SHP – 503

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 101

(the “Union”

RE OVERTIME CLAIM OF C. WEISS

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

John Bate

And on behalf of the Union:

Brian McDonagh

A hearing in this matter was held at Vancouver, B.C., September 28, 1999.

AWARD

The issue giving rise to this dispute concerns a claim for payment of wages for failure to call employees for overtime time, when other employees with more overtime hours were working.

The Union filed a grievance on behalf of Mr. Weiss, the grievor, alleging he is entitled to be compensated for a lost overtime opportunity and wages as a result of not being called by the Company to work overtime on March 3, 1997. The Employer has denied resolution to this grievance, as per the request by the Union within its Step 2 grievance.

It is the position of the Union that the grievor was ready and available for an overtime call on the date in question; that he expressed interest in overtime work; and that no other employee with lower hours came forward for overtime at the time in question. Thus, argues the Union, the Employer has violated the established call-in procedure with respect to equalization of overtime.

Consequently, the Union asks that the grievor be paid twelve hours at the prevailing overtime rates as compensation for the Employer’s failure to call him for overtime in proper order.

The Employer, for its part, agrees that the grievor was denied and missed an overtime opportunity on March 3, 1997, by error. The Employer offered what it believes is the proper resolve to this dispute during the grievance procedure, namely that the grievor be afforded the “next opportunity” for overtime.

In coming to the conclusion that this is the proper remedy, the Employer relies on Re Canadian Pacific Limited and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) Local 101, (Grievance of Carman D. Turner) October 3, 1996 (MG Picher), which reads in part as follows:

Having regard to the agreement of the parties, expressed through their representatives at the arbitration hearing, the arbitrator finds that the Company did fail to offer overtime hours for April 1, 1994 to the grievor, Carman D. Turner of Toronto. It appears that the failure to do so arose out of a general misunderstanding with respect to the implementation of Rule 5.16 which has been, to some degree, rectified by the subsequent implementation of a spreadsheet system whereby, as a general matter, available overtime is first offered to employees who have recorded the lowest amount of overtime.

Having further regard to the agreement of the parties, with respect to the circumstances of this particular case, the arbitrator directs that the Company offer to Mr. Turner the opportunity to work a total of eight hours at overtime rates, the scheduling of such time to be at his discretion and mutually convenient to him and the Company. I remain seized of this matter in the event of any further dispute with respect to the interpretation or implementation of this award.

In essence, the Employer takes the position that it has in fact offered a proper, timely and just resolution to this dispute by offering the grievor the next opportunity for overtime and, therefore, asks that such a remedy be awarded in this case.

DECISION

On the submissions I find that the grievor was denied and missed an overtime opportunity on March 3, 1997.

With respect to the remedy, I adopt with approval the findings of Arbitrator Picher in Re Canadian Pacific Limited, supra.

Consequently, in the circumstances of this particular case, I direct that the Employer offer Mr. Weiss the opportunity to work a total of twelve hours at overtime rates, the scheduling of such time to be at his discretion and mutually convenient to him and the Employer.

I remain seized of this matter in the event of any further dispute with respect to the interpretation or implementation of this Award.

It is so awarded.

DATED AT VANCOUVER in the Province of British Columbia this 29th day of October, 1999.

(signed) VINCENT L. READY

ARBITRATOR