(hereinafter referred to as the “Railway”)
TRANSPORTATION COMMUNICATIONS UNION,
SYSTEM BOARD 496, LODGE 1828
(hereinafter referred to as the ”Union”)
(Technological Change Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: David Cox
Counsel for the Union David K. Pidgeon
There appeared on behalf of the Union: David K. Pidgeon
Place of Hearing: Vancouver, B.C.
Date of Hearing: April 20, 1990
This dispute relates to the introduction of technological changes to the manner in which trains are dispatched and controlled on the Railway. The dispute affects two classifications of employees, being dispatchers and operators. It involves three grievances which were filed by the Union on March 14, 1990. Since that filing, eight operator positions have been eliminated. The three grievances allege a violation of an agreement, called the Job Security Agreement (JSA), which is supplementary to the collective agreement in force between these parties. The JSA contains provisions setting out a process for the resolution of disputes relating to “technological, operational and organizational changes”. I will set out those provisions later. Here it is sufficient to say that the process is separate from the grievance and arbitration provisions of the collective agreement under which I was appointed. In particular, the Job Security Agreement provides for the submission of disputes to an adjudicator who is called a “referee”.
This dispute raises a difficult jurisdictional issue. The parties agreed that I was properly constituted under the provisions of the collective agreement and that I have jurisdiction over the dispute put before me. However, they did not agree to constitute me as a referee under the JSA. In the result, I have no jurisdiction to resolve disputes that fall within the scope of that agreement. That being said, it is necessary to point out that the parties did not appear to be in complete accord with respect to the precise nature of the issue in dispute before me. The Union appears to be seeking a declaration that the Railway cannot proceed with proposed changes in the dispatch system, as they affect dispatchers and operators, until notice of those changes has been given under the JSA. It also appears to be seeking a declaration that the Railway is obligated to give it immediate notice with respect to the possible elimination of additional operator positions. The Railway, in effect, has refused to submit the Union grievances for resolution under the JSA. Its positions is that it has complied fully with the provisions of the JSA and that no further dispute exists that falls within its terms. Leaving aside the merits of the dispute, if is clear that the issues raised in the grievances fall within the jurisdiction of a referee appointed under the JSA and are thus beyond my jurisdiction of a referee appointed under the JSA and are thus beyond my jurisdiction as an arbitrator appointed under the collective.
The position of the union in its three grievances can be appreciated from submissions it made at the third stage of the grievance procedure. Those submissions are contained in three letters dated April 5, 1990. There are identical submissions which related to the following three issues of technological change:
1. Grievance No. 89-021: Implementation of a compute-based system of handling radio traffic.
2. Grievance No. 89-022: Notice of the implementation of FAX.
3. Grievance No. 89-023: Proposed Train Dispatch Control System.
That summary of issues is extracted from the three third stage letters. As stated, the submissions are identical. Their substance is illustrated in the letter relating to Grievance No. 89-021. That letter reads as follows:
The position of the … Union is that B.C. Rail has violated Article VIII of the Job Security … Agreement by not giving the Union proper notice of the implementation of a computer - based system of handling radio traffic. To date, the Union has not received a full description of this system and details of consequent changes in working conditions or the expected number of employees who will be adversely affected. The Union requests that B.C. Rail adhere to Article VIII giving the Union proper notice and reschedule the implementation date to allow the Union to make proper representation . Failing to agree to our request, we further ask that this matter be referred to arbitration for a final and binding resolution.
The submission makes it clear that the disputes relate to the interpretation and application of the JSA, not the collective agreement. In particular, the Union alleged in the grievances that the Railway was in breach of the JSA by not giving proper notice to the Union of the three areas of technological change in accordance with the provisions of that agreement. The initial provision of the JSA upon which the Union relies reads as follows:
8(1) The Company will not put into effect any technological, operational or organizational change of a permanent nature which will have adverse effect on employees without giving as much advance notice as possible to the General Chairman representing such employees or such other officer as may be named by the Union concerned to receive such notices. In any event, not less than three (3) months’ notice shall be given, with a full description thereof and with appropriate details as to the consequent changes in working conditions and the expected number of employees who would be adversely affected.
The position of the Union was that the Railway was obligated under that provision to provide a minimum of three months’ notice of the changes, but that it was obligated further to give “as much advance notice as possible” of any proposed changes that fall within the description contained in the provision. The Union conceded that the Railway was free to introduce such changes, but not until notice had been given in compliance with Article 8(1).
As stated, the remedy sought by the Union is a declaration that the Railway is required to give notice with respect to the disputed categories of change as a condition precedent to implementing them and to submit the dispute with respect to those changes to the process set out for the resolution of disputes in Article 8 of the job Security Agreement. Those provision ;read as follows:
8(4) Upon request the parties shall negotiated on items, other than those specifically dealt with in this Agreement, with a view to further minimizing the adverse effects on employees. Such measures, for example, may be related to exercise of seniority rights, or such other matters as may be appropriate in the circumstances, but shall not include any item already provided for in this Agreement.
8(5) If the above negotiations do not result in mutual agreements within thirty calendar days of the commencement of such negotiations, or such other period of time as may be agreed upon by the parties, the matters in dispute may be referred for mediation to a Board of Review composed of an equal number of senior officers of the Company and the Union.
8(6) If the Board of Review is unable to resolve the differences within a fixed period of time to be determined at the commencement of its meetings, or some mutually agreed extension thereof, the matters in dispute may be referred for final and binding settlement to a referee selected by the parties or, failing that, appointed by the Minister of Labour for the Province of British Columbia. The matters to be decided by the referee shall not included any question as to the right of the Company to made the change, which right the unions acknowledge, and shall be confined to items not otherwise dealt with in this Agreement.
The position of the Railway is that the JSA is limited in its application to technological changes which result in job loss or job dislocation and that its obligation to give notice is limited to three months. Its position was that it had given notice in that context with respect to the elimination of the eight operator positions and that no basis existed in the facts to require further notice. In support of its interpretation of the JSA, the Railway called extrinsic of the practice of the parties in the application of it. Before assessing that evidence, I repeat my observation that the disputes between the parties as pleaded in the grievances involves the proper interpretation of the JSA and its application to the particular facts. It seems clear to me that those are issues to be decided by a referee appointed under the JSA, not an arbitrator appointed under the collective agreement. The question before me is limited to whether the Railway is in breach of the collective agreement by reason of its refusal to submit the dispute with respect to the proposed changes for resolution under the provisions of the JSA.
Turning to that question, the only provision of the collective agreement dealing with technological change or with the JSA is Article 35.1. It does not deal specifically with technological change disputes. However, it incorporates the JSA in the collective agreement by reference. In my view, the incorporation of that agreement by reference carries with it a necessary implication that the parties will submit disputes relating to technological change for resolution under the process provided for it. Article 35.1 of the collective agreement reads as follows:
JOB SECURITY AGREEMENT
35.1 A Master Agreement is in effect, the text of which is outline din the Supplemental Agreement currently in effect.
In considering the implications of the JSA and its incorporation by reference in the collective agreement, it is necessary to view it in the context of s. 74(1) and s. 75 of the Industrial Relations Act. Those provisions read as follows:
74(1) A collective agreement entered after this Act comes into force shall contain provisions for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes relating to adjustment to technological change. [Am: 1987-24-38]
75. Where a collective agreement does not contain provisions for adjustment to technological change, the minister may, after considering the report of a person appointed by him to investigate the matter, by order, make provisions for that purpose. They shall be deemed terms of the collective agreement and binding on all person bound by the agreement. [1973-122-75;1983-10-21]
Those provisions require that there be a technological change agreement in force between the parties which “shall contain provisions for final and conclusive settlement” of all disputes “by arbitration or another method agreed to be the parties”. It would appear that the JSA is the provision negotiated between these parties to meet that statutory requirement and that the referee process is the dispute resolution method selected by them for the resolution of technological change disputes. Here the difficulty encountered by the Union in accessing that process is its apparent sense that a necessary prelude to invoking the JSA is the giving of notice by the Railway. It is for that reason that the Union seeks a declaration in these proceedings that the Railway is required to give notice with respect to the disputed changes and thus initiate the JSA process with respect to them.
That perception appears to have arisen because the JSA does not provide a defined process for accessing the dispute resolution provisions it contains. Nor does it provide for a formal process for the submission of a dispute to a referee. However, s.74 and s.75 of the Act contemplate that deficiencies in the dispute resolution language adopted by parties can be repaired by provisions which can be imposed so that the objective of a binding resolution of disputes can be achieved. Neither of the parties in this dispute have submitted that the dispute resolution process contemplated in the JSA is deficient, although it is open to either of them to seek resolution of the process if it is seen as inadequate in achieving the statutory objective. However, even in the absence of a defined process, I am of the view that the Union must be presumed to have right to initiate a dispute under the provisions of the JSA without awaiting the giving of formal notice by the Railway.
The form adopted by the Union in its stage three letters is not inconsistent with the dispute resolution provisions of the JSA when they are read in light of the requirement in s. 74(1) that such provisions provide access for the binding resolution of technological change disputes. Certainly the term, “dispute”, as defined in the Act, is sufficiently broad to encompass the technological change issues raised by the Union in the third stage letters so as to bring those issues within the term “disputes” as it is used in s. 74(1) of the Act. Further, looking at the Industrial Relations Act. I am of the view that a referee under the JSA falls within the definition of an arbitrator under Part 6 of the Act and has the powers of an arbitrator as defined in that part. In short, even in the absence of a formal structure, the dispute resolution provisions of the JSA can meet the requirement of providing a process for the final and binding resolution of technological change disputes.
I pause to note that my comments with respect to the interpretation of the Act and the JSA are made in the context of the jurisdiction of arbitrators to interpret external statutes and agreements which is recognized by the Supreme Court of Canada in McLeod et al v. Egan et al. [19750 1 S.C.R. 517, 46 D.L.R. (3d) 150, 2 N.R. 443. The JSA and the Act are collateral to the issue before me. But a consideration of whether the Railway is in breach of the collective agreement by reason of its refusal to entertain the union grievances under the terms of the JSA requires some consideration of the Act and the JSA.
In particular, I must consider whether such a refusal is consistent with the terms of the legislation and the agreement. When the JSA is read in the context of the dispute resolution resource mandated in the Act, its provisions carry the necessary implication that the Union can initiate a dispute and that the Railway must respond, including an obligation to submit such disputes to binding arbitration by a referee. On the basis of that reading of the JSA, I turn to the question of whether a refusal by the Railway to submit a technological change dispute for resolution under that agreement is a breach of the collective agreement and if the facts before me support a finding that such a refusal has occurred.
The Union is one component of a multi-union bargaining unit in which the bargaining agent is the Council of Trade Unions on BC Rail. The Council is the certified bargaining agent and bargains on behalf of all unions with each union entering into a separate collective agreement. The JSA is in force between the Railway and the Council on behalf of five of the component unions. The agreement, as stated, deals with issues of technological change. The agreement is indefinite as to its term and is renewed from time to time under the following renewal provision:
14(2) It [the agreement] shall remain in effect until revised in the manner and at the time provided for in respect of the revision of the Agreement which is current from time to time.
The first such agreement was entered into on November 2, 1962 and was referred to as the “master agreement of 1962”. The current agreement was entered into on September 14, 1987 and supercedes a version of the agreement dated February 11, 1986. There have been a series of such renewals over the years. Those renewals are executed by the Railway, the Council and each of the constituent unions. As stated, the agreement is incorporated by reference in this collective agreement in Article 35.1. The three grievances filed relate to the train dispatch system. The dispute relates to the impact the proposed changes have on train dispatchers and operators. Separate issues are raised in the grievances with respect to dispatchers and operators. I will deal first with the issue involving operators.
Operators are assigned to various locations over the system. Currently there are 34 operators. As stated, operators were given notice on March 30, 1990 that their positions will be abolished effective July 27, 1990. The form of notice, which is identical in each case, reads as follows:
This correspondence constitutes notice pursuant to Article VIII of the Job Security Fund Supplemental Agreement. Effective completion of shift on July 27, 1990 the operator’s position (i.e. 1600 - 2400 North Vancouver Thursday/Friday off) will be abolished. As the Job Security Fund Supplemental Agreement is invoked, I encourage you to contact Mr. R. Leche in North Vancouver at 984-5054 for assistance in completing the necessary application forms and for details respecting the impact of this job abolishment on you specifically. Any general questions regarding this notice should be pursed as soon as possible.
On the uncontested evidence, the elimination of the positions of the eight operators was the result of the introduction of changes in the manner in which train orders are distributed. The introduction of that change was set out in a memorandum to terminal supervisors from Bill Noon, the assistant project manager for special projects in the rail communications department, on February 21, 1990; That memorandum reads in part as follows:
On May 13th, 1990 the Operations Department will begin using a computer assisted manual block system (known as TDCS) on all subdivisions. In conjunction with TDCS implementation, Operations will also begin using facsimile (FAX) machines to send and receive block clearances and bulletins on the Squamish, Lillooet and Prince George Subdivisions. The plan is to have the train dispatchers issue block clearances and bulletins to operators at one of the three designated distribution points for furtherance to other locations by FAX machine. At the present time the three designated distribution points are Lillooet, Williams Lake and Quesnel. I would recommend that initially the three central distribution points for TDCS have FAX machines dedicated to TDCS use only. The FAX method of distribution should be fully in use on subdivisions north of Prince George about March 5th.
The elimination of the eight positions has triggered the layoff provisions of the collective agreement . In the application of those provisions, senior operators have the right to bump junior operators commencing in sequence with the most junior of the eight operators affected. If the process were to be carried out in strict order of seniority on an individual basis, it could result in considerable disruption. In that process, senior operators who are displace have various options to bump into other positions and the operators so affected have consequential rights to exercise their seniority against more junior operators. This dispute is not about layoff or seniority rights and it is not necessary to address those rights. It is sufficient to say that there is a great potential for the disruption of the eight operators concerned and other operators against whom they may exercise their rights. That disruption included a potential requirement to move locations from one centre in the Province to another, with the consequential requirement to sell homes and uproot families.
It is clear that the notices given to the eight operators were given by the Railway under Article 8(1) of the JSA. The only complaint of the Union with respect to that aspect of the dispute is its perception that the Railway could have provided a longer period of notice. However, the major concern of the Union with respect to the operators relates to the future, not the past. The Union has expressed the concern that the Railway intends to eliminate further operator positions as the computer technology takes hole. Its specific concern is that the disruption caused by eliminating the first eight positions will be repeated in the future with the possibility that some operators, having relocated, will face further relocations or even permanent payoff. The Union position is that Article 8 was intended to apply to just such circumstances. The Union wants to meet with the Railway to discuss the possibility that more operator positions will be eliminated. The Union wants to obtain as much notice as possible in order to avoid further disruption in the near future. In short, the Union is looking for as much advance notice as possible in order to ensure that the elimination of operator positions does not disrupt the employees involved beyond what is necessary.
The Union made its position known prior to the Railway’s decision to eliminate the eight operator positions. In a letter dated January 14, 1990 the Union wrote as follows:
The Transportation Communications Union has been led to believe that B.C. Rail intends to implement Computer Assisted Manual Block System and Fax within the first half of 1990. The Union requests and requires that B.C. Rail comply with Article VIII (1) of the J.S.F. Agreement, giving notice of not less than three (3) months, a full description of these systems and appropriated details of consequent changes in working conditions and the expected number and location of employees who are to be adversely affected by the implementation of these technological changes. The Transportation Communications Union requests to negotiate on items to minimize any adverse effects these changes will have as per Article VIII (4) of the J.S.F. Agreement.
That letter invoked a reply from the Railway dated January 23, 1990 in which it was acknowledged that the changes in the dispatch system contemplated by the Railway constituted a technological change within the meaning of Article 8 of the JSA and an agreement that notice would be given pursuant to Article 8(1). Hence, the difference between the parties with respect to operators was not about whether the changes amounted to a technological change. The dispute was with respect to how the provisions of the JSA should be applied. The letter of January 23, 1990 from the Railway to the Union read as follows:
The railway accepts the fact that the introduction of CAMBS and FAX would constitute a technological and/or operational change as per Article VIII of the job security fund (JSF). The railway also five the union assurance that appropriate notice and details of any changes resulting from CAMBS and .or FAX implementation which results in an adverse effect to the union’s membership (i.e. loss of positions) will be properly communicated to the union as per Article VIII of the JSF supplemental agreement. Discussions will take place with the union should these discussions be necessary.
That letter makes it clear that the Railway views the Job Security Agreement as incorporating a procedure which is initiated in its discretion through the issuance of a notice under Article 8(1). That became clear in the development of the dispute. The next step in the evolution of that dispute came in a letter form the Railway to the Union dated January 24, 1990, being one day after the Railway’s acknowledgement that the proposed changes amounted to a technological change. That letter reads as follows:
This will confirm our telephone conversation on January 24, 1990 in which I advised you that the CAMBS project was approved to proceed by the Executive Committee of BC Rail. The details of the project (i.e. the specifics respecting the adverse effect on your membership) have not been clearly identified. However, we do know that there will be a number of redundant positions in your craft. Once the specifics are available we will arrange a meeting with you and your executive to go over the full impact of this changed in operation on your membership. Notice under the Job Security Fund will be provided within the terms of the agreement.
That letter was followed up with the notice letters previously set out in this award. The Union, as stated, became concerned that the new technology could result in the elimination of other operator positions. As I will detail, the attempts by the union to initiate discussions with respect to that second aspect of its concern with respect to operators was resisted by the Railway. However, before reviewing those facts, it is convenient to consider the circumstances giving rise to the dispute between the parties with respect to the changes planned with respect to the manner in which dispatchers perform their duties. The Union concern is that the technological changes made and contemplated will result in what the union perceives as significant changes in the manner in which dispatchers perform their duties. In particular, those changes will result in a change in the manner in which dispatchers monitor traffic on the railway. Presently, audio monitoring is the primary mode. The change will introduce a video monitoring function.
The dispatch centre is manned continuously by dispatchers who rotate on day, afternoon and evening shifts. There are three such dispatchers on each shift who work under the supervision of a chief dispatcher. There are no formal designated coffee or lunch breaks on the shifts. However, dispatchers can maintain audio monitoring and still move around the area, returning to respond to radio calls as required. That limited freedom of movement permits dispatchers to take coffee and nourishment as circumstances permit. The changes implemented and contemplated will deprive dispatchers of that flexibility. The changes involve the introduction of three video display terminals (VDT’s) which will require visual monitoring on a continuous basis with no opportunity for the dispatcher to leave the dispatch station. There are other changes in the work effected by the technological changes that I need not spell out in detail. The issue raised by the Union is that the changes fall within the scope of Article 8(1) of the job security agreement and that the Railway is obligated to negotiate the impact of those changes under the job security agreement.
As stated the position of the Railway with respect to both operators and dispatchers is that the JASA is limited in scope to changes which result in job loss or job disruption. In that context the Railway said that its obligation under Article 8 is limited to providing employees with notice three months prior to the implementation of such change. The position of the Railway with respect to operators is that it has no immediate plans to further reduce the number of operators and, in any event, its only obligation is to give the requisite three months notice, which it intends to do if further operator positions are to be eliminated. Its position with respect to the changes in the nature of the work anticipated with result to dispatchers is that they do not fall within the scope of Article 8 and that the appropriate place to address them is in collective bargaining. In that context, the Railway noted that all of the adverse impact issues raised by the Union have been raised in collective bargaining that is currently underway.
The position of the Union is that the JSA goes beyond job loss and job description. In particular, the submission of the Union is that the agreement constitutes a codification of a scheme agreed to by the parties for the management of changes arising from the introduction of new technology or operational or organizational changes that impact adversely on employees. That scheme includes a range of benefits designed to soften the impact of such changes and a right in the Union to negotiate with respect to the impact of such changes, with a dispute resolution mechanism built into the scheme in the event the parties are unable to agree.
The three issues in dispute arose after R.A. Gatzka, the general chairman of the Union, advised David Cox, the manager of labour relations, in a letter dated January 14, 1990, that the Union requested that the Railway provide the details of the pending technological changes. As stated, the evolution of the dispute with respect to operators culminated in the notice with respect to the elimination of eight operator positions. The dispute with respect to the dispatchers cane into focus following a memorandum date February 8, 1990 sent by the Railway to the chief train dispatcher and all train dispatchers which enclosed a sketch of the proposed changes in the dispatchers’ work stations. That memorandum read as follows:
Please find attached a representation of the proposed Train
Dispatch workstations. In order to facilitate early
installation please reply to the undersigned, or Mr. Brown,
with comments and concerns prior to 13:00 February 12,
That memorandum invoked a response on February 12, 1990 from Keith Taylor, the local chairman of the Union, in which Mr. Taylor sought further information and an opportunity to review the proposal before the changes were made. On the same date the general chairman, Mr. Gatzka, wrote to M.G. brown, the supervisor of train operations, commenting that the Railway should “seriously study the ergonomic factors involved, prior to making a commitment to the installation of any such equipment. The train dispatchers, who may be required to work with this equipment, should also have input into this study.” In that same letter, Mr. Gatzka indicated that the issues involved fell within the terms of the JSA, although no express reference was made to the agreement itself. Mr. Gatzka wrote as follows:
I am also curious about Mr. Klitch’s reference in the memo
to “early installation”. To date I have not received notice
of and Technological, Operational, or Organizational changes
which may affect T.C.U. members. I expect we have
sufficient time to study and discuss any proposed changes.
In the dialogue that followed, the Railway sent out a modified sketch depicting the changes in the work stations. In the interim, the Union developed a train dispatch committee which completed an initial appraisal of the proposed changes. J.W. Urquhart, the co-ordinator of the committee study, wrote a letter on February 27 to Mr. Brown in which he set out the details of the Union observations and requested further information and an opportunity for Union participation. Mr. Urquhart ended his letter as follows:
In the view of the Train Dispatchers, a great deal more
Consideration is essential prior to the implementation of
any computerized system of control which may be proposed.
As much notice as possible should be given. The concerns
and suggestions of those who will be required to work with
The new equipment must be addressed.
The Railway did not respond directly to that letter. Mr. Cox, the manager of labour relations, wrote to Mr. Gatzka on March 7, 1990 advising him of when certain of the changes in technology would be implemented. The following is an extract from that letter:
This is to advise further to my letter of February 13, 1990
that BC Rail will be proceeding with the implementation
of a FAX network on BC Rail to be effective 0001 March
11, 1990. The Railway will also be implementing a
computerized train dispatch control system (TDCS/CIMBS))
with a target date of May 13, 1990.
Mr. Cox went on to advise that training sessions would be scheduled with respect to the introduction of the new train dispatch control system. He also took the position on behalf of the Railway that it could implement a system in which dispatchers issued block clearances directly to train crews. That aspect of the letter reads as follows:
I would also like to point out to you that all necessary
training will be scheduled in advance of the train dispatch
system implementation date. The schedule for training
will commence on April 2, 1990. Details of this system
will be provided at that time. This technology will provide
the railway the ability to issue block clearances directly
to train crews should we elect to do so. If the railway
chooses to take this course of action the railway takes the
position that no provision contained in the current collective
agreement will be violated. Article 21.8 of the TCU
collective agreement specifically deals with train orders
not block clearances issued under a block system of train
That expression of position provoked a response from the Union in which it took the position that no proper notice of the technological change had been given by the Railway under Article 8.1 of the JSA. On March 14, 1990 the Union advised the Railway that three grievances had been submitted placing the issues in dispute. The union proposed that the dispute be resolved by “expedited arbitration”. The letter of March 14 directed to Mr. Cox in response to his letter of March 7 in part as follows:
The first point of disagreement is the issue of notice
respecting technological, operational and organizational
changes which the Railway has made and is considering
on making. To date, no formal notice as per Article 8.1
of the JSF Agreement has been received by the Union, and
accordingly the Union has submitted three grievances on
this issue. On March 5th, and again on March 12th, I
requested thru yourself that we move this issue to expedited
arbitration to resolve this disagreement. To date, I have
not received a reply to this request.
The second point of disagreement is your interpretation
of Article 21.8 of our collective agreement. The Union
has not received notice as per article 8.1 of the JSF
Agreement, giving a full description thereof, appropriate
details as to the consequent changes in working conditions
and expected number of employee who would be adversely
affected by the implementation of a computerized train
control system. Therefore, the Union reserves the right
to interpret Article 21.8 of our collective agreement and
file any appropriate grievance as may be necessary.
The TCU requests that B.C. Rail live up to its obligation
under Article 8 of the JSF Agreement, providing the Union
with proper notice and move thru the process as defined
under Articles 8.4 thru 8.6.
In seeking to find a process whereby the grievances could be pursued, the Union settled on a demand that the technological changes be addressed in the context of the JSA. On April 5, 1990 the Gatzka sent the three letters to the Railway which were expressed as constituting Step 3 of the three grievances. As set out earlier, the letters identified the nature of the grievances as being violations of Article 8 of the JSA in that the Railway had failed to give proper notice of the implementation of the particular change.
Each letter contained the assertion that, “the Union has not received a full description of this system and details of consequent changes in working conditions or the expected number of employees who will be adversely affected.” The letters went on to request that the Railway comply with the provisions of Article 8 of the JSA and in particular, to give the Union “proper notice and reschedule the implementation date to allow the Union to make proper representation.” The Union requested that if the matter could not be resolved that it be submitted to arbitration for resolution. But, as stated previously, the parties did not agree to my appointment as a referee under the JSA and, in seeking to identify the true nature of the dispute, I have concluded that the question before me is limited to a consideration of whether the conduct of the Railway amounts to a breach of the collective agreement.
I noted previously that I hold the view that where the action is taken by the Railway that is deemed by the Union to fall within the scope of Article 8(1), it is open to the Union to initiate a dispute and have it addressed within the dispute resolution process contemplated by the JSA. IT is correct to say that no express process is contemplated in that agreement for the initiation of a complaint by the Union, but neither is there express process for the issuing of a notice. S. 74(1) of the Act requires the parties to have a mechanism for the resolution of technological change disputes. The parties have elected to take the issue of technological change out of the component collective agreements and place them in separate agreement with its own dispute resolution mechanism. Hence, even in the absence of an express process, it is open to either party to invoke the provisions of the JSA and to submit disputes for resolution under Articles 8(4), (5) and (6).
I also repeat my earlier view that the powers that extend to an arbitrator under Part 6 of the Industrial Relations Act extend to a referee under the JSA. Included is a right to determine preliminary issues of jurisdiction and whether a particular dispute is arbitrable. Here the Union sought to invoke the provisions of the JSA and the response of the Railway has been to deny that the JSA has application and to insist that the issues raised should be addressed in collective bargaining. On the basis of those facts, I concluded that a dispute with respect to proposed technological changes did arise between the parties and that the Railway refused to address that dispute under the provisions of the JSA. I turn now to a consideration of whether the Railway’s refusal constitutes a breach of the collective agreement under which I was appointed.
I note first that the Railway’s submission that the issues raised with respect to the possible elimination of operator positions in the future and the impact of the proposed changes in the dispatch work stations did not amount to technological changes within the meaning of the JSA or, alternatively, that the agreement did not provide any remedy for such changes. However, those are not questions that can be answered by an arbitrator appointed under the provisions of the collective agreement. They relate uniquely to the interpretation and application of the JSA. The fact that the railway takes that position does not remove the dispute from the reach of that agreement. Further, as stated, the question of whether the dispute is one which is arbitrable under the provisions of the JSA is one that falls within Part 6 of the Industrial Relations Act. In particular, it is an issue to be determined by a referee performing as an arbitrator in the exercise of the discretion vested in arbitrators under s. 93(2) of the Act.
However, in view of the joint submission of the parties, I conclude that I have jurisdiction to deal with that issue in a preliminary way on the basis that Article 35.1 incorporates the JSA in the collective agreement by reference and that it is open to me to determine whether a refusal to submit to the JSA process is a breach of that provision. I repeat my view that recognition of the JSA in Article 35.1 creates an implied term of the collective agreement that both parties will submit technological change disputes for resolution under the provisions of that agreement. A refusal to participate in the process is a breach of that implied term.
In making that finding it is important for me to repeat and emphasize that the submission to my jurisdiction in this dispute, by express reservations of the parties, did not extend to a vesting in me of the jurisdiction to function as a referee. In the result, the merits of the dispute are not before me and a granting of this grievance does not mean that I find the actions relied on by the Union constitute a technological change which raises in the employees a remedy under the JSA. It is to say that a refusal to participate in the process is a breach of an implied term of the collective agreement that technological change disputes must be submitted for resolution under the provisions of the JSA. It is contrary to the scheme of the Industrial Relations Act to conclude that there is no mechanism whereby such disputes can be raised by either party.
The Railway argued that the practice of the parties as attested by Rick Leche, the railway’s appointee as co-chairman of the joint job security committee, compels a finding that the application of the agreement is limited to circumstances where employees have lost work or have faced dislocation. It is important to remember that the provisions at issue are in the JSA and it is for a referee to resolve disputes about what the parties meant by the language. In any event, the evidence dos not meet the test of evidence of past practice as outlined by the former Labour Relations Board in its decision in The Corporation of the District of Burnaby and Canadian Union of Public employees, Local 23  2 C.L.R.B.R. 99 (Weiler). In that decision it is made clear that what is required in evidence of past practice is a practice that will sustain a inference that the parties, by adopting the practice, must be taken to have agreed with respect to how the language should be interpreted and applied with respect to a particular issue. On p. 102 the Board wrote as follows:
If the Board is going to draw inferences, in our view it
should have the background and the basis on which the
parties were in fact operating. All this means is that we
should have a complete understanding of the way in which
the parties carried out their bargain if we are to ‘have regard
to the substance of the dispute’.
Arbitrators look for evidence that the parties, at a level of persons charged with responsibility for the interpretation and administration of the language, have accepted a particular interpretation in an informed sense. Here there was no evidence before me of a practice wherein the Union can be taken to have conceded that the JSA only applies to circumstances involving job disruption or job loss; that it is the prerogative of the Railway to determine when the provisions of the agreement will be invoked; or that the obligation to give notice is limited to three months. The language does not contain those express limitations and there is no evidence of circumstances in which the Union confronted those issues in practice and conceded the point by agreeing not to proceed. The evidence of Mr. Leche did not include incidents in which the points of interpretation at issue were in dispute.
In any event, the interpretation and application of the JSA is a matter for the referee. In my view, the union is correct in its assertion that a refusal to submit technological change disputes for resolution under the provisions of the JSA is a breach of the collective agreement. The Union is entitled to a declaration that the grievances filed should be addressed by the Railway in the process prescribed for the resolution of such disputes in the agreement. In that process, in the absence of an agreement between the parties, it is for the referee to say whether the disputed changes fall within the scope of the agreement; whether adequate notice has been given; whether further notice is required; and what remedies, if any, the Union is entitled to claim in response to the proposed changes. On that basis, the grievances are granted.
DATED at the City of Vancouver, in the Province of British Columbia, this 14th day of May, 1990.
H. ALLAN HOPE, Q.C. - ARBITRATOR