AH – 292
IN THE MATTER OF AN ARBITRATION
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6
GRIEVANCE RE Group 5 Machines Arbitration
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Prince George, B.C., on September 4, 1991.
This dispute arose on August 22, 1988 when the grievor, Francisco Nova, claimed the right to operate a machine on Gang 314 that the Union identified for purposes of argument as a creosote applicator. This dispute arose under Article 18.5 and Article 19.1 of the collective agreement. In Article 19.1, machines are divided into five groups, each of which contains a listing of various types of machines. Group 5 of Article 19.1 contains 16 pieces of equipment, including the creosote applicator. In the Railway’s job classification structure, the operation of Group 5 equipment is assigned under Article 18.5 to employees in the classification of Machine Operator 5. The position of the Union was that the grievor, as a Machine operator 5, was entitled to exercise his seniority against a specific machine in Group 5. The Railway argued that bumping rights were limited to claiming a position, occupied by a junior employee, not the specific work assignment of the employee in the position.
The junior employee bumped by the grievor was one of seven employees on Gang 314 in the Machine Operator 5 classification. At the time he was bumped, he was operating the creosote applicator. The Union, as stated, said that the grievor’s seniority rights entitled him to claim the right to operate that specific machine on the basis that it was being operated by the junior employee who was being bumped. The position of the Railway, as stated, is that the collective agreement entitles an employee to exercise his seniority against a junior employee and, to claim the position occupied by that junior employee. But, said the Railway, in the case of Machine Operator 5s, the position is that of a machine operator at a particular location, not the work task being performed by the operator at the time of bumping. The provision of the collective agreement upon which the Union relied is Article 10.2, which reads as follows:
10.2 An employee whose position is abolished, or who is displaced will, within five (5) working days of the job abolishment or displacement, exercise seniority over any other junior employee subject to being qualified to do the work of the employee being displaced.
The Union position is that the provision vests in an employee the right to “exercise seniority over any … junior employee”. That language, said the Union, entitles the senior employee to claim the particular job of the junior employee being bumped. The Union said that the phrase, “qualified to do the work of the employee being displaced”, indicated that the senior employee was entitled to claim “the work” being performed by the junior employee, provided only that the senior employee was qualified to perform it. The Union said that in the hypothetical facts, the grievor selected the particular Machine Operator 5 to bump because he wanted to operate the machine to which that operator had been assigned.
The Railway denied that right to the grievor on the basis that the work assignment of a Machine Operator 5 is not part of the “position” of the operator and is in the discretion of the Railway. The Railway stated its position in a letter to the Union dated September 23, 1988 that reads in part as follows:
Article 10.2 states an employee whose position is abolished or who is displaced will within five (5) working days of the job’s abolishment or displacement, exercise seniority over any other junior employees. It does not say he has his choice of a group 5 machine, when bumping, you bump the employee, and group 5 machines are assigned.
The position of the Union was supported in evidence given by Victor Greco, a long-time employee of the Railway and official of the Union, and by the Union president, Robert Dhensaw, who has been an employee of the Railway since 1968 and is a long-time official of the Union. Both Union officials have extensive experience working on gangs. I will review their evidence later. The Railway supported its position in evidence called from three witnesses, including Ken Young, the management official in charge of the job posting process of the Railway, Diane Fremmerlid, the coordinator of employee records who has immediate responsibility for job postings, and Fernando Correia, who is currently the senior roadmaster in Lillooet subdivision and who was an extra gang supervisor from 1985 to 1990. In particular, he was supervisor of Gang 314 in October of 1988 when the events giving rise to this grievance occurred. The evidence of those three officials, which I will review later, was to the effect that the Railway has never recognized a right in Machine Operator 5s to claim particular machines and that the “position” occupied by Machine Operator 5s consists of an assignment in that classification to a particular work location.
As stated, both parties led evidence of past practice in support of their interpretations. The Union evidence led from Mr. Greco to the effect that it was his understanding that employees in the Machine Operator 5 classification have been recognized in the past as having the right to select the particular machine they want to operate based upon their seniority. In addition to that general statement, Mr. Greco filed in evidence a copy of an agreement reached between the parties with respect to a disabled employee. The agreement was made on November 23, 1987. The body of it reads as follows:
BC Rail and the Canadian Union of Transportation Employees, Local No. 6 agree to the following:
1. Jose Joaquim will be the first labourer called to work with the zapper spikers each year. This position will not be subject to the seniority provisions of the Collective Agreement and will be deemed a protected position. Mr. Joaquim will be allowed to move from one zapper spiker to another until the last zapper spiker position is abolished each year, due to the seasonable nature of this work.
2. Due to the extenuating circumstances surrounding Mr. Joaquim, BC Rail agrees to override the requirements of eligibility and allow Mr. Joaquim to collect Weekly Indemnity Benefits until he is recalled to work in 1988 on a zapper spiker or until twenty six weeks expire. This is without prejudice to any future claims involving Mr. Joaquim.
3. C.U.T.E. Local No. 6 agrees to save BC Rail harmless from any claims or damages that may result from point 1 above.
Mr. Greco said that his understanding was that the agreement was necessary to prevent other employees from bumping Jose Joaquim from a zapper spike position. He saw the agreement as supporting the Union position on the basis that if Machine Operator 5s did not have the right to claim particular machines and it was open to the Railway to change their assignments in its discretion, the agreement would not have been necessary because the Railway could simply have assigned Mr. Joaquim to zapper spike positions as the construction year progressed. The Railway’s understanding was to the opposite effect, that is, it understood that the agreement was necessary on the part of the Union to ensure that other employees did not exercise their seniority against Mr. Joaquim. In addition, said the Railway, as indicated in the agreement, it wanted the Union to accept liability for any consequences flowing from the agreement. The implication in the evidence is that it was the Union that sought the agreement in a desire to protect the interests of Mr. Joaquim. I will return later to the significance of that agreement in terms of the interpretation issue.
Mr. Greco was recalled to give further evidence of a specific incident that he saw as supporting the interpretation of the Union. He said there was an incident at Porteau in 1990 when he was shop steward on a gang working there. He said employees wanted to bump specific junior employees assigned to rail pickup because it was easier work than an extra gang labourer and because rail pickup provided greater access to overtime work. He said that one supervisor rejected those requests, insisting that the only right of the employees was to bump the most junior employee with no right to claim a specific work assignment. He said he gave his understanding of Article 10.2 to the supervisor. The supervisor’s response, said Mr. Greco, was that if he was forced to comply with the Union’s interpretation of Article 10.2, he would simply reassign the employees the next day to suit his purposes. Mr. Greco said that the supervisor finally acceded to his understanding of the rights of the employees under Article 10.2. The Railway did not challenge that evidence, but took the position it was not helpful in resolving the interpretation issue.
Mr. Dhensaw gave evidence to the effect that his experience on the gangs was that work assignments for Machine Operator 5s were designated by the Railway in the first instance when the gang were made up in the Spring and that thereafter senior employees were recognized as having a right to bump a particular operator assigned to a particular machine and to thus claim the machine. He was not cross-examined. However, the Railway position, in effect, was that his evidence did not support the interpretation urged by the Union. If Machine Operator 5s have the right to exercise seniority against specific machines, that right would apply to the make-up of gangs and machine assignments would be done on a seniority basis, not by assignment by the Railway.
Mr. Correia gave evidence on behalf of the Railway. He disclosed extensive experience working on extra gangs in both bargaining unit and supervisory positions. Using Gang 314 as an example, he said that the Machine Operator 5 component of gangs is put together in the Spring by the Railway with operators being assigned to particular machines by management based upon the known strengths and weaknesses of individual operators. He said that extra gangs like Gang 314 are high production units and it is essential to have a smooth-working team because productivity depends on every member of the work unit producing effectively. He said that the team approach is more vulnerable to inefficiency in the operation of some machines than is the case with other machines.
Mr. Correia said that individual operators demonstrate greater facility in operating some Group 5 machines than they do with other machines in the group. He said those factors dominate the decisions made by the Railway in assigning machines to Group 5 operators. Mr. Correia said that during the season, changes are made by management on the basis of demonstrated ability and that, as replacements are required in gangs, the decision with respect to the reassignment of machines is made by the Railway. He agreed that senior operators are given their choice in the operation of machines in all cases if their skill and experience levels meet the needs of production, but that the ultimate discretion rests with the Railway.
The evidence of Ms. Fremmerlid was that the Railway, in her 14 years of experience, has never made a distinction in the Machine Operator 5 classification on the basis of individual machines. She filed in evidence a copy of an employment history report relating to the grievor from January 4, 1988 to December 11, 1989 in which it was disclosed that he worked on a number of gangs as a “Machine Operator 5 – Track” and that he was never either recorded or disclosed as having operated a particular machine within the Group 5 category. She said that in the administration of the job postings provisions of the collective agreement and the monthly bulletin in which vacant positions are posted, postings in the Machine Operator 5 classification do not make any distinction with respect to a particular machine.
In that context, she filed in evidence copies of job bulletins in which vacancies in Gang 314 were published. The bulletins were published in the Spring of 1988, 1989 and 1990 respectively. In each case, the bulletin was the same except with respect to its start location. In 1988 the start location was not designated. In 1989 it was Quesnel and in 1990 it was Hixon. The remainder of each bulletin entry was the same in all three years. The bulletin advertised for, “(7) Machine Operator 5 – Track”. The seven positions were advertised as being temporary with an approximate duration of 20 weeks. Mr. Young said in his evidence that the Railway had never made a distinction with respect to the Machine Operator 5 classification based upon particular machines, either in the administration of the collective agreement or in posting vacancies. He said that the Union had never challenged that practice prior to this dispute and had never filed a grievance challenging the form of the postings. In cross-examination it was put to him that 15 years before, extra gangs had been laid off on the basis of the particular machine they were operating. Mr. Young said layoffs had always been made on the basis of seniority in the Group 5 classification, not any particular machine.
In argument the Union said that the grievance is a test of the language of Article 10.2. On that language, said the Union, the right of the employee is to exercise seniority against a junior employee, not a “position”. Implicit in the language is a right to claim the “work” of that junior employee, said the Union. Its submission was that the requirement that a senior employee be “qualified to do the work of the employee being displaced” makes it clear that the seniority right recognized in the provision is a right to claim “the work of the employee”, not the position the employee occupies.
Turning first to the practice evidence, the Union did not rely on it expressly in argument. In any event, the Union evidence did not meet the arbitral test that such evidence must meet in order to be of assistance in the interpretation of disputed language. The legislation governing collective bargaining, being the Industrial Relations Act, requires that a collective agreement be in writing and that extrinsic evidence of bargaining history or past practice cannot be relied on to create contractual obligations, it is limited to giving meaning to disputed language. In that regard it is to be distinguished from evidence adduced for the purpose of establishing an implied term in a collective agreement or evidence adduced in support of an application of the doctrine of estoppel.
Where the evidence is tendered as extrinsic evidence of past practice to support a particular interpretation or application of specific provisions of the collective agreement, its use is limited to giving meaning to that language. Here the evidence of the Union was tendered for the purpose of showing the meaning intended by the parties with respect to the interpretation and application of Article 10.2. Weighed in that context, the evidence was deficient in the sense that it did not meet the four-fold test set out in John Bertram & Sons Co. Ltd. and International Association of Machinists, Local 1740 (1967), 18 L.A.C. 362 (Weiler). One of a number of prior decisions between the parties in which the issue of past practice was addressed is Training Program Arbitration - Part 2, August 16, 1988, unreported @ pp. 17-20. On p. 19 the decision in John Bertram & Sons was reviewed, including the test favoured by arbitrators.
The first point in the test anticipates a need for a finding that the language at issue is ambiguous. That test no longer applies in British Columbia because of the introduction of the Labour Code of B.C. See University of British Columbia and Canadian Union of Public Employees, Local 116, (1977) 1 C.L.R.B.R. 13 (Weiler). The same reasoning applies under the Industrial Relations Act. However, the remaining three elements of the test have survived and are frequently cited and relied on by arbitrators in the assessment of evidence of past practice.
The second requirement articulated in the decision is, “conduct by one party which unambiguously is based on one meaning attributed to the relevant provision”. The evidence of the Union in this dispute does not meet that test. The initial evidence of Mr. Greco was limited to his general understanding with respect to the application of the provision. His later evidence addressed a concession made by one supervisor in one gang in one circumstance. The decision made by that supervisor in an operational setting in the field could not fairly be described as conduct by the Railway “which unambiguously is based on [the] meaning attributed to the relevant provision” by the Union.
Nor does the evidence meet the third aspect of the test articulated in John Bertram & Sons. That test requires “acquiescence in conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection”. A clear expression of acquiescence normally arises in the context of a dispute or a grievance in which the party against whom the practice is asserted states expressly that the interpretation urged is the correct one. Normally that evidence would arise in the course of grievances settled between the parties. Acquiescence “which can be inferred from the continuation of the practice for a long period without objection” is self-explanatory. Here the evidence of Mr. Greco consists of his understanding but does not provide a base for the finding of mutuality which is implicit when parties conduct themselves in a particular way consistently over a long period of time. Where a practice is asserted as having the force of contract in the sense of giving meaning to disputed language, the practice itself must be clear and unambiguous in terms of the meaning it is said to imply.
Finally, and in any event, the evidence of Mr. Greco does not meet the fourth element of the test in John Bertram & Sons in the sense that it did not disclose that members of the Union or management hierarchy who have some real responsibility for the meaning of the agreement have “acquiesced in the practice”. Both parties are aware of the level at which the interpretation of the collective agreement is addressed and where binding decisions can be made by the Union and the Railway respectively with respect to its interpretation and application. Here there was no evidence to indicate that the practice relied on by the Union gained the attention of the Railway at that level and that the meaning asserted by the Union was accepted by persons responsible for interpreting the agreement, either expressly or by conduct.
In a disputed interpretation it can be said that the party asserting a particular interpretation upon which it must rely in order to succeed in the dispute bears the onus of proving the correctness of that interpretation. Proof of an interpretation consists of proof of the factual components which give rise to the meaning relied on by the party asserting it. In every instance a major aspect of the factual component consists of the language in dispute. Thereafter, the factual evidence can include extrinsic evidence of bargaining history and practice and, quite apart from extrinsic evidence, evidence of the general context in which the language came into being, the industrial relations purpose implicit in it, and other circumstances relied on to support the assertion of a particular meaning. In short, a party seeking to rely on a particular meaning bears the onus of proving that the parties intended that meaning. To that extent, the intent of the parties is an issue of fact to be proven subject to the same requirements as any other disputed fact.
In this dispute it was the Union that asserted that Article 10.2 gave to employees a right to exercise their seniority against a particular machine in the Group 5 listing. Therefore, the Union bore the onus of proving the facts necessary to support a finding of a mutual intention consistent with its interpretation. Having concluded that the evidence of practice adduced by the Union does not meet the arbitral test, it becomes a question of considering the disputed language in the industrial relations context of such provisions and the apparent purpose of the provision read in the context of the collective agreement.
The evidence of the Railway is of some assistance in that task, although there is no onus on the Railway to prove that the interpretation of the Union is incorrect. The position of the Railway is that Article 10.2, when read in the context of the collective agreement, contemplates a right in employees to exercise their seniority against positions occupied by employees junior to them which involve work they are qualified to perform. As stated in a number of prior arbitrations, the issue of qualifications under this collective agreement is addressed in the first instance on the basis of classification seniority. That is, Machine Operator 5s exercise their seniority rights in the Machine Operator 5 classification based upon their seniority in that classification and not upon qualifications with respect to the operation of a particular machine or seniority in the application of a particular machine.
In assessing that position, we begin with a consideration of the manner in which employees exercise their seniority under Article 10.2. The Union submission, in effect, was that an employee has a right to claim the work of the junior employee. The Railway’s submission is that the right vested in employees is to claim the “position” of the junior employee. On the facts in this dispute, said the Railway, the “position” of the junior employee was that of a Machine Operator 5 on Gang 314.
I agree with the submission of the Railway that Article 10.2 contemplates a right in employees to exercise their seniority against a “position”. The language speaks of exercising seniority against a junior employee, but it is clear when it is read in context that it means a junior employee in a particular position. The right employees acquire under Article 10.2 to exercise seniority arises when their “positions are abolished or (they) are displaced”. The compelling implication is that employees, having had their “position” abolished, are entitled to claim another position if it is occupied by a junior employee and if they are qualified to do the work of the position. The implication that seniority rights are exercised against a position occupied by a junior employee is equally compelling in a consideration of the concept of “displacement”. An employee who is bumped is displaced. Employees are displaced from a “position”. Obviously, if employees who are bumped are deemed to have been bumped from a “position”, the employee who is bumping must be seen as bumping into the “position” from which they have been displaced.
The persistent theme in the provisions of the collective agreement is that employees occupy “positions”. For example, employees obtain “positions” by bidding on them under Article 9. 1. Throughout Article 9, the language speaks of “positions” as being synonymous with the job of an employee. A similar theme appears in the seniority provisions in Article 8. In particular, Article 8.4 provides expressly that what an employee acquires in an exercise of seniority is a “position”. That provision reads as follows:
8.4 An employee obtaining by bid or by the exercise of seniority a temporary or permanent position, whether higher or lower rated or in another department will be maintained on the seniority list of the classification vacated.
There it is clear that what an employee obtains in an exercise of seniority is a temporary or permanent position, not a specific work assignment. The same implication arises in Article 10.3, which reads in part as follows:
10.3 [D]isplacement rights must be exercised and work commenced on position of choice within five (5) working days of displacement …
In short, there is no basis for concluding that what is contemplated by the parties in Article 10.2 is a right to exercise seniority against a specific work assignment as opposed to a position. In that context, I note that it is the Railway that designates positions. An accepted principle of the interpretation of collective agreements is that, in the absence of restricting language, it is the employer who has the right to organize and direct the work. In Corp. of Borough of Scarborough and Canadian Union of Public Employees, Local 368 (1976), 10 L.A.C. (2d) 188, Professor Adams said as follows on pp. 193-4:
The starting position in these kinds of cases must be based on the arbitral principle that management is free to assign work as it wishes as long as it does so in good faith and with due regard to opposing provisions of the collective agreement that specifically impinge upon this freedom …
In that context, this collective agreement does not restrict the right of the Railway to create positions consistent with the job posting, classification and seniority provisions of the agreement. The basic vehicle used in structuring the work under this collective agreement is, as stated, the designation of “positions”. The Railway is required to structure positions in accordance with the classification provisions of the agreement. Furthermore, as noted in previous arbitrations between the parties, Article 9.2 of the collective agreement makes it clear that a position is more than the mere classification of the incumbent. It includes a specific location and consists of an identifiable bundle of tasks that make up a particular job to which the incumbent is assigned. However, the collective agreement does not prevent the Railway from designating “positions” at a particular location which consist of the application by employees in a particular classification of defined job skills to work assignments as they arise rather than the work itself.
The nature of positions as separate and identifiable jobs was considered in the Compulsory Work Assignment Arbitration, September 19, 1989, unreported. The “positions” in question in that arbitration were set forth on p. 11 and involved the heavy duty mechanic classification. The “positions” there involved employees in that classification and included the assignment to a particular gang. However, the work assignment of each of the mechanics assigned to the gang was in the discretion of the Railway. If there is more than one heavy duty mechanic position designated for a particular gang, and that appears to be a routine event, then one could not say that the specific repair assignment given from time to time to one mechanic as opposed to the other would constitute a separate “position” in terms of the seniority provisions of the collective agreement. In that case, the “position” was that of heavy duty mechanic on Gang 314.
That fact is made clear in the extracts from the bulletins filed in evidence in this dispute. They disclose that when Gang 314 was being set up in April of 1990, two of the “positions” advertised in the bulletin were for heavy duty mechanics for a period of 20 weeks. The specific work assignments of those two mechanics would be in the discretion of the Railway. It is clear that if one of the mechanics was bumped by a more senior heavy duty mechanic under the provisions of Article 10.2, it could not be said that the senior mechanic could claim entitlement to the particular task being performed by the junior mechanic at the time of being bumped. In every case, the issue is addressed on the basis of the “position” occupied by the junior employee and whether it is within the discretion of the Railway to assign the work to be performed by the employee in the position.
The way in which that issue can be resolved on a factual basis is to consider whether it is within the discretion of the Railway on an ongoing basis to change the work assignments of employees in a particular classification to meet the exigencies of production. That is, if it is accepted that the Railway has the discretion to assign heavy duty mechanics on a gang to particular jobs and to change those assignments, then it cannot be said that the express task being performed by an employee is part of the “position” which is acquired by senior employees exercising their bumping rights.
In the same vein, if it can be said that it is open to the Railway to change the work assignment of Machine Operator 5s in accordance with the exigencies of production, then the particular work assignment of an individual operator cannot be said to be part of the “position”. Here it is clear that the position at issue is that of Machine Operator 5 on Gang 314. In particular, the position is not that of a creosote applicator operator on Gang 314.
That is not to say that there are no machine operator work assignments that constitute “positions”. In the other four machine groups there are specific work assignments that do amount to a position that can be defended by an incumbent against transfer to another assignment and can be claimed by a senior qualified employee under Article 10. 2. For example, a bulletin may advertise for a Heavy Duty Machine Operator I to operate a particular crane at a particular location. The operation of the crane at that location would constitute a “position” within the meaning of the collective agreement. similarly, a Heavy Duty Machine Operator I who is senior to the employee operating the crane could bump the junior employee and claim the right to operate that crane.
In that same vein, the Railway decides what will constitute a “position”, at least in the first instance. That decision is expressed in the form of a posting. The Railway can and does advertise positions that consist of a particular classification assigned to the operation of a particular machine at a particular location for a specified duration of time. The entitlement of employees bidding on the position or exercising seniority against a junior incumbent, is to claim the position designated by the Railway. However, in the case of the classification of Machine operator 5, it is the classification at a particular location for a specified duration that constitutes the position. That is, the position against which a senior employee is entitled to exercise his seniority is the one designated by the Railway and advertised in the posting for the position when it was created or when it was last posted in response to a vacancy. On the evidence before me it is clear that the right of the grievor in this dispute was to exercise his seniority against any junior Machine Operator 5 on Gang 314. But that did not include a right to claim a specific machine.
Before leaving this dispute it is necessary for me to express a caution. Here the issue was whether the Railway was in breach of the collective agreement when it refused to recognize in the grievor a right to claim a specific machine being operated by a particular junior operator. My answer to that question is that the grievor did not have that right and the grievance must be dismissed. In dismissing it however, I want to make it clear that the general comments I have made about the structure of the collective agreement were for purposes of illustration and not intended to bind the parties in any further interpretation disputes falling outside the precise issue raised in this grievance.
That is a necessary caution with respect to this collective agreement where some of the language is archaic and finding the mutual intent of the parties is sometimes a complex task involving a careful assessment of the language itself and the manner in which it has been interpreted and applied over the years. Arbitrators should always limit their comments to the issues raised. In disputes arising under this collective agreement that is a singularly apt caution. Hence, the decision in this arbitration is limited to the specific issue raised and the general comments about the collective agreement are presented only for purposes of illustrating the reasoning giving rise to the resolution of the specific dispute.
Turning to the resolution of the dispute, I must conclude that the Union failed to establish that the Railway did not have the right to control the assignment of the grievor in his position as a Machine Operator 5. I agree with the Union that seniority rights play a vital role in the assignment of work in this relationship and that grievances relating to seniority rights must be carefully addressed. In particular, seniority is relied on by employees to provide them with access to favoured positions in favoured classifications. Here there can be no doubt that preferences with respect to the operation of particular machines in the Group 5 category do develop. Nor is there any doubt that the Railway, sensitive to that fact, makes assignments where possible in accordance with seniority preferences. However, the language does not support the interpretation asserted and the grievance must be dismissed.
DATED at the City of Vancouver, in the Province of British Columbia, this 25th day of November, 1991.
(signed) H. ALLAN HOPE, Q.C.