IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
Canadian Council of Railway Shopcraft Employees and Allied Workers
GRIEVANCE RELATING TO THE SCHEDULING OF ANNUAL VACATIONS FOR 1982
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
M. M. Yorston
And on behalf of the Union:
J. W. Asprey
W. Redhead and others
A hearing in this matter was held at Montreal on April 27, 1982.
The parties have submitted separate statements of fact and issue in this matter, although it will be noted that the question to be decided appears clearly from each statement.
The union statement is as follows:
UNION’S STATEMENT OF FACT:
The duly authorized representatives of the employees at Angus Shops – Montreal, and Weston Shops – Winnipeg, choose July 12 and July 19, 1982 respectively as the commencement dates for the Shops’ annual four (4) week vacation period.
On February 19, 1982, CP Rail management unilaterally, and without receiving prior agreement from the duly authorized representatives of the employees, advised the employees of Angus and Weston Shops that their respective vacation periods would be from August 3 to August 30 inclusive, and July 5 to August 2, 1982 inclusive.
UNION’S STATEMENT OF ISSUE:
It is the position of the Union that CP Rail violated the provision of Rule 47.4(b) of Wage Agreement No. 16 when it unilaterally imposed its choice of dates for the annual vacation period at Angus and Weston Shops, without attaining agreement from the duly authorized representatives of the employees of the respective shops.
It is the position of the Company that the provision of Rule 47.4(b) was not violated when the Company decided to unilaterally set the annual vacation period for Angus and Weston Shops without obtaining prior agreement from the employees’ representatives.
The company statement is as follows:
COMPANY’S STATEMENT OF FACT:
Rule 47.4(b) of Wage Agreement No. 16 states that "… the Management and duly authorized representatives of the employees will agree prior to January 31st of each year the date on which the various shops will close for vacation period." For the year 1982, agreement was not reached prior to January 31, and the Company therefore declared the dates to be:
Angus Shops August 3
Weston Shops July 5
Ogden shops July 19
COMPANY’S STATEMENT OF ISSUE:
The Union contends that C.P. Rail violated the provision of Rule 47.4(b) of Wage Agreement No. 16 when it unilaterally imposed its choice of dates for the annual vacation period at Angus and Weston Shops, without attaining agreement from the duly authorized representatives of the employees of the respective shops.
It is the position of the Company that as agreement was not reached by January 31, 1982, the Company was not in violation of Rule 47.4(b) when on February 19, 1982, Management set the dates of the close-down for annual vacation at the Main shops.
Article 47 of the collective agreement deals with annual vacations, and article 47.4 deals with the scheduling thereof. That article is as follows:
47.4 (a) The officer in charge and the recognized representative of the employees will, as far as practicable, make mutual arrangements to carry on the work while members of the staff are on vacation with the object of avoiding additional expenses to the Company, but if this is not practicable, employees engaged temporarily, or employees temporarily promoted from one position to another, to provide vacation relief, will if definitely assigned to fulfil the duties and responsibilities of a higher rated position, be paid the schedule rate applicable to such position.
(b) At the main shops the intention is to close the shops for the annual vacation period and the Management and duly authorized representatives of the employees will agree prior to January 31st of each year the date on which the various shops will close for vacation period.
(c) The period of closedown for annual vacation at main shops will not exceed four weeks in each year.
(d) The Management and the Local Committees will cooperate with a view to providing staff to make repairs to machinery, etc., and to giving employment to as many as possible of the employees who are not entitled to full vacation. Such skilled employees as are necessary to balance the staff will be allowed vacations to which they are entitled at a mutually satisfactory date.
(e) Employees in main shops who are entitled to a vacation of three weeks or more may be permitted, upon request, to take a portion of their vacation at a time other than during the closedown for annual vacations providing there is no increase cost to the Railway and subject to the right of the Railway to balance staff in order to ensure adequate productivity.
(f) During the annual vacation closedown, main shop employees whose maximum vacation entitlement is less than the period of closedown shall, notwithstanding any other provisions of the Collective Agreement, only be entitled to fill vacancies temporarily at running points for which they are fully qualified.
(g) The proper officer of the Company and the respective General Chairman will co-operate in an effort to ensure that as many main shop mechanics, apprentices, helpers and coach cleaners as possible, whose maximum vacation entitlement is one week or more less than the period of closedown, will be given the opportunity to fill vacancies at running points for which they are fully qualified to immediately perform the work involved. (See miscellaneous letters of understanding, letter dated May 5, 1978).
(h) An employee who undertakes to transfer to a running point for a temporary period under this Rule and who has been cleared to do so shall, if he later declines to exercise his seniority and fill the position without just cause, be debarred from the benefit of this Rule in the following year.
(i) Employees working in main shops during vacation period will be compensated during regular shop hours at pro rata rates, except as otherwise provided in Rule 47.1(l).
(j) At running points the recognized vacation period will be from March to November, inclusive. When mutually arranged, vacations may be taken outside of the recognized period. Where additional relief is required and cannot be obtained and the requirements of the service make it necessary to extend the recognized vacation period, the foreman and Local Committee will be required to work out a practical arrangement. (See miscellaneous letters of understanding, letter dated April 8, 1971).
The issue in the instant case is as to the period or periods of vacation closedown for the main shops (that is, the Ogden, Weston and Angus shops,) in 1982. Article 47.4(b), of course, calls on the parties (in the case of the union, the "duly authorized representatives" being, for the instant case, the "Local Federations" at each location), to agree prior to January 31st of each year on the date (or dates) of the closedown for the vacation period. In 1982, no such agreement was reached in the time set out, nor has agreement been reached since. The company has unilaterally declared the dates of the vacation closedown for 1982 to be those set out in its statement of issue. In the case of the Ogden shops, the closedown, for a period of four weeks commencing on July 19, coincides with that which had been sought by the Local Federation, so there is no dispute as to the vacation period there, even although there may have been no explicit "agreement". In the cases of the Weston and Angus shops, however, the closedown dates are different from those sought by the Local Federations, and the union protests the company’s unilateral action in setting other dates.
While the collective agreement contemplates agreement between the parties in this respect, it does not make express provision for the situation - which has arisen here - where no agreement is reached within the time provided. The fact that the parties have not agreed does not, in my view require the conclusion that the company may then unilaterally set closedown dates in the exercise of any general power of management rights. (I do not rely on the absence of any specific power in that regard in the collective agreement). While it may be that it would be appropriate for the company to take a position, as by announcing proposed closedown dates, it would nevertheless be open to the union to file, as it has, a timely grievance alleging, as here, that such dates are not in keeping with what is contemplated by the collective agreement. If it were otherwise the company could, as the union argues, easily circumvent the stated intent of the agreement by simply withholding its agreement to vacation dates until the time set out had expired.
In the instant case, the company’s failure to agree was not, I find, an attempt to undermine the collective agreement, but was simply an insistence on the importance of its own business requirements. On each side, the parties positions are legitimate. The union seeks, on behalf of all its members in the main shops having the appropriate entitlements, the "optimum" vacation period. The company, in the interest of the efficient utilization of its equipment, seeks to stagger the closedowns of the main shops so that there is at all times one shop which is open and maintaining a balanced work force.
From the material before me it is clear that the "optimum" vacation closedown period, from the employees’ point of view, would consist of the last three weeks of July and the first week of August. It may be that from the company’s point of, view, any summer closedown would be undesirable, it being a period of high utilization of its equipment, with a consequent need for quick and efficient repair and maintenance work. There is, however, no real doubt that summer shutdowns are contemplated under the collective agreement. In the recent past, until 1981, all three main shops had been closed down at the same time. Very substantially increased equipment costs, however, have led the company to seek to increase the efficiency of its use of equipment. To this end, it seeks a closedown schedule under which there will always be at least one shop open (during the summer vacation period: a closedown in the Christmas-New Year period does not have the same effect since there is extra equipment available at that time).
While what is at issue here resembles to some extent an "interest" arbitration, (with respect to which I would have no jurisdiction), I think it is, not in fact such, but is indeed a "rights" arbitration, the rights in issue, arising under the collective agreement, being those relating to a vacation period, and to the maintenance of efficient operations. The collective agreement being silent as to the determination of those rights after the time set out for agreement thereon, but nevertheless maintaining those right’s in a general way, can only be given effect to, in my view, by applying a standard of reasonableness, having in mind the nature of the conflicting interests, and the practicalities of the situation, as, far as these have been put before me.
Although there is no very detailed evidence before me on the point, it is my conclusion that to give employees at each location their preferred dates where the result would be to close down all three shops for the same four-week period would, in current circumstances, impose an undue burden on the company and lead to a substantial loss of efficiency and perhaps of business. While many repairs may be effected at running shops, and while special attention to programmed maintenance, as well as the stockpiling of some types of equipment in anticipation of need may permit many cases of equipment failure to be dealt with, I think it still remains that a four-week shutdown of all main shops during the company’s busiest period can no longer be considered reasonable.
On the other hand, the inconvenience to be expected from a shorter period of overall main shop close down is, I think, much less. Programmed maintenance can be maintained, overall, well into what would otherwise be a period of closedown. Further, since each shop is to be closed at some point in any event, there would be a need, even under the company’s schedule, to transport certain equipment considerable distances (depending on its location) at such times. In the case of an abbreviated overall shutdown, an only slightly increased delay would, in many cases, be substituted for that which would occur in any event.
From the employees’ point of view, the imposition of a vacation schedule calling for one shop always to be open, effects a serious change in vacation periods, where four-week periods are involved. Even where a system of rotation is used (a suggestion which has evident attraction particularly, I think, with respect to the schedule to be set out below), the effect on employees must be considered an adverse one.
In 1981 there was agreement to a certain staggering of the vacation closedowns, although there was a period when all main shops were closed. In my view, such an arrangement constitutes a reasonable, accommodation of the interests of all those affected. The material before me does not establish that the company experienced any substantial incidence of serious problems as a result of that schedule, although there were no doubt some.
For all of the foregoing reasons it is my conclusion that a staggered schedule of vacation closedowns is appropriate but that it is not necessary, in the reasonable application of the provisions of the collective agreement, that there always be at least one shop open. Having regard to all of the circumstances, it is my award that the closedown at Weston Shops begin on July 12, 1982; that at Ogden Shops on July 19, 1982; and that at Angus Shops on July 26, 1982. This will create a two-week period in which all three shops will be closed down (subject to the performance of maintenance work, or certain special tasks).
DATED AT TORONTO, this 3rd day of May, 1982.
(signed) J. F. W. Weatherill