AH - 170
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the “Company”)
AND
CANADIAN PACIFIC POLICE ASSOCIATION
(the “Union”)
RE: DUTY ROSTER FOR MONTREAL TERMINALS
SOLE ARBITRATOR: Mr. C.H. Laberge
There appeared on behalf of the Company:
D.W. Flicker
And on behalf of the Union:
R.M. Skelly
A hearing in this matter was held at Montreal, Quebec, on the 21st day of February, 1977.
On October 11th, 1976, the Canadian Pacific Police Association advised the Company that having failed to agree on the choice of an Arbitrator, it was requesting the Minister of Labour of the Federal Government, to nominate an Impartial Arbitrator.
On November 15th, I was appointed Impartial Arbitrator, in this matter, by the Minister of Labour and all parties have been so advised.
The Arbitration meeting took place, Monday, February 21st, 1977, in the conference room of the Canadian Pacific, Windsor Station, Montreal.
WITNESSES HEARD AND DOCUMENTS SUBMITTED
For the Association:
Mr. F. James, President of the Association.
Mr. E. Laramé
Mr. R. Jolly
U-1 Statement of facts signed by Me R.M. Skelly, solicitor for the Company
U-2 Copy of the present Collective Labour Agreement
U-2A) Copy of the Memorandum of Agreement between the two parties, signed July 9th, 1976
U-3 Copy of the Collective Labour Agreement -I.D.1
U-4 Copy of Duty Roster, Montreal Terminals
U-5 Copy of letter to Mr. J.C. Collins from Mr. J.C. Machan
U-6 Copy of Duty Roster with note attached from Mr. J. Young
U-7 Comparative Statement of three Duty Rosters: the present Roster, the Company’s Suggestion, the Association’s Suggestion.
U-8 Copy of Duty Roster, Montreal Terminals, remitted to Mr. Jolly on February 10th, 1976
U-9 Grievance letter dated February 13th, 1976, signed by Mr. Jolly, District Representative, Canadian Pacific Police Association.
For the Company
Mr. M.J. Young
Mr. J.M. Mickel
Mr. J.E. Cameron
C-1 Statement of Facts signed by Me D.W Flicker, solicitor for the Company
C-2 Memorandum of Settlement between the two parties, dated November 28th, 1974.
THE GRIEVANCE
The first reference concerning the grievance at hand is included in the letter of the Association (U-9) signed by Mr. R. Jolly and addressed to Mr. J.G. Collins, Superintendent, Department of Investigation:
“This grievance refers to duty roster, Montreal Terminals Sergeants and Constables, posted on February 12th 1976 covering period of February 22nd to February 28th, 1976 inclusive.
The Association contends that this roster is in total contravention of Collective Agreement I.D.3 between Canadian Pacific Limited and Canadian Pacific Police Association.
The subject duty roster showing vacancies numbered, 1-14-15-16 inclusive, Tormon Assembly, are in contravention of Article 4, Section 4:01 of the Agreement, in that said vacancies being of a known duration of more than sixty (60) days were not posted to bid to the membership, Atlantic Region.
It is the Association position, that these four vacancies at Tormon Assembly must be posted for bid as stipulated in Article 4, of the Agreement.”
Later, the position of the Association was shifted somewhat to end up as finally reported in the Statement of facts (U-1) submitted to the Arbitrator at the beginning of the hearing by the Counsel for the Association.
The present Collective Labour Agreement covers the question of joint statement to the Arbitrator as follows:
Clause 11.14
“The parties will provide the arbitrator with a Joint Statement of Issue. This Joint Statement of Issue shall contain the facts of the dispute and reference to the specific provision or provisions of this agreement where it is alleged that the Agreement has been misinterpreted or violated. In the event that the parties cannot agree upon such Joint statement either or each upon notice in writing to the other may submit a separate statement to the arbitrator.”
In this particular grievance, the two parties could not arrive at an Agreement on a Joint Statement of Issue. Consequently, it is important to have on record the two positions taken by the parties:
STATEMENT OF ISSUE FROM THE ASSOCIATION
“The fact is that on February 12th 1976, a new roster with a system of rotating shifts and days off was posted by the Company which roster changed the existing established system of rotating shifts and days off in effect for the last three years. This system had been negotiated between the union and the company.
The Company maintains that despite its undertaking and its having previously negotiated the established system of rotating shifts and days off that it is no longer obliged to do so and may change it.
The association position is that pursuant to Article 6.08 which states that system of rotating shifts and days off shall be established where practicable, the company agreed that for the Montreal Terminals Division, it was practicable and that it negotiated with the Association a system of rotating shifts and days off. The system was after negotiation put into effect for three years until arbitrarily changed without consultation or negotiation by the Company. The Association grieves the application, interpretation and administration of Article 6.08 and claims that the company obliged itself to negotiate the system of rotating shifts and days off with the Association”.
STATEMENT OF ISSUE FROM THE COMPANY
“The fact is that on February 12, 1976 the Company posted a revised Montreal Terminals duty roster which became effective on February 22nd, 1976.
The Association contends that the Company put the aforesaid roster into effect in contravention of the application, interpretation and administration of Article 6.08 of the Collective Agreement and that the Company failed to negotiate such change with the Association as it was under a duty to do so.
The Company contends that the revised roster was put into effect without any breach of the Collective Agreement.”
It is obvious to the Arbitrator that the issue before him is to rule if the Company has the right to put into effect or modify a Duty roster for the rotating shifts and assigned rest days for personnel covered by this bargaining unit at the Montreal Terminals of the Company without negotiating same with the Association.
The only reference to the Collective Labour Agreement by both parties in their own Statement of Issue, is the Article 6.08 which reads as follows:
“A system of rotating shits and assigned rest days will be established by the Company except where impracticable.”
Regarding some of the evidence submitted to me I wish to make the following remarks:
1. The Memorandum of Agreement (U-2A) between the two parties was signed on July 9th, 1976 and retro-active to January 1st, 1976. This document has no reference to any changes to Article 6.08.
2. The Memorandum of Agreement (C-2) between the two parties signed November 28th, 1974, became into force January 1st, 1975 for a period of one year. No amendment of Article 6.08 is recorded in this document.
3. The first Collective Labour Agreement (U-3) between the two parties involved in this grievance was signed June 6th, 1973, was retro-active to January 1st, 1973 and was in effect for a period of two years, ending December 31st, 1974. In this original Agreement, Article 6.08 is identical to the one referred to in the present Collective Labour Agreement (U-2).
4. During this lapse of time, from January 1st, 1973 to February 1976, many changes took place in regard to the roster of Montreal Terminals: U-4, U-6, U-7 and U-8 are enough proof of these changes.
However, none of these changes resulted in a Special Memorandum of Agreement between the two parties.
5. In the course of the hearing the Counsel for the Association deposited a copy of a letter (U-5) originating from the Company. This letter, dated December 2nd, 1974, was written on a Company Internal Correspondence Letterhead and it is addressed to Mr. J.G. Collins, Regional Superintendent, and signed by J.C. Machan, with two dots after the name, an internal code procedure signifying that the letter was dictated and signed by some other person; in this particular case, it is Mr. J.M. Mickel who signed the letter under the same J.C. Machan with his own initials at the bottom of the document. In addition, a copy of this letter which was marked “private” has been sent to Mr. F.F. James, President of the Association.
The text of the letter is as follows:
“The just completed negotiations with Canadian Police Association included a discussion of Article 6 of Agreement I.D. 1. It was developed that the main complaint of the Association appeared to be the Montreal Terminals Duty Roster. It was , therefore, decided that his roster would be the subject of negotiations between the National Executive of the Police Association and the Atlantic Region Officers concerned.
Sub/Inspector J.M. Young who participated in the negotiating session is aware of the problem areas talked about. It is, therefore, requested tat meetings be held with the Canadian Pacific Police Association as soon as possible and at a time and date convenient to both parties. It would be appreciated if you would keep me apprised of development in this connection.”
The word “negotiations” has been used in this letter in reference to further talks with the Association. We have to take this letter in the context of a round of negotiations which have just been completed for the renewal of a contract. Mr. Mickel who wrote the letter use the word” negotiations” very loosely. I have to admit.
However, I cannot agree with the Counsel of the Association that this document is the equivalent of a Letter of Agreement between the two parties stating that Montreal Roster should be negotiated between the Company and the Association. What about the other Roster that the Company has worked out and discussed with the Association? Are there any other similar documents that could be interpreted as Letters of Agreement? I doubt very much because none have been submitted by the Association.
If negotiations were involved regarding duty rosters, why then the Memorandum of Agreement signed November 28th, 1974 has no reference whatsoever to further negotiations that should take place immediately after its signature. Furthermore, this same Memorandum of Agreement stipulates in topic #10 the following information:
1 - “The foregoing changes are in full settlement of all requests served upon Canadian Pacific Limited and the Canadian Pacific Police Association during and subsequent to October, 1974 and all other matters in dispute as of the date of signing the Memorandum of Settlement.
2 - Any existing rules or practices will not be amended except where specified in this Memorandum of Settlement.
3 - The parties will enter into a memorandum of Agreement as soon as possible for the purpose of amending the Collective Agreement in conformity with the foregoing changes.”
No reference at all on November 28th, 1974 to the fact that the two parties have agreed to negotiate a Montreal Roster.
Consequently, I cannot interpret this letter (U-5) in any other way that the company was willing to carry on its policy of discussing with the Association, as soon as possible the Montreal Roster which apparently had not been satisfactory to the Association.
6. During this same three year period, documents submitted at the hearing and specially testimonies from both sides made it abundantly clear that discussion from time to time took place regarding changes in the roster.
That the Association took for granted these discussions being negotiations, it certainly did not substantiate same with a written Joint Agreement which should have been incorporated in the existing Collective about Agreement or Memorandum of agreement in force at that particular time.
7. The Company stand on the issue has been spelled out by its three witnesses: The management all through these years was willing and actually did discuss various changes in the said roster as often as they were made for the purpose of explaining to the employees concerned the reasons behind the changes.
It was stated by the witnesses of both sides and backed up by Exhibits that the Company advised the Association, well in advance of the changes to take place. Again this was done with a view of giving all the time required to meet together and discuss the matter.
In the last instance the Company through Mr. Young submitted changes in the roster for the Montreal Terminals of February 10th, 1976. This document was remitted to Mr. Jolly of the Association with the information that these changes were to go into effect February 22nd, 1976, twelve days later.
On each occasion the Company proceeded in this fashion with an open mind with the view that should any objections be made by the Association and its members, the Company was willing to look into the matter and modify their project if and when criticism were warranted and modification feasible.
The fact is that on some occasions in the past, these discussion were fruitful in the sense that suggestions made by the Association were implemented.
My comment is that I think this whole procedure of discussing the Duty Roster with the Association before implementation, is good Management and good employer-employee relations.
As a matter of fact such procedure is going beyond the letter of Article 6.08 of the Agreement. This paragraph of the Agreement does not call for a discussion between the two parties in this regard.
DECISION
In view of all the documents submitted and the testimonies of the various witnesses and the reference to the Collective Labour Agreement in existence at the time the grievance was submitted, I have to reject the grievance presented by the Canadian Pacific Police Association.
Respectfully submitted in Montreal on the 25th of March,1977.
C.H. Laberge, Arbitrator