AH - 210

AH - 210

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS

(the ”Union”)

AND

CANADIAN PACIFIC LIMITED

TELECOMMUNICATIONS DEPARTMENT

(the “Company”)

The dispute between the parties was referred to m by the Minister of Labour and in accordance with Article 27, Clause 3 of the Collective Agreement, the parties submitted a “joint statement of facts” which reads as follows:

1. In July, 1971, the Company abolished the positions of “Early Night Printer Traffic Chief” and “Swing Printer Traffic Chief” at its office in Calgary, Alberta.

2. No grievances by any individual employees were filed as a result of these job abolishments, or as a result of any of the subsequent displacements which resulted from the directly affected employees exercising their seniority under the staff provision of the Collective Agreement.. (Article 6 - see Exhibit J-A)

3. On August 18, 1971, the Regional General Chairman of the Union, Mr. D. J. Dunlop, filed a “Policy” or “Union” grievance with the General Traffic Supervisor of the Company, Mr. A. R. Harrison. (See Exhibit J-B)

4. This dispute was then progressed through the grievance procedure (Article 26-Exhibit J-C) and to arbitration (Article 27-Exhibit J-D).

5. The company contends that the dispute is not arbitrable on the grounds that:

a) The dispute is of a nature that lends itself to resolution by way of personal grievance by the employees affected, and in cases where no personal grievances have been filed the Union cannot abrogate to itself the right to progress such matters under the guise of a “Policy” or “Union” grievance; and,

b) That in any event, the Union cannot via a “Policy” or “Union” grievance seek remedies for individual employees where such remedies could have been sought by personal grievances filed by the employees concerned.

6. The Union denies the Company’s contention in 5a) and 5b) above and contends that the dispute is arbitrable.

7. The Company and the Union agree that the current issue between the parties is limited to the arbitrability of the dispute.

I will deal only with the question of the Arbitrability of the dispute between the parties, this limitation flowing from paragraph 7 of the above joint statement of facts which in its initial stage, restricts me to deciding this particular preliminary objection.

Briefly, the union contends that the dispute is arbitrable for the following reasons:

1. That the question of arbitrability was not raised in a timely manner by the Company and must, therefore, be considered as having been waived. If, in fact, there does exist grounds on which to question the arbitrability of the dispute, the Union pleads waiver without prejudice.

2. That the Union’s right to progress a dispute or grievance through the procedure and to its arbitration, in accordance with the provisions of Articles 26 and 27, has already been clearly established by practice between the parties and a previous arbitration award, binding upon the parties. The issue of arbitrability in this dispute is, therefore, Res Judicata.

On the other hand, the Company’s principal contentions are as follows:

A) The existing collective agreement provides only for the processing of grievances by individual employees and not for “Union” initiated grievances.

B) That the omission of procedures for the processing of “Union” grievances to final settlement is not unlawful inasmuch as the Canada Labour Code provides for the rectifi-(missing words) and such application has not been made.

C) That notwithstanding A) and B), this dispute is of a nature that lends itself to resolution by way of individual grievances by the employees affected, and that in the absence of such grievances, the Union cannot abrogate to itself the individual rights of the employees concerned (to grieve or not to grieve) under the guise of a Union grievance;

The above is a brief outline of the facts leading to the dispute, and contain as well, the principal contentions of the parties concerned. I have examined the various exhibits produced and after sorting through the submissions of both sides, have come to the conclusion that the uestion of whether or not the dispute is arbitrable rests on the following grounds:

A) Are we dealing with a “policy grievance”, i.e. one which may be initiated by the Union, rather than with one which may be termed “employee grievances”, and does the Collective Agreement distinguish between them?

B) Are the remedies demanded purely personal, i.e. can they be requested by the employee only, or has the Union, in effect, usurped the prerogative of the individual employee by involving itself on behalf of the employee?

C) Has there been any procedural irregularity committed which would be fatal to the Union position?

Respecting paragraph A, I must say that I diligently examined the Collective Agreement between the parties, and was unable to find therein any reference to the terms “policy grievance”, or “individual grievance”. The parties, in their pleadings, made much use of these terms, but inasmuch as no proof was placed before me indicating that these types of grievances existed as part of the Collective Agreement, I cannot give too much weight to those submissions. Obviously, there are Collective Agreements where different types of complaints are clearly enumerated, and the manner of resolving them are indicated in the agreement. If the parties wish to distinguish between classes of grievances, then they should define them, insert them into the agreement, and clearly indicate how they are to be resolved in the event of a dispute,. I do not see that any useful purpose would be served by a further discussion of this matter, since I do not propose to rule on a non-existent factor the Collective Agreement. Suffice it to say that the omission within the Agreement of any reference to “policy” or “individual” grievance, renders any further discussion upon this point hypothetical and without value with respect to the dispute under discussion.

I will now direct myself to paragraph B. In effect, the company complains that the Union is acting in a matter which is properly within the exclusive domain of the individual employee, and as such, is contravening the provisions of the Collective Agreement. I cannot accept the proposition as outlined on page two of the company brief whereby it is stated that:

“the Collective Agreement itself provided only for the progressing of grievances by individual employees. Article 26 is clear and unambiguous in this respect, and Article 27, clause 27.01 comes into effect only after the grievance procedures specified in Article 26 have been exhausted”.

I cannot accept the reasoning behind this statement. The agreement is between the Telecommunication Department of the Canadian Pacific Railway, and Union Division 1 of the United Telegraph Workers. I would venture to say that every collective agreement is similarly between the employer and the union representing the employees. Most certainly, in the absence of any specific and definite provision to the contrary, the union has a mandate to represent, as well act for and on behalf of, its members, either individually and/or collectively. Article 26 clearly stipulates that “all grievances” must follow a certain route. I see nothing within that article which would lead me to believe that an individual employee can be deprived of his right to be represented, and that he must grieve on his own, instead of, or in place of the Union which in fact and in law does represent him. Article 27, clause 1, merely flows from Article 26 (it refers to “either of the parties”) and in fact is restrictive in that it refers to specific cases only, such as matters relating to interpretations, etc. Clause 2 of Article 27, in my view, deals with the arbitration procedure to be followed in all grievances, (as indicated in Article 26) and in particular, with the specific grievances of clause 1 of Article 27.

The company (unreadable word) interesting theory on page 2 of its notes wherein reference was made of the Canada Labour Code, concerning provision for final settlement by arbitrations. Part V of Section 125-1, Chapter L-1 reads as follows:

“Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation”.

The Company submitted that “where the parties have contracted to restrict this provision to individual grievances, as in this Collective Agreement, the Company contends that the requirements of the law have still been met.” The Company then quoted Section 125-2 which deals with an application by either party when the provisions of the above section have not been met. In answer to this, I can only say that I have nothing before me to indicate that the parties have contracted to restrict the above provision to individual grievances only, and even if they had, such restriction would be null and void, since it would infringe upon the paramount authority of Parliament to legislate. By no stretch of the imagination can I accept the proposition that an Act of Parliament can be altered by the contracting parties to an agreement to the detriment of those for whom, and on behalf of, the Act was passed. The Union is acting quite validly in its rightful role as the mandatary.

As far as paragraph C is concerned, I do not feel that the Union has committed any procedural faults, since it has followed the procedure as laid down by Article 26 and 27.

I have carefully examined the jurisprudence quoted by the parties and while interesting and timely, the cases submitted are not exactly on point, especially with respect to those provisions of the Collective Agreement with which we are dealing.

Because of the foregoing it is my judgement that the parties are proper before me, that the dispute is arbitrable, and so order.

Montreal, June 7, 1972

Maynard B. Goit, Municipal Judge

Arbitrator