BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Judge Eric W. Cross, Q.C.

There appeared on behalf of the Company:

T. A. Johnstone

M. A. Cocquyt

K. L. Crump

J. W. G. Macdougall, Q.C.

K. McReynolds

J. A. Mansfield

F. H. Kennedy

J. Del Torto

And on behalf of the Union:

W. J. Wright

J. P. Riccucci

S. C. Anderson

D. McAvoy

A hearing in this matter was held at the City of Toronto, Ontario, on Friday, May 22nd, 1964.

Pursuant to the terms of a Collective Agreement between the above-mentioned parties, the undersigned was appointed an Arbitrator to deal with the hereinafter mentioned grievance. Formal hearing was held at the City of Toronto, Ontario, on Friday, May 22nd, 1964, at which the Company was represented by Mr. T.A. Johnstone along with Messrs. M.A. Cocquyt, K.L. Crump, J.W.G. Macdougall, Q.C., K. McReynolds, J.A. Mansfield, F.H. Kennedy and J. Del Torto, and the Brotherhood was represented by Mr. W.J. Wright, along with Messrs. J.P. Riccucci, S.C. Anderson and D. McAvoy.

After hearing the evidence submitted by the parties and arguments put forward on their behalf, I now submit my Award as Arbitrator.

The issue for arbitration was agreed to by the parties and was set forth in a letter dated April 28th, 1964, signed by Mr. Thomas A. Johnstone on behalf of the Company, and Mr. W.J. Wright on behalf of the Brotherhood of Locomotive Engineers, and this issue reads as follows:

The dispute involves Locomotive Engineers who are employed by the Company, handling locomotives in yard and transfer services. The issue turns upon an interpretation of Article 8 B, which is headed BASIC DAY, and sub-section 2 thereof:

This section is clear and unambiguous as it stands, and provides for a five day work week of eight hours each, a forty hour week in all, and this is to be the basic day for all purposes of the Agreement, except as otherwise provided. The above agreement became effective December 2nd, 1953, and prior to this the yard engineers had worked a six day week and in some cases a seven day week.

The rates of pay were increased in order to compensate for the forty hour week. For example, under the December 2nd, 1953 settlement, which for wage purposes was made effective October the 1st, 1953, the rates in effect at September the 30th, 1952 were increased by twelve percent for road service engineers and by thirty-two per cent for those in yard and transfer service. This increase was in order to maintain take home pay, because of the reduction in the work week to forty hours, and higher hourly rates became necessary in order to accomplish this objective.

Following the adoption of the language of Article 8 B (2), a number of discussions took place between the parties with a view to a gradual implementation of the five day week, and these were crystallized in a letter of understanding, dated May 15, 1954, incorporated into the Agreement, and the parties operated under the framework of this letter until February 13th, 1964, when the Company decided to implement the five day week for yard engineers. A series of conferences and discussions ensued, the ultimate result of which was the result of the issue of the right to implement, to arbitration.

Before passing on, I would again observe that Article 8 B (2) sets up a forty hour week as the basic work period, unless otherwise provided. There are no other provisions in the Agreement which, in my opinion, might be taken to qualify the basic period, except the letter of understanding above referred to, which is printed as a supplement to the Collective Agreement and reads as follows:

It was contended on behalf of the Company that the letter quoted above was not a negotiated instrument, but was merely a unilateral statement of policy by the Company and as such, was not an integral part of the Collective Agreement. I am unable to accept this argument firstly, because the letter is made an integral part of the Collective Agreement by being published with it and secondly, because the letter itself states in its opening sentence, "In the application of the Memorandum of Agreement governing Locomotive Engineers, Atlantic and Central Regions, signed at Montreal, December 2, 1953, the following will apply". The letter is also referred to in the main body of the Collective Agreement in brackets at the end of Clause 8 B (2), "see letter of understanding page 102".

A letter of understanding would clearly mean, in my opinion, that the parties had discussed the application of Section 8 B and as a result of these discussions, an understanding had been reached between the Brotherhood and the Company, whereby the sections referred to in the letter would be applied in a particular way. For purposes of the interpretation and application of Section 8 B, the letter of understanding in my view has become an integral part of the Collective Agreement.

The Company also submitted evidence to show that the Canadian Pacific Railway had also adopted a five day week in a memorandum of agreement with the same Brotherhood as is here involved, and also concluded a memorandum covering the transition period identical with that signed by the Canadian National.

Subsequently, the matter was taken to arbitration and two arbitration decisions, one by Mr. Roger Bisson, Q.C. and one by Professor Bora Laskin, Q.C., upheld the contention of the Canadian Pacific, that it had the right to implement the five day week insofar as the yard and terminal assignments were concerned. These decisions would be of great assistance to me if there were any ambiguity in the letter of understanding. The letter appears to me, however, to be plain on the face of it and I prefer to rest this decision on the simple ground that the words used in paragraph 2 of the letter of under standing are clearly permissive and not mandatory.

I refer first of all to section 1 of the letter of understanding, which states emphatically that under Article 8 B, the Company has, "the unrestricted right to the establishment of five day assignments in accordance with the Railway’s operational requirements". The determination of the Railway’s operational requirements, of course, are clearly within the rights and the functions of management, and furthermore, there was no evidence submitted to me which would indicate that these rights with respect to the operational requirements were being wrongfully exercised so as to force the introduction of a five day week with respect to yard and terminal service.

Section 2 of the letter then goes on to provide a modification of section 1 quoted above, by cooperation of the parties. The Company, of course, could not have continued six day engine assignments without the agreement of the Brotherhood, because otherwise, it would be in violation of its obligation to establish a five day week. The meaning of the letter of understanding seems to me unmistakably clear, namely that the Company and the Brotherhood had agreed that the Company would not be in violation of the Agreement if it did bulletin six-day assignments for yard engineers. This meaning can in no way be construed as saying (something that is really just the opposite), namely that the Company is obligated to maintain six day assignments, and that it would be in violation of the Collective Agreement if it failed to do so, and yet basically that is what the Brotherhood is asking me to find.

I might observe that the five day week has long been an objective of organized labour in the Canadian industry, and once attained, surely it can only be modified by the clearest of language. It seems to me to follow that the Brotherhood cannot argue that an objective which it had so long sought with respect to all employees and which was recognized by the parties in their Collective Agreement dated December 2nd, 1953, was nullified completely by the operation of paragraph 2 of the letter of understanding just referred to.

I also direct particular attention to the words in Section 2 of the letter of understanding that, "the representative of the Company (Locomotive Foreman) and representative of the engineers (Local Chairman) will cooperate in designating day or days off of regular assignments". If there was to be a mandatory obligation upon the Company, there would be no need to use the word, "cooperate". The letter then goes on to say, "In this connection", which in my view clearly refers to the agreement of the Company and the Brotherhood to cooperate and nothing more, except in connection with the process of cooperation, six day engine assignments may be bulletined. The next sentence says that, "regular relief assignments may also be established on this six day basis".

Surely the use of the permissive word, "may", cannot be construed so as to place upon the Company a compulsive obligation to do what can only be understood as an undertaking to cooperate. In my view, therefore, the Company under the letter of understanding agreed to pursue a course of cooperation with the Brotherhood, and in this connection it may do certain things, which are not to be deemed by the Brotherhood as being in breach of the Collective Agreement, in respect to the five day week.

In conclusion, I am of the opinion that the language of the Collective Agreement and the letter of understanding can only be interpreted to mean that the Company has the right and indeed the obligation, to implement the five day week, but in this connection, in cooperation with the Brotherhood, six day assignments may be bulletined for locomotive engineers in yard and terminal service.

For these reasons, I must find that the Company is not in violation of the Collective Agreement in its implementation of the five day work week for locomotive engineers engaged in yard and transfer assignment.

DATED at Woodstock, Ontario, this 11th day of June 1964.