CASE-NO : AH098
DATE : 28/07/76
PARTIES : CN CNRPA
IN THE MATTER OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE CANADIAN NATIONAL RAILWAYS POLICE ASSOCIATION AND THE CANADIAN NATIONAL RAILWAYS, DATED AS OF FEBRUARY 18, 1975 (hereinafter referred to as "the Agreement")
- and -
IN THE MATTER OF THE ARBITRATION PURSUANT THERETO OF A GRIEVANCE OF DONALD E. OLAFSON, AN EMPLOYEE OF THE CANADIAN NATIONAL RAILWAYS,
REPORT AND AWARD
This arbitration arose out of a grievance filed by Constable D.E. Olafson on January 12, 1976, the terms of which are as follows:
" The writer herewith makes grievance under Section 9 clause 14 regarding CN Police,
Winnipeg Patrol Sergeants and Constables Vacation Entitlement List for 1976 dated 31
On the above mentioned list it is noted - ‘In the year 1976, three (3) Patrol Sergeants
and/or Constables will be permitted vacation at one time.’
The grieved section mentions - ‘The Company shall make every reasonable effort to
grant vacations between April 15 and October 15 in each year.’
I claim that the Company is making no reasonable effort whatsoever to grant vacations
between the above noted dates as there is the same ratio of men on vacation for the
twelve (12) months of the year."
Walter L. Ritchie, Esq. Q.C. was sole arbitrator, being appointed pursuant to Article 15 of the Agreement.
The Arbitrator conducted a hearing at his office, $500, Bank of Canada Building, 3 Lombard Place, Winnipeg, Manitoba, on June 1, 1976.
The Association was represented by Mr. A.R. McGregor, and the Company was represented by Mr. E.P. Miedzybrocki.
At the hearing, both parties agreed that all steps, notices and appointments provided for in the Agreement had been properly taken, given or made, that the Arbitrator was duly appointed and that the parties were ready to proceed with the arbitration.
Notwithstanding that the grievance was filed in the name of an individual, the Company accepted the Association’s desire to have the matter treated as a group grievance.
In presenting this grievance, the Association sought to establish that Article 9.14 of the Collective Agreement had been violated. Article 9.14 reads as follows:
" An employee who has become entitled to a vacation with pay shall be granted such
vacation within a twelve month period immediately following the completion of the
calendar year of employment in respect of which the employee became entitled to the
vacation. The Company shall make every reasonable effort to grant vacations between
April 15 and October 15 in each year, subject to the company’s reasonable
determination of its manpower requirements."
The contention of the Association is that the Company has not made "every reasonable effort" as required by this article, as evidenced by the fact that:
1. The same ratio of men is allowed vacations in this period of the year as in other
2. The practise of hiring of summer relief has not been followed this year.
The decision in a matter of this kind is necessarily reliant on the language used in the Agreement. Two canadian cases are helpful in interpreting such an article in the Collective Agreement. In Re United Electrical Workers, Local 522, and Fairbanks-Morse (Canada) Ltd. 19 L.A.C. 27, the applicable article 15 (e) reads as follows:
" All vacations granted must be taken in the current calendar year at a time
satisfactory yo the Company but employees should have the opportunity, so
far as the scheduling of work permits, to choose their vacation time."
In discussing this article relative to other vacation articles, the arbitration board said:
"It would appear to be of some significance that the order of the article establishes a
principle favouring the Company in the first part and then qualifies that principle in the
The Board concluded that on this basis the Company had a prerogative for scheduling vacations and as it had not used article 15(e) in an arbitrary or capricious manner, that it was entitled to schedule a vacation in lieu of lay-off.
In another similar case, Re United Rubber Workers, Local 189, and Goodyear Tire & Rubber Co. of Canada, Ltd. 15 L.A.C. 34, the board considered Article 7, para. 7.08 (1) as follows:
"Vacations may be taken at any time during the calendar year, at such time as may be
most convenient to the employer, but every effort shall be made to schedule vacations at
times suitable to the employees."
In a view similar to that held by the board in the previously mentioned case, the Arbitration Board here held that the Company had the right to schedule employees’ vacations at any time of the year which was most convenient to it, subject only to the restriction of not acting arbitrarily or unreasonably in exercising this right.
The article under discussion would appear to be a complete reversal of the respective rights of the Company and the Association as discussed in the above two cases. However, in the former two cases, it was the Company’s right to fix vacations at its convenience that was qualified by some degree of employeee preference. By contrast, in the situation at hand, the Association does not have the right to require the Company to schedule all vacations between April 15 and October 15 but only has the right to have the Company make every reasonable effort to do so.
Assuming for the moment that no reasonable determination of its manpower requirements has been made by the Company, an investigation of what would constitute a reasonable effort on the part of the Company will be helpful. In an arbitration case, Re Int’l Union, United Plant Guard Workers, Local 1962, and Ford Motor Co. of Canada Ltd. 17 L.A.C. p. 417 " reasonably possible" was held to be interpreted as "reasonably practicable" for the Company.
A more recent arbitration case involving vacations was Canadian National Railways and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Case No. 175 of Canadian Railway Office of Arbitration. This decision was based on the following article in the Collective Agreement:
"Article 22.16 Application filed prior to February 1st, in so far as it is
practicable to do so, will be allotted vacation during the summer season, in
order of seniority of applicants, and unless otherwise authorized by the officer
in charge, the vacation period shall be continuous. Applicants will be advised
in February of dates allotted them, and unless otherwise mutually agreed
employees must take their vacation at the time alloted."
Based on the above two cases, I read "every reasonable effort" as analogous to "in so far as it is practicable to do so" as I think it can be read. Therefore, I find the opinion of the sole arbitrator in the latter case applicable to the case at hand where he said:
‘ I am unable to agree with the union’s contention that the word practicable should be
read as meaning "capable of being done, effected or performed by human means, or by
powers that can be applied." Of course, employees could have been given vacations on
the basis the union suggests. If this was what was intended, there would have been no
necessity for the qualification of practicability in the collective agreement. The term
was of course intended to have some meaning, and I have no doubt that the meaning is
that vacations should be allotted in order of seniority as long as that does not disrupt
unduly the efficient operations of the Company.’
The Association also relies on the past practise of hiring summer relief help as evidence of what constitutes "reasonable effort". However, it is settled law that evidence of past practise may only be used to clarify any ambiguity in the language used. The foregoing is supported by the following extract from Canadian National Railways (St. Lawrence Region) and The Brotherhood of Railroad Trainmen, Case No. 11, from the Canadian Railway Office of Arbitration, on page 3:
"It is well established by arbitration judgments that even though a company
over a considerable period has improperly interpreted a provision in an
agreement to its own detriment, it has the right to revert to a paper course
once that became apparent.
In view of representations as to rulings made by company officials at certain
points in connection with the application of Article 140, it should be
understood that either party to an agreement may modify its rights for the
benefit of the other in a particular situation without jeopardizing the
prerogative to revert to the normal meaning in future."
The second paragraph of the above is particularly applicable to the present case and I find that the Company’s past practice of hiring summer relief help does not bind it to continue to do so in order to satisfy the requirement of making every reasonable effort.
Based on a canvas of recent Canadian cases, it appears that the scheduling of vacations is inherently a management right. Here there is no management rights clause included in the collective bargaining agreement. However, as in Re United Rubber Workers, Local 113 and Firestone Tire and Rubber Company Canada Limited, 11 L.A.C. 277:
" The absence of a management rights clause does not curtail the Company
rights. It merely means it has retained all power which it had prior to
signing a collective agreement, except those which it specifically gave up..."
Here, the Company gave up its limitless power to fix vacations by an undertaking to make every reasonable effort to grant vacations between April 15 and October 15, but even this undertaking was subject to the Company’s reasonable determination of its manpower requirements. The Company did not make this determination in an arbitrary or capricious manner and the fact that in the summer, its busiest season, it allowed the same ratio of men to take vacations as at other times of the year, indicates that reasonable effort has been made to schedule vacations for this period. The result that 71% of vacation time is taken during the period April 15 to October 15 while two weeks in that period still remains open, is further evidence of this.
I therefore dismiss the grievance on the basis that the Association did not establish that the Company violated the Agreement.
DATED at Winnipeg, Manitoba, this 28th day of July, 1976.