A statement of the dispute or question to be arbitrated shall be submitted by both parties, either jointly or separately, to all members of the Board within five days of appointment of the Chairman. The Board of Arbitration shall convene within 15 days after the appointment of the Chairman unless otherwise mutually agreed by the parties and render its decision as soon thereafter as possible.

Accordingly, I wish to advise you that the statement of the dispute reads as follows:

The questions to be arbitrated are firstly whether Canadian National Telecommunications was entitled to insist that Miss B. Russell, the Grievor, forfeit the vacation dates which had previously been assigned to her by posting; and secondly, whether the Grievor is entitled to receive from Canadian National Telecommunications the difference between the earnings actually received by her and the earnings which she would have received as Supervisory Aide in Winnipeg during the time which she would have held the latter position for the period of time for which she was originally posted to that position.

The issue in the appeal is whether a board of arbitration has power under a particular collective agreement to deal with a grievance notwithstanding the admitted fact that it was late in time.

A joint statement, or separate statements, by the Company and the Union covering the grievance or dispute and out-lining the matter to be settled by the Arbitration Board shall be submitted to all members of the Board within three (3) days after their appointment.

25.5 The decision of the Board shall be limited to the dispute or question contained in the statement or statements submitted to it by the party or parties. The decision of the Arbitration Board shall not change, add to, vary or disregard any provisions of this Agreement.

My opinion is that the majority decision was erroneous for the following reasons:

The joint statement makes it clear that the decision on the merits is only to be made if there is a preliminary finding that the grievance was timely. Once the board found that the grievance was out of time, this should have been the end of the matter. By assuming to relieve against the time limit and imposing a penalty as a condition for the exercise of this power, the board amended, modified or changed the provisions of the collective agreement in spite of the express provision contained in Article X1, s.4.

If the grievance were abandoned, then there could be no question to be arbitrated. However, notwithstanding the failure to process the grievance within the time limited in the agreement counsel for the company (appellant) proceeded as if the grievance procedure had, in fact, been complied with.

Counsel for the appellant has proceeded throughout upon the basis that step 3 was completed when Mr. Damstrom, the president of the local of the union, and Mr. H. Nelson, the manager of the appellant company, met and conferred on February 12, 1962. At the close of that meeting there was, however, no formal entry made setting out the result thereof and I cannot see why the telephone conversation between the same two men on the next day, February 13, 1962, cannot be considered a continuation of step 3 so that step 3 did not terminate until the latter date. On the 14th day thereafter, i.e., February 27th, and within the time limited by art. 15, s.2, Mr. Damstrom dispatched to Mr. Nelson the letter which I have recited above. In that letter Mr. Damstrom gives the name and address of the union’s nominee to the Arbitration Board. In my view, this disposes of one of the two basis of the appellant company’s argument that the grievance had been abandoned. The second objection was that the registered letter dated February 21, 1962, which I have quoted above, did not contain the statement of the questions to be arbitrated. That letter read in part: "In the matter of the discharge of Mr. Earl Gorris …" Gorrie’s first letter of February 12th had set out his grievance in writing as follow: "That I was fired from my job without proper cause."

Reading those two documents together, I have no doubt that the question to be arbitrated was sufficiently set out in writing. I am of the opinion that in the matter of labour relations and arbitration thereon to take a narrow, technical and pedantic view of the procedure is to defeat the purpose for which the statute was enacted.

It is our position the Company violated Article 23, Section 1(h) and section 3(b) which reads as follows:

The agreement makes it mandatory for the Company to release employees on the dates assigned. The words "mutually agreed" means that the parties to the Agreement may by mutual agreement change the dates assigned in January.

23.1 (h) An employee will be compensated for vacation at the rate of the position which he would have been filling during such vacation period.

23.3(b) Applications for vacation filed in December of the previous year shall, insofar as it is practicable to do so, be given preference in order of the greatest district seniority of applicants and will be given preference over later applicants. A vacation list shall be posted in January showing dates allotted and unless otherwise mutually agreed, employees must take their vacation at the time allotted. The Railway will, as far as practicable, relieve the applicants between and including the months of April and October when desired.

Bulletin No. 75

Applications will be received from those duly qualified up to and including 30 June 1967 for position of Auto. Supervisory Aide (Day), Winnipeg Man., for a temporary period of approximately four (4) months. Scheduled graded rates apply.

(Vice. Crook Bltn 62) Superintendent.

Mr J. Vandeventer

Please consider this my application for Bulletin 75 Supervisory Aide Wpg, with stipulation that I be allowed my holidays dates awarded as auto opr. Thank you,

Miss B. Russell Auto Opr.

Bulletin No. 75

Position of Auto. Supervisory Aide, Winnipeg, Man., for a temporary period of approximately four (4) months is hereby awarded to Miss B. Russell, Winnipeg.

J. F. Law

Superintendent.

Mr. Radford Wpg.

Re awarding of Bulletin Nbr. 75. since this interferes with my vacations would like to cancel my application.

Auto Opr.

Correction to Bulletin No. 75

Position of Auto. Supervisory Aide, Winnipeg, Man., for a temporary period of approximately four (4) months is hereby re-awarded to Mr. N. Kendall, Winnipeg.

J. F. Law

Superintendent.

Having found ambiguity in (certain named provisions of the agreement) by an interpretation of the collective agreement, which in my opinion it does not reasonably bear, the majority of the board admitted in evidence the master policy of insurance to which I have referred and also admitted oral evidence of what was called past practice. It then proceeded to infer the intention of the parties from such oral evidence having regard to the classes of employees excluded from benefits under the terms of the said policy of insurance …

… Where a writing is unambiguous such evidence, although received, cannot be used to construe it. It is true that at least in some respects a collective agreement is different from an ordinary commercial agreement. But the principle that requires the intention of parties to be derived from their plain written words rather than from extrinsic evidence is one applicable to all writings clearly defining rights between parties …

A collective agreement provided that "supervisors shall not perform work normally performed by employees in the bargaining unit unless … (i) when instructing, assisting or training employees, (ii) when an emergency occurs and it is necessary for the supervisor to act for the safety of equipment, safety of personnel, and the continuation or prompt restoration of "operations". An employee doing radiographic work which by reason of an order under the Atomic Energy Act, R.S.C. 1952, c. 11, could only be done by a certified industrial radiographer, was promoted to a supervisory position. No other employee was a certified industrial radiographer and the employee continued to do the radiographic work. The union filed a policy grievance which went to arbitration, the board holding that in the circumstances there was no breach of the collective agreement because the employer could not be required to violate the order to comply with the collective agreement.

The board however in effect relieved the Company of its obligation to comply with art. 14.15 of the agreement by reason of the provisions of the Atomic Energy Control Act, R.S.C. 1952, c.11, and the Atomic Energy Regulations of Canada, P.C. 1954-1643. SOR Con. 1955, vol. 1, p.151. By an order made under this federal Act effective March 1, 1966, it was required, in effect, that no one should perform industrial radiography operations unless he was properly and duly certified as an industrial radiographer under the Act. Mr. Hendricks did take the prescribed course and became fully qualified as a senior radiographer in 1965. After so qualifying, Mr. Hendricks remained in the bargaining unit and no problem arose until August 1, 1966, when Mr. Hendricks was promoted out of the bargaining unit to a supervisory position. There being no one else available in the bargaining unit as a certified radiographer, the Board held that it would be untenable to require the Company to violate the order in order to comply with the provisions of the collective agreement. In its award the board did frankly admit that (emphasis added)

Upon this set of facts, it appears clear to me that the Board’s award cannot be allowed to stand. On the one hand the Board has exceeded its jurisdiction by dealing with ancillary matters which were not before it. In addition, the Board has declined to accept its jurisdiction by failing to deal with the very direct and simple issue placed before it. Namely, the question of compliance or failure to comply with art. 14.15 of the agreement. in effect, the Board found in its award that it was proper to add a further exception to art. 14.15 and to provide for a new set of circumstances in which supervisors should be permitted to perform work normally performed by employees in the bargaining unit. In short, the Board said in effect that if it should happen at any time that there is no person in the bargaining unit who is qualified to do the work that he has normally been qualified to do in the past then the Company may permit the work to be performed by a supervisor. In the circumstances of this case, the Board apparently felt it necessary to enlarge the terms of the collective agreement. In my view the board was, thus, improperly extending the bounds of its jurisdiction, not only at common law, but directly in the face of the collective agreement under which it was set up, since art. 16.2 of this agreement reads:

In its award the board treated the effect of art. 14.15 as to require the Company to violate the terms of the Atomic Energy Control Act. But it appears to be an error in law apparent on the face of the award. It was the Company’s own act in promoting Mr. Hendricks out of the bargaining unit and into a supervisory position which made it difficult for the Company to comply with the Act until they could find another certified radiographer. But that problem is entirely ancillary to an interpretation of art. 14.14 of the collective bargaining agreement. It was an interpretation of that article upon which the Union based its grievance and it was an interpretation of that article that the Union was entitled to receive, and which it never did receive.

In considering whatever difficulties the Company might have, difficulties which the Board admits are not insuperable, in complying with the provisions of the Atomic Energy Control Act, it seems to me that the Board exceeded its jurisdiction. In declining to deal with the specific question as to whether John Hendricks as a supervisor was still performing work normally performed by employees in the bargaining unit and thus offending the provisions of art.. 14.15 of the agreement, it seems to me the Board refused to accept its jurisdiction.

(emphasis added)

8.1(b) Special positions, such as those held by employees in newspaper offices, grain exchanges, stock exchange, race tracks and other sporting events, also city branch offices vacation relief, shall be bulletined locally. This rule shall also apply to vacancies and new position of Grade 1 Clerks on the Eastern & Western Regions.

…

8.1(e) An employee filling a temporary vacancy, a temporary position or special position as defined in Clause 1, paragraph (a) and (b) of this Article, or a position of seasonal character such as summer or winter resorts, shall return to the regular position at termination of such employment.

This will also apply in the case of emergency assignments and temporary appointments not covered by this agreement, also to employees filling positions of Leading Hand Microwave Technician or Leading Radio Technician, or Leading Hand Diesel Mechanics.

14.1 An employee temporarily assigned for one day or more, in any calendar month, to a higher rated position shall receive the higher rate while occupying such position, due regard being had to graded rates. An employee temporarily assigned to a lower rated position shall not have his rate reduced,"

7.2 An employee appointed to a position in another seniority group in his promotion district shall retain and continue to accumulate seniority rights in his former group and in the group to which appointed from the date of the bulletin advertising the position. Should the Company be unable to release an employee within thirty (30) days from the date of the bulletin advertising the position, such employee will, if the rate of the new position awarded him is in excess of the rate of the position held by him, be paid the higher rate for all time held in excess of thirty (30) days.

An employee who is appointed by bulletin to a position shall be given a reasonable time in which to qualify, and failing, will be returned to his former position without loss of seniority.

In the event of an employee being appointed to a swing position which involves a division of work between positions in separate seniority group (within one of the seniority groupings designated in Article 6, clause (b) and where the employee concerned, previous to such appointment has established seniority in one group only he will be accorded seniority in the other separate seniority group providing the major portion of the swing relief work falls in such group.

In the event of an employee being appointed to a swing position of the above-mentioned character and who had not previously established seniority in either seniority group, such employee will be accorded seniority only in the particular group which comprises the major portion of the swing relief work.

Applications for vacations filed in December of the previous year shall, insofar as it is practicable to do so, be given preference in order of the greatest district seniority of applicants within each classification, and will be given preference over later applicants within such classification. A vacation list shall be posted in January showing dates allotted and unless otherwise mutually agreed, employees, within such classification, must take their vacations at the time allotted. … An employee who is temporarily or permanently transferred or assigned to a position in another classification before the date of the commencement of his allotted vacation, may, at the option of the company, have his vacation postponed to a date prescribed by the Company.

(emphasis supplied)

It is conceded that if the Board of Arbitration disregarded the plain meaning of the collective bargaining agreement, that is to say, in effect wrote something into the agreement thereby giving the agreement a meaning which it otherwise could not reasonably be held to have, the Board exceeded its jurisdiction and that the award cannot stand. On the other hand, appellant takes the position that the Board in its decision merely interpreted the existing agreement giving a meaning thereto which the language employed in the agreement reasonably bears. (emphasis added)

The Company will inform the Association by the 15th day of each month as to changes in classification, hiring, re-hiring, discharges, quits, layoffs, transfers, recalls and other changes to the seniority list which occur during the preceding calendar month.

Classifications and Remunerations as contained in Appendix A to this Agreement will be applicable until November 1st, 1960, when the rates and ranges of rates will be increased by $12.00 per month.

Grieved on the basis that the company contrary to Article 16 had created a new employment classification.

… I content myself by saying at once that upon a perusal and consideration of the agreement I find it impossible to say that it may not upon its very terms reasonably receive the interpretation and application given to it by a majority of the Board of Arbitration …

Mr. Robinette argued that there is no latent ambiguity in the written agreement and that the Board created a latent ambiguity by receiving evidence of surrounding circumstances and antecedent practices and that this was error in law. I am not persuaded by this argument. On close study I cannot come to the conclusion that the Board erred in law in deciding that these clauses were ambiguous …

… It is an elementary rule in the construction of written documents that words used are intended to have some meaning. The Board was therefore right in seeking to determine what the intention of the parties was in using words which, taken in their literal sense, had no meaning in the context in which they were used. (emphasis supplied)

… If it is open to me to consider whether the Board erred in deciding that there was a latent ambiguity in the agreement I do no think that it erred in receiving evidence of the circumstances under which the contract was entered into, including the antecedent conduct of the parties in reference to the interpretation that themselves had put on similar clauses in previous agreements. This evidence was necessary and relevant in the interpretation of the language of the clause which, taken by itself, in the light of all the circumstances had no real meaning.

(emphasis supplied)

13.03 All employees who have been steadily employed by the Company for a period of fifteen years or more prior to July 1st in any year shall be entitled to three weeks’vacation with pay at a time or times convenient to the Company and shall receive as vacation pay an amount equivalent to 6% of such employee’s earnings for all time actually worked during the immediately preceding calendar year.

In our opinion, the date ‘July 1 in any year’ in 13.03 is simply a qualifying date to determine the extent of an employee’s vacation and the amount of his vacation pay. As of September 28, 1964, McMillan (the grievor) was entitled to look at the Collective Agreement and ascertain his eligibility. As of September 28, 1964, he had been steadily employed by the Company for a period of fifteen years or more prior to July 1 and therefore on the plain wording of the clause was entitled to receive three weeks off work because he had not had a vacation in 1964. No retroactivity is indicated in 13.03 but neither is there any suggestion that the clause does not apply to the current vacation year (July 1, 1964 to June 30, 1965). McMillan (the grievor) had not received the benefit set out in 13.03 and to deprive him (and all maintenance men) of it, it would have been necessary to have used clear and explicit language such as "Commencing on July I, 1965, all employees who have been steadily …" (emphasis supplied)

... It is not the work that he might have had but rather what he would have had. This is capable of ascertainment, and if in fact the grievor would have had the assignment of August 27 and 28 he his entitled to the consequent vacation benefit.

At the outset, the Board wishes to make it clear that it does not regard the union’s objection as one going to its jurisdiction. That the board was properly seized of the dispute which was the subject of its award of September 4, 1958 is unquestionable. The assessment of damages consequent upon finding of a breach of obligation resulting in compensable loss is a matter of the board’s powers. The silence of a collective agreement on a board’s remedial authority can no more be taken as excluding such authority that can its silence on procedure be taken to thwart the board in proceeding with a hearing on the merits of a case committed for its determination.

It is desirable at this point to point up a distinction between the imposition of penalties and the award of damages. It is a distinction taken, and in this Board’s view, properly taken, in the award in Re U.A.W. & C.C.M. (1951), 3 Lab. Arb. Cas. 837. This board, sitting as a civil tribunal, to resolve contract interpretation disputes, has no punitive function but is charged only with redressing private wrongs arising from breach of obligations assumed as a result of negotiation. The board’s remedial authority, if it has any, must be addressed to the vindication of violated rights by putting the innocent party, so far as can reasonably be done, in the position in which he or it would be if the particular rights had not been violated. The redress, if any can be given, must be suited to or measured by the wrong done …

One of the submission of union counsel appears to be that there is a difference in an arbitration board’s remedial authority where an employee claims redress under the collective agreement and where a company claims redress. The only differences, so far as this board can see any, are in the nature of the obligation which is allegedly violated and in the readier measure of loss, if loss is shown. The fact that a collective agreement stipulates the worth of an employee’s labour in a wage schedule merely simplifies a tribunal’s assessment of damages. It adds nothing to its powers. There is no need to emphasize that the difficulty of assessing damages has never been a reason for denying a claim thereto based on an established breach of contractual or other obligation owed to the claiming party. It is worth noticing in this connection that in an award handed down by Little, .C.J. in Re Mine, Mill and Smelter Workers Union & A. Silverman & Sons Ltd. (1958), 9 Lab. Arb. Cas. 39, decided about four months before the Deloro case, His Honour awarded one day’s statutory holiday pay to an employee who had been improperly denied such pay.

It is hardly tenable distinction between this award of his and that in the Deloro case that in the former the collective agreement stipulated that employees "will receive one day’s pay … for (certain) holidays". This statement does not expressly say that the board could award such pay if it was improperly withheld. Yet it did so, and rightly too. In the Deloro case, employees were improperly deprived of work for certain days for which they would have been paid at known rates if the company had provided the work as it should have done. It will suffice to leave this discussion on this rhetorical note of inquiry: Why should payment (as provided) be directed to an employee who was entitled to be paid although not at work, and yet none be directed (although provided) for employees improperly deprived of work? Surely the answer cannot lie in the case or difficulty of assessing loss! Of course, the proper answer may be that Little D.C.J. has recanted his Silverman award and now considers it wrong. Be that as it may, this board prefers to hold that ubi jus, ibi remedium is no less applicable to characterize the affirmative authority of labour arbitrators than it is to characterize the affirmative authority of the ordinary courts in contract matters.