SHP – 415
IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA)
GRIEVANCE RE: DOUBLE TIME
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
M. J: Restoule – Manager, Labour Relations, North Bay
T. Burton – Chief Mechanical Officer, North Bay
And on behalf of the Union:
B. Stevens – President Local 103, North Bay
B. Kelly – Chief Steward, Local 103, North Bay
A hearing in this matter was held in Toronto on Wednesday, 4 September 1996.
This grievance concerns a claim for the payment of double time for work beyond sixteen hours in a twenty-four hour period. The Union submits some seven claims on behalf of four employees, alleging that their entitlement to the payment of double time under the terms of the collective agreement has not been honoured by the Company. The Employer denies any violation of the agreement. The Dispute and Joint Statement of Fact and Issue filed at the hearing read as follows:
The payment of double time for work in excess of 16 hours in a 24-hour period.
JOINT STATEMENT OF FACT AND ISSUE:
Employees G. Sutherland, M. Potvin, Mike Labelle, Norm Champagne and B. Beardmore worked at various times in excess of 16 hours in a 24-hour period and submitted time claims for double time for the time in excess of 16 hours. Their time cards were altered to reflect payment for time and one-half in stead. The total claims were as follows:
G. Sutherland – 1.00 hour for Sept. 17, 1994
M. Potvin – 5.50 hours for Sept. 3, 1994
M. Potvin – 6.00 hours for Sept. 9, 1994
M. Potvin – 3.50 hours for Sept. 13, 1994
M. Labelle – 3.50 hours for Aug. 13, 1994
N. Champagne – 2.25 hours for Aug. 5, 1994
B. Beardmore – 1.50 hours for June 13, 1994
The Union contends that the Company violated Rule 14.2 and any other related rules when it failed to pay double time to the employees when they worked in excess of 16 hours in a 24-hour period.
The Company refused to pay double time in the above instances and the matter was not resolved through the grievance procedure.
FOR THE COMPANY: FOR THE UNION:
(sgd.) J. D. Knox (sgd.) M. Seguin
Director, Human Resources Chief Steward
The dispute concerns the application of Rule 14.2 of the collective agreement which reads as follows:
14.2 Double time (except as provided in Rule 17 for wrecking service) shall apply after an employee has actually performed 16 hours service in any 24 hour period computed from the time the employee actually commenced work. In emergency service (Rule 17) and Road Work (Rule 12), straight time rates will again become effective at the starting time of the employee’s regular shift.
The Company takes the position that double time is payable only when the employee has been on overtime continuous with his or her regular bulletined hours, has accumulated sixteen hours on duty from the commencement of the employee’s regular shift and where the hours in excess of sixteen have been continuous or consecutive. The Company’s representative stresses that the purpose of Rule 14.2 is to deal with overtime work, and not, as the Union contends, with the accumulation of hours, including straight time hours, within a twenty-four hour period. In this regard it points to Rule 14.1 which provides as follows:
14.1 All overtime continuous with regular bulletined hours will be paid for at the rate of time and one-half until relieved, except as provided for in rules hereinafter set out.
The Company further expresses concern that the interpretation of the Union would allow for the manipulation of working hours, by the mutual exchange of shifts between employees so as to permit them to achieve double time hours, in a manner beyond the control of the Employer. It also takes the position that hours accumulated through the exercise of seniority to claim extra shifts should not be counted towards the application of rule 14.2.
In support of its interpretation the Company’s representative stresses that the words appearing in Rule 14.2 "computed from the time the employee actually commenced work" are controlling as to the meaning of the provision. That wording, he argues, discloses that the parties intended that the hours being computed must be consecutive and continuous hours on duty for the employee to become entitled to the payment of double time after sixteen hours.
The Union offers a contrary position. Firstly, it stresses that there is no language within rule 14.2 which specifically provides that the hours worked must be continuous, or must necessarily all fall within an overtime situation for the purposes of entitlement to the payment of double time after a total of sixteen hours in a twenty-four hour period. It submits that the phrase "from the time the employee actually commenced work" to mean any event which causes an employee to commence work, including the start of his or her regular tour of duty, the start of overtime service, or the beginning of a relief assignment. In the Union’s submission it is from that point which the computing of time commences, for the purpose of establishing a twenty-four hour period. It argues that the phrase "in any twenty-four hour period" confirms that understanding and allows for the possibility of employees calculating hours towards their entitlement in more than one twenty-four hour period at a time. In the Union’s submission once the computation of hours worked reaches sixteen inside a twenty-four period, the employee commences to be paid at double time for all remaining of hours of service within the twenty-four hours.
By way of example, the Union submits that an employee who works a regular assignment from 08:00 to 16:00, for a total of eight hours, and thereafter works a relief assignment from 16:00 to 00:00, for a further eight hours, followed by a further four hours of work from 00:00 to 04:00 is entitled to payment for the latter four hours at the double time rate. It is immaterial, the Union submits, whether the hours are in fact all at straight time rates, all or part at overtime rates or a combination of both. Moreover, the Union submits that there is nothing in the language of rule 14.2 to establish that the hours in question must necessarily be consecutive. By way of a second example, it submits that if an employee were to work an assignment from 08:00 to 16:00, followed by a relief assignment from 16:00 to 20:00 and a recall to additional work from 00:00 to 08:00, that employee should be entitled to double time for the last four hours of the period of work between 00:00 and 08:00.
The Union relies, in part, on the evolution of the provision to support its interpretation. It points to the language of the rule, which was then rule 4, in the 1959 collective agreement, reading as follows:
4. All overtime continuous with regular bulletined hours will be paid for at the rate of time and one-half until relieved, except as may be provided in rules hereinafter set out. Double time for overtime (except as provided in Rule 15 for wrecking service) shall apply after an employee has actually performed 16 hours service in any one 24 hour period, computed from the starting time of the employee’s regular shift, straight time allowance again becoming effective at the starting time of an employee’s regular shift.
The record reflects that in the 1979 collective agreement the rule was altered into two separate clauses which read as follows:
2.1 All overtime continuous with regular bulletined hours will be paid for at the rate of time and one-half until relieved, except as may be provided in rules hereinafter set out.
2.2 Double time for overtime (except as provided in Rule 6 for wrecking service) shall apply after an employee has actually performed 16 hours service in any one 24 hour period, computed from the time the employee actually commences work; straight time allowance again becoming effective at the starting time of an employee’s regular shift.
The Union stresses that the provision was improved in 1979 by inserting the new wording "computed from the time the employee actually commences work", a difference from the prior formulation which limited the calculation of any twenty-four hour period from the commencement of an employee’s regular shift. Finally, the Union notes that further improvement occurred in the 1982 round of negotiations which produced the current formulation of the rule. That formulation eliminates the phrase "Double time for overtime" as well as the phrase "in any one twenty-four hour period". The Union submits that the changes so implemented, which are obvious improvements of the entitlement of the employees, were for the purpose of ensuring that employees who work more than sixteen hours in any given twenty-four hour period are to be properly remunerated at double time overtime rates beyond the sixteen hour limit. Its representative stresses that the Union does not seek to obtain such payment in circumstances where employees themselves, by the swapping of shifts, obtain such hours. He does, however, maintain that such entitlement be paid where the employee bids the work, as such work is obtained through the rights of the employee exercised under the terms of the collective agreement.
In the Arbitrator’s view the language in question is, to some extent, susceptible of both interpretations advanced. Significantly, in my view, this is not a case where past practice has been pleaded by the Company to support the view that the parties agreed to its interpretation over the years. In the result, the Arbitrator is left to deal with the language as it appears, and as it has evolved over time.
Upon a careful review of the submissions, I am compelled to conclude that the interpretation advanced by the Union is correct, given the wording of rule 14.2. Firstly, from a normal grammatical standpoint, the Arbitrator has substantial difficulty with the argument of the Company that the computation of the sixteen hours is intended to be "from the time the employee actually commenced work." A fair reading of the rule indicates that it is the twenty-four hour period, and not the sixteen hours, which is to be computed from the time the employee actually commenced work. While the Company’s interpretation might have been supportable on the language of the rule which apparently operated in 1959, it cannot be supported on the present formulation of the rule. Nor, in the Arbitrator’s view, is there any absurdity or distortion of purpose which results from the Union’s interpretation. Its approach to the article provides to the employee who has worked in excess of sixteen hours in any twenty-four hour period compensation at double time rates, at least until such time as the twenty-four hour period should end. As the rule provides, such double time payment is obviously not indefinite, as straight time rates again come into effect at the commencement of the employee’s regular tour of duty.
On the whole, the Arbitrator is inclined to prefer the interpretation advanced by the Union, given the evolution of the language of this provision, and the obvious distinction as between the present formulation of the rule, and that which operated in the past. That is particularly so in the absence of any contrary evidence of past practice which would suggest a different interpretation, or raise the possibility of an estoppel.
For the foregoing reasons the grievance is allowed. The Arbitrator directs that the claims of the four grievors for double time payment be awarded in accordance with the submission of the Union. I retain jurisdiction in the event of any dispute between the parties concerning the quantum of compensation or any other aspect of the interpretation or implementation of this award.
Signed at Toronto, September 16, 1996
(signed) MICHEL G. PICHER