SHP – 510

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”

IN THE MATTER OF THE GRIEVANCE OF D. GELLER & K. BOYAK

SOLE ARBITRATOR: Vincent L. Ready

There appeared on behalf of the Company:

Gilles Pepin

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 two grievances alleging the violation of Rule 5.3 and Rule 5.4 involving two overtime assignments, one claimed by the grievor, Engine Attendant D. Geller and the other claimed by the grievor, Engine Attendant K. Boyak.

By agreement of the parties the two grievances were joined. The issues giving rise to the grievances are the same. The factual background of both cases is the same.

On April 7, 1999, the Employer was notified that the regularly assigned Engine Attendants on the 16K shift would be late for work due to a snowstorm. Mr. Geller and Mr. Boyak were asked to work overtime following their regular shift, 08:00 to 16:00 hours. However, the Employer advised the grievors at 16:20K that their services were no longer required and paid them each one hour straight time as a minimum as per the provisions of Rule 5.1 of the Collective Agreement. Rule 5.1 reads:

5.1 For continuance service after regular working hours, employees will be paid time and one-half on the actual minute basis, with a minimum of one (1) hour at straight time rates for any such service performed.

The Union takes the position that since the grievors were required to replace vacant positions on the next shift, after their regular shift, they had in fact been required to report for work and the overtime was in fact a call-in. Having reported for work, the grievors were, therefore, entitled to a minimum of three hours at the prevailing overtime rate under the terms of Rule 5.4, which reads:

5.4 Employees called or required to report for work and reporting will be allowed a minimum of three (3) hours at the prevailing overtime rate for three (3) hours work or less, and will be required to do only such work as called for or other emergency work which may have developed after they were called and cannot be performed by the regular force in time to avoid delays in train movement.

The Union filed the grievances alleging that Mr. Geller and Mr. Boyak should have each received a minimum call-in of three hours at overtime rates on April 7, 1999.

The Employer denied the resolution, claiming the provisions of Rule 5.4 have no application in this instance.

The Employer takes the position that the provisions outlined within Rule 5.1 are applicable and appropriate to the incident in question because the temporary overtime assignment was, in fact, a continuation of the grievors’ regular assignments. Consequently, the Employer applied the appropriate provisions of the Collective Agreement and was correct in compensating the grievors for one hour’s work.

The Employer argues that neither grievor was called-in to work, nor were they required to report for work, as they were already on duty when asked to work the overtime. There was no “break” in service between the completion of their regular shift and commencement of the overtime assignment. Rule 5.3 and Rule 5.4 specifically address situations where an employee is called in to work or required to report for work and in fact reports for work for an assignment. Consequently, the Employer takes the position that these rules do not apply where the employee is already in service.

DECISION

In the circumstances of this case the Union’s position cannot be upheld. Rule 5.1 specifically deals with continuous service after regular working hours. In such cases, employees will be paid time and one-half on the actual minute basis with a minimum of one hour at straight time rates for any such service performed.

The work that is in dispute in this case was performed after the regular working hours of the grievors and, therefore, is captured by Rule 5.1 rather than Rules 5.3 and 5.4 as argued by the Union.

In an earlier decision between these parties dated August 14, 1984, Arbitrator J. Weatherill concluded, in part:

There must be some distinction to be drawn between the phrase “called to perform work”, as it appears in the collective agreement in issue in CROA Case No. 220 and the phrase “for continuous service” as it appears in article 5.1 of the collective agreement before me in the instant case. Whether or not the distinction between those phrases has any substantial intended significant, I think it must be said that an employee who is required by the company to attend an investigation, and who is thus under its direction and control, is in the “service” of the company. In the instant case, the grievors were, I consider, retained at work for a substantial period of time. The matter is of course to be determined having regard to the terms of the particular collective agreement in effect, and in the instant case it is my conclusion that the grievors were in continuous service after regular working hours.

That case supports the proposition that Rule 5.1 governs the payment of overtime to employees who are requested to work after their regular working hours.

In the result, the grievances are dismissed.

It is so awarded.

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

(signed) VINCENT L. READY

ARBITRATOR