SHP 133



Canadian National Railway Company

(the "Company")


Canadian Council of Railway Shopcraft Employees and Allied Workers

(the "Union")




SOLE ARBITRATOR: J. F. W. Weatherill


And on behalf of the Union:

J. W. Asprey

L. Biniaris

J-P. Marcellin



There appeared on behalf of the Company:

J. A. Cameron

J. R. Hnatiuk

M. G. Bedard

M. Farmer



A hearing in this matter was held at Montreal on September 16, 1982.




Although the parties did not agree on a joint statement of fact and issue in this matter, there is really no significant dispute as to the facts, nor as to the issue. The claim is for holiday pay for August 4, 1980.

August 4, 1980, being the first Monday in August, was a general holiday for the employees in question, pursuant to article 46.2 of the collective agreement. The issue is whether or not the grievors were entitled to pay for that holiday. That matter is governed by article 46.4 of the collective agreement, which is as follows:

46.4 In order to qualify for pay for any one of the holidays specified in Rule 46.2 an employee:

(a) must have been in the service of the Company and available for duty for at least 30 calendar days. This Rule 46.4(a) does not apply to an employee who is required to work on the holiday;

(b) must be available for duty on such holiday, if it occurs, on one of his work days, excluding vacation days, except that this does not apply in respect of an employee who is laid off or suffering from a bona fide injury, or who is hospitalized on the holiday, or who is in receipt of or who subsequently qualified for weekly sickness benefits because of illness on such holiday; when an employee is required to work on such general holiday he shall be given an advance notice of four calendar days, except for unforeseen exigencies of the service, in which case he will be notified not later than prior to the completion of his shift or tour of duty immediately preceding such holiday that his services will be required; and

(c) must have rendered compensated service on at least 12 of the 30 calendar days immediately preceding the general holiday. This Rule 46.4(c) does not apply to an employee who is required to work on the holiday.

No issue arises with respect to clauses (a) and (b) of article 46.4. I assume that each of the grievors had been in the service of the Company for 30 days, and that they were available for duty on the holiday. It is acknowledged that they did not render compensated service for twelve or more days during the thirty calendar days preceding the holiday. That is, it is clear that the grievors did not in fact meet the condition set out in article 46.4(c).

The gist of the Union’s contention in this case is that the Company cannot properly rely on the grievors’ failure to work twelve days within the preceding thirty (that is, to come within article 46.4(c), because of the assurances given by the Company that work would be available during that time.

Article 47 of the collective agreement provides for annual vacations. By article 47.4(b), it is contemplated that main shops (and the Pointe-St-Charles shops are main shops) will be closed for the annual vacation period. It is provided that the management and the duly authorized representatives of the employees will agree, prior to January 31st of each year, with respect to the dates on which the various shops will close for the vacation period.

In January, 1980, the management and the duly authorized representatives of the Union agreed that the Pointe-St-Charles shops would close from July 7 to August 1 of that year. At the same time, the Company advised the Union and the employees that there was a substantial amount of work to be performed during the shutdown period. Subsequently, as a result of a downturn in the economy, the Company found it necessary to revise its work plans and to cancel additional work which had been planned for the four-week vacation period. As a result of this change, the grievors did not work as they had anticipated during the period of the shut-down, and did not meet the qualifications for holiday pay set out in article 46.4(c) of the collective agreement, with respect to the August 4 holiday.

The Union’s argument is, in essence, this: at the time of the agreement with respect to the dates of the vacation shutdown, the Company promised the Union and the employees that there would be work available for employees, such as the grievors and others, during the shutdown period. The Union and the employees, it is argued, relied on this promise in agreeing to the vacation shutdown dates. Since work was not provided at that time, the Company cannot now, it is argued, rely on the grievors’ failure to have worked sufficient time during that period in order to qualify for holiday pay. They should therefore, it is argued, be considered as entitled to the holiday pay, notwithstanding that they did not in fact meet the requirements of article 46.4(c).

This line of argument might prevail if it were supported by the facts. If the Company could be said to have procured agreement to certain dates for the shutdown by reason of its holding-out that there would be work available at that time, and if the Union and the employees generally relied on that assurance in giving their agreement, then I would agree that the Company could not now rely on the grievors’ failure to meet the requirements of article 46.4(c) as a reason for denying them holiday pay.

It has not, however, been shown that in fact the Company held out, that there would definitely be work available, and that the Union and employees relied on that in agreeing to the shutdown dates. Certainly the Company stated that it expected there would be work available, and such was indeed its expectation in January, 1980. It was only several months later that it became apparent that such hopes would not be realized and that little work would be available.

As to the reliance by the Union and the employees on the Company’s assurances – or expressed hopes – that work would be available, it is not at all clear that the vacation shutdown dates were agreed to on the strength of that. Many employees, it seems, simply preferred those dates for the purposes of their vacations. They did not rely on work being available at that time, as they did not seek work, but planned their holidays during "prime" holiday time. The grievors, being only some of the employees concerned, and being those not entitled to four weeks’ holidays, were affected, but even among the grievors, it is by no means clear that there was in fact "detrimental reliance" on any hope of work during the shutdown period.

There has not, then, been shown to have been any "detrimental reliance" on the prospect of work during the shutdown and, more importantly, there has not been shown to be any real "holding-out" or promise or guarantee that there would be work available at that time. It was expected that there would be work. If there had been, the grievors would probably have qualified for holiday pay. Those expectations did not materialize, for reasons beyond the Company’s control. The grievors did not qualify for holiday pay. The Company cannot, in the circumstances, be held responsible for that fact, and it is not liable to make the holiday payment to which the grievors were not entitled under the provisions of the collective agreement.

For the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 24th day of September, 1982.

(signed) J. F. W. Weatherill