CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3765
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION
AND GENERAL WORKERS UNION OF
Concerning a change in the Company’s sick day policy and the failure to pay Mr. Pierre Fontaine and others following the change.
UNION’S STATEMENT OF ISSUE:
Mr. Pierre Fontaine booked sick on
It is the
The Company denies any violation of the collective agreement, the Human Resources Manual or the 1998 letter of understanding.
(SGD.) D. OLSHEWSKI
There appeared on behalf of the Company:
D. S. Fisher –
Director, Labour Relations,
S. Grou –
Manager, Labour Relations,
J. Rousseau –
Regional Director, C.S.C.,
A. Durocher –
Assistant Director, C.G.F.,
And on behalf of the
D. Olshewski –
B. Kennedy –
R. Doherty –
H. Grant –
G. Fortin –
S. Auger –
Regional Bargaining Representative,
C. Rainville –
Regional Bargaining Representative,
J. Almdal –
Regional Bargaining Representative,
P. Fontaine – Grievor
AWARD OF THE ARBITRATOR
Leave of Absence with Pay – Weekly Rated Unionized Clerical Employees
Vice-Presidents and officers who report directly to the President are authorized to approve leave of absence with pay in accordance with the provisions of this section. The authority may be delegated.
The sick leave with pay privilege is administered solely by the Company and is separate and distinct from the weekly indemnity plan. It is intended as supplemental income to eligible employees who are on sick leave during regular work days and are not eligible for Weekly Indemnity Benefits.
For most unionized clerical employees benefits are only paid during the waiting period for Weekly Indemnity Benefits.
For non-unionized employees who became members of the CBRT&GW in 1982 and 1985, benefits are not restricted to the WIB waiting period.
5.7.3 Conditions of Payment
The sick leave with pay privilege is subject to the following conditions:
- paid sick leave will only apply to clerical employees represented by the CAW 5.1 (former CBRT&GW) and not to other classifications of employees.
- benefits may only be paid during the waiting period for Weekly Indemnity Benefits when there is no additional expense to the Company i.e. when no replacement for the absent employee is required.
- for non-unionized employees who became members of the CBRT&GW in 1982 and 1985, benefits are not restricted to the weekly indemnity benefit waiting period.
- sick leave credits not used in a 12-month period cannot be carried over to the succeeding 12-month period.
The only indirect reference to employees being absent with pay due to sickness appears within the collective agreement in article 21 which reads, in part:
21.1 An employee temporarily assigned to a higher-rated position, shall receive the higher rate while occupying such position. Employees temporarily assigned to lower-rated positions shall not have their rate reduced.
21.3 Paragraph 21.1 shall not apply to a weekly rated employee who is filling a higher-rated position through a higher-rated employee being absent from duty with pay due to sickness or similar cause, other than vacation.
The historic working of the policy is well reflected in a
letter drafted by the Director of Labour Relations, for the Company, Mark M.
As requested, I am writing to clarify the application of the paid leave policy for unionized staff paid on a weekly basis who work in a department where a spare board exists. This policy appears in section 5.7 of the Human Resources Manual.
First of all, it should be noted that the policy only applies in situations where “a unionized employee is absent due to illness” and where “no additional costs are incurred by the company.” Both of these conditions must therefore be met.
At the level of unionized employees, there are two job categories: the administrative positions, such as correspondence clerk and timekeeper, and positions directly related to operations and customer service, such as customer service centre agents.
It very frequently happens that employees in administrative positions are not replaced if they are absent for one or two days because the nature of their job is such that their work can accumulate until their return or, on occasion, it can be accomplished by other employees. In such situations, no additional costs are incurred by the company and, consequently, the employee is entitled to the benefits provided for in the policy.
In the case of positions related to operations, given the nature of these positions, in most cases, the incumbent must be replaced, since the work must be carried out immediately and cannot be accumulated.
Replacing these employees can be done in several ways and replacements can come from several sources or combinations of sources, such as the spare board, overtime by regular employees. casual employees who do not have an assignment, employees on standby, laid-off employees, spare board employees and relief employees.
In all situations where one of these sources is used, there is a cost associated with replacing the employee since, in addition to paying the salary of the absent employee, the replacement must also be paid. Consequently, in such situation, the benefits provided for in the policy do not apply.
The record before the Arbitrator confirms that in 1998, during bargaining, the parties executed a document referred to as “Attachment R”. That document, signed by both parties, refers to the continuation of the Company’s policy, as reads, in part, as follows:
During National Negotiations the
- The current practice of paid sick days for weekly rated employees will be continued on the strict condition that no additional costs will be incurred by the department as a result of the employee not being available for work; and
- the Union acknowledges that employees may be required to provide a medical certificate to support that they were not at work, where such requirement is reasonable.
This letter shall not form part of the Collective Agreement.
This grievance arises because the Company has now allegedly departed from the undertaking found in attachment R.
The instant grievance arises by reason of the denial of sick
days pay to Mr. P. Fontaine, a weekly rated employee from
In essence, the
Having carefully examined the facts of the instant case, in comparison with the facts in the CN/CP case, the Arbitrator is compelled to come to a different conclusion in the instant dispute. The material before the Arbitrator discloses that in the negotiation of the collective agreement in August of 1998 the parties made a number of side agreements, not unlike Attachment R. One of those agreements in fact not only stipulated that it would not form part of the collective agreement, but it also adverted to the fact that any violation of the agreement could nevertheless be brought forward to arbitration.
The evidence of the way those arrangements were made does, I
am satisfied, make this case distinguishable from CN/CP. For reasons which it best appreciates the
There are further points of distinction with respect to CN/CP. As became evident from the
material filed, it would appear that in this case the practice of the Company
was not consistent over time and over all locations in its national system.
There appear to have been local adjustments in the number of days available and
the conditions which attached to the granting of sick days at various
locations, and that these adjustments were made without any grievance or
objection from the
On the whole, therefore, the Arbitrator is not persuaded
For these reasons the grievance must be dismissed.