SHP - 34
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
Division Number 4 Railway Employees’ Department
RE:Grievance of M. Miller, Electrician
SOLE ARBITRATOR: Professor Frances Bairstow
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in
AWARD OF THE ARBITRATOR
Did the Company violate Articles 2.5, 2.6, 2.7, and 3.1 of Wage Agreement No. 16, when they failed to pay Mr. M. Miller time and one-half for hours worked by him on June 27th, 28th, 29th, July 6th, 14th, 15th, 16th, 17th and 18th?
The Company and Union submitted a joint statement of Fact as follows:
Joint statement of issue
Mr. M. Miller, electrician in Montreal, on September 8, 1972, obtained a bulletined position of electrician. Under the heading of "Assigned Days off" the following was shown on that bulletin:
Saturday-Sunday (Except when required to fill assignments vacated due to annual vacations, sickness and leave of absence).
The Union alleges that, on the days outlined in the Joint Statement of Issue, Mr. Miller should have been paid time and one-half. In support of their claim, the Union alleges violation of rules 2.5, 2.6, 2.7, and 3.1.
The Company denies the agreement has been violated.
At the Arbitral Hearing on February 24, 1976, the Union expanded on the History of the grievance. They stated that Mr. Millers’ assigned rest days were Thursday and Friday. Mr. Millers’ work week was from Saturday through Wednesday in accordance with Rule 2.5 which reads:
The term ‘Work Week’ for regular assigned employees shall mean a week beginning on the first day on which the assignment is bulletined to work.
The Union submitted a chart indicating Mr. Millers’ work days and rest days for the period in question. This chart was not contradicted by the employer. From the Union’s testimony, it appears that Mr. Miller did actually work on several of his assigned rest days. Therefore, according to the Union, Rule 2.3 of the Wage Agreement was violated by the Employer. Rule 2.3 reads:
Work in excess of forty (40) straight time hours or five (5) days in any work week shall be considered overtime and paid at one and one-half times the basic straight time rate.
A study of Mr. Miller’s work schedule for the period in question indicates that his regular schedule was interrupted and extended as follows:
June 20-21 - Thursday, Friday - rest days not worked
June 22, 23, 24, 25, 26 - regular working days
June 27, 28 - rest days but worked
June 29 - Saturday, also worked (Above represents eight (8) days worked in a row.)
June 30 - Sunday, rest day not worked
July 1 - Holiday and rest day worked
July 2, 3, 4, 5, 6 - days worked - six (6) days in a row worked including July 1
July 7 - Rest Day, not worked
July 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, days worked - eleven (11) days in a row worked
This work schedule was corroborated by the employer’s figures of Mr. Miller’s work schedule.
In essence the Union’s argument is based on the fact that if conditions were normal in work assignments, Mr. Miller would work five days and have two days off in accordance with Article 3.1.
This article states
Rule 3.1 – Assignment of Rest Days
Except as may be provided in Rules 9, 57.11 and 58.10 to 58.16 inclusive, employees shall be assigned two rest days in each seven. The rest days shall be consecutive as far as possible consistent with the establishment of regular relief assignments and the avoidance of working an employee on an assigned rest day. Preference shall be given to Saturday and Sunday and then to Sunday and Monday …
The Company’s position was that Mr. Miller’s work schedule developed in the way it did because his was a relief assignment and not a regular assignment. The Department must be run on a continuous basis and to keep all jobs manned, there is a total of fifteen electricians and linemen employed throughout three shifts per day and seven days per week.
To keep coverage ensured at all times, the Company has created three relief positions which brings the total staff in the Department to 18 employees. Mr. Miller is one of the three relief employees. The responsibility of the relief employees is to relieve regular employees who are on vacation or sick or on leave of absence. Thus, normally Mr. Miller would work as an electrician Monday to Friday with Saturday and Sunday as rest days, except when required to relieve on other vacant positions.
The Union countered the argument of Mr. Miller’s essentially by stating that someone obviously filled in for Mr. Miller on his rest days if he were essential as the Company claimed. Furthermore, the Union contended that at one time, twelve out of eighteen positions were considered relief assignments. Employees could not be expected to sustain such a work pace. They should have some recourse when required to work continuously without rest days and therefore should be compensated at time and one-half pay rather than straight time.
The Union drew attention to the applicable requirements of the 1971 Canada Labour Code which stipulates:
Hours of Work
29. (1) Except as otherwise provided by or under this Division, the working hours of an employee shall not exceed eight hours in a day and forty hours in a week, and except, as provided by or under this Division, no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.
The Company claims that the Canada Labour Code provisions are not applicable, since the Code itself permits setting aside certain restrictions of the Code such as changing shifts. Particular sections given in the Code refer to averaging of hours, for example.
To further support its argument, the Company contended that Rules 2.5, 2.6, 2.7, band 3.1 deal with work on assigned rest days, but these assigned rest days must always be the rest days of the position occupied if overtime is to apply. The problem here is that Mr. Miller was moved from his regular position with Saturday and Sunday as rest days to another position with different rest days. Therefore, he is not entitled to overtime on his former rest days, but rather on the rest days of his new assignment.
The employer referred to a previous arbitration decision handed down by Judge R.H. Reville in 1964, involving the Canadian National Railways the Canadian Brotherhood of Railway, Transport and General Workers. Claiming similarity of principle between the two cases, the employer quotes from the Reville decision:
1. The grievor commenced a new assignment and consequently a new work week on Wednesday, July 17, 1963.
3. The grievor was granted and took advantage of the rest days established by his new assignment, namely, Monday and Tuesday, the 22nd and 23rd July, 1963, and is not entitled to punitive rates under Article 5.2.
For all these reasons, this grievance must be dismissed".
The Union asserted that the application of the Reville precedent was not relevant, since it took place under conditions of another agreement at another period. Furthermore, a different labour law was then operative which was amended in 1971.
As a final argument, the Union claimed that under the terms of the Agreement, the consent of the General Chairman is required for such relief assignments as that taken by. Mr. Miller. If relief workers are required, then the general union chairman and the appropriate officer of the Company should discuss the number of and which individuals in particular are needed for relief assignments. The Union is interested in seeing to it that the Railway is protected at all times, but there should not be more than three relief assignments operating at any one time. The Union would never have sanctioned twelve out of eighteen relief assignments. The General Chairman never was consulted or agreed to change Mr. Miller’s assignment; therefore, the Bulletin was wrong in his case.
In addition, the Union claimed that in no other shop of the same Company did such relief practices prevail. This claim was not countered by the Company.
Taking all of the arguments into account, the Arbitrator finds that the grievance should be allowed on the following grounds:
1) The contradiction between the practice of the Company’s assigning Mr. Miller to work on his rest days with Article 2.3, 2.6 and 3.1 of the Agreement -
2.3. Work in excess of forty (40) straight time hours or five (5) days in any work week shall be considered overtime and paid at one and one-half times the basic straight time rate …
Work on Assigned Rest Days
2.6 Employees required to work on regularly assigned rest days except when these are being accumulated under Rule 3.3(c) shall be paid at the rate of time and one-half.
Rule 3 - ASSIGNMENT OF REST DAYS
3.1 Except as may be provided in Rules 9, 57.11 and 58.10 to 58.16 inclusive, employees shall be assigned two rest days in each seven. The rest days shall be consecutive as far as possible consistent with the establishment of regular relief assignments and the avoidance of working an employee on an assigned rest day. Preference shall be given to Saturday and Sunday and then to Sunday and Monday. The work weeks may be staggered in accordance with the Railways’ operational requirements.
2) The Canada Labour Code is explicit in requiring that work schedules should be limited to eight hours in one day or forty hours in a week. The Code does not stipulate "regular" or "relief assignments" but is clear in its intent that two rest days should follow five work days. This is given as a minimum requirement or a floor or standard as are other sections of the Code
This is clarified in Section 28(1). "This Part applies, notwithstanding any other law or any custom, contract or arrangement, whether made before or after the first day of July 1965, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to him than his rights or benefits under this Part."
3) With great respect for Judge Reville and his reasoning, the circumstances of the 1964 case may differ on an important point. This Arbitrator was impressed by a phrase used by Judge Reville in his decision. With reference to Paragraph 3 – "The grievor was granted (italics mine) and took advantage of the rest days established by his new assignment". It would appear then that permission was given by the General Chairman or equivalent Union officer to deviate from the normal rest days off pattern in the Reville case. Such was not the case in the Miller situation.
Article 3.3 was not observed with regard to Miller.
In the event that a situation arises which makes it impracticable to assign consecutive rest days to all employees covered by Rule 3.1 at a particular point the following procedure shall be observed by the Local Committee and Local Management. Where arrangements are made under (c) and (d) of this Rule 3.3 the General Chairman will be advised.
4) Assuming it to be an unusual circumstance that Mr. Miller had to work eight (8) days in a row in the June 22nd to June 29th period, it is difficult to rationalize the Company’s action in working Mr. Miller eleven (11) days in a row. This would be seen to be a violation of the intent to have employees work five days in a row with two days off for rest or extra compensation in lieu of rest as proscribed by the Agreement between the parties and the Canada Labour Code.
The grievance is upheld and Mr. Miller should be compensated for nine (9) days of work at half-time pay at the rate in effect in June, July 1974.
April 7, 1976