SHP - 49
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
AND IN THE MATTER OF A DISPUTE CONCERNING THE APPLICATION OF RULE 6.7 OF WAGE AGREEMENT NO. 16
SOLE ARBITRATOR:J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on January 11, 1978.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and of Issue agreed to by the parties in this matter is as follows:
JOINT STATEMENT OF FACTS:
1. At 0230 May 10, 1977, Carmen P. Wilcox, H. Wiens, F. Beitel, B.S. Trew, R.G. Hayward, D. Sahaidak, W.A. Cook, W.J. Lancaster, R.E. Keir and J.S. McLean (the claimants) were ordered for emergency wrecking service on the Moose Jaw Auxiliary.
2. On or about midnight, May 10, 1977, the claimants were relieved from duty at the work site and permitted to go to bed.
3. At 0600 May 11, 1977 the claimants were returned to duty on the Moose Jaw Auxiliary.
4. The claimants were paid continuous time for the twenty-four hour period between 0230 May, 10, 1977 and 0230 May 11, 1977.
5. The claimants submitted wage claims which included the 3.5-hour period between 0230 and 0600 May 11, 1977
6. The Company declined to pay the wage claims for the period between 0230 and 0600 May 11, 1977.
JOINT STATEMENT OF ISSUE:
1. It is the position of the Union that the Company violated rule 6.7 of Wage Agreement No. 16 when it declined to pay the wage claims.
2. It is the position of the Company that no violation of Wage Agreement No. 16 occurred when the wage claims wore denied.
* * * * *
Rule 6 of Wage Agreement No. 16 deals generally with Emergency Calls and Wrecking Service. The grievors in this matter were, as the Joint Statement makes clear, in wrecking service at the material times. They were entitled to the benefit of, and subject to, Rule 6. Rule 6.7, which is particularly in issue, is as follows:
6.7 If employees engaged in wrecking service are relieved from duty and permitted to go to bed for five hours or more, such relief time will not be paid for.
As appears from the Joint Statement, although the grievors were relieved from duty at about midnight on May 10, they were paid for the twenty-four hour period ending at 0230 on May 11. They had been called for 0230 on May 10 and were, accordingly, entitled to payment until 0230 pursuant to Rule 6.6, the last sentence of which provides that "Their pay shall be continuous including meal period during the first twenty-four hours".
The Union contends that the grievors ought also to have been paid in respect of the period from 0230 to 0600 hours on May 11. The argument advanced in support of this contention is that the period in question does not come within the scope of article 6.7 since the crews were paid up until 0230 hours on May 11, and that therefore the hours from 0230 to 0600 should be paid for.
In my respectful view, this conclusion does not follow. There is nothing in the agreement to extend the effect of Rule 6.6 to provide for payment for off-duty employees during a period beyond the first twenty-four hours. Rule 6.7 provides that certain relief time will not be paid for. In the instant case, that provision was partially overridden by the effect of Rule 6.6. It does not follow, however, that because the effect of Rule 6.7 is partially overridden by another provision, it should therefore by completely overridden. That is simply not a logical conclusion.
Further, even if it were to be concluded that Rule 6.7 does not apply in the circumstances (which is not my conclusion in this case) it does not follow from that that the relief time in question is to be paid for. Rule 6.1 provides generally that employees called for emergency work are to be paid from the time ordered to leave home station until the time of return "for all time worked". Payment for time not worked, such as for relief time, must be based on some express provision in the agreement, such as Rule 6.6 which as has been noted, required that payment be made to the grievors for the first two and one-half hours or so of their relief time. Another example of payment for time not worked might arise pursuant to Rule 6.2, which in effect calls for a minimum eight hours' payment per day, although of course that provision did not need to be invoked in this case, where the grievors were at work for a lengthy period. There appears to be no express provision for payment, however, which would cover the period from 0230 to 0600 hours on May 11 in the circumstances of this case.
In fact, it is my view that Rule 6.7 does apply: the grievors were engaged in wrecking service, they were relieved from duty and permitted to go to bed for five hours or more (that period referring, in my view, to the period when they were relieved from duty and permitted to go to bed and not to whatever period of time they may actually have been in bed), and those are precisely the circumstances to which Rule 6.7 applies. The relief time would not, therefore, have been paid for at all were it not for the overriding provisions of Rule 6.6 which apply to the first twenty-four hours of an emergency assignment.
The general provisions of Rule 6.7 are thus subject to being overridden, to the extent necessary, by the more particular provisions of Rule 6.6. This does not, however, mean that employees are to be paid for relief time apart from those cases to which an express provision of the agreement, such as Rule 6.6, applies. To the extent that they are not overridden by such an express provision, then the general provisions of Rule 6.7 remain applicable. The provisions of Rule 6.6 did not call for payment after the conclusion of the first twenty-four hours in the circumstances of this case, that is after 0230 hours on May 11. There is no other basis for payment in respect of the period from 0230 to 0600 hours on that day, and the general provisions of Rule 6.7 still apply.
For the foregoing reasons, the grievance is dismissed.
DATED at Toronto, this 30th day of January, 1978.
(signed) J.F.W. Weatherill