The dispute submitted to arbitration raises a matter of interpretation of certain provisions of a Memorandum of Agreement establishing a Permanent Unassigned Rail Traffic Controllers Board and more particularly, whether under those provisions employees assigned to that Board may be relieved of their positions within the context of a situation of lay off.

The parties are only in partial agreement upon the composition of a Joint Statement of Issue. The Union, for its part, has formulated a Joint Statement of Issue in the following terms:

The Company is prepared to accept the Union's formulation of the Joint Statement of Issue subject to reservations expressed in its letter to the Arbitrator of November 3, l994, which read as follows:

Montreal, November 3, l994

BY TELECOPY

Me Harvey Frumkin

Place du Canada

Suite 2270

Montreal, Quebec

H3B 2N2

Dear Sir:

contestation of the displacement of

Permanent Unassigned Rail Traffic

Controllers Board

Yours very truly,

(s) John A. Coleman

Despite the reservations expressed by the Company upon the Statement of Issue as it was proposed by the Union, it would seem clear to the Arbitrator that the parties are not at all at variance upon the fundamental question which the Arbitrator has been called upon the decide. That question is simply whether under the provisions of the Memorandum of Agreement cited, a Rail Traffic Controller, once qualified, may be subjected to lay off, either by way of displacement or otherwise. This issue of interpretation of the Memorandum of Agreement arises out of the following background circumstances.

On December l6, l992, the parties adopted a Memorandum of Agreement establishing an "Unassigned Rail Traffic Controllers Board" (the "Board") scheduled to come into effect on January l, l993. The provisions of the Memorandum of Agreement establishing the Board are contained in Appendix 3 of the Memorandum of Agreement at articles l, 2 and 3, which read as follows:

Under the Collective Agreement governing the parties prior to January l, l993, the bargaining unit consisted primarily of two categories of employees, namely Rail Traffic Controllers and Operators. Rail Traffic Controllers fell within two sub-groups, that is, Rail Traffic Controllers holding permanent assigned positions with regular hours of work and rest days, and Relief Rail Traffic Controllers without permanent assigned positions. Employees within this latter sub-group of Relief Rail Traffic Controller were not holders of permanent positions but were assigned to perform Rail Traffic Control work as and when required. Operators, as well, were divided into two sub-groups, that of Operator holding a permanent Operator's position and Spare Operators who did not hold permanent Operator's positions, but were assigned to work as Operators if and when required. It is important to note that Operators, where qualified as Rail Traffic Controllers, could be called upon to serve as Relief Rail Traffic Controllers, and this whether they fell within the sub-groups of Operator or Spare Operator.

With the establishment of the new Board employees holding permanent assigned Rail Traffic Controller positions to that time were retained in those positions. All other employees qualified as Rail Traffic Controllers, that is, the Relief Rail Traffic Controllers, the Operators and Spare Operators qualified as Rail Traffic Controllers, as well as employees in the process of being qualified as Rail Traffic Controllers, were given permanent but unassigned positions on the new Board. To such end the permanent Operator was required to vacate his Operator's position to assume a permanent but unassigned position on the new Board. The employees on the new Board would serve as relief for permanent assigned Rail Traffic Controllers then in place.

On April l5, l993, some three and one-half months after the establishment of the new Board, the Company advised the Union of its intention to abolish five assigned Rail Traffic Controller positions located in the Toronto Rail Traffic Control Centre. The incumbents would, seniority permitting, displace into positions on the Board. In turn, incumbents in five unassigned positions on the Board would be displaced and subjected to lay off.

The position adopted by the Union was that under the provisions of the Memorandum of Agreement above-cited it was not open to the Company to subject to lay off employees on the unassigned Board, whether by way of displacement or otherwise. For the Union the Company had committed itself to create permanent positions on the Board for all unassigned employees qualified as Rail Traffic Controllers as at January l, l993, and thereafter to assign any other employee who became so qualified as a Rail Traffic Controller to the Board.

The Union's contention is that the provisions of the Memorandum of Agreement establishing the new Board operate to extend to all employees qualified as Rail Traffic Controllers a guarantee of employment beyond that conferred under the employment security provisions of the Collective Agreement. From its perspective a Rail Traffic Controller will either be the holder of an assigned identifiable position or, where not so assigned, will be the holder of a permanent relief position on the Board. For it the effect of the provisions preclude the possibility of lay off. It followed, therefore, that the Company would have been obliged to direct to the Board the five Rail Traffic Controllers whose positions it intended to abolish at the Toronto Rail Traffic Control Centre, purely and simply.

The Union seeks to bolster its position by pointing out that Appendix 3, which contains the provisions invoked in support of its claim, takes precedence over provisions of the Collective Agreement which run contrary to its terms by application of Article l7 of the Appendix, which reads thusly:

The Company, on the other hand, insists that the provisions of the Memorandum of Agreement establishing the new Board nowhere restrict or limit the right of management to reduce its work force. For it the provisions of Article 42 of the Collective Agreement governing reduction of staff continue to find general application and remain unaffected. So too do the provisions of Article 3l of the Collective Agreement which set out the terms and conditions governing employment security. From the Company's perspective, a guarantee of employment, beyond that established in the Collective Agreement itself, for employees assigned to the new Board cannot be found in the Memorandum of Agreement and certainly cannot be inferred or presumed.

The position advanced by the Union presupposes that employees qualified as Rail Traffic Controllers are vested with a guarantee of employment beyond that established in the employment security provisions of the Collective Agreement as these are set forth in Article 3l which incorporates by reference the Employment Security and Income Maintenance Plan of April 2l, l989. It also carries with it the result of rendering inoperative to employees qualified as Rail Traffic Controllers the provisions of Article 42 of the Collective Agreement governing reduction of staff. But for such a result to avail and notwithstanding that the provisions of the Memorandum of Agreement override the Collective Agreement in case of conflict, it would be for the Union to identify in the Memorandum of Agreement the existence of a guarantee of employment over the life of the Collective Agreement for the employees concerned.

The issue upon which the outcome of the grievance hinges, therefore, is whether the provisions of Appendix 3 of the Memorandum of Agreement invoked by the Union extend to employees qualified as Rail Traffic Controllers a guarantee of employment during the life of the Collective Agreement. The Arbitrator will now address this issue.

Article l of Appendix 3 establishes an unassigned Rail Traffic Controllers Board in each Rail Traffic Control Centre. It stipulates that the positions on these Boards will be permanent positions and it proceeds to set out the duties and responsibilities of the incumbents of those positions. It provides that these incumbents assume a relief function in support of assigned Rail Traffic Controllers. Article 2 of the Appendix continues by providing for the initial composition of the Boards. They are to be composed of all employees qualified as Rail Traffic Controllers or in the process of being so qualified who do not hold assigned positions as Rail Traffic Controllers.

These provisions, however, nowhere speak of a guarantee of employment for employees who assume positions on the unassigned Boards. All that they provide is that all unassigned employees qualified as Rail Traffic Controllers or about to so be qualified, will receive permanent positions on a Board. To this point, therefore, the most that can be drawn from the provisions is that these employees, having been offered positions on the newly established Boards, would not be subjected to lay off from the Boards by reason of a perceived lack of available work for them, so long as the framework within which these positions were established and the dynamics of the relationship between the unassigned Boards and permanent assigned Rail Traffic Controllers positions remained unaltered.

Article 3 of the Appendix, while envisaging the creation of new positions on the unassigned Board, cannot be construed as extending the commitment beyond that point. It provides simply that new positions on the unassigned Board will only be established when a need is perceived by the manager of a Rail Traffic Control Centre. Where such is the case, the position will be filled by an employee who becomes qualified as a Rail Traffic Controller. The provision seems to presuppose an interrelationship between new positions and employees who become qualified as Rail Traffic Controllers in the sense that both new positions and the newly qualified Rail Traffic Controllers will go hand in hand. But, like the Articles of the Appendix which precede it, Article 3 nowhere speaks of a guarantee of employment nor an obligation to create a new position on the unassigned Board, whatever the circumstances. In fact, the Article seems to assume that the prospect of newly qualified Rail Traffic Controllers emerging in the absence of newly created positions on the unassigned Board will not arise.

There is a further observation to be made that new positions on the unassigned Boards will not be filled by Rail Traffic Controllers holding permanent assigned positions. In this regard Article l5 of the Appendix reads thusly:

At the same time the unassigned Boards will be the source of personnel to protect all full time permanent vacancies for Rail Traffic Controllers, as well as part time permanent and temporary vacancies under prescribed circumstances. On this point Articles l0 and ll of the Appendix provide thusly:

A reading of the provisions of the Appendix to which the Arbitrator has referred above would seem to be indicative of an intention of the parties to establish a framework for supporting and complementing assigned Rail Traffic Control functions. To such end employees qualified as Rail Traffic Controllers holding permanent unassigned positions on a Board would serve in a relief capacity. That Board would also provide the source from which the Company would draw Rail Traffic Controllers for assigned positions when the need arose. The unassigned Board would be augmented as required by newly qualified Rail Traffic Controllers.

The provisions of the Appendix do not envisage the prospect of lay off or a reduction of personnel in express terms. All that they provide for is a framework and a relationship between two operational groups of employees, namely the assigned and unassigned Rail Traffic Controllers. But it does not follow that the establishment of such a framework and relationship precludes the possibility for a reduction of personnel. The most that might be said is that within the framework established the relationship between the unassigned Board and permanent assigned positions of Rail Traffic Controller were to be conserved and maintained, but certainly no more than that. As far as the Arbitrator is concerned to go beyond this and state that other provisions of the Collective Agreement, particularly provisions as important as those dealing with security of employment and reduction of staff would not operate within the framework created, amounting, in effect, to a guarantee of employment for the life of the Collective Agreement, would require the clearest of language, language which the various provisions of the Appendix under review do not contain.

There is ample authority for the proposition that an intention to introduce into a collective agreement a guarantee of employment throughout the life of that agreement will require the clearest of language and that such a guarantee, given its implications for an employer, should not be inferred or presumed. In the decision of International Simultaneous Translation Service Ltd. and National Association of Broadcast Employees and Technicians, 35 L.A.C. (4th), the board of arbitration underscored the principle in the following passage:

As far as the Arbitrator is concerned, the express language that would be necessary to support an obligation of the Company to provide a guarantee of employment during the life of the Collective Agreement to Rail Traffic Controllers holding permanent positions on the unassigned Board simply does not appear in the Appendix. The Union's position amounts to a request that the Arbitrator infer such a guarantee from language contained in the Appendix that goes no farther than creating an unassigned Board of qualified Rail Traffic Controllers and establishing its relationship to the permanent assigned positions of Rail Traffic Controllers. But as the Arbitrator has explained and as is clear from the extract above-reproduced, an entitlement as important as a guarantee of employment in a collective agreement must be supported by the clearest of language and not inferred.

The Union has argued additionally that extrinsic evidence of the various exchanges between the parties which occurred during the course of the negotiations upon the Memorandum of Agreement support the interpretation of Appendix 3 and the manner of its application which it advances. In this regard it submitted evidence that members on the Company's negotiating team, through their representations, left the Union with the distinct understanding that unassigned Rail Traffic Controllers holding permanent positions on the newly established Board would not be subjected to lay off. It added that, upon the basis of these representations, the Union abandoned various other of its contract demands and initiatives which became somewhat redundant by reason of the employment security concession which it believed it had secured. To underscore this evidence the Union led proof to explain how negotiations upon Appendix 3 of the Memorandum of Agreement evolved, supporting its explanations with successive drafts of the Appendix.

For the Union, if the provisions of Appendix 3 left any doubt as to their meaning, the extrinsic evidence served to make that meaning abundantly clear, namely, that employees assuming permanent but unassigned positions on the Board would be immune from lay off over the life of the Collective Agreement and that by implication all Rail Traffic Controllers holding an assigned position would benefit from the same right. Furthermore, as far as the Union was concerned, even if such extrinsic evidence fell short of producing such a result, reflected in it are representations upon which the Union relied, to its detriment, so that the Company, under any circumstances, would be precluded from exercising any right that it might have had to subject Rail Traffic Controllers to lay off by application of the equitable doctrine of estoppel.

The Arbitrator, however, does not believe that the extrinsic evidence assists the Union's case. That evidence consists of evidence of negotiating history. Evidence of such a nature can serve as no more than an interpretive aid to resolve ambiguity and cannot constitute an independent source of an obligation which the parties did not incorporate into their agreement. Negotiating history only becomes relevant when there exists real doubt about the meaning which the parties intended in their agreement by the language they chose for that agreement, and even then, must be approached, weighed and evaluated by an arbitrator with great caution.

A collective agreement which constitutes, in effect, the formal written form by which the parties to it have expressed their bargain, will represent for the arbitrator the ultimate source of the obligations for which they contracted. An arbitrator should not look to extrinsic evidence of negotiating history to avoid application of or alter a provision of a collective agreement which, according to one of the parties, does not reflect the true agreement reached by the parties at the time of their negotiations, with the possible exception of situations of obvious clerical error or inadvertent omission or addition. Thus, in the decision of the Supreme Court of Canada in the Metropolitain Toronto Police Association and Paul C. Weiler and Metropolitain Toronto Board of Commissioners of Police, l975 l S.C.R., page 630, the Court, in a majority decision, quashed an arbitration award upon the ground that the arbitrator committed an error of law when he relied upon extrinsic evidence of negotiating history in determining that the parties had intended to include in their collective agreement a classification of employee for which it made no provision. In this regard the notes of the Honourable Mr. Justice Beetz who sided with the majority opinion are instructive.

In the present case there is no ambiguity in the language chosen by the parties in Appendix 3. The intent and purpose of the Appendix is clear, namely to establish an unassigned board that will be composed of qualified or about to be qualified Rail Traffic Controllers not holding regular assigned positions as Rail Traffic Controllers who will serve in a relief capacity. The difference between the parties results, rather, from their failure to deal expressly in the Appendix with the matter of employment security in the form of a guarantee of employment. In effect, the Appendix is silent on the subject of employment security and that silence is significant in itself in terms of the principle above-cited, namely, that a guarantee of employment in a collective agreement will require for its recognition the clearest of language and will certainly not be inferred upon the sole basis of extrinsic evidence of negotiating history.

In any event, the extrinsic evidence, in the Arbitrator's opinion, falls far short of establishing that Company representatives intended to grant to unassigned Rail Traffic Controllers a guarantee of employment during the life of the Collective Agreement or, for that matter, ever represented that such was their intention. While the Arbitrator is satisfied that the subject of lay off of employees assigned to the new Board was discussed and while Union representatives may indeed have believed that they had secured from the Company such a benefit, the extrinsic evidence is just as consistent with a conclusion that any representations made by Company representatives on the subject of lay off would be confined to the existing framework and relationship established between assigned and unassigned Rail Traffic Controllers, but that should the dynamics of that framework and relationship change at some future time, the provisions of the Collective Agreement governing security of employment and reduction of personnel would find application. In this vein the Arbitrator regards the following passage taken from the decision of University of British Columbia and C.U.P.E., Local ll6 (l977), l Can. L.R.B.R. l3 (P.C. Weiler), as appropriate to the circumstances of the present case as it was to those in which it appears.

Nor does the Arbitrator see merit in the Union's claim based upon the equitable doctrine of estoppel. For an expression of the doctrine the Arbitrator can do no better than refer to the words of Lord Denning in Combe vs. Combe, l95l l All E.R. 767 (C.A.) at page 770:

The circumstances of this case, however, do not lend themselves to application of the doctrine. In effect, the Union is saying that the Company is estopped from proceeding with lay off by reason of representations that there would be no lay off made by a member of the Company's negotiating team at the time of negotiations upon which it (the Union) relied. The Union contends, therefore, that even if the Memorandum of Agreement does not operate to remove from the Company the right to lay off Rail Traffic Controllers, that it is estopped from doing so. There are, however, in the Arbitrator's view, two reasons why the Union's argument cannot succeed.

Firstly, if a representation to the effect that there would be no lay off had been made at the time of negotiations, it would still have been open to the Union to have required that such a representation be incorporated in the Memorandum of Agreement. It is not as if the subject of employment security and the prospect of lay off for the particular class of employees was not discussed during the course of negotiations upon the Memorandum of Agreement. Employment security was discussed and if a guarantee of employment for the particular class of employees was intended, there is no reason why the Memorandum of Agreement should not have reflected as much. It cannot now be open to the Union to claim what amounts to an extraordinary right upon the basis of an equitable doctrine where that right could well have, and should have, been incorporated in express terms in the Collective Agreement had it been the intention that such a right vest in the particular class of employees concerned. But as the Arbitrator has observed above, the Memorandum of Agreement is silent upon the subject.

A further reason why the doctrine cannot apply is that it has not been established that any representation made by Company representatives during the course of negotiations amounted to an undertaking to provide a guarantee of employment for Rail Traffic Controllers throughout the life of the Collective Agreement. As the Arbitrator has observed above, it is not at all clear as to precisely what Company representatives were referring to during the course of negotiations on the subject of employment security. Thus, an essential element of the proof that would be necessary to support application of the doctrine invoked in this case is absent.

It is not disputed that the Company retained the right to abolish regular assigned positions of Rail Traffic Controllers, which is precisely the course which the Company intended to follow in this case. Insofar as Appendix 3 did not, given the findings of the Arbitrator, negate application of the reduction of staff provisions of the Collective Agreement, provisions which include a right to displace upon the basis of seniority, it was open to the Company to permit permanent assigned Rail Traffic Controllers relieved of positions as a result of the abolition of posts to exercise their right to displace into permanent positions on the unassigned Board upon the basis of their seniority.

The necessary consequence of this would, of course, be the lay off of employees on the unassigned Board so displaced. The Arbitrator has found that the provisions of Appendix 3 invoked by the Union do not preclude such a result. It follows that the decision taken by the Company on April l5, l993, did not amount to a violation of the rights of the Union or affected employees under the Collective Agreement.

The grievance is accordingly dismissed.

MONTREAL, November 22, l994

HARVEY FRUMKIN, Arbitrator