SHP GRIEVANCE #717

 

IN THE MATTER OF AN ARBITRATION BETWEEN

 

ESSEX TERMINAL RAILWAY COMPANY

and

UNIFOR, LOCAL 100

 

GRIEVANCE OF EUGENE GELDART

 

TED CRLJENICA - SOLE ARBITRATOR

 

APPEARING FOR THE UNION

BRIAN STEVENS NATIONAL RAIL DIRECTOR

DREW RATAJEWSKI UNIT CHAIRPERSON

EUGENE GELDART GRIEVOR

 

APPEARING FOR THE EMPLOYER

JEAN MARENETETTE LEGAL COUNSEL

ED CLOUGH RAILWAY SUPERINTENDENT

BOB BULMER CAR REPAIR DEPARTMENT FOREMAN

 

AWARD DATED JUNE 9, 2014

*******************************************************************************

The outcome of this grievance turns on the interpretation of the following provisions of the collective agreement:

 

3.4 Overtime: . . . work in excess of forty (40) straight time hours in any work week shall be considered overtime . . .

 

3.4.2 Minimum Three Hours at Overtime Rate: 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.

 

At the completion of his regular work week, the grievor had worked a total of 38 straight time hours. He was called in to work on his first rest day of that week and worked eight hours. For the call-in day, he was paid two hours at straight time and six hours at the overtime rate. The union is seeking overtime pay for the entire eight hours worked on the call-in day, that being overtime pay for the other two hours for which he was paid straight time.

 

The union's position is that the word "Minimum" in the title of 3.4.2 ("Minimum Three Hours at Overtime Rate") establishes a floor that provides that an employee who is called into work and reports will not be paid less than three hours at the overtime rate, but that it does not create a ceiling, or "maximum". On the union's interpretation the overtime rate continues to apply to all hours worked on that day regardless as to whether the employee had reached the weekly overtime threshold of forty straight time hours prior to the call-in.

 

The employer's position is that the minimum amount of pay established by 3.4.2 only applies to employees who are called in, report and work three or fewer hours that day. As the grievor worked more than three hours on this call-in day, 3.4.2 has no application whatsoever. Thus, had he worked three or fewer hours he would have been entitled to have been paid three hours at the overtime rate. Once he exceeded three hours on the call-in day, any entitlement to overtime is governed solely by 3.4. In this situation, as the grievor had only accumulated 38 straight time hours during the work week it was necessary for him to work two additional hours at straight time before the 40 hour threshold had been met. Thus, the employer paid him at straight time for the first two hours worked on the call-in day. At that point he had worked 40 hours at straight time that week and was entitled to be paid at the overtime rate for the balance of the day.

 

It is my determination that the grievor was properly paid two hours at the straight time rate and six hours at the overtime rate. However, in coming to this conclusion, I do not accept either party's interpretation of the interaction between 3.4 and 3.4.2. The union's interpretation is inconsistent with the concluding words of 3.4.2, " . . . for three (3) hours work or less." Not only are these words inconsistent with an intention that the overtime rate should be applied to any hours worked beyond three hours on the call-in day, if that was the parties' intention it would have been quite simple to so state in 3.4.2. Thus, it is my conclusion that 3.4.2 ceases to apply after three hours.

 

The employer's interpretation would lead to an absurdity. Had the grievor worked three hours on the call-in day he would have been paid the equivalent of four and one-half hours straight time pay. Had he worked four hours he would have been paid four hours straight time pay. In my view, it would take very clear language to conclude that an employee might be paid more for working three hours than if he works four hours (and the four hour stint encompasses the three hour block of time in the former situation).

 

Applying the plain and ordinary meaning of the words the parties utilized in 3.4 and 3.4.2, the grievor worked eight hours on his rest day and was entitled to be paid at the overtime rate for the first three hours per 3.4.2. Beyond that, as he had not yet worked 40 straight-time hours that week, he reverted to straight time for hours four and five (being hours 39 and 40 of the week at straight time). Thus, for the last three hours he was entitled to be paid at the overtime rate per 3.2.

 

In conclusion, the grievance is dismissed. I will remain seized of this matter to deal with any issues necessary to finalize this grievance.

 

Dated this 9th day of June, 2014.

 

 

_____________________________

Ted Crljenica Sole Arbitrator