IN THE MATTER OF AN ARBITRATION
(hereinafter referred to as the “Railway”)
(hereinafter referred to as the “Union”)
(Takla Post Arbitration)
Arbitrator: H. Allan Hope, Q.C.
Counsel for the Employer: David Cox
Counsel for the Union: Robert Dhensaw
Place of Hearing: Vancouver, B.C.
Dates of Hearing: January 15, 1991
A W A R D
The issue raised in this dispute is whether the Railway was in breach of the collective agreement when it posted five positions for section forces at Takla/Bluff without providing for accommodation. The work location is approximately 220 miles northwest of Prince George on what is referred to as the Takla Extension. The Union said that Takla/Bluff is an “outlying point” within the meaning of Article 17.3 of the collective agreement and that the Railway was obligated to post the vacancies with accommodation provided. The Railway said that no obligation to post or provide accommodation exists in Article 17.3 or elsewhere in the collective agreement.
The Takla Extension leaves the main line of the Railway at Odell, approximately 30 miles north of Prince George. The Extension is made up of the Stuart Subdivision and the Takla Subdivision. Stuart Subdivision consists of approximately 150 miles of track from Odell to Leo Creek. Takla Subdivision consists of an additional 65 miles of track from Leo Creek to Driftwood. In asserting that Takla/Bluff is an “outlying point”, the Union noted that it is located at the approximate mid-point in the Takla Subdivision between Leo Creek and Driftwood and, said the Union, the nearest location where accommodation is readily available is Fort St. James. That community, said the Union, is not accessible to Takla/Bluff in the sense of permitting employees to live in Fort St. James and commute to the work site. The Union submission was that, in those circumstances, the Railway was required to provide accommodation so that employees with seniority would have access to the vacant positions.
The Union also pointed out that Takla/Bluff is on the Takla Lake Indian Reservation and employees would not be able to find accommodation in Takla Post, the small community that services the area. The Union said in that context that the issue arose in the wake of the reopening of the Takla Extension (service was discontinued in 1983), and it was unlikely in the circumstances that the Takla Lake Indian Band would provide accommodation for persons other than Band members. In particular, the Railway had sought to have the Union waive the seniority provisions of the collective agreement to facilitate the hiring of Band members and the Union had declined. In light of that fact, the Union anticipated that accommodation on the Reserve would be difficult to obtain.
Article 17.3, being the provision upon which the Union relied, reads as follows:
17.3 Where necessary at outlying points where other living accommodation is not available, suitable quarters for sleeping and eating shall be provided for employees in the Engineering Service.
The Union relied on that provision to support its position that Takla Bluff must be seen as an “outlying point” and that the Railway was obliged to post all vacancies at that work location as having accommodation provided. The position of the Railway was that there was accommodation available in the area, and in any event, that Article 17.3, properly interpreted, vests a discretion in management to determine when providing accommodation will be “necessary”. The Railway’s submission, in effect, was that the question of whether it is necessary to provide accommodation in a given posting is determined by the facts. That is, if vacancies are posted without accommodation and no applications are received, the Railway sees itself as free to try to fill the vacancies by other means, including the hiring of outside applicants from the community. In the event there are no applications from qualified internal or external applicants, said the Railway, it is then free under the agreement to make a discretionary decision that accommodation is “necessary” and to provide it in order to obtain applicants. The Railway said that it may decide, conversely, that the work will be discontinued or postponed, or that it will have it done in some alternate fashion that avoids the accommodation issue.
The Union took three basic positions. It said, first, that failing to post the positions with accommodation was a breach of Article 17.3 because Takla/Bluff is an “outlying point” and accommodation was “necessary” because it was “not available” in the area. The Union’s second point was that there is an implied term of the collective agreement that prohibits the Railway from discriminating against employees in such matters as job postings and that the Railway was in breach of that implied term. The Union submission, in effect, was that the Railway posted the vacancies without accommodation in order to ensure that only Native Indians living on the Reserve would be able to bid on them, a decision the Union saw as discriminatory and made in bad faith. Lastly, the Union said that the vacancies were filled with junior employees from the area when the Railway should have recalled more senior employees from layoff.
The issues were complicated by the fact that the Railway posted six temporary vacancies for section forces in November, cancelled them before they were filled, and then posted four permanent and one temporary vacancy in December. Two of the six temporary positions in November were posted with accommodation and four were posted without accommodation. The one temporary and four permanent positions posted in December were posted without accommodation. The Union saw that pattern as manipulative and is evidence of bad faith on the part of the Railway. In the Union submission, the postings were juggled by the Railway in order to ensure that only residents of the Reserve could bid on them. In light of that assertion, it is necessary to trace the history of the postings in some detail.
The original postings were made on November 9, 1990, in the Railway’s November Bulletin under job numbers 55-876T and 55-879T, respectively. In those postings, job number 55-876T was for two vacancies for “other section foreman”, with accommodation supplied. There were four vacancies listed in job number 55-879T for “other sectionman”, with no accommodation. Both series had an expected duration of approximately 24 weeks. (The term, “other section”, is used to distinguish between sections established in first class and second class yards and sections in other locations. That is, there are three sectionman and section foreman classifications with separate rates of pay, the lowest being the “other section” classifications). The Union challenged the four “other sectionman” postings because they were posted as having no accommodation supplied. All six temporary postings were cancelled on November 16, 1990. Before they were cancelled, the Railway received bids on the sectionman vacancies from employees who were willing to take them even though no accommodation was provided.
In the December bulletin on December 14, 1990, the Railway posted one permanent position for “other section foreman” under job number 55-876P; three permanent positions for “other sectionman” under job number 55-879P; and, one temporary position for an additional “other sectionman” under job number 55-879T. The temporary position had an expected duration of 24 weeks. None of the five positions were posted with accommodation. Once again, bids for the sectionman vacancies were received from employees who had accommodation available to them in the Takla/Bluff area. The foreman position was left vacant in the absence of qualified applicants. However, nothing turns on who applied for the vacant positions. The real issue is whether the Railway can be compelled to provide accommodation under Article 17.3. The position of the Railway, as stated, was that Article 17.3 does not restrict its right to decide when accommodation is “necessary”. Its submission was that it is free to post vacancies without accommodation where it can meet manning requirements without providing accommodation. On the issue of discrimination, the Railway said that its decision not to provide accommodation was made in response to legitimate business considerations and that it did not discriminate against members of the bargaining unit in any sense contemplated in the arbitral authorities.
I turn now to the question of whether the Railway was in breach of the layoff provisions of the collective agreement. It is convenient to deal with that issue first. The Railway’s position was that its obligation to recall employees was limited to recalling employees holding classification seniority in the particular classification and that the Union had failed to establish that there were employees on layoff who had classification seniority and who were not recalled. I digress to note that a factual dispute emerged between the parties with respect to the recall issue. In particular, the Union called evidence that there were five employees on layoff who, in its submission, were entitled to be recalled. Those five employees were terminated by the Railway between September 24, 1990, and January 2, 1991, under Article 8.09 of the collective agreement on the basis that they had not been in active employment for a period of 12 calendar months. A dispute developed between the parties with respect to the facts surrounding those five employees.
In particular, the position of the Railway during the hearing was that its only obligation with respect to employees on layoff is to recall those who have classification seniority in the classification at issue. There was no evidence led during the hearing by either party with respect to whether the five employees involved had the necessary classification seniority. The Railway addressed that factual issue in a written submission made after the hearing. The Union filed a strong written objection to that course of action and took the position that if issues of fact were to be addressed after the conclusion of the hearing, the proper course was to seek a resumption of the hearing and provide the Union with an opportunity to deal with the issue before submissions were made. I agree with the position of the Union. Ordinarily, where there is a need perceived by one of the parties to provide additional facts, that party should seek the consent of the other party and, failing consent, should make an application formally or informally to obtain consent to the filing of additional material or a resumption of the hearing for the purpose of addressing the issue. The dictates of a fair hearing are inconsistent with a unilateral submission of facts to an arbitrator after the close of a hearing.
In this case, however, the issue is irrelevant because the factual issue addressed in the Railway’s written submission was whether any of the employees involved had the requisite classification seniority. In the hearing, the Railway’s position was that where the Union asserts a failure to recall employees from layoff, the obligation on the Union is to adduce facts which bring the employees within the purview of the particular provision. The language at issue in this dispute reads as follows:
10.5 Employees unable to exercise seniority will be laid off and, when staff is increased, such employees will be recalled in order of classification seniority subject to being qualified to work the position to which recalled. The Railway is only obligated to recall employees for positions in which the employees have established the appropriate classification seniority.
I agree that the language of that provision requires the Union to establish that a claimant is qualified in the sense of having classification seniority in the position claimed. Here, the Union did not establish that the five employees were entitled to claim recall in the sense of being employees who were qualified, willing, and able to occupy the vacant positions. Hence, the factual issue addressed by the Railway did not arise and I gave no weight or consideration to the facts filed by the Railway after the hearing was complete. I would have reconvened the hearing on the Union submission if those facts had become an issue. In the result, I conclude that the Union failed to establish that the Railway was in breach of the layoff and recall provisions of the agreement.
Having set out the nature of the dispute, I turn to the issues of fact raised. I start with the fundamental proposition that a party alleging that there has been a breach of a collective agreement bears the onus of proving the breach. Hence, the Union’s obligation in this dispute can be measured by a consideration of its evolution through the grievance procedure. As stated, when the temporary vacancies were posted in the November bulletin, the four “other sectionmen” positions were posted as being without accommodation and two “other section foreman” vacancies as having batch accommodation provided. The monthly bulletin was dated November 9, 1990. Its distribution caused the Union to send a memorandum to the Railway on November 14, 1990, in which it took the position, in effect, that the Railway was required to provide accommodation in the postings. The memorandum related to job number 55-879T, being the job number for the four “other sectionmen” positions. In the memorandum, the Union asserted that the Railway was acting in bad faith by failing to post those vacancies with accommodation available. The substance of the Union position appears in its memorandum as follows:
Details: We require an immediate supplement Bulletin being activated for a correction to Bulletin #503 on Job 55-879T. Clearly Article 9.2 obligates an identification of information, and 17.3 qualifies that accommodation must be supplied, coupled together those 2 articles identify a violation to the Collective Agreement. The union will afford the Railway 24 hours to administer the correction prior to a grievance on this matter. (emphasis added)
Article 9.2 deals with the requirement for the content of job bulletins posted under Article 9. It reads as follows:
9.2 Bulletins will show the classification of position (if temporary, the approximate expected duration), location and full particulars such as living accommodation, stores, post office, schools, churches, etc. The bulletin will also show the designated Officer in the Railway to whom applications must be made.
The Union pointed out that the detail required in that provision did not appear in the temporary postings in November. However, the Union did not appear to rely on that fact to support its position. Its principal allegation was that the Railway was in breach of Article 17.3. That provision was set out previously. The position of the Union appeared to be that the failure to provide the detail set out in Article 9.2 supported the conclusion that the services such as accommodation, stores, etc., were not available at Takla/Bluff. That issue is essentially one of fact and I will deal with it later in this award. I continue now with the facts relating to the issues of interpretation raised in the Union submission.
On November 16, 1990, the Railway replied to the Union memorandum, advising that its intention was to cancel the November postings. In its reply, the Railway gave no indication of its reasons for the cancellation. In this hearing, evidence was given on behalf of the Railway by Norman Hooper, the capital projects engineer in charge of the Takla Extension. He said that the initial impetus in the decision to cancel the bulletin arose out of the question of where the cost of the section forces was to be budgeted. He said that if the cost was allocated to the construction budget for the Takla Extension, as was indicated by the temporary postings, the money would come from funds granted to the Railway for that project. However, if it was deemed to be maintenance, it would be at the Railway’s cost. He said that, ultimately, it was decided that the work contemplated was maintenance work and the decision to post the vacancies on a permanent basis was made.
Coincidentally, as I will detail shortly, Mr. Hooper said that it was concluded that none of the positions should have been posted as offering accommodation because the policy of the Railway was against providing accommodation unless it was “necessary” and, in any event, because the Railway was of the view that adequate accommodation was available in the Takla/Bluff area. He said that his decision to offer accommodation in the foreman postings arose out of his anticipation that there might be some difficulty in attracting applicants qualified to function as section foremen.
Mr. Hooper said, in particular, that he had some doubts about whether employees holding seniority in the classification of “other section foreman”, or who were qualified to perform the work in that classification, would bid the vacant foremen positions if they were required to find and pay for accommodation in Takla/Bluff. He did not anticipate a similar problem with respect to the sectionman vacancies. Those factors led to his decision that accommodation would be supplied in the form of batch accommodations for the foreman vacancies. He said that, following the initial bulletin in November, senior management advised him that he should not have offered accommodation in the foremen vacancies, and, coincidentally, the Union complained about the failure of the Railway to offer accommodation with respect to the sectionman vacancies. He said that, as a consequence, when the permanent positions were posted in December, he posted all of them without accommodation.
The Union called evidence with respect to what transpired before the November vacancies were cancelled. Evidence was given by Troy Hrechka to the effect that he had applied for one of the foreman’s positions in the original postings in November. The Union filed an application which appeared to reflect that fact. However, it was pointed out in cross-examination that the job number on the application indicated that Mr. Hrechka’s application was for one of the sectionman positions, not the foreman positions. Mr. Hrechka agreed in cross-examination that he had no classification seniority as a foreman. On the bid sheet that Mr. Hrechka filled out in November, his first choice was with respect to one of the sectionman vacancies, even though it is incorrectly designated on the bid form as a section foreman application. His second choice was a section foreman position at D’Arcy. In the computer printout listing successful applicants for the abortive November postings, Mr. Hrechka was listed as a qualified applicant for the sectionman vacancies. Conversely, he was not listed as a qualified applicant for the foreman vacancies.
That is not to say Mr. Hrechka did not intend to apply for a foreman’s vacancy. Mr. Hooper said in his evidence that he wanted Mr. Hrechka to apply. Mr. Hrechka said that he was told coincidentally by other management officials about two weeks before the postings that the Railway would get people off the Reserve for sectionmen, but that he was asked if he would bid on a foreman’s position if the vacancies were posted. He said the proposal was that there would be two foremen working alternately on the basis of eight days on and six days off, a routine he described as “a shift in and a shift out”. He said he was told that if he applied for a foreman’s vacancy and no senior employee applied, he would get the position.
I presume on the evidence that Mr. Hrechka did intend to apply for the position as foreman and made an error in job numbers. In any event, he was recorded as having bid on the December vacancy for a foreman; but, the January 11, 1991, list of successful applicants records that there were no qualified bids received on that position. That result is in accord with Mr. Hrechka’s evidence. He said in cross-examination that he did not have classification seniority as a foreman. He also said that he did not pursue a foreman’s position because he did not think there was any accommodation available. That evidence was difficult to reconcile with the fact that Mr. Hrechka applied for the vacancy even though it was posted without accommodation and, as he also agreed in cross-examination, that he did not actually seek accommodation in Takla/Bluff. The inference I drew was that Mr. Hrechka made the application and then concluded that he would not be able to get accommodation. In any event, he was not qualified for the vacancy and it is not clear if the Railway was willing to accept him despite his lack of qualifications.
In addressing his decision to post the four permanent positions and the temporary position without accommodation, Mr. Hooper said that the policy of the Railway is to avoid having to provide accommodation in permanent positions because of the expense involved. The trend in that regard, he said, is to lengthen section territories and to employ equipment capable of transporting employees at higher speeds to and from their work locations. In addition, he said, the Railway has followed a policy of putting additional capital into construction so that less maintenance is required on an ongoing basis.
I will return to the factual aspect of the dispute later. At this stage, I confirm my view that the evidence does not support an inference that the cancellation of the November vacancies and the postings of the December vacancies was, in and of itself, evidence of bad faith. The postings for the sectionmen positions were without accommodation in the November bulletin and the distinction made with respect to the foreman vacancies was explained in the uncontradicted evidence of Mr. Hooper. Further, there was a reason given to cancel the temporary vacancies and to post the one temporary and four permanent vacancies. In short, it was not shown that the cancellation itself was motivated by a plan to have the vacancies go to residents of the Reserve. The temporary sectionman positions had been posted without accommodation in the first postings and the only change in terms of the accommodation issue was the permanent position for foreman. That change was explained. That is not to say that the decision to post the vacancies without accommodation was or was not made in good faith. It is to say that the cancellation itself was not shown to have constituted an act of bad faith. I will return to the general issue of bad faith later. I return first to the advancement of the dispute in the grievance procedure.
Bulletin No. 503 was published on November 9, 1990. As stated, the Union immediately challenged the fact that the Railway had failed to provide accommodation in posting the four temporary vacancies for sectionmen. That challenge came in the memorandum previously set out which was sent to the Railway by Robert Dhensaw, the president of the Union, on November 14, 1990. In that memorandum, as noted, the Union alleged that the posting was made in bad faith. The details of the bad faith allegation were not set out in the memorandum. However, it was clear in context that the perception of the Union was that the postings had been made without accommodation so as to give an advantage to residents of the Takla Lake Indian Reserve in preference to senior members of the bargaining unit.
The Union memorandum, coupled with the criticism Mr. Hooper received from senior management, and the decision that the positions were maintenance instead of construction, led to the cancellation of the November postings. The Union was notified of that decision in a letter dated November 16, 1990. Following receipt of that letter, the Union, anticipating that there may be further postings, took the position that the Railway was required under the provisions of the collective agreement to provide accommodation at Takla/Bluff. Its position in that regard was expressed in a letter to the Railway dated November 21, 1990, which reads, in part, as follows:
I have received your letter dated November 16, 1990 identifying that Bulletin 503 has been cancelled, more specifically the Takla Bluff Sectionmen, and the instructions I have received from the G.C. of A. members, is that should the Railway bid those jobs without accommodations, or try to circumvent seniority in any way, a grievance outlined as bad faith concerning the utilization of B.C. Rail employee forces, in excess of thirty days, which would be a clear violation of Article 9.1 of the collective agreement [will be filed]. If the Railway attempts to use Article 8.8 in this instance, then that would also clearly identify a bad faith argument, and would involve a grievance of that nature. I would like to place Bulletin 503 – Takla Bluff on the agenda for the Joint Consultation meeting scheduled for December 5, 1990. (emphasis added)
I pause to note that Article 9 provides that vacancies of more than 30 days must be posted and Article 8.8 gives the Railway a limited discretionary right with respect to filling vacancies of less than 30 days. Hence, the Union cautioned the Railway that if it filled the positions on the basis of those provisions, a grievance would be filed. That did not happen and the issue remained one of whether the Railway was obligated to provide accommodation to applicants under Article 17.3. In any event, the Union’s letter invoked a response from the Railway in a letter dated December 10, 1990. Coincidental with that exchange, the Railway was preparing the monthly bulletin for December, which was published four days later, on December 14, 1990. The December 10, 1990, letter from the Railway gave advance notice of its intention to post the permanent positions and one temporary position without accommodation despite the protests of the Union. That letter reads, in part, as follows:
Reference to your letter dated November 21, 1990… Your comments have been taken into consideration and after further consultation the Railway plans to implement the following procedures.
1. On our December 1990 Bulletin #504 we will advertise:
1 Section Foreman – Permanent
3 Sectionmen – Permanent
1 Sectionman – Temporary Approximate duration 24 weeks
No accommodation supplied
Effective January 11, 1991
2. Article 8.8 – We do not intend to fill the positions temporarily pending the close of the bulletin.
3. If no qualified bids are received on the December 1990 bulletin, it will be readvertised on our January 1991 bulletin. Should this be the case the Railway intends to implement Article 8.8 as the positions must be filled.
4. Our intention at this time is to ensure snow removal is carried out.
It would appear that the letter of December 10 caused the Union to file a formal grievance. In particular, a grievance was filed on the same date. At that time, the November bulletin, being Bulletin #503, had been cancelled, but the new vacancies had not been posted. Thus, the grievance addressed itself to the November postings for the four sectionman positions. The grievance letter reads as follows:
The union wishes to progress a grievance concerning the manner in which the positions at Takla/Bluff have been bulletined on Bulletin #503 [the November bulletin]. Job No. 55-879T states four sectionmen are required, but no accommodation will be supplied. As is well known to the Railway, the only possible accommodation would be on the Reserve and our members would not be permitted to stay on Indian land. This in effect excludes C.U.T.E. 6 members from bidding these positions for work which rightfully falls within their bargaining unit jurisdiction. Takla/Bluff is most certainly an isolated area and under Article 17.3 of the Collective Agreement the Railway is obligated to provide accommodation, and I quote:
17.3 Where necessary at outlying points where other living accommodation is not available, suitable quarters for sleeping and eating shall be provided for employees in the Engineering Service.
As settlement to this grievance the union requires that the language in Bulletin 503 be changed to provide for accommodation at Takla/Bluff. Also, lost wages are claimed for all those workers who would have bid the positions had the bulletin been correct in the first instance. (emphasis added)
There was no indication of a response by the Railway to that grievance. As stated, the December bulletin, being Bulletin #504, was published four days later on December 14. On December 17, in apparent response to the publication of Bulletin #504, the Union filed the following addendum to its December 10, 1990, grievance:
Please be advised that I understand that Bulletin 503, was cancelled, and that Bulletin 504 was subsequently submitted to the membership with the question to the membership outlining job no. 55-876P, for one sectionman permanent with no accommodation, job nos. 55-879P for three sectionmen permanent with no accommodation, and job no. 55-879T for one sectionman temporary situated at Takla Bluff with no accommodation. Regardless of the number of the bulletin being 503 or 504, the union’s concerns are simply that the Railway is acting in contravention of Article 17.3 of the collective agreement. Please add this addendum to the original grievance dated December 10, 1990. (emphasis added)
It can be seen that in the initial grievance and the addendum, the basic position of the Union was that the postings were made in bad faith and were in contravention of Article 17.3. That article, which I set out previously and which is recited in the Union correspondence, speaks about providing living accommodation at “outlying points”. Mr. Hooper agreed in cross-examination that Takla/Bluff could be considered an “outlying point”. It was clear, however, that there is no definition between the parties of what constitutes an “outlying point”, nor is there a process for designating work locations as “outlying points”. The Railway’s submission, in effect, was that it begs the question to consider whether or not Takla/Bluff is an “outlying point”. As stated, its position was that the question of whether it was “necessary” to provide living accommodation at a particular location was for the Railway to decide. The Railway argued that Article 17.3 does not constitute an obligation on it to provide accommodation so as to facilitate applications by employees. In its submission, the mandatory aspect of the language requiring the Railway to provide accommodation only applies with respect to employees who are placed in positions on its initiative rather than through the bidding process.
I will return to those issues later. Continuing the chronology, the Railway replied to the Union’s grievance on December 19, 1990. As indicated, the position of the Railway was that it was entitled under the provisions of the collective agreement to elect whether or not to provide accommodation at a particular work location. In its December 19th letter, the Railway took the further position that the particular postings were properly the subject of special consideration because of the unique facts. The letter reads, in part, as follows:
We cannot agree with your letter dated December 10, 1990. We do not agree that accommodation must be supplied on Job No. 55-879T. We believe the nature of this specific job bulletin warrants special consideration due to the location of the work and the interest groups involved. The union is well aware of our position and has been involved in joint discussions with the Railway respecting the Takla extension in the past.
The reference in that letter to, “special consideration due to the location of the work and the interest groups involved”, and to, “joint discussions with the Railway respecting the Takla extension in the past”, was amplified in the hearing by both parties. The Union tabled a series of documents which record a portion of the history of the reopening of the Takla Extension and negotiations between the parties with respect to a proposed waiver of various provisions of collective agreements in force between the Railway and the various unions in the multi-union bargaining unit. The Union noted that it had made it clear to the Railway that this Union would not agree to waive any provisions of its collective agreement. That position was acknowledged in a letter dated October 5, 1989, in which the Railway wrote, in part, as follows:
This is to confirm that if the Railway takes steps to rehabilitate and reopen the Takla extension, the terms and conditions of your collective agreement will apply.
It was confirmed in collective bargaining negotiations between the parties on June 5, 1990, that this Union was not prepared to waive any of the seniority provisions of the collective agreement in order to accommodate employment of Native Indians. Following is an extract from a memorandum prepared by the Railway on June 6, 1990, with respect to main table negotiations the previous day:
I asked the Council’s co-operation in waiving the seniority provisions of their collective agreements to allow for employment of a number of Native Indians. Since the rehabilitation work is being done principally by members of CUTE Local 6, I pressed Mr. Dhensaw for a positive response to our request. His position was a categoric “NO”. He cited the 200 union members still on layoff and emphasized that they must all be rehired before anyone else (Native Indian or otherwise) could be employed.
Those discussions took place in the context of the work involved in the reconstruction of the line. It was clear on the evidence, however, that the Railway had a similar desire with respect to providing employment for Native Indians in the maintenance of the line. In the documentary evidence cited above and the evidence of Mr. Hooper, it is clear that the Railway accepted the fact that it was required to comply with the provisions of the collective agreement with respect to the Takla Extension, both as to its reconstruction and as to any maintenance required. It is equally clear that the Railway continued in its desire to have work made available to Band members if that could be achieved in accordance with the collective agreement. That desire was emphasized in the Railway’s letter of December 19, 1990.
Mr. Hooper elaborated on the Railway’s position. He said that because the rail line travels through Takla Lake Indian Band lands and lands claimed by the Band, the expectation of the Railway was that local employment might assist in the Railway’s dealings with the Band. In that context, Mr. Hooper said that he was on the liaison committee between the Railway and the Band. He said that it was agreed that the Railway would provide as much local employment as possible and that he gave a commitment on behalf of the Railway that “every attempt” would be made to provide local employment. He said the Railway did seek a waiver from the unions representing the work force on the Railway, including this Union, but when their answer was no, that decision was communicated to the Band and it was accepted. Thereafter, no hiring of Band members was done until the recall list was exhausted in August of 1990. He said in the context of this dispute that the Railway felt no pressure to hire Band members as sectionmen, but wanted to accomplish that goal if it would be done within the confines of the collective agreement.
Turning to the authorities, the Union sought support for its allegations of bias and unreasonableness in a well-established line of arbitral authority that stands for the proposition that employers are required to act fairly and reasonably in the application of job posting provisions. The Union first cited and relied on Re Rahn Metals and Plastics Ltd. and United Steelworkers, Local 6609 (1976), 9 L.A.C. (2d) 22 (Fraser). On p. 24, there appear the following comments:
[I]f the agreement requires job posting, management must post the job in a fair and reasonable way. This clearly does not include a posting subsequent to the decision to fill the vacancy, which to my mind is as ineffective as no posting at all.
In that case, the arbitrator found that the posting process was treated by the employer as a mere formality and that the decision with respect to who would be selected to fill the vacancy was made independent of that process and before the vacancy was posted. The Union argued that the facts in this dispute fell into that category in the sense that the Railway must be taken to have determined in advance that only members of the Takla Lake Indian Band would be acceptable as applicants for the positions and that the postings were structured without accommodation to achieve that result.
The Railway did not contest the fact that it wanted to make work available to Band members, but said that its decision not to provide accommodation was consistent with existing policy with respect to avoiding the provision of accommodation whenever possible and was reflective of its conclusion that the needs of the Railway could be met without the necessity of providing accommodation. Further, said the Railway, the desire to hire Band members was a legitimate business decision made in response to relevant facts with respect to a matter that fell within its discretion. In short, the submission of the Railway was that its desire to give preference to Band members could not be seen in the circumstances as an act of bad faith or discrimination.
The Union relied on Brown & Beatty, Canadian Labour Arbitration (1990), para. 6:2310 @ p. 6-21 for the proposition that “arbitrators have required that the job posting or other procedures that are set out in the agreement are applied in a reasonable manner so that all of the eligible applicants are treated fairly and without discrimination”. The Union relied on comments of the authors at para. 4:2320 @ p. 4-34 for the proposition that “arbitrators have insisted that management act fairly, reasonably and in good faith” in making decisions about such matters as posting jobs. The Union also cited an extract appearing on p. 4-35 taken from the decision of United Parcel Service Canada Ltd. (1981), 29 L.A.C. (2d) 202 (Burkett) @ p. 213. The arbitrator is cited there as having written as follows:
[T]he employer’s decision-making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management they do so in the knowledge that management’s decision-making in these areas will be made in management’s self interest, may adversely affect individual employees, and/or may not impact on all employees equally. However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described. If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective agreement. (emphasis added)
The Union cited reasoning to a like effect from para. 5:2300 on pp. 5-27 of Canadian Labour Arbitration. There the authors commented, in part, that:
[I]n filling vacancies … management’s initiative is subject to the overriding qualification that its decision be in good faith, and not arbitrary or discriminatory.
The Railway noted in the context of that authority that it relied on the qualifying words appearing immediately after the passage cited by the Union. That passage reads:
Again, however, where it is established that the decision was effected in good faith, it would be [of] no consequence to allege that the action taken, such as a transfer to a lower rated job, was simply for the company’s convenience or was merely unreasonable.
In those passages, the authors cited another decision relied on by the Union, being Re County of Athabasca No. 12 and Alberta Teachers’ Association, Athabasca Local (1979), 19 L.A.C. (2d) 1 (Sychuk), although the Union relied on the decision in a different context. In particular, the Union cited the decision for the proposition that an arbitrator has the jurisdiction to imply a term into a collective agreement. The Railway did not challenge that submission or the fact that it is an implied term of this agreement that the Railway will not discriminate or act unfairly or in bad faith in the posting of jobs. The Railway’s position was that it had acted in good faith and without discrimination in its decision and, in particular, in response to legitimate business objectives, including the objective of fostering good relations with the Takla Lake Indian Band.
As indicated in those authorities, a finding of bad faith, unfairness or discrimination requires evidence of some factor motivating a decision made under the collective agreement which is unrelated to the business interests of the employer. See Re British Columbia District Telegraph Co. Ltd. and International Brotherhood of Electrical Workers, Local 213 (1985), 17 L.A.C. (3d) 131 (Kelleher) @ pp. 138-40. Here there was no evidence of discrimination which would support a finding that issuing the postings without accommodation was a breach of an implied term of the collective agreement requiring the Railway to act in good faith with respect to the postings. Nor is there evidence that brought the facts within what some authorities describe as the doctrine of fairness. There is no question that the Railway made a conscious decision to post the vacancies without accommodation knowing that would give an advantage to local residents. But its reason for making that decision was responsive to its legitimate business interests rather than some improper motivation.
The benefit to the Railway in electing not to provide accommodation was two-fold. First, it was a decision that was in accord with the Railway policy of avoiding the cost of accommodation wherever possible. Secondly, it opened employment opportunities to Native Indians with the possibility that making employment at least accessible to members of the community would assist the Railway in its ongoing relations with the Takla Lake Indian Band. Those are legitimate corporate goals. This was not a case of the Railway providing facilities or benefits to one class of employee which were denied to another. Here, the Railway posted vacancies without providing accommodation in the expectation that applicants would either make arrangements to find accommodation in the vicinity or that local residents could be found to fill the positions. Thus, the Railway structured the postings so as to avoid the cost of providing accommodation and, coincidentally, to afford an opportunity to residents of the Reserve to bid on the positions and, thus, meet the corporate goal of providing local employment to Native Indians.
But, whether the issue is seen as one of unreasonableness, unfairness, bad faith or discrimination, it comes down to a question of whether the Railway was acting within its rights under the collective agreement and whether its reason for acting in a particular way was responsive to a legitimate business interest. Here, the Railway established sound corporate reasons for electing not to post the positions with accommodation. In short, the facts do not support a finding of bad faith or discrimination and the dispute turns on the interpretation of Article 17.3.
Turning to that issue, I commence with a review of the arbitral principles that govern the resolution of a disputed interpretation. The leading decision on those principles in this jurisdiction is University of British Columbia and Canadian Union of Public Employees, Local 116  1 C.L.R.B.R. 13 (Weiler). The approach required of an arbitrator is summarized in UBC and CUPE in the following extracts from p. 18:
Accordingly, in any case in which there is a bona fide doubt about the proper meaning of the language in the agreement – and the experience of arbitrators is that such cases are quite common – arbitrators must have available to them a broad range of evidence about the meaning which was mutually intended by the negotiators.
But if this is the objective [adducing extrinsic evidence], the party does not have to clear a preliminary barrier before that evidence can be utilized, of securing an initial ruling from the arbitrator that the agreement is legally ambiguous on its face. Instead, the arbitrator, when he begins the task of interpretation, will be able to do so with a full appreciation of the relevant exchanges which eventually culminated in the formal document. With that material before him, the arbitrator can decide whether he entertains any doubt about the meaning intended for the provision in question and, if so, whether the negotiation history is helpful in resolving that doubt.
The decision in UBC and CUPE dealt expressly with extrinsic evidence of the bargaining history of disputed language. No bargaining history of Article 17.3 was led by either party. However, the same principles were extended by the Board to evidence of past practice in The Corporation of the District of Burnaby and Canadian Union of Public Employees, Local 23  2 C.L.R.B.R. 99 (Weiler). The Board commented as follows on p. 102:
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 matters in dispute”.
Here, both parties led evidence which was relied on as extrinsic evidence of their practice in the administration of Article 17.3. However, having looked at that evidence in conjunction with Article 17.3, I find that, while I “entertain a doubt” about what the parties intended in selecting the language of the provision, the evidence of practice was not helpful “in resolving that doubt”. In particular, the evidence did not address the manner in which Article 17.3 has been administered.
The evidence relied on by the Union was given by James Fetterly, a heavy duty machine operator and a member of the Union’s Committee of Adjustments. Mr. Fetterly has been employed by the Railway for more than 19 years and has worked in all areas of the system. He said that when the Takla Extension was in operation prior to 1983, there was no work location north of Fort St. James of which he was aware where accommodation was not supplied. He also gave extensive evidence of the geography of the area and expressed the opinion that there was no accommodation available that would permit applicants to reside at the work site. He said, further, that there was limited road access to the area and that commuting from areas where accommodation was available was impractical because of the condition of local roads, particularly in winter.
Mr. Hooper gave evidence on behalf of the Railway. He did not agree with the evidence of Mr. Fetterly. He did agree that access roads could become impassable during heavy snowstorms; but, he said that the area was accessible generally by road and, in any event, that accommodation was available. He said that there is a community of approximately 400 people (Takla Post) in the immediate vicinity of Takla/Bluff which includes a general store, a church, a nursing station, phone and fax facilities, boat and plane docks and Native schools. He described various facilities where accommodation had been obtained for employees and offered the opinion that accommodation was available to persons wanting to search it out.
Placing the practice question in the context of the authorities, it is clear that evidence of practice, to be useful, must address itself to particular language and it must be seen to speak clearly to the mutual intention of the parties with respect to the meaning to be given to that language. Speaking generally with respect to the nature of extrinsic evidence (also referred to as parol evidence), Professor Adams wrote as follows in Hiram Walker & Sons Ltd. and Distillery Workers, Local 61 (1973), 3 L.A.C. (2d) 203 @ p. 209:
But this is not to say that parol evidence can be relied upon that, too, is vague, unclear, and ambiguous. For parol evidence to be utilized in “discovering” the meaning of the collective agreement it must be “consensual” … It must give clear evidence of the parties’ intentions and not represent merely the unilateral “hopes” of one of the parties.
That reasoning has been applied specifically to evidence of past practice in a number of awards. The point made is that evidence of practice must support an inference that the parties, by their conduct or their communications, disclosed by necessary implication their agreement that particular language should be applied in a particular way. That subject was addressed recently in Re Eastern Bakeries Ltd. and Bakery, Confectionary & Tobacco Workers International Union, Local 406 (1990), 9 L.A.C. (4th) 366 (Graser). On p. 373, the arbitrator wrote:
It is clear that if a provision in an agreement is ambiguous in its requirements, the arbitrator may utilize the conduct of the parties as an aid to clarifying the ambiguity. In such a situation the use of evidence of past practice may be invoked as an aid to interpretation of the agreement. The theory requires that there be conduct of either one of the parties, as an aid to clarifying the ambiguity. Further that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct be acquiesced in by the other party.
Here, there is no evidence of exchanges between the parties with respect to the application of Article 17.3, either in the course of a dispute, or in exchanges relating to the administration of the provision. Certainly, there are cases where consistency in the application of particular language will invite an inference of acquiescence by the parties. But that only arises where the conduct is capable of only one inference. Here, that circumstance does not exist. The fact that the Railway has supplied accommodation at a work location in the past does not speak to the issue of whether or to what extent it is contractually bound to provide accommodation. The practice evidence, at best, is ambiguous in the sense contemplated in Hiram Walker & Sons.
In that context, it is to be noted that the onus on a party asserting an interpretation upon which it must rely in order to succeed in a dispute is to prove the facts necessary to support that interpretation. See Falck v. Williams  A.C. 197 @ 181 and Coit v. Dowling (1901) 4 Terr. L.R. 464, quoting Falck v. Williams, on p. 469 as follows:
Where the words in a proposal for a contract are understood and acted upon by the parties in different senses there is no contract, and it is for the Plaintiff, in an action for breach of contract, to show that his construction is the true one.
Those principles are adopted in arbitral jurisprudence. In Gorsky, Evidence and Procedure in Canadian Labour Arbitration, 1981, Professor Gorsky stated as follows on pp. 124-25:
In most cases, it is the party asserting that bears the onus. The party that calls the arbitrator to its aid must entertain its case or lose. Thus, when the grievance concerns the interpretation of the agreement, the grievor must show that his or her interpretation is more likely. If the two conflicting interpretations are equally plausible, that grievance must fail.
A similar conclusion was expressed in Palmer, Collective Agreement Arbitration in Canada, 1991. On p. 120, Professor Palmer wrote:
[T]he onus is on the grievor, whether employer, union or employee, to establish the preferability of his interpretation of the relevant collective agreement provision …
Professor Palmer acknowledged that a different line of reasoning has developed, but I prefer the reasoning in the authorities relied on by Professors Gorsky and Palmer. (In terms of the differences in arbitral reasoning, see Re Giant Yellowknife Mines Ltd. and Canadian Association of Smelter & Allied Workers, Local 4 (1991), 16 L.A.C. 413 (Bird) @ pp. 414-15). In this dispute, the onus was upon the Union to call evidence to establish that the mutual intention of the parties in selecting the language of Article 17.3 was to give to the Union the right to require the Railway to post vacancies with accommodation at all work locations in Takla Extension that are north of Fort St. James. As stated, that submission involves an issue of application rather than an issue of interpretation.
The Union made no express submission with respect to how the language of Article 17.7 should be interpreted. It submission was limited to how the language should have been applied at Takla/Bluff. Absent from the evidence was any indication that the issue of the interpretation or application of Article 17.3 had ever arisen between the parties or that there had ever been a dispute between them with respect to accommodation. Hence, there was no evidence of the practice of the parties in the application of the language itself to assist in the interpretation. Briefly stated, the fact that accommodation had been supplied voluntarily by the Railway in the Takla Extension does not support a finding that the Railway was compelled to supply it.
In the absence of helpful extrinsic evidence, the dispute lies to be resolved on a consideration of the language itself. See Re MacMillan-Bathurst Inc. (Pembroke Plant) and International Woodworkers, Local 1-1000 (1991), 14 L.A.C. (4 th) 437 (Garrett @ p. 439 and p. 441 where the arbitrator concluded that the evidence of past practice was “inconclusive at best” and that the provision stood to be interpreted “without regard to past practice”. Turning to the language, then, one can say that no obligation to provide an employee with accommodation can be read into a collective agreement in the absence of language that supports such a claim. The position of the Railway is that it is free to post positions without accommodation under the language of Article 17.3 and has the discretionary right to determine when providing accommodation will be “necessary”. The Railway submitted, in effect, that to accept the interpretation of the Union would be to amend the language of the collective agreement to create an obligation beyond what the parties can be seen to have negotiated.
The Union tied its position to the issue of seniority and the vital role that seniority plays in job security in this component of the bargaining unit. That aspect of the relationship has been discussed at length in prior decision between these parties. The Union expressed a concern that the decision not to provide accommodation, quite apart from its reasonableness and the question of whether it constituted discrimination, was a restriction on the right of senior employees to bid on vacant positions. In a work force which expands seasonally to accommodate the major construction and maintenance projects and which contracts in the winter in response to weather restrictions, the seniority rights of employees are of more immediate value than in a more traditional work force where senior employees tend to occupy permanent positions and where the progression from entry level to secure positions follows progressively on the basis of years of service. In the submission of the Union, the collective agreement should not be interpreted so as to create a circumstance in which junior employees are given preference over senior employees by reason of a failure of the Railway to provide accommodation.
However, in order to accede to the Union interpretation, it would be necessary to conclude that Article 17.3 is intended to bestow a positive right on employees to have accommodation provided for them to facilitate the exercise of their seniority, even where the Railway has the capacity to meet its manning requirements without providing accommodation. As stated, there was no evidence of any prior challenge by the Union of the Railway’s administration of Article 17.3 or any assertion in the past that the language vests in the Union a right to compel the Railway to provide accommodation where the Railway has concluded that it can meet its manning needs without incurring that additional expense. Not only was there no evidence of prior grievances or disputes with respect to Article 17.3, there was no evidence that the application of the provision had ever arisen as an issue between the parties in any form.
The position advanced by the Union includes by necessary implication the assertion that it is entitled under Article 17.3 to compel the Railway to provide accommodation in any posting where senior applicants or the Union anticipate that accommodation is not readily available to them. This dispute is a case in point. The evidence of the Railway was that accommodation could be had in the area. That assertion was not tested by the Union in the sense of adducing evidence that attempts had been made by applicants to find accommodation without success. There was evidence from Mr. Hrechka in which he expressed the same opinion as Mr. Fetterly with respect to the lack of availability of accommodation. But, once again, there was no evidence from him that he had attempted to find accommodation without success. Hence, to the extent that the availability of accommodation is an issue of fact in the language of the provision, proof that no accommodation is available is on the Union and the evidence, in light of the contradictory evidence given on behalf of the Railway, did not meet that requirement.
In any event, as indicated, I do not see the availability of accommodation as the principal issue between the parties. The principal issue is whether the language of Article 17.3 can be read as imposing an obligation on the Railway to provide accommodation coincidental with the posting of vacancies in work locations where accommodation is considered readily available by the Union. The Union submission failed to address how the parties are to determine whether a work location is an “outlying point”, how it is to be determined that providing accommodation is “necessary” at a particular “outlying point” after it has been identified as such, and what is meant by the term, “other living accommodation is not available”.
The difficulties inherent in the language can be readily seen. Is the question of whether “other living accommodation is not available” to be answered with respect to each applicant? That is, if we suppose that a senior applicant wishes to apply for a posting at a work location where there is no accommodation readily available to the senior employee, but where a less senior employee resides or has access to accommodation, can it be said that Article 17.3 compels the Railway to provide accommodation in order to facilitate the application of the senior employee? Further difficulties abound. What is the status if some applicants are able to obtain accommodation and others fail? What is the situation if single accommodation is available, but not for families? What if the accommodation is acceptable to some applicants, but is seen as substandard by more senior applicants?
Similar difficulties arise with respect to what is meant by the term “when necessary” and “outlying point”. Those terms have no independent or contextual meaning that compels a particular interpretation. It can be argued that the least consequence of those difficulties is a finding that the language will not support an obligation in the Railway to decide the accommodation issue prior to posting a vacancy and that the provision leaves it open to the Railway to decide whether it is necessary to offer accommodation at a particular work site. I repeat, the language is less than clear and raises doubts about the meaning intended. But those doubts resolve themselves more in favour of the Railway’s assertion that it has retained a discretionary right to decide when accommodation will be necessary with respect to a particular vacancy.
I agree with the submission of the Union that if the language is seen as giving a discretionary right to the Railway to determine when accommodation will be required, then the exercise of that discretion must be fair, reasonable, and made in good faith in the sense contemplated in the authorities. In the context of that test, Mr. Hooper said it was his understanding in the administration of the collective agreement that, if the Railway requested an employee to accept a position, it would provide accommodation if that was necessary in order to fill the vacancy, but that it considered itself free to elect not to provide accommodation if its manning needs could be met without incurring that expense.
On the discrimination issue, Mr. Hooper said in cross-examination, that, during the relevant period, he was meeting on a regular basis with the Takla Lake Indian Band. He said that the Band representatives had asked if a permanent section force would be established and, if so, would members of the Band get employment. He said that he told the Band that the Railway was going to put in a section and that Band members would be hired subject to the terms of the collective agreement. He said that the Band spokespersons were aware that there was a collective agreement in place and no demands were made for jobs. He said further that it was acknowledged by the Band that there was not a large number of local residents able to perform section work on the Railway and that it was not a major issue.
I digress to recall the Union’s argument that the requirement in Article 9.2 that postings show “full particulars, such as living accommodation, stores, post office, schools, etc.”, can be read as supporting a finding that the Railway is obligated to provide accommodation in postings where it is not designated as being available. The November postings did not contain the requisite information. The December postings, being the postings at issue, contained the designation, “conveniences immediate area”. Mr. Hooper, as stated, recited that there were various facilities available in the area, including accommodation. However, leaving aside the particular facts, I repeat my earlier view that Article 9.2 cannot be read as requiring the Railway to provide accommodation. Its clear intention is to require the Railway to indicate whether accommodation will be provided and what other facilities are available in the work location.
In response to criticism about the form of the posting and the absence of the information required under Article 9.2 in the November postings, Mr. Hooper said that employees wanting to bid on vacancies where no accommodation was provided would be expected to inquire about obtaining accommodation and, if they were unable to obtain accommodation, they would not be in a position to bid on the vacancy. The question posed to him hypothetically was what if employees bid on positions where no accommodation is provided and are unable to obtain accommodation when they are selected as the successful applicant. Mr. Hooper said that the same possibility existed with respect to vacancies anywhere on the system and that being a successful applicant in a posting was not a guarantee of being able to occupy the position. I repeat that the issue here is not whether the Railway’s failure to provide the information called for in Article 9.2 was a breach of the collective agreement. The issue is the interpretation and application of Article 17.3.
Turning to the resolution of the dispute, I note that the language of the provision is difficult in the sense that “outlying point” is not defined and is incapable of definition in context. In practice, there are work locations where there is no habitation of any kind and work locations where there is an extensive ad sophisticated selection of temporary and permanent accommodation. Within those extremes, there are work locations with varying degrees of accommodation available. In the context of those facts and the structure of the collective agreement, the term “outlying point” has no independent meaning. Read in the context of the terms, “when necessary” and, “where other living accommodation is not available,” the language implies a discretion in the Railway to determine what is an outlying point and when it will be necessary to provide accommodation.
The interpretation implicit in the Union submission would require a determination that the Railway can be compelled to provide to provide continuous accommodation for permanent positions despite the availability of employees or external applicants who can provide their own accommodation. The issue raised in the particular facts illustrates the point. The positions in dispute were established as permanent positions. Implicit in that designation is an expectation that the positions will exist for the foreseeable future and, in any event, for a period in excess of 12 months. The Union interpretation would require the Railway, in the posting, to provide accommodation on a permanent basis for all members of the section with all of the attendant costs even though some or all of the work could be performed by local residents or employees able to acquire accommodation. The language relied on does not support that extreme interpretation.
The Union is correct in its submission that the Railway must act fairly and reasonably in making decisions with respect to accommodation. Distinctions made between applicants in the provision of accommodation that do not reflect their seniority and other collective agreement rights can be challenged by grievance on the basis of unfairness or unreasonableness, including discrimination in the arbitral sense of that term. If, for example, the Railway were to supply accommodation to some vacancies in a particular classification at a work location, but not all vacancies in that classification, it would be expected to provide it on the basis of seniority of applicants.
In any event, the evidence invites the speculations, if not the conclusion, that the facts in this dispute are unique and are not likely to repeat themselves at other work locations. The very absence of discussions between the parties about Article 17.3 supports the conclusion that its administration does not result in problems of interpretation or application in the ordinary course. Ordinarily the Railway is compelled to offer accommodation at particular locations in order to obtain qualified applicants. In any event, the fact, including the language of the provision, do not support a finding that the Railway must supply accommodation where its manning needs can be m et otherwise in a manner consistent with the provisions of the collective agreement. In the result, the grievance is dismissed.
DATED at the City of Vancouver, in the Province of British Columbia, this 4th day of November, 1991.
H. ALLAN HOPE, Q.C. - Arbitrator