SHP – 415 SUPPLEMENTARY
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO NORTHLAND RAILWAY
(the "Company")
AND
NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA)
(The "Union")
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
G. Zabarelo – Chief Mechanical Officer, North Bay
And on behalf of the Union:
B. Stevens – President Local 103, North Bay
A. Mitchell – Committee Person, Local 103, North Bay
A hearing in this matter was held in Toronto on Tuesday, February 25, 1997.
SUPPLEMENTARY AWARD
By a decision dated September 16, 1996, the Arbitrator found that the Company’s interpretation of Rule 14.2, grieved by the Union, was in fact in violation of the intent of that provision. The Rule in question 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 award of September 16, 1996 reads as follows:
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. …
…
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.
…
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.
The parties are disagreed as to the interpretation of the above award. The nature of their dispute is related in the following letter, dated November 6, 1996, sent to the Arbitrator by the Company’s Manager, Labour Relations:
RE: Arbitration Award - Double time
This inquiry into the implementation of the above award becomes necessary because of the complexity of the employee work schedules and the payment of double time hours to the grievors.
The parties remain in disagreement as to the application of the rule where it concerns an employee working hours of his/her own regular assignment after having accumulated 16 hours in a 24 hour period.
The interpretation of your award as taken by the company is that an employee cannot earn double time wages when he/she is working his/her regular assignment. We draw this from your wording:
"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."
In order to fully clarify our understanding, I have attached an excerpt of the union’s brief at page 6 where they outline how the claims should be paid It is our view that Mr. Potvin, on September 3, 1994, Mr. Potvin, on September 9, 1994 and Messrs. Lebel and Potvin, on September 13, 1994 are not entitled to double time hours because they were, in fact, working their regular tours of duty when they claimed for payment at double time rates.
Based on the foregoing and the wording of your award, it is the view of the company that only three of the six claims presented should have been paid at the double time rate of pay. In a gesture of good faith, the company has paid all of the claims submitted by the union without prejudice.
It is the view of the company that there is a fundamental difference of opinion in regard to your award which necessitates a reconvening of the parties to clarify the application of the double time rule in your award.
The company, therefore, requests clarification on two points:
1. Is an employee entitled to payment at the double time rate of pay for work performed on his/her own regular tour of duty?
2. Your award requires payment to four grievors. In fact, there are five grievors for a total of 6 claims. We are unsure whether this was merely an oversight on your part or that all claims as submitted by the union were not to be paid at the double time rate.
With eagerness, we await your reply.
Yours truly,
(signed) M. J. Restoule
Manager, Labour Relations
At the hearing the Company put forward an example which illustrates the dispute between itself and the Union with respect to the application of the award of September 16, 1996. It posits an employee whose regular tour of duty is from 08h00 to 16h00. The employee in question finishes his or her tour of duty at 16h00 and is then recalled to work at 22h00, and works continuously until the commencement of his or her regular tour of duty the following morning at 08h00, completing that tour of duty at 16h00. In the result, the employee has worked eighteen hours in a twenty-four hour period. In the Company’s submission the employee should be entitled to ten hours at overtime rates of time and a half for the period from 22h00 to 08h00 the following morning. There would be no entitlement to any double time payment under Rule 4.2, according to the Company’s interpretation.
The Union submits that that approach is in disregard of Rule 14.2. It claims that the employee in question may well be properly paid at overtime rates for the first ten hours of the extended tour of duty. But that from the time he or she has worked sixteen hours in a twenty-four hour period, double time rates begin to apply. In the example in question, therefore, the Union maintains that the employee is entitled to be paid double time for the hours from 14h00 to 16h00, being the last two hours of the eighteen hour tour of duty. This, it maintains, is the period in respect of which entitlement to double time payment is contemplated under Rule 14.2. The Company, as is evident from its interpretation, maintains that employees are not to be paid for double time other than in overtime hours. As the two hours which the Union claims should be paid at double time fall within the employee’s normally scheduled tour of duty, that is between 08h00 and 16h00, it maintains that no double time is payable.
The Arbitrator cannot accept the Company’s interpretation, in light of the wording of Rule 14.2. In considering the wording of the rule it is useful to refer to the evolution of the language within the rule over the past twenty-five years. The language of the rule was in fact changed in 1959, 1979 and finally into its present form, in 1982. The evolving versions of the rule read as follows:
1959
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
1979
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
1982
Double time (except as provided in Rule 6 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 6) and Road Work (Rule 8) straight time rates become effective at the starting time of an employee’s regular shift.
(emphasis added)
The Arbitrator’s difficulty with the Company’s interpretation stems from the last sentence of the 1982 or current version of the rule. Clearly if the rule presently existed in the form which it did in 1959 and 1979, the Company’s interpretation would be correct. Straight time rates would apply during the course of an employee’s regular shift. Under the current collective agreement, however, that limitation has been restricted to the expressed circumstance of an employee who is in emergency service or road work. It does not apply in a general way, beyond those two specifically identified circumstances. Therefore, in the Arbitrator’s opinion, in the example reviewed above, there is nothing within the language of Rule 14.2 which would limit the entitlement of the employee to claim double time payment for the hours in excess of sixteen hours in a twenty-four hour period, even though those hours may fall after the starting time of his or her regular shift. The only exception would be, as is evident from the language of the second sentence of the rule, for employees in emergency or road work service.
From a purposive point of view, the Union’s interpretation also appears to be preferable. If the Company is correct, it could call an employee for additional service for a fifteen hour period prior to the commencement of his or her tour of duty, and obtain twenty-three hours of consecutive service from the individual in question, without incurring any liability under Rule 14.2. In that circumstance the rule becomes close to meaningless as a protection or disincentive against the scheduling of substantial hours of work within a twenty-four hour period. Conversely, the Arbitrator’s finding that the Union’s interpretation is correct should not unduly burden the Company, as it retains the discretion in respect of the scheduling of non-emergency work, and can therefore avoid the establishing of tours of duty which would trigger the double time payment. Nor, as is evident from the discussion above, does it bear any hardship in the unforeseen circumstance of emergency wrecking work, as an expressed exception is made for that circumstance.
For all of the foregoing reasons, the Arbitrator finds and declares that the interpretation of the Union is correct. Where the hours in excess of sixteen hours in a twenty-four hour period, computed from the time the employee actually commences work, fall within the employee’s regular shift, in a circumstance other than emergency service or road work, the double time rate provided for in Rule 14.2 applies. I continue to retain jurisdiction in the event of any further disagreement between the parties in respect of the interpretation or implementation of this award.
Dated at Toronto this 3rd day of March, 1997
(signed) MICHEL G. PICHER
ARBITRATOR