SHP 498: V. LEGARE: OVERTIME CLAIM

AWARD

At the outset of the hearing, the parties agreed that the arbitrator was duly and properly appointed. The parties further agreed that the arbitrator had jurisdiction to decide the issues raised by the grievance. No preliminary objections were raised as to jurisdiction or other matters.

The parties had failed to agree upon an arbitrator. As such, the arbitrator was appointed by the Federal Minister of Labour. Under the Canada Labour Code, it is contemplated the arbitrator’s decision will be made within sixty (60) days of the appointment. However, in this instance there was some delay in the parties agreeing to a hearing date. The parties confirmed that they were waiving the time provision contained in Section 64 of the Canada Labour Code. As well, the parties waived any time provision for the delivery of this Award, pursuant to the terms of the Collective Agreement.

Canadian Pacific Railway Company (sometimes hereinafter referred to as the “Railway” or the “Company”) is a party to a Collective Agreement with National Automobile , Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) Local 101 (sometimes hereinafter referred as “CAW” or the “Union”). The Collective Agreement is dated December 20, 1996. It was brought to the attention of the arbitrator that a subsequent agreement has been entered into between the parties, however the Collective Agreement dated December 20,1996 is the agreement in effect for the purposes of this grievance.

The Collective Agreement contemplates that the parties will submit to the arbitrator a Joint Statement of Fact and Issue (the “Joint Statement”). The Joint Statement, in large measure, frames the difference or issue between the parties. In this instance, the Joint Statement reads as follows:

DISPUTE:

9BARB / 29 - K MG0062 grievance on behalf of Carman Vic Legare for alleged violation of Rule 6 and 44.2.

STATEMENT OF FACT:

Mr. Legare is a member of the established Health, Safety and Environment Committee in accordance with the Canada Labour Code Part II and chosen by the Union. On April 15, 1998 the grievor was performing his duties as per requirements of a Health and Safety Committee member. At the same time the supplementary service crew was called to service and performed their duties until their work was completed at 22:00 hours.

STATEMENT OF ISSUE:

It is the submission of the Union that Mr. Legare was readily available to assume his duties under the supplementary service after the completion of his duties as a Health and Safety Committee member. The Union requests the arbitrator award that Mr. Legare be paid 4.20 hours at the prevailing overtime rates for reasons that the Company violated Rule 6 and Rule 44.2.

The Company denies the Union’s contention and claims.

The events giving rise to this grievance occurred on April 15,1998. On that date, there was a scheduled meeting of the Safety and Health Committee, of which Mr. Legare was a member.

A mishap had occurred outside of Mr. Legare’s home terminal in Moose Jaw. As a result , there was a Supplementary Service call involving manpower being dispatched to the Regina area.

Mr. Legare is a fulltime Carman. Additionally, Mr. Legare (a thirty year employee of the Railway) holds a permanent position on the Road Board for Supplementary Service.

In addition to those who hold a permanent position on the Road Board, there are some employees who are considered alternates. When there is a need for Supplementary Service, those holding a permanent position would be approached first. If for some reason they choose to decline, efforts would be made to find someone else amongst the alternates. However, the evidence indicated that if no alternate was available, it would be expected that the man holding the permanent position on the Road Board would take up the assignment (assuming no acceptable excuse such as illness).

As a general rule, employees are anxious for this Supplementary Service, since it usually would involve some overtime component. As such, not only do these assignments increase present wages, they may have some longer term value in terms of pension entitlements.

Mr. Legare’s normal shift would be from 8:00 a.m. until 4:00 p.m. In this instance, the Supplementary Service work lasted from 8:00 a.m. until 8:20 p.m.

On April 15, 1998, Mr. Legare did not participate in the Supplementary Service assignment. As such, he was paid his regular wage from 8:00 a.m. until 4:00 p.m. Had he participated in the Supplementary Service assignment, he would have received four hours and twenty minutes at prevailing overtime rates.

During the course of Mr. Legare’s evidence, it became clear that he asserted that on the day in question he had not been advised, in a timely manner, of the Supplementary Service nor was he asked to join same. According to Mr. Legare he later learned of the Supplementary Service assignment, at which time a Company officer indicated that Mr. Legare had not been called upon, as it was assumed he was not available owing to his work that day in connection with the Health and Safety Committee.

The Railway indicated that it was their understanding that Mr. Legare had been advised of the Supplementary Service assignment and given the opportunity to serve on same. The representative of the Railway expressed significant surprise at the evidence given by Mr. Legare.

As a procedural matter, the arbitrator indicated to the parties, that in the event there was a material element of surprise, this could be addressed through an adjournment, to allow the Railway to call evidence concerning the issue of whether Mr. Legare had been advised in a timely manner of the Supplementary Service assignment. Such adjournment would be granted, if it were determined on a review of the background, that the Railway should be reasonably considered to have been caught off guard by this evidence.

Ultimately, the parties agreed that the arbitrator should not make any assumption as to whether or not Mr. Legare was told of the Supplementary Service assignment in a timely manner and thereby given the opportunity to participate in such assignment. As such, the parties recognize the possibility, that if Mr. Legare’s being told was considered material, the decision may reflect two different determinations, which the parties themselves would resolve by a further review of the actual facts, once the arbitration award is issued.

Prior to this agreement being reached by the parties, there was considerable argument and debate on whether the Company ought to have been surprised by this evidence and consequently as to whether the Company was entitled to an adjournment. I would be remiss if I did not compliment the parties on their achieving a mutual resolution of the procedural issue. While arbitrations may be heated events, occasioning significant stress between the parties, the preparedness and willingness of both parties to achieve a realistic compromise on this procedural issue speaks well of the relationship between the parties.

The Union claims a violation of Rule 6 and Rule 44.2. Rule 6 is a somewhat complicated Rule that deals with Supplementary Service. Supplementary Service is a class of work which is required to meet a variety of problems with respect to locomotive or freight cars, that may arise anywhere at any time. Quite obviously, there is a need to have the capability and capacity to attend to railway equipment at locations which may be some distance from the nearest mechanical repair facility. In this instance, the work required in the Regina area was apparently 1 and /4 hours travelling time from the Moose Jaw facility.

As Mr. Legare held a permanent position on the Road Board, he would have had a priority entitlement to perform the Supplementary Service assignment and would, as previously noted, have received pay for 4 hours and 20 minutes at the prevailing overtime rate, consequent upon working such assignment.

Instead of Mr. Legare performing the Supplementary Service assignment, an employee (G. Stettner) who was on the Spare Board, was called to perform the Supplementary Service assignment on April 15th, 1998.

The Union asserts that Mr. Legare, following the completion of his shift at 4:00 p.m., should have had an opportunity to participate in the Supplementary Service assignment, which would then have allowed him to earn the overtime pay. The Union argues that the failure to allow Mr. Legare to complete the overtime, or to pay him the equivalent, constitutes a violation of Rule 44.2 and Section 135 of The Canada Labour Code.

The portion of Rule 44.2 which is relevant to this matter is to be found in Subsection (g). This Subsection reads as follows:

(g) Time spent by members of the Committee in the course of their duty shall be considered as time worked and shall be paid in accordance with the terms of the Collective Agreement. This shall include all time spent out of the plant on health, safety and environmental matters.

It is clear that Rule 44.2(g) is intended to ensure that an employee who spends time in duties relating to the Committee shall have the time spent deemed to be time worked. In the Arbitrator’s view, Rule 44.2(g) simply treats the time spent by the member as if it were time worked and the member is paid accordingly. So for example, if a member of the Committee were to spend (on a particular day) four hours in the course of his duties as a member of the Committee, he would receive four hours pay to the same extent as if he had spent the time working. In such example, if the employee then returned to his regular duties for the next four hours, he would receive, for the day in question, a total of eight hours of pay as “time worked”.

Absent any provision in the Collective Agreement to the contrary, it is quite possible that time spent by members of the Committee in the course of their duties could attract overtime pay. So for example, if an employee worked for four hours and then his duties as a member of the Committee took six hours, he would be deemed to have had time worked (on that particular day) of 10 hours. This would result in an obligation on the part of the Company to pay overtime at the prevailing rates.

As noted earlier, the Union has referred, as well, to Section 135 of The Canada Labour Code. That Section creates a legislative authority to essentially achieve two purposes:

1. To mandate that Safety and Health Committee members are entitled to such time from their work as is necessary to attend meetings or to carry out any of the other functions of a member of the Committee; and,

2. To confirm that any time spent while carrying out any of the functions of a member of the Committee shall, for the purpose of calculating wages owing to that member, be deemed to have been spent at work.

So far as it relates to this grievance, the effect of Section 135 neither enhances nor detracts from the impact of Rule 44.2(g). The focus of the relevant section of The Canada Labour Code is (as is the case under the Collective Agreement) to equate and deem time spent on Committee matters as time spent at work.

In their written submissions to the Arbitrator, each party has presented an argument drawn from a different premise. The Union assumes that Mr. Legare was not given the opportunity to participate in the Supplementary Service assignment as the Company assumed he would was not available owing to his participation in the Health and Safety Committee on the day in question. The Railway, on the other hand, draws its position from the premise that Mr. Legare had the opportunity to participate in the Supplementary Service assignment but made a conscious decision not to be available by choosing instead to participate in the Health & Safety Committee meeting.

Based on the evidence and arguments presented and a review of the relevant sections of the Collective Agreement, I have arrived at the following conclusions:

1. Mr. Legare was entitled to be informed of the Supplementary Service assignment in a timely manner, notwithstanding any scheduled meeting of the Health and Safety Committee.

2. Upon being so informed, Mr. Legare was entitled to elect to participate in the Supplementary Service assignment or, alternatively, to decline the Supplementary Service assignment and participate in the meeting of the Health and Safety Committee.

3. The Company has no entitlement to assume that Mr. Legare is unavailable simply because of a scheduled meeting of the Health and Safety Committee. Rather, the Railway has the obligation to inform Mr. Legare of the Supplementary Service assignment regardless of any scheduled Health and Safety Committee meeting, to the same extent as if no such meeting were scheduled on the day in question.

4. If Mr. Legare is presented with the opportunity for the Supplementary Service assignment, and if he declines same, it is entirely appropriate for the Railway to utilize another employee to fill the necessary complement of men required for the Supplementary Service assignment.

5. Once having made the election to participate in the Health and Safety Committee rather than participating in the Supplementary Service assignment, there is nothing in Rule 6 which, in the view of the arbitrator accords the employee the opportunity to reclaim (as a matter of right) a participation in the Supplementary Service assignment. Consequently, there is no right to receive overtime pay for a period during which the employee neither worked or is deemed to have worked.

Having stated the foregoing conclusion, the arbitrator wishes to make it abundantly clear, that it was open to the parties to have arrived at terminology in Article 44.2(g), which would have led to a different conclusion. So for example, the parties could have created a clause reading as follows:

An employee serving as a member of the Health and Safety Committee shall on any day when he attends to such duties, receive wages equivalent to those wages which he would have received had he not, on the day in question, been attending to duties of the Committee.

A clause of the foregoing character, would likely lead to a conclusion that the individual member would be paid, not simply in relation to the “time spent” in attending to Committee duties on the day in question, but rather by reference to all wages which he might otherwise have earned. In its argument, the Union has attempted to secure an interpretation of Rule 44.2(g) which would capture for the employee, compensation for a period during which the employee neither worked nor is deemed to have worked. Rule 44.2(g) simply does not, in the arbitrator’s view, allow for such interpretation. Whether or not Rule 44.2(g) as currently written is sufficiently fair to those who serve as members of the Health and Safety Committee is not the issue. The arbitrator must respect the bargain struck by the parties and not engage in rewriting the Collective Agreement under the guise of interpretation. Earlier in this award, I refer to the agreement made by the parties concerning the fact that the arbitrator not make any assumption as to whether or not Mr. Legare was told of the Supplementary Service assignment in a timely manner and thereby given an opportunity to participate in such assignment. The arbitrator was requested therefore to make a ruling which would take into account either factual possibility. Having regard to all of the evidence and argument tendered and having regard to the conclusions and comments hereinbefore set out, the arbitrator makes the following determination:

1. If on April l5th, 1998 Mr. Legare was not informed in a timely manner of the Supplementary Service assignment and thereby given the opportunity to participate in such assignment, such failure would constitute a breach of the Collective Agreement and consequently Mr. Legare would be entitled to a payment of 4 hours and 20 minutes at prevailing overtime rates.

2. Alternatively, if on April 15th, 1998 Mr. Legare was informed of the Supplementary Service assignment in a timely manner and thereby given the opportunity to participate in such assignment, but he declined same and chose instead to participate in the Health and Safety Committee on the day in question, Mr. Legare would not be entitled to receive any overtime compensation.

In the normal course, a grievance is either allowed or dismissed through the arbitration process. In this instance, that degree of finality cannot be achieved since a crucial factual matter has been left to be discussed by the parties following the issuance of this award. It is possible that the parties will come to an agreement on that factual aspect. Alternatively, the parties may find themselves incapable of achieving a common ground on the crucial factual issue of whether or not Mr. Legare was informed in a timely manner of the Supplementary Service assignment and consequently whether he was afforded the opportunity to participate in such assignment. Accordingly, the arbitrator retains jurisdiction to reconvene the hearing, at the request of either party hereto, in the event that the parties are unable to reach agreement on the factual issue, so that the factual issue may be dealt with and the grievance disposed of with finality.

In the event of such request, the evidence and argument presented should be restricted to matters directly related to whether or not Mr. Legare was informed in a timely manner of the Supplementary Service assignment and thereby afforded the opportunity to participate in such assignment. It is not contemplated by the arbitrator that any reconvening of the hearing be utilized, by either party, as an opportunity to reopen the matter in its entirety.

Additional to the foregoing, the arbitrator retains jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

In closing, I would like to express my appreciation and thanks to both parties for the clarity and skill with which they presented their respective arguments and positions.

AT DATED WINNIPEG in Manitoba this 25 day of November 1999.

(signed) SIDNEY G. SORONOW

ARBITRATOR