SHP – 195
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 R. TROTTIER AND OTHERS
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:
Overtime claims of Messrs. R. Trottier, L. Desrosiers, D. Lavallee, D. Carrier, Y. Pagé, J.D. Montagne, C. Labrie and P. Sanscartier of the Taschereau Auxiliary Outfit No. 1, Montreal, Quebec.
JOINT STATEMENT OF ISSUE:
On 10 June 1984 Taschereau Auxiliary Outfit No. 1 and Crew completed work at a derailment site at M.P. 60.5 on the Berlin subdivision. During the return trip to Montreal, the Auxiliary and crew were held while the train crew was off duty for requested rest. The grievors were advised that they were relieved from duty for the period the Auxiliary was held. The Brotherhood contends that the grievors were not relieved from duty but were waiting until the rest period taken by the train crew expired. The Brotherhood contends the Company has violated Rule 6.15 of Appendix III of Agreement 12.1 and requests payment at punitive overtime rates for the time held off duty. The Company denies the Brotherhood contentions and has declined the payment requested by the Brotherhood.
The grievors were assigned to an auxiliary crew clearing a derailment at Bryant Pond, Vermont. This work was performed at that site during the period June 3 to June 10, 1984. The work was completed on June 10, and at 1415 on that day, the auxiliary train, with the wrecking crew (the grievors), left the derailment site. They proceeded to Berlin, Vermont, arriving there at 1620. The train went on to a siding, and the grievors were advised it would be there until the next morning. The grievors performed work until 2130. The train crew, however, commenced rest at 1845, the rest period ending at 0600 on June 11. The grievors were relieved from duty at 2130, and permitted to go to bed in sleeping accommodation provided on the train, which remained in the siding. The grievors resumed duty on June 11, some at 0500 and others at 0600. At 0725 the train departed for Montreal, and the grievors went off duty at Montreal at 2400 that day. This claim is in respect of the period 2130 on June 10 to 0500 or 0600 on June 11.
There is no doubt the grievors were in wrecking service at all material times. General provisions with respect to payment for time in wrecking service are set out in Rule 6 of the collective agreement. Employees are entitled to payment from time ordered to leave home station until their return for all time worked, and for all time waiting or travelling. The general provisions of Rule 6 are subject to the interpretation set out in Appendix III. In the instant case the union relies on Rule 6.15 of Appendix III, which is as follows:
6.15 Except as provided in Rule 6.16 [which is not material to this case], employees called for wrecking service shall be paid at straight time rates for all time working, waiting or travelling during those hours within their regular hours of duty as established at the home terminal and time and one-half during overtime hours.
It is the company’s position that during the period of time in question, the grievors were neither working, waiting nor travelling, but were on relief time, and since they had, on this occasion, been relieved from duty and permitted to go to bed for five hours or more, payment for such time was not required. The company relies on Rule 6.7 of the collective agreement, which provides as follows:
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.
The union alleged that past practice established a right to payment in a case such as this. Examples were cited of a number of cases in which claims for travel and waiting time have been paid. It is clear, however, that employees in wrecking service are entitled to such payment. The examples given do not establish that employees in wrecking service, while they may be en route from the work site to the home terminal, have consistently been paid even for periods of five hours or more where sleeping accommodation has been provided and they have been permitted to go to bed. The company, for its part, has provided examples of situations where such circumstances have obtained and the employees have not been paid for such time.
On the material before me, the union’s case is not supported by any clear or consistent practice which would show the parties’ intention had been to provide for payment in these circumstances. More importantly, however, I do not consider that the collective agreement or the Appendix is ambiguous in this respect. Although as a general matter both waiting time and travel time are certainly to be paid for, it is clear that Rule 6.7 provides for an exceptional circumstance, in which certain relief time is not paid for. That occurs (and there is no reason to restrict its occurrence to cases where "working time" is interrupted), where employees are relieved from duty and permitted to go to bed. That is what occurred - in perfectly natural circumstances, in my view - in this case. The Rule 6.7 exception applied and the grievors were not entitled to payment for the time in question.
For the foregoing reasons, the grievances are dismissed.
DATED AT TORONTO, this 14th day of April, 1986.
(signed) J. F. W. Weatherill