AD HOC – 6
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
International Longshoremen’s Association, Local 1259
RE : Effective date for implementation of new vacation article ARTICLES 9 and 20
CHAIRMAN OF BOARD: H. A. Hanson, Q.C.
UNION MEMBER: V. A. Morrison
COMPANY MEMBER: Professor A. J. Meagher, Q.C.
A hearing in this matter was held in January 1961
[Includes dissent by the Company nominee.]
decision of the board
This is a dispute concerning the general interpretation of vacation pay sections of the current collective agreement, and the previous agreement between the parties. It concerns deductions made by the Railway Company to recover an alleged over-payment of vacation pay.
On August 24, 1956 the parties to this reference entered into a collective agreement defining working conditions and rates of pay. Paragraph 14 of that agreement contained rules determining the length of vacations coupled with defined rates of vacation pay. That paragraph provided in part as follows:
14. Only those who have service of at least one year with the Company shall be entitled to vacation with pay.
The maximum period of vacation with pay for employees with less than fifteen years’ service will be twelve days in any one year based on employment record for the previous year.
An employee will be granted one day’s vacation for every seventeen days worked in the preceding year. That is, an employee will receive a maximum of twelve days vacation if he had worked two hundred and four days.
An employee who at the beginning of the calendar year has maintained a continuous employment relationship for at least 15 years and has completed 4,500 days cumulative service will be allowed eighteen (18) days vacation with pay during such year, and in subsequent years will be allowed one day’s vacation with pay for each 16 2/3 days’ cumulative service or major portion thereof during the preceding calendar year with a maximum of eighteen (18) days.
Vacation time shall be paid on the basis of a ten hour day, at the rate of pay in effect at the time vacation is taken, i.e., $1,421; $1,463; $1,490 or $1,532 per hour.
The text of the paragraph is not important to this award other than to note that its terms were more favourable to junior employees than those of subsequent collective agreement. The agreement became effective on July 1, 1956 and was intended to continue until June 30, 1958 and from year to year thereafter subject to 60 days’ notice of termination. The agreement contained one effective date only.
On May 28 1958 revision proposals were made by the Union which, following negotiation, resulted in a new collective agreement executed on June 24, 1959. This is the agreement which has produced the dispute. Article 9 of the new agreement deals with vacations and vacation pay in the following terms:
9.1 An employee who at the beginning of the calendar year has had less than two year’s continuous employment relationship, or who has had more than thirty working days cumulative service in the preceding calendar year, shall be allowed one calendar week’s vacation with pay until qualified for further vacation under Article 9.2. Vacation pay for such employees shall be allowed in the amount of two percent of the employee’s wages in the preceding calendar year.
9.2 An employee who at the beginning of the calendar year has had two or more years continuous employment relationship and has had more than thirty working days’ cumulative service in the preceding calendar year, shall be allowed two calendar week’s vacation for such employees with pay until qualified for further vacation under Article 9.3. Vacation pay shall be allowed in the amount of four percent of the employee’s wages in the preceding calendar year.
9.3 An employee who at the beginning of the calendar year has maintained a continuous employment relationship for at least fifteen years and has completed 3750 working days’ cumulative service, shall be allowed three calendar weeks vacation with pay. Vacation pay shall be allowed in the amount of six percent of the employee’s wages in the preceding calendar year.
9.6 Vacation period shall be granted at any time during the year upon the employee’s request, but at no time will the number on vacation exceed twenty-five unless otherwise agreed to by the Company.
9.7 An employee who has become entitled to a vacation with pay shall be granted such vacation within a twelve month period immediately following the completion of the calendar year of employment in respect of which the employee became entitled to vacation.
9.8 An employee terminating his employment for any reason at a time when an unused period of vacation with pay stands to his credit shall be allowed vacation as provided in Articles 9.1, 9.2 and 9.3, and in addition shall be allowed vacation with pay for the current year to his date of leaving the service, calculated on the same basis. An employee terminating his employment and not qualified to receive vacation under Articles 9.1, 9.2 and 9.3 and who has had more than thirty days’ cumulative service shall be allowed vacation with pay, calculated to his date of leaving the service on the same basis as if qualified under Article 9.1. If vacation is not granted, employees will be allowed pay in lieu thereof.
Article 20 of the new agreement contains the transitional material from the old agreement to the new, and provides as follows:
20.1 This agreement supersedes agreement signed at Moncton, N.B., August 24, 1956, and is in full settlement of the proposals of May 24, 1958, respecting rates of pay and working conditions of Longshoremen of the Port of North Sydney, N.S. submitted by the International Longshoremen men’s Association Local 1259. This agreement, except as otherwise provided herein, shall become effective on July 1 1958, with respect to rates of pay, and effective July 5, 1959, with respect to rules, and shall continue in force until the 30th day of June, 1961 and then from year to year until either party gives to the other party sixty days notice in writing prior to the 30th day of June in any year, including the year ending the 30th day of June, 1961.
Between January 1, 1959 and July 5, 1959 many employees elected to take vacations and received vacation pay calculated in accordance with the former agreement, which continued until replaced by the new agreement. This group included approximately 128 junior employees and 47 senior employees. In general terms many junior employees had an advantage under the former agreement in the number of vacation days granted, while senior employees found the vacation rules under the new agreement more favourable. Because rates of pay are retroactive to July 1, 1958 both groups obtained a vacation pay increase in any event. These circumstances led the senior employees into arbitration on the following reference:
Whether Article 9.3 of the current wage agreement should be made retroactive to January 1st, 1959, as contended by the Union or whether the effective date of article 9.3 is July 5th, 1959 as contended by the Company.
Article 9.1 and 9.2 deals with junior employees; Article 9.3 deals with senior employees only. It is material to consider the arguments, finding and basis of award of the previous Board.
The Company contended that under Article 20 rates Of pay were retroactive to July 1, 1958 and rules became effective on July 5, 1959, and that Article 9.3 contained a rule only. Therefore, if an employee took his vacation or any part of that vacation between January 1, 1959 and July 4, 1959 his rights to that vacation were governed by the old contract except as to rates of pay; that vacation pay would be larger as a result of the retroactive increase in the rate of pay to July 1, 1958, but the calculation of that pay would be made in days earned under the old agreement rather than a percentage of the annual wages under the new agreement. There is evidence that this method of calculation had been accepted in 27 other agreements without dispute. The former Board was made aware that a contrary interpretation of Article 9.3 might effect junior employees and require them to return a portion of their vacation pay. The transcript of the earlier hearing shows that the Company invited the former Board to make a policy award by giving a general interpretation of Article 9 and finding an effective date for both senior and junior employees. The Union did not agree and required that Board to make a specific finding with respect to senior employees under Article 9.3 only. In any event the Company took the position that the words "an employee who at the beginning of the calendar year" created a condition precedent to qualification for vacation with pay but did not change the effective date of the now agreement.
The Union contended that the opening words of Article 9.3 over-rode the effective date contained in Article 20 and showed an intention to create an effective date of January 1, 1959 for determining length of vacation.
A curious commentary may be made at this time. A copy of the new agreement provided as an exhibit by the Company has endorsed on its front cover "Effective July 1, 1958". A copy of the same exhibit provided by the Union bears the front cover endorsement "Effective July 5, 1959". Article 9 refers by inference to January 1 in each year during the currency of the collective agreement. The possible effective dates of the new agreement are plethoric.
The former Board found January 1, 1959 as the effective date of Article 9.3. It is my great misfortune not to understand the Chairman’s reasoning or the majority award. The Chairmen stated:
If the Company’s interpretation of Articles 9.3 and 20.1 is correct, and if this was so understood and "agreed by both parties herein when they entered into the Collective agreement, it is rather difficult to understand why a substantial number of workmen would elect to take their vacations prior to July 5th and thus lose the benefits of more favourable provisions under 9.3. This, and other circumstances revealed in the submissions herein, lead us to the conclusion that the Company’s interpretation of Article 9.3, as set forth herein, was not the interpretation and understanding of the said Article by the Union when it entered into the Collective Agreement of June 24th, 1959."
It would appear that the wording of Article 9.3 is sufficiently emphatic and explicit to bring it within the exception mentioned in Article 20.1, namely "Except as otherwise provided herein" allowing the conclusion that the effective date of implementation under Article 9.3 is "the beginning o£ the calendar year".
The majority award concludes with the following statements:
Submissions were made to the Board regarding the potential effect the decision of the Board would have with respect to the vacation provisions contained in Articles 9.1 and 9.2 but as the Board’s Terms of Reference does not extend to these Sections of the Collective Agreement consideration of their provisions must be excluded.
As a result of this award the Company paid additional sums to senior employees who had taken vacation between January 1 and July 5, being bound by an effective date of January 1 with respect to Article 9.3. The Company was of the opinion also that the specific interpretation of Article 9.3 by the board should be applied to junior employees under Article 9.1 and 9.2 and recovered from them substantial deductions from pay amounting to more than the increases awarded senior employees. These deductions were the matter of correspondence between the parties, objection by the Union, and resulted in grievance procedure to detriment whether the deductions were proper.
The Company now contends that in view of the identical wording appearing in Article 9.1 end 9.2 and 9.3, and being bound by the ruling of the previous arbitration board, it is impossible to do otherwise than apply the logic of the Board’s findings to Article 9.1 and 9.2. It points out that the Union, in effect, is arguing that the effective date of Article 9.3 is January 1, 1959, but the effective date of Article 9.1 and 9.2 is July 5, 1959, which is inconsistent. It emphasizes that the amount of vacation pay to which an employee would be entitled is more favourable to long service employees covered by 9.3, if the entitling date is January 1, 1959. On the other hand for those of less seniority, covered by Article 9.1 and 9.2, a larger vacation payment would result, if an entitling date of July 5, 1959 were applied. The Union is "trying to have its cake and eat it too" knowing that an uniform interpretation of all three clauses would produce a different result. In other words the Company, by its argument, has sought to place the Union "on the horns of a dilemma". This form of argument is answerable only with a counter dilemma, which the Union has not attempted to propound.
The substantial argument made by the Company is that the Board must recognize and give effect to the binding force of the previous award made between the same parties. It relies upon the decisions in: Re: United Automobile Workers & L.A. Young Industries Ltd. (1958) 8 L.A.C. 196, and Re: United Steel Workers and Steel Co. of Canada Ltd. (1959) 10 L.A.C. 169.
These cases appear to apply the doctrine of stare decisis. An editorial note to the latter case calls attention to a confusion of terminology between stare decisis and res judicata and refers to an article, The Binding Force of Arbitration Awards (1958) 8 L.A.C. 323. In its argument the Company suggested that an estoppel has arisen, and referred to Article 14.4 which provides,
14.4 The decision of the arbitration board shall be final and binding upon the parties and upon all persons bound by the agreement and on whose behalf the Agreement was entered into.
The Union now contends that the deductions made by the Company are "arbitrary and unjust and completely wrong"; that it is absurd to suggest that it would contract in such a way that some employees would have to return monies already paid. The Union’s argument appears to be an argument as to the intention of the parties at the time of signing the renewal agreement in its altered form. It declares that the negotiations intended additional benefits under the new contract and no deductions from vacation payments already settled. The Union suggests that the Company is acting in "a fit of pique" because of the earlier unfavourable award; that the only reasonable conclusion this Board may reach is the Union signed the new contract on the understanding that the employees would gain all vacation time and vacation pay advantages possible; and that employees who had taken their vacations would retain whatever advantage they gained by taking their vacation before the signing of the new contract.
It would appear that the Union is now saying that it is not open to the Company to reopen the settled accounts of junior employees by making pay deductions, although it was quite permissible for senior employees to contend January 1 as their effective date and recover from the Company under the rates of the new contract.
The Company’s contention raises squarely the question of the binding force of a previous award. The jurisprudence, if any, on this matter is contradictory. In Re: United Automobile Workers; and L.A. Young Industries supra the arbitrator held that he was bound by an arbitration award disposing of a grievance between the same parties and during the same contract period. The reasons for the award were stated as follows:
This whole matter came before me in Re: United Automobile Workers & Chrysler Corp. (1954), 5 Labour Arbitration Cases 1668. At that time, I disagreed with a decision by a former arbitrator and substituted my own ruling in the case I heard for his decision. It created a most unfortunate situation under the terms of that contract as it created considerable confusion in the application of the terms of that contract. As a result of that case, I made some considerable investigation into the law on the subject, and I came to the conclusion that, irrespective of what an arbitrator may think that the proper ruling may be on the merits of an individual case as between the same parties during the term of the same agreement, he is bound to follow even a wrong decision of a former arbitrator.
In Re: United Steel Workers and Steel Co. of Canada Ltd, supra the ratio of the United Automobile Workers decision received the following comment:
This board is not prepared to go as far as Judge Lane does and say that once a matter has been dealt with by a board of arbitration, another board of arbitration, even under the same contract, has no right to depart from the ruling given by the first board, even if the second board of arbitration is of the opinion that the first board is clearly wrong.
In Arbitration matters the statement contained in the supplement to the majority award in Re: International Union of Electrical Workers, and Canadian General Electric Co. Ltd (1959) 9 L.A.C. 343 at page 347, appears preferable.
Better it is to face squarely the issue whether one believes in uniformity for its own sake (coupled with the ingenuous suggestion that error can be corrected at the bargaining table an the next round of negotiations) or whether one would act with the same freedom and independence as did the earlier board, subject only to argument and persuasion based on citation of alleged authorities which now include (for the second board) a decision on the very point in question. This board has no hesitation in adopting the second stated alternative.
There are decisions of arbitration boards which apply earlier awards between the same parties based on the same set of circumstances. These cases appear to proceed on the theory that the previous award was final and binding on the parties, therefore the later board should decline to examine the matter a second time. This theory appears to be modified in Re: United Steel Workers and Steel Co. of Canada Ltd., supra, which states that the later board should not upset a ruling of the earlier board unless it was definitely of the view that the decision of the first board was "clearly wrong" and not merely that the second board "would have come to a different conclusion". While the nicety of this distinction may be applied on appeal, it scarcely fits the arbitration process, particularly where facts are not in dispute.
In United Automobile Workers and L.W. Young Industries Ltd., supra, the nature of the first grievance does not appear in the report. The second grievance is a "policy" grievance, involving the construction of a section of a collective agreement.
Because of the nature of arbitration, which is to settle disputes arising under collective agreements, doctrines of law such as stare decisis, res judicata and estoppel should have limited application. Rules of interpretation, on the other hand, are most useful in deciding the meaning of a particular contract. The conclusions reached in "The Binding Force of Arbitration Awards" supra are quoted with approval.
For an arbitrator to be bound by a previous award involving the same parties is inconsistent with this quasi-administrative role which the arbitrator must play. An award, that should be "binding" only in so far as it resolves the particular grievance with which it is concerned finally and effectively.
The conclusions reached at this point are that neither awards involving other parties, nor awards between the same parties but involving particular sets of facts and circumstances need be "binding" on later arbitrators. The question of estoppel arises more forcefully, however, in the case of the "policy" grievance. Suppose the issue to be arbitrated is a general question of interpretation, one clearly intended to be relied upon in the future. That such questions are arbitrable on the motion of either the company or the union has been decided recently in United Steel Corp. V. Fuller.
The terms of reference to the first board are specifically related to Article 9.3. It was open to the Company at that time to obtain an interpretation of Article 9.1 and 9.2. As the Jurisdiction of a board is limited to the terms of reference, the previous award cannot be considered as binding under Article 14.4 beyond its scope.
The Company’s contention means basically that this Board is invited to allow a deduction from pay from the junior employees whose rights are defined by Article 9.1 and 9.2 and (whose pay cheques have been settled) to make good an unexpected benefit to senior employees by the previous award. I must decline to declare that pay should be taken from one group of employees, if they are entitled to that pay for the sake of uniformity of decision. Under these circumstances this Board should examine the terms of the agreement and come to a reasonable and independent conclusion as to its meaning.
Having reached the conclusion that this Board should not consider itself bound by the previous awards the interpretation of Article 9.1 and 9.2 should now be undertaken.
The interpretation of collective agreements should be governed by the same well known rules which apply to commercial agreements. These rules require this Board to select the ordinary and natural meaning of the word used in the light of the surrounding circumstances. Moreover the whole contract should be considered. Interpretations should not be influenced by previous negotiations, subsequent declarations or conduct of the parties. A party relying on an exception to a general term of the contract, must show a clear intention to override the general term.
In our opinion Article 20 establishes an effective date of July 5, 1959 for qualification for vacation. The words "all employees who at the beginning of the calendar year" contained in Article 9.1 and 9.2 do not over-ride, the words of Article 20. They do not show a clear intention to do so. They provide merely a measure of the length of service required to qualify for vacation.
In its grievance the Union has asked for a policy decision as to the right of the Company to rake the deductions from junior employees. A majority of this Board is of the opinion that the sums of money deducted were earned under Paragraph 14 of the agreement dated August 24, 1956. The Company should therefore restore the deductions.
DATED at Halifax, Nova Scotia, August 24, 1961.
(signed) H.A. Hanson (signed) Vincent A. Morrison
Chairman Union Nominee
With deference, I am unable to agree with the majority decision on this Board. It is my opinion that the decision of the Arbitration Board presided over by Judge A.H. McKinnon dated the 24th day of June, 1960 and involving the parties who are before us, is binding on this Board in the present dispute.
The facts involved in this grievance are set out in the report of the Chairman so they need not be again set out in detail. The material facts are briefly -- that the earlier grievance before the McKinnon Board and the present grievance before this Board involve the same parties, arose at the same time under a similar set of circumstances, and embody the interpretation of identical phrases used in clauses 1, 2 and 3 of Article 9 of the existing Collective Agreement. With the exception of the respective Chairmen, the personnel of the two boards is the same.
The McKinnon Board held "that Article 9.3 became effective as to qualifications for vacation provisions and as to entitlement to vacation provisions on January 1st, 1959". The primary issue before this Board is whether the McKinnon award imposes upon this Board the duty to hold that the effective dates of Articles 9.1 and 9.2 is January 1st, 1959 and not July 5th, 1959 as contended before the Board.
Differences of opinion exist as to the binding effect of a previous decision in a situation such as this. Taking the recent arbitration cases published in Volumes 8 to 11 of the Labour Arbitration Case dealing with this problem, all of them with the exception of the one relied upon by the other members of the Board support the conclusion that arbitrators are bound by a previous decision in a factual situation similar to that being considered by this Board.
In Re United Automobile Workers & L.A. Young Industries Ltd. (1958), 8 L.A.C. 196 at 197, Lane C.C.J. stated:
This whole matter came before me in Re U.A.W. & Chrysler Corp. (1954) 5 L.A.C. 1668. At that time, I disagreed with a decision by a former arbitrator and substituted my own ruling in the case I heard for his decision. It created a most unfortunate situation under the terms of that contract as it created considerable confusion in the application of the terms of that contract. As a result of that case, I made some considerable investigation into the law on the subject, and I came to the conclusion that irrespective of what an arbitrator may think that the proper ruling may be on the merits of an individual case as between the same parties during the term of the same agreement, he is bound to follow even a wrong decision of a former arbitrator.
Judge W.F. Schwenger in Re United Automobile Workers Local 399 & Anaconda Brass Ltd. (1958) 8 L.A.C. 315, held that a prior decision was founded on a wrong principle and refused to be bound by it.
In United Automobile Workers, Local 636 and James Steward Mfg. Co. Ltd. (1958), 8 L.A.C., 346 at 348, Judge Schwenger also stated:
A reading of the award made by McCombs, C.C.J., indicates that the collective agreement in force at that time contained cl. 64(c) exactly in the same terms as contained in the agreement I have referred to at present in force and being dated the 1st January 1957 ... This decision was an interpretation of c1. 64(c) and its meaning was clearly established by this decision and well known to both parties when the present agreement was signed in exactly the same terms as far as clause 64 is concerned on the 10th September, 1957.
This prior decision is binding on both the employer and the union as bargaining agents and it is also binding on me.
In Re United Steel Workers, Local 3684 and American Standard Produce Ltd. (1958), 9 L.A.C. 14 at 16, a board chaired by Mr C.H. Curtis followed the adjudication of a previous board as to the meaning of "essential" in the particular contract, but distinguished it on the facts.
Judge E.W. Cross stated in Re United Automobile Workers, Local 458 and Massey-Ferguson Ltd. (1959) 9 L.A.C. 333, at 335:
The decision of the arbitration board is to be made within ten days if possible after the chairman has been appointed and shall be final and binding on both parties. (Article 29)
For a board, therefore, to hold that the present claim is Arbitrable, would in effect mean that the former disposition by an arbitration board was neither final nor binding …
It is a well established principle that a party to a grievance is estopped from proceeding with a dispute that has already been disposed of at an earlier step of the grievance procedure or by arbitration, and this principle is supported by reference to numerous authorities. See J.F.W. Weatherill, The Binding Force of Arbitration Awards, 8 L.A.C. 323 (1958) Re U.S.W. & Dominion Bridge Co. Ltd. (1951) 2 L.A.C. 741; Re U.E.W. & C.G.E. (1951), 2 L.A.C. 763; Re U.A.W. & Fruehauf Trailer Co. Ltd. (1951), 3 L.A.C. 847; Re U.A.W. & Massey-Harris Co. Ltd. (1952), 3 L.A.C. 1016; Re U.A.W. & Fort of Canada Ltd. (1952), 3 L.A.C. 1159; Re U.E.W. & Canadian Westinghouse Ltd. (1957), 7 L.A.C. 282; Re U.E.W. & A.M. Tallmen Bronze Co. Ltd. (1957), 7 L.A.C. 253.
Judge J.C. Anderson stated in Re United Steel Workers and Steel Co. of Canada Ltd. (1959), 10 L.A.C. 169 at 176:
The other problem, however, is more difficult, Lane, C.C.J. in an arbitration award entitled Re U.A.W. & L.A. Young Industries Ltd. (1958), 8 L.A.C. 196 clearly concludes "that he, sitting as an arbitration board on a grievance similar to one already heard by another arbitration board, between the same parties and during the life of the same collective agreement, will not alter the previous award". He indicates that practical considerations dictated the adoption of the rule of stare decisis in such circumstances. "Any other ruling", he says, "could only result in utter confusion and discredit of the arbitration procedure." This board is not prepared to go as far as Judge Lane does and say that once a matter has been dealt with by a board of arbitration, another board of arbitration, even under the same contract, has no right to depart from the ruling given by the first board even if the second board of arbitration is of the opinion that the first board is clearly wrong.
It appears to this board that once an interpretation has been given by a board of arbitration and later a grievance comes before another board of arbitration, the facts being the same and the wording remaining the same as that before the earlier board, the later board should not upset a ruling of the earlier board unless it was definitely of the view that the decision of the first board was clearly wrong and not merely that the second board, if it had the matter before it for the first time, would have come to a different conclusion.
If the principle enunciated in the above decisions is accepted, it is quite clear that the McKinnon decision should be followed by this Board. While I dissented from the majority decision on the McKinnon Board and am prepared to still do so the existence of the words "except as otherwise provided herein" in Article 20.1 Of the Agreement and expressly relied upon by Judge McKinnon in his decision, prevents me from coming to the conclusion that the McKinnon decision was "clearly wrong" and should not be followed.
It is also my opinion that the McKinnon decision is in effect a "policy" decision on a "policy" issue. Legal dictionaries do not assist one in determining the meaning of a "policy" issue or decision. The association of the word "policy" with these words indicates that the issue or decision is one which is of general application. For instance, a decision affecting the vacation benefit of all the employees covered by a collective agreement should be a "policy" decision. The fact that the grievance was presented to an arbitration board in a limited form should not affect the nature of a "policy" decision if, in effect, the resulting decision is one of general application.
The grievance before the McKinnon Board was limited to the determination of the vacation benefits of those employees covered by Article 9.3 of the Agreement (It should be noted that the Company requested the McKinnon Board to enlarge the grievance to cover the vacation benefits of all employees covered by the Agreement, but the Chairman refused to do this: See transcript of evidence at pages 7 and 8). The grievance before this Board involves the interpretation of Articles 9.1 and 9.2 of the Agreement. The material wording of the three clauses in dispute as well as the material fact in issue, are identical in both grievances and govern the vacation benefits of all employees covered by the Agreement. Thus the same "policy" should be followed in interpreting each of the three clauses. It is clear that the parties intended that the effective date for the commencement of vacation benefits under the three clauses should be identical.
It was agreed by the parties on the hearing of this grievance that it would be treated as a "policy" grievance and that the Board should hand down a "policy" decision. If the decision of this Board is a policy decision afortiori the decision of the McKinnon Board should be considered as a policy decision even though that Board did not so label it. As a policy decision, the McKinnon decision would be definitely binding on this Board: Weatherill, The Binding Force of Arbitration Awards (1958), 8 L.A.C. 323, 327.
In addition, the parties to this dispute have expressly agreed by Article 14.4 of their agreement that "the decision of the Arbitration Board will be final and binding upon the parties and upon all persons bound by this Agreement and on whose behalf the Agreement was entered into." Likewise Parliament has enacted that "every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provisions for final settlement contained in the agreement and give effect thereto" (Section 19.3 Industrial Relations and Disputes Investigations Act, c. 152 (R.S.C.) 1952). The parties involved in this grievance are therefore estopped by both the Collective Agreement and by the Act from disputing the binding effect of the McKinnon decision.
The other members of the Board have followed the viewpoint expressed by the Board under the chairmanship of Professor Laskin in Re International Union of Electrical Workers and Canadian General Electric Co. Ltd. (1959), 9 L.A.C. 343, 347, namely.
This board cannot and would not argue against the desirability of uniformity in decision. This, however, is impossible with ad hoc boards of co-ordinate jurisdiction, unless we adapt to this field an old maxim of equity that "prior in time is prior in right". Yet it strains belief to allege that the first look at a problem is necessarily the correct look. Of course, if the desirable policy is that it is better that a matter be finally settled than that it be settled right, one need have no qualms on whether the first decision can stand critical examination. Good arguments can be made for adoption "of such a policy, but in the absence of agreement by the parties to that end, the choice is left to the board called upon to take the second look. There is no hierarchy of tribunals in labour arbitration, no ultimate appellate board those decisions are binding on boards of first instance. Application of a principle of stare decisis is thus excluded save itself denial of its independence of judgement by a second arbitration board faced with a decision on the point before it made by a proceeding board …
Better it is to face squarely the issue whether one believes in uniformity for its own sake (coupled with the ingenuous suggestion that error can be corrected at the bargaining table in the next round of negotiations) or whether one would act with the same freedom and independence as did the earlier board, subject only (as it was subject) to argument and persuasion based on citation of alleged authorities which now include (for the second board) a decision on the very point in question. This board has no hesitation in adopting the second stated alternative."
It should be noted that the parties in the Canadian General Electric grievance were not estopped by the decision of the earlier Board for as the Chairman of that Board said at page 347:
Moreover the Lane award and the one proposed here may be said to involve issues which arose simultaneously and it is not as if the parties are deliberately re-litigating a question which has been determined to the knowledge of both at the time a second grievance on the question is raised.
The policy adopted by the majority of this Board is definitely against the weight of authority cited above. Likewise it is against the policy of Parliament and the provisions of the Agreement which expressly provides for the binding effect of a prior arbitration decision.
I am accordingly of the opinion that the grievance should be dismissed.
DATED at Halifax, Nova Scotia, August 30, 1961.
(signed) A. J. MEACHER