AH 526

IN THE MATTER OF AN ARBITRATION

BETWEEN:

                                    BC RAIL

                  (hereinafter referred to as the "Railway")

AND:

              CANADIAN UNION OF TRANSPOTATION EMPLOYEES, LOCAL #1

                   (hereinafter referred to as the "Union")

(R. Fifer)

Dispute:

Claim of Locomotive Engineer R. Fifer for payment of 18 hours and 30 minutes guarantee payment as per Article 1.9.

Joint Statement of Issue:

At 19:48, September 25, 2001, the grievor was displaced from his "B" assignment by a more senior employee. At 22:06, Mr. Fifer was advised of his displacement. At 09:01 on September 26, 2001, the grievor exercised his seniority to the "C" assignment. The "C" assignment has an assigned window of between 05:00 and 10:00, and at the time of Mr. Fifer's placement, that assignment had already been called for duty at 0745.

The Union contends that displaced employees have a contractual entitlement to place on a position within an accepted time frame without forfeiting the guarantee payment. Mr. Fifer's exercise of seniority was within 24 hours and a request for payment of a guarantee on his behalf of 18 hours and 30 minutes is made. The Union further contends that the grievor did not lay off of his own accord. The Company has declined payment.

The Company contends that Mr. Fifer's late declaration to a position constitutes "laying off of his own accord", which nullifies the payment of a guarantee under Article 1.9.

FOR THE UNION:                                  FOR THE RAILWAY:

Robert Samson                                   D.A. Lypka

General Chairperson                      General Manager

C.U.T.E. Local 1                         Operations

Arbitrator:                         H. Allan Hope, Q.C.

Counsel for the Railway:                  Michael Keiran and Paul Straszak

Counsel for the Union:              Robert Samson and Wayne Benedict

Place of Hearing:                   Vancouver, B.C.

Date of Hearing:                    April 10, 2002

A W A R D

          On September 25, 2001 the Grievor, Rick Fifer, was bumped from a regular assignment operating a train between Squamish and Lillooet.  He worked on a rotating schedule in the assignment which was fixed in the sense that it was predictable.  It was one of three such rotating schedules identified respectively as A, B and C.  On September 24, 2001 the Grievor was occupying the B assignment.  He was bumped from his position at 7.48 p.m. by a senior employee. 

          The Grievor had returned to his home terminal the previous day at 7.45 p.m. and, under his existing schedule, was on days off and scheduled to return to duty on the B assignment on September 28.  His obligation upon being bumped is set out in the following provision:

33.10  Displaced Engineer

(1) A displaced engineer will place himself in accordance with schedule rules within twenty-four (24) hours when displacing within the same zone, and within forty-eight (48) hours if placing outside the zone, unless extension is granted by the Crew Supervisor.

          The Grievor was required under the terms of that provision to “place himself in accordance with schedule rules within 24 hours”.  He did so at 9.01 a.m. on September 26, 2001 by declaring for the C assignment in the same rotation.  The C schedule called for a train to operate that day with an assignment window of 5 a.m. to 10 a.m.  It was called within that window for 7.45 a.m., approximately 1 hour and 15 minutes before the Grievor declared for the assignment.  The Grievor did not work that day and did not work again under the C schedule until October 1, 2001. In the result, the Grievor failed to reach the 80-hour threshold under the guarantee provision in Article 1.9.  On that basis, the Grievor claimed a guarantee entitlement of 18 hours and 30 minutes. 

          The claim was denied by the Railway on the basis that the Grievor’s action in failing to declare for the C position in the manner he did took him outside of the guarantee provision.  The substance of that provision reads as follows:

1.9.1 Road engineers who do not lay off of their own accord will be guaranteed the equivalent of eighty (80) hours per checking period … An engineer who lays off of his own accord, or misses a call, will be penalized to the extent of having the hours paid for on the trip, or trips, he missed deducted from the eighty (80) hours guaranteed for the checking period.  The number of hours so deducted not to exceed twenty (20) for each round trip or short turnaround trip missed.  (emphasis added)

          The position of the Union was that the Grievor, having been displaced, could not be seen as having elected to “lay off of his own accord” in the sense contemplated in that provision.  Having been displaced, the Grievor acted within his collective agreement rights in declaring for the C position, said the Union.  In the interim, said the Union, he was a displaced employee who was entitled to review his seniority options before meeting his obligation under Article 33.10 within the 24-hour window.

          The position of the Railway was that the actions of the Grievor amounted to a layoff of his own accord within the meaning of Article 1.9.1, thus taking him outside the scope of the guarantee.  In addition, the Railway concluded from an examination of the facts that the Grievor, in effect, was acting in bad faith in the sense that by failing to declare on the C position until he did, he moved into a period of four days off on the C schedule.  The Railway concluded that the Grievor, in effect, was manipulating the system to gain an advantage while seeking to retain his claim for entitlement to a guarantee.  I note in that context that the question raised on the facts is whether the Grievor was acting within his rights under the provisions of the collective agreement, not whether his motivation was suspect.  Engineers are not required to exercise their rights in a manner advantageous to the Railway.  If the Grievor was entitled to a guarantee, the fact that he was getting paid, in effect, for time off, is irrelevant.

          In any event, viewed from the perspective of the Grievor, his expectation while working on the B position was that, having concluded the September 24 assignment, paraphrasing the Railway’s submission, “he was then due to commence his scheduled days off and would next be required to be available for duty four days hence”.  However, that schedule was disrupted when he was displaced at 7.48 p.m. the following day.  That brought him within Article 33.10, with the result that his scheduled days off were interrupted and he was required to “place himself in accordance with schedule rules within 24 hours”.  Had he immediately declared against the C position, he would have returned to work at 7.45 a.m. on September 26, two days before he was due to report under the C assignment.  In short, selecting the course of action he did could be seen as less than exploitive.

          I pause to note that two issues arose during the proceedings that required rulings with respect to admissibility.  The first was a sworn statement made by the Grievor in which it was alleged that he had been offered a settlement of his claim by the Railway.  The Railway objected to the admissibility of the statement on the basis that it was privileged.  I ruled that the settlement proposal was privileged.  That question has been addressed in clear terms in the arbitral jurisprudence.  The public policy implications arising with respect to exchanges made in an effort to settle a dispute require that such initiatives be privileged.  See:  Brown & Beatty, Canadian Labour Arbitration, (2002) para 3:4342, pp. 3-64 to 66.  On p. 3-64 the authors wrote:

To encourage parties to resolve their disputes without litigation, communications made in the context of settlement discussions will not be admitted into evidence without the consent of both parties.

. . . . . . . . . . . . . . . . . . . . . . .

[B]ecause the primary purpose of grievance procedure meetings has been seen as a means of facilitating the settlement of disputes, arbitrators have generally treated all discussions, whether they relate to settlements or something else, as privileged regardless of whether there is express agreement that such discussions are “without prejudice”.  Accordingly, if an objection is made, any such statements will not be admitted as evidence.

          The second issue related to a move by the Union to rely on “a significant number of grievances that stemmed from the company not bulletining positions when those positions went onto days off in order to save guarantee payments”.  The submission of the Union was that the settlement of the grievances could be seen, in effect, as a concession by the Railway that the actions of the Railway in this dispute were in breach of the collective agreement. 

          The position of the Railway was that the settlement of grievances are privileged and cannot be relied on by parties in subsequent arbitrations.  That position is not in accord with the arbitral authorities.  The settlement of grievances can be seen as binding upon the parties unless they are declared to be without prejudice.   See:  British Columbia Ferry Corp. and British Columbia Ferry & Marine Workers Union, [1980] 1 C.L.R.B.R. 409 (Munroe).  The Board wrote as follows on pp. 417-8:

First of all, where a settlement has clearly been reached over an arbitrable dispute, that is the end of the matter; neither party may back away from it at a later date.  Secondly, so long as the settlement is reached by persons with actual or apparent authority, all levels both of the employer and the trade-union are bound.  Thirdly, it is immaterial that the settlement might not have been entered into if one of the parties was possessed of more information at the time the settlement was reached.  Finally, to be binding, the settlement need not have been arrived at during a formal grievance meeting – i.e. arbitrable matters can be resolved with equal finality in a more informal setting.  To hold otherwise on any of those propositions would be destructive of labour relationships generally as well as in-consistent with the objects of the Code set forth in Section 27.

          Those principles were reviewed and applied in Vancouver General Hospital and British Columbia Nurses’ Union, (1985) 21 L.A.C. (3d) 275 and in BC Rail and CUTE 6, (U.T.V.), February 18, 1987, unreported @ pp. 23-26.  However, on the facts in this dispute, the Union failed to establish that the issue settled between the parties in those grievances was the same issue raised in this dispute.  That requirement was addressed by the Board in B.C. Ferry on p. 418 as follows:

[B]efore depriving someone of the prima facie right to an adjudication on the merits of the case, an arbitration board or this Board should be thoroughly satisfied not only that a settlement was reached but also that the terms of the settlement were such as to firmly embrace and resolve the issue at hand.  (emphasis added)

          The position of the Union involved drawing an analogy between the Grievor, who had commenced days off under the B position, and engineers who faced the re-bulletining by the Railway of positions they occupied when those positions were going into days off.  The significance of the submission can be found at paragraph 14 of the Union’s submission.  The Union failed to bring the facts in this dispute within the facts outlined in paragraph 14.  Here the change in the Grievor’s status did not occur through intervention by the Railway.  It occurred as a result of his displacement by another engineer.

          In its submission the Railway relied on a prior decision between these parties dealing with the issue of whether engineers who book rest are to be seen as having elected lay off of their own accord in terms of their entitlement to claim the guarantee.  See:  Booking Rest Arbitration.  That decision cited and relied on CP Rail and BRT, CROA No. 91, November 14, 1967 (Hanrahan).  The following passage appears in Arbitrator Hanrahan’s decision:

[T]he Company has the right to expect that if required an employee will work an assigned eight hours on any day of his regular work week.  If he does the provision applies.  If he does not, through no action of the Company but because of a consequence “of his own accord”, it would have no application.  In the circumstances described, the employee was unable to continue performance of his duties for the full eight hours.  This did not involve any contributory cause on the part of the Company.  The misfortune of the accident necessitated the employee to decide, of his own accord, that he was unable to continue for the eight hours required.  In my opinion, therefore, the guarantee with its quail-fication, does not apply to his benefit.

          That reasoning is apropos the facts found in this dispute.  The basis of pay language differs, but not in any material sense.  Here it can be said that the Railway has the right to expect that engineers will work, (or hold themselves available to work), assignments during the checking period that will trigger the 80-hour guarantee.  Engineers who take themselves out of service for reasons of their own take themselves outside the scope of the provision.

          Here the question is whether engineers who are displaced, and who elect not to exercise their seniority to claim another assignment, can be seen as having elected to take themselves out of service.  The operative phrase for engineers who take themselves out of service is, “lay off of their own accord”.  I agree with the submission of the Railway that engineers who find themselves displaced and thus obligated under Article 33.10 to exercise their available options within either 24 hours, (or 48 hours), can be seen as having elected to lay off of their own accord in terms of the guarantee provision during the period when they postpone their exercise of seniority. 

          The Union position is that they cannot be faulted for any postponement because the right to delay exercising seniority is spelled out in the agreement.  However, that does not meet the issue as it is addressed in CROA No. 91.  Rather, the facts invite an application of the reasoning in CROA No. 91.  It was open to the Grievor, having been displaced, to exercise his rights under Article 33.10 immediately, thus placing himself in a position to work the C assignment on September 28 and thus preserve the application of the guarantee provision.  The term, “layoff of their own accord”, is not a term of art in the context in which it appears in the collective agreement and it is not defined.  However, read in context, it must be taken to mean any circumstance in which engineers remove themselves from service in the exercise of discretions vested in them under the provisions of the collective agreement.  One such discretion is the right to book rest.  A second is the right afforded to engineers under Article 33.10. 

          Initially the Grievor was taken out of service by his displacement, an event over which he had no control.  However, in the context of the disputed language and the authorities, the decision whether to remain out of service was the Grievor’s to make.  To paraphrase Arbitrator Hanrahan, the removal of the Grievor from service by displacement occurred with no participation by the Railway.  The Grievor’s election not to claim the available assignment was made without intervention by the Railway.  Hence, the failure of the Grievor to work the assignment “did not involve any contributory cause on the part of the [Railway]”.  In my view, the term, “lay off of their own accord”, must be read as embracing circumstances in which engineers, without intervention by the Railway, elect not to claim or accept available work. 

          However, a further issue arose during the hearing with respect to whether the existence of what the parties described as the “Spare Work Agreement” affects whether the Grievor could be seen as having taken himself out of service.  Apparently the Grievor, under that Agreement, continued to be subject to call for work.  Thus the question is whether engineers who remain subject to call can be said to have elected to “lay off of their own accord” in the sense that the phrase is used in the collective agreement.  The question remains one of whether the Grievor was entitled to the guarantee or whether he was excluded from it by reason of his delay in claiming the C position, but, in the context of that question, can it be said that engineers who remain subject to call can be viewed as having elected to lay off of their own accord. 

          The Railway conceded that the Grievor remained subject to call under the Spare Work Agreement.  However, it was not clear on the facts whether the Spare Work Agreement applied to the particular circumstances.  If it did apply, I conclude that the Grievor could not be seen as having elected to “lay off of his own accord” by reason of having delayed displacing onto the C assignment.  On that basis, he would be entitled to the application of Article 1.9.  Alternatively, if, having been taken out of service by his displacement, he elected to remain out of service until the C assignment for the day had been called, he will be seen as having elected to lay off of his own accord and the grievance will fail.  I will retain jurisdiction to assist in applying this Award if that becomes necessary.

DATED at the City of Prince George, in the Province of British Columbia, this 27^th day of August, 2002.

  “H. Allan Hope, Q.C.”             

                     H. ALLAN HOPE, Q.C. – Arbitrator