IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

(The “Company”)

-And-

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

SYSTEM COUNCIL NO.11

(The “Union”)

AH647

RE: Violation of Article 10.8, of Agreement 11.1 when the Company sent twelve employees off region to work in Montreal, Quebec. The work was for a period of 3 days wherein the employees worked on the AMT project.

ARBITRATOR: CHRISTINE SCHMIDT

APPEARANCES FOR THE COMPANY:

S. Prudames - Labour Relations Manager, Toronto

S. Grou - Senior Manager Labour Relations, Montreal

T. Orr - Senior Manager S&C, Western Region

R. Bateman - Director Labour Relations, Toronto

J. Macdonald - Senior Manager S&C, Toronto

APPEARANCES FOR THE UNION:

R. Church - Counsel, Caley Wray, Toronto

S. Martin - Senior General Chairman

L. Couture - International Representative

A hearing in this matter was held in Montreal on March 5, 2016.

Ad-hoc matter AH-647.

AWARD

The nature of the dispute before me is reflected in the statement of dispute and joint statement of issue filed, which reads as follows:

Dispute:

Violation of Article 10.8, of Agreement 11.1 when the Company sent twelve employees off region to work in Montreal, Quebec. The work was for a period of 3 days wherein the employees worked on the AMT project.

Joint Statement of Issue:

The Union contends that the Company violated Article 10.8 of Collective Agreement 11.1 when twelve employees were sent off region to Montreal, Quebec. The Union assets that the Company did not enter into a mutual agreement to cover the temporary movement of employees.

The Company disagrees with the Union’s contentions and maintains that the straightforward application of Article 10.8 supported the assignment of twelve employees to work on the adjacent Region and has declined the Union’s grievance.

FOR THE COMPANY: FOR THE UNION:

S. Prudames S. Martin

Labour Relations Manager Senior General Chairman

The Union submits that the Company violated the collective agreement between them, and in particular article 10.8 when it required 12 employees from the Great Lakes Region (“GLR”) to work on part of an adjacent region – the Champlain Region – without entering into an agreement with the Union.

The relevant facts are not in dispute.

The employees generally work together as a gang, and on February 4, 2014, they were told that they would be required to perform work in Montreal, in a part of the Champlain Region – adjacent to their seniority territory. On Saturday February 8, 2014, the employees travelled from the GLR to Montreal. On Sunday February 9, they undertook and completed work on a major cutover project (together with all other available employees) and they returned to the GLR on February 10, 2014. In doing so, these employees supported the local signals installation at the cutover project as part of a construction project of the Agence Metropolitaine des Transports (“AMT”). Five of the 12 employees, together with another three were also sent to do a weekend cutover on March 9, 2014.

The wording of what is now article 10.8 has been in effect since 1992. Article 10.8 of the collective agreement reads:

10.8

(a) An employee, with his concurrence, may be loaned from one Region to another. While on loan, he will be furnished with copies of bulletins issued on his home Region and may bid on such bulletins. If he fails to return to his home Region within one year, he may, within 30 days, elect to forfeit his seniority on his home Region and be accorded seniority on his new Region corresponding with the date he commenced service on such Region, unless otherwise mutually arranged between the System General Chairman and the proper Officer of the Company. An employee so loaned will, on returning to his former Region, resume duty on the position to which he is regularly assigned.

(b) Employees may be required to perform work of an expected duration of one week or less on a Region adjacent to their seniority territory.

(c) Upon written mutual agreement between the System General Chairman of the Brotherhood and the appropriate S & C Officer, employees may be required to perform work of an expected duration of less than ninety (90) days on a Region adjacent to their seniority territory.

(d) Temporary positions on Maintenance of an expected duration of ninety (90) days or more, but less than one (1) year, involving work on two adjacent Regions may be established. Such positions would be advertised to both seniority territories involved and awarded to the senior qualified applicant from the seniority territory where the preponderance of the work is to be performed. Should there be no applicants from that seniority territory, the positions would then be awarded to the senior qualified applicant from the other seniority territory. Should there be no qualified applicants for the position; a Compulsory Trainee from the seniority territory where the preponderance of the work is to be performed would be promoted to the position in accordance with Article 12.8.

When written agreements, referred to as “Off Region Agreements” (“ORAs”) are entered into between the Company and Union, benefits beyond those established in the collective agreement are normally provided. The parties did not enter into a ORA for the assignments in February and March of 2014. They had, however, entered into a ORA on September 16, 2013 with a return date for employees of December 31, 2013 for this same gang to do work on the AMT project. The Union seeks to have that ORA apply despite the fact that the work carried out by the employees in February and March 2014 was not covered by the ORA, nor was it anticipated that the employees would be required by the Company to work in Montreal in February and March 2014 when the work under the terms of the ORA expiring December 31, 2013 was completed.

It became apparent at the hearing that the Company requiring employees to perform work of an expected duration of one week or less on an adjacent territory is not a common occurrence.

The Union argues that that article 10.8 (b) reproduced above does not mean that the Company is not required to obtain the Union’s consent to send employees to an adjacent Region to perform work expected to be for a week or less in duration. It says that article 10.8 (b) was intended to give the Company flexibility in the case of emergencies. The Union says that in emergency situations the Company and the Union have negotiated verbal agreements, at times after the performance of emergency work has been completed. The Union also states, however, that article 10.8 (b) has not been consistently applied in the manner the Company has applied it in this case.

The Union submits that since article 10.8 (c) has no minimum requirement for the condition precedent that there be a written agreement (except in exceptional emergency situations), the Company has violated the collective agreement. The Union says that articles 10.8 (b) and 10.8 (c) are not inherently inconsistent, and that therefore the plain words of article of 10.8 (c) must be accorded the clearest meaning possible.

Moreover, the Union argues that its interpretation of the article 10.8 is consistent with the practice of the Company always entering into ORAs with the Union, either verbal or written, when sending employees from one Region to another irrespective of the amount of work to be done or the time it takes to do the work. This “past practice,” in the Union’s submission, should be of assistance in determining the intent of the collective agreement language should I determine that language is not clear on its face.

In support of the past practice to which the Union refers, it directs me to the ORA that expired at the end of December 2013 (described above) as well one dated April 5, 2006 and two dated April 24, 2007. In addition the Union refers me to an email dated December 17, 2013 whereby a specific arrangement was made by the Union General Chair for Eastern Canada and a Manager in the East to send a number of employees to the Western Region to work from December 17 (or possibly the 18^th) through December 24, 2013. Finally, the Union gave an example of an employee who was assigned to work for three days on the Mountain Region when he was from the Prairie Region. That employee received benefits when he joined his gang that had worked off region for eight days.

In the alternative to the Union’s primary argument, and should I find that the language did not require a written agreement to assign the employees in this case to the Champlain Region, the Union argues that the Company is estopped from not seeking the Union’s consent for such assignments for the duration of the collective agreement.

Decision

There is no dispute that the Company required employees to perform work on a Region adjacent to their seniority territory for three days without seeking the Union’s agreement.

My task is a straightforward one: I am to ascertain the intent of the parties as evidenced by the language of their collective agreement and give effect to that intent.

For convenience, article 10.8 is reproduced below:

10.8

(b) Employees may be required to perform work of an expected duration of one week or less on a Region adjacent to their seniority territory.

As a precondition for the Company being in a position to require employees to perform work of an expected duration of less than 90 days on an adjacent territory, article 10.8 (c) stipulates that the Company must have the written agreement of the Union. The Union is correct when it says that 10.8 (b) does not “conflict” with 10.8 (c).

I do not accept, however, that when these articles are read together (as both parties agree they must be) that it is reasonable to conclude that the Company must obtain the Union’s consent before sending employees to perform work of an expected duration of a week or less on Region adjacent to their seniority territory. This is simply because, while article 10.8 (c) expressly requires the Union’s consent in circumstances where the assignment of the employees is for a significant duration (as many as 89 days), article 10.8 (b) is silent about Union consent, when the assignment is up to one week in duration.

There is no precondition in article 10.8 (b). Had the parties intended to require a written agreement in the case of the performance of work on an adjacent Region that was expected to be a week or less, it would have been completely unnecessary to include article 10.8 (b) at all in the collective agreement. It would have absolutely no purpose, given that article 10.8 (c) ostensibly captures all assignments to adjacent Regions up to 89 days, including such assignments of up to one week. Clearly, article 10.8 (b) was inserted into the collective agreement for a reason. That purpose was to give the Company sole discretion to assign employees to an adjacent Region for brief periods of time.

Every clause in a collective agreement must have a purpose. The only meaning that can reasonably be ascribed to Article 10.8 (b) is that no mutual agreement is necessary for the Company to require employees to perform work on a Region adjacent to their seniority territory when its expected duration is one week or less. Therefore, there is no ambiguity that arises from a reading of these clauses, and no need to consider parole evidence of past practice.

Moreover, the Union’s suggestion that 10.8 (b) is about emergencies is simply not supported by the language of that article. And further, the examples of “past practice” provided by the Union, which it argues supports its interpretation of articles 10.8 (b) and (c), do no such thing. The ORAs provided by the Union either do not relate to work performed where the Region is adjacent to the employees’ seniority territory or to periods that in an adjacent territory that are a week or less in duration, thereby engaging article 10.8 (b). They have no application to the case at hand.

In addition, the email dated December 17, 2013 referred to above referencing special arrangements provided for employees working off region until December 24, 2016, is not for work on a Region adjacent to the employees seniority territory; and from a “duration of time” perspective it would appear to be on the cusp of the one week time frame in any event. Finally, the one example of benefits being paid to an employee in the case of his three-day assignment to the Mountain Region (not an adjacent Region to his seniority territory) was in circumstances where the employee had returned from vacation to join his gang in Alberta in the midst of their eight-day assignment.

For these reasons, I find that the Company was not required under the language of the collective agreement to obtain the Union’s written agreement concerning the assignments in issue.

With respect to the Union’s estoppel argument, its concession that article 10.8 (b) has not been consistently applied in the manner the Company has applied it on the facts of this case, undermines any suggestion of a representation by the Company intended to affect legal relations between them (and to which the Union relied upon to its detriment), such that the essential elements of this equitable doctrine are made out. And as I have noted, the past practice does not assist the Union in this case. Accordingly, I find no reason to apply the doctrine of estoppel in this matter.

For all of these reasons, the grievance is dismissed.

March 9, 2016 __________

CHRISTINE SCHMIDT
ARBITRATOR