199

ARBITRATION AWARD

 

IN THE MATTER OF AN ARBITRATION BETWEEN Canadian Pacific Ltd.

(Telecommunications Department) hereinafter called "the Company"

and Canadian Telecommunications Union, Division 1 of the United

Telegraph Workers, hereinafter called "the Union".

 

AND IN THE MATTER OF a preliminary objection to the arbitrability of a Union Grievance.

 

ARBITRATION, constituted )

pursuant to the provisions of ) Dr. F. R. Anton

a Collective Agreement made ) Arbitrator

between the Company and the )

Union )

 

For the Company :

Mr. W.A. Greene, Regional Manager Pacific Region, Vancouver

Mr. G.M. Ibbitson, Area Manager, Calgary

Mr. E. Abraham, Supervisor Automatic Plant, Calgary

Mr. C.M. Dunn, Supervisor Automatic Plant, Vancouver

Mr. A.K. Schultenkamper, Suervisor Automatic Plant, Winnipeg

Mr. H.A. Dunstan, Labour Relations Officer, Montreal

Mr. D.W. Flicker, Counsel, Montreal

For the Union :

Mr. C.H. de Laroche, Asst. System General Chairman, Montreal

Mr. H.D. Ackert, General Chairman, Pacific Region, Vancouver

Mr. E. Sorenson, former Shop Supervisor, Vancouver

Mr. W. Mogridge, Alta Rep. CTV

Mr. A. Welsh, Auto Plant, Calgary

Mr. J.M. Zawoyski, Eastern Regional General Chairman

Mr. R. De Jaeger, Auto Plant, Winnipeg

Mr. B.E. Johnson, Prairie Regional General Chairman, Winnipeg

Mr. P.J.J. Cavalluzzo, Counsel, Toronto

 

 

 

STATEMENT OF FACT AND ISSUE

 

FACTS

1. The union and the company are parties to a collective agreement under which this grievance arises.

2. Article 16 of the collective agreement provides that the provisions of the Job Security and Technological, Operational and Organizational Change Agreement dated April 28, 1978, shall apply to employees covered by the collective agreement.

3. Article 8 of the Job Security Agreement provides for a procedure which the company and union will follow when the company is implementing any technological, operational or organizational change which will have adverse effects on employees.

4. By way of letter dated July 27, 1978, the company sent the union a notice under Article 8 of the Job Security Agreement. Pursuant to the notice the company advised the union of various changes to the Automatic Plant Shops across the system. The classification of Automatic Plant Technician is found in the collective agreement.

5. The intended change was to affect all of the maintenance shops of the company across the system. For the purposes of expediency, the Union will deal with the changes at the following shops of the company : Vancouver, Calgary and Winnipeg.

6. A grievance was filed by the union in respect to the aforesaid changes and duly progressed to Step 4 of the grievance procedure in accordance with Clauses 26.01 and 26.02 of the collective agreement at which time the Union requested and the Company agreed to an extension of the time limit from May 4 to May 14, 1979, in accordance with Clause 26.03 of the agreement.

(Step 5 of the agreement reads ; If the grievance is not settled at Step 4, it may then be progressed by either party to arbitration in accordance with the procedures specified in Article 27. The party requesting arbitration must so notify the other party in writing within 42 calendar days following receipt of the decision in Step 4, or from the due date of such decision if not received).

 

 

7. By letter dated May 9, 1979, and received by the Company on May 11, 1979, the Union advised of its intention to "proceed to Arbitration under the Collective Agreementís appropriate clause".

UNION POSITION

The company violated Articles 2, 3 and 20 of the collective agreement by the aforesaid changes it has effected across the system and by the procedure in which those changes were effected. The decision of the Arbitrator will affect the changes across the system.

COMPANY POSITION

This grievance is inarbitrable because the Union has not met the time limits set out in the collective agreement.

The changes to the work force were made in good faith in accordance with the terms of the job security agreement and the collective agreement.

THE ISSUE

Before the merits of this grievance can be considered it is necessary to decide whether or not the grievance is arbitrable in light of the Companyís allegations that the Union failed to meet the time limits set out in Clause 27.02 of the collective agreement.

Clauses 27.01 and 27.02 of the agreement state that :

"27.01 Any dispute or grievance arising between the parties relating to the interpretation, application, or administration of this Agreement, including any question as to whether a matter is arbitrable, or when an allegation is made that this Agreement has been violated, either of the parties may after exhausting the grievance procedure established by this Agreement notify the other party in writing of its desire to submit the difference or allegation to an Arbitrator.

27.02 Upon receipt by either party from the other of a request for arbitration, the parties shall endeavour to agree on the name of the Arbitrator. If agreement is not reached between the parties on who the Arbitrator shall be within fifteen (15) calendar days from the date of receipt by either party of a

 

 

 

request for arbitration, the party requesting arbitration shall then request the Minister of Labour to appoint an Arbitrator and advise the other party accordingly. Such request to the Minister of Labour must be made no later than fourteen (14) calendar days following the fifteen-day (15) period referred to in this paragraph".

According to evidence submitted the Company received a letter from the Union on May 11, 1979 in which the following statement appeared :

" . . . therefore I wish to inform you that we are forced to proceed to arbitration under the collective agreementís appropriate clause this in respect to the downgrading of the APT senior grades. I will be forwarding you some names for selection of possible arbitrator of this APT issue".

On May 15 the Company received a second letter which stated in part.

" . . . herewith a list of three names for your consideration, rejection or acceptance to be arbitrator in the aforementioned grievance of Downgrading of Senior grades of APTís . . . . I await your decision".

The Company contends that the first letter received on May 11 is the relevant one in which the Union fulfills the requirement of Clause 27.01 by notifying the Company in writing of its (the Unionís) desire to submit the difference or allegation to an Arbitrator. If the Companyís position is accepted then June 9 is the expiry date (15 plus 14 calendar days) for the Union to meet the conditions of Clause 27.02 and request the Minister of Labour to appoint an arbitrator. But if, on the other hand, the second letter received by the Company on May 15 is accepted as the relevant document then June 13 becomes the expiry date on which the Union can request the Minister to appoint an arbitrator. According to evidence June 12 was in fact the date on which the Union wrote to the Minister requesting him to appoint an arbitrator. Thus if the second letter received on May 15 is accepted as the Unionís formal notification to the Company to submit the difference to arbitration then the Union met the time limits set out in Clause 27.02 whereas if the first letter is deemed to be a notification of desire to submit the difference to arbitration then the Union failed to meet the time limit by several days.

 

 

 

 

The initial issue to be decided is : did the first letter meet the requirements of Clause 27.01 of the agreement ? The Company asserts that it did whereas the Union asserts that it was an extension of the grievance process, a threat perhaps, and argues that the second letter represents its fresh and distinct request for arbitration in which the Company partook without objection. Moreover, by delaying its objection to the final stage the Company waived its rights to object to a violation.

Careful reading of the evidence submitted along with the relevant clauses of the agreement helps to clarify the issue and remove the ambiguity. If the wording of the first letter in which the Union states that it is forced to arbitration under the collective agreementís appropriate clause is compared with the wording of the second letter then a logical interpretation of the first letter is that it is, in fact, a notification of the Unionís intent (desire) to submit the difference to arbitration. Upon receipt of such a notification in writing the requirements of Clause 27.01 are fulfilled and the steps required in Clause 27.02 follow consequentially.

The Unionís argument that the second letter represents its request for arbitration is not sustainable from the content. This letter, dealing with the appointment of an arbitrator from three names listed, is a follow-up to the first. But nowhere in this letter is arbitration requested and indeed, in light of the first letter, the contents of the second could quite reasonably have been discussed over the phone since the first letter more clearly met the requirements of Clause 27.01. If the Union did not intend the first letter to be accepted as a formal notification and request for arbitration then the second letter should have stated explicitly that this was, in fact, a formal notification of desire to submit the difference to arbitration. After all the Union too is a signatory to the collective agreement and familiar with the need to minimize the different interpretations it can give rise to. It is therefore ruled that the Unionís first letter is the relevant one and in light of evidence, the Union, inadvertently, failed to meet the time limits required under Clause 27.02 of the agreement.

Following on this conclusion a second more subjective and controversial issue arises. Namely is the time limit - of 15 + 14 calendar days - of Clause 27.02 mandatory in which case the Companyís position that the grievance is inarbitrable may be sustained or is the time limit more directory rather than mandatory in which case a decision to consider the merits of the grievance may be supportable ?

Recent history of collective bargaining arbitration in Canada is not lacking in decisions dealing with this controversial subject. At issue in this present grievance is interpretation of the wording in Clause 27.02 and specifically

 

 

whether the word "must" in the sentence : "Such request to Minister of Labour must be made no later than fourteen (14) calendar days following the fifteen-day (15) period referred to in this paragraph", should be read as mandatory or directory.

The question of interpreting the word "must" in a collective agreement has been dealt with in two frequently cited cases, i.e. General Truck Drivers Union, Local 938 et al. v. Hoar Transport Co. Ltd., (1969) S.C.R. 634, 4 D.L.R. (3d) 449, and the Dominion Consolidated Truck Lines Ltd. and Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 141 (1975), 9 O.R. (2d) 195, 60 D.L.R. (3d) 37.

In both these cases the word "must" was held to be mandatory brooking no other interpretation. Moreover, in the former case it was ruled that a board of arbitration is bound by the terms of the collective agreement, of which the articles of the agreement are integral provisions. "They create obligations of a basic nature and the parties to the agreement are obliged to adhere to them. The board of arbitration cannot ignore or dilute the force of these obligations, nor change their purport by means of amendment or substitution". It is clear therefore that arbitrators should not ignore the exact provisions of a collective agreement and that failure to comply with such provisions may not be dismissed as merely technical irregularities.

In a more recent case where the two previously cited decisions were relied on Reid J. elaborates further on this issue. In Re International Union, United Automobile, Aerospace and Agricultural Implement Workers of America et al. and Massey-Ferguson Industries Ltd. et al. (1979) 94 D.L.R. (3d) 743 it is asserted that the word "must" is a common imperative bearing no other connotation. In its present or future tense it expresses command, obligation, duty, necessity and inevitability, in contrast to the word "shall" which is equivocal and can express either command or simple futurity. (See, Metropolitan Toronto and Toronto Civic Employeesí Union, Local 43 et al. (1975) 8 O.R. (2d) 499, 58 D.L.R. (3d) 371).

While it appears to me that the word "must" is imperative bearing only one meaning within the context of Clause 27.02 yet there may be instances where the strength of the word may be lessened if relief is granted from an omission to obey which could modify the wordís impact.

This was thought to be so in the Hoar Transport case where the collective agreement provided in the event that the arbitration boardís nominees failed to

appoint a chairman within a specific time limit then the aggrieved partyís

 

 

 

nominee "must" request the Minister of Labour to do so. Moreover, failure to process a grievance in accordance with time-limits meant that "the grievance shall be deemed to have been withdrawn". On the other hand, the board was empowered to set aside "any penalty or discipline relating to the grievance". In this instance the board used its power under this last quoted provision to set aside the deeming clause which was involved. Nevertheless, it was held that since failure to observe the agreement was not a penalty the board did not have power to relieve against it nor was it a mere technical irregularity that the board could perhaps ignore.

The Hoar Transport case has been dealt with in brief because of its implications for the present arbitration. As I interpret Article 27 of the collective agreement there are no qualifying words which could weaken the effect of the word "must" as used in Clause 27.02 and while the word is not accompanied by words confirming its mandatory connotation this in no way suggests that its meaning is made less mandatory. By failing to follow the time-limits set out in Clause 27.02 the Union forfeits the right to have its grievance processed to the final stage. To decide otherwise would be tantamount to ignoring Clause 27.05 :

"27.05 The decision of the Arbitrator shall be limited to the dispute or allegation contained in the statement or statements submitted to him by the party or parties and the decision shall be final and binding on the parties and the employee(s) affected. The decision of the Arbitrator shall not change, add to, vary or disregard any provisions of this Agreement".

Therefore, in light of evidence submitted and the legal decisions scrutinized my interpretation of the relevant clauses of the collective agreement leads to the conclusion that the grievance is inarbitrable because of the Unionís failure to meet the time limits required by Clause 27.02 of the collective agreement.

 

 

______________________________

F. R. ANTON, ARBITRATOR

 

Dated this 16th day of January, 1980 in the City of Calgary, Alberta.