SHP - 41
IN THE MATTER OF AN ARBITRATION
CP RAIL AND CANADIAN NATIONAL RAILWAYS
ASSOCIATED RAILWAY UNIONS AND DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, A.F.ofL. - C.I.O.
RE:IN THE MATTER OF A DISPUTE RELATING TO THE SUBSTITUTION OF "NEW BRUNSWICK DAY" AS A GENERAL HOLIDAY IN THE PROVINCE OF NEW BRUNSWICK
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNIONS:
J. W. Asprey
J. A. Pelletier
APPEARING FOR THE COMPANYS:
J. A. McGuire
R. St. Pierre
A hearing in this matter was held in Ottawa on March 25, 1977.
AWARD OF THE ARBITRATOR
The joint statement of dispute submitted to arbitration by the parties is as follows:
The dispute relates to the substitution of New Brunswick Day (the first Monday in August) for Easter Monday in the Province of New Brunswick.
Inasmuch as New Brunswick Day is included in the Minimum Employment Standards Act of that Province, and Easter Monday is not, the railways contend that it should be substituted for Easter Monday as a general holiday under the collective agreements between the parties hereto. The Unions do not agree with the railways" contention.
There are various collective agreements covering employees of the Companies in bargaining, units represented by the Unions, and affecting employees in New Brunswick as well as in other provinces. These agreements each provide for ten general holidays in each year. Eight holidays are common to all provinces. The other two holidays vary from one province to another. With respect to New Brunswick, Nova Scotia and Prince Edward Island, the agreements provide that the two additional holidays are to be Easter Monday and Remembrance Day. The collective agreements then go on to make the following provision with respect to the general holidays observed in particular provinces:
If, in any province or part thereof, a holiday is more generally recognized than any one of the holidays specified above, the signatories hereto 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.
Since the collective agreements were made the Province of New Brunswick has enacted and proclaimed legislation establishing the first Monday in August of each year as a general holiday known as "New Brunswick Day". It is the Companies' position that as a result of this legislation New Brunswick Day has become a holiday more generally recognized, in New Brunswick, than Easter Monday, and that it should be substituted therefor in that province. The Unions, as the joint statement indicates, do not agree with the Companies' contention.
One argument put forward by the Unions was that employees in some at least of the bargaining units involved would prefer to retain Easter Monday as a general holiday since, together with Good Friday, gave employees a four-day weekend. The Companies, on the other hand, urged that it was preferable for their employees to have a holiday when most of the other citizens of the province did, since it was a day on which, with some exceptions, there would generally be less work to do. Neither of these arguments goes to the issue before me, which is not one of the desirability of a holiday on one day or another, but simply one of determining whether or not, as a matter of fact, New Brunswick Day is more generally recognized than Easter Monday as a holiday in New Brunswick. Once this determination is made, then it is simply a matter of applying the terms of the collective agreement which the parties have made.
A further argument advanced by the Unions was that the Companies' position was inconsistent with its previous recognition of Easter Monday as the more generally recognized holiday. Of course, the Company has changed its position in this regard, the collective agreement, however, expressly contemplate changes in the holidays when there are changes in the "general recognition" of one or another. Again, whether the Company's position has changed or not, the issue to be decided in this case can only be whether in fact New Brunswick Day is, at the present time, a more generally recognized holiday than Easter Monday in New Brunswick. If it is found that it is, then it must be substituted therefore in New Brunswick. Once he has made his finding on the question of fact, an arbitrator would have no jurisdiction to make any award other than that required by the terms of the collective agreement.
The material before me shows that the law of New Brunswick has been changed to make "New Brunswick Day" a general holiday. This is the effect of The New Brunswick Day Act, and observance of the holiday in many cases is required by reason of amendments to the Interpretation Act and the Minimum Employment standards Act. In addition, many collective agreements provide either implicitly or explicitly for the observance of New Brunswick Day. Department of Labour surveys reveal that, so far as employees subject to collective agreements are concerned, New Brunswick Day has indeed become more generally recognized as a holiday× While it was argued that organized employees represent only a portion of the work force, the fact is that unorganized employees would, by reason the general legislation, be required to observe New Brunswick Day as a holiday. From all the material before me the conclusion is inescapable that New Brunswick Day has become a holiday more generally recognized than Easter Monday in New Brunswick, and I so find.
It being then the case that New Brunswick Day is more generally recognized than Easter Monday as a holiday in New Brunswick, it must be my award that the parties substitute New Brunswick Day for Easter Monday as a general holiday in New Brunswick in the collective agreements with respect to which this arbitration is brought. I award accordingly.
DATED AT TORONTO THIS 29th DAY OF MARCH, 1977.
J. F. W. Weatherill