IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS
AND IN THE MATTER OF GRIEVANCES OF B.M. WILSON AND A.R. ZIMMER
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
P. E. Perreault
And on behalf of the Company:
D. J. David
P. A. Pender
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:
JOINT STATEMENT OF FACTS
Messrs. B.M. Wilson Employee No. 291271 and A.R. Simmer Employee No. 262682, are carmen employed as Car Inspectors on 00.01 to 08.00 hrs. shift, at Windsor Car Dept. CP Rail.
On January 12, 1983, they were notified to be available on Friday, January 14, 1983, to participate in an investigation in connection with their inbound inspection of car U.P. 81469 at 06.30 hrs. on January 7, 1983.
They (Wilson and Simmer) reported for their investigation as requested following completion of their regular shift at 08.00 hrs. on January 14, 1983, and were retained for an additional one and one-half (1 1/2) hrs. pending completion of the investigation.
Time claims were submitted by both employees for one and one-half (1 1/2) hrs. at prevailing overtime rate of pay.
Payment of the claims was denied by the Company.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the Company violated Rules 5.1 and 5.10 of Wage Agreement No. 51, in denying payments of the claims.
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:
5.10 Employees will only be required to attend investigation outside their working hours when the requirements of the service will not permit the taking of statements during regular working hours.
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:
5.1 for continuous service after regular working hours, employees will be paid time and one-half on the actual minute basis, with a minimum of one (1) hour at straight time rates for any such service performed.
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 any event, even if the provisions of article 5 [which may be compared roughly to the provisions of article 5 in the present collective agreement], did apply to the grievor, it is my view that he was not called in to perform work within the meaning of article 5.6. An employee is entitled to a fair and impartial investigation, and may not be disciplined or dismissed otherwise. Article 17.1 [which may be compared to article 28.1 in the instant collective agreement], indeed contemplates that employees may be held out of service, within certain limits, pending investigation. In the instant case it seems the grievor was not held out of service; he was simply required to report for the investigation to which he was entitled. The collective agreement certainly makes no express provision for payment in such circumstances, although article 17 deals with the matter of the rights of employees subject to discipline, in some detail.
In my view, the payment sought is neither explicitly nor implicitly provided for by the collective agreement, and the grievance must accordingly be dismissed.
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:
The grievor, a new employee, was detained for one quarter hour after the end of his shift to receive a verbal reprimand for committing a serious safety offence. Part of the time lost was attributable to his own failure to report as soon as possible to the company offices. In any event the basic question to be determined was whether time spent waiting to he reprimanded was "time worked". Held, by the majority of the board in dismissing the grievance, activities of this nature relating to an employee’s safety do not constitute the performance of work.
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.
(signed) J. F. W. Weatherill