SHP - 442
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Railway MECHANICAL SERVICES
CAW-TCA Canada, LOCAL 101
RE: APPLICATION OF RULE 6
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
B. McDonagh – National Representative, New Westminster
R. Laughlin – Regional Vice-President, Eastern Region, Oshawa
T. Murphy – Vice-President, Pacific Region, Local 101
M. Ross – Local Chairperson, Lodge 58, Local 101
R. Presonka – Local Chairperson, Lodge 35, Local 101
APPEARING FOR THE COMPANY:
D.E. Guerin – Labour Relations Officer, Calgary
K. E. Webb – Manager, Labour Relations, Calgary
J. J. worrall – Labour Relations Officer, Calgary
A hearing in this matter was held in Calgary on Friday, May 16, 1997
AWARD OF THE ARBITRATOR
This dispute concerns the interpretation of a provision of the collective agreement concerning the payment of double time in supplementary service. The Union alleges that the administration of Rule 6.2 by the Company is not in keeping with the intention of the collective agreement, and fails to properly the apply the sentence: "Actual hours worked in excess of sixteen hours in any twenty-four hour period shall be paid at double time rates." The parties are in dispute as to the method of computing the sixteen hour period referred to in the above passage. The Union filed an ex parte statement of facts and issues which reads as follows:
UNION’S STATEMENT OF FACT:
During the closed period of the collective agreement, the Union and the Company agreed to new terms in which emergency and wrecking service and road work would be performed, called and how such services would be paid.
Rule 6 and the letter of understand[ing] with respect to same and Rule 8 were combined and amended into a new rule 6 and entitled "Supplementary Service" and the new rules was introduced into Collective [Agreement] 52.1 which came into effect January 1, 1992.
UNION’S STATEMENT OF ISSUE:
It is the contention of the Union that:
Therefore, it is the position of the Union that the Company must apply the proper interpretation to the Rule and adjust the compensation of all employees who have worked under the provisions of Rule 6, "Supplementary Service" since its introduction, accordingly.
The Company denies the Union’s contentions and claim.
The following provisions of the collective agreement are pertinent to the resolution of this grievance:
Rule 2.2 Double time 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 supplementary service (Rule 6) straight-time rates will again become effective at the starting time of the employee’s regular shift.
Rule 6.2 All time working, waiting and travelling shall be paid for at straight time rates for straight time hours and time and one half for the first eight hours of overtime. Actual hours worked in excess of sixteen hours in any twenty-four hour period shall be paid at double time rates. Double time rates shall not apply to employees on conventional auxiliaries while waiting or travelling, however travel time on Road Repair Vehicles and Hi-Rail Cranes shall be at the appropriate rate of pay as though working. In no case shall employees be paid for a total of less than 8 hours in each 24 hour period (exclusive of Rules 6.5 and 6.6) when such irregular service prevents the employees form making their regular daily hours at home station.
Rule 6.7 After the first 24 hour period in supplementary service all employees so assigned shall be considered to have been assigned hours 0800 to 1600 hours.
Rule 6.9 Employees engaged in supplementary service shall be entitled to 5 hours undisturbed rest following the completion of their first 24 hours on duty on the wreck site and in addition such employees shall be entitled to 5 hours undisturbed rest during each 24 hour period thereafter.
The material before the Arbitrator relates the fairly complex evolution of the language of Rules 2.2 and 6.2 of the collective agreement. Suffice it so say that the present formulation of Rule 6 of the collective agreement resulted from an agreement reached between the parties on March 1, 1993. By the terms of that agreement the new Rule 6 incorporated the provisions of the previous Rule 6, which had always dealt with supplementary service, as well as Rule 8, which dealt with road work, and the terms of a memorandum of understanding which was signed on March 23, 1979.
The sole issue in dispute before the Arbitrator is the meaning and application of the second sentence of Rule 6.2 which reads as follows:
Actual hours worked in excess of sixteen hours in any twenty-four hour period shall be paid at double time rates.
The dispute is best understood by reference to examples, and the relative positions of the parties applied to those examples. A useful illustration can be drawn from the treatment of an example apparently cited to the Company by the Union, concerning a grievance submitted by Grievance Chair Jim Wilson on March 26, 1996. The example concerns an individual called to supplementary duty or wrecking service at 2000 hours after the completion of his regular tour of yard or shop duty at 1600 hours. The employee in question works continuously thereafter until 1400 hours the next day. The Union’s analysis in respect of the employee’s entitlement to double time is as follows:
March 15 – worked 08:00 to 16:00 hrs – 8 hrs (regular shift straight time)
16:00 to 20:00 hrs (4 hrs off duty)
– worked 20:00 to 24:00 hrs – 4 hrs time and one half
March 16 – worked 00:00 to 04:00 hrs – 4 hrs time and one half
16 total hours worked
Any time to 08:00 will be at double time = 4 hrs double time
– worked 04:00 to 08:00 hrs – 4 hrs double time
– worked 08:00 to 14:00 hrs – 6 hrs time and one half
The Company’s analysis in respect of the same work is as follows:
March 15 – worked 08:00 to 16:00 hrs – 8 hrs (regular shift - straight time)
16:00 to 20:00 hrs (4 hrs off duty)
employee starts Supplementary Service Rule 6.2 commences
– worked 20:00 to 24:00 hrs – 4 hrs time and one half
March 16 – worked 00:00 to 12:00 hrs – 12 hrs time and one half
– worked 12:00 to 14:00 hrs – 2 hrs double time
As can be seen from the above, the Company takes the position that the calculation contemplated within the sentence in dispute in Rule 6.2 commences from the time the employee starts supplementary service. The Union makes no such distinction. According to its interpretation the clock commences with the beginning of the employee’s regular shift, as a result of which the total sixteen worked hours is arrived at sooner. The Company counts the twenty-four hour period prospectively from the time the employee commences supplementary service. The Union, to the contrary, submits that the employee is entitled to count backwards from the time he commenced supplementary service and to include prior hours, including his regular shift, for the purposes of calculating the sixteen hours in a twenty-four hour period.
A second aspect of the dispute concerns the eligibility of the employees for payment of double time after the first twenty-four hours in supplementary service. The Company submits that once an employee has completed twenty-four hours of supplementary service the payments are to be as follows:
0800 — 1600 — Straight Time
1600 — 2400 — Time and One Half
2400 — 0800 — Double Time
The Company maintains that Rule 6.7 reflects part of the trade-off made between the parties, a portion of which was to provide to the Company the administrative simplicity of calculating the wages of all employees in supplementary service based on a notional or deemed regular tour of duty from 0800 to 1600 hours. This, the Company argues, is intended to provide a consistent and harmonious reading with the final sentence of Rule 2.2. The position of the Union is that once the initial twenty-four hour period of supplementary service is completed the payment of employees is to be either at double time rates or at straight time, the latter rates to be restricted to the hours of the regular tour of duty contemplated within Rule 6.7.
Upon a review of these provisions, and the examples provided by the parties, the Arbitrator has some difficulty with the position advanced by the Union. Firstly, the Union’s reliance on the authority of this Arbitrator’s decision in a prior award involving the Union and the Ontario Northland Railway, in unreported decisions dated September 16, 1996 and March 3, 1997, is of dubious value. Unlike the instant case, those awards concerned the application of the equivalent of Rule 2.2, in circumstances which did not involve supplementary or wrecking service. They are of little precedential value, as they involved the interpretation of the calculation of the twenty-four period provided for within Rule 14.2 of the ONR agreement, which is materially identical to Rule 2.2 of the instant agreement, and does not directly concern supplementary or wrecking service.
The Arbitrator must agree with the Company that it is significant to recognize that the parties have made specific provision for the payment of supplementary service within the general framework of Rule 6. They must be taken to have done so knowing that many employees, if not all employees, pressed into service in supplementary service also hold other regular assignments, the payment of which would normally be dealt with under Rule 2.2. Indeed that is recognized within Rule 6.1 itself, which provides for a regular list and spare list for supplementary service and stipulates, in part: "Employees assigned to supplementary service shall be paid in accordance with Rule 6." In that context, the Arbitrator is satisfied that the first sentence of Rule 2.2 is of limited value in interpreting and applying the provisions of Rule 6.2, and in particular the second sentence thereof.
On a review of the framework of the collective agreement, the Arbitrator also agrees with the Company that the second sentence must be interpreted as meaning "actual hours worked in supplementary service in excess of sixteen in any twenty-four hour period shall be at double time rates." It may be noted that the sentence is somewhat similar to the first sentence of Rule 2.2, a fact which supports the view that it was intended to be the operative provision for supplementary service, and that it should not overlap the more general provisions of Rule 2.2. In the circumstances, therefore, I am satisfied that the Company is correct in its interpretation that the twenty-four period contemplated within the second sentence of Rule 6.2 is to be calculated from the commencement of work in supplementary service, as reflected in the example related above.
Secondly, the position of the Company as relates to the computation of straight time, time and one-half and double time in work periods subsequent to the first twenty-four hours in supplementary service is also more compelling. If the Union’s position were correct, the language of the second sentence of Rule 6.2 could simply state that actual hours worked in excess of eight hours in any twenty-four period, being the hours referred to in Rule 6.7, shall be paid at double time rates. In fact, however, the rule on its face plainly contemplates a period of sixteen hours in which rates other than double time rates can be payable. The interpretation of the Company, which would provide payment at straight time rates for the eight hour period contemplated within Rule 6.7, and time and one-half overtime rates for the eight hours immediately thereafter, followed by the payment of double time rates after the first sixteen hours is more consistent with what the language of the rule would appear to contemplate.
As noted above, the Arbitrator concludes that the position of the Union is unduly premised on the application of Rule 2.2 which, I am satisfied, was not primarily fashioned to deal with the special circumstances of supplementary service. While the Company’s interpretation still allows scope for double time opportunities, it is more consistent with the wording and implicit expectation of the provision, which is that sixteen hours of work in supplementary service within a twenty-four period are contemplated to be paid at rates other than double time.
For the foregoing reasons the Arbitrator sustains the interpretation of the Company. Given the nature of the dispute, however, I retain jurisdiction in the event disagreement as to the interpretation or implementation of this award..
Dated at Toronto, this 13th day of June 1997
(signed) MICHEL G. PICHER