AD HOC 242

AWARD

The grievance giving rise to this arbitration arose in response to the failure of the Railway to appoint the grievor, Victor Kampe, to a temporary vacancy as a loader and crane operator on a work project near Garibaldi, B.C. The Railway operates a north-south provincial rail network which incorporates in excess of 1300 miles of rail line. The Union represents maintenance of way employees who maintain the rail line and work equipment. Job assignments in the bargaining unit include permanent positions, temporary positions and temporary positions of less than thirty calendar days duration. The job assignment in question was in the less than thirty calendar days category.

The circumstances giving rise to the disputed assignment commenced on December 26, 1981 when excessive rain caused flooding of a river near Garibaldi Station which caused the river to change its course. The change in course caused the river to intrude closer to the rail line, but not dangerously close. However, in the months following, the river began to erode its banks adjacent to the rail line. By March of 1982 the river was within fifteen to twenty feet of the road bed. The rail line was not in immediate danger but it was apparent that steps would have to be taken to solve the problem.

Because repairs would require adjustments to a river the Railway needed permits from both federal and provincial government fishery departments. Steps were taken to obtain those approvals and, in April of 1982, the site was inspected by various officials. The Railway submitted a specific repair Proposal to the appropriate governmental officials on April 30, 1982 and on May 12, 1982, consent was obtained to proceed with the project.

Commencement on the project was delayed by the fact that the river in question has been developed for hydro electric power and there is a dam located upstream of the repair site. At the time when approval was obtained the flood gates had been opened to lower the water level in the reservoir to permit cleanup work to take place. Repairs on the rail line could not proceed during the high water flow and were postponed. They were to be carried out during a twelve-day period between May 17 and May 29, 1982 when the flood gates were to be closed.

The repair job required the assembling of a work train which would ferry the equipment and the crew to the area and provide a work facility at the site. Included in the equipment requirements were a loader and a crane. Implicit in the evidence was the fact that construction maintenance work on the rail line falls into at least two broad categories, that which is ongoing and scheduled on a regular basis and that which arises in response to the unpredictable visitations of nature. Manning follows those requirements. Maintenance employees are given permanent job assignments which respond to the predictable needs and temporary assignments are made to meet needs which can be neither predicted nor scheduled.

The area in which the repairs were to take place was under the supervision of Robert Payette, the roadmaster for the section of track involved. In late May he contacted Victor Heidner, a work equipment field supervisor, and requested him to provide an operator who was qualified to operate a loader. The request was expressed as requiring immediate attention and the name of John Gumart, an operator who was in the area, was suggested to him.

Mr. Gumart had been operating a D-54 bulldozer at a location near the site of the proposed repairs. On May 17, 1982, he concluded the repairs and was assigned to commence in another location on May 21. On May 20, 1982, he received a telephone call from Mr. Heidner who asked him if he was prepared to go to Garibaldi Station and participate in the repairs. He agreed and he commenced work on that job on May 25, 1982.

He worked first operating a loader and later operated the crane. The work was such that the crane work followed upon the loader work as a logical sequence. There was no doubt on the evidence that Mr. Gumart was qualified to do the work required and that he was immediately available in the sense that the decision of the Railway to give priority to the repairs at Garibaldi Station made him available and was well within the discretion of management. He was immediately available also in the sense that he was in the near vicinity of Garibaldi Station and could be assigned there at minimal additional expense.

The grievor, Mr. Kampe, was working on a job out of a centre called Lillooet. It was a permanent job assignment. From time to time Mr. Kampe used his seniority to bid on temporary assignments, (which Mr. Kampe called “work train” assignments), because they afforded more overtime than regular assignments. Mr. Kampe became aware that the job at Garibaldi Station (a work train assignment) was to take place. His recollection was that he spoke to Mr. Heidner twice at Lillooet and told him that he wanted the assignment.

It was the position of Mr. Kampe and the Union that he was entitled to the job at Garibaldi Station and someone else should have been assigned to his job while he was absent on the temporary assignment. Mr. Kampe was the senior qualified employee on the system in that job category and he considered himself to be “immediately available” in the sense that any other qualified employee, including Mr. Gumart, could have been assigned to his job so as to free him for assignment to the disputed job.

Mr. Kampe said that he requested the job twice. On the second occasion he was told by Mr. Heidner that it had been assigned to Mr. Gumart. There was some question as to the precise dates of the two conversations but it is clear that they occurred prior to Mr. Gumart commencing the job at Garibaldi Station. Lillooet is not in the near vicinity of Squamish or Garibaldi Station where the work was to take place. Mr. Gumart, as stated, started the job on May 25, 1982. He completed it, at the latest, on June 2, 1982. Hence the vacancy was substantially less than 30 days in duration.

The challenge for the Railway in temporary vacancies is to achieve productivity within a maintenance budget. The ideal from its point of view would be to have the unfettered right to assign maintenance employees to any job anywhere on the system without regard for seniority and thus maximize the efficiency and productivity of its work force. The ideal for the Union would be to achieve absolute recognition of seniority as the determining factor in any job assignment, including temporary vacancies.

There are numerous factors which make one job assignment more attractive than another to a particular employee. For Mr. Kampe the attraction was overtime. Those factors varied from employee to employee. The factors include geographic location, weather, terrain, living conditions, accessibility to home, and, as stated, pay rates and premiums. Unions have long since discovered that seniority is the least divisive means of resolving claims between members of a bargaining unit who are competing for the various privileges and advantages which attend employment. Employers tend to find productivity a more desirable theme.

Seniority is not an inherent right. It is a benefit which employees must achieve in collective bargaining and it is a right which must be recorded in the collective agreement. In presenting its case in this dispute the Union started with the proposition that seniority is the governing factor in any job assignment and that the Railway must be able to justify any departure from it. In rejecting that basic premise, one can start with the proposition that a collective agreement which does not contain a seniority provision will confer no seniority rights on employees. As stated, it is not a right which is intrinsic to the employer-employee relationship. It is a right which must be achieved through bargaining.

In its claim that seniority should apply in this dispute the Union was required to establish that temporary job assignments, or vacancies as the parties call them, should be governed by seniority. In advancing that proposition the Union relied on the following provision of the agreement:

9.7 Temporary vacancies or positions of less than thirty (30) calendar days required by the Railway to be filled shall be filled by the senior qualified employee immediately available.

The most fundamental rule of interpretation with respect to collective agreements is that disputed language must be interpreted in the context of the entire agreement. Leaving aside for a moment the significance of the qualifying term, “immediately available”, which I will consider later, the position of the Union must be assessed in light of a second principle of interpretation. That is the principle that a disputed interpretation should be assessed in light of prevailing circumstances.

In this dispute the principal implication of the Union interpretation was that a senior employee anywhere on the province-wide system could claim a temporary vacancy of less than thirty calendar days (including vacancies as short as one day) and compel the Railway to put them in that vacancy, regardless of the impact on productivity and cost. The Union did not go that far in its submission, but that is as far as it would have to go in order to maintain its interpretation.

When this agreement is examined in its entirety the clear implication is that temporary vacancies of less than thirty days were intended to be filled in a manner which accommodated productivity as the first consideration with seniority as the determining factor only when the needs of production had been met. That is the import of the term “immediately available”. I will now set out the basis upon which I have reached that conclusion.

III

The genesis of seniority as an industrial relations principle was considered by Palmer, Collective Agreement Arbitration in Canada, (1982). On p. 493 the author quoted an extract from the decision of Prof. Laskin, as he then was, in Federal Wire and Cable (1960) 3 U.M.A.C. 276. A portion of that extract reads as follows:

I take as my starting point that seniority under a collective agreement has its meaning and application only under the terms and context of the agreement. Seniority, in other words, is a collective bargaining concept.

Seniority is a collective bargaining concept, the scope and application of which is dependent upon the provisions negotiated by the parties. I find it advisable to emphasize that point because the Union submission implied a view that seniority is a right inherent in the various aspects of the relationship and that the onus is upon an employer to justify the exercise of any managerial discretion which overlooks seniority. That is not a view which has been recognized by arbitrators. The right claimed by the Union in this dispute is an extraordinary one. Exclusion of temporary assignments from the reach of absolute seniority is typical in collective agreements for obvious reasons.

The Union was correct in its assertion that where a collective agreement does recognize seniority in a particular application, any restriction on those rights will require clear language. The most frequently quoted decision in that regard is Tung-Sol of Canada and United Electrical Workers, Local 512 (1964), 15 L.A.C. 161 (Reville). An oft-quoted passage from that decision appears on p. 162 as follows:

Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee’s seniority, under the terms of the collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacation and vacation pay and pension rights, to mention only a few. It follows, therefore, that an employee’s seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant section of the collective agreement.

That extract is sometimes cited out of its context. The decision dealt with the accumulation of seniority and not with its application to a particular seniority benefit. It is correct to say that seniority rights which have been recognized in the context of a particular application should not be seen as limited by implication. But that general principle must be responsive to the language used.

In my view any decision of an employer which impacts on the seniority rights of employees recognized in a collective agreement must be bona fide. See Toronto Printing Pressmen and Assistants’ Union No. 10 et al. V. Council of Printing Industries of Canada on behalf of the Photo Engravers and Electrotypers Limited, (1983) C.L.L.C., 14,050 @ p. 12,271. But there is a requirement on a union to establish that an employee has a right to have his seniority govern in a disputed application. In particular, the obligation of the Union in this dispute was to establish that the Railway was in breach of the collective agreement by reason of its failure to assign the disputed work to the grievor. The Union, as stated, relied on Article 9.7 for its argument that seniority was intended to govern the filling of a temporary vacancy in the circumstances before me.

The Union interpretation ignored the significance of the limiting phrase “immediately available”. It also ignored the significance of the fact that the collective agreement expressly excludes temporary vacancies of less than thirty days from the requirement to post. That provision is Article 8.1 and it reads in part as follows:

8.1 Except for temporary vacancies of less than thirty (30) calendar days, temporary new positions of less than thirty (30) calendar days and extra gang labourers’ positions, bulletins advertising vacancies and new positions shall be posted …

That is not to say that the Union did not address the phrase “immediately available” or that it failed to acknowledge the existence of Article 8.1. The Union submission sought to accommodate those difficulties by isolating Article 9.7 from the agreement. It was in that context that the Union ignored those two interpretative problems. In its approach to the significance of the term, “immediately available”, the Union, in effect, suggested that individual employees would determine that issue.

The Union said that if an employee could be replaced by junior employees and if he wanted to claim a particular temporary vacancy, he would have to be seen as “immediately available”. The Union said that leaving that issue to the Railway to decide would be failing to give credence to the seniority aspect of Article 9.7.

On the second issue, that is, the significance of Article 8.1, the Union conceded that it did not have the right to compel the Railway to post temporary vacancies which fell within Article 9.7. But Article 8.1 was significant beyond its impact on posting. It indicated the general approach of the parties to short-term vacancies and tended to confirm the view of the Railway that the intention was to fill such vacancies in a manner responsive to the needs of the work.

Both parties to this dispute sought to rely on an earlier arbitration decision made between them to support their positions. (See: Speer Arbitration, August 5 and September 27, 1982.) That decision consisted of an award and a supplementary award. The supplementary decision dealt with the interpretation of Article 9.7 and its application to employees who were on layoff. That decision expressly excluded from its consideration the issue raised in this dispute. The Union referred to a passage which appears on p. 4 of the supplementary award as follows:

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”.

But that aspect of the award merely restated the language of the provision. In order to succeed in this arbitration it was necessary for the Union to establish that Mr. Kampe was “immediately available” within the meaning of the provision even though he was not in the near vicinity of the job assignment and was already employed on another job. The interpretation of the Union would permit a senior employee to claim a temporary vacancy even though the employee was already assigned to a job. The exercise of that right would create yet another temporary vacancy and hence create the potential for the cost and disruption which attends any kind of sequential bump. It is not an approach to be implied in the filling of short-term vacancies.

The interpretation of the Union, at its best, would require that the words “immediately available” be ignored with respect to their ordinary meaning in the context in which they are used. That is, the interpretation of the Union would require that employees be seen as “available” even if they were employed elsewhere and that they be seen as “immediately” available even if replacements for them would have to be found and even if they would have to be brought in from elsewhere in the province-wide system. The net effect of that approach would be to deprive the term “immediately available” of any real meaning. A similar issue was addressed in Thompson Products Ltd. and Thompson Products Employees’ Association (1974) 6 L.A.C. (2d) 56 (Brandt). on p. 58 the arbitrator said:

The position of the Union is basically that where seniority rights are in issue any clause restricting those rights should be strictly construed and that the plain language of art. 25.19 did not restrict those rights in the way contended for by the company. The difficulty with the Union position in this matter derives from the inclusion of the words “within the occupation” in art. 25.19. Were those words excluded from the article there could be little doubt that the Union claim could be sound … The clause in question is, however, not so drafted and it is the duty of this board to construe the clause in such a manner as to give meaning to all the words included therein. In short, the board must determine what was the intention of the parties in including the words “within the occupation” in art. 25.19.

A similar issue confronts me with respect to the meaning to be assigned to the words “immediately available”.

Quite apart from the strains placed on the language of the agreement, the interpretation of the Union confounds the practicalities of the management and direction of the work. It is an accepted principle of arbitral jurisprudence in the interpretation of language dealing with the application of seniority to specific circumstances, in the absence of clear or express language, to consider the practical implications of a particular interpretation. The Union interpretation would require me to accept that “immediately available”, does not give the employer the discretion to assign the work in response to its view of productivity.

The right to supervise and direct the work force, including job assignments, belongs to management unless bargained away expressly or by implication. One cannot find anything in the disputed language which would convert Article 9.7 into a strict seniority provision. An arbitrator should not interpret seniority provisions in a manner which ignores or compromises productivity unless the language of the particular agreement compels that result. In Wajax Industries Limited and International Union of Operating Engineers, June 4, 1982, unreported, Prof. J.M. Weiler said on p. 7:

Where the contractual language is imprecise, the arbitrator should be cognizant of the far-reaching business and safety consequences of various interpretations.

In that decision Prof. Weiler was confronted with a claim for seniority rights by employees in a layoff where the employees concerned were not able to perform the available work. Prof. Weiler was of the view that an adverse impact on productivity is a factor to be considered in the interpretation of seniority language. I agree with his reasoning. it would, be open to the parties to determine that seniority would be the sole or governing criterion, but that is not an intention which should be implied. There should be language which evidences that intent. In the Wajax Case, on p. 11, having considered the implications of the interpretations urged by the parties, Prof. Weiler said:

There are several tools of interpretation which provide assistance in unravelling this imprecision in language: negotiation history, past practice of the parties, and the practical consequences of each position.

Prof. Weiler went on to consider those various factors and concluded on p. 12 as follows:

The third aid in interpreting a collective agreement springs from a consideration of the practical impact of the respective positions of the parties.

In this dispute we are not dealing with a layoff, but the same reasoning applies. Not only is there an absence of language which supports the view that the parties intended to have seniority govern in temporary assignments, but we have language which implies a different intent. The interpretation of the Union has the potential to profoundly restrict efficiency and raise the costs of production with respect to the positions affected.

The submission of the Railway was that the term “immediately available”, when it is read in the context of the entire agreement and the procedure for the filling of vacancies, must mean that the determination of immediacy and availability will be made by the Railway. It was conceded that the Railway must act reasonably in the exercise of that discretion. I agree with that interpretation.

Whether the decision of the Railway is seen as a decision that the grievor was not immediately available or, alternatively, as a decision that Mr. Gumart was the senior qualified employee who was immediately available, the decision, on the evidence, was bona fide. On the undisputed evidence, it was the least disruptive in terms of operations, the least costly and the least injurious to productivity and employee dislocation.

During the course of the hearing a collateral issue arose as to whether or not the language of the collective agreement required that a grievance be reduced to writing in order to comply with the procedural provisions of the collective agreement. The language in issue reads as follows:

Step I

Within twenty-eight (28) calendar days’ of cause of grievance, the Secretary or the President may present the grievance in writing to the Manager, Operations and Maintenance. The appeal shall include a written statement of grievance and where it concerns the interpretation or alleged violation of the Collective Agreement the statement shall identify the Article and paragraph involved. A decision will be rendered in writing by the Manager, Operations and Maintenance within fourteen (14) calendar days of receiving this appeal.

The language of the provision contemplates that the grievance will be filed in writing. The Union did not dispute that interpretation. There remains, of course, a wide range of discretion, both statutory and arising from arbitral jurisprudence, which could apply to relieve the Union from strict compliance with that provision but, as pointed out by the Railway, the obligation is clear and compliance with it should be met in the absence of some explanation which justifies a departure from the procedure agreed upon by the parties.

VII

In the result the grievance must be dismissed. In dismissing the grievance it is necessary to emphasize that the effect of this decision is not to remove assignments to temporary vacancies from the reach of seniority. Article 9.7 requires that the senior qualified employee receive the assignment provided he is immediately available. It is for the Railway to determine whether a senior employee is immediately available, including what factors will be considered.

The important limitation on that discretion raised in aid of seniority is the requirement that the decision be bona fide. To paraphrase the decision of the Ontario Court of Appeal in the Toronto Printing Pressmen Case, a decision of the Railway to overlook a senior qualified employee for a particular temporary assignment would affect the seniority rights of that employee and if the bona fides of the Railway were called into question, management would be required to justify its decision.

The implication in the Union submission was that it was seeking some practical means of ensuring that seniority would receive due consideration in job assignments to temporary vacancies and new jobs of a temporary nature. But the interpretation the Union was compelled to advance raised immense difficulties. In the final analysis it is the concept of reasonableness which affords to the Union the protection it seeks.

If seniority is ignored in the filling of temporary vacancies under Article 9.7, the Railway can be called to account. I don’t see it as useful to seek to spell out the type of circumstances which will constitute a lack of bona fides. The Railway is not required to notify employees of Article 9.7 vacancies or to afford them an opportunity to bid on them. But when it goes about selecting employees for such vacancies it will be in breach of Article 9.7 if it fails to select the senior qualified employee who is immediately available. It can be expected that the criteria with respect to which employees will be considered “immediately available” will vary with the circumstances and that the Railway can be held accountable for its reasonableness in fixing and applying those criteria.

Factors which may be seen to influence the question of bona fides may include the anticipated duration of the vacancy, whether it is necessary to make an employee available, and the comparative costs and dislocation of one decision as opposed to another. Whatever criteria may govern a particular dispute, in this dispute the decision of the railway was bona fide and the grievance must be dismissed.

DATED at the City of Vancouver, in the Province of British Columbia, this 11th day of April, A.D., 1984

(signed) H. ALLAN HOPE, Q.C.

ARBITRATOR