AH - 217

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS

(the ”Union”)

AND

CANADIAN PACIFIC RAILWAY COMPANY

(the “Company”)

SOLE ARBITRATOR:    Prof. H. W. Arthurs

There appeared on behalf of the Company:

                                                A. H. Neville                         Manager, Industrial Relations

There appeared on behalf of the Union:

                                                E. G. Abbot                           System General Chairman

A hearing in this matter was held at Toronto, Ontario, on the 13^th day of November, 1970.

As the result of a policy grievance, supported by a joint Statement of Facts, the union and company seek interpretation of article 13, clauses 1 and 1a, of their collective agreement.

                These clauses derive from two memoranda of understanding entered into in late 1968 “calling for changes in the existing agreement” and amending that agreement. In fact, the argument referred to was first entered into in 1960, amended by similar memoranda over a period of years, but never redrafted so as to incorporate these changes.

                The significance of this account is to underline the fact that while the parties concede that they are bound by both 1968 memoranda, they disagree as to the way in which the memoranda are to be integrated with each other and with the original agreement.

                The first memorandum entered into was dated November 26, 1968 and it is titled “Memorandum of Understanding Covering Negotiations for Technical Employees” (hereinafter “the Technical Employees’ memorandum”). The second was entered into on December 18, 1968, but was apparently negotiated contemporaneously with the Technical Employees’ memorandum. This memorandum (hereinafter “the general memorandum”) bears no limitation as to scope, and in certain respects clearly applies both to technical and non-technical employees.

                The relevant language of the original agreement, article 13, clause 1, provides:

“When regular relieving agents and chiefs are appointed they…shall receive all actual reasonable expenses while away from headquarters…

                It seems clear that the restriction on payment of expenses to “relieving agents and chiefs” was in fact ignored by the company, and employees relieving in other classifications received such compensation under certain circumstances. At a minimum, the new provisions broadened the category eligible for payment of reasonable expenses. Whether it did more that this is the nub of the controversy.

                The new clause 1 derives from the general memorandum:

“Employees appointed to relief positions shall receive all actual reasonable expenses while away from headquarters and shall be paid the same wage as the employees relieved, provided such wages are not less than their own.”

Clause la, on the other had, derives from the Technical Employees’ memorandum:

“A technical employee assigned to a relief position shall receive actual reasonable expenses while away from headquarters and shall be paid his class rate for his step, but in the grade of the position relieved. In the event that his regular position I in a higher grade, he would receive his class rate for his step in the grade of his regular position.”

The issue presented for decision, as defined by the parties at the hearing, is whether technical employees who apply for, and are appointed to , relief position which have been advertised (or “bulletined”) are entitled to claim expenses under article 13.

The company’s position is that clause 1 does not apply at all to technical employees whose rights were separately defined in the Technical Employees’ memorandum by clause 1a. On the face of the two memoranda, there is nothing to indicate that they are mutually exclusive. Indeed, as noted, certain provisions in the general memorandum clearly apply to technical employees. However, a diagrammatic comparison of the t clauses indicates that they were intended to operate independently  rather than cumulatively.

Both, it will be noted, contain the same essential ingredients:

                                                Clause 1                                                                Clause 1a

                                                General Memorandum                       Technical Memorandum

1 Who is covered                 Employees                                            Technical Employees

2 How he gets job:              appointed                                              assigned

3. Which job                                                         to relief positions

4. Expenses paid:                                                                shall receive all reasonable expenses

                                                                                                while away from headquarters

                5. Salary entitlement                                           and shall be paid

6. Salary amount:                               the same wages as the                        his class rate for his step, but in the

                                                                employee relieved                               grade of the position relieved

7. Salary protection:        provided such wages are                    In the event that his regular

not less than their own.                       position is in a higher grade, he would receive his class rate for his step in the grade of his regular position..

In each case, the provision of clause la parallel those of clause 1 in a way which make it appear likely that the two were intended to operate in similar circumstances. Items 3, 4, and 5 are identical in the two clauses. Items 6 and 7 likewise appear to produce identical results, although necessarily framed in different language due to the special method of calculating salaries of technical employees.

The critical comparison, however, is between the use of the word “appointed” in clause1 and “assigned” in clause la. The union argues that the use of different terms is significant. “Assigned” employees, it contends, are those who are required to fill a position without having applied for it, while “appointed” employees are those who have successfully applied for an advertised (or “bulletined”) vacancy.

Relying on this alleged distinction, the union asserts that clause 1 comes into play whenever - as in the instant case - “appointed” employee are involved. Since clause 1 refer to the all-inclusive term “employees”, rather than the more limited term “technical employees”, it would follow, on this analysis, that even technical employees may claim benefit of clause 1.

The company responds, first, by attacking any distinction based on the use of “appointed” rather than “assigned”. Examination of the Technical Employee’ memorandum tends to support the company’s position. In particular, the language of article 3 clause 2, relating to the company’s obligation to “bulletin” vacancies show that the two terms are used interchangeably That article speaks of an “appointment” being made after applications are received, but also provides that vacancies may be filled temporarily pending an “assignment”. In this context, “assignment” clearly means “appointment” pursuant to the procedures specified. On the other hand, in the same article, reference is also made to employees “assigned” to positions which have not been bulletined. Thus, in the very document at issue, the parties have failed to adhere to a single usage of the term “assigned”. It is not beyond the realm of possibility that in article 13 clause 1a, as in article 3 clause 2, “assigned” was used as the synonym of “appointed”, but it is by no means certain.

Some further support for the company’s position is found in testimony by a company witness that, as between the parties, “appointed” had acquired the well-established connotation of “appointed without bulletin”. This argument is the converse of the preceding one: “appointed” would take on the narrower meaning of “assigned”, rather than “assigned” the broader meaning of “appointed”. However, while the union neither cross-examined this witness nor offered contradictory testimony, prior usage is of limited assistance. It should be noted that the original agreement referred to relieving agents and chiefs who were “appointed”, but the new terminology in clause 1a might well be taken as evidence of an intention to change the effect of the original clause. At best, the evidence of former usage is consistent with the interpretation the company now seeks to place on clause 1, but is not conclusive. At worst, the company brief undercuts the testimony referred to by conceding that in recent times the word APPOINTED  has come to have the more restricted meaning of “being named as the successful applicant to a bulletined position”. It is, therefore, other considerations which persuade me that the company’s position should prevail over the union’s.

If the union’s arguments were to be accepted, that “assigned” and “appointed” have different meanings, it would necessarily produce one of two anomalies. If the clause 1a is exhaustive of the rights of technical employees, only those who were “assigned” would receive similar benefits in the non-technical group, where the benefits would, on this assumption, ensure only to those “appointed”. On the other hand if clause 1a purports to be of special benefit to technical employees, in addition to any rights they might enjoy under clause 1, here again there would be a difference in benefit between the two groups of employees. The former assumption would deprive technical employees of compensation in the circumstances of the instant case, while providing such compensation to non-technical employees. The latter assumption would deprive non-technical employees of compensation when they were sent o relief assignments without applying for them, while anomalously, giving them such compensation only when they applied for bulletined jobs. At the same time, technical employees would receive compensation under both circumstances.

No rational explanation was offered by the union for drawing such distinctions between technical and non-technical employees, nor is an explanation easy to suggest. Each group suffers the same dislocation when temporarily employed away from home; each would seem to have an equal claim for payment of the expenses associated with such dislocation. The union’s position is conceded to be one possible reading of the language, but the unjustifiable consequences of adopting it are such that other possible reading must be treated as the more reasonable.

On the other hand, the company’s position produces no such untoward results. It contends that “appointed” in clause 1 and “assigned” in clause 1a are synonyms, both referring to a situation in which the company required an employee to perform a job for which he has not applied. This interpretation results in the consistent treatment of technical and non-technical employees. It also avoids a situation in which those who knowingly respond to a relief vacancy bulletin which makes no promise of expenses can claim such expenses, while those who are forced to undertake relief work, without wishing to do so, cannot.

I therefore conclude that clauses 1 and 1a provide for non-technical and technical employees, respectively, compensation for expenses only when such employees are assigned to relief work, and not then they successfully apply for bulletined relief vacancies.

It is obvious, finally, that no employee dissatisfied with this arrangement need apply for such jobs and that the absence of applications might force the company to assign employees and compensate them.

The grievance is dismissed.

Dated at Toronto, Ontario, on the 25^th day of November, 1970.

H, W. Arthurs

                                                                                                                Professor