AH - 168

AH - 168

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP RAIL

(the “Company”)

AND

CANADIAN PACIFIC POLICE ASSOCIATION

(the “Union”)

IN THE MATTER OF THE GRIEVANCE OF CONSTABLES MOLLINS, BRAITHWAITE, HUGHES, FOGARTY, GODDARD

SOLE ARBITRATOR: Professor Frances Bairstow

There appeared on behalf of the Company:

J. McGuire

And on behalf of the union:

R. Skelly

A hearing in this matter was held at Montreal, Quebec, on October 15 and 21, 1974.

The grievances of the above-mentioned constables were filed jointly since they are similar in nature. They differ in specifics of the times and dates and locations in the service when the alleged violations of the agreement occurred. The grievances state that the constables were assigned, in accordance with the terms of the agreement, to “Headquarters as required” whereupon the Company changed the “Reporting Location” of the grievors. The Union’s claim is that this change is in violation of Articles 6:05 and 6:06 of the agreement. These read as follows:

“6:05 Except as otherwise provided in Article 6:04 duty rosters covering two-week periods will be posted and will show employees’ tours of duty or reporting locations, starting times and rest days, except for those employees whose tours of duty are designated as relief, in which case only the rest days will be shown. Where starting times are shown on the duty roster they shall be the same for each day of the week. Duty rosters will commence at 0001 hours on Sunday up to and including 2359 hours on the second Saturday thereafter and will be posted forty-eight hours in advance of the commencement of the two-week period”.

“6:06 Employees may be taken from their tours of duty as shown on the duty rosters to meet the demands of the service and in cases of emergency or special assignments such as derailments, etc., and shall be returned a soon as possible to their assigned tours of duty shown on the current roster”.

Two Oral Arbitration Hearings took place on October 15 and October 21 with Professor F. Bairstow as single arbitrator. The Company position was presented by J. McGuire, Manager of Labour Relations; the Union position by R. Skelly, Counsel.

The instant dispute arose out of the re-locating of the constables as follows: Constable Fogarty’s tour of duty as shown on the duty roster was “Headquarters and as Required” on the 1600 shift. On April 25, 1974 he was advised to report to Angus Shops on April 28,1 974 to relieve an employee who was on annual vacation. This assignment lasted one day.

Constable Goddard was advised to report to Angus shops on May 24 and 25, 26, 27 and 28, 1974 instead of “Headquarters” to cover a position left vacant as a result of an employee’s absence.

Constable Mollins, Brathwaite, Taupier and Hughes were reassigned to Hochelaga Yard in connection with a rash of boxcar break-ins.

The case then involved a policy grievance brought by the union for a declaration that the company is violating the collective agreement by changing the Reporting Location of the constables from that indicated on the “Duty Roster”.

UNION’S POSITION

In oral and written argument the union claimed that the company’s changing of the “Reporting Location” of the grievors is in contravention of Section 6:05 of the Agreement. The Union maintains that no such authority is given in the contract. Furthermore, they contend that there is a very real distinction between “Reporting Location” and “Tour of Duty” as written into the contract. In addition, their contention is that the Company also confused “Roster” with “Tour of Duty”.

The Duty Roster gives (as specified in 6:05) the “starting times” and “rest days” except for “Those employees whose ‘tours of duty’ are designated as relief, in which case only the rest days will be shown”.

In the case of the instant grievors it is alleged the Company changed the “Reporting Location” from that indicated on the “Duty Roster”. In their June 12^th replies to the grievors at the Third Step of the Grievance Procedure, the Company states, “The above constables were not taken from their posted tours of duty but their reporting location was exchanged to meet the demands of the service”.

In the opinion of the Union, the Company is in effect taking the position that “Tour of Duty” is synonymous with “Reporting Location” as well as “Assignment”, “Hours of Work”, and “Days Off”.

In essence then, the Union’s case rests on the fact that the Agreement has spelled out and makes a clear distinction between “Tour of Duty” and “Reporting Location”. Furthermore, if it were intended to combine the two together giving the Company the option of either “Reporting Location” or “Tour of Duty” as it saw fit when assigning Constables to work, then different words would not be ascribed to these different activities. The clear meaning to the Union is conveyed by the Contract in separating “Tour of duty” and “Reporting Location” in Article 6:05.

During the course of the Hearings, the Union claimed that they realized that sometimes “the demands of the service” required that their members be taken from their tour of duty but that on some occasions the Company had not seen to it that the constables were returned to Headquarters. They were left stranded at odd hours and in inconvenient places where it was extremely difficult to get transportation back to their Headquarters or homes.

To support their claim that they appreciated the need for flexibility in the Company’s operations the Union stated that when an unusual occurrence such as derailment or a strike occurred which necessitated the constables’ immediate appearance at particular locations, they had voluntarily waived 6:05 and followed 6:06 so they were not demanding that the Company follow rigidly 6:05 when conditions made it impracticable to do so.

COMPANY’S POSITION

The Company for its part, agrees that the above constables were taken from their tours of duty, as shown on the duty roster, and reassigned. The Company maintains, however, that this reassignment was in accordance with the provisions of Article 6:06 which includes in its language the phrase “Employees may be taken from their tours of duty as shown on the duty rosters to meet the demands of the service”.

The Company claims that Article 6:05 was not violated in relation to this dispute since the requirements listed were all met:

1. duty roster cover two-week periods;

2. duty rosters will show tours of duty or reporting locations, starting times and rest days;

3. for relief employees, only rest days will be shown;

4. where starting times are shown, they shall be the same for each day of the week.

However, according to the Company, Article 6”06 gave the Company the authority needed:

“employees may be taken from their tours of duty as shown on the duty roster

(a) to meet the demands of the service, and

(b) in cases of emergency or special assignments such as derailments”.

ARBITRAL OPINION

In the course of the Hearing, testimony was heard to the effect that prior to the grievances being filed, the Company had in view of the Union, violated Section 6:05 on numerous occasions. The union further stated that there were other similar instances as in the instant grievances are sufficient to make their point to secure arbitral clarification. In addition, the Union stated and supplied evidence to the effect and the Company did not deny the statement that following the filing of the grievances, the Company ceased the practice of changing the Reporting Location - ostensibly awaiting the outcome of the Arbitration of the present grievances.

It is important to note that the redress the Union is seeking in the instant case is limited to a clarification from the Arbitrator as to the meaning and intent of the Agreement, notably Section 6:05. There is no question of a money award. It is guidance as to proper interpretation that is sought.

There is no need to elaborate at length on the Union’s contention that language in an agreement must be taken in its literal meaning, since it is the literal meaning that is in question here. The union, it appears, does not even object to the exercise of the test of “meeting the demands of the service” as in 6:06 so long as the employees are returned to their “Tour of Duty” and the “demands of the service” have been interpreted to be within the meaning of the term in the Agreement and not for a matter of “10 minutes” as reported in one instance at the Hearing.

Ambiguity is always a possibility here since agreements may not always be made clear to subordinates charged with day-to-day activities, particularly in an operation as fraught with unexpected occurrences as a railway whose operations may be affected by weather, strikes, or violence.

The parties’ day-to-day actions, when they run counter to the plain meaning of the Agreement’s words, evidence an intent to substitute that which they actually do for that which they said in writing they would do.

The collective agreement’s clear language should be considered as the lode-star that enables the top management of the company or the union to correct the deviations from course introduced by subordinates during their day-to-day operations.

An agreement includes not only the obligations expressly set forth but in addition all such implied obligations as are indispensable to effectuate the intention of the parties and as arise from the language of the agreement and the circumstances under which it was made.

A change in conditions does not of itself justify a unilateral action.

But the Arbitrator is persuaded that in the case of the instant Agreement, clear distinction in functions were intended by the use of different language or phrases in the Agreement. If the Company had unilateral discretion without limits, there would have been no need to specify in the Agreement both “Tour of Duty” and “Reporting Location” for two week periods. The “two week periods” were specified to provide the opportunity for both the constables and their supervisors to plan ahead on a two week basis. If “demands of the service” required daily alterations in schedules, there would have been no rational basis for including a two weeks’ roster requirement in the agreements as applied to “Tour of Duty”.

From evidence given at the Hearings it is apparent to the Arbitrator that prevailing practice in the Company has been to respect the difference inherent in “Tours of duty” and “Reporting Locations”. The instant grievances indicate there have been exceptions. To the Arbitrator then, the real meaning of these phrases should be held up against the test of whether the particular “demands of the service” required the Company’s departing from the intent of the Agreement as applied to normal operations. It appears to have deviated from this practice in the situations which give rise to the instant grievances. The necessity of deviation was not established by the Company. The actions of the Company were incompatible with the intent of 6:05.

AWARD

The grievance is upheld.

The Company action in changing the “Reporting Locations” of Constables Mollins, Brathwaite, Taupier, Hughes, Fogarty, Goddard was in violation of Article 6:05 of the Agreement.

Signed,

______________________________

Frances Bairstow, Arbitrator