday" within the meaning of article 79.3(a). The issue of availability for duty is further addressed in article 79.5 of the agreement which provides, in part, as follows:

The Company asserts that having booked off for sixteen hours consecutive with the end of his tour of duty on September 3, the grievor did not qualify as available for duty within the meaning of article 79.5, and could therefore not claim the benefit of article 79.3 of the agreement. The Brotherhood, on the other hand, submits that the language of article 79.5(c) was not meant to be so restrictive. It argues that the mere fact of booking rest for a period in excess of twelve hours does not necessarily disqualify a person from the standpoint of availability. According to its representatives the grievor should not, merely by reason of having booked sixteen hours’ rest, be deemed unavailable. They submit that if the grievor had been called after the conclusion of twelve hours’ rest, but before the expiry of the sixteen hours, and had then declined to accept a call, he could properly have been viewed as unavailable. If, on the other hand, he had accepted a call during that period, he would have been available, and would not necessarily be excluded from entitlement to holiday pay by the terms of article 79.5(c)

The Arbitrator has some difficulty with the position advanced by the Brotherhood. It is important, I think, that article 79.5 is, in its own terms, intended to be a definition of "... Availability for duty as required by paragraph 79.3". It seems clear that the purpose of sub-paragraph (c) of article 79.5 is to provide an incentive for employees to be available for work on a general holiday, coupled with a ready means to identify those employees who have brought themselves within the definition of availability provided in the terms of the collective agreement. The prospect of the Company canvassing the availability of employees during periods for which they have booked rest is not consistent with the apparent intention of the provision, nor of the expectation of the parties. The suggestion of the Brotherhood’s representatives that sub-paragraph (c) speaks only to certain defined employees not losing their entitlement, without addressing the circumstances of others who fall outside the twelve hour limitation is strained, and in the Arbitrator’s view out of keeping with a provision which is expressed as intended to bring definition, and by extension clarity, to the meaning of the words "availability for duty". By article 79.5(c) the parties sought to provide a definitional line with respect to the issue of availability. Absent such a line, there would be room for substantial uncertainty as to the availability of employees whose booked rest period trenches substantially into the general holiday. Article 79.5(c) is, I think, best understood as intended to provide a "bright line" demarcation for the benefit of Company and employees alike.

The evidence in the case at hand confirms, beyond dispute, that Locomotive Engineer Harmer booked rest for sixteen hours, a period clearly exceeding twelve hours, consecutive with his tour of duty immediately prior to the general holiday. By doing so he fell outside the definition of availability provided in article 79.5(c) of the collective agreement, for the purposes of article 79.3. For these reasons the grievance must be dismissed.

11 November 1994 (signed) MICHEL G. PICHER