SHP - 442-S
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian Pacific Railway MECHANICAL SERVICES
(the "Company")
AND
CAW-TCA Canada, LOCAL 101
(the "Union")
RE: RULE 6
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
B. McDonagh – National Representative, Toronto
R. Laughlin – Regional Vice-President, Eastern Region, Oshawa
APPEARING FOR THE COMPANY:
K. E. Webb – Manager, Labour Relations, Calgary
D.E. Guerin – Labour Relations Officer, Calgary
A hearings in this matter was held in Toronto on Sunday, 13 April 1997
INTERIM AWARD OF THE ARBITRATOR
This arbitration concerns a referral of an issue by the Union in relation to the payment of overtime under rule 6 of the collective agreement. As a preliminary matter, the Company objects to the arbitrability of the grievance. Specifically, its representatives submit that the ex parte statement of issue drafted by the Union provides insufficient particulars as to the nature of the dispute, so as to render the matter inarbitrable. The dispute is described as follows in the Union’s ex parte statement of issue, filed at the hearing.
UNION STATEMENT OF FACT AND ISSUE
EX PARTE
DISPUTE:
Violation of Rule 6 of Collective Agreement 52.1 and present Collective Agreement 101 with respect to the calculation and payment for time worked at tine and one/half and doubt time.
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.
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 Union submits that the above statement of fact and issue is sufficiently particular to put the Company on notice as to the issue to be determined at arbitration. Specifically, the Union’s representative submits that the sole matter to be determined is the payment of overtime, and in particular when such overtime is to be paid at time and one-half and at double time under the provisions of rule 6. This, he submits, has been the subject of extensive discussion between the parties over a long period of time, and that the Company knows, or reasonably should know, the nature of the dispute, and the difference of position between the parties.
The material before the Arbitrator discloses that this matter was in fact discussed between the parties at meetings held at Winnipeg on March 21 and 22, 1996. Among the entries to be found in the minutes to that meeting is a reference to rule 6, which reads as follows:
Rule 6 – Supplemental Service
From the Company’s perspective, the biggest problem we have is the disagreement about when the 24 hour period starts, a calendar period, for time of call, etc.
Union suggested that there are only two pay possibilities after the first 24-hour period, that it will be straight time for double time. Company response that this is something that is only recently being introduced as an position and that we have paid on the straight time, time and one-half an double time basis since the new rule introduced in 1992/93.
There was some discussion of the proposal that we substitute the present rule with pay at time and one-half for all hours waiting, working or travelling but not while on rest of five hours or more.
Agreed that Ron Laughlin and Roy Sears would work together to prepare a proposal, perhaps a modification of the "time and one-half" proposal and report back to the larger group. Ken Webb will assist by developing pay examples under the present and proposed procedures.
It is common ground that Mr. Laughlin and Mr. Sears did meet as contemplated in the above minutes, and were unable to resolve the difference between the parties with respect to the issue of overtime payment. During the course of that discussion during the argument of the preliminary issue before the Arbitrator, it became readily apparent that the substance of the matter to be resolved arises out of Appendix 40 to the collective agreement, whereby the parties agreed to arbitration on an expedited basis in respect of any outstanding issues in the application of rule 6. That appendix, in the form of a letter dated July 24, 1995 from Mr. K.E. Webb, Manager, Labour Relations, addressed to Mr. Dennis Cross, President of Local 101, reads as follows:
Dear Sir:
During our recent discussions at the National negotiations you requested that a meeting be convened to discuss the application of Rule 6 in Collective Agreement 101.
It was suggested that such meeting be attended by Company and Union representatives from various mechanical facilities along with those involved with the composition of then new Rule 6 in the 1992 round of negotiations.
This letter will confirm the Company’s willingness to arrange such meeting at a mutually acceptable time and location following the current round of negotiations. This meeting will be convened as quickly as possible, within the first year following the collective agreement signing. Should the parties be unable to reach a satisfactory conclusion, outstanding issues will be referred to an arbitrator on an expedited basis.
Yours truly,
(sgd) K.E. Webb
Manager, Labour Relations
[original emphasis]
It further became apparent during the argument of the preliminary issue that the substance of the issue upon the Union seeks clarification and arbitral resolution is the application of rule 6.2 and, more specifically, the meaning and application of the second sentence of the rule which reads:
Actual hours worked in excess of sixteen hours in any twenty-four hour period shall be paid at double time rates.
Upon a review of the arguments advanced by the parties, and the material submitted, the Arbitrator is satisfied that the instant grievance is arbitrable. It plainly arises out of a hybrid circumstance, namely the agreement to arbitrate contained within Appendix 40 of the collective agreement. It is, in that sense, somewhat different from normal grievance arbitration under the terms of the collective agreement. While the Arbitrator can understand the concerns which motivate the Company’s position, namely that it not be caught by surprise with respect to any possible issues relating to the application of rule 6, a rule of some complexity which contains twenty sub-sections, it does appear that the Union’s statement of fact and issue, subject to amendment by direction of the Arbitrator, sufficiently discloses the nature of the dispute and the issues to be resolved. Moreover, from a practical standpoint, even if the matter were ruled inarbitrable, on a technical basis, it could be brought back on for referral to arbitration at the Union’s discretion, by merely re-filing a more particular statement of facts and issues.
In the result, the Arbitrator finds that the matter is arbitrable, subject to an amendment of the Union’s ex parte statement of fact and issue, by leave of the Arbitrator. Specifically, the ex parte statement shall, as agreed by the Union’s own representative, be deemed amended to specifically cite a violate of rule 6.2 of the collective agreement, with specific reference to the application of the second sentence of that article, quoted above.
For the foregoing reasons, and on the conditions above described, this matter is therefore referred back to the parties, to be heard on its merits in Calgary, Alberta on May 16, 1997, as agreed at the hearing.
Dated at Toronto, this 17th day of April 1997
(signed) MICHEL G. PICHER
ARBITRATOR