AH – 75
IN THE MATTER OF AN ARBITRATION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
GRIEVANCE RE M. W. WEATHERBY & P. FULLERTON
ARBITRATION BOARD: C. H. Curtis Chairman
S. E. Dinsdale, Q.C. Company Nominee
C. W. Pethick Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
M. Sereda – Labour Relations Officer
R. S. Finegan – Manager, Employee Relations
J. S. Moore – Employee Relations Supervisor
And on behalf of the Union:
Jeffrey Sack – Counsel
C. H. Hammett – Union President
Wm. Curwin – Maritime District Chairman
A hearing in this matter was held in Toronto on March 27, 1973.
The grievors in this case allege that the Company violated article 17, clause 3(b) of the memorandum of agreement dated March 26, 1971, when it determined their vacation periods in 1972. Article 17, clause 3(b) provides:
17.3(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 not later than February 28th of each year, showing dates allotted and unless otherwise mutually agreed, employees must take their vacations at the time allotted except where the employee has, in the exercise of seniority rights, changed classification and/or location, in which event his vacation dates for that year may, of necessity, be changed to dates available in the new circumstances. The Company will, as far as practicable, relieve applicant between and including the months of April and October when desired.
Mr. Fullerton, classified as Plant Technician, Moncton, Maritime District, applied for his vacation in December 1971 and requested four weeks during July 1972, as his first choice, four weeks in August 1972 as his second choice and September 1972 as his third choice. He indicated that his vacation period could be split, if necessary. He was given his vacation in the period September 18 to October 16, 1972.
Mr. Weatherby, classified as Plant Technician at Sydney, Maritime District, requested his vacation in the period July 24 to August 18, 1972. He gave as his second choice June 26 to July 14 and October 2 to October 6, and as his third choice, June 5 to June 16 and October 2 to October 13, 1972. He was given his vacation in the period August 7 to September 1, 1972.
The Union submits that the Company gave Mr. W.R. Curry his vacation from July 24 to August 11, 1972 and another employee, Mr. H. Rodd, his vacation from August 14 to September 1, 1972. The Union submits that Messrs. Curry and Rodd, with seniority dates in 1958 and 1960 respectively, have less district seniority than Messrs. Fullerton and Weatherby whose seniority dates are in 1951 and 1953 respectively. The Union contends that in its assignment of vacation periods to these four employees the Company violated article 17, clause 3(b) in that it did not give preference to Messrs. Fullerton and Weatherby who had greater seniority than Messrs. Curry and Rodd, for it gave the less senior employees the vacation periods they requested but denied the senior employees their requests.
The Company submits that, in accordance with practice in the system and in order to administer vacation allotments on a practical basis, it gave preference to district seniority by location. The Company states that there are five full time relief plant technicians in the Maritime District stationed at the following locations: Halifax, Sydney, Moncton and Campbellton. The Company’s position is that it is not practicable to move relief men from one location to another as the location of the senior men would dictate. For that reason, the Company submits, it applied district seniority on a location basis.
The substance of the testimony of the grievors in this case, Messrs. Fullerton and Weatherby, is that it would be practicable for plant technicians in the Maritime District to be assigned their vacation periods on the basis of district seniority applied throughout the District. Mr. Weatherby testifies that he thinks that is the way it was always done and he testifies that he worked as a relief man in 1957 and 1958 and worked all across the Maritimes. He says he does not know when the Company stopped assigning vacations on a district basis because he did not know until recently how vacations were assigned at the various locations.
Mr. Weatherby testifies that the application of district seniority on a district basis in assigning vacation periods would involve travelling time and overtime. He does not regard this a serious problem because, as he testifies, the Company will bring a man from Montreal for a few weeks when it is short staffed.
Mr. Fullerton testifies that under the present system of administering vacations, relief men travel about and go considerable distances. He expresses the opinion that, without much difficulty, they could relieve on a district basis. He adds that that would involve pay for travelling time at overtime rates and expenses when away from headquarters.
Under cross-examination, Mr. Fullerton agrees that there would be more travelling time involved if seniority were applied throughout the district and that there might be delays in getting relief men from one location to another, but he adds that this would be offset by the fact that the relief man might remain for several weeks after he reached his destination.
Mr. Fullerton recognizes that there would be a problem in the fact that all relief men are not familiar with the equipment at all locations, with the result that relief men assigned to Moncton relieving senior plant technicians might be inexperienced in the sue of the equipment there. He submits that such relief men would soon become familiar with the equipment.
Mr. B. MacKinnon, testifying for the Company, states that, if vacations were assigned by district seniority rather than by location on the basis of district seniority, as many as five plant technicians in the Moncton office could be on vacation at the same time because of the greater district seniority of the technicians in that office. He testifies that two of the five relief men who would fill in would be regular employees in the Moncton office, but three would be from other locations and unfamiliar with the equipment. He adds that a relief man assigned to an office for the first time might require the help of a regular employee, working overtime, until he got familiar with the equipment.
Mr. MacKinnon testifies that, if vacations were assigned by district seniority on a district basis, relief men would be much more frequently away from their headquarters than they are now and they would travel longer distances. He testifies that costs would be higher because of longer travelling time and more expense money for those off their locations for longer periods. He said there would be problems, too, with statutory holidays and night shift relief.
Under cross-examination, Mr. MacKinnon states that Messrs. Fullerton and Weatherby would have been no better off in 1972 if vacations had been assigned on a district basis. He testifies that ten plant technicians with more seniority that the two grievors requested July and August vacations and two others with more seniority than the grievors requested September vacations. He admits that it could be different another year.
Under cross-examination, Mr. MacKinnon testifies further that he manning of offices with inexperienced men complicates matters because the men in an office with the greater seniority get the preferred shifts, leaving the inexperienced to man the off-shifts. He agrees that relief men could be trained so that they would all know all the offices, but he adds that that would entail cost.
Mr. R.S. Finegan, Manager of Employee Relations for the system, testifies that, with one exception, vacation dates throughout Canada are assigned on a location basis. Mr. Finegan stresses the difficulty of assigning vacations on any other basis, and pointed particularly to the Northwest Territories where the distances are great.
The Union submits that, although the grievances here are individual grievances, it is not asking for specific damages but rather for an interpretation of the collective agreement and for a declaration. The Union submits that the issue is whether in the Maritime District it is practicable for employees to be given their vacations in order of the greatest district seniority applied district wide. The Union contends that, if the assignment of vacations on a district wide basis is practicable, it is mandatory on the Company to follow it because, as the Union reads it, article 17, clause 3(b) provides that employees’ applications for vacations shall be given preference in order of the greatest district seniority of the applicants, subject to the practicability of giving such preference. The Union contends, further, that since the agreement does not state specifically that vacations are to be schedule d in order of the greatest district seniority within a location, the parties did not intend vacations to be scheduled on that basis.
The Union recognizes that the grievors would not have been better off in 1972 on a district wide basis of assigning vacation periods that they were on the location basis. But the Union contends that that is not the point, because, as the Union alleges, the Company violated the agreement in making those assignments and now seeks refuge in the proviso “insofar as it is practicable”.
The Union contends that the evidence supports the conclusion that it is practicable to schedule vacation on a district basis. The Union submits that its two witnesses testify that the district basis is a practicable one, while one of them testifies that vacations have been scheduled district wide in the past. The Union submits further that the Company’s witnesses do not say that it is not practicable.
The Union contends further that the distances in the Maritimes, which it describes as being “not great”, and the rail connections make it practicable for relief men to move about the District. The Union recognizes that relief men would be involved in more travelling, they would be entitled to more overtime pay and more expense money, but the Union regards these facts as having little bearing on the practicability of assigning vacations on a district basis. The Union submits, too, that the fact that some of the five relief men are not familiar with the equipment in all locations is not a serious matter, but one which could be met by the expenditure of a little time and money on familiarization and training.
The Union objects that the Company states that the cost of assigning vacations on a district basis would be greater than on a location basis, but the Company does not say how much more costly it is. However, the Union rejects the idea that the cost of assigning vacations on a district basis has any bearing on the practicability of that method of scheduling vacations. The Union contends that “practicable” means “that which can be done” and the Union points out that the clause in article 17, clause 3(b) reads, “insofar as it is practicable” not “insofar as it is not more costly”.
The Company’s position, in the first place, is that, taken as a whole, apart from practice, the collective agreement contemplates the allocation of vacations on a location basis. The Company points out that article 18, page 35, provides for relief employees and that clauses 1 and 5 of that article make it clear that the principal duties of such employees is to relieve those on vacation.
The Company points out also that the wage schedule shows relief plant technicians assigned to particular locations, Halifax, Moncton, etc., and the Company contends that, if it were intended that relief plant technicians relieve throughout the whole district, the schedule would have shown five relief plant technicians, Maritimes.
The Company contends that the provision in article 17., clause 3(b) regarding the effect of a change in an employee’s classification or location on his vacation period is consistent with the assignment of vacations on the basis of location: “… except where the employee has … changed classification and/or location, in which event his vacation dates for the year may, of necessity, be changed to dates available in the new circumstances.”
The Company contends, too, that it did comply with the provisions of article 17, clause 3(b) because, in assigning vacation periods it did give preference in order of the greatest district seniority of applicants, although it did so by location.
In the alternative, the Company contends that even if the collective agreement did not contemplate it, it is necessary to assign vacation periods as the Company has been assigning them because practicability dictates that method.
The Company contends that “practicable” means “economically practical” and the Company rejects the Union’s contention that if the thing can be done it is practicable to do it. The Company draws the Board’s attention to the definition in RE United Automobile Workers, Local 1075 and Canadian Car Co. (1958), 8 L.A.C. 313 where the arbitrator holds at p. 315 that “practical” means practical business-wise or economically practical as well as physically practical. In Re United Automobile Workers, Local 195 and Burroughs Business Machines Ltd. (1965), 16 L.A.C. 266 the arbitrator adopts the same definition.
The Company contends that it is not practicable to assign vacation periods in the Maritime District on a district wide basis because of the inefficiencies and dislocations that would accompany the assignment of relief men, some of them inexperienced with some equipment, over the whole district. The Company contends that it would not either be feasible or practicable to assign all five relief men to the Moncton location and not practicable to incur the costs that would go with the increased travelling time and the longer time relief men would spend away from location.
The Board notes, in the first place, that each of the parties takes the position that a proper reading of the collective agreement establishes its particular view of the proper assignment of vacation periods. The Union regards the term “district seniority”, in itself, as requiring not only the determination of seniority on a district basis but also its application district wide. The Company sees a clause in article 17, clause 3(b) and certain other provisions elsewhere in the agreement as providing for the assignment of vacation periods on the basis of location.
The Board finds nothing in article 17, clause 3(b) which states specifically which one of the two bases shall be used in the assignment of vacation periods. The Board finds further that, in the face of the Company’s submissions, the Union has not shown that the requirement that vacations be assigned on a district wide basis in inherent in the phrase “in order of the greatest district seniority of the applicants”.
In their alternative positions, the parties are agreed that article 17, clause 3(b) in its phrase “insofar as it is practicable to do so” provides the consideration on which the basis of the assignment of vacations is to be determined, if the question of practicability arises. Consequently, the outcome of this case turns on the question of practicability of the two bases of assignment. In that connection, the Board finds first of all that “practical” must be taken to have the meaning attached to it in the two cases which the Company cites: the Canadian Car Company case (1958), 8 L.A.C. 313, and the Burroughs Business Machines case (1965), 16 L.A.C. 266. There, as noted above, the arbitrators hold that the term means practical business-wise or economically practical.
To determine which of the two methods of assigning vacation periods is the practical one business-wise, it is necessary to compare the costs of the two. The parties are agreed that the district wide basis of assignment would be more costly than the location basis of assignment. However, the Union regards the difference in the costs of the two methods to be unimportant, while the Company regards it as significant.
While it might well be possible for the Company to determine the cost of vacation relief in 1972 and, with vacations scheduled for 1973, to predict the cost of vacation relief with vacations scheduled on a district wide basis would involve estimating costs in a hypothetical situation and the Company submits no estimate.
The Board is therefore in the position of having to deal with two opinions regarding the magnitude of the additional cost of scheduling vacations district wide, neither opinion based on actual knowledge or readily predictable costs.
This is a case where the Union is alleging that the Company violated the collective agreement, specifically, that the Company violated article 17, clause 3(b) of the memorandum of agreement dated March 26, 1971. It is well established in cases of this sort that the Union must prove that the Company did in fact violate the agreement, as alleged. The Union’s evidence consists for the most part of the opinion of its witnesses, based on the facts they were able to muster. The Company relies, in kind, with its opinion. On this evidence the Board must find that the Union has failed to discharge the onus upon it, for the Union has submitted no preponderance of evidence that would support a finding that it would be practicable to assign vacation son a district wide basis.
For the reasons set out above, the Board must dismiss these grievances.
DATED AT KINGSTON, this 11th day of May 1973.
(signed) C. H. CURTIS (signed) S. E. DINSDALE
CHAIRMAN COMPANY NOMINEE
(DISSENT) C. W. PETHICK