IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
TEAMSTERS CANADA RAIL CONFERENCE
CONDUCTORS TRAINMAN YARDMAN
RE: The Company’s policy regarding Personal Leave Days
ARBITRATOR: CHRISTOPHER ALBERTYN
APPEARANCES FOR THE COMPANY:
V. Paquet – Labour Relations Manager, Toronto
M. Marshall – Senior Labour Relations, Toronto
APPEARANCES FOR THE UNION:
K. Stuebing – Counsel, Caley Wray, Toronto
J. Robbins – General Chairperson, Sarnia
J. Lennie – Vice General Chairperson, Port Robinson
R. Caldwell – General Chairperson, Bancroft
P. Boucher – Vice General Chairperson, Belleville
P. Vickers – Former General Chairman, Sarnia
R. Donegan – General Chairperson, Saskatoon
R. Hackl – Vice President, Saskatoon
A hearing in this matter was held in Toronto on July 6, 2015.
Ad-hoc matter CA-2015-4414.
1. The issue concerns whether, and in what circumstances, an employee may book a personal leave day (PLD) to start at a time other than 00:01 and overlap between calendar days.
2. The nature of the dispute is reflected in the statement of dispute and statement of issue filed, which reads as follows:
The Company’s policy regarding Personal Leave Days including instructions to the CMC that employees who take a single leave day, which is booked more than 4 hours in advance, must begin at 0001 hours on the day which the Personal Leave Day is to commence.
Union’s Ex Parte Statement of Issue:
Commencing in 2014, employees were denied the opportunity to book a Personal Leave Day (“PLD”) in accordance with Article 96 of Agreement 4.16 to commence at a time other than 0001. Prior to these recent denials, employees were able to book PLDs to start at times other than 0001 and overlap between calendar days.
On October 27, 2014, Sarnia employee Trevor Hopwood attempted to book PLD in advance to commence at 0300 hours on November 15th, 2014. The CN Crew Management Centre declined Mr. Hopwood’s request with the crew dispatcher informing him that the Company’s policy was that if a Personal Leave Day was booked more than 4 hours in advance then that Personal Leave Day must start at 0001 on the day which the Personal Leave Day is to commence.
This application is departure from the accepted interpretation, application and administration of Article 96 and as a result of the Company’s actions the Union is seeking a remedy under Addendum 123 for the violation of Article 85 and 85.5 of the 4.16 Collective Agreement.
It is the Union’s position that employees governed by Agreement 4.16 can book a single PLD in accordance with Article 96 to commence at any time during the day for up to 24 hours providing at least 4 hours’ notice is given.
The Union contends that the Company’s new PLD Policy breaches the terms of Agreement 4.16, including Articles 85, 85.5 and 96 and the express terms of the February 12, 2005 Memorandum of Settlement. As well, the Company’s PLD Policy is contrary to past practice and applicable arbitral jurisprudence.
The Union seeks finding that the Company has breached Agreement 4.16, past practice and/or arbitral jurisprudence and that the Company be directed to cease and desist such breaches.
In all the circumstances the Union submits that the Company’s new practice constitutes a blatant and indefensible violation of Article, 85, 85.5 and 96 the Collective Agreement and therefore seeks a remedy in accordance with Addendum 123 of Agreement 4.16.
The Company disagrees and denies the Union’s request.
FOR THE UNION: FOR THE COMPANY:
General Chairman Director Labour Relations
3. The Company’s position is set out in its Step 3 response to the grievance:
It is the Union's position that the Company violated Article 96 and 85 when the Company allegedly denied employees working under the 4.16 agreement their PLD. The Company disagrees.
With respect to the application of Article 96, it is the Company's position that a single PLD can be for a period of up to 24 hours from 0001h when booked in advance (i.e. more than 24 hours notice) and up to 24 hours from the requested start time when booked with less than 24 hours notice (but with a minimum of 4 hours notice).
It is the Company's position that the Union's grievance cannot proceed, as it has not followed the procedure outlined in the collective agreement. Specifically, no step 1 grievance was filed by or on behalf of Mr. Hopwood.
In the alternative and without prejudice to the Company's position, the Company will respond to the merits of this case.
In review of Mr. Hopwood's request, the Union advises that after receiving a call for M39731 24 at 2017h, Mr. Hopwood requested a PLD to start on November 15th at 0300h. As more than 24 hours notice was given, Mr. Hopwood was informed that consistent with the application of Article 96, his request for a PLD would commence at 0001h on November 15th.
In addition, the Union submitted a copy of Mr. Hopwood's PLD record, where the majority of requests are consistent with the Company's position. That is, requests in advance (more than 24 hours) were started at 0001h.
With regard to the Union's allegation that the Company is in violation of Article 85; this is not a new interpretation and the Company has administered PLD's this way without contest from the Union for years. The Company submits that while there may be individual instances where employees have managed to book a PLD in advance with a starting time of other than 0001, it has not been a consistent practice. In addition, it is the Company's position that the administration of PLD's is consistent both with the collective agreement and understandings relating to this topic.
In addition, the CROA Award quotation noted in the Union's Step 3 grievance is specific to PLD allotment and preponderance of the day, thus the Award has no application to the case at hand.
The Company does not agree that the Workplace Environment provisions have been violated. The Company has not harassed or intimidated any employees indicated in this grievance, nor has the Union plead any facts to support this claim. Given that the Company does not agree that the collective agreement has been violated, a Remedy is not applicable.
Based on the foregoing, the Union's grievance is respectfully declined.
Labour Relations Manager
4. The relevant portions of Article 96, which became effective in 2005, read:
96.1. Employees will, at their discretion, be entitled to take up to and including a maximum of 12 cumulative unpaid personal leave days per calendar year as provided herein. Personal leave days will be recognized, under this agreement, as active cumulative compensated service. Employees may, at their discretion, activate their entitlement to leave days, jointly or severally, up to the cumulative maximum.
96.2. Notice in respect of this leave will be given as follows:
i. One day (24 hours) – upon four hours' notification prior to the commencement of such leave time;
ii. Two or three consecutive calendar days – upon three calendar days notification prior to the commencement of the leave days;
iii. Four consecutive calendar days but less than seven consecutive calendar days – upon seven calendar days notification prior to the commencement of leave days;
iv. Seven consecutive calendar days or more – upon twenty-one days notification prior to the commencement of leave days.
NOTE 1: Employees in the application of this provision shall not be entitled to activate personal leave days between and including December 20th and December 31st.
NOTE 2: Personal Leave Days (allotments) shall be established at each terminal utilizing the following exampled criteria:
Terminal X – 100 (Employees) X 12 (PLD)/353 (days) = 3.4 daily allotments.
In such calculations, numbers shall be rounded upward.
5. The dispute between the parties concerns single, 24-hour PLDs. There is no dispute concerning consecutive PLDs. The parties accept that for consecutive PLDs, they must be booked from 00:01 hours on the first day. The dispute concerning the single day, 24-hour, PLD booked in advance (i.e. more than 24 hours before the start of the PLD) is whether that too must commence at 00:01, or whether the employee can select the start time. The parties accept that if a single day, 24-hour, PLD is booked not in advance (i.e. if it is booked within 24 hours of the PLD requested), it can commence at an hour other than 00:01 in the employee’s discretion, provided only that 4 hours notice is given, and the terminal allotment permits it.
6. Any booking of a PLD on the CAT computer system is, by default, from 00:01. The arrangement of a different time is done by direct telephone contact with the Crew Management Centre (CMC), with whom the arrangement is made for a specific start time for the PLD, other than 00:01.
7. The Union’s position on the single 24-hour PLD booked in advance is that, until a change was made in October 2014, an employee could have their PLD start at any time, provided 4 hours notice were given. The Company’s position is that single 24-PLDs requested in advance, must start at 00:01. Only a 24-hour PLD same day request, not in advance, can start at an hour of choice, on 4-hours notice. So, a request, say, at 16:00 could start at 20:00.
8. The Union claims the dispute between the parties came about because of an abrupt change by the Employer in October 2014 to its practice. The Union says that, since the inception of the provision in 2005, the Employer permitted employees to book off single day PLDs in advance to commence at any hour in the day.
9. The Employer disputes the practice claimed by the Union. It contends there has not been any change of practice. It says the practice has been that employees have had their single day PLDs booked in advance start at 00:01.
10. The Union relies on AH569, which addressed the question of which day is to be treated as the PLD when a PLD falls over two calendar days. The arbitrator adopted the “preponderant day” approach to the issue of allotment; the calendar day on which most of the PLD falls is to be treated as the preponderant day for the purpose of PLD allocation. The issues before the arbitrator in that case were not the same as that at issue in this award.
11. The Union suggests that an employee may be required to lose two shifts for one PLD if required to start the PLD at 00:01, whereas, if the employee could start their PLD at the start time of their shift, they would lose only one shift to a PLD. The Company suggests, in contrast, that, on the Union’s interpretation, an employee could effectively get two days off by booking off a single PLD from a particular hour, so making themselves unavailable for two shifts. The Company argues that that result was not the intention of the parties, as was confirmed in AH569.
12. The Union argues that the Employer is bound by the common interpretation and application of the existing provision, alternatively, that the Company is estopped from changing the long-standing practice until the Union has had notice of the proposed change and has had the opportunity to bargain its terms.
13. The Union contrasts the language in the collective agreement from that in the Locomotive Engineers’ collective agreement. There the Company specifically negotiated a change to the PLD provision, that, “Employees requesting multiple or single days in advance of 24 hours’ notice will have the PLD start at 0001”. The Union submits that the absence of such language supports the Union’s interpretation. The Company responds that the provision was amended in the Locomotive Engineers’ collective agreement precisely to avoid a dispute such as this. The Union replies that the agreement was concluded with the Locomotive Engineers because the impact on them is different, for the reason that they do not work swing shifts.
14. The Company argues, from a purposive approach, that the PLD was to provide time off for employees while providing predictable scheduling for the Company. When a PLD is booked in advance, whether days or months in advance, for orderly administration of staff and predictability there should be a common starting point for a PLD.
15. As was stated in AH569, the relevant provision is “silent on the mechanics of how allotments are to apply”. The one day leave provision does not distinguish between leaves requested in advance and within 24 hours. In the absence of such a clear provision, the parties’ practice is determinative of how the provision should be applied. Both parties argued the matter on that basis, focusing upon the past practice.
16. As mentioned, there is a dispute between the parties as to what was the practice. The evidence of the past practice reveals the following. As the Company contends, there are a large number of instances in which the employee concerned booked a single PLD in advance and the start time was 00:01. This not contested by the Union. Often employees want the start time of their single day PLD to be 00:01. What matters, though, is the past practice regarding the start time of an advanced reservation of a single day PLD.
17. There are a very large number of instances, dating back over many years, when employees applied in advance for a single PLD from a time other than 00:01 and they were granted the leave. It seems, from the records produced, that there were no instances, until October 2014, when an employee requested a single PLD to start at a time other than 00:01, in advance of 24 hours, and it was not granted. The practice, from the experience of the employees, was clearly that they could apply to make an advanced booking for a single PLD at a start time other than 00:01 and they were granted it.
18. In contrast, the senior management of the Company clearly understood from the outset, and consistently since then, that a single PLD booked outside of 24 hours had to start at 00:01. The system was designed for this. As mentioned, the CAT computer booking requires a 00:01 start for a single PLD if booked outside of 24 hours. An email was sent within management in August 2005, soon after the provision was negotiated, which directly addressed this. The Company noted the following: “when notice for 1 day PLD given within 24 hours of actual start time, it may be for any 24 hour period allocated on the preponderance of when the PLD occurs”; and “when notice for 1 day PLD’s is more than 24 hours the 1 day PLD will only be awarded as a calendar day to start at 0001”. There were also emails over the years between more senior management and other managers within the Company reiterating the same stance; the same position as the Company advances in this matter. This means that, from the start of the administration of the provision, the Company took the attitude it takes now. It appears, though, that the Company’s interpretation was not conveyed to the Union at the time, not until 2012, and it was not implemented until October 2014.
19. The Company’s position was reiterated in a Field Help Screen from CATS (a tool for CMC personnel to use as a job aid for procedures), dated December 31, 2007, which stated the following:
· If one PLD is booked more than 24 hrs in advance the PLD starts at 0001
· If a one day PLD is booked less than 24 hours ahead, the PLD may start at anytime during the day but has to be at least 4 hrs in the future.
20. What matters in the determination of past practice is not what either party wanted the practice to be, but what practice was conveyed and communicated between the parties. It appears that the Company’s position was first conveyed to the Union in a meeting between them on February 7, 2012. The Union responded by email in March 2012 making clear that, in the Union’s view, there was never a requirement for a single day PLD booked in advance to start only at 00:01. The matter was therefore put in issue at that time. It appears, however, that the practice (of allowing a PLD booked in advance to start at a time other than 00:01) continued, despite the exchange between the parties, until October 2014.
21. The Company admits there have been discrepancies in the application of its approach to the issue, but submits those discrepancies are anomalies and inconsistencies that do not establish the practice the Union contends for.
22. So there are two contrasting histories: one, the past practice consisting of the very large number of instances at various terminals where one-day PLDs, requested on more than 24-hours notice, were being approved by the CMC for a start time other than 00:01, so confirming the Union’s allegation; and two, the Company’s stance and internal communications (with apparently only one communication to the Union in 2012) that the system was not to be applied in this manner, while it continued to be applied as described. On the ground, at the terminals, the CMC was not complying with the direction issued by the Company because approvals continued to be given outside of what the Company intended.
23. The Company argues this is a mixed past practice, and that it does not confer any right of interpretation to either party, nor any estoppel. I cannot agree with the Company because the practice is not mixed, but shows consistency in the manner the Union espouses.
24. Although the Company’s position makes operational sense because it prevents a single PLD from impacting on two work days and it helps to ensure consistency in staff planning, the past practice provides evidence of the manner in which the parties have actually applied the provision. The past practice supports the Union’s interpretation of the provision and, as explained, that past practice is not inconsistent with the language used in the provision.
25. In the circumstances, the grievance is upheld. The Company is required to restore the practice that prevailed until October 2014.
26. This is not a case that warrants a remedy under Addendum 123.
27. I remain seized of any dispute arising from the implementation.
July 22, 2015