SHP 583










 (the "Company")








(the "Union")







SOLE ARBITRATOR:    Michel G. Picher





            Gilles Pépin                   – Labour Relations Officer, Calgary

            Steve Samosinski          – Director, Labour Relations, Calgary

            Debbi Johnson               – Manager, Pension Services, Calgary

            Brian Mellon                  – Process Manager, Toronto





            Brian McDonagh            – National Representative, New Westminster

            Ron Laughlin                 – Vice-Presient, E.R., Oshawa

            Chris Senior                  – Local Chair Car, Uxbridge

            José Cordeiro                – Grievor



A hearing in this matter was held in Toronto on February 6, 2004




            The sole issue in this arbitration is whether the grievor, who was incorrectly denied overtime opportunities, should be compensated for the time lost by a monetary payment, or whether he should be given an opportunity to work equivalent hours at a mutually convenient time. The statement of fact and issue, filed as part of the Union’s brief at the hearing, reflects the outline of facts giving rise to the dispute.



Whether a missed call under Rule 6 should be paid outright or whether an opportunity to work the equivalent hours at a mutually convenient time between the Company and the employee in question.



In this matter there is no dispute with respect to the fact that Mr. Cordeiro is entitled to 33.5 hours at time and one/half of his base rate, or 42 straight time hours. (The hours are broken down as follows: March 18, 2002 – 14.5 hours, March 20,20002 – 4 hours, March 21, 2002 – 2 hours, March 22, 5 hours and March 25 – 8 hours.)


This is confirmed in the Company’s Step II response to the Union:


            There is no dispute to the fact that Mr. J. Cordeiro missed calls for Supplementary Service on March 18th, 20th, 21st, 22nd and 25th, 2002. As stated in the Step I response, the Company has concluded that Mr. Cordeiro did in fact miss these calls for supplementary service. As a resolve to this dispute, the Company offered the opportunity for Mr. Cordeiro to make up the lost calls through General Overtime, at his convenience. …



It is the position of the Union that:


–    historically, payments for missed calls under Rule 6, Supplementary Service, have regularly been paid outright to the individual or individuals making a claim;


–    it is unreasonable for an employee to be required to “work off” the equivalent amounts of repayment overtime. In many cases this could entail 10s to 100s of hours of work to attain the repayment in overtime hours and could be complicated and compounded by additional missed calls;


–    payment under Rule 6 cannot reasonably be governed by a “remedy in kind” situation as there are specific and unique applications of Rule 6 that must be taken into consideration;


–    if “remedy in kind” can be applied to Rule 6 violation there is no deterrent for the Company to ensure that the calling procedures under Rule 6 are adhered to;


Therefore, it is the position of the Union, that Mr. J. Cordeiro should be paid outright the equivalent of 42 straight time hours and not be required to work back the time lost.


The Company denies the Union’s contentions and claims.


            The grievor is employed as a carman. He is occasionally called off his normal assignment to perform overtime work on the road truck assignment, a job which falls  within a different class of assignment than his own. While it is submitted that he was incorrectly denied overtime in the road truck service, the Company submits that he is adequately compensated by making up that lost overtime working general overtime in the carshop. The Union expresses substantial concerns about that alternative, in light of the fact that carshop employees have substantially less access to overtime, and would view themselves as prejudicially affected by Mr. Cordeiro being assigned to work overtime in that location.


            Upon careful consideration, the Arbitrator is satisfied that the position of the  Union is to be preferred to that of the Company. Firstly, it must be recognized that rule 6 of the collective agreement, which governs supplementary service which relates largely to wrecking work and derailments, specifically delineates specific and separate lists to be established for various forms of supplementary service. That is reflected, to some degree, in the provisions of rule 6.1 which provides as follows:



Supplementary Service, Emergency Calls and Wrecking Service shall continue to be handled 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.


            It is not disputed that in the case at hand the Company failed to follow the calling procedure provisions of article 6.9, and that overtime opportunities which should have been given to Mr. Cordeiro were in fact assigned to a junior employee.


            As can be seen from the above, the collective agreement is somewhat unique in that it establishes specific regular and spare lists for each separate service under the provisions of rule 6.1. Significantly, employees can hold a position on those lists in only one service at one time. The unchallenged representation of the Union has been that for years the understanding between the Company and the Union is that those holding supplementary positions under rule 6 are not able to claim or be assigned to overtime calls for general overtime worked in the shops and yards. There are, in other words, very clear fences built around the assignment of overtime within the workplace.


            The Arbitrator appreciates the position of the Company, as a general matter. It should go without saying that where it is possible to offer an employee redress for a missed overtime opportunity by assigning an alternative overtime shift to the same individual, rather than paying him or her for work not performed, the remedy in kind is to be preferred. That general rule, however, has some exceptions. As noted in Brown & Beatty, Canadian Labour Arbitration, 3rd Edition at para 2:1423, there are circumstances where remedy in kind are not appropriate. In that regard the authors state the following:


… However against this general presumption it has been recognized that there are a number of circumstances where a remedy in kind may not be appropriate. Thus, where the grievor is no longer in the same classification, where it would interfere with the overtime rights of other employees, where the imbalance among employees in the distribution of overtime opportunities was so great, where the work in question was given to employees outside the group or classification in which overtime was to be distributed and was therefore lost forever, where overtime opportunities were intermittent, irregular or unpredictable, where the grievor is the only employee in the  classification, where the period of time over which overtime was to be equalized had expired, where the delay in making an offer of any in-kind remedy was substantial, or where the agreement itself held a remedy in kind to be inappropriate and have awarded damages. …


            In the case at hand the Arbitrator is satisfied that the foregoing passage has an appropriate application. Specifically, I find it difficult to appreciate on what basis there could be an assignment of overtime to Mr. Cordeiro in the carshop, where separate overtime eligibility lists are maintained, without adversely affecting the rights of the employees in that location. Assuming, as I must, that the work assigned to the grievor would not be make-work, but would be work which is necessary to have accomplished, there must necessarily be an adverse impact or prejudice to the employees on the separate overtime list who have a contractual expectation of performing overtime work within that location. In the circumstance so described, I must accept the submission of the representative of the Union to the effect that the assignment of overtime proposed by the Company as a remedy in kind would be prejudicial to other employees in the workplace. I draw that conclusion without commenting on the further representations of the Union to the effect that there would be grave resentment harboured among employees in the carshop, whose general overtime opportunities are said to be substantially less than those of persons in the situation of the grievor with considerably greater access to overtime under the provisions of rule 6.


            For all of the foregoing reasons the grievance is allowed. The Arbitrator directs that the Company pay forthwith to the grievor all moneys owing in relation to the overtime opportunities which he missed, said to be the payment of forty-two straight time hours. I retain jurisdiction in the event of any dispute concerning the interpretation or implementation of this award.


Dated at Toronto, this 16th day of February 2004