AH 533
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")
(Booking Rest Arbitration)
Dispute:
Claim of Locomotive Engineer B. Pynn for three hours and forty seven minutes which is the difference between what he was paid and what he claimed under the guarantee provision covered in Article 1.9
Joint Statement of Issue:
Locomotive Engineer Pynn was assigned to the James Switcher on September 5, 2000. Upon going off duty at 2205 at his home terminal of Prince George on that date Mr. Pynn booked 12 hours rest with a two hour call. He was available for duty as of 1200, September 6, 2000.
Mr. Pynn’s assignment is bulletined to start “not before 1000”. On September 6th, this assignment was called for 1000 with a Spare Board Locomotive Engineer.
Mr. Pynn had three hours and forty seven minutes deducted from the guarantee for the checking period account “laying off of his own accord.”
The Union submits that the booking of personal rest does not constitute “laying off of his own accord”, and that Article 1.9 has been misapplied.
The Company contends that the booking of personal rest does constitute an employee’s “laying off of his own accord” and that Article 1.9 has been properly applied.
The Company has declined payment of the disputed difference.
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 – The Dispute
In this dispute the parties are in disagreement with respect to the interpretation of Article 1.9 of the collective agreement and its application to the facts raised in the grievance. In particular, the question raised is whether engineers “booking rest” under Article 9.2.1 are to be seen as “laying off of their own accord” under Article 1.9.1. The dispute involves Brian Pynn, an engineer who was assigned to the James Switcher. That assignment, which operates on a five-day week schedule, commences in Prince George and delivers cars to Fort St. James which are then distributed by the Fort St. James Yard. The assignment is called for, “not before 1000 hours”. The engineer assigned to the Switcher delivers cars to Fort St. James and returns on the same day.
This dispute arose on September 6, 2000. The Grievor operated the Switcher on September 5 to Fort St. James and was relieved en route on the return trip. He deadheaded to Prince George, arriving off duty at 2205 hours, whereupon he booked rest of 12 hours with a two-hour call, making him available for service at 1200 hours on September 6. The Railway ordered the Switcher for 1000 hours on September 6 and, since the Grievor was not available until 1200 hours, a spareboard engineer was ordered for 1000 hours. Thus, the Grievor missed his assignment on September 6 and his wage guarantee was reduced by three hours and forty-seven minutes. The rationale for the deduction was to avoid the Railway having to pay two employees for the same work. That is, the spareboard engineer was paid for the September 6 assignment and, if no deduction had been made from the Grievor’s guarantee, he would have been paid for the same assignment.
The dispute relates to whether the facts support the conclusion that the Grievor was entitled to book rest without having to face a deduction from his guarantee. The Union’s position was based on its interpretation of “lays off” as that term is used in Article 1.9.1. That provision reads in part as follows:
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 eight (80) hours guaranteed for the checking period.
The Grievor, having been ordered for 1000 hours, and having been recorded off duty at 2205, being a period of 12 hours and 5 minutes, was entitled under Article 1.9.1 to book rest. Had he not booked rest, and assuming the James Switcher was ordered for 1000 hours in the morning of September 6, the Grievor would have returned to work approximately 12 hours after having completed his previous assignment. The question turns on whether booking rest under Article 9.2.1 falls within the scope of Article 1.9.1. The relevant portion of Article 9.2.1 reads as follows:
9.2.1 Engineer after having been eleven (11) hours or more on duty will have the right to book off duty for rest at any point and will not be required to resume duty until rest period has expired.
The question raised on that language is whether an engineer who books rest under Article 9.2.1 will be seen as one “who lays off of his own accord” under Article 1.9.1. The essence of the Union’s position was that the right to book rest reflects a fundamental safety concern and that engineers should not be penalized for exercising that prerogative by reducing their guarantee. In its view, the term, “lays off of his own accord”, could not be seen in the context of the collective agreement as embracing engineers who books rest in order to ensure that there are in a fit condition to operate safely on the resumption of their duties.
In terms of the length of rest booked by the Grievor, the Union sought to apply by analogy the definition of rest in Article 26.7, being the Article that has application to spareboards and auxiliary spareboards. Article 26.7 provides that; “[An] engineer will be permitted fourteen (14) hours rest after completing a tour of duty without penalty”. The Grievor booked an equivalent amount of rest, said the Union, and it is not open to the Railway on those facts to assert that the rest booked was excessive. The Union submission was that the parties, by necessary implication, have agreed that engineers are entitled to book at least 16 hours rest without penalty in terms of their guarantee. In its written submission the Union wrote:
According to these articles [Article 26.6 and 10.1], Locomotive Engineers who are working the auxiliary board are entitled to take fourteen hours of undisturbed rest and receive a two hour call after their rest expires without a deduction applying toward their guarantee. At BC Rail, the industry term for the aforementioned is “fourteen and two” (14+2]. The fourteen and two rule, although not explicitly mentioned elsewhere in the collective agreement, has consistently been applied by both parties to all jobs that are covered by guarantees (excluding yard jobs) … The union feels that there must be a reasonable limit on the amount of rest that a Locomotive Engineer can book without it affecting his/her guarantee. (Note: The union is not asserting that there is any limit on the amount of rest that a Locomotive Engineer can take, only that there is a limit on the amount of rest that can be taken without adversely affecting his/her guarantee). The union asserts that the fourteen and two rule is part of the aforementioned articles both implicitly and as long past practice would indicate. The union would be surprised if BC Rail did not agree with this position.
From that submission it can be seen that the Union sought to apply the “fourteen and two” formula to the entitlement to book road rest. Its position is that there is no prescribed limit on the amount of rest that can be booked and that the only implied limit is that after 16 hours, the guarantee will be affected. I pause to note that the parties are not in agreement with respect to whether there is a restriction on the amount of rest that an engineer can book, but that question is not at issue in this dispute. The issue is confined to whether booking rest in the particular circumstances falls within the terms of Article 1.9.1 in the sense of whether engineers who book rest, “lays off of their own accord”. It was in that context that the Union invoked what the parties refer to as the fourteen and two rule. In its submission the Union wrote:
Locomotive Engineers are human beings and not automatons. As such, all will agree, they need regular rest in order to function safely and efficiently. The collective agreement speaks on a reasonable limit to the rest that can be taken without incurring a penalty against the guarantee, that being fourteen hours of undisturbed rest plus a two hour call. What if Locomotive Engineer Pynn’s previous tour of duty had ended at 09:00 for whatever reason? BC Rail’s argument would have him taking only one hour rest in order that his guarantee is not penalized. Is one hour rest between tours of duty enough for a Locomotive Engineer to be able to function safely? How about two hours? There must be a demarcation line denoting the limit of reasonable rest. In regards to guarantee pay, the collective agreement draws the maximum line at fourteen hours (plus a two hour call). Common sense tells us that humans need rest to function and the collective agreement is clear on how much rest can be taken before the guarantee is reduced.
In short, the position of the Union was that engineers in road service are entitled to book fourteen hours rest with a two hour call without having their Article 1.9.1 guarantee affected. The response of the Railway was that the fourteen and two rule was confined to engineers on spareboard service and that it had no application to road engineers. The Railway challenged the assertion that the fourteen and two rule could be extended beyond spareboard service. The Railway also challenged the assertion that 16 hours rest is a reasonable requirement for engineers generally. In terms of this dispute, it questioned whether 14 hours rest was a reasonable requirement for an engineer performing a routine assignment upon which he had bid.
The Railway relied, in effect, on the structure of the collective agreement with respect to rest. That subject is addressed in Article 9 and does not contain any recognition of the fourteen and two rule. Rather, Article 9.1 provides that engineers cannot be required “to leave the terminal” until they have had “at least eight hours rest if requested”. To support the Union’s insertion of the fourteen and two rule, said the Railway, it would be necessary to read Article 9.1 as recognizing that engineers would not be required to leave the terminal until they had at least fourteen hours rest with a two hour call. In addressing the significance of the fourteen and two rule, the Railway wrote:
We are on common ground that the grievor was in assigned service and not working from the Auxiliary Spare Board, and so article 26.7 has no application. The parties, perhaps in recognition of the intermittent and uncertain work schedules associated with the operation of the auxiliary spare board, decided that more liberal rest rules should apply to those employees. Auxiliary Spare Board employees may expect a two hour call to service, day or night, in either road or yard service, and have no scheduled days of rest. Mr. Pynn’s circumstances by contrast were decidedly different as he knew days and weeks in advance the times and days that his assignment was bulletined to operate. At any rate, the booking of rest in his assigned service is governed by Article 9, cited above.
The position of the Railway was that, giving the words used in the collective agreement their ordinary meaning, an engineer who books rest lays off of his own accord. In support of its position, the Railway relied on CP Rail and Brotherhood of Railroad Trainmen, CROA No. 91, November 14, 1967 (Hanrahan). There the question was whether a trainman unable to complete his assignment as a result of a workplace injury was entitled to receive pay for the portion of the shift that he did not work. He was replaced by an employee who was called out to complete the shift. As in this dispute, the question was whether an employee who does not work his assignment for reasons unrelated to his employer can be seen as one “who [lays off] of his own accord”. The decision is recorded as follows:
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 qualification, does not apply to his benefit.
II – Decision
In my view, the reasoning in CROA No. 91 is apropos the facts in this dispute. Engineers who book rest make an election. The decision is discretionary and, whatever its motivation, it is one that is made personally by each engineer on her or his “own accord”. That is, giving those words their ordinary meaning, booking rest is a decision taken on an engineer’s own accord. Hence, it was for the Union to establish why the language should not be given its ordinary meaning.
The essence of the Union’s submission is that engineers should not face a deduction in their guarantee simply because they book rest in order to ensure they can operate safely. In support of its position, the Union argued that the practice of the parties reinforces its interpretation of the collective agreement. However, the facts asserted in this hearing did not include evidence of past practice as that concept is defined in the arbitral authorities. In particular, the facts did not include past circumstances in which engineers booking rest that prevented them from continuing their regular assignment received credit with respect to their guarantee even though they did not work the assignment.
The practice relied on by the Union was with respect to recognition by the Railway of the right of engineers to book rest. That right was not placed in issue in these proceedings. The issue was whether the Grievor, having successfully bid on a permanent assignment on the James Switcher, was entitled to the Article 1.9.1 guarantee of 80 hours per checking period whether, on his own volition, he actually worked the assignment. The Union conceded that the guarantee would not apply in particular circumstances, but that it would apply to engineers who booked rest. That position was set out by the Union as follows:
The union would agree that laying off of one’s own accord would include the following:
a) Booked off personal.
b) Booked off sick.
c) Booked off unfit (Article 27.1 Booking Off).
d) Absent Without Leave (A.W.O.L.).
e) Booked off on approved leaves including but not limited to:
i. Family Responsibility Leave (Employment Standards Act).
ii. Maternity Leave (Employment Standards Act).
iii. Parental Leave (Employment Standards Act).
iv. Unpaid Leave of Absence (Article 27.3 Leave of Absence General).
v. Bereavement Leave (Article 27.4 Bereavement Leave).
vi. Union Leave (Article 27.2 Leave of Absence union Representation).
The union does not agree that to lay off of one’s own accord includes the following:
a) Missing a call (although this would also incur a penalty against the guarantee, as outlined in Article 1.9.1).
b) Exercising one’s seniority in order to move from one job to another in accordance with collective agreement rules, whether through bidding, filing, or placing.
c) Taking reasonable rest pertaining to guarantees, as referred to explicitly in Article 26.7, and implicitly elsewhere in the collective agreement. i.e. “four-teen and two”, or less.
The Union expressed a concern that the Railway’s interpretation would create a potential in which engineers are required to work beyond exhaustion in order to avoid a loss of guaranteed hours. However, that concern falls in the category of what is sometimes referred to as a “hypothetical horrible”. Engineers, “after having been 11 hours or more on duty”, have the right to “book off duty for rest any point”. Hence, whether an engineer works past eleven hours is in the discretion of the engineer. In this dispute, the entitlement to book rest and the length of rest is not at issue. The question is whether engineers who exercise their right to book rest can insist on the payment of their guarantee when they miss an assignment in order to take rest. The anomaly in the Union’s position becomes apparent when it is considered that it agrees that engineers who cannot work due to illness lose their guarantee but engineers who elect not to work on a subjective assertion of fatigue retain their guarantee.
The facts in the dispute are simple. The Grievor was required, under the assignment upon which he had bid, to be available for duty “not before 1000 hours” on the morning of September 6, 2000. He was entitled to book rest without consequences in terms of the general duty of an employee to report for work. That is, his absence was a legitimate exercise of discretion and he was not accountable for it. However, to go further and assert an entitlement to be paid for a work assignment he did not perform raises a different interpretive issue.
The question of what factors should be brought to bear in the interpretation of disputed language was discussed by the Board in UBC and CUPE on p. 18. In particular, the Board considered what interpretive factors should be considered by an arbitrator where there is an absence of helpful extrinsic evidence. The Board wrote:
The arbitrator is trying to decipher the proper meaning which the parties may reasonably be said to have intended for their contract language. In that quest, the arbitrator may draw inferences from other provisions of the agreement, feel constrained to follow the consensus in arbitration precedents, or be concerned about the industrial relations sense of alternative interpretations.
In this dispute “the industrial relations implications” of the Union interpretation is recognition of a right in engineers to absent themselves from work in an exercise of a personal discretion but continue to receive credit for having worked. The right to receive pay despite being absent from work is recognized in the applicable industrial relations principles as a right that requires clear language. That requirement is reinforced in the circumstances present in this dispute by the fact that, not only did the Railway not have the services of the Grievor, but it was required to call out and pay a spareboard engineer to replace him.
On the Union interpretation, the Railway would be required to pay two employees for the same work assignment. That result can be achieved between parties but the relevant industrial relations principles require that such a result be recorded in sufficiently clear language that the mutual intention asserted is expressly acknowledged. Here the language falls far short of that requirement and the practice asserted by the Union did not address that issue. I agree with the reasoning of Arbitrator Hanrahan that where employees, through no action of the Railway, fail to work an assignment “of their own accord”, they will be seen as failing to meet the requirement for a pay guarantee. Engineers who book rest do so of their own accord and thus take themselves outside the scope of Article 1.9.1. In the result, the grievance is dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 6th day of December, 2001.
“H. Allan Hope, Q.C.”
H. ALLAN HOPE, Q.C. – Arbitrator