SHP - 21
IN THE MATTER OF AN ARBITRATION
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:HOLIDAY PAY FOR EMPLOYEES AT THUNDER BAY
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clark
APPEARING FOR THE COMPANY:
J. A. McGuire
J. E. Cameron
W. J. Plohman
A hearing in this matter was held in Montreal on April 11, 1975.
AWARD OF THE ARBITRATOR
JOINT STATEMENT OF ISSUE
Dispute between CP Rail, Prairie Region, and the Railway Employees’ Department, Division No. 4, representing the Carman’s Craft at Thunder Bay and concerning the application of Rules 46.2 and 46.4 of Wage Agreement No. 16 in respect of Labour Day, September 3rd, 1973.
JOINT STATEMENT OF FACT
On August 23rd, 1973, the Associated Non-Operating Employees called a National Railway Strike. As a consequence of this strike, all employees at Thunder Bay not represented by the Associated Non-Operating Railway Unions were laid off.
It is the position of the Union that the employees set out in the attached list are entitled to payment of 8 hours at pro rata rates for Labour Day, September 3rd, 1973, on the basis that they met the qualification requirements of Rule 46.4 of Wage Agreement No. 16.
It is the position of the Company that as the employees for whom this claim is being made did not return to work for some days after the Labour Day Holiday, they were therefore not available for duty on the Holiday and for this reason payment has been denied.
Rule 46.2 specifies the days with respect to which qualified employees are to be granted a holiday with pay. Labour Day is one of such days. Rule 46.4 is as follows:
46.4 In order to qualify for pay for any one of the holidays specified in Rule 46.2 an employee
(a) must have been in the service of the Company and available for duty for at least 30 calendar days;
(b) must be available for duty on such holiday if it occurs on one of his work days excluding vacation days. When an employee is required to work on such general holiday he shall be given an advance notice of four (4) calendar days except for unforeseen exigencies of the service in which case he will be notified not later than prior to the completion of his shift or tour of duty immediately preceding such holiday that his services will be required. This Rule 46.4 (b) does not apply in respect of an employee who is laid off or suffering from a bona fide injury or who is hospitalized on the holiday; and
(c) must have rendered compensated service on at least 12 of the 30 calendar days immediately preceding the general holiday. This Rule 46.4 (c) does not apply to an employee who is required to work on the holiday.
The employees covered by this grievance were laid off as a result of the strike of another group of employees, which was called on August 23, 1973. It seems that all of the grievors met the requirements of subsections (a) and (c) of Rule 46.4; I assume that to be the case, no argument being addressed to that point. The central issue in the case is whether these employees met the requirements of article 46.4 (b).
In dealing with this issue I shall assume that September 3, 1973 would, in the normal course, have been a work day for each of the grievors. They would therefore be required to be available for duty on that day, to qualify for holiday pay. It may be noted that any requirement that they actually work on that day would require – except for unseen exigencies of the service – four days’ notice. The Union’s position is, that the grievors were laid off, and had not received the necessary notice of recall required by Rule 23.22. Rule 46.4 (b), it must be noted, does not apply in respect of employees who are laid off.
The Company’s response to this is twofold: first, that the Maintenance of Railway Operations Act, 1973, which became effective at 0001 hours on Sunday, September 2, 1973, required the grievors as well as other employees to resume the duties of their employment forthwith, and – that, for this reason and by reason of the Company’s efforts to recall employees, they could no longer be considered as laid off. Second, it is argued that in any – event each individual claiming holiday pay must show that the holiday fell during a period of his employment.
As to the first of these arguments, it is to be noted that he claim made is for holiday pay, a benefit provided for in the collective agreement and earned (subject to the qualifications set out in the agreement) by the employees’ attendance at work. As far as their status under the collective agreement is concerned, the grievors had been laid off, and at the time of the holiday had not yet been recalled in conformity, with the requirements of the collective agreement. It may be that, by failing to return to work promptly (as appears to have been the case) they were in violation of the Maintenance of Railway Operations Act, and perhaps subject to prosecution. It may be a well that, by virtue of the Act, they were under an obligation to report to work, and would be, subject to discipline for failure to do so. A failure to comply with such obligations, however, does not alter the effect or the incidence of the payment provisions, including the holiday pay provisions of the collective agreement. Even if it be considered that the grievors were no longer laid off, but were required to work, it will be seen that they were given neither the four days’ advance notice generally provided for, nor the notice contemplated for "unforeseen exigencies", which this may have been. In the result, the holiday pay may be considered as already having been earned by the grievors, and whatever consequences might follow from an unlawful failure to return to work pursuant to the Act and to the employer’s request, these did not include the divesting of rights already earned.
As to the second argument, while it may well be that an employee whose employment relationship has properly terminated could not expect to receive holiday pay in respect of a day coming after the termination of his employment, that is scarcely this case. As indicated above, the grievors here were on lay-off, and indeed met the qualifications necessary for holiday pay in such a case. I certainly do not disagree with what was said in Canadian Railway Office of Arbitration Case No. 104, where the issue was, as here, one of compliance with holiday pay qualifications. In this case, however, the grievors’ case seems to come clearly within the language of the collective agreement, and once their entitlement to payment has been established, their subsequent misconduct would not divest them of it.
Accordingly, the grievance is allowed. The employees in question should be paid the amount payable under Rule 46.7 as holiday pay at the time in question.
DATED at Toronto, ,this 26th day of April, 1975.
(sgd.) J. F. W. Weatherill