SHP - 81
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:ARTICLE 47.1(l) 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 Ottawa on July 30, 1980.
AWARD OF THE ARBITRATOR
The Joint Statement of Facts and the Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACTS
The Company's Angus Shops, Montreal, closed for annual vacation purposes from July 13, 1979 to August 12, 1979, during which, time some employees remained on duty for maintenance purposes. A number of employees worked longer than originally scheduled during this period.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the Company violated Rule 47.1(l) of Wage Agreement No. 16 when it failed to compensate the following employees at overtime rates for the periods shown:
Employee Claim Period
Mr. D. Gaudreault August 6 to August 10
Mr. R. Blais July 30 to August 3
Mr. N. Malsic August 6 to August 10
Mr. D. Regis July 23 to July 27
Mr. P. Desparois July 30 to August 3
Mr. M. Dumas August 6 to August 10
Mr. M. Ferland July 16 to August 10
Mr. P. Thibodeau July 16 to August 10
It is the position of the Company that the employees in question are not entitled to payment at time and one-half because:
(1) The employees were not scheduled for annual vacation at the time of the shop closedown
(2) the Company did not initiate a change in the employee's scheduled annual vacation dates,
and there was no violation of rule 47.1(l).
This is a claim for payment to the grievors at overtime rates in respect of certain work performed by them during the period when the shops were closed for vacation. It is contemplated that certain work will be performed during that time. In some cases employees are designated by the company to perform work, in others the union is asked to designate employees to the number required by the company.
With respect to the 1979 closing of the shops, the company did require certain employees to work during the period, or part of it, scheduled for their annual vacations. Such persons were entitled to be paid and were (eventually) paid at overtime rates for such work That was in accordance with article 47.1(l) of the collective agreement, which is as follows:
(l) An employee who is entitled to vacation shall take same at the time scheduled. If however, it becomes necessary for the Company to reschedule an employee's scheduled vacation dates. he shall be given at least fifteen working days advance notice of such rescheduling and will be paid overtime rates for all work performed during his scheduled vacation dates and will be granted vacation with pay to which he is entitled at a later date.
NOTE: This Clause 47.1 (l) does not apply where rescheduling is the result of an employee exercising his seniority to a position covered by another vacation schedule, nor to apprentices moving between main shops and running repair points.
There were however, other employees who worked during the shutdown and were only paid at straight time rates. The grievors were among these. Their cases are not all identical.
In the case of Mr. Thibaudeau (his name is misspelled in the Joint Statement), he was entitled to three weeks' vacation, but in fact was required to work throughout the entire four weeks of the shutdown, and to take his vacation at some other time. His case would appear to come generally within article 47.1(l) of the agreement. However, Mr. Thibaudeau worked at that time because he had bid, in June, into a position of Mechanic in the garage which had already been designated as one where it was required to work during the shutdown. Mr. Thibaudeau knew at the time he applied for the job that work during the shutdown was one of its requirements. He thus moved to the job and accepted its vacation schedule. His schedule was not changed by the company except in the sense of the note of article 47.1(l). Accordingly the article does not apply in his case.
In the remaining cases, the company contends that employee's schedules were changed at their own request. In one case (Mr. Gaudreault) the employee simply appeared at the shop in the hope that work would be available. Work was found, but it could not properly be said that the company had changed his schedule within the meaning of article 47.1(l). Others, who may have had less than four weeks' vacation entitlement and who were at work during a part of the shutdown, continued to work during a further part of the shutdown when they would otherwise have been on vacation. The company's evidence is that such employees were not required to work, but had requested to do so. The union suggests that since it began to appear that more employees would be required than had at first been thought necessary, the company put pressure on employees to work during the period. If in fact any vacation schedules were changed in this way at the company's request, then article 47.1(1) would apply and payment at overtime rates should be made, as indeed it was in some cases. If, however, the company simply accomodated the requests of employees, who for one reason or another, wished to work at that time, the article does not apply and overtime was not payable.
In one case, that of Mr. Regis, the employee's evidence is that he worked the first week of the shutdown at straight time (since he was not entitled to four weeks' vacation) but that he could not then take his scheduled vacation because his foreman asked him to work the following week, and he did. There is a conflict in the evidence on this point, the foreman saying that Mr. Regis came to him, along with a union representative, seeking work.
While the evidence on the point is perhaps not very satisfactory, I am prepared to accept Mr. Regis' more detailed testimony, and find that in his case, his schedule was changed by the company. Accordingly he was entitled to payment at overtime rates for the period in question, and I so award. There is, however, no reason not to accept the foreman's evidence with respect to the other cases, in which I find that the work was performed as a result of the employees' own requests. These other grievances are accordingly dismissed.
It is accordingly my award that only the grievance of Mr. Regis is allowed.
DATED AT TORONTO, this 1st day of August, 1980.
(signed) J.F.W. Weatherill