(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on August 14, 1984.

The Joint Statement of Fact and Issue in this matter is as follows:

There is no substantial dispute as to the facts. The grievors, as part of their duties, are required to visually inspect railway cars arriving and departing Windsor Terminal to determine whether all cars are in proper working order and safe for movement through yards and over main lines. The grievors were, as set out in the joint statement, called for an investigation with respect to their performance of such duties. As a result of the investigation, the grievors were issued a caution. There is no issue with respect to that in this case. The issue in this case relates to the grievors’ claim to be paid, at overtime rates, for the time spent in the investigation, which was held outside their normal working hours, following the completion of their 0001 to 0800 shift on January 14, 1983.

The union alleges that in failing to pay the grievors in respect of the time in question, the company has violated articles 5.1 and 5.10 of the collective agreement. Article 5 deals with the matter of overtime and calls. It is quite distinct from article 28, which deals with investigations and grievance procedure. By article 28.1, "no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established". In conducting its investigation of the grievors conduct, the company was acting in accordance with its obligations under the collective agreement. The scheduling of investigations is dealt with in article 5.10 of the agreement. That article is as follows:

It is clear that the collective agreement contemplates that as a general matter, disciplinary investigations are to be held during working hours. Employees would, in general, be entitled to payment at regular rates for time spent at investigations during such hours. Investigations may, however, be scheduled outside employees’ working hours when "the requirements of the service" make that necessary. In the instant case, the material before me, indicates that the requirements of the service did indeed make it necessary, as a practical matter, that the grievors’ investigation be held following the completion of their 0001 to 0800 shift. This was because staff levels in the train yard, based on traffic volume, call for the assignment of only three carmen to that shift. The removal of two of them from the train yard during their regular working hours would have seriously impeded traffic flow.

The company was, in these circumstances, entitled to require the grievors to attend an investigation outside their regular working hours. It was not in violation of article 5.10. The grievors, it may be noted, did not take exception to the particular hours for which the investigation was scheduled.

The more difficult issue in this case relates to the grievors’ claim of entitlement to be paid pursuant to article 5.1 of the collective agreement in respect of the time in question. That article is as follows:

In CROA case No. 1213 a somewhat similar claim was allowed. The decision, however, was made on the basis of the claim’s being one "for wages" and a decision thereon not being made by the company within the time provided for by the collective agreement, which provided that in such circumstances the claim was to be paid. With respect, I agree with that decision. That case does not, however, decide whether or not the claim was well-founded.

Another somewhat similar claim was dealt with in CROA case No. 220. There, the claim was dismissed on the ground that the grievor’s classification was specifically exempted from the benefit of the overtime provision there in issue. The award went on, however, as follows:

In that case it was considered that the grievor was in any event not "called to perform work" when he was called to an investigation outside working hours. There may be some distinction to be drawn between the phrase "called to perform work" as it appears in the collective agreement in issue in CROA Case No. 220 and the phrase "for continuous service" as it appears in article 5.1 of the collective agreement before me in the instant case. Whether or not the distinction between those phrases has any substantial intended significance, I think it must be said that an employee who is required by the company to attend an investigation, and who is thus under its direction and control, is in the "service" of the company. He is as much so outside of working hours as during working hours, and it must be remembered that, for such time occurring during working hours, the employee would be paid.

In the instant case the grievors, as I find, were in "continuous service" (as opposed to being called or required to report – for which a different minimum payment is called for, pursuant to article 5.4) after their regular working hours. Under the terms of this particular collective agreement, it is my conclusion that the grievors were entitled to the payment claimed.

On the more general issue of whether or not employees are entitled to payment in respect of periods of time for which they are retained at work for the purpose of a disciplinary interview, reference may be made to the International Nickel Co. case, 20 L.A.C. 366 (Weatherill), the note of which is as follows:

This decision was referred to in a subsequent International Nickel case, 8 L.A.C. (2d) 433 (O’Shea), as being "justified ,as part of the normal give and take, of the employee/employer relationship", although in the later case it was found that a period of one and one-half hours spent by the grievor awaiting instructions constituted "time worked" within the meaning of the hours of work and overtime provisions of the collective agreement there in question. The issue is also dealt with in the Allied Chemical case, 8 L.A.C. (2d) 26 (O’Shea). In that case the arbitrator made the general statement that "Where an employer makes a claim upon an employee’s time, the employee is entitled to he paid for such time". With respect to the particular claim, substantially analogous to that in the instant case, the arbitrator stated, "… if the time spent conducting interviews with employees following the completion of their shift is a substantial period of time rather than a trivial or inconsequential period of time then such substantial period of time is subject to the overtime provisions of the collective agreement and employees are entitled to be paid for such substantial period of time at overtime rates."

In the instant case, the grievors were, I consider, retained at work for a substantial period of time. The matter is of course to be determined having regard to the terms of the particular collective agreement in effect, and in the instant case it is my conclusion that the grievors were in continuous service after regular working hours on the day in question and that they were accordingly entitled to payment pursuant to article 5.1 of the collective agreement.

For the foregoing reasons, the grievance is allowed.

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

Arbitrator