AH 247

BETWEEN:

CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL 6

(the ”Union”)

AND

BRITISH COLUMBIA RAILWAY COMPANY

(the “Railway”)

IN THE MATTER OF THE GRIEVANCE of Rowe

Sole Arbitrator:            H. Allan Hope, Q. C.

There appeared on behalf of the Employer:

                                                                Mary E. Saunders

There appeared on behalf of the Union:

                                                                Robert Dhensaw

A hearing in this matter was held at Prince George, British Columbia, on the 28^th day of June, 1985.

AWARD

I

                In the grievance giving rise to this arbitration the union alleged that the grievor should have been called out to perform work on overtime on Thanksgiving Day in 1984. In 1984 Thanksgiving Day fell on Monday, October 8 and the overtime assignment arose as a result of a wash-out of a portion of the rail line operated by the employer. The wash-out was such that it stopped train traffic. The wash-out was detected and was reported to the responsible officer of the railway, being Peter Rebagliati, the roadmaster in charge of the section of line involved.

                At the material time the grievor was ordinarily assigned to the section gang at Tacheeda, being the section gang responsible for the portion of the line in which the wash-out occurred. Mr. Rebagliati was located at Tumbler Ridge, the central location in the section immediately adjacent to the one in which the wash-out occurred. There is a section gang located at Tumbler Ridge which is also under the supervision of Mr. Rebagliati and which has responsibility for the rail line in the adjacent section.

                When Mr. Rebagliati learned of the wash-out he contacted Tacheeda and learned there were two section men available at the camp, but no section foreman. He made inquiries in his own location at Tumbler Ridge and discovered that there were two members of the Tumbler Ridge section gang available. However, again there was no foreman on site at Tumbler Ridge. He next telephoned to the residence of the tumbler Ridge section gang foreman, Alan Hanson, who resides in Prince George. Receiving no answer at the residence of Mr. Hanson, he telephoned to the residence of the foreman of the Tacheeda section gang., Anthony Celli, which was also located in Prince George. Mr. Celli was not a home but Mr. Rebagliati spoke with Mr. Celli’s mother and asked her to try to reach Mr. Celli and advise him that there was a wash-out. He asked Mrs. Celli to tell her son to travel immediately to Tacheeda, pick up all available section gang employees located there, and to then report to the site of the wash-out for the purpose of effecting repairs.

                Having made that arrangement, Mr. Rebagliati took the two Tumbler Ridge section men who were available in camp and traveled to the wash-out site. En route he made contact with a work train in the vicinity and seconded the necessary equipment to repair the wash-out. He directed the train crew to proceed to the wash-out site with the work train and he went on ahead to work at effecting repairs while he awaited its arrival and the arrival of Mr. Celli.

                In the meantime, Mr. Celli received the message from his mother but a misunderstanding arose in the course of it being communicated. In particular, the instruction of Mr. Rebagliati to come to Tacheeda and pick up all available members of the section crew was communicated to Mr. Celli as a request that he get all available men from Prince George and attend at the wash-out site. Mr. Celli telephoned to the homes of several members of his section gang who resided in Prince George but was unable to find any available. In the result he traveled alone to the Tacheeda camp where he picked up the two section men available there and traveled to the wash-out site. Thus, in the final result, the instructions of Mr. Rebagliati were inadvertently complied with by Mr. Celli.

II

                At the time those events were occurring the grievor, John Rowe, was at his home in Prince George. He was available for work and would have attended at the wash-out site if he had been contacted by Mr. Celli, the foreman. In explaining why he had not contacted Mr. Rowe, Mr. Celli conceded that Mr. Rowe was normally assigned to his section gang but that he had been detached from the gang and assigned to perform flagging duties in another department. The assignment had been for a period of two weeks and he had not yet reported back to the section gang at the time the wash-out occurred.

                In his evidence Mr. Celli said that the grievor was “keeping his own time”. From that I drew the inference that Mr. Rowe was not included in the time records maintained by Mr. Celli because of his flagging assignment and that the grievor was recording and reporting his time directly to the railway. Mr. Celli did not turn his mind to the question of the availability of Mr. Rowe. Part of his explanation was that he did not have the grievor included in his payroll record of the gang an did not think of him.

                It is clear on the evidence that Mr. Rowe did not return to the section until the following Tuesday, being October 9, 1984. However, his flagging assignment had been concluded on the previous Friday, being October 5, 1984. Mr. Rowe knew during the week prior to October 5 that he would be returning to the section gang and he spoke to Mr. Celli on Tuesday or Wednesday of that week and informed him casually of that fact. It is not clear on the evidence whether he informed Mr. Celli that he would be returning to the section gang but his regular job assignment was to the section gang and I can presume that the expectation would be that he would return to it. From the point of view of the railway, however, he was not assigned to the section gang at the material time.

                Mr. Celli and the four section men earned 17 hours overtime on October 8 and the claim of the union is that the grievor, being a regular member of the Tacheeda section gang, should have been given an opportunity to work that overtime in preference to the two section men who were enlisted from the Tumbler Ridge gang. In advancing that argument the union relied on the following provision of the collective agreement:

Article 3.7

Except as otherwise provided in Section 3.6 of this Article, where track work is required on a rest day, preference shall be given to employees regularly working on that track section to perform such work, wherever this is reasonably practicable, before calling men from an adjoining track section.

                The position of the union was that it was clear from the evidence the grievor was an employee who was ”regularly working [the Tacheeda] track section” and was thus entitled to be called for the work. The union said that the fact the grievor was assigned to flagging duties did not diminish the fact that he was regularly assigned to that section gang within the meaning contemplated in the provision.

III

                The railway took three positions. The first position arose on the facts and was to the effect that the grievor did not fall within the definition of an employee “regularly working on that track section” at the material time because he had been temporarily assigned to work at other duties in another department of the railway. I will canvass the facts surrounding that aspect of the submission of the railway later in this award.

                Next, the employer said that the wash-out which gave rise to the overtime assignment was one which affected operations and which had to be repaired immediately. In summary, the employer said that the circumstances of the wash-out constituted an emergency condition which entitled the railway, in effect, to waive the application of Article 3.7. In particular, the employer said that Article 3.7 only applies in circumstances where giving priority to the particular track gang is “reasonably practicable” and when an emergency condition arises it must be presumed that it is not reasonably practicable for the railway to give priority to particular employees.

                Finally, the railway said that Thanksgiving Day is not a “rest day” within the meaning of the disputed provision. In particular, the employer pointed out that the portion of the collective agreement dealing with “general holidays” , one of which is Thanksgiving Day, makes a distinction between a rest day and a general holiday. The provision in question reads in part as follows:

Article 4.1

An employee who qualifies in accordance with Section 4.3 of this Article shall be granted a holiday with pay on each of the following general holidays. When a general holiday falls on an employee’s rest day, such holiday shall be moved to the normal working day immediately following the employee’s rest day. (emphasis added)

                The submission of the employer was that interpreting “rest day” as including a general holiday would be to give the term a meaning contrary to the clear distinction made between those two terms in Article 4.1.

                In that same context the employer relied generally on the provisions of Article 2 of the collective agreement, being the provision which deals with hours of work. In that context the employer pointed out that “rest day” is defined as contemplating the two days out of a seven day period in which an employee receives his days of rest. That submission is in accord with the language of the collective agreement. Article 2.9 defines work week as being “a period of seven consecutive days starting with Monday”. Article 2.11 provides that “rest days shall be consecutive as far as possible and preference given to Saturday and Sunday or Sunday and Monday”. That language mitigates against finding that he parties intended to include a general holiday in the term “rest day”.

IV

                Dealing first with the submission of the railway that the grievor can be seen as excluded from the provision for the reason that he was assigned elsewhere on a temporary basis, that question raises in issue the meaning to be assigned to the term, “employees regularly working on the track”. In my view the union is correct in its submission that an employee who is assigned to a particular track section as his regular job does not cease to be an employee “regularly working on that track section” because of a temporary assignment elsewhere.

                It will be necessary to assess each circumstance on its particular facts, including the length of the temporary assignment, the expectation that the employee will return to the section gang and the availability of the employee for overtime work while on temporary assignment. In particular, the circumstances with respect to an employee who regularly works on a section gang who is eligible for callout on overtime under Article 3.7 and who is on temporary assignment is a function of whether his callout on overtime would be “reasonably practicable” despite the fact that he is on temporary assignment. But the employee is not disentitled merely by reason of being on temporary assignment.

                In the case of the grievor, it was as reasonably practicable to call him out for the assignment as it was to callout Mr. Celli, the section foreman. He was, on the evidence, readily available in Prince George and desirous of accepting the assignment. He was an “employee regularly working on that track section” and was due to rejoin the section gang on the next regular work day.

                Turning next to the submission that Article 3.7 should be suspended in the face of every circumstance considered by the railway to be a state of emergency, I am of the view it does not necessarily follow that it is not reasonably practicable to callout members of the section gang in the section affected simply because the circumstances giving rise to the callout is seen by the railway as an emergency condition. The railway, as stated, tied its reasoning with respect to that submission to the presence of the term, “when reasonably practicable”, as it appears in the disputed provision.

                The submission is that the presence of an emergency permits the railway to have resort to the most immediately available means of meeting the emergency, including the callout on overtime of employees other than the section gang in the section involved. The submission, in effect, was that it could not be considered reasonably practicable in a state of emergency to compel the railway to abide by the provision.

                It seems to me that whether giving priority to the section gang would be reasonably practicable is a function of the particular circumstances and the extent to which the callout of members of the particular section gang is compatible with a response to the circumstances giving rise to the work. That is, I do not see in first blush that the fact that the railway considers that a state of emergency exists permits it to disregard the application of Article 3.7. In every case where there is an overtime assignment falling within the scope of Article 3.7 there is an obligation in the railway to consider whether it is reasonably practicable to callout the employees to whom priority is given under the collective agreement.

                For the railway to equate a state of emergency with a lack of reasonable practicability would amount to an amendment of the agreement to include a restriction on the benefit which goes substantially beyond the language selected by the parties. One can assume that circumstances which require a callout on rest days will generally involve an emergency of some degree and the approach of the railway would substantially restrict the benefit extended to employees under Article 3.7.

V

I turn finally to the submission that Thanksgiving Day is not a “rest day” within the meaning of the collective agreement. In my view the railway is correct in its submission with respect to the meaning to be assigned to the term “rest day”. On the language of Article 4.1 it cannot be presumed that the parties intended to include a “general holiday” within the term. In fact, a clear distinction is made between the two terms. To assigned that meaning to the term would be to ignore the clear language of the agreement.

                The union was of the view that the position of the railway was unduly technical and that the intention of the parties implicit in the provision is to ensure that employees who normally perform particular work should have first claim for overtime opportunities which present themselves during the course of ordinary operations. In that context, submitted the union, there is no difference which can de detected between a rest day and a general holiday. I have no difficulty in agreeing with that reasoning. There is no apparent distinction between the need to perform work on a rest day when the section gang is not working and a general holiday when the gang is not working. However, agreements are not made arbitrators.

                Benefits of the kind asserted by the union must be negotiated and recorded in suitable language which either makes the intention to grant the benefit express or where that intention arises by clear implication. An intention to confer a benefit of the kind asserted can arise by inference. The employer could be found obligated to extend the benefit by virtue of the language selected, even assuming it did not form an express intention to confer it, if the language and the circumstances support the meaning asserted.

                But an arbitrator has no jurisdiction to alter, amend or add to a collective agreement or to interpret it contrary to the ordinary meaning of the language selected unless there is persuasive evidence that the parties mutually intended some meaning other than that expressed in the language itself. Here the parties make an express distinction between rest days and general holidays and they limited the right of priority consideration in overtime assignments to assignments made on rest days. General holidays were not included within the scope of the benefit and to extend the application of the benefit to general holidays would be to amend the collective agreement to add a benefit which the railway neither bargained for nor agreed to extend and which is contrary to the language selected.

                The general principles which guide an arbitrator in the interpretation of a collective agreement were discussed at length in the decision of the Labour Relations Board in University of British Columbia and Canadian Union of Public Employees, Local 116 [1977] 1 Can. L>R.B.R. 13 (Weiler). It is clear from that decision that an arbitrator has no jurisdiction to ignore the language of the collective agreement. It is correct that the language of the agreement is subordinated to any persuasive and properly admissible evidence of the actual intent of the parties.

                The decision in UBC and CUPE requires an arbitrator to be sensitive to any indication that the agreement means something other than what the ordinary meaning of the language implies. Arbitrators are exhorted to consider whether the language, read in conjunction with any admissible extrinsic evidence, raises a “bona fide doubt about the proper meaning of the language in the agreement”. (See p. 18) Some insight into what constitutes a ‘bona fide doubt” can be gained from the following extract from p. 19 of UBC and CUPE:

When one appraises these two alternative interpretations in light of the language on the surface of the collective agreement, neither is logically compelling. Each is a reasonably plausible construction of schedule A, and thus the arbitrator must be left with some bona fide doubt about the mutual expectations of the parties respecting this issue.

                But the language in this dispute does not afford of two reasonably plausible alternative meanings. Here a clear distinction is made between a rest day and a general holiday. It may be that if the parties had addressed that issue in bargaining they would have agreed that the disputed provision should apply to general holidays - but there is no basis in the language for me to infer that result. The appropriate course for the union is to pursue the issue in collective bargaining. In the result, the grievance is dismissed,

                Dated at the City of Vancouver, in the Province of British Columbia, this 12^th day of September, A.D., 1985.

H. ALLAN HOPE, Q. C. - Arbitrator