SHP - 94
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian Pacific Limited
(the "Company")
AND
CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
(the "Union")
RE:
GRIEVANCE OF J. ST. MARSEILLE, L. CARDINAL & D. A. LACKEY
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J.W. Asprey
E.W. Tandy
APPEARING FOR THE COMPANY:
M.M. Yorston
A hearing in this matter was held in Montreal on March 12, 1981.
AWARD OF THE ARBITRATOR
The Joint Statement of Fact and Joint Statement of Issue in this matter are as follows:
JOINT STATEMENT OF FACT:
1. On or about 0200 hours on Tuesday, September 2, 1980, the Sudbury auxiliary crew were called for auxiliary service to a wreck site 46 miles west of Cartier, Ontario.
2. Two Carmen, who were members of the regular auxiliary crew, and one Carman, who was a member of the spare auxiliary crew who had not yet worked a regular shift following their annual vacation were called for duty.
3. Three Carmen, Messrs. J. St. Marseille, L. Cardinal and D. A. Lackey, who are members of the spare auxiliary crew, submitted wage claims for 58 1/2 hours each at prevailing overtime rates due to not having been called for duty.
4. The Company declined payment of the wage claim of Messrs. St. Marseille, Cardinal and Lackey.
JOINT STATEMENT OF ISSUE:
1. It is the position of the Union that by not calling the grievors, the Company violated Article 7 of the Memorandum of Understanding between the Brotherhood Railway Carmen of the United States and Canada and Canadian Pacific Limited with respect to emergency and auxiliary services (CP Rail), originally signed March 23, 1979, and renewed April 17, 1980.
2. It is the position of the Company that as the regular auxiliary crew members were available for duty on September 1, 1980, a general holiday, they were available for work on the auxiliary September 2, 1980, and there was therefore no violation of the Memorandum of Understanding.
The grievors are regularly assigned Carmen, and spare members of the auxiliary crew. Of the employees called for auxiliary service on the day in question, two are regular members of the auxiliary crew, and one is a spare. The union contends that none of those who were called should have been called, and relies on article 7 of a supplementary memoranda of understanding between the parties, relating to emergency and auxiliary service. That article is as follows:
7. It is understood that an employee will not be subject to call after the termination of his last shift worked prior to vacation, until the commencement of the first shift worked following his vacation. Such an employee will advise the supervisor twenty-four hours in advance of his vacation commencement. Additionally, an employee whose work on the auxiliary or other emergency service carries him into his vacation period shall, provided relief is available, have the option of commencing his vacation or continuing to work in emergency service for the duration of that assignment. If he elects to commence his vacation he will do so as soon as he is relieved. If he elects to continue to work on the assignment, he will not be entitled to penalty payments for his rescheduled vacation under the terms of Rule 47.1(l) of the Collective Agreement.
In the instant case the employees who were called for the work in question had been on annual vacation. The last day of their vacation was Friday, August 29, 1980. Their days off were Saturday and Sunday, August 30 and 31. They would then normally have returned to work on Monday September 1, but that day was a general holiday, and those employees did not work. They were, however, available for duty on September 1. That was a condition of their entitlement to holiday pay, and their availability for duty on that day was ascertained when enquiry was made of them. There was nothing improper in that.
The purpose of article 7 is to protect employees from being disturbed while on vacation. It does not limit the company in its right to require work to be done on holidays, nor is its purpose to promote the interests of some employees over those of others. While it may be that in a general way a person might speak of his "vacation" as beginning when he leaves works and ending when he returns, the fact is that the collective agreement provides very precisely for vacation entitlement, holidays with pay and rest days. In the instant case, the time off to which the employees concerned were entitled by way of vacation ended on August 28. After that, their absence from work was by reason of rest days or holidays. On the holiday, they were available for duty. Their vacation had ended, and article 7 did not then afford them any "protection" from being called.
There is no reason to conclude that the grievors should have been called for the work in question rather than the employees concerned. There has been no violation of the collective agreement and the grievance must therefore be dismissed.
DATED AT TORONTO, this 17th day of March, 1981.
(signed) J.F.W. Weatherill
Arbitrator