©b59r AD HOC 143

IN THE MATTER OF A GRIEVANCE INVESTIGATION

PURSUANT TO SECTION 112 OF THE B.C. LABOUR

CODE IN A DISPUTE

BETWEEN: THE BRITISH COLUMBIA RAILWAY COMPANY

(Hereinafter Referred to as ("the Company")

AND: THE UNITED TRANSPORTATION UNION, LOCALS No. 1178 AND 1923

(Hereinafter Referred to as "the Union')

Section 112 Investigator: Brian Foley

Appearing for the Company: D. Pysh T. Teichman D. Sawchuk A. Shannon

Appearing for the Union: C. Mulhall R. Sharpe K. Riehl

Date of Meeting With The Parties: January 31, 1984

Date of Written Report: February 3, 1984

Issue: Article 127, Assigned Road Service

©b68r I

By agreement between the Company and the union, the undersigned was

appointed under Section 112 of the B.C. Labour Code to investigate

grievances and make written recommendations to the parties for their

resolution. In late January, 1984, the parties requested a

recommendation with respect to the interpretation of Article 127,

Assigned Road Service. A meeting with the parties was held in

Vancouver on January 31, 1984.

At this meeting, the parties agreed that the grievance investigator

was properly constituted and had the jurisdiction to deal with the

matter in dispute. In addition, the parties agreed that the

investigator's recommendations would be final and binding.

©b67r II

The present dispute arose over the Company's action of bulletining

two switcher assignments out of the |Chetwynd sub- division. The

Union took job action to protest the bulletining and rail service was

curtailed for approximately twelve hours on January 26, 1984.

Informal discussions at the Labour Relations Board led to an

agreement that the Union members would return to work immediately;

the matter of the bulletined assignments was then expedited to the

present forum.

I have been asked to provide my conclusions on the proper

interpretation of the collective agreement provision respecting

Article 127, Assigned Road Service and its relationship to other

articles and clauses in the collective agreement. I have also been

asked two related questions:

1) whether the Union's initiation of job action was appropriate in

the circumstances; and

2) whether the Company contravened Article 104 by bulletining the

switcher assignments.

From the comments made at the hearing by the Union's representatives,

it is obvious that they were deeply disturbed that the Company would

bulletin the assignments without the concurrence of the Union. The

Union's reaction was based on its belief that the action taken by the

Company was a blatant violation of the provisions of the collective

agreement. However, that is no defence for actions which clearly

contravene the provisions of the Labour Code. The appropriate forum

to resolve contract interpretation issues is the grievance procedure

under the collective agreement and third party adjudication. That is

particularly the case whereas, in this instance, the parties have

available to them an expedited arbitration procedure pursuant to

Section 112 of the Labour Code.

Perhaps, as the Union argues, Section 112 should be used to deal with

contract interpretation differences before they actually arise as the

result of action taken by the Company or the Union. However, if that

is to be the case, it must be by mutual agreement of the parties.

What about the effect of Article 104 on the Company's action?

Clauses 104(a) and (b) provide as follows:

(a) Nothing in this agreement prevents the addition, deletion

or revision of any provision thereof during the term of

the agreement and the representatives of the Railway and

of the Employees shall meet at the request of either for

that purpose. If mutual agreement cannot be reached on

any addition, deletion or revision of any particular

provision,, consideration of the proposed change in the

provision shall be deferred for the term of the

Collective Agreement.

(b) Any question of interpretation of this agreement which may

arise may be taken up by the General Chairman or Acting

General Chairman, with the Vice-President, operations, or

his representative, and if not satisfactorily adjusted

way be progressed further as provided for in the

grievance procedure."

The action taken by the Company was based on its view of its rights

under the existing collective agreement. It was not an attempt to

add to, delete,,revise, or otherwise alter any provision of the

collective agreement. The Company was merely acting in accordance

with what it believed to be a proper interpretation of certain

provisions of the collective agreement. If the Union was unhappy

with that interpretation, the matter could be addressed as a

grievance pursuant to the provisions of clause 104(b). The Company

did not contravene the provisions of Article 104 by bulletining the

switcher assignments.

©b67r III

Let us now consider the particulars involved in the present dispute.

As noted earlier, the dispute arose as a result of the Company's

action of bulletining two switcher assignments out of the Chetwynd

subdivision. The existing assignment at the time called for the

release from duty at Chetwynd of assigned crews on the southbound

portion of trips from areas up to Fort St. John. The assignments

bulletined in late January 1984 called for the southbound crew to

continue to work through Chetwynd to Pinesul/Hulcross and then turn

around and return to Chetwynd.

The Company's action was taken to provide freight service to Pinesul

without the need to assign a separate crew to provide that service.

The Company had earlier attempted to negotiate changes in the

Chetwynd switching limits to encompass Pinesul but those efforts

were unsuccessful. The Company had also bulletined the specific

assignment in late fall 1983 but withdrew it shortly thereafter.

The Company argues that the collective agreement does not restrict

the Company's right to schedule assignments either over more than one

division or through terminals. In the Company's view, it has the

right to schedule an assignment to run through a terminal without

release of the crew when the train initially arrives at that

terminal. In support of that view, the Company argues that 'running

through terminals is an every day occurrence on the British Columbia

Railway". The Company also argues that an analysis of how the

collective agreement language has evolved over the years supports its

position about-the proper collective agreement interpretation.

The Union argues that the Company's action of bulletining the

specific switcher assignments is in violation of a number of articles

in the collective agreement. As examples, the Union argues that:

- the bulletined assignments operate over more than one sub-division,

a contravention of Article 211, Crews Running Off Assigned

Subdivisions

- the southbound crew to Chetwynd must be released when they arrive

at Chetwynd, pursuant to Clause 201(9), Automatic Terminal Release

- the southbound crew to Chetwynd must be given rest time when they

arrive at Chetwynd, pursuant to Article 122, Rest

- the provisions under Article 307, |Spareboard, lead to the

conclusion that trainmen cannot be run through their home

terminals.

In support of its position, the Union points out that there were

discussions transpiring on the issue before the assignments were

bulletined; the Company must therefore have recognized that such

assignments could not be bulletined without the concurrence of the

Union. Finally, the Union argues that past practice precludes the

Company bulletining assignments such as those bulletined in late

January, 1984. It is argued that, in the past, bulletined

assignments which ran over more than one sub-division did not run

through the trainmen's home terminal. The southbound trainmen have

always been released when they arrived at Chetwynd and have never

been required to work through Chetwynd and back. In the Union's

view, the Company's action is a clear violation of the provisions of

the collective agreement and is completely contrary to long|i-

standing past practice.

©b39r IV

In reaching my conclusion as to the proper interpretation of the

collective agreement, I have considered the evidence presented, the

various arguments of the parties and the wording in the collective

agreement as a whole. I have also considered the parties'

representations concerning the manner in which the collective

agreement wording has evolved and has been applied in practice over

the years. In making these latter considerations, I have been guided

by the approach of the B. C. Labour Relations Board and arbitrators

in the Province concerning the proper use of extrinsic evidence in

collective agreement interpretation. The matter was addressed by the

Labour Relations Board in ©u31rColumbia Hydro Constructors Ltd., BCLRB

No. 71/80:

" While evidence of past practice and negotiating history of

the parties may be admissible and can be used by an

arbitration board in determining the proper interpretation of

the words in a collective agreement, the collective agreement

is the ©u7rprimary evidence. Evidence of past practice and

negotiations is ©u9rextrinsic evidence which can be admitted and

used by the arbitrator ©u16rif it is helpful. However,it is not

to be taken in preference to the terms of the collective

agreement, but merely as an interpretation aid to the wording

of the collective agreement."

(at 4)

That same point was made earlier by the Board in ©u13rUniversity of

©u16rBritish Columbia, BCLRB No. 42/76, {1977} 1 Can LRBR 13:

'...Section 92|(3) of the Code directs the arbitrator to have

regard to the "real substance" of the issues and the

respective merit ... under the terms of the collective

agreement" . the parties do not draft their formal contract

as a purely literary exercise. They use this instrument to

express the real-life bargain arrived at in their

negotiations. When a dispute arises later on, an arbitrator

will reach the true substantive merits of the parties'

positions under their agreement only if his interpretation is

in accord with their expectations when they reached that

agreement. Accordingly, in any case in which there is a bona

fide doubt about the proper meaning of the language in the

agreement - and the experience of arbitrators is that such

cases are quite common - arbitrators must have available to

them a broad range of evidence about the meaning which was

mutually intended by the negotiators. In our judgment, it is

not consistent with s. 92 of the Code for arbitrators to be

presented by artificial legal blinkers from looking at

material which,in real-life is clearly relevant to an

accurante reading of disputed contract language.

What is the point of this formulation of the doctrine ?

First of all, a party which wishes to present evidence of

what transpired at negotiations must understand that such

evidence will have to be tied in to a written provision

contained on the face of the collective agreement and must be

prepared to persuade the arbitrator that such extrinsic

material discloses the actual meaning intended for this

written provision. But if this is the objective, the party

does not have to clear a preliminary barrier before that

evidence can be utilized, of securing an initial ruling from

the arbitrator that the agreement is legally ambiguous on its

face. Instead, the arbitrator, when he begins the task of

interpretation, will be able to do so with a full appreciation

of the relevant exchanges which eventually culminated in the

formal document. With that material before him, the

arbitrator can decide whether he entertains any doubt about

the meaning intended for the provision in question and, if

so, whether the negotiation history is helpful in resolving

that doubt."

(at 17-18)

The Board's jurisprudence supports the proposition that an

arbitration board can admit for consideration extrinsic evidence such

as that relating to the history of negotiations or past practice.

However, in determining the weight to be given such extrinsic

evidence, the arbitration board must first decide the degree to which

there is a ©u9rbona fide doubt about the proper meaning of the collective

agreement wording. That point was made by arbitrator M. Allan Hope

in his May 1981 award respecting ©u32rNoranda Mines Limited and United

©u34rSteelworkers of America Local 898, unreported):

"...The task of an arbitrator in addressing issues of

disputed interpretation is to first examine the language to

see if it creates of itself or in the context in which it

appears in the Collective Agreement a bona fide doubt about

the proper meaning of the language."

(at 13)

After considering extrinsic evidence, the arbitration board may still

decide that the words in the collective agreement are clear and

unambiguous. The arbitration board makes this decision after

hearing the extrinsic evidence and if the arbitration board has a

doubt about the meaning of the wording in the collective agreement,

it can turn to the extrinsic evidence as an aid in resolving this

doubt. As stated by the Board in ©u29rPrince George School District,

BCLRB No. 41/76:

"...the significance and weight accorded to parol evidence

should be directly related to the degree of ambiguity in the

collective agreement. In most instances the text of the

agreement (and by text I mean not only the language of the

provision itself but the entire collective agreement) and

common sense rules of construction will favour one

interpretation. That is not to deny that any ambiguity, or

another interpretation, is possible. In such circumstances

only very persuasive and unequivocal parol evidence would

justify the less obvious interpretation. Conversely, in an

agreement whose two different interpretations are equally

attractive, the significance of extrinsic evidence is far

greater. But the point to emphasize is that an arbitration

board's recognition of an ambiguity does not compel it to

decide the meaning of the agreement according to the parol

evidence it hears. ©u41rIt is the agreement and not the extrinsic

©u36revidence which must be interpreted. The evidence will

assume greater or lesser significance according to the degree

of ambiguity in the text. If the parol evidence itself is

equivocal the Board is merely deprived of one tool in its

interpretive function. In all instances it must settle the

difference with regard to the wording of the agreement."

(at 8-9, emphasis added)

This type of approach is considered appropriate when considering the

weight to be given the evidence and testimony relating to the history

of negotiations between parties or the evolution of a particular

collective agreement provision. It is also appropriate when

considering past practice. The Labour Relations Board stated in

©u34rCanadian Cellulose Company Limited, BCLRB No. L112/80:

"...The use of past practice as a tool to be used in the

interpretation of collective agreements is one of

longstanding. However, as with other forms of extrinsic

evidence, the use of evidence of past practice must be tied

to determining the purpose and meaning of the bargain struck

by the parties. ©u42rEvidence of past practices which have been

©u57ror which appear to have been in conflict with the current

©u61rlanguage of a collective agreement cannot be used to supplant

©u40ra provision in the collective agreement."

(at 11-12) (emphasis added)

In many cases, the arbitration board will consider the extrinsic

evidence (such as past practice) adduced at a hearing against the

wording in the collective agreement and it will come to the

conclusion that the wording itself is clear and unambiguous,

therefore minimizing the impact of such extrinsic evidence.

With respect to past practice in particular, arbitrator Paul Weiler

put forth certain limitations on the use of past practice in ©u2rRe

©u69rInternational Association of Machinists, Local 1740 and-John Bertram

©u14r& Sons Limited, (1967), 18 LAC 362:

" Hence it would seem preferable to place strict limitations

on the use of past practice in our second sense of the term.

It would suggest that there would be (1) no clear

preponderance in favour of one meaning, stemming from the

words and structure of the agreement as seen in their labour

relations context; (2) conduct by one party which

unambiguously is based on one meaning attributed to the

relevant provision; (3|) acquiescence in the conduct which is

either quite clearly expressed or which can be inferred from

the continuance of the practice for a long period without

objection; (4) evidence that members of the union or

management hierarchy who have some real responsibility for

the meaning of the agreement have acquiesced in the

practice."

©b68r V

For reasons which will readily become apparent, I believe the

language in the British Columbia Railway and the United

Transportation Union collective agreement is clear and unambiguous

and I therefore need not rely on evidence of the history of

negotiations, the evolution of contract language or past practice in

deciding upon the issue before me.

Article 211, Crews Running Off Assigned Subdivisions, provides, in

part, as follows:

"Freight crews will be assigned to regular subdivisions and

will be kept on those subdivisions, except in emergency on

account of shortage of men or crew they may be required to go

on another subdivision, in which case they must be changed

off with the first unassigned crew on that subdivision met

enroute.

Crews arriving at their own subdivision terminal when crews

from another subdivision are about to be used, shall change

off with said crews for the purpose of keeping crews on their

own respective subdivisions, even though the crew about to be

used has been called and started to work. This clause will

not be enforced when crews require rest."

The Article provides that freight crews will be assigned to regular

subdivisions, these subdivisions will be considered headquarters for

the particular crews, and the headquarters for these crews will not

be changed except in emergency situations. But Article 211 does not

deal with the subdivisions, zones or territory over which work

assignments may be made and bulletined.

That matter is dealt with under Article 127, Assigned Road Service:

(a) Assignments, other than work train, will be bulletined

specifying the home terminal, initial and objective

terminal for each trip, territory over which the

assignment is to perform service, starting time and days

of operation. So far as it is practicable, assignments

will start at the bulletined starting time, except that

an assignment may be started at a time later, but not

earlier than that specified in the bulletin unless

otherwise mutually agreed. When bulletined starting time

is changed more than three (3) hours, the assignment will

be rebulletined."

My conclusions concerning the impact of clause 127(a) is contained

in my earlier report dated December 12, 1983:

"...There is no restriction in clause 127(a) on the Company's

right to assign trains over more than one zone. In fact, a

reading of clause 127(a) leads to the conclusion that the

decision over what territory an assignment is to provide

service, whether over one or more zones, is the Company's

decision alone. That conclusion of course is subject to any

restriction on that right with respect to any particular rail

service either in the wording in other articles or clauses or

implied indirectly through past practice."

(at 8)

The key question then is whether or not there are any direct or

implied restrictions on the Company's right to assign work extending

over more than one sub-division, through terminals, or in any other

manner.

Let us first consider clause 201(9), Automatic Terminal Release

(Freight Service). It reads as follows:

" A trip will end automatically on arrival at a terminal

except otherwise provided and Trainmen will not be required

to do work other than storing their own train and placing

locomotive to shops.

Crew may be required to spot stock from their own train on

arrival at terminal if no yard crew on duty.

With respect to mixed, wayfreight or switcher assignments in

turnaround-service in cases where turnaround point is

terminal for unassigned crews, automatic terminal release

will not apply at turnaround point.

The meaning of terminal is understood to be the regular

points between which crews regularly run, i.e., assigned by

bulletin."

In considering 201(9), particular attention must be given to the

fourth paragraph where it is stated that "terminal is understood to

be the regular points between which crews regularly run, i.e.,

by bulletin".

Since Article 127 gives the Company the prerogative to make and

bulletin assignments, the definition of "terminal" must be considered

in terms of the Company's prerogatives under Article 127. It is my

view that reading Article 127 together with the last paragraph of

201(9) and other articles and clauses, the inescapable conclusion is

that the Company retains the right to establish terminals by

bulletined assignments. In the words used in 201(9), terminals are

"assigned by bulletin".

Considering then the specifics of the other parts of clause

201(9),automatic terminal release only takes place when the crew

Company as the "regular point between which crews regularly run".

Under the collective agreement the Company has the right to schedule

and bulletin an assignment to run through a terminal without the

automatic release provision taking effect. The automatic terminal

release only applies with respect to the terminals which have been

terminals for the particular assignment.

Similarly, Article 122, Rest, must be considered in light of my

earlier conclusions. Clause 122(a) provides as follows:

" (a) Trainmen on arrival at terminals will not be called

again for immediate duty if they want rest, the

Trainmen to be judge of his own condition."

It is my judgment that the "terminals" referred to in this clause are

the ones established by the Company for the particular assignments

bulletined by the Company pursuant to Article 127.

In summary, the collective agreement provisions in dispute in this

case are clear and unambiguous and there need not be reliance on

extrinsic evidence for the purpose of interpretation. The Company

retains the right to establish terminals by bulletined assignments

and its action of bulletining the switcher assignment in late January

1984 was in accordance with its rights under the collective

agreement.

All of which is respectfully submitted.

BRIAN FOLEY,

INVESTIGATOR