SHP - 91
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT, AFL - CIO
RE:GRIEVANCE OF S. CHEREPA
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on February 12, 1981.
AWARD OF THE ARBITRATOR
The Joint Statement of Facts and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACTS
1. On September 29, 1979, Carman S. Cherepa (the claimant), whose regularly assigned hours are 0001 to 0800 hours, was called for auxiliary service on the Thunder Bay Auxiliary at 2200 hours.
2. On or about 2200 hours on September 30, 1979, Mr. Cherepa, along with the other members of the auxiliary crew, were given rest following completion of the first 24-hour period.
3.At 0600 hours on October 1, 1979, the claimant was returned to duty on the Thunder Bay Auxiliary.
4. On or about 2100 hours on October 1, 1979, Mr. Cherepa, along with the other members of the auxiliary crew, were given rest.
5. At 0500 hours on October 2, 1979, the claimant was returned to duty on the Thunder Bay Auxiliary.
6. The claimant submitted wage claims which included the six-hour period between 0001 and 0600 October 1, 1979, and the five-hour period between 0001 and 0500 October 2, 1979.
7. The Company declined to pay the wage claims for the periods 0001 and 0600 October 1, 1979, and 0001 and 0500 October 2, 1979.
JOINT STATEMENT OF ISSUE
1. It is the position of the Union that the Company violated Rule 6.6 of Wage Agreement No. 16 when it declined to pay the wage claims.
2. It is the position of the Company that Rule 6.6 was not violated and that the claim is not supported by the Collective Agreement.
It will be seen from the agreed facts that the grievor, called for auxiliary service at 2200 hours on September 29, was on duty for some twenty-four hours until taking rest at 2200 hours the following day. There is no question as to his payment for that twenty-four hour period.
After eight hours rest, the, grievor returned to duty at 0600 on October 1, and worked until 2100 hours that day, before taking rest again. Then after eight hours rest, he was returned to duty at 0500 on October 2. He returned to his home terminal and was released from duty at 1030 hours on that day. Again, no question arises as to payment to the grievor for time on duty.
The work involved, replacing a bridge span, was "planned" work, but members of the auxiliary crew, called to perform such work, are considered to be in "wrecking service". Both parties agree as to that.
The grievor's regularly assigned hours, as set out in the joint statement, are from 0001 to 0800, and it appears that he would, in the normal course, have worked those hours on the days in question. On some of the days referred to, he did work those hours, or part of them. Thus on September 30 he worked throughout the day (having started the night before), until 2200 hours. On October 1, he worked from 0600 until 2100 and on October 2, he worked from 0500 until 1030. He did not, however, work from 0001 until 0600 on October 1 or from 0001 until 0500 on October 2, periods of time when he could normally have worked, in accordance with his regular schedule. Obviously, in view of the lengthy hours he did work, it is understandable that the grievor would require rest, and that he be relieved from working during the periods referred to. The question is, however, whether or not the provisions of the collective agreement call for payment to the grievor, in the circumstances described, in respect of these periods when he would, normally, have worked.
It is the contention of the union that there has been a violation of article 6.6 of the collective agreement, in that the grievor was not paid for all the hours he would regularly have worked at his home station. Article 6 of the collective agreement, in its entirety, is as follows:
Rule 6 - EMERGENCY CALLS AND WRECKING SERVICE
6.1 Employees regularly assigned to work at a shop, engine house, repair track or inspection point when called for emergency work away from such shop, engine house, repair track or inspection point, will be paid from the time ordered to leave home station until his return for all time worked, in accordance with the practice at home station, and all time waiting or travelling shall be paid for at straight time rates for straight time hours and time and one-half for overtime hours.
6.2 In no case shall he be paid for a total of less than eight (8) hours each calendar day, when such irregular service prevents the employee from making his regular daily hours at home station. Where meals and lodging are not provided by the railway, actual necessary expenses will be allowed.
6.3 Employees will be called as nearly as possible one hour before leaving time and on their return will deliver tools at points designated.
6.4 If required to leave home station, during overtime hours, they will be allowed one hour preparatory time at time and one-half.
6.5 If during the time on the road, men in emergency service are relieved from duty between the hours of 9 p.m. and 7 a.m. and permitted to go to bed for 5 hours or more, such relief time will not be paid for, provided suitable sleeping accommodation is available.
6.6 Employees engaged in wrecking service shall be paid under this Rule 6, except that all time working, waiting or travelling on assigned rest day(s) including holidays that fall on a rest day shall be paid for at the rate of time and one-half, and all time working, waiting or travelling on week days after the recognized straight time hours at home station shall also be paid for at the rate of time and one-half. Time working, waiting or travelling on a holiday which is on a regular work day shall be paid for under Rule 46. Their pay shall be continuous including meal period during the first twenty-four hours.
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.
6.8 Wrecking service will commence at time called. 6.9 This Rule 6 also applies to Carmen and other Shopmen sent out on the road for other emergency work, except as to Carmen regularly assigned for road repair work as per Rule 8.
6.10 Employees who are called for wrecking service, and who, on responding to call, are not sent out of terminal, will be paid a minimum of two hours straight time.
6.11 A minimum of three hours at prevailing overtime rates for a call, as provided for in Rule 5 does not apply to wrecking or road emergency work paid under the provisions of this Rule 6. It is, however, understood that a minimum of two hours straight time will be paid for a call under this Rule 6.
The union also referred to article 5.14 of the collective agreement which provides that where it is necessary for employees to work overtime, they shall not be laid off during regular working hours to equalize the time. In my view, that article has no application in the instant case. When the grievor was at rest in the circumstances described above, he could not properly be said to be "laid off", and the purpose of giving him rest was surely not "to equalize the time". For each of the days referred to, he was paid much more than the eight hours minimum called for (in such cases) by article 6.2. It may also be noted that article 6.2 contemplates that emergency and wrecking service may be "irregular", and that the "regular daily hours at home station" may not be made. That article does not guarantee payment of any employee's particular daily hours, but does guarantee payment of at least that number of hours. Such a guarantee was met in this case.
Article 6.6 indicates that employees "engaged in wrecking service" (as the grievor was at the material times) are to be paid in accordance with article 6 as a whole. Thus, they are to be paid "for all time worked" between the time ordered to leave home station until return. As well, waiting and travelling time are to be paid for (article 6.1). Rule 6.6 does set out certain exceptions, relating to holidays or rest days, and the rate of pay applicable in respect of hours worked outside of the regular hours worked at home station, but while those exceptions may relate to the rate of pay applicable in the grievor's case they do not relate to the issue to be decided here. It is to be noted that pay is to be continuous during the first twenty-four hours. It is not necessarily continuous thereafter.
While article 6.5 may be thought (despite the general provision of article 6.6), to apply only to employees in "emergency service", and thus not to apply in this case, article 6.7 explicitly deals with "employees engaged in wrecking service", and thus with this case. During the hours for which payment is claimed here, the grievor was relieved from duty and permitted to go to bed for five hours or more Article 6.7 is clear as to the result (subject to the requirement of pay for the first twenty-four hours): "such relief time will not be paid for".
That provision, in my view, is dispositive of this case. The hours in question are not hours for which the grievor was entitled to payment. The other provisions, guaranteeing payment at least equal to that he would regularly have earned, were complied with.
There was, in these circumstances, no violation of the collective agreement. It may be added that the payments made to the grievor appear to be quite consistent with those contemplated by the memorandum of interpretation referred to by the union.
For the foregoing reasons, the, grievance is dismissed.
DATED AT TORONTO, this 25th day of February, 1981.
(signed) J.F.W. Weatherill