SHP - 99

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian Pacific Limited

(the "Company")

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS

(the "Union")

RE: ELIGIBILITY OF EMPLOYERS FOR CERTAIN JOB SECURITY BENEFITS

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

APPEARING FOR THE UNION:

A. Manocchio

 

APPEARING FOR THE COMPANY:

J.A. McGuire

 

 

A hearing in this matter was held in Montreal on April 28, 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:

The grievors, list attached, were on laid-off status July 28 to August 11, 1980, during the annual closedown of Angus Shops, but were nevertheless eligible for General Holiday pay for August 4, 1980. In addition, the grievors waiting period for Job Security Lay-off benefits terminated August 3, 1980.

The Company reduced the Job Security benefit for week of August 4 by the amount of General Holiday pay received by each grievor.

JOINT STATEMENT OF ISSUE:

It is the position of the Union that the Company has violated Articles 5.3(a)(ii) and 5.5(× b) of the Job Security Agreement and that the employees qualified for both General Holiday pay and benefits of $174.00 from the Job Security Fund for the week commencing August 4, 1980.

It is the position of the Company firstly that in respect of 13 of the grievors, the Union has not complied with time limits of the grievance procedure and that accordingly their grievances are not arbitrable; and secondly that in respect of the remaining grievors, the provisions of the Job Security Agreement preclude them from receiving both General Holiday pay and full Job Security benefits for the week of August 4, 1980.

The grievors are employed at the company's Angus Shops. These shops, like other "Main Shops" are, by agreement of the parties, closed down for an annual vacation period. The annual shut-down is of four weeks' duration. In the cases of the grievors, at least, while they were able to take their vacations during part of the shutdown, they did not have sufficient vacation entitlement at the material times to carry them through the four-week shutdown. They were, therefore, laid off during that part of the shutdown when they were not on vacation. In particular the grievors were on laid-off status (as the Joint Statement of Fact makes clear), from July 28 to August 11, 1980.

A general holiday occurred during the period when the grievors were laid off. The grievors met the qualifications for holiday pay, and were paid for the holiday, which fell on August 4, 1980.

It would appear that the grievors did not become entitled to unemployment insurance during the time they were laid off. They were, however, entitled to certain benefits under the Job Security Agreement, dated April 26, 1979, in effect between the parties. There is no doubt that the grievors were, in a general way, eligible for certain benefits in the event of layoff. Weekly benefit payments were payable to them after the expiry of a seven-day waiting period. The first day of lay-off being July 28, 1980 (a Monday, and the date when the grievors would have returned to work after vacation had the plant not been shut down), the seven-day waiting period expired at midnight on August 3, and the grievors were entitled to weekly benefit payments from and after August 4.

Article 5.3(a) (ii) of the Job Security Agreement is as follows:

 

(ii) During any week following the seven-day waiting period referred to in Article 5.1 that an eligible employee is not eligible for unemployment insurance benefits account eligibility for such benefits having been exhausted or account such employee not being insured for unemployment insurance benefits, or account unemployment insurance waiting period, such employee may claim a weekly layoff benefit for each complete week of seven calendar days laid off of the maximum unemployment insurance weekly benefit currently in force (for 1979 the maximum payment is $159.00) or such lesser amount that when added to the employee's outside earnings for such week will result in the employee receiving 80 per cent of his basic weekly rate (hourly-rated employees 40 x the basic hourly rate; seasonal and spare employees, 80 per cent of average weekly earnings over the eight week preceding layoff).

That article sets out the periods for which certain employees (including the grievors) may claim weekly layoff benefits and indicates the nature of the benefits. The grievors were entitled to weekly layoff benefits in this case because they were not eligible for unemployment insurance benefits, because they were still in the waiting period for such benefits. The weekly layoff benefit for which they qualified was, as is set out in the Joint Statement, $174.00.

Article 5.5(b) of the Job Security Agreement is as follows:

(b) Temporary recall for less than five working days.

An employee who has qualified for weekly layoff benefits in accordance with Clause 1 of Appendix "B" will not have his weekly benefit payment reduced for any claim week during which he returned to the service temporarily for less than five working days.

The grievors were not called on to work on August 4, the general holiday, although they received holiday pay in respect of that day. They did not, in my view "return to the service temporarily", but remained on layoff throughout the period from July 28 to August 11. Article 5.5(b), then, does not apply in this case.

The company did, however, reduce the job security benefit for the week of August 4 by the amount of general holiday pay which each grievor received. The company's position is that the grievors could not be entitled to both benefits. It is argued that the amount to which an employee is entitled is, under article 5.3(a) (ii), an amount "that when added to the employee's outside earnings for such week will result in the employee receiving 80 per cent of his basic weekly rate," or "the maximum unemployment insurance weekly benefit currently in force" ($174.00).

The general holiday pay, so the company argued, was not "outside" earnings. While holiday pay is, in a general way, "earned" and forms part of an employee's earned income, it is not earned by attendance at work on the holiday itself. Further, it is not earned by virtue of any employment "outside" that with the employer in question, which I think is the sense in which the term is used in article 5.3 (a) (ii). In any event, however, even if the whole amount of the weekly layoff benefit ($174.00) were added to the holiday pay ($72.16), the employee would not (on the example furnished by the company) receive 80 per cent of his basic weekly rate.

Article 5.3(a) (ii) would appear to limit the company's obligation in respect of weekly layoff benefit to the amount of "the maximum unemployment insurance weekly benefit currently in force", (presently $174.00). Where an employee has "outside earnings", then the company may contribute some smaller amount, so that the employees total receipts approach, or reach, 80 per cent of his basic weekly rate. The company is not a guarantor of 80 per cent of an employee's basic weekly rate. The employee, however, is assured of a benefit (or combined benefit and outside earnings) of at least $174.00, and perhaps more, up to 80 per cent of his basic weekly rate.

In the instant case, as I have noted, even if the general holiday pay were to be considered as "outside earnings" (although I think it should not), the company would still have been liable to pay the whole $174.00, the employees total receipts being less than 80 per cent of their basic weekly rate.

The company's main defence to the claim is based on article 4 of Appendix "B" to the Job Security Agreement. Appendix "B" deals with the matter of eligibility for benefits, and the grievors, as has been noted, were eligible in a general way, by reason of their having been laid off for the times described. Article 4 (d) of Appendix "B" however, is as follows:

Notwithstanding anything to the contrary in, this Appendix, an employee shall not be regarded as laid off:

d) in respect of any period in which he is receiving other payments of any kind or nature directly from the Company, except as otherwise expressly provided in Article 5.5;

Article 5.5. (part of which was set out above) provides generally that no weekly layoff benefit will be made for parts of a claim week. Certain exceptions to that are set out (as for example in the case of "temporary recall"), but none of those exceptions applies in the instant case. It follows that if the payment of general holiday pay meant that article 4(d) of Appendix "D" applied, the grievor would not be entitled to any weekly layoff benefit at all for the period in question, since payments are made for "each full week" of layoff. The company, it should be noted, did not rely on this anomalous interpretation. It did, however, deduct the amount of the general holiday pay from the $174.00 payment made pursuant to article 5.3(a) (ii) of the Job Security Agreement.

It is my, view that this deduction was not proper. First, it may be noted that it is not a matter of a "double payment", any more than payment of holiday pay together with payment for time actually worked on a holiday is a double payment. The entitlement to general holiday pay is based on certain provisions of the collective agreement whereas that to a weekly layoff benefit is based on the terms, of the Job Security Agreement. The two are quite distinct, and are not mutually inconsistent.

Second, it is my view that the grievors were in fact laid off at the material times. Article 4(d) of Appendix "B" to the Job Security Agreement does not require, in the circumstances of this case, that the grievors "not be regarded as laid off" in respect of a "period of time". The grievors were indeed entitled to holiday pay, and payment of such was certainly made directly by the company, but it would, in my view, be improper to say that the day for which holiday pay was made was "a period in which [the employee] is receiving other payments directly from the Company". This provision must be read with care, and both the particular object of the clause ("any period") and the use of the continuing present ("is receiving") are significant. Article 4 of Appendix "B" sets out various circumstances in which an employee is not to be regarded as laid off for the purpose of the weekly. layoff benefit provisions. These include cases of absence for various reasons other than those which would normally indicate a "layoff"; cases of refusal to accept recall; and other cases where it naturally appears that no entitlement to a weekly layoff benefit would arise. These would include certain cases where, an employee is being paid by the company: article 4(d) should, however, not be read so as to allow the company to defeat the purpose of the layoff benefit provisions simply by making gratuitous payments to employees, or any other payment having no implications with respect to layoff status. Again, one would not conclude from the mere fact of payment of a debt or a dividend that the recipient, if a laid-off employee, was no, longer to be regarded as laid off! Here, the payment of general holiday pay was in the nature of payment of a debt: the payment was due the employees by virtue of their past attendance at work and their compliance with the qualifying provisions of the collective agreement. It is analogous in my view, to the payment to employees of wages due, where such payment happens to be made after employees have been laid off: they do not cease to be laid off simply by virtue of receiving such payment, and article 4(d) need not be read so as to require such a result.

For the foregoing reasons, it is my conclusion that the grievors were entitled both to holiday pay and to weekly layoff benefits in the circumstances of this case.

With respect to certain of the grievors, however, the company has raised the objection that their grievances are not arbitrable, as they were not filed within the time limits set out in the collective agreement.

It is agreed that with respect to a number of grievors, grievances were filed on time. These grievances, however, were all embodied in a single grievance, dated October 20, 1980. it was put forward by the shop chairman as a grievance on behalf of a group of employees, some of whose names were listed in the letter setting out the grievance. It was said that the grievance was also on behalf of other employees (having similar claims) "whose names you have in your files".

While I quite agree with the company that the reference to potential grievors whose names may appear in the company's files is not, in a case such as this, a sufficient identification of such grievors, I am nevertheless of the view that the filing of what is in effect a group grievance in this general form is appropriate and constitutes timely filing even in the case of those not expressly listed. It would be up to the union, of course, to identify all the employees for whom relief is sought within a reasonable time. It may be noted in this connection that several employees did not in fact receive the payments which would lead to a grievance until after the grievance had originally been filed. There is no suggestion that this procedure has in any way prejudiced the company, and since the question to be determined is a general one, the filing of the grievance in the manner described would appear indeed to have been convenient for both parties. It is my conclusion that given the circumstances of the particular case, the filing of the grievance in the broad form described was appropriate and in substantial compliance with requirements of the collective agreement.

The objection with respect to the timeliness of the claim for certain grievors is therefore denied. For the reasons set out above, the grievance is allowed.

DATED AT TORONTO, this 4th day of May, 1981.

(signed) J.F.W. Weatherill

Arbitrator