AD HOC 74

AWARD

This arbitration arises out of the Union’s protest that Mr. R. Matichak, a Radio Technician, was moved from one location to another on September 1, 1971, in violation of the collective agreement. There is no question about the fact that Mr. Matichak was moved from a location at 290 Nazareth Street in Montreal to the Montreal Hump Yard and no dispute about the fact that the Union was not advised of the change or about the fact that Mr. Matichak was not given an opportunity to decline the move.

The Union contends that, as a result of the move, Mr. Matichak’s headquarters were changed from 290 Nazareth Street to the Hump Yard and changed in violation of article 6, clause 9[1], of the collective agreement because the Union was not advised of the change and Mr. Matichak was not given an opportunity to decline the move.. The Union contends further that, since the Company did not comply with the collective agreement in changing Mr. Matichak’s headquarters, his headquarters really remained at 290 Nazareth Street. In the Union’s view, it follows that Mr. Matichak worked away from his headquarters while he was assigned to the Hump Yard beginning on September 1, 1971, and that he is entitled to his actual reasonable expenses incurred while there as article 19, clause 1, provides.

Article 6, clause 9(a) provides:

6.9(a) When the headquarters location of a position is moved, the occupant will have the option of moving with the headquarters or declining. In the latter event, the original position will be abolished and the new position and headquarters location bulletined on the District. The General Chairman will be advised of any changes in headquarters location.

Article 19, clause 1, provides:

19.1 Employees assigned to duties (other than by bulletining or when assigned to training) away from his regular place of employment will be allowed actual reasonable expenses incurred and shall, if required, be advanced a reasonable amount of expense money.

The Company’s position is that Mr. Matichak’s headquarters were not changed but remained “Montreal” and that the change was one in the location of his workshop, which remained within the bounds of Montreal.

The Union filed two grievances. The first was submitted to the regional manager at the second step and alleged that Mr. Matichak’s headquarters has been changed in violation of article 6, clause 9. The second was submitted to the regional manager on January 8, 1972 and alleges that Mr. Matichak’s unpaid expense account was submitted in accordance with article 19, clause 1 and asks for payment.

The Company raises two preliminary objections. In the first place, the Company contends that the Union did not appeal the regional manager’s decision at the second step to the general manager at the third step within the twenty-eight days set out in article 21, part 2, with the result that the first grievance was settled on the basis of the regional manager’s decision at step two. The Company points out that the time limits in the grievance procedure are mandatory for it is provided that:

Any grievance not progresses within the prescribed time limits shall be considered settled on the basis of the last decision and shall not be subject to further appeal.

With reference to the second grievance, the Company objects that an arbitration board has not been constituted to deal with the alleged violation of article 19, clause 1.

With the consent of the parties, the Board heard the preliminary objections, reserved judgement on them and proceeded to hear the merits of the first grievance alleging a violation of article 6, clause 9.

Turning now to the Company’s objection that the first grievance is not arbitrable. There is no question that the Union’s appeal from the regional manager’s reply at step two of the grievance procedure, which is dated September 221, 1971 was filed on October 30, 1971, beyond the mandatory time limit of 28 calendar days set out in the grievance procedure. There is no question either about the fact that the Company was entitled under the provisions of article 21, part 2, to reject the Union’s appeal and to regard the grievance as settled on the basis of the regional manager’s reply. However, the Company’s reply to the Union’s appeal, dated November 17, 1971, describes the Union’s letter of October 30, 1971 as an appeal and proceeds to deal with the merits of the grievance, concluding that Mr. Matichak’s move was not the type of relocation contemplated under the provisions of article 6, clause 9.

The parties continued their discussion of the merits of Mr. Matichak’s grievance by correspondence. In its letter of December 20, 1971, after setting out its position on the merits briefly, the Union asked the Company to join it in taking the grievance to arbitration. The Company’s reply on January 4, 1972 was a further discussion of the merits and a refusal to go to arbitration.

The Union’s letters of January 13, 1972, February 9, 1972, February 22, 1972, May 1, 1972, July 10, 1972 and August 11, 1972 pressed the Company for an answer to the request for arbitration. In the first of these letters, January 13, 1972, the Union submitted the name of its appointee.

In its letters of February 11, 1972 and March 3, 1972, the Company discusses the merits of the grievance at some length and expressed its doubts about the necessity of resorting to arbitration. In the letter of February 11, 1972 the Company states:

We can see no reasonable justification in a case such as this for invoking the arbitration procedure in the agreement.

And in its letter of March 3, 1972, it states:

While we question the validity, the propriety and the necessity of your request for arbitration, we will advise you shortly as to whether or not we are prepared to proceed.

On July 9, 1972, the Company replied to the Union’s requests of May 1, 1972 and July 10, 1972 for word on its position on the question of taking the grievance to arbitration. The Company noted that the grievance was not progressed from step tow to step three within the time limit set out in the collective agreement and stated that it was taking the position that the grievance must be considered settled at step two.

On August 13, 1972 the Company notified the Union that it was prepared to proceed to arbitration and named its appointee to the Board. The Company indicated that it had a preliminary objection to the timeliness of the grievance. In a letter dated September 11, 1972 the Company reminded the Union of its preliminary objection and indicated that it would raise that objection at the hearing.

The Company’s position is that, although it was open to it to do so, it has not waived its right to consider this grievance settled. The Company submits that to waive its right in this case it must objectively demonstrate its intention to waive that right by conduct which amounts to taking a fresh step in the proceedings.

The Union’s position is that the Company waived its right to regard this grievance settled at the second step by replying to the Union’s appeal from the second step decision on November 17, 1971 without indicating that it was doing so without prejudice, and by continuing to discuss the merits of the grievance up to and including its letter of March 3, 1972.

The Union contends that, having proceeded with a discussion of the merits of the grievance over several months, the Company cannot on July 19, 1972 take the position that that grievance was settled at the second step on September 21, 1971.

The Board finds nothing in the correspondence prior to the Company’s letter of July 19, 1972, that indicates that the Company was considering the timeliness of the Union’s appeal at the third step between the date of that appeal and July 19, 1972. The Company’s concern as expressed in that correspondence was with the merits of the grievance and its reasons for refusing to resort to arbitration seem to arise from its conclusion that the grievance was without merit. Furthermore, the Company, through its correspondence, dealt with the Union’s appeal as if it were timely.

On this evidence, the Board finds that the Company waived its right to regard the grievance as settled by the regional manager’s reply at the second step and, having done so, the Company cannot subsequently exercise that right. The Board rejects the Company’s objection that the grievance was settled and is not arbitrable.

The Board should add that it reached its decision in light of the various cases to which the parties drew its attention: the Town of Pembroke case, 18 L.A.C. 125; the Dual Specialties case, 18 L.A.C. 141; the B.A. Oil case, 15 L.A.C. 408; the Algoma Steel case, 14 L.A.C. 242; the Ford Motor Company case, 3 L.A.C. 895; the Northern Electric case, 21 L.A.C. 305; the Standard Coil case, 15 L.A.C. 197; the Forest Basket case, 16 L.A.C. 33; the Canadian General Electric case, 22 L.A.C. 149; the General Spring case, 23 L.A.C. 73; the Automatic Screw Machine case, 21 L.A.C. 255; and the Regency Towers Hotel case, 1973 (Schiff), unreported.

With reference to the second grievance alleging that Mr. Matichak is entitled to certain expenses under article 19, clause 1. According to the data filed with the Board, this second grievance was filed, presumably at the second step, on January 8, 1972, to the general manager from the general chairman, asking that the matter be submitted to arbitration and giving the name of the Union’s appointee. It is sufficient for the purposes here to note simply that these letters dealt with the merits of this second grievance and nothing else.

On this evidence the Board concludes that the second grievance was processed separately from the first grievance. The Board finds that the references to the second grievance that appear in the letters dealing with the first grievance do not constitute part of the processing of that second grievance, but are simply comments indicating the existence of a second grievance that is related to the first one. Thus the second grievance is clearly not part of the first one.

The constitution of a board of arbitration, if it proceeds regularly, is accomplished by agreement between the parties. In this case the parties clearly agreed to the constitution of this Board to deal with the first grievance. But in its letter of August 23, 1972, the Company makes it clear that its agreement to constitute this Board is made on the understanding that only the first grievance alleging a violation of article 6, clause 9, is before this Board. The Board finds no evidence of an agreement between the parties to give it jurisdiction over the second grievance. Accordingly, the Board allows the Company’s objection that the grievance alleging the violation of article 19, clause 1 is not arbitrable.

Turning now to the merits of Mr. Matichak’s first grievance. Mr. Matichak was employed first in August 1957 as an installer at 600 Peel Street and in 1961 he became a radio technician at the Hump yard, being the successful applicant for a bulletined position. Then in 1965, he made application for a position as radio technician advertised in bulletin C-203 which described the headquarters of the position as “Montreal, Que.”. His application was successful and he was assigned to the position of radio technician at Nazareth Street. He worked at Nazareth Street until the end of August 1971, when he was informed that effective September 1, 1971, his “work shop location” would be changed from Nazareth Street to the Hump Yard.

In his grievance Mr. Matichak is protesting that his headquarters were moved from Nazareth Street to the Hump Yard in violation of article 6, clause 9, and presumably he is asking this Board to make that finding.

The Board is faced here with the extremely difficult task of determining the definition of the word “headquarters” in the absence of any definition in the collective agreement and in the face of conflicting evidence.

The term “headquarters location” is used in article 6, clause 9(a), which deals with the moving of a position from one “headquarters” to another. The same term is used in article 18A, clause 5, which deals with the assignment of relief employees, while article 19, clause 3 deals with the case of installation technicians working away from the “regular headquarters location”.

In article 10 entitled STAFF REDUCTION, clause 1 speaks of the seniority group “at the designated headquarters”, while article 12, clause 9, makes certain provision for trainees travelling “from their headquarters”.

Article 19, headed SERVICE AWAY FROM HEADQUARTERS, uses the terms “regular place of employment” and “regular headquarters”. Clause 1 states:

19.1 Employees assigned to duties (other than by bulletins or when assigned to training) away from their regular places of employment will be allowed actual reasonable expenses incurred and shall, if required, be advanced a reasonable amount of expense money.

Clause 3 states, in part:

19.3 Employees in the Installation Technicians grouping, when working away from their regular headquarters location, may, when the work situation will permit, be allowed to return home for their rest days provided …

Article 18A, clause 5, seems to promise some relief in its statement “The headquarters of regular relief employees will be as set out in the wage scale”. But the word “headquarters” does not appear on the wage scale which shows the job grades of the various classifications and their “locations”, together with a table of rates for various job grades.

For the most part, the “locations” shown in the wage scale are designated by the names of towns and cities, e.g., Cornwall, Calgary, Quebec, Truro, etc., but in the case of Toronto, Montreal and Edmonton various places, presumably within these cities, are listed under the names of the cities.

The parties are agreed that the term “location” used in the wage scale means “headquarters location”. The question is, are the places listed under Montreal separate “headquarters locations” or is Montreal the “headquarters”. Briefly, the Union’s position is that the listed places, Nazareth Street, the Hump Yard, etc. are separate “headquarters locations” within Montreal. The Company’s position is that Metropolitan Montreal is the “headquarters”.

The Union contends that the places listed in the wage scale of the agreement are “headquarters” because they are places where men are stationed. The Union points to the Hump Yard as a listed place and contends that, if the Hump Yard were a sub-area of Montreal, as the Company contends, it would not be listed for there would be no point in listing it.

The Union submits, too, that the Hump Yard is not in Montreal but in St. Laurent and Lachine, while the West End Maintenance Area is in Dorval.

The Union points out that in bulletin C-210, ex. 37, and in bulletin C-34, ex. 38, Montreal Yard is described as headquarters and in bulletin C-114, ex 38, an din bulletin C-80, ex 39, Montreal Hump Yard is described as headquarters.

At the same time, the Union recognizes that the position of radio technician, which Mr. Matichak secured in December 1965, was advertised in bulletin C-203 (ex. 35 and 36) which gives Montreal as the headquarters.

The Union sees the terms “regular place of employment” and “regular headquarters location” in article 19 as synonymous and the Union regards the fact that employees working away from the Hump Yard at Nazareth Street, and vice-versa, are paid certain expenses indicates that the listed locations in Montreal are headquarters.

The Union protests, too, that in this case the Company has assigned a man from one headquarters location to another without regard to the bulletining procedure. The Union submits that, if the Company can act in this fashion, it can disregard the seniority provisions applicable to headquarters locations and can play havoc with the men’s choice of headquarters through bulletining and avoid paying expenses under article 19(1).

The Company contends that “headquarters” is the place to which a man reports or from which his directions are issued, not the place of his employment. So, in the Company’s view, Metropolitan Montreal is headquarters. The Company sees bulletin C-203, ex. 35 and 36, as evidence supporting its view because there Montreal is stated to be the headquarters of the position radio technician at 290 Nazareth Street.

The Company holds that “headquarters” and “regular place of employment” are not synonymous as the Union contends but used in article 19 to describe two different situations. The Company sees “regular place of employment” as the criterion for determining a man’s entitlement to the payment for certain expenses and “headquarters” contemplating a more substantial dislocation than indicated in clause 1 of article 19.

The Company contends that its interpretation of article 6, clause 9 does not disregard seniority rights as the Union suggests. The Company submits that its interpretation would permit an employee to exercise his seniority rights in Montreal, while the Union’s interpretation would, in case such as this, restrict an employee to the exercise of those rights only in the place where he was employed, i.e. Nazareth Street.

The Company sees the Union’s interpretation of article 6, clause 9 as leading to the curious result of making the provisions of that article applicable to cases where a man’s regular work location is moved from one side of the street to the other.

The Board finds that the language of the collective agreement will bear either of the two interpretations which the parties are placing on the word “headquarters”. There is no evidence of practice that will resolve this ambiguity, for, although the Company’s witnesses testify that employees have been moved from one place to another in the past, as Mr. Matichak was moved in this case, the Union’s witnesses testify that such moves have usually been made only after negotiations have led to agreement. There is nothing either in practice or past relations of the parties indicating that one interpretation rather than the other is their consensus.

In Mr. Matichak’s case, the Company was faced with the problem of applying the collective agreement in a situation where the place where the employee was stationed was no longer available. The Company met the situation in transferring him from Nazareth Street to the Hump Yard, acting on its view that the transfer was one within the headquarters location in which Mr. Matichak was stationed.

The Union is the protestor in the piece, objecting that the Company violated the agreement by moving Mr. Matichak from one headquarters location to another, from Nazareth Street to the Hump Yard. In such a situation, the onus is on the Union to prove its contentions and to succeed the Union must show that the Company has violated the collective agreement, in particular attaching to article 6, clause 9 and applying an interpretation that that article will not bear. As pointed out above, the Union has shown that there is an alternative to the Company’s interpretation of article 6, clause 9, but the Union has not shown that the language of article 6, clause 9, will not bear the Company’s interpretation or that its interpretation more accurately and exactly conveys the meaning of article 6, clause 9 than the Company’s interpretation. Therefore, the Union has not discharged the onus upon it in this case and its grievance must fail.

The Board so finds and awards.

DATED this 13t day of October 1973.

(signed) C. H. CURTIS (signed) S. E. DINSDALE

CHAIRMAN COMPANY NOMINEE

DISSENT:

C. W. PETHICK

UNION NOMINEE

DISSENT

In respect to the arbitrability of the grievance, I am in agreement with you Mr. Chairman, that the Company waived its right to regard the grievance settled by the regional manager’s reply to the Union dated November 17, 1971 at the second step. I therefore support your rejection of the Company’s contention that the grievance was settled and is not now arbitrable.

Referring to the Company’s objection that it did not name a Nominee to hear the grievance in respect to expenses, it appears to me that the whole question hinges on whether or not the Board rules in favour of the Union on the main issue regarding the moving of headquarters.

In your ruling, Mr. Chairman, you do not support the Union’s position in respect to the moving of the headquarters. If your ruling is correct then the second grievance would also fail because Mr. Matichak was not working away from his headquarters, the paying of expenses under article 19, clause 1 would not arise.

My position on the issue however is that Nazareth Street constitutes Mr. Matichak’s headquarters and when he worked at the Montreal Hump Yard he was working away from headquarters and therefore should have been paid expenses in accordance with article 19, clause 1.

That being the case, I consider that the requirements of article 6, clause 9 and article 19, clause 1 constitute one grievance and that both issues are before this Board.

In respect to the main issue I must disagree with your ruling, Mr. Chairman. I cannot accept the contention of the Company that the headquarters location means the City of Montreal and that the Montreal Hump Yard is simply a work centre within the headquarters location means the City of Montreal and that the Montreal Hump Yard simply a work centre within the headquarters of Montreal. In fact the Hump Yard is not even in Montreal, but is located in St. Laurent and Lachine.

From the evidence submitted by the Union it seems clear to me that there are several locations in the Montreal area that have been recognized by the Company as headquarter locations for the employees over a long period of years. They are all listed in the agreement and if they were not considered headquarters locations, then why are they listed at all? Included in the listings I point out are Nazareth Street and the Montreal Hump Yard. Another headquarters location mentioned in the list is the West End Maintenance Area, which it was pointed out in evidence before the Board is located at Dorval, 9 miles from Montreal. These locations have been recognized by the Company as separate headquarters, which is evidenced by the bulletin issued in 1961, when they bulletined a position of radio technician headquarters Montreal Hump Yard. Mr. Matichak was the successful applicant and at that time established his headquarters in keeping with the bulletin at the Montreal Hump Yard.

It was again recognized in 1965, when the Company bulletined a position of radio technician headquarters Nazareth Street. Again Mr. Matichak was the successful bidder and he thus moved his headquarters from the Montreal Hump Yard to Nazareth Street. It is obvious to me that at that time the Company recognized his headquarters at the Nazareth Street location.

If this were not the case why did the Company in 1961 and 1965 not simply bulletin a position for a radio technician headquarters Montreal? Then they could assign the employee to any position in Montreal as they did when they assigned Mr. Matichak to the Montreal Hump Yard in 1971.

That demonstrates to me that the locations listed on page 95 of the collective agreement were recognized by the Company up until 1971 as separate and distinct headquarters.

However, in 1971 they reversed their previous policy and instead of moving Mr. Matichak to the Hump Yard through a bulletin as they did in 1961, when he first went to the Hump Yard, they simply assigned him to a new location. They did this also without notifying the Union. Why didn’t they assign him in 1961 and 1965 if Montreal was considered the headquarters? The simple conclusion and the only possible one to reach, is that Montreal was not then considered the headquarters.

Why should we as members of a board of arbitration rule in favour of the Company being allowed to reverse a policy and an interpretation of the collective agreement that had existed for years? The agreement wasn’t changed. Even the same employee was involved in 1961, 1965 and 1971. The Company simply reversed its policy and brought about the present grievance.

Article 6, clause 9 provides that when the headquarters location is moved the occupant will have the option of moving with the headquarters or declining and that the general chairman will be advised of any changes in headquarters location. Neither of these provisions were met by the Company in this case.

It was also brought out in the evidence that employees located at the Montreal Hump Yard were paid expenses when assigned to Nazareth Street. This surely is sufficient evidence to support the Union’s contention that Nazareth Street and the Montreal Hump Yard were considered separate headquarters.

I must differ, Mr. Chairman, with you and take the position that the Union has proven its case, that article 6, clause 9 and article 19, clause 1 have been violated.

I therefore support the Union’s contention that the moving of the headquarters should be nullified because of non-compliance with article 6, clause 9 and that until Mr. Matichak’s bulletining to another location, he should be paid expenses while he was assigned away from his headquarters location at Nazareth Street, to the Montreal Hump Yard. That is the period from September 1st, 1971 to November 1st, 1971.

Should your final ruling remain as stated in your draft report, please consider this my dissenting report.

DATED AT TORONTO, this 2nd day of October 1973.

(signed) C. W. PETHICK

UNION NOMINEE

[1] This article 6, clause 9, was variously referred to in the prior transcription as “clause 9”, “clause 1” and “clause 11”. I have referred to it throughout as “clause 9” as that was the most frequent number applied to it.