shp - 4
IN THE MATTER OF AN ARBITRATION
THE RAILWAY ASSOCIATION OF CANADA
DIVISION NO. 4, RAILWAY EMPLOYEES DEPARTMENT AFL-CIO
RE:ARTICLE 46.3 OF WAGE AGREEMENT NO. 16
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
P. Cutler and others
APPEARING FOR THE COMPANY:
M. Bistrisky and others
A hearing in this matter was held in Montreal on December 13, 1971.
AWARD OF THE ARBITRATOR
In this grievance the Union alleges that the companies have improperly substituted – at least with respect to certain employees – the days of Monday, December 27 and Tuesday, December 28, 1971, for the observance of Christmas and Boxing Day. This year, those days fall on a Saturday and Sunday.
The collective agreement, in article 46, provides for the observation of certain general holidays, which include Christmas Day and Boxing Day, and for the payment of certain premiums to employees required to work on such days. Article 46.3 of the agreement provides as follows:
46.3 If in any province or part thereof a holiday is more generally recognized than any one of the holidays specified above, the signatories here to will substitute such holiday therefor in that province or part thereof. If such signatories fail to agree that such holiday is more generally recognized, the dispute will be submitted to arbitration for final decision. When any of the above holidays falls on Sunday or Saturday the day observed by the Federal Government in respect of its employees as the holiday shall be recognized.
In the instant case, it is the last sentence of article 46.3 which is in issue. The holidays in question falling on a Saturday and Sunday, "the day observed by the Federal Government in respect of its employees as the holiday shall be recognized." In one way, then, the question in this case would appear to involve the determination of "the day observed by the Federal Government in respect of its employees" – a simple question of fact. While it may be that more than one day is so observed by the Federal Government it is agreed that the collective agreement made between the Treasury Board and the Public Service Alliance of Canada in respect of employees in the General Labour and Trades Group, Operational Category, of the public service should be considered. This agreement provides, pursuant to an arbitral award, that where a holiday falls on an employee’s day of rest, it should be moved to the employee’s first working day following his day of rest: art. 18.03.
In the case before me, it is the Union’s contention that, while for many employees it would be proper to observe the holidays in question on December 27 and 28, for others, the holiday ought not to be moved. In particular, the grievance is brought with respect to shop craft employees at "running points". These employees are engaged in work on a continuous schedule – that is, the operations at running points are carried on seven days per week, twenty-four hours per day. Employees work on steady day, afternoon or afternoon shifts, with regular days off. In some cases, employees whose regular days off are Saturday and Sunday, observance of the Christmas and Boxing Day holidays on December 27 and 28 will mean that, where their schedules require them to work on such days, they will be paid at premium rates. For those who are required, in accordance with their schedules, to work on Saturdays and Sundays, however, payment will be made at regular rates, even though work is performed on the real Christmas and Boxing Days. It appears that the Union’s claim is that employees so scheduled should be deemed to be at work on the holidays; that is, that in their case the holiday should be observed on the day on which it naturally falls.
In my view the collective agreement does not provide for the observance of the holidays in accordance with the schedules of individual employees. Article 46.2 contains a list of holidays, some of which are granted to employees in all parts of Canada, and others which are observed only in particular provinces. Article 46.3 provides for the substitution of one holiday for another, in certain circumstances. In the instant case, of course, there is no doubt that the holidays in question are Christmas and Boxing Day. Since these days fall, in 1971, on a Saturday and Sunday, then the collective agreement provides a method for determining the days on which they are to be observed: that is, briefly, to follow the practice of the federal government. As it happens, the result of the method provided for by article 18.03 of the public service agreement referred to above is that most public service employees will observe the holidays on December 27 and 28, 1971.
The holiday provisions of the agreement before me are for the granting of holidays on particular days. The case of such days being Saturday or Sunday has been expressly dealt with, and it is apparent that the parties were satisfied to observe their holiday on "the day observed by the Federal government". This provision, it is apparent, is far from being a general provision shifting holidays in accordance with individual employees’s days of rest. It is an example of the latter which is found in article 18.03 of the public service agreement. It is understandable of course that some of the employees with schedules such as those of employees at running points would prefer that the holiday not fall on their days of rest. The collective agreement, however, does not deal with this question, except to the extent that it contemplates a shift of the day on which a holiday is observed, where it ordinarily falls on a Saturday or Sunday. The parties agreed to look at the practice of the federal government with respect to the observance of holidays in certain instances, but did not go so far as to agree to its policy with respect to individual employees rest days. If such an agreement had been intended, it could very easily have been set out in the collective agreement.
The Company produced certain evidence to show that in fact it had applied the same interpretation in similar cases in the past, and that the Union had sought, in negotiations, to provide that in the case of the running trades there be no substitution of general holidays, but that this attempt had been unsuccessful. While, having regard to this material, it would be my view that the interpretation now advanced by the Union was not in the mutual contemplation of the parties when the agreement was made, I am of the view that such material ought not to be considered in the case, the issue being properly one of the construction of article 46 of the collective agreement as it stands.
For the reasons set out above, it is my view that Christmas Day and Boxing Day are properly recognized, under this collective agreement, on December 27 and 28, 1971. The grievance is accordingly dismissed.
DATED at Toronto this 16th day of December, 1971.
(sgd.) J. F. W. Weatherill