SHP 148

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the "Company")

AND

CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF SEVEN CARMEN AT WINDSOR, ONTARIO

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

H. B. Butterworth

D. J. David

And on behalf of the Union:

J. W. Asprey

E. W. Tandy

 

A hearing in this matter was held at Montreal on February 23, 1984.

 

 

AWARD

The Dispute and Joint Statement of Fact and Issue in this

matter are as follows:

DISPUTE

Payment of overtime on wrecking service.

JOINT STATEMENT OF FACT

Carmen W. Desbien, W. Franz, E. McCouan, M. Ollett, J. Pisciotto, M. Pisciotto and A. Turton are members of the regular auxiliary crew, Windsor, Ontario.

On Sunday, June 6, 1982, this auxiliary crew was ordered at 2100 hours to Streetsville, Ontario to change out a bridge.

As per Rule 6.6 of the Collective Agreement, their pay was continuous for the first twenty-four (2) hours and were accordingly, paid to 2100 hours on Monday, June 7, 1982.

On Tuesday, June 6, 1982, they resumed duty at 0600 hours and were booked off duty at 1900 hours on that day by the wrecking Foreman, except Messrs. W. Franz and E. McCouan who were booked off at 2000 hours.

Messrs. W. Desbien, M. Ollett, J. Pisciotto, M. Pisciotto and A. Turton claimed payment of overtime for the period 1900 to 2100 hours and Messrs. W. Franz and E. McCouan claimed payment for the period of 2000 to 2100 hours.

The claims were declined by the Company.

JOINT STATEMENT OF ISSUE

It is the position of the Union that the Company violated Rules 6.5 and 6.6 of the Collective Agreement in refusing to pay the employees for the hours claimed.

It is the position of the Company that Rules 6.5 and 6.6 were not violated and that claim is not supported by the Collective Agreement.

The work to which the grievors were assigned was "planned", and not emergency work. They were, at the times material to this grievance, in wrecking service.

The matter of "Emergency Calls and Wrecking Service" is dealt with in article 6 of the collective agreement. The provisions of that article material to the instant case are the following:

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 five (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 (24) hours.

6.7 If employees engaged in wrecking service are relieved from duty and permitted to go to bed for five (5) hours or more, such relief time will not be paid for.

On the day in question, Tuesday, June 8, 1982, the grievors worked from 0600 until 1900 or 2000, that is, thirteen or fourteen hours. There is no issue in this case as, to their payment in respect of that period. It is claimed, however, that they were entitled to payment until 2100 hours, so that, for the several grievors, an additional one or two hours' pay is claimed. The claim is based on the provisions of article 6.5 and 6.6. As to article 6.6, it provides that for employees in wrecking service, such as the grievors, there is an entitlement to payment under article 6 generally. That is not denied, and it is the company's position that the grievors were in fact paid in accordance with that article. Their pay, for example, was continuous including meal period for the first twenty-four hours. There does not appear to have been any violation of article 6.6.

As to article 6.5, that provides that payment will not be made, in respect of relief time that meets the conditions set out in that article. In the instant case, the grievors were booked off duty at 7:00 or 8:00 p.m. Whether or not the effect of that would be to require payment to employees in emergency service (it may be noted that article 6.2 provides a guarantee of eight hours pay in cases where article 6 applies), it does not require any payment to the grievors, who were not in emergency service and to whom, therefore, article 6.5 did not apply.

Article 6.7 clearly applies to the grievors' case. They were in wrecking service, and they were relieved from duty for five hours or more, it appears. There is no issue before me as to the length of their relief, as to their being permitted to go to bed, or as to the quality of any accommodation provided. The provision that relief time under this article will not be paid for would have to be read in the light of the guarantee set out in article 6.2, but again, there is no issue as to, that in the instant case.

In the instant case, as in the Cherepa case between the same parties (February 25, 1981), article 6.7 explicitly deals with "employees engaged in wrecking service" and thus with this case. The reference in article 6.6 to payment (at time and one-half), for time spent "waiting" must be understood in the context in which that word appears. Such payment is to be made for "all time working, waiting or travelling on assigned rest days ...". The grievors were not "waiting" in the sense in which that term is used in this article when they were booked off on the day in question.

The Cherepa case is not, in my view, supportive of the union's contention in the instant case. Rather, it distinguishes between article 6.5, which deals with certain relief periods for employees in emergency service, and article 6.7, which deals with those, such as the grievors in the instant case, in wrecking service. Article 6 does not provide generally for payment for all time away from the shop: if it did, it would not have been necessary to make express provision for payment for the first twenty-four hours. Payment for time not worked must be based on some express provision in the agreement. In the instant case, there is no such provision in respect of the time when the grievors were booked off on June 8. They were not guaranteed work up to 2100 hours.

The claim in the instant case is not supported by the provisions of the collective agreement, and the grievance must therefore be dismissed.

 

DATED AT TORONTO, this 7th day of March, 1984.

 

(signed) J. F. W. Weatherill