AH – 243
IN THE MATTER OF AN ARBITRATION
BRITISH COLUMBIA RAILWAY COMPANY
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL NO. 6
GRIEVANCE RE Bumping Rights Arbitration
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Railway:
And on behalf of the Union:
Terrence L. Robertson
A hearing in this matter was held at Prince George, B.C., on November 23, 1984.
The grievor in this dispute, Robert Miner, is a machine operator who has been in the employ of the Railway since July of 1981. He resides in Fort St. James. At the material time he was working south of Williams Lake, operating a machine called a Speed Swing. On November 13, 1983 the grievor was displaced in his job by a more senior employee whose own job had been lost because the Speed Swing he was operating was damaged and was not expected to be operational for a considerable period of time.
An employee who has been displaced or whose position has been abolished is under an obligation under the collective agreement to exercise his seniority rights against any position available to him within fifteen days or face a presumption that he has quit his employment. Employees who have no seniority rights to exercise are placed on layoff. This dispute relates to the extent to which the Railway, before it places such employees on layoff, is obliged to provide them with information with respect to positions occupied by employees whom they can displace in an exercise of their seniority rights.
Two types of seniority are recognized on the Railway. The first is seniority calculated on the basis of length of service from date of hire. The second is classification seniority and is calculated on the basis of the length of time spent by an employee working in a particular classification after that employee has been recognized as being qualified in the classification.
The grievor held classification seniority in the senior category of machine operator, being Machine Operator Two. By reason of holding that seniority he had classification seniority in four lesser machine operator classifications, including that of machine operator helper. That seniority entitled him to claim the job of any employee in any of those categories who was junior to him in classification seniority. In addition, there are positions that can be occupied by employees in classifications in which they do not have seniority. Those positions can be claimed by employees on the basis of service seniority, provided the senior employee is qualified to perform the work. The grievor was off work on layoff from November 14, to December 7, 1983. There were positions available that his seniority entitled him to claim during that period of time on the basis of both his service and his classification seniority. The grievor was not aware of those positions and the Union position was that the failure of the Railway to make him aware of them prior to placing him on layoff amounted to a breach of the collective agreement. The positions in question included a machine operator’s position that lasted until December 5, a machine helper’s position into which the grievor ultimately bumped on December 7; and a number of unspecified positions in a work force called the extra gang occupied by employees who lacked classification seniority and who were junior to the grievor in service seniority. It was conceded by the Railway that the classification and service seniority of the grievor was such that he could have claimed any of those various positions and thus could have avoided layoff for the period in question.
The incident in question occurred during a seasonal reduction in the work force. In that fluctuation the maintenance of way work force can vary from 1,200 employees in the summer to 500 employees in the winter. The seasonal fluctuation is caused by weather conditions that restrict the capacity of the Railway to perform work on the right of way. The rail line covers diverse climatic and topographical zones and the reduction in forces can take place over a lengthy period of time. The process of crew reduction places considerable stress on the bumping process. As various gangs shut down for the winter, senior employees bump into positions that will provide them with stable employment for the winter. In that process an employee who bumps into a position may find himself bumped from the position a short time later by a more senior employee.
As stated, a displaced employee has only fifteen calendar days in which to exercise his seniority rights. It is open to the employer to extend that time, but the potential is that an employee who fails to exercise his rights will be deemed to have quit and an employee who cannot find a position into which to bump will be placed on layoff pending recall. The provisions in question read as follows:
10.2 An employee whose position is abolished, or who is displaced will within fifteen (15) calendar days of the job abolishment or displacement exercise seniority over any other junior employee subject to being qualified to do the work of the employee being displaced.
10.3 Displacement rights must be exercised and work commenced on position of choice within fifteen (15) days of displacement except that employees on leave of absence at the time of displacement will exercise such rights prior to resuming duty. Unless otherwise agreed between the appropriate Officer of the Railway and the Union, an employee failing to exercise displacement rights within the times stipulated will be considered as having left the services of the Railway of his own accord and the Railway shall be under no obligation to that employee.
10.4 Employees unable to exercise seniority will be laid off and when staff is increased such employees will be recalled in order of seniority subject to being qualified to work the position to which recalled.
Employees are informed of positions into which they can bump by means of a computer printout called a displacement list. The Railway maintains its personnel records on computer and a displacement list is a list of all employees junior in classification seniority to a particular employee in a classification in which the employee holds seniority. Separate lists are required for each classification. The computer records employees and their classification seniority, not their positions. Hence a displacement list does not include information with respect to positions held by employees in classifications in which they have no classification seniority. That circumstance can arise with respect to employees who fill vacancies of less than 30 days. Those vacancies are not required to be posted and can be filled by employees who have no seniority in the classification in which the vacancy occurs.
Displacement lists are drawn from the computer in a facility in Prince George called the Employee Records office. That office was staffed at the material time by a coordinator, Gwen Laferdy. The office is the facility to which bargaining unit employees are directed for information on available positions. The Railway, as stated, stores its personnel files in the computer. The files are updated twice-monthly in conjunction with the preparation of the employee payroll. In the view of the Union that updating is not sufficient to provide employees with accurate information on available positions.
Certainly the system is strained in the annual reduction of the work force each fall. That reduction does not evolve with the most senior employees exercising their preference, followed by junior employees in order of seniority ranking. The process is more sporadic. It is initiated as each maintenance gang is terminated in response to the completion of projects and the onset of bad weather. In terms of seniority ranking, those are random happenings. The result can be chaotic in terms of predicting those positions which will afford a particular employee a reasonable expectation of protection against being displaced in the further exercises of the bumping process.
The grievor, as stated, was working at Williams Lake when he was displaced. He was working in Gang 203. Working in the same gang as a machine operator was an employee by the name of Ujagar Singh Gill. He had been awarded the position as a temporary vacancy on August 8, 1983 and he continued to occupy it until December 5, 1983. The grievor could have displaced Mr. Gill on November 14 and could thus have avoided a layoff. However, the grievor wanted to return to Prince George to determine whether he could obtain a position for the winter closer to his home in Fort St. James.
In addition to Mr. Gill there was an employee by the name of Kerry Bruce Hillier who was occupying a position as a machine operator helper on a crane in a gang at Charles Creek at the material time and who lacked classification seniority. The grievor was also entitled to displace Mr. Hillier. Finally, as stated, it was agreed and there were employees in the extra gang whom the grievor could have displaced on November 14 in order to maintain his employment.
I repeat, the grievor elected to return to Prince George to determine if he could obtain a position closer to home. He left the work site on the evening of November 13, and returned to Fort St. James. The following day, November 14, he telephoned to the records office in Prince George and spoke with Mrs. Laferdy. He also spoke with Victor Heidner, an equipment field supervisor who was in a position to be aware of possible positions the grievor could claim. There is some dispute with respect to precisely what was said in the conversation with Mr. Heidner. However, it was apparent that the grievor inquired of Mr. Heidner if he knew of positions available that the grievor could claim and was told by Mr. Heidner that he was not aware of any position.
In addition, Mr. Heidner asked the grievor if he had given consideration to the extra gang and was told by the grievor that he did not have “gang seniority”. Mr. Heidner said that he would make inquiries in that regard. Both parties agree that classification seniority is not necessary to claim a position in the extra gang and that there were employees in it whom the grievor could have displaced on the basis of superior service seniority. Mr. Heidner said that he was not aware that a job could be claimed in the extra gang on the basis of service seniority. By reason of that misunderstanding the grievor was misled as to his seniority rights.
In his telephone call to Mrs. Laferdy the grievor made a general enquiry as to the availability of positions occupied by employees he was entitled to displace. On November 16, at the latest, the grievor travelled to the records office to obtain a displacement list. The grievor did not retain the list but the parties agreed that it contained approximately 20 names of machine operators junior to the grievor in classification seniority, their status in terms of whether they were working and, if they were working, their work location and job. The information on the list was augmented by Mrs. Laferdy with information she had accumulated that had not yet been entered into the computer. There was no evidence as to when the last update of the computer had taken place, but it was clear that the existing information was outdated due to the rapid changes occurring as the reduction in the work force acted itself out.
In any event, Mrs. Laferdy kept an informal record of changes that occurred between updates and her practice was to offer that information to displaced employees to assist them in making an informed decision. In addition to information that was not yet entered into the computer, Mrs. Laferdy, through long experience, could predict whether a particular position was one a particular employee could defend against further bumping. She also offered that type of guidance to displaced employees who wanted it.
In official terms, however, the only information supplied to displaced employees by the Railway is their particular displacement list. The evidence was that further information would be made available on specific request, but was not routinely offered. That fact is significant because a displacement list, as stated, does not deal expressly with vacant positions into which an employee can bump. It lists all employees junior in classification seniority to a particular employee. Coincidental with that list is information on the status of each employee, including their location and the nature of the position they currently occupy.
As stated, a displacement list must be obtained for each classification in which a displaced employee holds seniority. (Machine operators of all levels, including helpers, appear on one list). But employees, such as Mr. Hillier, who occupy positions in a classification but who lack classification seniority do not appear on displacement lists in that classification. Because the displacement list and the computer itself deals with employees as opposed to jobs, positions into which an employee can bump are listed coincidental with the employees who occupy them from time to time. The manner in which a displacement list is prepared is by instructing the computer to retrieve the names of all employees in a given classification in order of seniority. It is for that reason that employees who lack seniority in the classification applicable to the job they occupy do not show up on a displacement list.
The irony, of course, is that an employee will be fully informed with respect to positions in his classification occupied by employees junior to him in classification seniority but not with respect to employees holding such positions who have no classification seniority at all. The same result occurs with respect to service seniority and employees who occupy positions in the extra gang or other jobs where the competition, for various reasons, is determined on service seniority. That information is not retrieved on a displacement list.
Returning to the particular events, when the grievor reviewed the displacement list with Mrs. Laferdy he was informed that there was only one employee holding a position into which he could bump, and that was Mr. Gill. But Mrs. Laferdy cautioned the grievor against claiming that job because she had been informed by a more senior employee that he intended to bump into the position the next day. At the time she conveyed that information it was accurate. However, the senior employee changed his mind and Mr. Gill continued to occupy the position until December 5, 1983.
In the final result, the grievor concluded on November 16, that there were no positions available to him and he continued on layoff. He made periodic enquiries of Mrs. Laferdy and Mr. Heidner thereafter about available positions but remained on layoff until he was informed about the crane helper position occupied by Mr. Hillier. The grievor claimed that position on December 7, immediately upon hearing about it. On the evidence he was entitled to claim it as early as November 14 and would have done so on November 16 rather than continue on layoff. The same is true of Mr. Gill’s position and the extra gang positions. He would have claimed them rather than face a continued layoff. It is clear that he did not seek to displace employees in any of those positions because he was unaware of the facts. The position of the Union was that the Railway is liable to compensate the grievor for his wage loss at the machine operator rate payable in the position occupied by Mr. Gill because the grievor would have claimed the position if he had known it was going to last for a further period of time. In the alternative the Union sought compensation at the rate paid to Mr. Hillier.
The Railway submitted that the position of Mr. Gill was available to the grievor without him having to leave the gang and that he could have learned of his entitlement in that regard with a simple enquiry at the gang office. The Railway further observed that the information given to the grievor by Mrs. Laferdy was accurate at the time it was given and that the onus was on the grievor to determine whether the status of the position had changed. In the same vein the Railway said that the grievor had not sought information on employees, such as Mr. Hillier, who lacked classification seniority in the positions they occupied and the Railway could not be faulted for failing to volunteer such information. In any event, said the Railway, the collective agreement does not require it to make any particular information available to employees and it cannot be faulted or held accountable if an employee remains on layoff through ignorance brought about by a failure to pursue specific information on available positions. The only obligation of the Railway, in its submission, is to respond to enquiries and to permit employees to claim positions on the basis of seniority.
Turning to the collective agreement it is important to note, as pointed out by the Railway, that there are no specific provisions of the collective agreement that require the employer to provide information to employees who have been displaced or who otherwise face layoffs. An arbitrator has no jurisdiction to amend, alter or add to a collective agreement and in particular has no jurisdiction to write provisions in to perceived deficiencies in the agreement. His only jurisdiction is to discover and apply the mutual agreement of the parties.
That does not mean that an arbitrator is restricted to a literal interpretation or that the mutual intention Of the parties must be found in express language. The meaning intended can be found by implication as well as in clear language. In this collective agreement seniority figures prominently in the job security of employees. Employees are afforded a right to retain their employment based upon their seniority and their qualifications to perform available work. A clear implication arises from that structure to the effect that employees are entitled to exercise their rights on an informed basis and are entitled to look to the Railway, as the repository of the necessary information, to make it reasonably accessible before the Railway places them on layoff.
However, the submission of the Union went substantially beyond imposing on the employer an implied obligation to provide reasonable information. The Union sought to impose an obligation to provide constantly updated information on the continuing status of all maintenance of way employees so as to inform them of every employee with respect to whom they could exercise their service or classification seniority rights, including the location of those employees and the positions they occupy.
In particular, the Union called evidence from Ronald H. Stavast, a senior official of the Canadian Union of Transportation Employees, Local 1. Mr. Stavast gave evidence with respect to a dispatcher’s office maintained by the Railway with respect employees in the running trades. That office permits those employees to claim positions on the basis of precise information with respect to seniority and the positions available into which a particular employee can bump. That facility, the crew dispatcher’s office, is manned continuously. Running trades employees report their movements immediately to that office and the dispatcher is thus able to give precise information to any employee who makes an enquiry.
The Union sought imposition of a similar resource with respect to maintenance of way employees. The implication in the Union submission was that the failure to establish a similar resource, or its equivalent, would amount to a breach of the collective agreement. In response to that submission the Railway called evidence from Dan Pysh, the superintendent of industrial relations, who said that the establishment of a similar resource for the maintenance of way employees was impractical for a number of reasons. He pointed out that employees in the running trades are located only in the various major centres served by the Railway with access to good communications. He further pointed out that there was only one seniority list in the running trades, whereas the combination of service seniority and classification seniority in the maintenance of way operation could produce in excess of forty lists.
Mr. Pysh said further that the payroll information for the running trades is maintained on a daily basis whereas payroll information in the maintenance of way bargaining unit is assembled twice monthly. Finally he said that the crew dispatcher’s office had to be manned on a continuing basis for operational purposes whereas the employee records office in Prince George has no direct operational role. It is kept open only on an eight-hour day, five days per week, making it impractical to have the same accessibility as the crew dispatcher’s office.
I reiterate that an arbitrator does not have the jurisdiction to write language into a collective agreement or add to its terms. There is no provision in this collective agreement which supports an obligation in the Railway, either expressly or implicitly, to establish an office equivalent to the running trades crew dispatcher’s office or to provide instant information to employees in the maintenance of way bargaining unit with respect to their exercise of their bumping rights. That does not mean that the Railway is not obligated to provide information to employees that will equip them to exercise their seniority rights in an informed way. I agree with the submission of the Union that there is an obligation on an employer to act reasonably in the administration of its collective agreement. That obligation, is sometimes called the “doctrine of fairness”. See: Re Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983) 9 L.A.C. (3d) 137 (Swan) @ 139. Some arbitrators call it the “theory of reasonable contract administration and interpretation”. See: Re Photo Engravers and Electrotypers Ltd. and Toronto Printing Pressmen and Assistants’ Union, No. 10 (1980) 25 L.A.C. (2d) 88 (Adams) @ 101. I will deal later with the significance of that principle in terms of its application to this dispute.
The employer took the position that the facts did not raise any issue on interpretation. In its submission it was simply a question of whether the grievor had been supplied with the information he requested as to the positions available into which he could bump. I agree with the submission of the Railway that the issue is whether reasonable information was provided. However, whether that question is seen as limited to one of application or whether it is seen as raising a question of interpretation, it does require a determination of the extent to which the employer is obligated to put an employee who faces layoff into a position to exercise an informed decision with respect to his bumping rights. I turn now to the submissions of the parties with respect to their perception of the dispute.
In this collective agreement the parties are required, in general terms, to submit a “joint statement of issue” to the arbitrator prior to the commencement of an arbitration. The contemplation is that the statement of issue will be joint in the sense that both parties will agree to it. The agreement invests in the arbitrator a jurisdiction to grant leave to the parties to file a separate statement of issue in the event that a joint statement cannot be reached. In this dispute the parties were not able to agree on a joint statement. In the result the Railway filed an independent statement of issue. That statement reads as follows:
The issue is whether British Columbia Railway violated Article 10.4 of the Collective Agreement. The Grievor has claimed that the Railway did violate that Article and has claimed for lost wages. The Railway has denied the claim.
I will set out the text of Art. 10.4 and its significance in terms of the issues later in this award. Turning to the Union statement, the issue was defined in its preliminary submission as follows:
The issue is whether Robert Miner should have been provided information by the Railway when he was laid off November 14, 1983 as to what employees junior to him in positions for which he was qualified were working at permanent positions or temporary vacancies of less than 30 days.
No objections were taken by the parties with respect to the manner in which the statements of issue were filed. The Union defined the issue in the opening of the arbitration in the context of three questions. Those questions were as follows:
(1) What duty is there on the Railway to conduct operations in such a fashion as to provide laid off or displaced employees with up-to-date information so they can make decisions as to the exercise of their seniority rights?
(2) was there an error on the part of the employee records coordinator either with respect to Mr. Gill or her failure to inform the grievor between November 15 and December 7 that Hillier was working and that Miner could claim his job?
(3) Whether employees are entitled to exercise service seniority with respect to positions they are qualified to occupy that are occupied by employees who hold no classification seniority and who are junior in service seniority to the employee advancing the claim?
It was clear from the circumstances as they evolved that incorporated in the third issue identified by the Union was a question as to whether there is a positive obligation on the employer to provide employees with continuous up-to-date information with respect to junior employees that senior employees are eligible to displace and the nature of the positions occupied by those junior employees. The Railway did not disagree with the Union’s articulation of the issues but maintained its original position that they did not involve any interpretation of the collective agreement. The submission of the Railway was that once the necessary findings of fact were made with respect to the evidence, it was simply an issue of applying the collective agreement to those findings.
I agree in substance with the general statement of the Union that a proper interpretation of the collective agreement requires that the employer respond to requests for information from employees who face layoff with reasonable information as to the positions available to them. That is so despite the fact that there is no express provision requiring the Railway to provide information to employees who face layoff. The obligation of the Railway to provide reasonable information is one that arises by necessary implication.
In that context, I repeat that there is a general arbitral consensus that there is an obligation in the parties to act reasonably in the administration of the collective agreement. In other jurisdictions, as stated, the concept has been described as a “doctrine of fairness”. In British Columbia that approach has been criticized by the Labour Relations Board in decisions in which the board was exercising its appellate jurisdiction to review decisions of arbitrators under s. 108 of the Labour Code. In one such decision the board was sitting in review of one of its panel decisions made in the exercise of the arbitral jurisdiction vested in the board under s. 96(1) of the Code. In its review decision, Simon Fraser University and Association of University and College Employees, Local 6, Teaching Support Staff Union, (1983) 2 Can. L.R.B.R. (N.S.) 329 (Black), the board concluded that there was no need to incorporate an “amorphous doctrine of the duty of fairness” into the principles governing the interpretation of a collective agreement in British Columbia. (See p. 339).
The question of the extent to which a duty to act fairly is to be implied into a collective agreement in this province was canvassed thoroughly by J.E. Dorsey, a former vice chairman of the Canada Labour Relations Board, in Re Metro Transit Operating Co. and Independent Canadian Transit Union (1964) 14 L.A.C. (3d) 358 (Dorsey). That decision dealt specifically with the obligation of an employer to act reasonably in the exercise of discretionary rights. The dispute in this case does not deal with the exercise of a discretion, but it does deal with an aspect of the same issue.
That is, the question here is whether the employer is obligated to act reasonably with respect to the administration of the provisions of the collective agreement so as to ensure that the rights of employees under the agreement are protected. On p. 367 of Metro Transit Mr. Dorsey considered an unreported decision of the Labour Relations Board in which the board sat in review of an award of Prof. Lysyk, as he then was, made as an arbitrator in British Columbia Institute of Technology and the B.C. Institute of Technology Staff Society. In its review of that decision under s. 108 the Labour Relations Board upheld the decision of Prof. Lysyk with respect to his conclusion that a decision by the employer to place two employees on layoff in response to budget restrictions was not unreasonable.
However, in the course of its review, the Labour Relations Board approved the determination by Prof. Lysyk, that an employer, in exercising a discretion reserved to it under a collective agreement, must do so reasonably and fairly in response to the legitimate rights and expectations of the bargaining unit and the Union as implied from the provisions of the collective agreement. A portion of one of the extracts from that decision relied on by Mr. Dorsey on p. 367 reads as follows:
… the board (Labour Relations Board) has carefully examined the evidence of the parties, and the relevant provisions of the collective agreement to ascertain if the employer’s decision, properly characterized on the evidence, can be found to violate any substantive provision of the agreement. The arbitrator examined the discretion exercised by the employer under art. 7.01.1, to ensure that it had been exercised reasonably and fairly so as not to defeat the legitimate rights and expectations of the parties to the collective agreement. In so doing, the arbitrator gave effect to the words of the agreement within the context of the parties’ intentions and reasonable expectations.
That passage articulates the arbitral test deemed appropriate in British Columbia when an arbitrator is required to consider whether either of the parties has acted unreasonably in its administration of the provisions of the collective agreement. Earlier, on p. 366, Mr. Dorsey set out extracts from the decision of the Labour Relations Board in Simon Fraser University. A portion of an extract cited on pp. 347-8 reads as follows:
We would summarize by stating that the preferable approach and one that is consistent with arbitral jurisprudence is to require that arbitrators examine the entire collective agreement to ascertain if management’s decision, properly characterized on the evidence, can be found to violate any substantive provision of the agreement, even though no express provision may address the issue at hand. The absence of specific language in a collective agreement is not a complete bar to search for other sources of limitation on management’s rights. While maintaining a discretion for the employer with respect to its task, this approach requires that arbitrators review the terms of a collective agreement within an interpretative framework which gives substance to the terms of an agreement, by examining its words in light of the reasonable expectations and intentions of the parties.
In an earlier passage from the decision cited by Mr. Dorsey it was noted that the board concluded that: “Reasonableness also includes, by its very nature, an element of fairness.” Thus, however it is characterized, there is an obligation on both parties to administer the collective agreement in a manner that affords to the other party those rights seen to arise expressly or by implication from the language of the collective agreement. That principle of interpretation cannot be used to give to an arbitrator the jurisdiction to amend or alter the collective agreement so as to impose on the parties an obligation they did not agree to in collective bargaining but it is sufficient to require the parties to act reasonably in the application of the language to which they did agree.
In the context of this dispute, the question is whether the provisions of the collective agreement dealing with seniority and layoff impose on the employer an obligation to provide employees facing layoff with reasonable information so as to permit them to make an informed decision with respect to the exercise of their seniority rights. Such an obligation arises by clear implication from the structuring of the layoff provisions.
However, that finding must reflect a note of caution. The maintenance of way work force is a changing mosaic in which employees are displaced and sent bumping as much on the individual initiatives of the bargaining unit as by the Railway. In many cases the Railway does not make a conscious decision to layoff an employee and does not know the employee is in that status until the computer discloses that he was displaced on one job but has not yet claimed another.
The facts surrounding the “layoff” of the grievor are a suitable example. He was displaced by a senior machine operator in Gang 203. He could have immediately displaced Mr. Gill. In actual fact he did not enquire as to whether there was a vacancy in the gang because he wanted to determine if he could bump into a position closer to home. In that sense the grievor placed himself on layoff. Thereafter, his return to employment was subject to his own initiative. Presumably the Railway was not aware of his status or his intentions until he approached Mrs. Laferdy in the records office in Prince George.
The Union, as stated, alleged that the Railway was in breach of Art. 10.4. It will be remembered that Art. 10.2 gives to employees a right to exercise seniority rights but requires them to be exercised within fifteen days. Art. 10.3 provides that employees who fail to exercise their rights within fifteen days will be deemed to have quit. For convenience, I repeat the text of Art. 10.4. It reads as follows:
10.4 Employees unable to exercise seniority will be laid off and when staff is increased such employees will be recalled in order of seniority subject to being qualified to work the position to which recalled.
The position of the Union was that the failure to advise the grievor fully with respect to his bumping opportunities resulted in him being placed on layoff improperly under Art. 10.4 in the sense that he incorrectly presumed himself to be “unable to exercise [his] seniority”. I agree with the Union. The Railway did not place the grievor on layoff in the first instance. He was displaced by operation of the collective agreement and the initial layoff occurred because of choices made by him. Thereafter, however, he informed the Railway that he wanted to exercise his rights under Art. 10.2 and he was misled by the Railway as to the opportunities available.
In terms of the administration of the collective agreement the result was the same as it would be if the Railway had made a conscious decision to place the grievor on layoff without affording him a proper opportunity to exercise his rights under Art. 10.2. He enquired about opportunities available to exercise his seniority rights and, on the basis of what he was told, concluded there were none. The Railway was obliged to respond to that enquiry in a reasonable fashion. It was not reasonable for the Railway to institute a procedure whereby information it gave employees facing layoff was limited to the information that could be obtained from a displacement list and the informal updating and analysis of that information by the coordinator.
The language of the agreement will not sustain a requirement that the Railway institute a program whereby information with respect to all positions available to an individual employee is recorded and made constantly accessible. Nor does the language imply an obligation in the Railway to tailor information to the needs of a particular employee or to provide each individual employee with information on all of the permutations of positions available to him. But there is an obligation to provide reasonable access to relevant information that the Railway has available to it.
The Railway failed in that obligation on the facts in this dispute. In particular, the failure to inform the grievor of the fact that Mr. Hillier was a junior employee occupying a position for which the grievor held classification seniority was a failure to provide the grievor with reasonable information with respect to his bumping rights. The fact that the grievor did not expressly request information with respect to that category of junior employee is no answer. The grievor made it clear to the official designated by the Railway to serve that purpose that he wanted information as to available positions he could claim. It is unreasonable for the Railway to impose unilateral limits on the extent of the information it makes available and then fault the employee for failing to request more specific information.
On the evidence the only conclusion to be reached is that the grievor was unaware of the fact that other positions existed and the procedures instituted by the Railway did nothing to alert him to that possibility. On that basis I find that the Railway maintained the grievor on layoff on November 16 without informing him that there were positions he could claim by virtue of his seniority. The Railway was aware that the grievor wanted to keep on working and had received a specific enquiry from him as to available jobs.
That finding does not extend to the circumstances surrounding Mr. Gill. Undoubtedly the grievor was misled with respect to the status of the position occupied by Mr. Gill by what he was told by Mrs. Laferdy, but he was misled by circumstances over which neither he nor Mrs. Laferdy had any control. To hold the Railway responsible to compensate the grievor in those circumstances raises the possibility that future employees will be denied the extremely helpful but informal services of the coordinator with respect to changes in status between computer updatings.
As I have pointed out, the agreement cannot be interpreted so as to require the employer to provide constant computer updating. In any event, the failure to update the computer was not shown to have any adverse effects on the rights of the grievor. Updating would not have changed the response of the Railway with respect to Mr. Hillier and the junior employees in the extra gang. Nor would it have told Mrs. Laferdy that the senior employee who had indicated a further intention to claim Mr. Gill’s job would not in fact claim it. The circumstances would still require someone to enquire after the event whether the intention had been carried out.
An employee who is required to exercise his rights under Art. 10.2 cannot thrust the entire responsibility on the Railway to put him in a position to make an informed decision. That is not to suggest that the grievor can be faulted for the fact that he did not persist in his enquiry with respect to Mr. Gill. But neither can Mrs. Laferdy or the Railway be faulted unless one can read into the collective agreement an obligation on the Railway to ensure that all information given is correct as opposed to an obligation to act reasonably in ensuring the accuracy of information given.
On the evidence the grievor was aware of the informal nature of the advice given by Mrs. Laferdy with respect to the position occupied by Mr. Gill and he accepted it. The information was given in good faith and was contingent upon future events, a fact also known to the grievor. Employees who solicit or obtain informal advice with respect to the status of particular positions must take that information as they find it. The evidence of the grievor himself was that employees are knowledgeable with respect to what vacancies exist. In response to a question about employee knowledge on such matters, he said: “You pretty well know what is going on when you work there. There is a lot of grapevine [information].”
The submission with respect to Mr. Gill would require me to find that there is a positive obligation on the Railway to proffer information to employees facing layoff and to ensure the continuing accuracy of the information. Only on that basis could I find that the information given by Mrs. Laferdy, which was accurate at the time, raised in the Railway a duty to continue to monitor that particular position and to inform the grievor of any changes. That is not an interpretation that the language of the collective agreement will reasonably bear.
The obligation of the Railway is to respond to enquiries by making available the information it has in its possession. Included in that obligation is an obligation to retrieve information stored in its computer. The displacement list as interpreted by Mrs. Laferdy on November 16 was accurate. The grievor did not seek an update of the list or the analysis of it by Mrs. Laferdy.
The subsequent enquiries of the grievor did not raise that particular issue and it would be impractical to suppose that Mrs. Laferdy was required to monitor the status of the grievor as one employee out of hundreds. The Railway was accountable for the fact that the grievor was not informed that he had options available to him other than layoff when his enquiry raised that very question, but the manner in which the circumstances surrounding Mr. Gill were handled did not disclose any unreasonableness on the Railway’s part.
I do not propose to answer the questions posed by the Union in specific terms. They do not lend themselves to a simple negative or affirmative reply. In the context of the dispute the answer to the questions is that it is implicit in the agreement that the Railway will not place an employee on layoff or continue an employee on layoff without first affording to him an opportunity to exercise his seniority rights under Art. 10.2.
In extending that opportunity, the Railway is obligated, upon request, to provide an employee who is on layoff or faces layoff with reasonable information with respect to employees against whom he is entitled to assert his seniority rights. Whether the Railway will be seen to have acted reasonably will depend upon the particular facts, including the availability of information, the initiative or lack of it by the individual employee and the steps both the employee and the Railway have taken to inform themselves of the relevant facts.
Where, as here, an employee has requested information as to available work and has pressed his request in terms indicating a continuing desire to exercise his rights under Art. 10.2, it is unreasonable for the employer to fail to inform him of employees whom he is entitled to displace.
On the facts the grievor made it known to the Railway on November 14 that he wanted to exercise his rights under Art. 10.2. However, the decision to remain on layoff at that stage was his because he wanted to consider what options were available to him. It was on November 16 that he informed the Railway in the person of Mrs. Laferdy that he was interested in any position available to him. (The evidence was not precise as to what discussion took place, but the clear thrust of the enquiry of the grievor was that he did not want to remain on layoff.)
At that stage the Railway had available to it the fact that Mr. Hillier was occupying a position the grievor was entitled to claim. That information was not made available to the grievor because the Railway had imposed limits on the information to be included in a displacement list. The effect was that the Railway continued the grievor on layoff despite the fact that he wanted to exercise his seniority and despite the fact that the Railway had it within its knowledge that there were positions available.
As alleged by the Union, the Railway was in breach of Art. 10.4 because it continued the grievor on layoff rather than affording him an opportunity to displace Mr. Hillier. The answer of the Railway that Mrs. Laferdy was not specifically aware of Mr. Hillier at the time the grievor enquired is irrelevant. That information was available to the Railway and the reason it was not accessed by Mrs. Laferdy and communicated to the grievor was the decision of the Railway to restrict its response to displaced employees.
That decision was inconsistent with the implied right of an employee to make an informed decision when he is displaced or is otherwise thrown upon his rights under Art. 10.2. In the circumstances it constituted an improper layoff of the grievor. In the result the grievance is granted. The grievor is entitled to be compensated for his lost wages at the rate he would have earned if he had displaced Mr. Hillier on November 16. I will retain jurisdiction to assist the parties in implementing this award if that becomes necessary.
DATED at the City of Vancouver, in the Province of British Columbia, this 18th day of February, A.D., 1985,
(signed) H. ALLAN HOPE, Q.C.