AH 238
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CANADIAN UNION OF TRANSPORTATION EMPLOYEES,
LOCAL NO 6
(the ”Union”)
AND
THE BRITISH COLUMBIA RAILWAY
(the “Employer”)
(Speer Arbitration)
Sole Arbitrator: H. Allan Hope, Q. C.
There appeared on behalf of the Employer:
Mary Saunders, Esq.
There appeared on behalf of the Union:
Terry Robertson, Esq.
A hearing in this matter was held at Vancouver, British Columbia, on the 1st of June, 1982.
SUPPLEMENTARY AWARD
I
On August 5, 1982, I published a decision herein. I have been invited by the Union to add to that Award a consideration of the interpretation and application of Art. 9.7 to the facts in dispute. The Employer has agreed on the understanding that it was an issue raised by the Union, considered by me and overlooked in the preparation of the Award. Art. 9.7 reads as follows:
“9.7 Temporary vacancies or positions of less than 30 calendar days required by the Railway to be filled shall be filled by the senior qualified employee immediately available.
The point made by the Union in argument was that Art. 9.7 should be contrasted with the language used in Art. 10.6. That provision is repeated for convenience as follows:
“10.6 Temporary new positions or temporary vacancies of under thirty (30) days may be filled by qualified laid-off employees living at or near the work location.
The submission of the Union , if effect, was that the two provisions read together created a contextual ambiguity that could only be reconciled upon a consideration of the apparent benefit contemplated by the parties in the separate provisions. In particular, the Union said that the language of Art. 9.7 is clear and compelling and affords of no meaning other than the fact that the senior qualified employee available in the system, including employees on lay-off, is entitled to a temporary position of less than 30 days. The Union pointed to the fact that Art. 9 deals with seniority rights and vests in employees a positive right based on length of service that compels recognition in the filling of vacancies. Undoubtedly arbitrators do construe seniority provision as conferring a positive benefit on employees that fetters the residual right of an employer to manage and direct the work force.
The Railway argued that Art. 9.7 had no application to a laid-off employee. In support of its position the Railway pointed to the fact that Art. 10 deals specifically with the recall rights of employees on lay-off, that Art. 10.6 addresses specifically the rights of an employee on lay-off to claim a temporary vacancy and that Art. 10.6 should govern. I agree with the submission of the Railway in its substance. In the Award I pointed out that employees have no right to compel the Railway to post a vacancy of less than 30 days . That is provided in Art. 8.01 in positive language. The interpretation urged by the Union is not compatible with that provision unless one concludes that senior employees have a right to claim vacancies of less than 30 days but the Railway has no obligation to advise them of such vacancies,
In that aspect of the issue the words “immediately available” must be given meaning. The apparent meaning is the one urged by the Railway, that is, that the term “immediately available” presumes some limitation on the application of the provision and is not compatible with the broad interpretation of the Union. The Employer urged that it would have to be an employee who was actually working. I do not agree.
The real issue in dispute was the obligation of the Railway to advise employees of the availability of temporary vacancies and the right of senior employees to claim those vacancies. The particular facts related to an employee on lay-off. I repeat my view that Art. 9.7 has no specific application to employees on lay-off, nor does it exclude employees on lay-off. The reconciliation of the various provisions is that the Railway must fill temporary vacancies with the senior qualified employee immediately available. The Railway is under no obligation to post those vacancies because of the language of Art. 8.01 and is under no obligation to recall employees from the recall list because of Art. 10.6. Where a senior qualified employee becomes aware of the vacancy and applies for it the Railway is obliged to award it to him if he is “immediately available”.
I have some doubts about whether an employee working in another position could present himself as “immediately available but I make no comment about its application in those circumstances, they being vastly beyond the facts in the dispute before me. In my view Art. 9.7 defines only partly the obligation of the Railway in dealing with applicants for short-term temporary vacancies. In the absence of the limiting language of Art. 8.01 and Art. 10.6 and the limitations implicit in the phrased “immediately available”, the language of Art. 9.7 might imply an obligation to pursue the senior qualified employee by posting or otherwise but the limiting language defines a more narrow benefit.
Certainly I see no special application of the provision to an employee on lay-off unless, as stated in the Award, the laid off employee applies for the vacancy. The two provisions are not in contradiction unless one accepts the assumption that the obligation to award a temporary vacancy to the senior qualified employee immediately available carries with it the obligation to seek out the senior employee. Viewed in isolation the language might sustain that interpretation but viewed in context it is limited to the obligation to award the vacancy to qualified applicants who are immediately available based on seniority. Art. 10.6 vests in the Railway a discretion to depart from seniority in the filling of temporary vacancies where there is a qualified employee living at or near the work site. Presumably that vests in the Railways the right to pass over the senior qualified employee immediately available in the sense of being available in the general work location in order to accommodate its view of productivity. There is, of course, some uncertainty as to the meaning of “immediately available.” In Art. 9.7 the phrase “at or near the work location “ is not repeated. It is not an issue that arose on the facts before me and I have referred to it only in the context or reconciling Art. 9.07 with Art. 10.6.
Whether a senior qualified employee from another work location who is on lay-off or is otherwise available has a right to apply and compel his transfer to take up a temporary vacancy of under 30 days is an issue I must leave to a more appropriate set of facts. I will indicate that I feel that the discretion vested in the Railway in Art. 10.6 would override that right and, in any event, I doubt that an employee in another work location would meet the requirement of being immediately available if his filling of the vacancy imposed a cost of transfer or accommodation. I do not pretend to decide that issue, however.
I note that the issue relates to short-term vacancies. Temporary vacancies in excess of 30 days vest specific seniority rights in employees. Under the Agreement career advancement based on length of serviced is protected. In interpreting the Agreement I was guided to some degree by an unwillingness to impart an intention on the part of the Railway to fetter its right to respond to short-term vacancies efficiently and productively in the absence of a clear provision expressing that intention. It seems to me that the purpose of differentiating between temporary vacancies of greater than 30 days and those less than 30 days was to retain the flexibility asserted by the Railway. On the submission of the Union there would be no substantial difference in the treatment of temporary vacancies, regardless of length, and that is not in accord with the apparent intentions of the parties as derived from the whole of the language read in context.
Dated at the City of Vancouver, in the Province of British Columbia, this 27th day of September A. D. 1982.
H. ALLAN HOPE, Q. C. Arbitrator