AH – 56
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS TELECOMMUNICATIONS DEPARTMENT
COMMERCIAL TELEGRAPHERS’ UNION DIVISION 43
IN THE MATTER OF THE GRIEVANCE OF B. RUSSELL
ARBITRATION BOARD: M. R. Gorsky - Chairman
M. J. O’Brien - Company Nominee
M. L. Levinson - Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
R. S. Finegan – Employee Relations Officer
And on behalf of the Union:
M.W. Wright, Q.C. – Counsel
G.C. Kurtz – District Chairman, Prairie District
A. G. Ingram – General Secretary-Treasurer
At the opening of the hearing counsel for the parties were requested to waive the requirements as to timeliness which are contained in the Agreement between Canadian National Railways Telecommunications Department and Commercial Telegraphers’ Union, Canadian National System Division No. 43, hereinafter referred to as "the agreement." Article 25, Clause 4 states:
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.
The provisions of Article 25, Clause 4 were not complied with within the five day period stipulated therein and it was not until September 26, 1968, that a statement of the dispute or question to be arbitrated was received from counsel for the grievor, addressed to the chairman. This statement was contained in a letter of September 25, 1968, from counsel for the grievor, the material portion of the statement being:
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.
There was no statement submitted to the Board, by the Company, before the hearing.
This failure to comply with the provisions of the agreement becomes material, especially in the light of the recent judgment of the Supreme Court of Canada, pronounced on October 1, 1968, being in the case of Union Carbide Canada Limited vs Paul C. Weiler, Robert Nicol and Lester L. Porter (1968), 70 D.L.R. (2nd) 333 (hereinafter called "the Union Carbide Case").
In the Union Carbide case, Mr. Justice Judson, delivering the judgment of the court stated at page 334:
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.
In the Union Carbide case the company objected on the ground that the notice from the union, of its desire to arbitrate the grievance, was too late. The facts of that case further disclose that the company had not waived the failure to comply with the notice requirements of the applicable grievance procedure, and the board so decided. Nevertheless, the majority of the arbitrators, then purported to relieve against the default.
It is significant that the grievance procedure which the Supreme Court was concerned with contained the following provision: (see page 335 of the Union Carbide case)
Article X1 Arbitration, Section 4:
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.
There is no material difference between the requirements of the first paragraph of Article X1, s.4 in the Union Carbide case and the first sentence in Article 25, clause 4 of the agreement in this matter.
The second paragraph of Article X1 s.4 of the Union Carbide agreement is to the same effect as Article 25 clause 5 of the agreement in this matter, which latter clause states:
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.
Mr. Justice Judson at page 335 in his judgment stated:
My opinion is that the majority decision was erroneous for the following reasons:
(a) The grievance was not timely and the board of arbitration has no power to extend the time
(b) The board of arbitration has no power to go beyond the question submitted in the joint statement.
(c) The board of arbitration was in breach of Article X1, s.4, above quoted, in extending the time and so modifying the terms of the collective agreement.
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.
While the Union Carbide case was governed by the provisions of the Ontario Labour Relations Act R.S.O. 1960, ch. 202, and this matter is governed by the provisions of the Industrial Relations and Disputes Investigation Act R.S.C. 1952, c.152, there is nothing contained in the latter statute which would render the Union Carbide case less binding in its authority.
It then appears that unless there was evidence before this Board that grievance procedure had been complied with the same result must follow as in the Union Carbide case where the arbitration award was quashed.
At the opening of the hearing of this matter counsel for the parties were advised of the inability of the Board to relieve against the evidence default unless the agreement gave such powers or the parties would waive the failure to comply with the applicable provisions of the agreement.
Mr. Healy indicated, that in addition to the failure to comply with Article 25 clause 4, the procedure contained in the agreement relating to the steps in the grievance procedure, preliminary to invoking arbitration (Article 22 clause 5) had not been followed.
The Chairman put the question to counsel whether they would waive the matters of procedural non compliance in order that the board might have jurisdiction to decide the issue. The waiver of procedural defects was dealt with by the Supreme Court of Canada in the case of Re Galloway Lumber Co. Ltd., and Brithish Columbia Labour Relations Board et al (1965), 48 D.L.R. 587. In that case, in order to advance the grievance from stage to stage the collective agreement required proceedings to be taken within 14 days of each proceeding stage. Failure to comply with the time requirements would result in the grievance being deemed to have been abandoned, and all rights of recourse to the grievance procedure would be at an end. Mr. Justice Spence stated at page 594:
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.
Mr. Justice Spence treated the failure to comply with certain steps in the grievance procedure as having been waived by conduct: (at p. 595)
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.
While Mr. Justice Spence dissented in part from the judgment of the majority of the Court, his reasons for judgment, as they concern the subject of waiver, are not part of his dissenting opinion. If waiver is possible in the case of defects in following the grievance procedure there is not reason for treating defects, occurring in the preliminary steps to arbitration, as being any less subject to being waived. If waiver may take place by implication it must certainly be capable of taking place where it is express.
Mr. Healy agreed to waive objections to the noted defects in the grievance procedure as well as in the arbitration procedure. By agreement the union’s statement of the dispute or question to be arbitrated, as contained in Mr. Wright’s letter of September 25, 1968, supra, was treated as timely. Similarly, and by agreement, the company’s statement of the dispute or question to be arbitrated was treated as that set out in a letter to Mr. H.J. Clarke, General Manager from Mr. R.A. Tomlinson, General Chairman, dated April 28, 1968:
It is our position the Company violated Article 23, Section 1(h) and section 3(b) which reads as follows:
An employee will be compensated for vacation at the rate of the position which he would have been filling during such vacation period.
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 vacations 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.
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.
An examination of the statements of the company and the union discloses they both relate to similar questions:
(1) Did the company violate the provisions of Article 23 section 1(h) of the agreement:
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.
as contained in the statement accepted by the company, being the letter of April 28, 1968, from the General Chairman of the Union to the General Manager of the Company. This issue is by implication contained in the statement of the dispute contained in Mr. Wright’s letter of September 25, 1968, (supra, p.1).
(2) Did the company violate the provisions of Article 23, section 3(b) of the agreement:
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.
similarly contained in the said letter of April 28, 1968 and similarly included by implication in Mr. Wright’s letter of September 25, 1968.
The separate statements, concerning the dispute to be arbitrated, are at variance in that the statement of the dispute incorporated as its own by the company does not deal with the nature of the relief which might be awarded by the board. The statement of the union raises the issue of whether the grievor, Miss B. Russell, is entitled to receive from the company "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 when she would have held the latter position for the period of time for which she was originally posted to that position."
The further preliminary question therefore arises as to whether this board has the power to make an award by way of the payment requested in the union’s statement of the dispute. This latter question will be dealt with in the course of the discussion of the issue and the award.
1. The grievor, Miss. B.Russell has been employed as a machine operator by the company, in Winnipeg, for some 19 years,
2. On June 20, 1967, a bulletin (Exhibit 1) was posted.
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.
J. F. Law
(Vice. Crook Bltn 62) Superintendent.
3. On June 30, 1967 the grievor applied for the bulletined position. (Exhibit 2)
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.
4. By a bulletin (Exhibit 3) bearing date July 4, 1967 the position of Supervisory Aide, was awarded to the grievor:
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
5. The grievor assumed the temporary position on July 4, 1967.
6. All of the issues in this matter stem from a disagreement over whether the acceptance by the grievor of the temporary position had the effect of depriving her of the vacation dates allotted to her by the company for the year 1967.
7. The material provisions in the agreement (Article 23, ss. 1(h) and 3(b) ) are set out in the company’s statement of the dispute and at p.6, supra.
8. The grievor applied for the period from August 28 to September 17, 1967 as her vacation dates for 1967.
9. The 1967 vacation list (Exhibit 7) allotted the grievor the vacation period requested by her.
10. The grievor gave evidence to the effect that she had made plans to attend Expo ‘67 in Montreal. She was obviously most anxious to maintain her allotted vacation dates which is demonstrated by the stipulation in her application for the supervisory aide position that "I be allowed my holiday dates awarded as (automatic operator)."
11. The grievor further testified that a few days after July 4, 1967, Mr. Radford, the Manager, Telecommunications, at Winnipeg, came to the office where she was now working as a temporary supervisory aide and spoke to her about new vacation dates. The grievor stated that she thought her originally allotted vacation dates would still apply. The grievor further testified that Mr. Radford suggested that a "deal might be worked out" - with respect to vacation dates. The grievor stated that she would not be party to any "deal". The grievor stated that Mr. Radford then advised her that if no "deal" could be arranged that the grievor would be required to forfeit her previously allotted vacation dates.
The grievor testified that Mr. Radford stated that he would attempt to obtain a temporary employee to relieve the grievor during her allotted vacation period from August 28 to September 11, 1967.
12. The grievor gave evidence that she did not wish to change her existing vacation plans. When Mr. Radford took the position that the grievor forfeited her original vacation dates by accepting the temporary position, the grievor cancelled her application by notice, dated July 5, 1967, (Exhibit 4) which notice she handed to Mr. Radford:
Mr. Radford Wpg.
Re awarding of Bulletin Nbr. 75. since this interferes with my vacations would like to cancel my application.
Miss B. Russell
13. The grievor also testified that she advised Mr. Radford of her intention to "process" a grievance based on the position taken by the company. She stated that she notified the District Chairman, Mr. Van Deventer of her grievance.
14. The grievor returned to her regular job as a machine operator and took her vacation at the time originally allotted to her.
15. During the entire course of her evidence the grievor maintained that she was entitled to her original vacation dates under Article 23 section 1(c) of the agreement; and that she would not be party to any arrangement which would alter what she took to be her rights under the agreement.
16. Mr. Radford testified that upon receipt of Exhibit 4, in which the grievor purported to withdraw her application he called Mr. Vouriot, the personnel supervisor and advised him of the grievor’s action. By corrected bulletin dated July 6, 1967, (Exhibit 5) the position was awarded to Mr. N. Kendall:
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
Mr. Radford testified that Mr. Kendall assumed the position of temporary supervisory aide about the 10th or 11th of July 1967.
17. There was some evidence given to Mr. Radford of an attempt to resolve the dispute, at a meeting with Mr. Van Deventer the Chairman of the union for the Prairie District. No resolution of the dispute took place and both side maintained their positions. The company: that they had the power to change vacation dates of a successful applicant who had "bid up" for a position. The union: that the employee had a right to take his vacation in the period originally allotted under Article 23, section 3(b) and that the company could not change these "allotted" dates once "posted" … "unless otherwise mutually agreed upon."
18. An attempt was made by Mr. Radford to prove the existence of past practice, which was alleged to have existed since 1947, whereby employees, in similar circumstances as recited here, had to and did give up their originally allotted vacation dates. Exhibit 7 was referred to by Mr. Radford as showing such existing past practice in the cases of Mr. Blakesly and Mr. Rugg, referred to in Exhibit 7. In his cross-examination Mr. Radford, acknowledged that the persons named by him, had been in fact, promoted out of the bargaining unit. Therefore, even if past practice was material to the determination of the issue, no evidence was established as to its existence.
The existence of provisions in a collective agreement which prove, in practice, to militate against the interests of any of the parties involved, do not provide a basis for arbitrators departing from their clear and unambiguous meaning.
Reference is made to R. v. Barber et al, Ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419 (1968). 68 D.L.R. (2nd) 682 (ont. C.A.). At page 689 and 690 of that case, Mr. Justice Jessup stated:
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 …
The case of Regina v. Krever et al, Ex parte International Chemical Workers Union Local 161, 597 (Ont. H.C.) (1968), 66 .L.R. 2d 597 is a case which provides some guidance concerning the powers and duties of arbitrators: the facts of that case are accurately summarized in the head-note at p. 597:
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.
Mr. Justice Stark stated, in his judgment, at page 599:
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)
the moment an employee within the bargaining unit qualifies as an industrial radiographer, the question whether permitting Mr. Hendricks to perform the field work part of his function amounts to a violation of art. 14.15 may have to be faced. That moment, however, is not now.
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:
It is agreed that the board of Arbitration shall not have any authority or jurisdiction to alter this Agreement or to deal with the matter not covered by this agreement.
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.
Article 25 clause 5 in the subject agreement is to the same effect as article 16.2 of the agreement in the above noted award. The difficulties which the company may encounter in arranging vacation schedules are no doubt real, as were the difficulties of the company in the above noted case. But to go beyond the clear meaning of the provisions of Article 23 section 3(b) would be to deal with "problem(s)" entirely ancillary to an interpretation of … (the said article)."
No evidence was submitted by the company, that the difficulties faced by it upon an interpretation of Article 23 section 3(b), being made favourable to the grievor, would be insuperable (see the last paragraph on page 600 of the judgment of Mr. Justice Stark).
Even if evidence of past practice were admissible, so as to be governing in this matter, which is not found, there was no evidence of any general past practice submitted by the company, apart from a general statement, by Mr. Radford, unsupported by other evidence, that the practice was as contended by the company, that is for employees to forfeit their originally allotted vacation dates upon being promoted into another group. It was stated by Mr. Radford that this was the case when Mr. Kendall was awarded the position of supervisory aide after the grievor had given up the promotion and returned to her position as a machine operator.
The language of Article 23 section 3 is clear. Article 23 section 3(b) states that, in the first instance, the company has the right to allot vacation dates base on applications filed by employees. However, the provision goes on to state that dates once allocate by the company are binding on the company and the employee: "A vacation list" (Exhibit 7)" shall be posted in January showing dates allotted and unless otherwise mutually agreed, employees must (emphasis added) take their vacations at the time allotted."
The absolute power to regulate vacation dates is spelled out in the first part of Article 23 section 3(b), already noted, as well as in the last sentence of that sub-section: "The Railway will, as far as practicable, relieve the applicants between and including the months of April and October when desired." This latter sentence refers to the initial power to set vacations dates, as being given to the company, but does not refer to vacation dates once allotted. The right to alteration in vacation dates is subject to there being mutual agreement. This meaning is further reinforced by Article 23 section 3(b) which deals with the case of employees who "do not apply for vacation prior to January 1st (who) shall be required to take their vacation at a time to be prescribed by the Company." The evidence given discloses that the grievor filed her application before January 1st, 1967 and therefore, is not governed by the latter sub-section.
An examination of Article 8 of the Agreement (Bulletining and Filling Positions), discloses no provisions which would have any effect on allotted vacation dates, as provided for in Article 25 section 3(b). An examination of Article 8, however, discloses that in other respects rights of an employee, who has been transferred, may be affected. Furthermore, employees in different job classification groups are sometimes subject to varying provisions:
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.
Article 14 dealing with pay to employees temporarily assigned to a "higher rated position" deals with the entitlement of such employee (clause 1) to receipt of the higher rate:
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,"
Article 7 clause (2) deals specifically with seniority rights upon transfer:
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.
No provision, in the agreement, was brought to this Board’s attention which would alter the plain meaning of the right of an employee to the vacation dates allotted him under Article 23 section 3(b).
Mr. Healy, relying upon the heading of Exhibit 7, "Automatic Operators 1967 Vacations" urged the Board to interpret the use in Article 23 section 3(b) of the words "vacation list" as being restricted to each job classification. If this interpretation was accepted, on the facts of this case, it would mean that "vacation" as set out in Article 23 section 3(b) would have to read as follows:
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.
In order to accede to Mr. Healy’s argument it would be necessary to depart from the plain meaning of the Article 23 section 3(b) and read into that article ambiguity which is not apparent on its face. The relevant authority on this point in the case of Re Canadian Westinghouse Co. Ltd. and Local 164 Draftsmen’s Association of Ontario, (1962) O.R. 17 (Ont. C.A.) Mr. Justice Aylesworth stated at p. 19:
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)
In that case Article 1.04 of the collective agreement quoted at p. 18 of the judgment stated:
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.
The Union relying upon Article 16 of the agreement:
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.
Mt. Justice Aylesworth at pp. 19-20 stated:
… 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 …
The important question is, therefore, whether the agreement "may … upon its terms reasonably receive" the interpretation pressed upon the Board.
In Canadian Westinghouse Co. Ltd., & United Electrical Radio & Machine Workers of America, Local 504, (1962) ) O.R. 20 (Ont. H.C.), Chief Justice McRuer, as he then was, stated at pp. 23-35:
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)
Further he stated at p. 29:
… 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.
It cannot be argued that the agreement provisions had no real meaning. Nor could it be stated that the heading "Automatic Operators 1967 Vacations" is relevant. The grievor was an automatic operator and it would take much more cogent evidence to permit the creation of an ambiguity where the language is as clear as Article 23 section 3 (b).
Reference is also made to the agreement in Re: Nicholson File Company of Canada Limited and Local 6497, United Steel Workers of America, an award contained in 6 Union-Management Arbitration Cases - United Steelworkers of America 242. The pertinent section of the agreement in that case was:
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 the opinion of the chairman, His Honour Judge C.E. Bennett, and .M. Storey, the union nominee:
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)
The question therefore is : what relief may be awarded as a result of the company’s breach of the agreement. In the circumstances it is held that the grievor did not act unreasonably in returning to her lower rated position. It is not open to the company, having permitted her to return to her original position, to treat this as a waiver of her right to grieve. Nor is there evidence of any such waiver on her part.
The Chairman indicated to Counsel for the parties that he would not proceed unless the deficiencies in the arbitration requirements was expressly waived by the parties. And similarly when Mr. Healy referred to alleged defects in complying with the grievance procedure the Chairman requested waiver of any procedural deficiencies before commencing to hear evidence.
Mr. Healy argues that even if the company ha violated Article 23 section 3(b), which he denied, then no damages could be demonstrated by the grievor. He did not argue that this Board could not compensate the grievor by way of damages if damage could be demonstrated. If it was not for the position taken by the company: that the grievor would have to forfeit her vacation dates or enter into an arrangement outside of the agreement, which would have the effect of permitting her to keep the dates allotted, then she would have been employed as a supervisory aide for approximately four months, as set forth in Exhibit 1.
The company through Mr. Radford advised the grievor that she would be required to change vacation dates unless some "deal" could be worked out. The grievor was entitled to rely on her rights under the agreement and did not have to accede to any alternative arrangement. In choosing between two alternatives (a) to stay on the temporary job, or (b) to return to her old job, the grievor was placed in a dilemma, not of her making. If she stayed on the temporary job she took the risk of having the satisfaction of succeeding in her grievance after her holiday period. Having been awarded the temporary position she had no absolute right to return to her old position (Article 8(5) ). However, she did so by the said provision having been waived and she did so without waiving her right to grieve.
Mr. Radford on several occasions stated that the grievor was an excellent employee quite capable of coping with the temporary position of supervisory aide. He indicated his pleasure over her having been awarded the position. If it was not the dispute over the right of the grievor to take her holidays between August 21-September 21, as allotted to her, she would have occupied that position during the period of approximately four months as stated in Exhibit 1. In the unreported arbitration case of : In the Matter of an Arbitration Between Canadian National Railway Company and Canadian Brotherhood of Railway, Transport and General Workers: Re Vacation Pay Claim of R.H. Jacobs, Professor Bora Laskin, Q.C., as he then was, stated:
... 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.
While the award of the learned arbitrator deal only with vacation pay it serves as a basis for dealing with the claim of the grievor for the period of her vacation and the period of approximately four months she would have held the position of supervisory aide.
As such, under Article 23 section 1(h), she would be entitled to be compensated for the vacation period at the rate of supervisory aide. For the balance of the relief period her compensation should be calculated at the same rate as she would have been paid as a supervisory aide.
Accordingly the grievor is entitled to receive from the Company the difference between the earnings actually received by her and the earnings she would have received as supervisory aide in Winnipeg during the time she would have held the latter position for the period of time for which she was originally posted to the position.
Counsel for the union did not furnish the Board with information as to the actual length of the period. If the parties cannot agree then they may refer this question to the Board.
By way of final reference to the power of arbitration boards to award damages, attention is directed to the arbitration case of Re Oil, Chemical & Automatic Workers & Polemen Corporation Ltd., as reported in Lab. Arb. Cases 51, on application for certiorari to quash the award, the award was upheld (1961) O.R. 176, affirmed by the Court of Appeal (1967) O.R. 438, again affirmed by the Supreme Court of Canada (33 D.L.R. (2nd) 124). Although the award was concerned with the liability of the union for damages for breach of certain provisions of the agreement, it has equal validity where the grievance is made against the company. In particular reference is made to pp. 53-54, where Professor Bora Laskin, Q.C., as he then was, stated:
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.
and to p.57:
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 …
and finally to p. 63:
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.
The grievance is allowed.
Dated at Kingston, Ontario, January 24, 1969.
Morley R. Gorsky M.L. Levinson
(Chairman) (Union Nominee)
Minority Opinion of M. O’Brien
I appreciate the opportunity of reading the award of the chairman and find I cannot agree with it. I outline my reasoning below.
1. Section 23 (1) (h) deals only with the period of vacation not the whole period that the job was filled.
2. Section 23-3-(b) could only be breached by the company if seniority was not given preference by the company in the allotment of vacation times or if a vacation list was not posted in January, or if employees did not take their vacations at the time allotted or if the company did as far as practicable relieve employees between the months of April and October when desired.
3. The so called "deal" suggested by the Company did not violate the agreement because it offered the grievor the right to keep her allotted dates but asked for her agreement that these same dates would not become available as well for senior automatic operators - such an arrangement in no way constitutes a violation of the agreement and had the grievor agreed she would have had the new job and her preferred dates and would not have been deprived of any of her rights under the agreement.
4. The grievor made a judgment decision to withdraw from her new job and return to her former job she was not forced - see 3 above.
5. In any event the grievor did take her vacation at the allotted time and was compensated for her vacation at the rate for the job she would have been on i.e. the job she chose to return to.
6. The grievor could have accepted the so called "deal" taken her vacation at her allotted time and grieved regarding any so called rights she thought she had lost.
In conclusion then I think the company’s suggestion was fair and reasonable that no violation of the agreement was shown and that the majority of the Board have made a decision which in fact violates Article 25 clause 5. I would have dismissed the grievance.
All of which is respectfully submitted.
DATED at Toronto this 20th day of Feb. 1969.
COMMENTARY: The Union argued that the Company was in violation of the vacation rule in the collective agreement in denying the grievor, Automatic Operator, Miss B.M. Russell, Winnipeg Manitoba the right to retain originally scheduled vacation dates in 1967 if as the successful applicant on a bulletin for a temporary relief position she accepted such temporary assignment. The Company’s position (and long standing practice) is that an employee’s originally scheduled vacation dates will not be changed other than by mutual consent except that this only holds good where there is no change in the employment status of the employee, i.e. employee’s classification and work location have not been changed through exercise of seniority. The Board in a majority report (the Company nominee dissenting) ruled in favor of the grievor.