SHP – 194
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF US & CANADA
IN THE MATTER OF THE GRIEVANCES OF J. SHEEHAN AND D. GLYNN
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Montreal on March 25, 1986.
The Joint Statement of Issue in this matter is as follows:
Claims of Shipwrights J. Sheehan and D. Glynn of the Newfoundland Dockyard, St. John’s. Nfld.
JOINT STATEMENT OF ISSUE:
Shipwrights Sheehan and Glynn held regular assignments with rest days Saturday and Sunday. On Thursday, 3 March 1983 the Company informed the Brotherhood Local Chairman that two positions were being established with rest days Monday and Tuesday. Shipwrights Sheehan and Glynn were assigned to the new positions in accordance with the provisions of Rule 23.12 of Agreement 12.1.
Shipwrights Sheehan and Glynn worked Saturday and Sunday, 5 and 6 March and did not work on Monday and Tuesday, 7 and 8 March. On Wednesday 9 March they were informed that their positions were discontinued and that they were to return to their previous positions with Saturday and Sunday rest days.
The Brotherhood contends the Company has violated Rules 2.3, 2.6, and 2.7 of Agreement 12.1 and requests payment of punitive overtime rates for 5 and 6 March. The Brotherhood contends the company has laid off Shipwrights Sheehan and Glynn on 7 and 8 March in violation of Rule 5.12 in order to equalize the overtime worked under Rule 2.3 on 5 and 6 March. The Brotherhood requests eight hours pro rata payment for 7 and 8 March.
The Company disagrees with the Brotherhood’s contentions and has declined the payment requested by the Brotherhood.
At the hearing of this matter, the Brotherhood advanced the argument that the claim should be paid under Rule 28.11 of the collective agreement, since the Company had not replied to the grievance within the time set out in the collective agreement. Rule 28.11 provides that where a grievance is based only on a time claim and a decision is not rendered by the designated officer of the Company at Steps I or II within the time limits specified, the time claim will be paid. In the circumstances of this case, it is my view that the claim is not required to be paid, under Rule 28.11. The reasons for this will appear when the history of the grievance in relation to the provisions of the grievance procedure is considered.
Following oral discussion of the grievance with the immediate supervisor (the procedure contemplated by Rule 28.6), the grievance was then submitted in written form (as contemplated by Rule 28.7), on March 11. Rule 28.8 requires that such a grievance be answered in writing within 28 calendar days. The company’s reply was made on April 7, which was within the time limits, but was not received until April 11, which was beyond the time limits. A "reply" in this context means, I think, a communicated reply, so that the reply in this case was late. Rule 28.11, however, does not provide for payment of claims where a reply is late in the case of a written grievance under Rule 28.7. Rather, it deals with delays at Step I and Step II, which are the steps designated in Rule 28.15. The Brotherhood raised its claim under Rule 28.11 on April 28, submitting its appeal from the rejection of that claim. That appeal, which the Company correctly characterized as constituting the Step I appeal, was rejected on May 11, and a Step II appeal was made on June 7. That appeal did not advance the Rule 28.11 claim. No such claim was made in the reference of this matter to arbitration on October 3, nor does it appear in the Joint Statement of Issue.
From all of the foregoing, it would appear that any Rule 28.11 claim has been waived, and that in any event such claim would not be well founded in the circumstances, since there appears to have been no delay in the Step I and Step II replies, with, which Rule 28.11 deals. I do not comment on the question whether or not the grievance in the instant case is properly to be characterized as one "based only on a time claim", as that question was not addressed by the parties.
The grievance is, therefore, to be dealt with on its merits. The thrust of the grievance is that the grievors were required to work at straight time on their rest days, and that they were laid off on regular work days to equalize the time. The company’s position is that the grievors simply went from one assignment, with certain rest days, to another, with different rest days. In essence, the Brotherhood’s case is that the change in assignment was a mere form to avoid payment of overtime for what was in reality overtime work.
As set out in the Joint Statement, the grievors were assigned to new positions in accordance with Rule 23.12. Rule 23 deals with seniority, and Rule 23.12 provides as follows:
23.12 When vacancies occur or new jobs are created or additional staff is required in a classification, in the respective crafts for an expected period of less than 90 calendar days, such vacancies or new positions may be claimed by the senior qualified employees from the respective point within the home seniority terminal desiring same; the local committee to be consulted in each case.
Employees assigned to fill positions under this Rule 23.12 shall be considered as temporarily assigned and on completion of such temporary positions they shall be returned to their former basic regular assignments. For the purpose of this clause annual vacation relief, leave of absence, sickness, injury, etc., shall be positions coming under the scope of this Rule 23.12.
In the instant case the temporary position which was created was not for the purpose of vacation relief, leave of absence, sickness, injury or any related need. Nor, indeed, was there any "vacancy" or "new job". From the material before me, it is clear that in this particular case, a "temporary" position was purported to be created in order to permit the grievors to be required to work on what were (until two days before the change), their rest days (and which were such once again the following week), without the necessity of paying overtime. The grievors were then given new rest days on what would have been (and were again, the following week), regular work days. In my view, this was clearly contrary to Rule 5.12 of the collective agreement, which is as follows:
5.12 When it becomes necessary for employees to work overtime they shall not be laid off during regular working hours to equalize the time.
There is no doubt that it was necessary to work overtime on the occasion in question. The company had, on a competitive bid, acquired certain work which had to be done promptly, and which necessitated the scheduling of at least some work on a seven day basis. Saturday and Sunday work was required. The company argues that because "to work employees on those days would have required the working of employees on their assigned rest days", it was doing no more than complying with Rule 3.1, which provides that rest days are to be assigned in such a way as to "be consecutive as far as possible consistent with the establishment of regular relief assignments and the avoidance of working an employee on an assigned rest day". On the facts of this case, however, the opposite effect was created: creation of the "new positions" allowed nominal compliance with Rule 3.1, while in reality the grievors worked on sixth and seventh days which had, until the fifth day of work, that week properly been considered their rest days. There was no avoidance of the grievors’ working on those days: there was an avoidance of paying for that work at overtime rates. It may be noted that in establishing the "new position" the company was not so concerned with Rule 3.1, which calls for preference to be given to Saturday and Sunday as rest days.
While the assignment of the grievors to the new positions was, as is agreed, in accordance with Rule 23.12, it must be remembered that that is a seniority provision; there is no allegation of violation of seniority rights. It is clear from the Joint Statement as a whole that the union does not accept that creation of such a "new position", as a device to avoid payment of overtime, was proper. For the reasons given, it is my conclusion that it was not proper in the circumstances of this case, and that there was a violation of Rule 5.12, as well as of Rules 2.3 and 2.6 which call for payment of overtime (under one head or the other), in the circumstances. It does not appear to be necessary to make any determination with respect to Rule 2.7 in the circumstances of this case.
The grievors were required to work on what were, in reality, their rest days, and were entitled to be paid therefor at overtime rates. They were then laid off on what were, in reality, regular working days for them. That lay-off was contrary to Rule 5.12, and the grievors were entitled to be paid at regular rates for that day. It is accordingly my award that the grievors be paid the overtime premium for hours worked on March 5 and 6, 1983, and that they be paid at pro rata rates for eight hours on each of March 7 and 8, 1983.
DATED AT TORONTO, this 14th day of April, 1986.
(signed) J. F. W. Weatherill