AH635

IN THE MATTER OF AN ARBITRATION

 

BETWEEN:

 

 

CANADIAN NATIONAL RAILWAY COMPANY

(the “Company”)

 

-and-

 

THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

SYSTEM COUNCIL NO. 11

(the “Union”)

 

 

 

RE:   VACATION ALLOTMENT – POLICY GRIEVANCE

 

 

 

ARBITRATOR:                      MICHEL G. PICHER

 

 

APPEARANCES FOR THE COMPANY:

Sylvie Grou                           - Senior Manager, Labour Relations

Ross Bateman                     - Director, Labour Relations

Alain Demontigny               - Consultant

 

APPEARANCES FOR THE UNION:

Michael Church                             - Counsel

Luc Couture                         - International Representative

Brian Strong                         - Senior General Chairman

Ron Hewson                        - General Chairman

Lee Hooper                           - Assistant General Chairman

 

 

 

A hearing in this matter was held in Montreal, Quebec on July 17, 2014.

AWARD

 

The dispute before the Arbitrator relates to the method by which the vacation entitlement of employees is determined.  The nature of the disagreement is more amply reflected in the Union’s Ex-Parte Statement of Issue, filed before the Arbitrator.  That document reads as follows:

UNION’S EX PARTE STATEMENT OF ISSUE:

 

In April 2013, the Union advanced a Policy Grievance on behalf of all S&C employees governed by Agreement No. 11.1 regarding the Company’s breach of Article 18 and, in particular, the Company’s failure to provide employees their full entitlement of weeks of vacation/vacation pay as set out under Article 18.

 

The Union contends that the Company’s refusal to provide employees their full vacation allotment constitutes a breach of Agreement No. 11.1.  It is the Union’s contention that the Company is in breach of Article 18, which unequivocally sets out the manner in which vacation entitlements shall be allotted.

 

The Union seeks a declaration that the Company has breached Agreement No. 11.1 and that the Company cease and desist its ongoing breaches thereof.  The Union seeks an order that all employees be made whole for their losses due to the Company’s practice, in addition to such other relief that the Arbitrator deems necessary in the circumstances.

 

The Company denies the Union’s contentions and declines the Union’s request.  While the Company initially raised certain procedural objections, those objections, which concerned timeliness, were withdrawn at the hearing.

 

            The following provisions of Article 18 of the collective agreement are pertinent to the resolution of this dispute:

18.1    Employees who qualify will receive vacation pay as per the following table.

 

18.2    An employee will be compensated for vacation at the rate of pay he would have earned had he been working during the vacation period or the percentage of the gross wages (whichever is higher) as reported on T-4 earnings as “Total Earnings Before Deductions Less Taxable Allowances and Benefits”.

 

VACATION ENTITLEMENT TABLE

VACATION QUALIFICATIONS CRITERIA

VACATION ENTITLEMENT

Minimum Number of Years Continuous Employment Relationship at January 1st of the Current Year

Minimum Number of Days Cumulative Compensated Service (CCS) by Next Service Anniversary Date

Days of CCS for One Day of Paid Vacation

Maximum Number of Weeks Vacation

Vacation Pay Factor

Less than 3

--

25

2

4 %

3

1,000

16 2/3

3

6 %

9

2,500

12 1/2

4

8 %

19

5,000

10

5

10 %

28

7,250

8 1/3

6

12 %

 

Note:  At the beginning of the current calendar year, employees who will meet all the qualifications as set forth in paragraph 18.2 during the calendar year will be granted a vacation allotment scheduled as though they do meet all such qualifications at the beginning of the calendar year.  Any vacation granted for which employees do not subsequently qualify will be deducted from the employees’ vacation entitlement in the next calendar year.

 

            The instant policy grievance arises out of an individual grievance originally filed by employee Serge Morin.  It is common ground that on January 1, 2013 Mr. Morin had attained 27 years and 8 months of service, with 7,267 days of cumulative compensated service (CCS).  The Company took the position that as Mr. Morin did not then have 28 years of continuous employment service he was not eligible as of January 1, 2013 for six weeks of vacation in that calendar year.  He was granted five weeks of vacation entitlement and was recognized as being entitled to six weeks of vacation in 2014 when, according to the Company, he properly satisfied the requirements of Article 18.2 to merit the additional week.

 

            The position of the Union is that Mr. Morin should have been granted six weeks of annual vacation in 2013, rather than the five weeks of vacation he was allocated.  It submits that that entitlement flows from the proper interpretation and application of the “Note” to Article 18.2 of the collective agreement.  The position of the Union is that Mr. Morin would properly meet the qualifications set forth in Article 18.2 during the calendar year and that, in accordance with the Note, he should have been viewed as entitled to six weeks of vacation entitlement effective January 1, 2013.            The position of the Union is that in accordance with the note, while it is true that as of January 1, 2013 Mr. Morin did not have 28 years of continuous employment, he was clearly scheduled to meet that qualification during the course of that calendar year, specifically on April 29, 2013.

 

            The Company takes the position that the proper interpretation of the Note, viewed in relation to the history of the provisions of Article 18 of the collective agreement, does not entitle Mr. Morin to the vacation entitlement claimed on his behalf by the Union.  Its representative notes that the Vacation Entitlement Table reproduced above was introduced into the collective agreement as attachment “C” to a Memorandum of Agreement dated March 24, 2005.  While the Vacation Entitlement Table was included in that agreement, the parties recorded their agreement to meet after ratification “… in order to amend the provisions of Article 18 where applicable”.  Ultimately, the Vacation Entitlement Table and its Note came to be inserted into the collective agreement under Article 18.2, as reproduced above.  It does not appear disputed that its origins and administration were intended to be modelled on similar provisions to be found in the collective agreement which previously governed in Northern Quebec under the former NQISL agreement.  Indeed, it appears that Mr. Morin is an employee who was previously governed under the terms of the Northern Quebec agreement.

 

            It is common ground that as of January 1, 2013 that Mr. Morin did achieve some 7,264 days of CCS.  As stressed by the Company, however, his service was then 27 years and 8 months of continuous employment. 

 

            In the Company’s interpretation, what the Note does is to allow a prospective estimate of whether an employee will meet the CCS qualifications during the course of the calendar year, as of their subsequent service anniversary date.  Essentially the Company’s position is that the Note does not apply to the minimum number of years of continuous employment relationship reflected in the first column of the Vacation Entitlement Table, but is restricted to the projection of cumulative compensated service found in the second column.

 

            The Arbitrator has substantial difficulty with that interpretation.  Clearly the Note speaks to “all the qualifications set forth in paragraph 18.2”.  I am satisfied that by using the phrase “all the qualifications” the parties intended to capture both the minimum number of years of continuous employment and the minimum of days of cumulative compensated service.  In the result, I am satisfied that the Union is correct in its interpretation that Mr. Morin would have been entitled to the benefit of the Note to the extent that he would, in the year 2013, attain 28 years of continuous employment, even though he may not have done so effective January 1, 2013.  To put it simply, the Note contemplates employees meeting the qualification criteria established within the Vacation Entitlement Table during the forthcoming calendar year under consideration.  Those qualifications include the years of continuous employment and the days of cumulative compensated service.  I can see no reason to restrict the application of the Note to CCS only, as the Company would have it.

 

            For the foregoing reasons I am satisfied that the interpretation of the Union is to be preferred to that of the Company, with respect to the meaning of the Note to Article 18.2 of the collective agreement.  In the case of Mr. Morin, as he was clearly scheduled to meet the qualification of 28 years of continuous employment during the course of 2013, by the operation of the Note he should have been deemed to meet the qualifications at the beginning of that calendar year, and granted vacation allotment accordingly.

 

            Issues arise, however, with respect to the appropriate remedy in the instant case.  The Company submits that not having raised this issue for a substantial number of years, the Union must be estopped from claiming any immediate or retroactive redress.  I believe that submission is compelling, on the facts as presented.  Given the length of time that the Union has in effect acquiesced in the Company’s practice with respect to the administration of the Vacation Entitlement Table, I believe that the estoppel argument made by the Company must be sustained, at least for the life of the current collective agreement.  In my view to conclude otherwise would work an unfairness to the Company, which has effectively relied on the Union’s acquiescence, and will not be  in a position to deal with the issue until such time as the parties return to the bargaining table.

 

            For the foregoing reasons the grievance is allowed, in part.  The Arbitrator finds and declares that the interpretation of the Note to Article 18.2 of the collective agreement taken by the Union in this arbitration is the correct interpretation and that, on the facts of Mr. Morin’s case, he should have been viewed as entitled to six weeks of vacation in 2013.  However, because of the Union’s delay in bringing this grievance, and the potential prejudice to the Company, I am satisfied that this is not an appropriate case for any retroactive redress. 

 

            I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or application of this Award.

 

Dated at Ottawa, Ontario this 21st day of July, 2014.

 

 

_____________________________

Michel G. Picher

Arbitrator