AD HOC 313: SENIORITY

AWARD

This dispute involves something in the nature of a policy grievance in the sense that it raises in issue the interpretation of new language negotiated between the parties with respect to the creation of what can be called first aid positions. They are positions in the limited sense that they consist of positions in existing classifications which have been designated as requiring the additional qualification of a first aid certificate for which incumbents are paid an hourly premium. The agreement giving rise to the first aid positions was recorded in a memorandum executed between the parties on June 13, 1990. I will refer to its terms later. The issues relate to the question of what impact, if any, the memorandum has on the seniority provisions of the collective agreement.

The specific grievance that placed the interpretation of the memorandum in issue was that of John Rowe, a qualified section foreman who was denied the right to bump a junior employee from a foreman’s position on the basis that the position required him to have a first aid certificate in addition to his foreman’s qualifications. In addition to that specific issue of application, there were other issues having to do with how the memorandum was to be reconciled with the seniority provisions generally, including the filling of vacancies and the payment of first aid premiums. In outlining the issues, I turn first to the specific grievance of Mr. Rowe.

Mr. Rowe took the position that the Railway was in breach of the collective agreement when it denied him the right to exercise his seniority to bump into a position as foreman of the section crew at Tumbler Ridge. The job in question was first posted in August of 1991 as a vacancy for a foreman/first aid. It was a permanent position and the successful bidder was Brian McCurdy. Mr. McCurdy was junior to the grievor in the classification of section foreman. Six months later, in February of 1991, the grievor was placed in a position to exercise his seniority against junior employees in classifications in which he was qualified. The grievor sought to rely on his seniority to claim the position occupied by Mr. McCurdy. The Railway refused to award the position to the grievor on the basis that it was a foreman/first aid position and that he was not qualified because he did not hold a valid industrial first aid certificate.

The grievor’s initial understanding was that his right to bump Mr. McCurdy had been recognized. He first expressed his intention to bump to Diane Fremmelid, the Railway’s employee records coordinator, sometime prior to February 17, 1992. He informed her that he intended to bump Mr. McCurdy effective February 17. She advised him that he could bump Mr. McCurdy. Ms. Fremmelid said in evidence that after she had advised the grievor of that right, she was speaking with Kenneth Young, the supervisor of administration in the engineering service, and was advised that the grievor was not in a position to bump because he did not have the necessary first aid certificate. Mr. Young then contacted the grievor, who was on vacation, and advised him that he was not qualified for the position. The grievor then claimed a position as a sectionman at Tumbler Ridge and took up his duties on February 25. The grievor claimed that he was improperly denied the position as foreman and he seeks compensation for the difference in rate between his position and that of the foreman from February 25 to the date he is placed in the position.

The Railway, in effect, conceded that the grievor was senior to Mr. McCurdy in the section foreman classification and that if the holding of a first aid certificate had not been a necessary qualification for the position, the grievor would have been entitled to claim it. Hence, the underlying question is whether the Railway was entitled to designate the holding of a certificate as a necessary qualification for the position. Caught up in that question is the issue of the extent to which the Railway was entitled to designate a specific position as a first aid position, and, in effect, to withdraw the position from the usual seniority scheme. Integral to that issue are the collateral questions of how seniority operates with respect to the payment of first aid premiums, the filling of vacancies, and the right of employees to bump in circumstances where the exercise of their seniority rights does not interfere with the first aid program.

The position of the Union was that Article 10.2 of the collective agreement gives employees the right and the obligation to bump employees junior to them in classification seniority. The Union said that the classification at issue was that of maintenance gang foreman as designated in Article 18. 1 of the collective agreement, being the provision which defines the classifications for employees in the track department of the engineering service. The union said that the grievor, being senior in that classification, was entitled to claim the position under Article 10.2.

The position of the Railway was that Article 10.2 expressly requires that employees seeking to bump into positions occupied by junior employees must be qualified to perform the work. Article 10.2 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.

In the submission of the Railway, it is empowered under the new language to designate one position on each crew as one in which the incumbent is required to hold a first aid certificate.

The position in question had been duly designated and the Railway position was that the incumbent, Mr. McCurdy, could not be bumped from that position except by a more senior employee who was qualified in the sense of holding classification seniority and the requisite first aid certificate. In short, the position of the Railway was that if the grievor had possessed a first aid certificate, he would have been entitled to claim the position.

As stated, an additional issue between the parties had to do with the application of the seniority provisions to the payment of the first aid premium provision of the memorandum. Once again, I will set out that provision shortly. Here it is sufficient to say that the issue involved the question of whether seniority governed the payment of the premium where there was more than one employee holding a first aid certificate on a particular crew. I turn now to the language that gave rise to the dispute.

The provision of the collective agreement relied on by the Railway was introduced for the first time in a memorandum executed between the parties on June 13, 1990. It is convenient to set it out in its entirety. It reads as follows:

1. The Railway and the Union agree that First Aid Regulations made pursuant to the Workers’ Compensation Act shall be fully complied with including the services, equipment and supplies set forth therein. The number of first aid certificates required will be as set forth in the Regulations.

2. Within one month, B.C. Rail will bulletin and fill an existing position on each section, mobile B & B gang, mobile rock gang, maintenance gang, rail grinder, O.C.S. crews requiring that the individual have a valid Industrial First Aid certificate.

Seniority will prevail in accordance with the collective agreement in the filling of bulletined positions.

(emphasis added)

3. Should employees with expired first aid certificates apply for these positions, the Railway will pay for the training, time loss and all expenses associated with renewal of the specific certificates.

(a) In determining which positions should be bulletined as requiring a valid Industrial First Aid certificate, the Railway will consider the current employees with active or expired tickets and the positions they currently hold on a permanent basis and before finalizing its decision respecting the list of said positions to be bulletined, the Railway will consult with the union.

(emphasis added)

4. The first aid attendant must be available to the crew at all times. If the crew is divided into more than one group for the day, the first aid attendant will be assigned to the larger group. Communications between divided groups must be maintained.

5. The Railway undertakes to train a minimum of ten employees per year over the next four years. The specific employees will be selected by a four person first aid committee established between the Railway and CUTE 6, comprised of 2 members from each party.

6. The Railway will pay the cost of obtaining and renewing the first aid certificate and meet the time loss and all expenses related thereto.

7. An allowance shall be paid to designated first aid attendants as follows:

Per Hour

Industrial First Aid, Class A or above $ 2.00

Industrial First Aid, Class B $ 1.50

Industrial First Aid, Class C $ 1.00

The position of the Railway was that the memorandum provides expressly in paragraph 2 that it has the right to “bulletin and fill an existing position on each section … requiring that the individual have a valid Industrial First Aid certificate”. The Railway noted further that Article 3(a) provides expressly that it has the right to determine “which positions should be bulletined as requiring a valid … certificate”. In the view of the Railway the language could not be more clear. The interpretation urged by the Union, said the Railway, would require that the express language of the memorandum be amended to provide that incumbents in positions designated as requiring a certificate would be subject to being bumped by senior employees who were not qualified in the sense of lacking the requisite certificate. That interpretation, said the Railway, contradicts the language agreed to by the parties when it is considered in the context of the collective agreement read as a whole.

The Railway referred in particular to Article 9.1 in which the parties have recognized the right of the Railway to create “positions” by bulletin. When the first aid agreement is read in the context of that provision, said the Railway, it represents express recognition of a right to designate “positions” in which the holding of a first aid certificate is a necessary qualification. The Railway emphasized the opening words of paragraph 3(a) in which the parties agree by necessary implication that the Railway has the right to “[determine] which positions should be bulletined as requiring a valid Industrial First Aid Certificate”. The provision governing the issuance of bulletins reads as follows:

9.1 Except for temporary vacancies of less than thirty (30) calendar days, temporary new positions of less than thirty (30) calendar days, and Extra Gang Labourers’ positions and vacancies occurring due to employees being absent on vacation with pay, bulletins advertising vacancies and new positions shall be posted in places accessible to all employees affected on the second Friday of each calendar month.

The submission of the Railway was to the effect that paragraph 3(a) of the first aid memorandum can only be read as an express recognition of its right to fix the holding of a first aid certificate as a necessary qualification for designated positions and to bulletin positions as being subject to the holding of such a certificate.

The position of the Union is that the language in dispute is ambiguous. The Union relied in particular on the last sentence of paragraph 2 of the memorandum where it is provided that; “Seniority will prevail in accordance with the collective agreement in the filling of bulletined positions”. That language, said the Union, is not compatible with the interpretation and application advanced by the Railway. The Railway’s interpretation, said the Union, would have the effect of preventing seniority from prevailing in the sense of preventing employees who hold classification seniority from claiming positions that they would otherwise be entitled to claim. The Union pointed to a number of prior decisions between the parties in which it has been emphasized that seniority is vital to employees governed by this collective agreement because of the mobility of a substantial part of the work force. In particular, said the Union, those decisions recognize that the nature of the work of the Engineering service involves a large percentage of temporary positions and requires a high degree of portability. A strict recognition of seniority rights, said the Union, is the medium whereby senior employees are able maintain a high level of job security coupled with the flexibility to claim more attractive positions as they become available.

The Railway’s application of the memorandum constitutes a serious erosion of that fundamental right, said the Union, because it takes a number of positions out of the job market for more senior employees who do not hold the necessary first aid certificate and who lack the aptitude or incentive to obtain one. The Union said that the application of the provision by the Railway has provided an access for junior employees, such as Mr. McCurdy, to claim and hold permanent positions they would not otherwise be entitled to claim by the expedient of acquiring a first aid certificate and thus bypassing employees senior to them in affected classifications. That result, said the Union, is not in accord with the spirit of the collective agreement and its provisions with respect to seniority rights. Nor is it in the spirit of the first aid memorandum, said the Union, where it is contemplated in the passage relied on that seniority will continue to govern the filling of positions, whether or not they are designated as first aid positions. The position in dispute is a case in point, said the Union. Mr. McCurdy, who is a relatively junior employee in terms of his qualifications as a foreman, was able to bypass all foreman senior to him except those who had also acquired a first aid certificate.

The position of the Railway in response to that submission was that the clear language of the memorandum vested in it the right to designate positions as requiring a first aid certificate and to require that employees bidding into those positions have that qualification. The Railway conceded that it could be expected to exercise its discretion in a reasonable manner and with due sensitivity and regard for seniority rights, but that the intent of the language was clear in its recognition of an overriding requirement to have qualified first aid attendants present in all crews falling within its terms. That requirement, which the Railway saw as particularly compelling, necessitated the discretionary right to designate the positions required to meet the commitment and the right to require applicants for those designated positions to acquire and maintain the necessary first aid qualification. In the submission of the Railway, any other interpretation would gravely prejudice the program in the sense that it would create a circumstance in which the employee holding the certificate on crew could be bumped from her/his position, leaving the crew without a first aid attendant.

The issue with respect to payment of the first aid premium arose in the context of an employee who occupied a position designated as a first aid position, but who lost his qualification when his certificate expired and he failed his first try at passing his renewal test. I will set out the facts relevant to that aspect of the dispute later. At this stage I note that the issue relates to the question of the extent to which the language permits the Railway to pay the premium to a junior employee where there are two or more employees on a crew who hold certificates. The issue also encompasses the extent to which seniority will apply to employees with certificates who join crews where there are one or more other employees who also hold certificates.

In advancing its interpretation, the Union relied on extrinsic evidence of the bargaining history of the memorandum and the practice of the parties in its application. Dealing first with the bargaining history, the Union filed documents sketching the negotiating history of the memorandum commencing with a proposal made by the Railway on April 2, 1990. In particular, the following provision was proposed by the Railway:

18.15 When any position is bulletined requiring an Industrial First Aid Certificate, the successful applicant will receive the applicable allowance in accordance with company policy.

On June 7, 1990 the Union countered with a proposal which would have resulted in the establishment of a new and separate classification of full-time first aid attendant with a requirement that “all Engineering service crews shall immediately be increased by one employee”. The proposal with respect to seniority in that submission was that successful applicants “[for first aid positions] shall be awarded positions based on entered service seniority until seniority dates are established on a separate classification list”. The uncontradicted evidence is that the Railway rejected that proposal summarily. I digress to note that the rejection of the proposal to create a separate first aid classification must be seen as being inconsistent with any application of the first aid memorandum by the Railway which treats first aid positions as if they were in a separate classification for seniority purposes.

Returning to the chronology, on June 8, 1990 the Railway made a proposal in a form similar to the language that appears in the memorandum of agreement. The memorandum evolved from that proposal. The Union countered the Railway’s proposal on June 8. In its counter-proposal the Union adopted essentially the same format as the Railway, being the format that appears in the memorandum. However, the Union proposal spelled out a restriction prohibiting any compromise of seniority rights. That aspect of the Union proposal reads as follows:

The Railway shall immediately bulletin for application from CUTE 6 employees for training and qualification as first aid attendants. The Railway undertakes to train a minimum of ten (10) employees in addition to those provided in Item #2 in each of the next four (4) years or until saturation in the bargaining unit. Every first aid attendant position will be bulletined subject to mutual agreement with the Union. Seniority will not be circumvented by the emplacement of first aid attendants.

(emphasis added)

The Railway rejected that proposal and countered with a letter of understanding in substantially the same form as its earlier proposal. That proposal was not acceptable to the Union. One of its continuing concerns was that the proposal did not acknowledge seniority. That led to the Railway to advance a proposal on June 10, 1990 in the form in which it appears in the memorandum of agreement. In particular, the Railway proposed an addition to its previous draft in paragraph 2. That addition consists of the language relied on by the Union in this dispute. As stated previously it reads: “Seniority will prevail in accordance with the collective agreement in the filling of bulletined positions”.

The Union evidence was that it took that addition to mean that designating positions as requiring a first aid certificate would not interfere with the ordinary exercise of seniority rights. Evidence was given to the effect that when the memorandum was being considered by the membership prior to ratification, the question of whether designating first aid positions would affect seniority rights was raised and the Union negotiating committee members answered by saying that it was the Union’s understanding that seniority rights would not be affected.

The Union also called evidence from Brian Foley, the Railway’s negotiator. However, his evidence supported the interpretation advanced by the Railway. In particular, he said that the Railway had a different understanding as to the meaning of the language. He said that in drafting the initial proposal the Railway wanted to ensure that when a position was designated as requiring a first aid certificate, only employees having that qualification would be entitled to bump into the position. He said that the term he used during negotiations to communicate that understanding to the Union was, “super seniority”. The president of the Union, Robert Dhensaw also gave evidence. He said that he was not the Union spokesperson when the memorandum was negotiated, but that he was present during the bargaining sessions and he did not take from those sessions the meaning intended by the Railway. His understanding was the one communicated to the Union membership. I will return to the negotiating history later.

The parties were equally at odds with respect to how the language had been applied in practice. The position of the Union was that the Railway had been inconsistent in terms of the practice. It filed in evidence a large body of postings from 12 monthly bulletins for the period April, 1991 through March, 1992 in which it was disclosed that the Railway had repeatedly posted positions in various classifications designated as first aid positions which remained unfilled for several months at a time. In its view, the fact that there were numerous crews with no employee with a first aid qualification was inconsistent with a refusal to permit senior employees to bump into positions they were otherwise entitled to claim simply on the basis that it would leave a particular crew without first aid coverage. The Union position was that seniority should prevail and the Railway should simply designate another position on the crew as being a first aid position. In the Union view, there was a pattern of inconsistency in practice arising from the fact that the Railway took no steps to ensure that all posted first aid positions were filled.

The Union relied in that regard on the fact that the Railway had abolished and re-established first aid positions to accommodate senior employees in other circumstances. The example given by the Union related to the section gang in the Port Section. That gang consists of a foreman and one sectionman. If the commitment to have one position designated as requiring a first aid certificate in each crew was to be met in that section, it would be necessary for either the sectionman or the foreman position to be bulletined as a first aid position. The foreman at the Port Section, David Dhensaw, has considerable seniority and has been able to hold the position for a long period of time. It was not made express in the evidence, but it would appear that Mr. Dhensaw, who had held a first aid certificate in the past, did not possess one when the memorandum came into force. If his position had been designated as requiring a certificate, he would not have been able to hold it.

It is not clear what occurred between June 13, 1990, when the memorandum came into force, and April 10, 1991. What is clear is that on April 10, 1991 the Railway posted a position for a “other sectionman/1st aid” in the Port Section. No qualified bids were received in response to that posting. The Railway continued to post that position until it was claimed on July 12, 1991 by Allan Hanson. He occupied the position until September 13, 1991 when a correction was issued by the Railway indicating that the position had been cancelled. That correction was contained in Bulletin 513. Coincidentally, in the same bulletin, the Railway posted a vacancy in the Port Section for a “foreman/1st aid position” and the incumbent section foreman, Mr. Dhensaw, was the successful bidder. He had qualified for a first aid certificate on June 20, 1992 but was required to pass a re-examination.

A number of documents were filed in evidence that showed an extensive and somewhat confusing history relating to Mr. Dhensaw and his first aid qualifications. At one time he held an “A” ticket that lapsed. He then failed an examination for a “C” ticket on May 2, 1990. Another document dated January 24, 1992 shows that he qualified for a C Ticket on June 20, 1992. That would appear to be a misprint. It should be June 20, 1991. Mr. Dhensaw is recorded in a letter to the Union written by Mr. Young on March 23, 1992 in contemplation of this arbitration as having qualified for a certificate on June 19, 1991. In any event, Mr. Dhensaw failed his re-examination. The apparent response of the Railway was to post a position in the March, 1992 bulletin for a section foreman in the Port Section and a second position for another sectionman/1st aid. Coincidentally, it was noted that the foreman/1st aid position owned by Mr. Dhensaw was to be abolished and the other sectionman position owned by an employee by the name of M. Albino would be abolished.

The explanation given in the course of the hearing was that the foreman/first aid position occupied by Mr. Dhensaw was abolished and reposted as a foreman’s position so that Mr. Dhensaw could continue to occupy the position despite losing his first aid certificate. Coincidentally, the sectionman position was re-posted with a first aid requirement in order to meet the obligations of the Railway to have one position with that qualification designated for each crew. As stated, the Union saw the initiatives taken in that regard as representative of the manner in which the Railway would continue to recognize seniority in the posting and filling of first aid positions. That is, it understood the Railway to have agreed that the designation of first aid positions would not have the effect of compromising seniority and that the parties would administer the program so as to achieve over time the goal of one qualified first aid employee on every crew. That goal, said the Union, was never intended to be reached at the expense of senior employees. It was in that context that the Union asserted that Mr. Rowe should have been allowed to bump into the foreman’s position and another position should have been designated as the first aid position for that crew.

In addition to that issue, the actions of the Railway in the Port Section gave rise to the Union position with respect to the payment of the first aid premium. Its view was that the premium should be paid to the most senior employee on a crew who has the necessary first aid certificate. That issue arose when the Railway advised the Union that the designation of the sectionman position as a first aid position in the Port Section would not be changed in the future and that when Mr. Dhensaw re-qualified for his certificate, which the Union anticipated as a routine event, the Railway would not restructure the positions so that Mr. Dhensaw, as the senior employee, could claim the rate for his first aid qualification. The position of the Railway was summarized in Mr. Young’s letter of March 23, 1992, which reads in part as follows:

When Mr. Dhensaw acquired his 1st Aid ticket on June 19, 1991 his position was bulletined on #512 dated August 9, 1991 as Foreman/1st Aid, permanent in accordance to the new 1st aid language. Mr. Dhensaw bid this position and was successful. It was the Railways intention to bulletin this position on a “one time only” basis as this would be a protected position. It is my understanding that you, Mr. Barlow and Mr. Zimmer understood the approach we were taking. Should Mr. Dhensaw bid of f this position it would be bulletined as a Foreman only, and if he retired or failed to pass his re-examination, the position would be abolished and the Railway would advertise on bulletin for a Sectionman/1st Aid permanent to ensure coverage at the location. Should Mr. Dhensaw wish to become the designate after acquiring his ticket, he would have to bump the sectionman or bid the position. This is exactly what occurred, Mr. Dhensaw failed his examination, and we subsequently abolished his position, re-advertised the Foreman’s position without 1st Aid in an effort to protect Mr. Dhensaw’ s position and bulletined for a permanent sectionman/1st Aid.

(emphasis added)

The position of the Union was that the spirit of the first aid agreement contemplated that the parties would attempt to structure first aid positions so as to ensure that senior employees were not impaired in their right to bid on vacant positions and, conversely, that junior employees would not be able to use qualifications for first aid certificates as a medium for bypassing the seniority structure. The Union position arising out of the Port Section issue was that the first aid memorandum contemplated that seniority would govern first aid assignments and that the principle of seniority required that the first aid premium would be paid to the most senior qualified employee on a crew.

In short, the Union said that the refusal of the Railway to recognize the seniority of Mr. Rowe in the circumstances was a departure from the spirit of the agreement. The Union said further that the announced intention of the Railway to pay the first aid premium to a junior employee on a crew despite the fact that there was a senior employee with a first aid qualification on the same crew could not be reconciled with the Union’s understanding of what it had agreed to in the first aid memorandum. In its view the Railway interpretation would permit a junior employee to occupy a position and defend it against much more senior employees in the same classification by virtue of having obtained a first aid certificate. That interpretation was not in accord with the spirit of the agreement reached, said the Union. In particular, the Union said that there was never any intention that first aid positions would be established and frozen so that the position itself would be forever barred against senior employees who lacked a first aid certificate and, because of age, educational or linguistic limitations, or personal preferences, were not able to obtain a certificate.

The position of the Railway with respect to the practice in applying the memorandum was that it has been consistent since the inception of the program. The consistency, said the Railway, was to be found in the fact that there had been no occasion when the incumbent in a permanent position designated as requiring a first aid certificate had been bumped by a senior employee who did not have a first aid certificate. The Union offered evidence with respect to one case in which it was believed that a senior applicant without a certificate bumped into a position that had been designated as requiring a first aid certificate. However, the evidence adduced by the Railway disclosed that the position at issue had not been designated as requiring a first aid certificate. The employee who was bumped from the position had a first aid certificate but was not occupying a designated first aid position when he was bumped.

It became apparent during the course of the hearing that the inconstancy in the practice of the Railway seen by the Union consisted of discretionary changes in the designation of first aid positions initiated by the Railway in response to unique circumstances and the desire to preserve the integrity of the seniority system. That willingness on the part of the Railway to be flexible was demonstrated in the case involving Mr. Dhensaw. In that context, the Railway said that the final chapter on the designation of a first aid position in the Port Section had not yet been written. The implication was that if Mr. Dhensaw obtained the necessary qualifications, consideration would be given to once again restructuring the section so that the position of foreman was designated as the first aid position. However, said the Railway, that flexibility had not and would not compromise the first aid program because one or the other of the employees in the two-person crew would always occupy a position designated as requiring a first aid certificate.

In any event, the parties differed with respect to the extent to which implementation of the first aid program had created difficulties. The position of the Union was that the initial stages in the introduction of the program had not created problems. The view of the Railway was that problems had continued from the inception of the program. Once again, the resolution of that apparent dispute is to be found in a consideration of the perspective of the parties. Both parties anticipated that there would be difficulty in introducing the program to the existing seniority structure. The difference in perspective is that the Union, in light of this dispute, was satisfied with the progress of the phasing in of the program. Conversely, the Railway continued to have discussions with the Union from the inception of the program relating to its potential difficulties and the need to resolve them amicably between the parties.

In short, the potential for problems was recognized from the outset and was discussed between the parties successfully until the relatively recent spate of application issues that gave rise to the disputed interpretation. The fact that the parties anticipated difficulties with the introduction of the program is acknowledged in the memorandum itself. In particular, it was agreed that a joint committee would be established to select the persons to be trained. Paragraph 5 of the memorandum is repeated for convenience as follows:

That committee met for the first time on June 18, 1990, five days after the memorandum was signed. Minutes of that meeting prepared by the Railway were circulated. It was apparent in those minutes that what was contemplated was that first aid positions would be posted by bulletin. For example, one aspect of the minutes reads, “Union wants isolated B&B Gangs posted on next bulletin”. There was some discussion about one extract from the minutes which reads, “[The Union] to provide waiver to BC Rail regarding point 2 of memorandum”. Point 2 of the memorandum committed the Railway to “bulletin and fill an existing position on each section … requiring that the individual have a valid Industrial First Aid Certificate”.

The recollection of the Railway is that the reference to waiver of the requirements of paragraph 2 was in recognition of the fact that it was impossible to meet the one-month deadline. The recollection of the Union was that the reference indicated an acknowledgement by the Railway that seniority would not be compromised in the filling of positions and that formal posting and filling of positions designated for a first aid certificate would be waived and positions would be filled on the basis of applicants holding departmental seniority, “putting up their hand” and claiming entitlement to be paid the premium for first aid certification.

The Union understanding was that the Railway actually filled positions on that basis. However, in a consideration of the evidence and the facts developed through the documents filed, it became apparent that the practice perceived by the Union as recognizing a right in senior employees to claim the premium was one of perception. There was no recorded case where that right was acknowledged by the Railway. Moreover, the posting of positions by bulletin was consistent with the language of the memorandum and the practice asserted by the Railway wherein positions were posted as requiring a first aid certificate.

The real issue raised in this dispute is whether the Railway is correct in its assertion that the memorandum records an agreement between the parties that it has an unfettered and discretionary right to designate one position on each crew as requiring a first aid certificate and to remove or exclude employees from those designated positions if they do not possess or if they lose the necessary certification. The interpretation of the Railway is that its only obligation in the administration of that program is to consult with the Union but that the designation of positions is within its absolute discretion.

That interpretation has had far-reaching consequences. In the case of Mr. Dhensaw, for example, the Railway exercised its discretion so as to protect his foreman’s position when he lost his certification. However, on the interpretation asserted, the Railway could have abolished his existing position, posted it as a first aid position, and denied him the position on the basis that he lacked the qualifications necessary to claim it. Similarly, when he lost his first aid qualification, the Railway’s interpretation would have entitled it to remove him on the basis that he was no longer qualified to occupy the position. In short, the interpretation of the Railway would permit it to abolish a designated first aid position, re-post it without the first aid requirement and designate other positions in the same crew as a first aid position, thus affecting the seniority rights of any incumbent and inhibiting the rights of any senior employees in the classification in which the designated positions falls. There was no suggestion that the Railway wanted to manipulate first aid positions in that fashion, but its interpretation would give it those rights.

Rights with those far-reaching consequences in terms of the seniority rights of individual employees would require express language. The significance of seniority rights in this collective bargaining relationship and in industrial relations generally was recorded most recently between these parties in Re British Columbia Railway Co. and Canadian Union of Transportation Employees, Local 6 (1989), 2 L.A.C. (4th) 331 @ pp. 342-45. That decision addresses the issues presented here. In particular, it deals with the arbitral principles governing the application of extrinsic evidence of bargaining history and past practice and it addresses the significance of those principles in the context of seniority rights generally and the significance of seniority rights in this unique bargaining relationship.

In bringing those principles to bear in a consideration of the language in the memorandum, I have some difficulty in concluding that the Railway achieved its objective in bargaining. There is no doubt that its goal was to have a process in which positions designated as requiring a first aid certificate would create what the Railway described as a “super seniority” in the sense that only employees with first aid certificates would be in a position to bid on or bump into the designated positions. But I agree with the submission of the Union that the introduction in paragraph 2 of the words; “Seniority will prevail in accordance with the collective agreement and filling of bulletined positions”, creates an uncertainty as to the mutual intention of the parties.

There is no doubt as to the intention of the Railway, nor is there any doubt as to the intention of the Union. However, the unilateral intention of the parties does not assist in resolving a dispute as to their mutual intent. That principle of interpretation was made manifest in the decision of the Board in University of British Columbia and C.U.P.E., Loc. 116 [1977] 1 C.L.R.B.R. 13 (Weiler). On p.20 the Board wrote:

First – and most important – the arbitrator is looking for the mutual agreement of both parties, not the unilateral intentions of the one side. Without some reciprocal assent from the other side, the fact that one party had an intention may indicate no more than what it wished to achieve and it is question-begging to conclude from this evidence alone that its wish has been fulfilled.

Hence, the real question here is whether there was, to paraphrase the Board, any evidence of reciprocal assent from either of the parties to the unilateral intention expressed by the other party. In short, can it be said that the language of the memorandum compels the interpretation urged by the Railway with respect to the wide ranging discretion it sees in the language or, conversely, is there evidence to support a finding that the meaning asserted by the Railway was acceded to by the Union.

The reference to super seniority in bargaining was not sufficiently descriptive of the broad discretion asserted by the Railway to meet the test required for evidence of bargaining history to be seen as binding. No evidence was led to show that the term, “super seniority”, is a term of art or that its use in the context of bargaining was self-defining. The meaning the term had for the Railway was that once a position on a crew had been designated as requiring an incumbent with a first aid certificate, the position could only be filled by qualified employees who held a first aid certificate. In short, it was the position, not the incumbent, that was seen as being subject to super seniority. Further, the concept was subject to the absolute discretion of the Railway in the sense that it could abolish the position and, by bulletin, designate another position on the crew as attracting super seniority.

In that context, I repeat that the term, “super seniority” was not self-defining. It was clear in that context that the Union did not understand that it was agreeing to surrender the seniority rights of all qualified employees with respect to positions designated as first aid positions by the Railway. The Railway objective was to obtain designated positions on every crew which would remain stable regardless of any change in incumbents. But the evidence of the bargaining history did not support a finding that the Railway had achieved a mutuality of intention with respect to that objective.

The same can be said with respect to the interpretation urged by the Union. There is nothing in the evidence which would support a finding of a mutual intention in the parties to permit employees senior in a classification but lacking a first aid certificate to bump into a position designated as a first aid position regardless of their lack of a first aid qualification and regardless of the impact that bumping would have on the first aid program. That interpretation is inconsistent with the express language of the memorandum.

Where does that leave the issue? In terms of the specific issues raised in this grievance, the least consequence of the language agreed to by the parties was an agreement by the Union that one first aid position would be established by bulletin on each crew which would be filled by posting and with respect to which a necessary qualification would be possession of the required certificate. The clear implication of that agreement is that employees wishing to bump into a bulletined first aid position which had been filled by posting would require both classification seniority and a first aid certificate. Moreover, that status would maintain as long as the incumbent in the position was the only employee in the crew with a first aid certificate.

However, neither the language nor the negotiating history supports the “super-seniority” interpretation advanced by the Railway, and, lacking evidence of a clear consensus on that issue, it is appropriate to apply the reasoning adopted by the former Labour Relations Board in Andres Wines (B.C.) Ltd. and Canadian Union of United Brewery, Flour. Cereal, Soft Drink and Distillery Workers, Local 300 (1978) 1 C.L.R.B.R. 251 (Weiler) . There the Board addressed the approach to be taken by an arbitrator in the absence of clear evidence of the mutual intent of the parties. On p. 253 the Board wrote:

In the absence of any clear indication of the mutual intent of the parties – gathered from either their language or their behaviour – the arbitrator must, in effect, reconstruct some kind of hypothetical intent. What is it reasonable to assume that typical labour negotiators, having analyzed the nature and purpose of the contract benefit in question, would agree to as a sensible judgement about who should enjoy the benefit in this unusual situation?

Applying that test to this language of the memorandum and the facts surrounding its introduction, I note first that the structure of the memorandum and its application confirms an acceptance, if not an agreement, that there would be a period of flux during which the parties would integrate first aid positions into the existing seniority structure. Secondly, it is clear that while the parties agreed that the Railway would have the right to bulletin one position on each crew as a first aid position, it is equally clear that they agreed that, “Seniority would prevail in accordance with the collective agreement in the filling of bulletined positions”. If that provision was intended to have no meaning other than to confirm the seniority provisions of the collective agreement, it would be redundant.

In looking to give those two aspects of the memorandum compatibility in the application of the language, I conclude that the parties intended that seniority was to govern in every circumstance where it was not inconsistent with the right and requirement of the Railway to maintain one position on each crew as a first aid position. The right of the Railway is to “bulletin and fill an existing position on each [crew] … requiring that the individual have a valid Industrial First Aid Certificate”. The right of the Union is to have vacant positions filled in accordance with Articles 8 and 9 of the collective agreement. In particular, vacancies are to be filled under Articles 9.7 and 9.10 on the basis of classification, departmental or service seniority.

In this dispute, the application of that reasoning compels the dismissal of the grievance of Mr. Rowe. The incumbent foreman on that particular crew was the only employee on the crew who had the necessary first aid certification. Hence, applying the terms of the memorandum, the grievor was not in a position to bump the junior foreman out of the position. However, in dealing generally with the interpretation of the memorandum and its application to particular facts, I repeat that seniority will govern in any application that does not defeat the basic right of the Railway to have one employee on each crew who holds a first aid certificate. So, for example, if there had been more than one employee holding a certificate on that crew, the grievor would have been in a position to bump the junior foreman despite the fact that he did not possess a first aid certificate because his exercise of his seniority rights in those circumstances would not affect the first aid program in the sense that there would be at least one other member of the crew who possessed a first aid certificate as contemplated and required in the memorandum.

In that context I note that a reasonable interpretation of the memorandum contemplates that where there are a least two employees on a crew who have first aid qualifications, the ordinary provisions with respect to seniority govern and senior employees would be entitled to bump into any position provided at least one employee with first aid qualifications remained on the crew. That interpretation arises because the right of the Railway is to have one position on each crew filled by an employee with a valid certificate and the right of the Union is to have seniority prevail in that process. Hence, where there is only one such employee on a crew, employees senior to him in his classification cannot bump him unless the senior employee has the required certificate. But where there are two or more employees on a crew who have a valid certificate, seniority prevails and any one of them can be bumped by an employee with greater classification seniority, provided at least one employee with a valid certificate is left on the crew.

In short, what must be read into the agreement made between the parties is that the Railway is entitled to require that each crew have an employee with a first aid certificate, but not to designate a specific position on a crew as being one that requires a first aid certificate in defiance of the seniority and bumping process. The seniority process acts itself out on a continuing basis and there is no reason on the language of the memorandum to remove first aid certification from that process provided the requirement set out in the memorandum is met. Hence, in a crew where the first aid certificate requirement is met, seniority will govern the filling of vacancies as it does with respect to positions generally.

In terms of payment of the first aid premium, in circumstances were there is only one employee with a first aid certificate, the premium is payable to that employee. However, where there is more than one employee holding a first aid certificate, the premium should be paid in accordance with the seniority provisions. Hence, where the two employees with certification are in the same classification, classification seniority will prevail. Where there are in separate classifications, departmental seniority will prevail. Finally, in the unlikely event that payment of the premium is not resolved on the basis of classification or departmental seniority, service seniority will govern.

That interpretation arises from the language of the memorandum and from its bargaining history. As stated previously, the Railway specifically rejected the proposal by the union during bargaining to establish a separate first aid classification. In the result, first aid certification carries no seniority implication on the basis of the date of certification or re-certification. Hence, first aid certification can be compared with such qualifications as possession of a drivers licence. It does not affect seniority. In the result, seniority prevails in the filling of first aid positions and the paying of premiums regardless of the date of certification of the employees concerned.

When the portion of the memorandum that sets out the Railway’s right to establish first aid positions is read in context, it defines a right to establish one such position on each crew. Without that right, the Railway would not be able to move towards the goal of having a qualified first aid person on every crew. But the right to establish a first aid position does not carry the implication urged by the Railway that a position so established remains impervious to the bumping process. Hence, as stated, the grievor would have been entitled to bump into the position if the first aid requirement for the crew could have been maintained despite the bumping of the junior foreman. If another employee with a first aid certificate were to join the crew, or if an existing crew member were to acquire one, the ordinary principles of seniority would apply until the crew was again reduced to one first aid employee. At that stage, that employee would only be vulnerable to bumping by a qualified employee with first aid qualifications unless and until another employee with first aid qualifications joined the crew in some other position.

Further, that reasoning applies to payment of the first aid premium. In particular, it would apply to the circumstances that arose in the case of Mr. Dhensaw. That is, if and when he qualified for a first aid certificate, he would be entitled to claim the premium on the basis of his seniority. Since there were two classifications in the crew, it would be departmental seniority that governed and Mr. Dhensaw, assuming he had departmental seniority, would be entitled to reclaim the premium upon qualifying for a first aid certificate.

On the issue of an employee seeking to bump a junior employee in a classification in which he is qualified from a position that has been bulletined as requiring a first aid certificate, seniority would prevail if more than one employee on the crew held a valid certificate. The quid pro quo is that it would then be open to the Railway, where an employee is bumped from a designated position because of the presence of a second first aid employee on the crew, to designate that second position as a first aid position without the necessity of posting it until the next available bulletin and, in the interim, the incumbent in that position could only be bumped from it by a qualified employee who also held a first aid certificate.

In short, the language of the memorandum permits the Railway to designate one position on each crew as a first aid position with the understanding that seniority will govern in all applications which do not conflict with the goal of achieving or maintaining one qualified first aid person for that crew. In the case of Mr. Rowe, his exercise of seniority did conflict with that goal and his grievance must be dismissed. However, on the broader issue of interpretation, seniority will be seen to govern in all circumstances consistent with achieving or maintaining one qualified first aid employee on each crew. In the event difficulties arise with respect to the application of this decision, I will retain jurisdiction to assist the parties in resolving those difficulties.

DATED at the City of Vancouver, in the Province of British Columbia, this 10th day of November, 1992.

(signed) H. ALLAN HOPE, Q.C.

ARBITRATOR