AH 530

 

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")

 

(Article 33.12 Arbitration)

 

Dispute:

 

Claim of Locomotive Engineer W. Benedict for eight (8) hours pay in relation to Article 33.12 (4).

 

Joint Statement of Issue:

 

At the material times of this grievance, Locomotive Engineer Benedict was a Prince George spareboard employee, assigned remain until relieved (Article 5.7) to the Tumbler Ridge Pusher Service.

 

During the 24-hour period between 13:30 June 1, 1999 and 13:30 June 2, 1999 Locomotive Engineer Benedict was not required to work.

 

The union claims that Locomotive Engineer Benedict should be “paid a minimum day for each day held and not used” and that the word “day” denotes any consecutive 24-hour period.

 

The company claims that a “day” as referred to in Article 33.12 (4) is a period “from 00:01 to 23:59 for each day of the calendar”, and as a result, Article 33.12 (4) has no application in this dispute. The company has denied payment.

 

 

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

Counsel for the Union:                    Wayne Benedict

 

Place of Hearing:                         Vancouver, B.C.

Date of Hearing:                          November 26, 2001

I – Dispute

 

                        This dispute turns on the proper interpretation of the word, “day” as it appears in Article 33.12(4).  That provision addresses the rights of engineers performing assignments away from their home terminal on days when they are “held and not used”.  The provision in question reads as follows:

 

33.12(4)

 

Spare engineers filling a vacancy at an outlying point, other than a temporary vacancy obtained on bid, if released on the weekend will be returned to the spare board at his home terminal.  If not released, he will be paid a minimum day for each day held and not used.  (emphasis added)

 

          In their submissions the parties agreed that the following extract summarizes the facts relating to the grievance:

 

At the material times of this grievance, Locomotive Engineer Benedict was a Prince George spareboard employee, assigned [to] remain until relieved (Article 5.7) to the Tumbler Ridge Pusher Service.  During the 24-hour period between 13:30 June 1, 1999 and 13:30 June 2, 1999 Locomotive Engineer Benedict was not required to work.  He claimed a minimum day (eight hours) pay under the provisions of Article 33.12(4).

 

          As indicated, the particular facts were that the Grievor was not called between 1330 hours on June 1 and 1330 hours on June 2.  He claimed eight hours pay for that period on the basis that it was a “day [he was] held and not used”.  The position of the Railway was that the Grievor was paid eight hours for pusher service on June 1 with his assignment ending at 1330 hours.  He then received eight hours for pusher service on June 2 on an assignment that commenced at 1330 hours that day. 

 

          The Union claim would require that the Grievor be paid an additional eight hours for the period between 1330 hours on June 1 and 1330 hours on June 2.  In the result, he would receive 24 hours pay over the two-day period.  In evaluating that claim I repeat that the Grievor received his minimum day entitlement under Article 1.4 on June 1 and again on June 2.  Thus his claim amounts to a claim for an additional minimum day over the same period. 

 

          Read in context, Article 33.12(4) has no application to the circumstance that gave rise to the claim.  That provision addresses the rights of engineers who are on spareboard assignments away from their home terminal who are held “on the weekend” as opposed to being “released on the weekend”.  That language reveals a mutual intent in the parties to protect the right of engineers to return to their home terminals on the “weekend” or to be paid for remaining at the outlying point to accommodate the operational needs of the Railway.  The interpretation of the Union would extend that obligation to any 24-hour period free of work during the work assignment when no issue arises with respect to whether or not the engineer is to be “released on the weekend”.

 

          That interpretation effectively changes the nature of the provision from an entitlement to be returned to the engineer’s home terminal spareboard on her or his weekend or to be paid a minimum day, to a provision in which engineers are entitled to a minimum day for any 24-hour period during which they are not called to work.  That interpretation cannot be reconciled with the language or the practice of the parties in its application.  A strict interpretation of the language would limit its application to circumstances where engineers are not “released on the weekend”.  However, it is implicit in the evidence of practice given by the Railway that the provision extends beyond the strict meaning of the language and has application to any calendar day during which engineers at outlying points are not called to work. 

 

          There was no indication of a practice which would extend that application to any 24-hour period during which no work is called, when, as in this case, a minimum day has been paid for each calendar day worked.  The facts support the Railway’s assertion that the invariable practice between the parties since at least as early as 1972 has been that Article 33.12(4) is applied on the basis of a day which commences at 0001 hours and ends 24 hours later at 2359 hours.  That application is in accord with the language of the provision and its apparent intent.

 

          The Union developed its argument based upon a perceived distinction between the terms, “day”; “calendar day”; “work day”; “day of 24 hours”; and “24 hour period”.  Its submission was that the use of the terms, “calendar day”, and, “day”, carried the necessary implication that the parties intended those two terms to have a different meaning.  Since “calendar day” encompasses the 24-hour period commencing at midnight, said the Union, the term, “day” must mean a different period.  The essence of the Union position was outlined in its written submission as follows:

 

In determining whether BC Rail’s assertion that “day” and “calendar day” are identical in their meaning within the context of the collective agreement, the union urges the arbitrator to consider the following:

 

It is elementary that all the terms of the collective agreement must be read together and that any board of arbitration should be highly sceptical of an interpretation of one article which would nullify or render absurd the effect of another article (see Construction Aggregates, (1958) 9 L.A.C. 187 (Robinson), at 190).

 

And further;

 

Similar terms in a collective agreement should be given similar meanings; [but it must also be recognized that terms used more than once in a document must be taken in context]. (Palmer & Palmer, Collective Agreement Arbitration in Canada, p. 127, quoting:  Aerocide Dispensers, (1965) 15 L.A.C. 416 (Laskin) and Eastern Provincial Airways, (1978) 19 L.A.C. (2nd) 225 (Christie).  (full quote added and emphasized)

 

 

 

 

Also;

 

As a corollary to the foregoing, if different phrases or words are used in different places in the collective agreement, they should not be given the same meaning.  (Palmer & Palmer, Collective Arbitration in Canada, p. 127; quoting Steel Equipment, (1964) 15 L.A.C. 144 (Arrel).

 

II – Decision

 

          The authorities relied on by the Union in that submission deal with general principles relating to similar and dissimilar terms.  The overriding general principle is that words must be interpreted in harmony with the context in which they appear.  That is evident in the full quotation cited from Collective Agreement Arbitration in Canada.  That is, the meaning intended for words is dependant upon the context in which they are used.  The statement of principle recorded there by the authors is consistent with the arbitral authorities cited by the authors in Brown & Beatty, Canadian Labour Arbitration, para. 4:2000, pp. 4-33 to 44.  On pp. 4-34 to 35 the authors reviewed decisions addressing the meaning to be given to such terms as “day”, “calendar day”, “work day”, and similar expressions of a period of time.  Their analysis supports the proposition that the most important resource in giving meaning to commonplace and repetitive terms, such as “day”, is the context in which it is used.

 

          In the context in which “day” is used in the language in dispute, it must mean a weekend day or its equivalent.  That is, the circumstance which are being addressed in the provision are the release or retention of an engineer “on the weekend”.  In context, the “weekend” may or may not be limited to Saturday and Sunday, but the term is clearly limited to a period when engineers may or may not be released on “days” that serve as their weekend.  Accepting that the provision applies in practice to any calendar day on which engineers are required to remain available, the structure of the provision is only consistent when it is applied to calendar days.

 

          It is difficult in that context to conclude that the parties intended the term “day” to mean the 24-hour period immediately following the completion of each work day assignment.  To make sense of the provision, it is necessary to conclude that “day” is intended to encompass a 24-hour period commencing at midnight and ending 24 hours later at midnight, being a time period which is consistent with a release from duty.  In short, read in context, the term “day” invites the interpretation given to it by the Railway and which is consistent with the practice of the parties in its application. 

 

          The Railway’s assertion with respect to the practice was challenged but not disproven by the Union.  The criteria governing the use of evidence of past practice in arbitrations concluded under the Labour Relations Code of B.C. has been discussed in prior decisions between these parties.  The evidence led by the Railway met that criteria in the sense of disclosing how the provision in question has been administered over the years.  The consistency of that practice and the fact that it must occur routinely is sufficient to support a finding that the Union was aware of how the language was being administered.  In any event, as stated, the interpretation asserted by the Union is not consistent with the language on the face of the provision.  In the result, the grievance is dismissed.

 

                        DATED at the City of Prince George, in the Province of British Columbia, this 7th day of December, 2001.

 

 

                     “H. Allan Hope, Q.C.”             

                     H. ALLAN HOPE, Q.C. – Arbitrator