AH - 175
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the “Company”)
AND
CANADIAN PACIFIC POLICE ASSOCIATION
(the “Union”)
IN THE MATTER OF THE GRIEVANCE CONCERNING BULLETIN #55
SOLE ARBITRATOR: T.C. O’Connor
There appeared on behalf of the Company:
Mr. J.A. McGuire -Manager, Labour Relations
Mr. M.M. Yorkston -Labour Relations Officer
Mr. J.M. Mickel -Assistant Chief Department of Investigation
Mr. A.E. Schmidt -Superintendent, System, Department of Investigation
Mr. J. Vibert -Staff Sergeant Department of Investigation
And on behalf of the Union:
Mr. M. Doucette -President
Mr. J.G. Conway -Secretary
Mr. P. Leblanc -Atlantic Region, District Representative
Mr. C. LeCorre -Lawyer for the Association
A hearing in this matter was held at Montreal, Quebec, on the 23rd day of January, 1980.
The parties in this dispute prepared a Joint statement of Issue for the Arbitrator, which states as follows:-
“Bulletin No. 55 requested application for two new positions of Constable located in Montreal Terminals to perform miscellaneous uniform duties as assigned with hours of service to be on a rotating basis on the regular Montreal Terminals rotating duty roster.
It is the position of the Association that Bulletin No. 55 was in violation of Article 4.01 in that the two new assignments created, nos. 50 and 51, were listed as intermodal and relief as required and as they were of a permanent nature, bulletin no.55 should have read “Territory to be covered – Lachine Intermodal”.
It is the position of the company that the two positions in question were assigned to the rotating duty roster in accordance with Article 6 and that there was no violation of the Collective Agreement.”
The hearing was held in Montreal, and upon completion of the submission of the company, the union requested leave to submit a response to the employer’s written submission and argument. The arbitrator concurred the union’s statement was submitted to the Arbitrator with a copy to9 the employer and the employer acknowledged receipt of the union’s submission and responded to that submission.
In as much as this is a complicated issue, a summary of both submissions is set forth in this award.
The company stated that it posted Bulletin No.55, advertising two permanent vacancies in the position of Constable with the location of Montreal Terminals and the assigned hours of service to be on a rotating shift basis. The duties were shown as miscellaneous “uniform” duties as assigned and the territory to be covered as Montreal Terminals. The Bulletin, Exhibit 1, states as follows:-
“Exhibit #1
CANADIAN PACIFIC LIMITED
MONTREAL, 16 May 1979
BULLETIN - SERGEANTS - CONSTABLES - 55
In accordance with Article 4 of Collective Agreement I.D. 5, between Canadian Pacific Limited and Canadian Pacific Police Association, applications will be accepted by the undersigned up to 26 May 1979
CLASSIFICATION: Constables (2)
LOCATION: Montreal Terminals
PERMANENT/TEMPORARY: Permanent
ASSIGNED HOURS OF SERVICE: Rotating Shifts
NATURE OF DUTIES: Miscellaneous uniform duties as assigned
Territory to be covered: Montreal Terminals
J.G. Collins
Superintendent - Atlantic Region
Department of Investigation”
The union’s position is that Bulletin No.55 is contrary to the provisions of the collective agreement and particularly Article 4.01 set forth hereunder:
“Bulletining of Vacancies
All vacancies for a known duration of sixty calendar days or more which the Company requires to be filled shall be bulletined promptly to all employees over the seniority district. Bulletins shall indicate location, whether assigned or unassigned, the territory to be covered, classification and, if temporary, the approximate duration. Bulletins will be posted in places accessible to all employees affected. Employees shall be allowed ten calendar days in which period to file applications with the designated supervisory officer and an appointment shall be made within five calendar days thereafter. The appointee shall commence his new assignment not later than fifteen calendar days following the date of his appointment, such date to be extended only on mutual agreement between the Company and the Association. Such vacancies may be filled temporarily by the Company pending an appointment. Copies of such bulletins and the name of the successful applicant shall be furnished the local Association representative.”
It is the position of the company that Bulletin No.55 is not in violation of Article 4.01 of the collective agreement but rather that the two positions in question were assigned to the rotating duty roster in accordance with Article 6.08, and that there was in fact no violation of the collective agreement.
Article 6.08 states as follows:
“A system of rotating shifts and assigned rest days will be established by the company except where impracticable.”
The company states as follows:
“4. As we understand the union’s position, it is their contention that the two vacancies advertised on Bulletin No.55 were in fact new positions which required coverage on a permanent basis and which therefore had to be bulletined in accordance with Article 4,01. To this point we are not in disagreement with the union; however they further contend, as we understand it, that inasmuch as these positions are of a permanent nature, they should not have been included on the Montreal Terminals Duty Roster, but rather should have been shown as positions headquartered at Lachine Intermodal, a location where in fact additional police were required, necessitating additional Constables on the Montreal Terminals staff. To put it clearly, the union is saying that the two positions are required at Lachine Intermodal and that, rather than be assignments that rotate on the Montreal Terminals duty roster, they should be permanently headquartered at Lachine Intermodal and “rotate” between themselves at that point.
5. It is important to this dispute that the background of the Montreal Terminals’ Duty Roster and the way it operates be fully understood
6. BACKGROUND
From the time of negotiating the first agreement with the Police Association in 1973, the position of both parties was that there would be duty rosters established at all locations where there were Constables employed and that the Constables would rotate throughout the various assignments shown on the roster. Attached as Exhibit No.2 is a specimen of the Montreal Terminals’ Duty Roster, which format was subsequently put into effect in 1973 and was used as a model for duty rosters across the system. At the time there were a few jobs which were excluded from rotation on the roster, because of certain circumstances relating to the individuals who had been occupying them for some time. However, as will be discussed later, it has always been the Company’s position that Constables would work on a rotating roster basis and would not be permanently assigned to a specific location on a permanent basis.
7. OPERATION OF ROSTER
In order to assist in explaining the nature of the roster, attached as Company Exhibit No.3 is a copy of a Montreal Terminals Duty Roster which shows the tours of duty in effect prior to the posting of Bulletin No.55 (the Bulletin in dispute). In making reference to this Duty Roster, we would first point to Article 6.05 of the Collective Agreement which outlines the method of operation of a Duty Roster. Article 6.05 reads as follows:
‘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 regular work day between an employee’s rest days, except that this will not apply to relief positions, nor will it apply when the duty roster must be adjusted due to additions or deletions of staff. 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. Upon request, District Representatives will be supplied with a copy of duty rosters posted in their respective Districts.’
8. Article 6.05 requires that these duty rosters show the employee’s tours of duty or reporting locations, starting times and rest days and if we make reference now to Exhibit No.3 we can see how a rotation on a roster is accomplished. For example Position No.34 is shown as “Headquarters Windsor Station Complex” with the hours of duty being relief on Sunday and Monday, days off Tuesday and Wednesday, and 0800 to 1600 Thursday, Friday and Saturday. On Saturday, the duty roster terminates. However, Constable Harrison, in the following week’s roster, rotates to position No.35, and it can be noted that his tour of duty continues on the day shift 0800 to 1600 through to Wednesday of that week. The operation of this duty roster is required under Article 6.08 of the Collective Agreement, which reads:
“A system of rotating shifts and assigned rest days will be established by the Company, except where impracticable.”
9. Attached as Exhibit No.4 to the Company’s submission is a copy of the duty roster covering Montreal Terminals area subsequent to the addition to the addition of the two positions in question. It will be noted that these new positions, numbers 50 and 51 are used to provide coverage at Lachine Intermodal and for relief services as required. The Constables who were the successful applicants to Bulletin no.55 would not be assigned solely to positions 50 and 51. They would, along with other Constables shown on the Montreal Terminals’ roster, rotate throughout positions 14 to 51 inclusive.
10. There is no dispute that it was the need for additional coverage at Lachine Intermodal which gave rise to the bulletining of the two positions specified in bulletin No.55. However, the Company does not agree that Article 4.01 of the Collective Agreement requires that the positions he permanently headquartered at the precise location where the duties are required. Article 6.08 of the Collective Agreement (quoted above) requires that a system of rotating shifts and assigned rest days will be established by the Company except where impracticable. The union must, therefore, be saying that the two positions established by Bulletin no.55should have been established so that they rotated as between themselves at Lachine Intermodal and nowhere else!
11. In this respect, the Union’s position is completely in conflict with the overall concept of a duty roster which has been in effect for many years. This can be shown by an illustration. Let us assume there was a need for two additional Constables in Windsor Station Complex. We submit that these two positions would be bulletined the same as the two positions which are in dispute. Basically, the constabulary staff has to be increased by two employees. The bulletin would be exactly the same as Exhibit 1. However, the duty roster would show six positions at Windsor Station Complex instead of four, as per Exhibit 3, would rotate through these two new assignments, as well as the others. To suggest, as the union is suggesting, that the two new Windsor Station Complex positions would be permanently assigned to the same employees would obviously be completely illogical.
12. In order to analyze the union’s contention somewhat closer, we must refer to Article 4.01 previously quoted. Article 4.01 requires that:
(1) All vacancies for a known duration of sixty calendar days or more shall be bulletined.
(2) Bulleting shall indicate the location of the vacancy.
(3) Bulletins shall indicate whether the vacancy is assigned or unassigned.
(4) Bulletins will indicate the territory to be covered.
(5) The classification is to be shown.
(6) If temporary, the approximate duration of the position is to be shown.
NOTE:
It should be mentioned that the basic seniority territory for this bargaining unit is the Region which, in the instant case, means the Railway’s Atlantic Region, which encompasses all of Quebec. New Brunswick, and Nova Scotia. This means in the case at hand, that the bulletin would be posted not only in Montreal Terminals but also for employees at other locations on the Region such as Saint John, N.B. and Quebec City.
13. As can be seen, Article 4.01 deals with vacancies and specifies what information is to be shown on the bulletin. It does not specify any limitations in the bulletin. The purpose of the bulletin is to describe an available vacancy and place that vacancy before the members of the bargaining unit so as to allow them the opportunity to exercise their seniority to such vacancy if they so desire. That is the purpose and intent of Article 4.01. Article 4.01 does not describe the vacancy per se, rather the bulletin performs this task. Thus if we compare Bulletin No.55 which the union states violates Article 4.01, with the requirements of Article 4.01, we shall see that the bulletin does, in fact:
(1) Bulletin a vacancy of sixty calendar days or more.
(2) Indicates the location.
(3) Indicates whether assigned or unassigned (not material to this dispute).
(4) Indicates the territory to be covered, the classification and specifies that the positions are permanent. Therefore, the bulletin is in full conformity with Article 4.01.
14. Article 4.01 does not stipulate how a position will work, i.e. whether it will rotate on the roster or whether it will be permanently established at a fixed location. It must be remembered that Article 6.05 clearly provides for additions being made to the roster. The only way that can be achieved is by bulletining additional permanent positions required on the roster through the means of Article 4.01. Otherwise the company’s hands would be tied in appointing additional staff, unless of course, the union is suggesting that we should negotiate how any new position will function. If this is what they are suggesting, then there would have to be clear language in the agreement to support this contention, which we submit is not presently there!
15. Attached as Exhibit No.5 to this submission is a copy of a letter dated July 23, 1979 from the Secretary, Canadian Pacific Police Association, to the Chief, Department of Investigation. Wherein the union puts forth their position. I would refer to the fourth paragraph of that letter, which states that:
“The Association contends that Bulletin 55 should have read; Location - Montreal Terminals, Territory to be covered - Lachine Intermodal;…”
While this may be what the union would prefer insofar as the assignment of the two constables in question is concerned, nevertheless it is up to Management to determine what work is required to be done, and how it is to be done, consistent, of course, with any constraints of the Collective Agreement.
16. In the instant case, as can be seen, the Collective Agreement does not specify that the company must assign Constables only to the location where coverage may be required. Rather it has been the practice, which practice is reflected in the terms of the Collective Agreement, that Constables perform their duties at various locations within the Greater Montreal area, their work schedule in effect being the Montreal Terminals Duty Roster. In the instant case, the Company simply added two Constables to the Montreal Terminals Duty Roster to ensure that there was sufficient staff to look after additional requirements for police coverage at a particular area within the Montreal district.
17. Duty rosters are not static! They are changed by the Company as conditions require. Article 6.05 clearly contemplates changes being made in the duty roster. Note particularly the words in 6.05, reading:
“…nor will it (starting times) apply when the duty roster must be adjusted due to additions or deletions of staff.”
To suggest that the Company cannot add or subtract positions from the duty roster would be to suggest that the Company does not have the right to assign the constabulary staff as required to best meet the needs of the service in the most efficient way possible.
18. If it were the intent that the Company’s prerogative to assign duties as required be restricted as the union suggests, very clear and precise language in the Collective Agreement would be required. In fact, such language can be found in Article 4.13 of the Collective Agreement. Article 4.13 states that certain specified positions of Constable will be bulletined so that an individual duty roster will be operated at specific locations. Article 4.13 came into effect July 1, 1979, and the background to that provision is important to the overall understanding of this dispute. Prior to 1979 there were no restrictions contained in the collective Agreement requiring that Constables be assigned only to a specific area. The company had the prerogative of determining how coverage would be arranged.
19. Subsequently, when the contract became open for negotiation, the union presented a demand that all positions be assigned a specific location on a “bid” basis. The union demand of October 6, 1975 read:
“4.13 That all established positions presently in existence in all regions, will be posted for bid to employees in the area concerned, said bid jobs will not be region wide. Such jobs as Auto Patrol and Mobile Escort work will not be involved in the bid system. Positions presently occupied by members of the bargaining unit will not be affected until such time as presently provided for under article 5; section 5.04. In the event that no applications are received, the most junior employee will be assigned.”
20. It was the union’s intent, as explained during the negotiations, that employees be permitted to bid for the specific location where they preferred to work, and that each reporting location would maintain a distinct rotation, separate from other reporting locations. This demand was resolved on the basis of a trial period being agreed to covering various locations across the system. The letter of understanding dated April 14, 1976, setting forth the conditions of the trial period, is attached as Exhibit No.6.
21. The union resubmitted their demand for full “bid” positions on October 1, 1977, but the Company did not accede to the demand. It was resubmitted by the union October 1, 1978, as a part of their overall demands for contract changes. The union was adamant that there would be no settlement unless their demand for “bid” positions were granted. In our view, it was this demand more than any other which led to a conciliation officer being required, and after lengthy negotiations, the present article 4.13 was reached. Article 4.13 does not state that all positions will be bulletined as “bid” positions. If specifies certain location, not including Lachine Intermodal, and in fact, clause 4.13.5 (b) specifies that if less than 75% of the bulletined positions are bid for, then all positions at that particular location will remain on the main duty roster.
22. It is only to the extent of Article 4.13 that the Company has relinquished its right to determine how positions are to be established; that is , whether on a main duty roster or whether by setting up a permanently established position at a specific work point. There are no other restrictions in this respect contained in the Collective Agreement.
23. The purpose of the foregoing is to show that through this arbitration hearing the union is now endeavouring to obtain a demand which they failed to achieve to their full satisfaction through many rounds of negotiation. As shown previously, there is no contractual support for their contention in this case.
24. In summary, we submit that Bulletin No.55 was issued in conformity with the specifications of Article 4.01 of the Collective Agreement. The positions described in Bulletin No.55 were properly on the Montreal duty roster as opposed to being established at a fixed location. The only restriction on the Company’s right to determine where and in what manner positions are to be established is Article 4.13 of the Collective Agreement, which article does not apply to the positions in dispute. There is no contractual obligation to negotiate the establishment of new positions with the union.”
The Association, in opening their submission in response to the employer’s submission, dealt with the matter of extrinsic evidence and states as follows:-
“…extrinsic evidence regarding past negotiations of the present collective agreement and preceding collective agreements from 1973 on is not admissible proof for the purpose of the present arbitration. The Union’s position is not that such evidence would be unfavourable to its position but only that it would bring to the arbitrator useless and inconclusive evidence.
As a matter of fact, the Union has a very different interpretation of the past negotiations and discussions but as the position of the Union regarding what happened during past negotiations would have the effect of confusing the issue, the Union prefers to state and sustain in accordance with the jurisprudence, its position that such evidences should not be admitted. Having established this point, the Union now contends that if we proceed to examine the real issue in the present case, the question will be more simply stated.
We would like to point out that our objection relates more specifically to paragraphs 5, 6, 11, 18, 19, 20, 21, 22 and 23 of the written submission of the company and relates also to its verbal submission made during the hearing.
Such submission was made in order to demonstrate what the real intention of the company was during past negotiation and contracts. We cannot agree with the pertinence of such submissions when the intent of the parties must be found only in the actual text of the present collective agreement and the actual practice in relation to those texts by the company.
We would like to submit a few decisions in order to sustain our point of view on the matter.”
The Association states that it is a well established principle of law that a contract must be interpreted by its own terms and applications rather than proceeding discussions or negotiations. As to the issue in dispute, the Association states:
“The company posted a bulletin, no.55, requesting applications for two new positions of constable and it is the position of the Association that the said bulletin was in violation of Chapter 4 of the collective agreement and that the two new assignments created were not properly listed.
The Association submitted evidence through a witness to the effect that bulletin 55 was posted in contravention of the spirit and purpose of the collective agreement itself; informing the employees of precisely what job was available.
The manner in which the company drafted its posting notice in the present case, was such as to preclude that any member of the Association posted in Montreal know what he was applying for; it could even be his own position.
If we refer to the very basic terms and intent of Chapter 4, we have two questions, we would like to examine the submission of the company as drafted in this regard.
We are first in agreement with paragraphs 1 and 2 of the company’s contention. We must however strongly disagree with contention no.3 in that the company does not properly identify the problems involved. It is not, as such, the assignment to the rotating duty roster which is contested by the Association as can be seen in the joint statement of issue and in the grievance itself, but rather the way the company chose to describe the two new positions in question.
As to paragraph no.4 of the company’s contention, we do agree with the company’s statements that the two new vacancies were in fact new positions, which required coverage on a permanent basis and we are rather surprised that the company affirms at this point in it’s paragraph 4, that they are not in disagreement with the Union. The company is however confusing the issues when it affirms that the position of the Association is that those two new positions should not have been included on the Montreal Terminals Duty Roster. The only position taken by the Association on this point is that those two positions were not properly described since they refer only to Lachine Intermodal. The company does not contest this fact. What the Union does not understand is why the company then states that those positions should rotate on the Montreal Terminals Duty Roster as a whole, rather than be fixed positions as are many of the other positions on the general Duty Roster. It is clear that those two positions are fixed as opposed to the rotating assignments on the Roster such as those indicated as “escort” or “relief as required.”
As for paragraphs 5 and 6, we disagree with statements based on 1974 negotiations.
As to paragraph 7, the company is again pleading the functioning of the Roster when it states that such roster concerns only unassigned jobs, which therefore would not include a good proportion of the assignments appearing on such Roster. This appears to be contradictory.
We do not disagree that part of this Roster included rotation among the jobs described. However, as the only incontracdicted evidence establishes, the Roster is divided in a proportion of about half and half between rotating jobs and fixed jobs.
As to the company’s position based on Section 6.05 of the collective agreement to the effect that the duty Roster must be adjusted due to additions or deletions of staff, we would like to make the following statement. First, we do not disagree that the addition of staff can be shown on such Roster. But, we are not in the present case in a situation where the company wants to add staff to an existing position but rather wants to create new positions. This fact is admitted by the company in the third. Fourth and fifth line of its paragraph 4.
As to paragraph 8, it is simply not pertinent to the present case.
As to paragraph 9 of the company’s submission, our first point is that the company seems to agree that positions 1 to 14 are not rotating positions and that we must find an answer elsewhere in the collective agreement. As noted in the company’s paragraph 4 and corroborated by their paragraph 9, the job positions in litigation (nos. 50 and 51) are definitely new positions. We can not understand therefore how company can maintain on the one hand that these two positions are simply added duties to existing jobs on the duty Roster and on the other hand that they are in fact creating new jobs.
As to paragraph 10, it is submitted the company changes its position that it is creating additional coverage at Lachine Intermodal rather than two new positions as stated in their own paragraphs 4 and 9 and again returns to the position that the union is contesting the application or functioning of the system of rotating shifts rather than the real issue as above outlined.
The last sentence of paragraph 10, we submit, is in fact an admission by the company on exactly what the real issue is, while ignoring the true basis or issue raised by the grievance itself (the manner the two new positions should have been posted). There is a difference between how two new positions should be posted and how two new positions should be dealt with on the Roster once established. We do affirm that the company is contradicting the collective agreement on both issues in any case.
As can be seen from exhibit 4 of the company, there are duties classed as “relief as required”. As stated by the company itself, the two duties involved in the present instance are not of this type but are in fact two new positions. Nothing prevents the company from adding to an existing positions called as “relief as required” but as admitted by the company itself, this is not what was done here and it is not an issue.
The example used in paragraph 11 aside from being extrinsic evidence is of no help in deciding the present grievance because it shows only how the company would fulfill a need for two new additional states itself, the cases here involve two new positions.
As to paragraph 12 of the company’s contention, we totally disagree with the comments made whereby the company could show, in a posting location: “Canada” Territory to be covered: “Part of Canada”. Such an extreme would be clearly defeating the purpose and spirit of the collective agreement and we may add that we are close to such an extreme in bulletin no. 55.
We agree with the company (in paragraph 13) that the purpose of the bulletin is to describe an available vacancy so as to allow the members of the Association the opportunity to exercise their seniority on such vacancy if they so desire. But reading the bulletins as drafted by the company and posted herein, it is obvious that they are not in accordance with such purpose since as drafted a member cannot even know if he is applying for his own job. “Montreal Terminals” as used can describe any position on the Duty Roster from East-end of Montreal to the West-End and positions distant by over twenty miles.
A basic principle of interpretation, we submit, allows us to conclude that when the parties use terms such as “location” and “territory to be covered” as two very different things in the very same section of the collective agreement, they certainly cannot be interpreted as indicating the same geographic place, otherwise it one or the other would be redundant.
In opposition to paragraph 14 of the company’s submission, the Association contends that the company’s hands are not tied but simply that certain basic rules must be followed in the posting and creation of new positions under the heading of “relief as required” when needed.
In paragraph 15, we submit that the company again confuses the issue. We are not contesting the right of the company to create new position but submit only that the right is subject to certain rules written down in the agreement which must be followed. Furthermore, we do claim that, as stated by the company, management has not the right to determine what work is required to be done. We merely submit that those rights should be exercised with some consistence in accordance or subject to the constraints of the collective agreement.
We do not agree with the affirmations made in paragraph 16 that the duties listed are within the Greater Montreal area. firstly, it has been shown to the arbitrator that according to the duty Roster, such is not the case and secondly, because “the Greater Montreal area” is a new expression, different from “Montreal Terminals” and the arbitrator must presume that the parties, when drafting Chapter 4 and using the terms they did, were not utilizing a futile or superfluous clause or term.
The company is contradicting itself when it affirm that it was only adding additional staff to the Montreal Terminals and in the same sentence is affirming that it needs people to look after additional requirements for police coverage at a particular area within the Montreal district. At this point, it is interesting to note that Lachine, because of its geographical situation (i.e. distant from all other points) is considered a particular area different from the Montreal district.
It is also interesting to note that in the same paragraph 16, the company in order to sustain its position has to use three different expressions: “Greater Montreal Area”, “Montreal Terminals” and “Montreal District”. The contract uses only one of these terms.
Paragraph 17, we submit, has already been dealt with above. We do agree that Duty Rosters are not static but here again the company confuses the issue. We are not in a situation where there is an addition of staff to an existing position or a deletion of staff, we are in fact dealing with the creation of two new positions, which fact the company does not deny.
As to paragraphs 18, 19, 20, 21, 22 and 23 of the company’s submission, we would rather not confuse the issue any more by stating our position on what exactly the negotiations were over the past seven years and rather reaffirm our position in law as the pertinence.
Therefore in order to answer the questions in issue before the arbitrator in the present case, we would like to examine bulletin 55 in the light of the wording of section 4.01 of the agreement.
The pertinent wording of article 4.01 reads as follows:
“Bulletins shall indicate:
1. locations
2. whether assigned or unassigned
3. the territory to be covered
4. classification
5. if temporary, the approximate duration.”
Bulletin 55 dated May 26th, 1979, is only drafted on the following basis:
1. Location: Montreal Terminal:
On that point, we do not disagree with the company unless the company disagrees with what follows
2. Whether assigned or unassigned
Since every job is rotating as to the hours of service for the employees in conformity with the only evidence given the arbitrator demonstrates, we must therefore object to the use of those words as referring to the hours of service. Bulletin 55 is badly drafted at least on this point because the intention of the parties in using the words “assigned” or “unassigned” can only refer to the existence or non-existence of a fixed assignment as to territory. Since the general duty Roster shows that there is no such thing as fixed hours, we do not understand the position of the company that those words refer to the hours. Moreover, “assigned or unassigned: follows the word “location” and should be related to that word or to the following expression in the above-mentioned article “territory to be covered”.
3. The territory to be covered
This third term used in 4.01 clearly refers to the work territory assigned to an employee. The term cannot be considered to have the same meaning as “location” unless the word location in the article is used to describe a very restricted area. in other words, if the company refers to a general location such as “Montreal Terminals” which includes several points (miles apart), it would defeat the terms used in the agreement and render them useless in application if the words used to identify that restriction mean the same as those used to identify that restriction mean the same as those used for restriction referred to in number 1 above (territory). As appears from exhibit of the union, there were no applicants on the posting number 55 in question for the simple reason that members of the Association could not know within a radius of twenty (20) miles which job they would have applied for including their own.
Restrictions numbers 4 and 5 of article 4.01 are not disputed.
The company may affirm that it respected one or more of the restrictions stated in Section 4.01 but the company definitely cannot affirm that it respected all of them, in it’s bulletin 55. The question which must be answered is what the company is doing in its bulletin no.55 (i.e. creating a new job or adding two existing positions). As drafted, we cannot know if the company is creating a new job or simply adding constables to existing jobs. However the company admits in its own submission that it is creating new jobs, the violation of Section 4.01 is even clearer therefore.
The only proof made before the arbitrator demonstrates that there are only two types of territories: assigned (fixed) and unassigned (not fixed). We do not contend that there is no such thing as “unassigned territories” or “duties as required”, but we do contend that once the company creates two new jobs at a precise geographical point, it cannot deliberately confuse the members of the Association by not stating same in the bulletin.
This becomes increasingly clear when we take into consideration that Lachine is a distinct suburb of Montreal and was already considered on the Duty Roster as an independent territory to be covered. On exhibit 4 and on the equivalent exhibit given by the Union, is can be clearly seen that “Lachine CP Express” is considered a territory to be covered in itself. We do not understand how the company while recognizing that Lachine is a territory in itself, can create two new positions in the same suburb city and state that they are not creating new jobs.
Section 4.01 has a very simple purpose: to know what the vacancy is for. Bulletin 55 does not comply with 4.01 or does but in an absurd fashion; absurd to the point that a member can be applying for his own job or for a job more than twenty miles away from where he thinks. Why not then indicate “location”: Eastern Canada, “Territory to be covered”: Quebec?
There is a well established principle in arbitration cases that an interpretation of a collective agreement must be reasonable. The interpretation of 4.01 made by the company will lead to conclude that 4.01 is useless and that the only rule existing in the present collective agreement, a rule which ignores the terms chosen by the parties themselves namely a total unreasonable management rights power without restriction.
Proof was also made before the arbitrator that the company in two other cases did not take the position of such an unreasonable application. It was also shown that Lachine was in the past a distinct “location”.
The first exhibit submitted to that effect is bulletin no.87. In this bulletin, it is interesting to note that the company wrote as location “Toronto-Ontario” rather that “Ontario” alone, recognizing the fact that the location has to have some precision.”
THE AWARD
The parties placed before the Arbitrator a Joint Statement of Issue. the dispute concerns the issuing of a Bulletin Number 55 advertising two positions of Constable, Montreal Terminals, to be placed on rotating shifts.
The Bulletin states that the constable will perform miscellaneous uniform duties as assigned.
The Association claims that the Bulletin is in violation of Article 4.01 in that the new assignments created, numbers 50 & 51, were listed as intermodal and relief, as required, as they were of a permanent nature Bulletin Number 55 should have read “territory to be covered - Lachine Intermodal”.
The company’s position is that the two new positions in question were assigned to the rotating roster in accordance with Article 6. The Bulletin 55, Exhibit 2. states as follows:-
“CLASSIFICATION: Constables (2)
LOCATION: Montreal Terminals
PERMANENT/TEMPORARY: Permanent
ASSIGNED HOURS OF SERVICE: Rotating Shifts
NATURE OF DUTIES: Miscellaneous uniform duties as assigned
Territory to be covered; Montreal Terminals”
The Association contends that prior to June 10, 1979, the Montreal Terminals’ duty roster showed positions up to and including No.49. However after this date two totally new positions were added, specifically numbers 50 and 51 inclusive, showing Lachine Intermodal and a relief position (covering the intermodal assignment) thus creating two new assignments at the Montreal Terminals.
As to this dispute, both parties make reference to past practice but it must be made clear, and as stated by the Association in their submission, that a collective agreement must be interpreted on its own and condition and not by any proceeding discussions or negotiation and with this position, the Arbitrator of course agrees.
To begin, the Arbitrator notes that Bulletin Number 55 does not make reference to Lachine Intermodal and this is very much a concern of the Association in this grievance which claim in their letter dated July 23, 1979 to the company that the location should have read “Montreal Terminals - territory to be covered by Lachine Intermodal”. The company has stated that if this had been their desire, it would have been a simple matter to so state in the bulletin, and as to this basic difference between the parties, I must agree with the company as I see no prohibition in Article 4.01 nor any other article of the collective agreement. The company further states that the only practical way to provide police coverage at Lachine Intermodal is to arrange for the work to be performed by constables assigned to the regular duty roster. The collective agreement does not prohibit the company from making this decision.
There is no dispute between the parties to the effect that additional coverage by constables was required at Lachine Intermodal and I agree with the company that Article 4.01 does not require that the positions be permanently headquartered at the actual location where the duties are required.
The Association in their written submission dealt with the mater of “assigned” and “unassigned” and stated that the intention of the parties in using these words can only refer to the existence or non-existence of a fixed assignment as to territory. However, Article 6.04 defines these terms and clearly states that they have no relation to fixed assignments but rather refer to the hours of work at particular locations. Article 6.04 states as follows:
“Notwithstanding any other provisions of Article 6 and 7 of this agreement employees required to work outside points so designated by the Company will be considered to be in unassigned service and Section 4 of the Canada Labour Standards Regulations, attached hereto, will apply to such employees based on a twelve-week averaging period. Hours of the work for such employees will be designated by the Company.”
In conclusion the Arbitrator finds with reference to the Joint Statement of Issue that Bulletin Number 55 was not in violation of Article 4.01 and further agree that the two positions were assigned to the duty rotating roster in accordance with the provisions of Article 6.
Accordingly the grievance must be dismissed.
DATED THIS TWENTY-FIFTH DAY OF JULY, 1980
T.C. O’Connor
Arbitrator