SHP – 196
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN DIVISION, BROTHERHOOD RAILWAY CARMEN OF US & CANADA
IN THE MATTER OF THE GRIEVANCE OF F. CIANO
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:
Claim for Labour Day General Holiday payment of Carman F. Ciano, MacMillan Yard, Toronto, Ontario.
JOINT STATEMENT OF ISSUE:
Carman Ciano was employed as a Carman at the Blue Tower at MacMillan Yard on the 0800-1600 shift with assigned rest days of Monday and Tuesday. In 1984 Labour Day fell on Monday, 3 September. Since this was a rest day for Carman Ciano his Labour Day General Holiday was moved to Wednesday, 5 September by the application of Rule 46.2(1) of Agreement 12.1
On 27 August 1984 the Company posted a notice to all employees at the Blue Tower indicating staffing requirements for the Labour Day General Holiday. This notice stated that employees with assigned rest days of Monday and Tuesday would be required to work Wednesday 5 September.
At 0715 hours on 5 September Carman Ciano telephoned the Company and advised that he would not be at work that day because he was ill and accordingly he did not report to work that day.
The Company did not pay Mr. Ciano for his Labour Day General Holiday of 5 September. The Brotherhood contends that the Company violated Rule 46.10 by requiring Carman Ciano to work on his General Holiday of 5 September because his attendance at work on that date was not absolutely essential to the continuous operation of the Railway. The Brotherhood contends that the Company violated Rule 46.6. when it did not pay Mr. Ciano eight hours pro rata General Holiday payment for 5 September. Furthermore, the Brotherhood contends that Rule 46.4(b) does not apply to substituted General Holidays but only to the actual calendar date on which a General Holiday falls.
The Brotherhood requests that Mr. Ciano be paid for his Labour Day General Holiday of 5 September 1984. The Company denies the Brotherhood contentions and has declined the payment requested by the Brotherhood.
The first of the Brotherhood’s contentions relates to Rule 46.10 of the collective agreement, which is as follows:
46.10 Holiday work shall only be required when absolutely essential to the continuous operation of the Railways.
The determination of what is "essential" for the continuous operation of the railway is a question of fact, to be determined having regard to all of the circumstances of the particular case. In the instant case, operations at MacMillan Yard are conducted on a twenty-four hour basis throughout the year, except on General Holidays. On Labour Day, September 3, 1984, no staff were required to work on either the 0800-1600 or 1600-2400 shift. In my view, where Rule 46.10 refers to "Holiday work" it refers to work on the actual day of a Holiday, and not to work on a day which may be substituted as a holiday for an individual employee such as the grievor, who did not work on the holiday itself, since it was his rest day. It may be that what is said in the Campbell case (November 24, 1981), goes beyond what was necessary for the decision of that case, in which the circumstances were somewhat different, and where the grievor had in fact worked on the actual holiday, which was not the case here. In the instant case, regular operations were conducted on September 5, and properly so; the work scheduled on that day was "absolutely essential to the continuous operation" of the railways, and the grievor’s work on the road repair truck crew was an essential part of it. The grievor was not performing "dead work", as had been the case in the Campbell case referred to above. There was, I find, no violation of Rule 46.10 in the circumstances.
Rule 46.6 provides for the amount of holiday payment. There is no dispute as to what that would be. It is payable, under Rule 46.6, to employees "qualified under Rule 46.4". To determine whether or not there has been a violation of this article, then, it is necessary to determine whether or not the grievor was qualified for holiday pay under Rule 46.4. The material portion of that article is Rule 46.4(b), which is as follows:
46.4 In order to qualify for pay for any one of the holidays specified in Rule 46.2 an employee:
(b) must be available for duty on such holiday if it occurs on one of his work days, excluding vacation days, except that this does not apply in respect of an employee who is laid off or suffering from a bona fide injury, or who is hospitalized on the holiday, or who is in receipt of or who subsequently qualified for weekly sickness benefits because of illness on such holiday; when an employee is required to work on such general holiday he shall be given advance notice of four calendar days, except for unforeseen exigencies of the service, in which case he will be notified not later than prior to the completion of his shift or tour of duty immediately preceding such holiday that his services will be required; ...
The grievor was given the advance notice contemplated by that provision, and was required to work on September 5, which was a holiday for him, pursuant to Rule 46.2(1), but which occurred on a day which was otherwise one of the grievor’s work days. The grievor, who met the other qualifications set out in Rule 46.4 (relating to service), was not available for duty. The reason which he gave for this is that he was sick on that day. That is not one of the reasons set out as exemptions in Rule 46.4(b): the grievor was not in receipt of, nor is it suggested that he subsequently qualified for weekly sickness benefits in respect of that day. I have no doubt that all of Rule 46.4, which deals with qualifications for holiday pay, applies equally to those employees for whom holidays are moved pursuant to Rule 46.2.
Thus, the grievor did not meet the requirements for holiday pay, and was not entitled to the payment contemplated by Rule 46.6. There has been no violation of the collective agreement, and the grievance must accordingly be dismissed.
DATED AT TORONTO, this 14th day of April, 1986.
(signed) J. F. W. Weatherill