SHP 520 IN THE MATTER OF AN ARBITRATION:

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY,

(hereinafter referred to as the "Company'

-and-

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION,

AND GENERAL WORKERS UNION OF CANADA

(CAW-CANADA), LOCAL 101,

(hereinafter referred to as the "Union ")

Re: Grievance of S. Seida/Dispute 9BARB/44

BOARD OF ARBITRATION: P. S. Teskey, Sole Arbitrator

DATE OF HEARING: March 9th, 2000

LOCATION OF HEARING: Winnipeg, Manitoba

APPEARANCES: J. Bate, Counsel for the Company

G. Pepin, Counsel for the Company

B. McDonagh, Counsel for the Union

S. Seida, Grievor

AWARD

At the commencement of the hearing, the parties agreed that I was

properly appointed and had jurisdiction to hear and determine this

matter which essentially involves contract interpretation.

The Joint Statement of Fact and Issue was tendered and reads as

follows:

"Statement of Fact:

On June 2,1998 at 04:00 hours, Mr. Seida was called to supplementary

service to work at a derailment at Pontiex and was returned to his

home terminal at 16:00 hours June 3,1998. Mr. Seida's regular shift

at that time was from 15:00 hours to 23:00 hours. He was cut of pay

between the hours of 20:00 hours and 23:00 hours on June 2,1998 while

at the wreck site and during the first 24 hours of Supplementary

Service.

Statement of Issue:

It is the position of the Union that:

- the Company violated Rule 2.2 and Rule 6.7 when, during the

first 24 hours of Supplementary Service, it refused to pay Mr.

Seida for 3 hours between the hours of 20:00-23:00 hours, of

what would have been his regular Shift at his home base;

Therefore, Mr. Seida should be compensated fully for the 3 hours in

question and we ask the Arbitrator to so award.

The Company denies the Union's contention and claims."

The grievance itself was also provided and was filed on July 9, 1998

which, as indicated above, alleges improper payment (actually no

payment) for three hours on June 2,1998. There was no issue that the

appropriate steps of the grievance procedure were not followed.

It is perhaps worth reproducing the letter from the Vice-President of

the Prairie Region of CAW, such letter being dated July 9,1998, which

was also tendered:

"Please, consider this as a grievance on behalf of Carman S. R. Seida

alleging violation of Rule 2 and Rule 6 of the Collective Agreement

101.

On June 2, 1998 at 04:00 hours, Mr. Seida was called to supplementary

service to work at a derailment at Pontiex and was returned to his

home terminal at 16:00 hours June 3,1998. The payment for time

between the hours of 20:00 - 23:00 is being questioned by Mr. Seida.

-2-

He claimed that in the past the same situations occurred and the

Company fully compensated the employee(s). At this instance the

Company reversed their position and refused to honor what was the

practice in this terminal for number of years. The employee(s) now

in Moose Jaw were told if you do not like it, then grieve it!

As our Local Grievance Chairperson reported that there were no

directive from Management to all employees of the supplementary

service concerning the changes. A discussion should have taken place

between the Management and the Employees to explore such changes and

a resolve if any could have been reached. It is also noted that the

Company is making up rules as they go along will not be taken lightly

be either this Office or our Local Representative in Moose Jaw.

It is the Union's position that the Company violated rules mentioned

above and the Union request full compensation for Mr. Seida."

As is the usual procedure, both parties provided detailed written

arguments and submissions which were augmented by further verbal

submissions. I do not intend to reproduce all of the written

submissions or the documentation of the various provisions of the

Collective Agreement and Rules or the other documentation that was

provided to me (although all of same have been considered) as the

parties are well aware of them.

This matters concerns what the appropriate payment is pursuant to

Rule 6 while the grievor was assigned to Supplementary Service. Mr.

Seida was regularly assigned duties at his home location in Moose Jaw

but also holds a position in Supplementary Service by right of

seniority. Such additional work is assigned pursuant to Rule 6.9.

His regular hours, when not engaged in Supplementary Service, are

from 3:00 p.m. to 11:00 p.m. but on June 2nd, a call commenced for

him to assist in Supplementary Service at a derailment site at

Pontiex, Saskatchewan. Pontiex is approximately six hours away from

Moose Jaw.

He attended to the service required, clearing up the derailment site,

until 8:00 p.m. on June 2nd, at which time he, along with the rest

of the crew, was assigned rest, and relieved from du until 7:00 a.m.

on June 3rd when he again performed Supplementary Services until 4:00

p.m. upon that day when he returned to his home location and

continued his work in Moose Jaw until 10:00 p.m. The Company took the

position that Rule 6.9 applied and accordingly paid him at time and a

half on June 2nd from 4:00 a.m. to 3:00 p.m. as well as at straight

time rates from 3:00 p.m. to 8:00 p.m. on that day but declined to

pay the three hours between 8:00 p.m. and 11:00 p.m. which is the

area of dispute.

It is necessary to reproduce the material elements of Rule 6 which

are as follows:

SUPPLEMENTARY SERVICE

Supplementary Service, Emergency Calls and Wrecking Service shall

continue to be handle by the employee classifications presently

performing this work

6.1 At locations where employees are required to protect

supplementary service such as Conventional Auxiliaries, Road

Repair Vehicles, Hi-Rail Cranes and other equipment assigned to

such service, there shall be a regular list and a spare list for

each service. Where practicable, employees will be permitted to

hold a position in only one such service at any one time.

Employees assigned to supplementary service shall be paid in

accordance with Rule 6.

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. and

6.6) when such irregular service prevents the employees from

making their regular daily hours at home station.

6.5 If held away from home terminal over night, employees will be

called one hour prior to commencing duty. Payment shall be at

time and one-half of the basic rate.

6. 6 When employees ,aged in supplementary service are held away

from home terminal over night, they will be allowed one hour at

time and one-half of the basic rate after arrival at the

designated lodging facility/boarding car to secure a highway

vehicle (where applicable), clean up and eat.

6.7 After the first 24 hour period in supplementary service all

employees so assigned shall be considered to have been assigned

hours of 0800 to 1600 hours.

6.9 Employees engaged in supplementary service shall be entitled to 5

hours undisturbed rest following the completion of their first 24

hour duty on the wreck site and in addition such employees shall

be entitled to 5 hours undisturbed rest during each 24 hour

period thereafter.

If during the time the employees engaged in supplementary service are

relieved from duty and permitted to go to bed for 5 hours or more,

such relief time will not be paid for provided suitable sleeping

accommodation is available.

For purposes of this Rule 6. 9 only, undisturbed rest shall be

defined as rest which has not been interrupted by switching or by

being awakened by an officer of the Company."

It should also be noted that during the 1995/1996 collective

bargaining, the wording to Rule 6 was significantly altered in terms

of referring to Supplementary Service as well as other alterations.

It was acknowledged by the Union that employees engaged in

Supplementary Service who were relieved from duty and permitted to go

to bed for five hours or more would not be paid for such relief time.

Obviously, the parties contemplated the necessity of some rest for

employees engaged in such services covered under Rule 6.9. The Rule

is also specific that relief time for five hours or more shall not be

paid providing that suitable sleeping accommodation is available. It

would appear that Mr. Seida was provided the five hours or more and

that the other conditions were met.

It does not appear to me that what has been agreed to between the

parties contemplates the payment for the three hours on June 2nd

although it would certainly be open to them to clarify the intent

with respect to payment for the normal shift through discussion and

further negotiation. Presently, the only restriction on payment that

is specified is the five hour limit and the grievor was ranted that.

Having read the decisions of arbitrators Piches and Weatherhill (and

I do not disagree with the conclusions that were reached in those

instances) I further agree that Rule 6 has to be considered as more

specific in terms of Supplementary Service than Rule 2.2. To arrive

at a different conclusion or interpretation would involve a

pyramiding of benefits which is not clearly delineated.

As I have already said, it would be possible and likely helpful for

the parties to deal with this issue and clarify it with more clear

language in subsequent negotiations but the preponderance of

authority at the present time, and the wording of the rules

themselves, lead me to the conclusion that there is not entitlement

presently in the circumstances before me.

I also do not accept the Union's submission as to Rule 6.7 when

considered within the context of the entire provisions of the Rule.

Neither do i accept that a past practice has been clearly enough

defined to create an estoppel. Mr. Seida was compensated twice

before but the Company claims this was an error albeit it might have

been useful and helpful for such "error ' to have been discussed with

the Union. However, I do not think that there is sufficient evidence

to support the proposition that the Company knowingly agreed to the

interpretation and application urged upon me by the Union. There is

not a sufficient basis upon which to find estoppel, waive, or

acquiescence upon the facts before me.

As indicated above, the previous decisions between the parties

support the position of the Company in this instance and neither does

it appear to me that this is a situation where the grievor has been

so unfairly treated that arbitral intervention is required upon some

inchoate notion or basis of fairness.

Accordingly, the grievance is denied.

I wish to thank all counsel for their able presentations. The

parties shall share equally in the expense of the arbitrator.

DATED this 10th day of April, 2000.

Signed

Paul S. Teskey, Sole Arbitrator