IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS
IN THE MATTER OF THE GRIEVANCE of D. RALPH
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union: D. J. Wray
There appeared on behalf of the Company: J. Glazer
A hearing in this matter was held at Montreal on July 21, 1986.
In this grievance the grievor claims payment at overtime rates for work performed on Saturday, November 17, 1984. The grievor was paid at straight time rates for work performed on that day.
There is no Joint Statement of Issue in this case. While it may be said the the Union Statement of Issue puts the matter in rather contentious terms, the facts are not in dispute, and are objectively set out in the Company Statement, which is as follows:
Prior to November 15, 1984 the grievor held a position on the 0800-1600 shift with rest days of Saturday and Sunday. He was paid for, but did not work, Monday November 12, because it was a General Holiday. The grievor then worked on his position on Tuesday, Wednesday, Thursday and Friday, November 13, 14, 15 and 16.
On Thursday, November 15, 1984 the grievor was advised that his position on the 0800 shift with rest days of Saturday and Sunday was being abolished on completion of shift November 16. The grievor was advised that new positions were being created by the Company starting on Saturday November 17 on the 0800–1600 shift with various rest days. The grievor was given the choice of claiming one of these new positions, or displacing junior employees from existing positions, which also had various rest days. The grievor chose the new position, the 0800–1600 shift with rest days of Sunday and Monday, in preference to displacing onto a position on afternoon shift and retaining the same rest days of Saturday and Sunday.
On Saturday November 17 the grievor worked on the new position with Sunday and Monday rest days. He submitted a claim for punitive overtime payment for this shift. The Company allowed payment of the claim for November 17 at the pro rata rate of pay. The Brotherhood contends that, the Company has violated Rules 5.13 and 5.15 of Agreement 12.1 by requiring the grievor to work on a sixth shift at the pro rata rate of pay. The Brotherhood requests that all time worked on Saturday November 17 by the grievor be paid at the punitive overtime rate of pay.
The Company denies having violated Rules 5.13 and 5.15 and has declined the request for payment at punitive overtime rates.
Rule 5 of the collective agreement deals with "Overtime and Calls". Rule 5.13 provides that, subject to certain qualifications, employees shall not work two consecutive rest days.
The grievor’s rest days, according to the schedule of his position on November 17, were Sunday and Monday. It is not alleged that he worked those days. Even if November 17, which was a rest day under the schedule of the grievor’s previous position, were deemed still to be a rest day, the grievor did not then work on the Sunday, the second rest day under that schedule. The grievor did not, on any interpretation of the case, work two consecutive rest days. There has been no violation of Rule 5.13.
Rule 5.15 is as follows:
5.15 Employees changing from one shift to another and commencing work within 24 hours of original starting time, will be paid overtime rates for the first shift at each change. Employees working two (2) shifts or more on a new shift shall be considered transferred. This will not, however, involve the payment of punitive overtime rates to employees changing off where employees work alternately on stated shifts, to employees changing positions under the exercise of their seniority rights, nor to employees in regular relief.
In the instant case the grievor did change from one shift to another, and did "commence work within 24 hours of original starting time". He would, then, be entitled, as a general matter, to payment at overtime rates for the first shift on the new schedule, that is, for work on November 17 – not because it had been his rest day, but because it was the first shift of a new assignment, and because he went on it within the 24-hour period referred to.
It is the company’s position, however, that the grievor was not entitled to payment at overtime rates in respect of November 17 because he had changed positions "under the exercise of seniority rights", so that the case comes within one of the exceptions to the general provisions of Rule 5.15.
The union contends that this case is similar to the Sheehan and Glynn case (April 14, 1986), between the company and the Brotherhood of Railway Carmen. In that case, it was held that there was a violation of Rule 5.12 of the collective agreement (the same collective agreement provisions were involved in that case as in this), which provides that when it is necessary for employees to work overtime they shall not be laid off during regular working hours in order to equalize the time. The following is said at page 5 of the award:
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 instant case is not identical to Sheehan and Glynn. There, there was a finding of an attempt to avoid payment of overtime, and a violation of Rule 5.12. In the instant case, I do not consider that the grievor’s new position was a sham (it appears that it lasted for about one month), and I do not consider that when the grievor worked on November 17 he was working on a rest day. The company’s action was taken in order to batch employment levels on each shift with its fluctuating workload at the dockyard, and I consider that it acted in good faith. Here, there was a change of shift, and a commencement of work within 24 hours of the original start time – a "short change of shift", as it is known under some agreements. The grievor would, as a general matter, be entitled to payment at overtime rates for the first shift (if within 24 hours) at such change – in this case, for work on November 17. The question is whether or not the company can bring the case within one of the exceptions provided for in Rule 5.12, and in particular whether or not the grievor changed positions "under the exercise of seniority rights" within the meaning of that provision.
This is not a case in which there was any increase or decrease in the complement of the working forces, nor any "vacancy" , except in a very narrow sense. Rather, the company, in order as I have said to match the work force to work requirements, needed to have more work done on weekends than was then being done. It is quite proper for the company to schedule its work in such a way as to avoid, as much as possible, having work done at overtime rates. It may not, however, do that simply by laying off employees during their regular hours in order to equalize time, as Rule 5.12 makes clear and the Sheehan and Glynn case illustrates. It may, however, arrange its regular work assignments or positions in such a way as to have more work done on weekends and more rest days falling on weekdays. That is what it did in this case.
The grievor did, in a sense, "exercise his seniority", in choosing, in order of seniority, among the assignments offered to him. The "choices" given the grievor however, were – quite properly – those which suited the convenience – the business requirements – of the company. The grievor did not seek to improve his position, to retain his employment or to displace another employee. Nor could his "exercise of seniority" properly be said in these circumstances to have been for his own convenience or accommodation. When the exception in Rule 5.15 is read ejusdem generis with the other exceptions there provided, as is proper when the article is read as a whole, it is, I think, apparent that the purpose of the exceptions is to deny employees premium payments in respect of periods of time which they choose for their own convenience, accommodation or betterment. Such, however, is not what occurred in the circumstances of this particular case.
In the instant case, although the grievor might, in theory, have seized the occasion to alter his situation rather more than it was, the real substance of what in fact occurred is that schedules were rearranged by the company so that more work could be done on weekends on regular shifts. The practical effect of that was that the grievor started a new assignment on the day immediately following the fifth day of his former assignment. These are the circumstances contemplated by Rule 5.15 as calling for premium payment for the first day of such new assignment. While the grievor might have avoided that by selecting an even less desirable assignment, his "exercise of seniority" in those circumstances was not in substance, and on a proper reading of the expression in its context, within the exception contemplated in Rule 5.15.
Rule 2 of the collective agreement deals with overtime, and the company referred to Rule 2.3 which provides that overtime, payable generally for work in excess of forty hours or five days per week, is not payable where work is performed by an employee "due to moving from one assignment to another". The instant case, however, is one clearly falling within the purview of Rule 5.15. The claim is not made for "overtime" as such, although of course the "short shift change" premium involves a payment at overtime rates. Whatever might be said as to the application of the language found in Rule 2, the instant case is one to which Rule 5.15 applies. For the reasons I have given, it is my conclusion that the matter has not been brought within the exceptions set out in that Rule, where the Rule is given. as in my view it should be, a purposive interpretation.
For the foregoing reasons, the grievance is allowed.
DATED AT TORONTO, this 1st day of August, 1986.
(signed) J. F. W. Weatherill