SHP - 50
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:APPLICATION OF RULE 47.4 (c) 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 in this matter is as follows:
Ogden Shops, Calgary, was closed for the annual vacation period between July 11, 1977 and August 8, 1977 inclusive. The closure on August 6, 1977 was to compensate for the Alberta Civic Holiday which would otherwise have been observed on August 1, 1977.
The Union claimed one day's wages for August 8, 1977 on behalf of the Ogden Shops' employees whose names are appended hereto because they were not permitted to work on August 8, 1977.
The Company declined payment of these wage claims.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that rule 47.4 (c) of Wage Agreement No. 16 was violated when the Company declined payment of the wage claims for, August 8, 1977.
It is the position of the Company that no violation of Wage Agreement No. 16 occurred when the wage claims were declined.
* * * *
Section 4 thereof deals generally with arrangements either for carrying on work or for closing down during vacation periods. Rule 47.4 (b) sets out, the general intention that main shops (and the grievance relates to a "main shop"), be closed for the annual vacation period, the representatives of the parties being called on to agree prior to March 1st of each year as to the date on which the various shops will close. Rule 47.4 (c) is as follows:
(c) The period of closedown for annual vacation at main shops will not exceed four weeks in each year.
In the fall of 1976 the Union conducted a poll of its members which revealed that a majority favoured an annual vacation in 1977 which would begin on July 11 of that year. While the management, it seems, would have preferred that the annual vacation period begin on July 4, it was agreed that it would begin on July 11, and notice was posted to the effect that the annual vacation dates would be July 11 to August 5, 1977, inclusive. The notice indicated that the plant would re-open on August 9, August 8th being treated as a lieu date for employees entitled to the August 2nd statutory holiday.
As noted above, Rule 47 deals generally with the matter of vacations and vacation pay. It contemplates that main shops may be closed for annual vacations for not more than four weeks. Rule 46 of the collective agreement deals with general holidays, and provides, in Rule 46.3, that where one of the general holidays falls on a Sunday or Saturday the day observed by the Federal Government in respect of its employees shall be recognized. August 1 was a general holiday for the employees in question, and pursuant to Rule 46.3 fell to be recognized on August 2, 1977.
Rule 46.5 of Wage Agreement No. 16 provides as follows:
46.5 A qualified employee whose vacation period coincides with any of the general holidays specified in Rule 46.2 shall, receive an extra day's vacation with the pay to which the employee is entitled for that general holiday.
Since the August 1 general holiday, recognized on August 2, fell within the vacation period of many of the employees, such employees were entitled to an extra day's vacation with pay, pursuant to Rule 46.5. For those employee's, August 8 was granted as a "lieu date", that is to say since they enjoyed August 2 as a holiday with pay, they enjoyed August 8 as an extra day of vacation with pay.
The grievors are employees not entitled to a vacation with pay of the same duration as those just referred to. For them the August 1 holiday, celebrated on August 2, did not coincide with a period of vacation with pay. They would, I assume (and subject to the qualification provisions of the collective agreement) be entitled to holiday pay in respect of August 2. They were not, however, entitled to an extra day's vacation with pay on August 8. Since the plant was closed on that day, they had no work and no pay on that occasion. The issue is whether this was a violation of the collective agreement.
It was, it seems, usual for the plant to be closed on the days celebrated as general holidays. August 8, 1977, however, was not a day celebrated as a general holiday. It was a "lieu date" for employees entitled to the August 1 holiday (celebrated on August 2) where that holiday coincided with their vacation period. That is, it was an extra day's vacation with pay for those employees. The Company considered that because of the number of employees who would be absent by reason of having this extra day's vacation it would not be practical to open the plant on August 8. Accordingly, it remained closed. The grievors, who were neither on vacation nor on holiday that day, were without work.
I was not referred to any provisions requiring the Company to operate its shops and to provide employment. Apart from questions which might arise as to entitlement to available work by reason of seniority or of a guarantee of wages (neither of which arises in this case) the collective agreement does not appear to prevent the Company from closing dawn its operations, with the exception of the prohibition set out in Rule 47.4 (c), namely, that the period of closedown for annual vacations will not exceed four weeks.
In fact, the plant was closed for four weeks for annual vacations. Many employees' were entitled to an extra day's vacation with pay by virtue of Rule 46.5. The plant was closed down on that extra day, August 8, because of the practicalities of the matter, so many employees being absent. The general vacation period itself was not extended and it is reasonable to conclude that, had only a few employees been entitled to an extra day's vacation, the plant might well have been opened on August 8.
While August 8 was, for the employees entitled thereto, an "extra day's vacation" the pay which those employees' received for it was the pay for the general holiday. The day was thus a holiday with pay pursuant to Rule 46, which deals with general holidays, rather than Rule 47, which deals with vacations. It would have been possible, if perhaps undesirable, to have fixed some other date as the "lieu date" for the holiday, and thus to have re-opened the plant on August 8. Had it then been closed on the "lieu date" it would have been clear that the closing was not a closedown for annual vacation within the meaning of 47.4 (c). But the instant case differs from that situation only in the date chosen for the "lieu date". In, either case the "lieu date" is not part of the closedown for annual vacation although it immediately followed it.
The requirement that the closedown not exceed four weeks does not carry the implication that the Company may not close down its operations on other occasions and I was not referred to any provision of the collective agreement which would require the Company to have work available for employees where it is considered impractical that regular operations be carried on. It is my conclusion, therefore, that there was no violation of the collective agreement in the circumstances of this case.
For the foregoing reasons, the grievance is dismissed.
DATED at Toronto, this 30th day of January, 1978.
(signed) J.F.W. Weatherill