IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
(hereinafter "THE COMPANY" )
CANADIAN TELECOMMUNICATIONS DIVISION OF
THE CANADIAN BROTHERHOOD OF RAILWAY
TRANSPORTS AND GENERAL WORKERS
(hereinafter "THE UNION")
IN THE MATTER OF THE GRIEVANCE OF EDWARD MILLS
BOARD OF ARBITRATION: M.G PICHER , CHAIRMAN
GEORGE J. MILLEY , COMPANY NOMENEE
B.SWITZMAN, UNION NOMENEE
For The Company J. W. Healy, Counsel
For the Union Martin L. Levinson , Counsel
A HEARING IN THE ABOVE MATTER WAS HELD IN TORONTO , ONTARIO ,
ON WEDNESDAY , NOVEMBER 19 , 1980 .
AWARD AND REASONS
This grievance alleges that the grievor , Mr. Edward Mills , was dealt with by the company contrary to the terms of the collective agreement in the scheduling of his vacation for the year 1980 . Mr. Mills is a senior plant technician in the company’s telecommunications operation at Melville , Saskatchewan . It is commun ground that with thirty-eight year of service to the company the grievor is entitled to six weeks vacation annually . For the year 1980 the grievor requested the following vacation periods .
a) April 7 - April 11 (1 week)
b)June 30 - July 28 ( 4 week)
c) Dec 22 - Dec 30 ( 1 week)
The first two parts of the grievor’s request were granted . His request for a week off over the Chrismas period , however , was denied , In the face of that refusal the grievor failed to select another week . The company then scheduled his sixth week of vacation for the week of september 29th to october 3rd Mr. Mills then took his vacation in the assigned week , albeit under protest and without prejudice to his position that he should have been allowed to take the sixth week over the Chrimas period . Part of two grievor’s complaint is thatan employee less senior ws allowed to take vacation time during the weak of Chrismas . The issue is whether , having regard to the term of the collective agreement , the company violated the grievor’s rights by denying his request to schedule his week of vacation from December 22 to December 30 , 1980
The relevant articles of the collective agreement are as follows :
RECOGNITION OF MANAGEMENT FUNCTIONS
2.1 The union recognizes that it is the exclusive function of the company to manage the busines and to direct the working forces of the company in a manner not inconsistent with the terms of this agreement .
19.13 An employee who has become entitled to a vacation with pay shall be granted such vacation within a twelve (12) month period immediately following the completion of the calendar year of employment in respect of which the employee became entitled to the vacation .
19.24 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 seniority of applicants and will be given preference over later applicants . A vacation list shall be posted , not later Febuary 28th of each year , showing dates allowed and unless otherwise mutually agreed , employees must take their vacations at the time allotted exept where the employee has the exercise of seniority rights , changedclassification and/or location , in which event his vacation dates for that year may , of necessity , be changed to dates available in the new circumstance . The company will , as far as practicable , relieve the applicant between and including the mounths of april and october when desired .
20.1A sufficient number of regular and/or temporery relief positions will be established to meat all necessary relief .
20.7 Relief assignment will be allocated as equitably as practicle .
Absent any express restriction in the collective agreement the scheduling of vacation would fall within the exclusive purview of the company as part of its right describe in Article 2 to manage the business and direct the employees . That right is qualified , however , by the provisions of Article 19.24 . Subject to one qualification that provision requires the company to assign vacations according to the preferences expressed by employees based on the order of their seniority . The one qualification is that the seniority "insofar as it is practicable to do so" . The issue therefore becomes whether , having regard to the facts , the company was entitled to disallow the grievor’s request , notwithstanding his seniority , because it was not practicable for the company to have its senior plant technician at Melville on vacation during the Chrismas period .
Before addressing the facts it is necessary to consider the nature and breadth of that is retained by the company in the qualification of impracticability . There have been judicial decisions and arbitral award relating to collective agreements which on the one end of the spectrum give the company an unfetered discretion to scedule employees’ vacations (see , e. g. ,re Municipality of Metropolitan Toronto and Toronto Civic Employees’ Union local 43 (1975) , 10 D.L.R. (2d)37 (Ont. Div. Ct. ) and at the other extreme give employee an absolute right , by seniority , to determine the time of their vacation (see , e.g. , Sudbury ,Brodcasting Co . Ltd. (1972) , 1 LAC (2b) 130 (O’Shea)). The instant agreement falls somewhere in-between in a grey area that has been the subject of a nuber of previous arbitral awards arising out of similar provisions .
In Kestar Solder Co. of Canada Ltd. (1974) 6 LAC (2b) 234 (Brown) the collective agreement provided that the company would post a vacation schedule and accomodate any requested changes from employees "as far as possible" . The award in that case determined that the qualifying provision did not restrict the company’s rights to determine vacation schedules . A collective agreement providing that "all vacations granted must be taken inthe current calendar year at a time satisfactory to the company" was found to give priority to the convenience of the company , even though the same article went on to state that "employees should have the opportunity so far as the scheduling of work permits , to choose theire vacation time" ( Fairbanks Morse Canada Ltd . (1968) , 19 LAC 27 ( Johnston ) ) . In Goodyear Tire & Rubber Co. of Canada (1964) , 15 LAC 34 (reville ) a provision that "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 shal be made to schedule vacations at times suitable to employees" was found to give the company the right to schedule employee’s vacations at its own convenience so long as it did not act arbitrarily or unreasonably in exercising that right .
The specific language to be construed in the Instant case has been interpreted in at least one apparently unreported award . In Canadian National Railway and Brotherhood of Railway , Airline and Steamship Clerks , Frieght Handlers , Expres and Station Employees ( Canadian Railway Office of Arbitration , case no. 175 , Oct. 14. 1969 (weatherill) ) , the collective agreement provided :
Applications filed prior to February 1st ,in so in so far as practicle 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 alltted them , and unless otherwise mutualy agreed employees must take their vacation at the time alloted .
In that case the company treated freight shed employees and office employees at one location as two distinct groups for purpose of scheduling vacations , doing so on the basis of seniority in their respective groups . The union maintained that the employer could have treated the two groups as one for the purpose of establishing vacation priorities , arguing that the different pecking order resulting from that alternative approach would have been practicable . The chairman responded to that argument in the following way :
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 vacationson the basis the union suggests . If this was that 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 meening is that vacations should be allotted in order of seniority as long as that does not disrupt unduly the efficient operations of the company . Where there are two aspects of the company’s operations , as here , it is obvious that the efficient continuation of the operations of each must considered . It would not in fact be practicable for the company to allocate vacations in the manner contended for by the union .
In the previous unreported arbitration between the company and the then bargaining agent , Canadian Telecommunication Union , Division no. 43 of the United Telegraph Workers Article 17 , clause 3 (b) of a Memorandum of word with Article 19.24 , was interpreted . In that case two plant technicians , at Moncton N.B. and Sydney N.S. respectively , were denied their choice of vacation while two junior employees chose and were given vacations on the dates that the grievors had selected .
The company justified its decision on the basis that in assigning vacations it must take into account the time and cost of moving replacement manpower from one location to another in the Maritimes , as well as the possibility that a number of senior men might be concentrated in one location . The company also raised its concern that a relief technician might not function efficiently in a new location to which he is temporarily moved . To avoid these difficulties the company allotted priorities in the basis of seniority by location rather than seniority through the entire maritime district .
In his award dated May 11 , 1973 dismissing the grievances C.H. Curtis concluded that there was nothing in the article to prevent the company from taking those business considerations into account . The fact that district seniority established the standard of priority did not mean that the standard could not be applied on a location by location basis , as the company had done . Citing two earlier arbitral award interpreting the word "practical" in the language of a collective agreement (Canadian Can Co. (1958) 8 LAC 313 (Cooper) ; Burroughs Business Machines Ltd.(1965) , 16 LAC 266 (Palmer) ) the chairman concluded that the word "practicable" must be taken to mean "practical business-wise or economically practical" . Applying that standard the Board concluded that cost and efficiency did make it impracticable within the meaning of the article for the company to assign vacations on the basis contended for by the union .
In one sense an arbitral award becomes part of the private law of the parties . It clarifies their collective agreement by resolving their disputed interpretation and gives guidance for their conduct and expectation s . That is why arbitrators generally accept the principle that unless it can be found to be clearly wrong , the interpretation of a ptovision in a collective agreement made by a previous board of arbitration should not be disturbed or departed from . ( Breweries Warehousing Co . Ltd .(1954 ) 5 LAC 1979 (Laskin ) ; Hydro Electric Power Commision of Ontario (1973) 3 LAC (2d ) 45 ( Palmer ) ; Air Canada (1975 ) ;10 LAC (2d ) 113 ( O’Shea ) ; Duplicate Canada Ltd .(1976) 12 LAC (2d) 125 (Fraser) ; Canadian Johns-Mansville (1976) 12 LAC 99 (2d) 266 (Burkett) ). It may be that from a technical stand-point the award of Mr. Curtis , not involving the same union as in the instant case , should not be viewed as practically conclusive within the sense of that general principle . Even if that is so , however , it must be viewed as highly persuasive . In the negotiation of latter collective agreement the successor bargaining agent , being the union in these proceedings , must be taken to have been aware of the arbitral interpretation previously placed upon the article . In these circumstances it would not be unreasonable to conclude , as this Board does, that the parties to the instant collective agreement accepted the article as previously interpreted and intended the word "practicable" to have the meaning "practical business wise" . In considering the facts , therefoe , the board adopts that approach , as well as the approach of Mr. Weatherill in the Canadian National Railway case . We take Article 19.24 as requiring that seniority be applied in the assignment of vacation preferences so long as those preferances do not unduly disrupt the legitimate business concerns of the company . We should add that even disregarding the award of Mr. curtis our conclusion , based purely upon the language of Article 19.24 , would be the same .
We turn to apply that interpretation to the facts . They are fairly simple . The grievor is the only senior plant technician stationed at Melville . The ballance of the company’s plant technicians , tan in number , are srqationed in Saskatoon , some 150 miles away . Two of the Saskatoon based man are relief technicians . When the vacation schedule was posted one of the Saskatoon technicians , Mr. J. Paquin who is junior to the grievor , was given the week of Chrismas as his fifth and final week of vacation . That it what is grieved .
Mr. A. R. Machan , an Operations Manager of the company , testified to the rationale for assigning the Chrismas vacation to Mr. Paquin . He explained that whether that period was given to Mr. Mills or to Mr. Paquin , the man on vacation must be replaced by one of the two relief technicians from Saskatoon . As it appens Mr. Paquin was replaced by relief technician T Howard of Saskatoon . Mr. Machan testified that as far as possible the company prefers to have a relief technician performing relief work in his place of residence in order to provide greater emergency coverage during the weekends or statutory holidays that fall within the relief period . For exemple , if Mr. mills had been given the Chrismas week off , the relief technician from Saskatoon taking his place would have-been off-duty for four consecutive days , being December 25th , 26th , 27th ,and 28th . The first two of those days were statutory holidays and the second two were weekend days , all consecutive . The company took the position that there being no guarantee that the relief technician would stay in Melville during those days , tho greater ptobability being that he would return to his home base in Saskatoon for the Chrismas Holiday , there would be no back-up emergency coverage in Melville for the period . While there are three general technicians in Melville who would presumably have remained there over the holiday weekend , the company was concerned that they could not provide the kind of coverage that would be assured only by a specially qualified plant technician . The company concluded that to assign Mr. Howard to relief in Melville for a week that included the four day Chrismas holiday would jeopardize its telecommunications service .
It is unchallenged that in 1978 the grievor was all9owed to take the Chrismas period for part of is vacation . The evidence establishes however , that that was an axeptional arrangement arrived at privately between Mr. Mills and another plant technician named Nicholson . According to Mr. Machan the company then allowed the arrangement but emphasized that it should not be taken as a precedent . In fact the following year , 1979 , the grievor’s request to again take the vacation time in the Chrismas period was denied . The evidence of past practice is , therefore , equivocal at best , and gives little definitive guidance as to what is practicable from the standpoint of the efficient operation of the company’s telecommunications service .
The grievor testified that relief technician Howard’s family lives in Minnedosa , Manitoba , some 90 miles from Melville and 300 miles from Saskatoon , Although he did not speak to Mr. Howard the grievor testified that he believed that the relief technician intended to spend the Chrismas holiday in Mannedosa . Part of the union’s argument , based on this evidence , is that the risk of emergency coverage over the rour day Chrismas weekend would not be as great as the company makes out if the grievor’s relief man was in fact only an hour and a half’s drive from Melville , in Mannedosa .
We have some difficulty with that submission . Apart from the speculative hearsay evidence that underlies it , it suggests what in our view would be an unreasonable standard for the company to meat . Bearing in mind that the vacation schedule must be decided upon and posted in February , some ten mounths before Chrismas , it becomes unrealistic to require the company to canvas and take into account the individual Chrismas travel plans of its employees . In our view the company was entitled , as it did , to apply as a rough rule of thumb the assumption that relief man who live in Saskatoon would tend to spend Chrismas there . Moreover , while it was open to the union to adduce direct evidence from Mr. Howard to show that the company’s assumption was wrong , it did not do so .
The evidence discloses that part of the company’s reasons for declining to meat Mr. Mills’ request for his sixth week of vacation , having accorded him his wishes for the first five , are humanitarian . Article 20.7 of the collective agreement requeres the company to make relief assignements "as equitably as practicable". It is commun ground that relief employees are required to travel substantial distances , sometimes for extened periods of time . As a result there is obvious disruption to their home and family life that is not experienced by employees permanently stationed in one location . While it is true that there is a certain amount of hardship inherent in the job of relief technicians , usually the most junior of the employees , Article 20.7 recognizes that the company should strive , insofar as possible , to bring some compassion to bear in their assignements . In keeping with the dictates of that article the company has sought wherever possible to insure that relief technicians are allowed to spend Chrismas at home . On thatfurther basis , therefore , it has deemed it impracticable to assigne a relief technician to cover the vacation of an employee in a more remote location .
Much of the work of relief technicians involves replacing other employees on vacation . The requirement that relief assignements be made equitably presupposes , therefore , that the company must to some extent balance the intersts of employees requesting vacations and the relief man who will replace them . While Article 20.7 obviously could not be used to effectively cancel the effect of Article 19.24 and eliminate the presumptive right to an employee’s preferences in vacation dates according to his seniority , there must be some link between the"practicable" in article 20.7 . In our view it does not do violence to the scheme of those articles , read together , for the compagy to have structured the mix of relief assignements and vacation schedules in a way that would allow relief technicians to be home at Chrismas .
When the foregoing considerations are weighed , we are satisfied that the company had valid ground to conclude that it was impractible to deny the grievor his request to schedule his sixth weeks’ vacation over the Chrismas perod . Equitable treatement of relief technicians and the maintenance of an emergency capacity over the four day weekend of December 25 through 28 , 1980 were legitimate business considerations which the company was enteled to apply in its evaluation of the grievor’s request .
The grievance is therefore dismissed .
Dated at Toronto , Ontario , this 7th day of April , 1981 :
M.G. Picher , CHAIRMAN
G.J. Milley , COMPANY NOMINEE
The dissent of B. Switzman , will follow .
B. Switzman , UNION NOMINEE