Hearing : June 8, 1981

Present : Stanley M. Beck

J. W. Healy, Q.C.

Counsel for the Company

David Starkman,

Counsel for the Union

* * * * * * * *

This arbitration concerns the grievance of G. Thivierge (Thivierge) which, for its determination, involves the proper construction of Article 20.4 of the collective agreement in force between the Canadian National Railway Company Telecommunications Division (the Company) and Canadian Telecommunications Division of the Canadian Brotherhood of Railway Transport and General Workers (the Union). Article 20.4 is as follows :

The regular employees in the office will exercise district seniority to choose a tour and work week and the relief employee will assume the unfilled tour and work week, qualifications being sufficient.

The grievance of Thivierge is to the effect that when a fellow employee, C.E. Conley (Conley) went on vacation he was not given Conley’s tour, which was 8 a.m. - 5 p.m. Monday through Friday, when he applied for it, and that a relief employee filled Conley’s tour for the vacation period. It was the evidence of Thivierge, and the Company agreed that it was the case, that it was normally the practice that when a plant technician went on vacation an employee could exercise his seniority to take the open tour and other employees could then take the tour that became open as a result of the vacation coverage, and so on down the line. A relief employee would then take the last unfilled tour. That was what regularly happened on vacations for plant technicians in the Moncton, New Brunswick, office of the Company (and, one assumes, at the Company’s other offices, although it was just the Moncton office in question here).

It should be noted that there were eleven grade 5 and four grade 6 plant technicians on permanent employment in the Moncton office. Among the eleven grade 5 technicians were two relief employees. That is, the relief employees were part of the regular complement, and it was Thivierge’s evidence that it was their primary function to cover an unfilled tour when the other technicians were on vacation. For the little time that they did not cover vacation, they did plant maintenance. It was also Thivierge’s evidence that all eleven grade 5 technicians, including the two relief men, did the same work so that the only question became one of "getting the work done" and the two relief men were there on a full-time basis to cover the vacation rotation and thus to ensure that the work did get done.

The evidence was that this long standing practice of an open tour being filled by a technician with seniority was changed by the Company as a result of an arbitral decision by Mr. Kevin Burkett (Burkett). That decision will be referred

to as the Winton grievance. The Winton grievance concerned the question of whether a relief technician was entitled to be given 48 hours notice of a change in his rest days. Winton had not been given such notice and in fact was required to work 12 consecutive days without a day off. He claimed that he was covered by the terms of Article 7.1 and therefore ought to have been paid time and a half for two days as he did not receive the required 48 hours notice. Payment at the rate of time and a half for work on regularly assigned rest days is provided by Article 9.4.

In the Winton grievance, the Union argued that Article 7, Work Week for Regular and Swing Assignments, applied to relief employees and argued that there was nothing in Article 20, Relief Employees, to remove relief technicians from the coverage of Articles 7 and 9. The Company took the position that Article 7 did not apply to relief employees and, in particular, argued that Article 20.4 required the relief employee to " . . . assume the unfilled tour and work week . . . " It was argued that assuming the unfilled tour and work week included assuming the days off which go with the particular work week. Thus, in the particular case, Winton assumed first a swing tour, and then a late night tour, and assumed the rest days that went with each of those tours, and at no time was required to work the assigned days off of the tour and work week which he had assumed.

As Burkett noted, the Company’s case rested on its interpretation of Article 20.4, and particularly the language " . . . relief employees will assume the unfilled tour and work week . . ." Thus, Mr. Burkett had to interpret the language of Article 20.4 to see whether it would bear the interpretation argued for by the Company. He noted that the language relied upon by the Company is preceded by the words "the regular employees in the office will exercise district seniority to choose a tour and work week" and that the two separate ideas are joined into a single sentence by the conjunction "and" and must therefore be read together. Thus, Mr. Burkett decided that the requirement for the relief employees to assume the unfilled tour and work week is restricted to those situations where a regularly scheduled employee exercised district seniority to choose a tour and work week. The next question then became one of when a regularly scheduled employee may exercise district seniority to choose the tour and work week. Mr. Burkett ruled as follows :

Article 8.6 stipulates that ‘employees may only exercise seniority for choice of tour or duty within a regular or temporary position in a grade when a position is vacant or at the change of time - Spring and Fall’. There are no other circumstances which allow a regular employee to

exercise seniority for choice of tour of duty under the existing agreement. In the case before us a regular employee did not exercise seniority to choose a tour and work week so as to require Mr. Winton to assume an unfilled tour in accordance with Article 20.4.

Thus it will be appreciated that Mr. Burkett’s analysis of Article 20.4 was essential to the decision in the Winton case, which decision was that relief employees are covered by Article 7 and as such are entitled to 48 hours notice of change in rest day, and in lieu thereof are entitled to be paid time and a half for those 48 hours in accordance with the terms of Article 9.

Upon receipt of Mr. Burkett’s opinion in the Winton case, the Company then changed its long standing practice, which has been noted above, which allowed regular technicians to fill in, on the basis of seniority, for fellow technicians who went on vacation with the relief taking the remaining unfilled tour. This was the standard interpretation given to Article 20.4 until Mr. Burkett’s decision in the Winton grievance. However, an essential finding in that decision was that regular employees only exercise seniority in the one situation set out in Article 8.6, and it is at that time that a relief employee assumes the unfilled tour and work week. Accordingly, the Company changed its practice in February of 1980. The change of practice was noted in a memorandum dated March 7, 1980, signed by P. LaMarsh, the Company’s Regional Manager. That notice reads in part as follows :

As a result of a recent arbitration award, it will be necessary to ensure that a 48-hour notice is given to all employees, relief and/or regular, of change in work week. In addition, regular employees in a group in an office will not have the right to exercise seniority to choose a tour and work week except when a position is vacant or at a change of time, i.e. Spring and Fall.

It is this change in policy which has led to the Thivierge grievance, as he was not allowed to fill Conley’s tour while Conley was on vacation, Conley’s tour being filled by a relief man.

Counsel for the Union made four separate arguments in support of the grievance and I shall deal with them in that order.

1. Counsel relied primarily on Article 20.4 as being decisive of the issue. He argued that notwithstanding that Article 20 is titled "Relief Employees" and deals primarily with that topic, Article 20.4 covers the matter. That is,

regular employees in the office exercise their seniority to choose a tour

and a work week when a fellow employee goes on vacation and the relief employee assumes the unfilled tour and work week. In short, counsel did not agree with Mr. Burkett’s interpretation of Article 20.4 in the Winton grievance, and more specifically, did not agree that Article 8.6 was the only Article that granted the right to exercise seniority for a choice of a tour of duty. Article 8.6 reads as follows :

Employees may only exercise seniority for choice of tour of duty within a regular or temporary position in a grade when a position is vacant or at the change of time -- Spring and Fall.

Counsel argues that Article 20.4 and Article 8.6 can co-exist quite comfortably. Article 20.4 gives a choice to take the vacant tour alone, and so on down the line. Article 8.6 allows an employee to exercise general seniority rights and means an employee can make any change, not just a change into the vacancy within an office, as would be the case under Article 20.4. On a consideration of Article 20 and Article 20.4 as opposed to Mr. Burkett in the Winton case. That is, I am of the view that it is only Article 8.6 that gives an employee the right to exercise seniority for a choice of tour of duty. Article 8.6 is clear and specific, and Article 20.4 must be seen in the context of Article 20 as a whole, dealing with relief employees. There is nothing on the face of Article 20.4 that would lead one to the interpretation that it grants a substantive right in a regular employee to exercise seniority rights to choose a tour of duty.

2. The second argument of counsel for the Union was that a vacancy exists when a regular employee goes on vacation, and accordingly Article 6.9 would govern to allow seniority to operate to fill a temporary vacancy of 30 days or less. I will not canvass the argument made by counsel for the Union with respect to vacancy, as I am clearly of the opinion that there was no vacancy here as that term is used in the arbitral jurisprudence. The case cited by counsel for the Company, Re International Nickel Company of Canada Ltd. and United Steelworkers, Local 6500, (1975) 8 L.A.C. (2d) 34 (Brandt) deals fully with what constitutes a vacancy. In that case Professor Brandt canvassed a number of the leading cases on vacancy, almost all of which indicate that an addition to complement is a requirement before there can be said to be a vacancy. As Mr. Brandt noted on the facts of the INCO case itself, "as there was no need to increase the complement it could not be said there was any vacancy to be filled. Put

another way, the Company position is that the classification had within in at all times sufficient persons to perform the task required to be performed". Professor Brandt agreed with that submission.

The position, as counsel for the Company submitted, is exactly the same here. The complement of 11 Grade 5 technicians, two of whom are relief, covers the Grade 5 jobs to be done at the Moncton office at all times. The only thing that changes for the two relief men is a different tour of duty for a period of two or three weeks, as the case may be. In such a case there is clearly no vacancy. Indeed, the case submitted by counsel for the Union, Re Pilkington Brothers Canada Ltd. and United Glass and Ceramic Workers, (1977) 13 L.A.C. (2d) 287 (Burkett) does not take a different view of what constitutes a vacancy than that of Professor Brandt in the INCO case. See particularly the judgment of Mr. Burkett at page 290 and cases cited therein.

3. Counsel’s third argument was a reliance on the Company’s past practice. It was submitted that that practice was clear and was applied across the system, and was a course of conduct upon which the Union relied. Accordingly, the Company should not be able to change such a course of conduct unilaterally during the term of an agreement. If the case were as simple as that I might well have agreed with that submission. However, this is not the case of a Company deciding to change a past practice in the middle of a collective agreement because it has changed its mind with respect to that practice. A grievance was brought by the Union, which grievance involved the interpretation of Article 20.4 of the collective agreement. The Company lost that grievance as a result of the arbitrator’s interpretation of Article 20.4 as well as the interpretation of other Articles of the agreement. As a result of that interpretation, the Company then changed its practice as the interpretation it had formerly been following was held to be incorrect. In such circumstances, I am of the opinion that the Company was entitled to change its practice and to give the Union the notice that it did. The fact that both parties had been working on the basis of an assumed interpretation of an Article in the collective agreement does not give either of them vested rights when, on an arbitration, the arbitrator gives such an Article a different interpretation. That interpretation then governs unless and until the Article is changed during subsequent negotiations. Accordingly, I am of the opinion that the Company was entitled to take the course of action it took in this case in changing its past practice based on Mr. Burkett’s interpretation of Article 20.4 - an interpretation with which I agree, as noted above.

4. The final argument of counsel for the Union was that this was a case of issue estoppel, as that term is used by Professor Beattie in his recent judgment in (CN/CP Telecommunications and Canadian Telecommunications Union (February 5, 1981, unreported). I have read Professor Beattie’s decision carefully, and I am of the opinion that the facts in this case do not give rise to a case of estoppel. The argument here is somewhat related to the third argument with respect to past practice. In the CN/CP case, Professor Beattie noted that the Company gave notice to a certain group of employees that it intended to cease making payments to them for days they were absent due to sickness, which fell within the designated waiting period of the Weekly Indemnity Benefit Plan that it had obtained pursuant to Article 30 of the collective agreement. The decision taken by the Company was that there was absolutely nothing in the terms of the collective agreement which obligated it to make the payments. The evidence was that such payments had been made on a regular basis for in excess of thirty years, and it was improper for the Employer to unilaterally terminate this policy in the middle of the current collective agreement. Professor Beattie, in a learned judgment, then went on to hold that the Employer was estopped from changing its past practice during the term of the agreement. As noted in dealing with counsel’s third argument, the situation here is quite different. This is not a case of the Company simply deciding, for its own good reasons, to change a long standing course of conduct. The change arises out of a grievance won by the Union in which Article 20.4 was given a definite interpretation by Mr. Burkett. Following Mr. Burkett’s decision, the Company changed its practice to conform with Mr. Burkett’s interpretation of Article 20.4. That is a case that is far different from the CN / CP Telecommunications case dealt with by Professor Beattie. In the circumstances here, no question of estoppel arises.

For all of these reasons, and given my interpretation of Article 20.4 and the finding that there is no vacancy when an employee goes on vacation, I am of the opinion that the grievance must be dismissed. I would note in closing that Article 26.3 of the collective agreement provides for a three-person board of arbitration. However, the parties specifically agreed to ask me to sit as a sole arbitrator to hear this case, and agreed at the hearing that I had jurisdiction to do so.

DATED at Toronto this 10th day of June, 1981.

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Stanley M. Beck