CASE-NO :AH152

DATE :04/07/86

PARTIES :NORTHWEST IBEW

COMMENTS:

CASES# :

TEXT :

 

 

 

IN THE MATTER OF THE CANADA LABOUR CODE

AND

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN: NORTHWEST TEL. INC (the company)

 

AND : THE INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS ,LOCAL 1574 (the union)

 

GRIEVANCES OF MR. R. STYAN , MR. W. MERCREDI and MR. E. DOWBUSH

 

arbitrator : Vincent L. Ready

counsel : Mr. Tim Preston

for the company

Mr. Roland Boone

for the union

Dates & Place of Hearing : July 4, 1986 at

Whitehorse, Yukon

PUBLISHED JULY 11, 1986

 

AWARD

I

At the outset of the hearing the parties agreed that I was properly constituted as an arbitrator pursuant to article 25 of their collective agreement to make a final and binding determination on the issue in dispute.

At the commencement of the hearing the parties formulated a statement of agreed facts which was provided to me as an exhibit during the course of the hearing. This document effectively summarizes the background that gave rise to the grievance. It reads in part:

1 . Styan , Mercredi and Dombush were construction linement,

Outside plant, planning and engineering department, working

out of the Yellowknife office.

 

2 . On the following dates the said grievors were laid off proportedly

under the provisions of the collective agreement, and in particular

article 19:

a) Mercredi - december 18 , 1984 ;

b) Dowbush - december 19 , 1984 ;

c) Styan - december 21 , 1984 ;

3 . The said employees received notice of their layoff on november 1,

1984, pursuant to a notice issued by W.A. Dunbar, general manager

of the company.

4 . It is normal, but not invariably so, that the workers in this classification

are laid off during some winter months.

5 . On the following dates the grievors returned to work, however, not as

construction linemen, but as station installers:

a) Mercredi - january 29 , 1985 ;

b) Styan - january 29 , 1985 ;

c) Dowbush - april 1 , 1985 .

6 . Dowbush was requested to return to work at an earlier date,

but was unable to do so because of other commitments that

he had made unrelated to the company.

7 . The grievors returned to work as construction linemen in

the spring of 1985."

It is from this base point that the hearing began.

 

 

II

The issue placed before me in this case can be easily identified: Did the company violate the terms and conditions of the collective agreement when it laid off the three grievors in december, 1984? As shall be seen later the issue also involves a question within a question. The first real question is whether the decision to layoff the grievors was within the prerogative of the company given the language contained in the collective agreement. A determination of this point will allow a determination to be made on the over riding issue placed before me.

 

 

III

The thrust of the unionís case is direct and uncomplicated. The union argues that the company violated the collective agreement by failling to prove the satisfaction of the conditions which would allow the company to lay off the grievors. The union relies on article 2.01 of the collective agreement which it says clearly defines the circumstances which must exist before the company can lay off its employees covered by the agreement. Article 2.01 reads:

"the management of the operations of the company and the

direction of the working forces, including the right to direct,

plan and control operations and to schedule working hours

and the right to hire, promote, demote, transfer, suspend or

discharge employees for just cause, or to release employees

because of lack of work or the right to introduce new and

improved methods or facilities, is vested exclusively in the

company, subject to the provisions of this agreement."

(emphasis added)

 

The union does not content that there was a lack of work available in job classification notmally held by the grievors, that of construction linemen. The union does assert that there was an abundance of work available in the classification of station installer. In support its assertion the union request that I acknowledge the sizable number of back orders for telephone installations which it states was in existence at the time the grievors were laid off. Further the union notes that the subsequent decision by the company to recall the grievors to the position of station installer shows that the grivors were capable of performing the duties of the job at the time the layoffs took place.

Key to the unionís argument is the portion of article 2.01 which states "... or to release employees because of lack of work ..." The union holds that phrase precludes the company from laying off employees unless there exists a lack of work. In the case at hand it is argued that the backlog of telephone installation orders clearly indicates that work was available, therefore, the company is prohibited by article 2.01 from laying off the grievors. Put in the general way, the union argues that the company can not lay off employees while there is work available in other areas within the company regardless of whether the work is within the employees regular classification or not .

 

 

 

IV

The companyís case is equally straightforward. It is assorted that the Company possesses a fundamental and unfettered right to manage its operations. Further, the company argues that it has a specific right to direct, plan and control operations and to schedule working hours. The company hold that its actions did not violate the terms of the collective agreement but rather was simply exercising the rights which it possesses.

V

One of the issues before me in this case involves the interpretation of article 2.01 of the collective agreement. I am guided by arbitrator Forsyth who in Greyhound Lines of Canada Ltd . (1974) ,S.L.A.C. 2d 1, stated at page 2:

"The principles to be applied in interpreting a contract or

agreement are weel laid down and areto be found in many

authorities. In Bealís Cardinal Rules of Legal Interpretation,

2nd ed. (1908), at page 74, the fundamental rule of interpretation

is clearly set out where the learned author states: In interpreting

all written instruments, the grammatical and ordinary sense of the

words is to be adhered to, unless that would lead to some absurdity

or some repugnance or inconsistency with the rest of the instrument,

in which case the grammatical and ordinary sense of the words may

be modified so as to avoid that absurdity and inconsistency ,and no

further."

 

 

As I understand the law respecting interpretation of agreements, if a plain common sense interpretation can be gathered from the words themselves then that is an end to it is only if the result mentioned above would follow from such interpretation that you look at other rules of construction in order to avoid that result ."

VI

In beginning my review of the issues in this case I will first examine the provisions of article 2.01, the "management rights" clause contained in the agreement. The language of article 2.01 clearly indicates that an agreement exists between the parties which acknowledges that the fundamental right to manage, direct, plan, and control operations lies with the company subject to the provisions of the collective agreement.

The union has argued before me that the fundamental right of the company to manage is fettered by the wording of article 2.01 to the extent that unless a complete lack of work exists, the company can not release or lay off employee. In effect the union is asking that I interpret the language of article 2.01 to provide a guarantee of employment to employees as long as some work remains to be done. For the unionís assertions to be supported by the language of article 2.01 it would require the narrowest of interpretation of the rights provision while demanding the broadest possible interpretation of the phrase "lack of work."

With respect I can not accede to the union request as the language on its face does not support the unionís interpretation. The wording of the article clearly identifies that the right to manage the operation and to direct the workforce lies with the company. The phrases upon which the union bases its argument is meant to be illustrative of the rights of the company not an exhaustive list of limitations on the companyís ability to manage. In order for the unionís argument to be upheld it would have to identify clear and specific language which stated that when a lack of work exists for an employee within his or her regular classification a contractual obligation still exists under which the company must maintain the employee to perform other work which the union has deemed to be done. I find that the language of article 2.01 does not contain any such wording. Further, to read article 2.01 as the union has requested greatly exceeds my interpretive mandate as defined in Greyhound Line of Canada Ltd. cited earlier in fact alters the terms of the collective agreement reached by the parties. This is a task which I must decline.

Based on the foregoing, I conclude that the decision to lay off the grievors was within the rights of the company and therefore the company did not violate the terms and conditions of the collective agreement by exercising its rights.

As a result of these findings I dismiss the grievance.

It is so awarded .

Dated at Vancouver, B.C., this 11 day of July, 1986 .

 

Vincent L. Ready