SHP 348






IN THE MATTER OF THE Thanksgiving Day Grievance



SOLE ARBITRATOR: Donald R. Munroe, Q.C.



There appeared on behalf of the Union:

Theo Arsenault



There appeared on behalf of the Company:

Wayne Carkner


A hearing in this matter was held in Vancouver, B.C., on May 7, 1991



The parties agreed that I was properly constituted as an arbitration board under their collective agreement with jurisdiction to resolve the issues in dispute.

The facts giving rise to this grievance are neither complex nor disputed. Local 170 is a constituent union of the Council of Trade Unions on B.C. Rail. In the spring and summer of 1990, the Council and the Railway were engaged in collective bargaining with a view to the renewal of the collective agreements covering the Railway's unionized employees. In late summer, the negotiations reached an impasse. On September 4, 1990, the Council and its constituent unions declared a strike. There is no dispute that the strike was lawful. From the inception of the strike until its conclusion on September 28, 1990, the unionized employees of the Railway engaged in lawful strike activity including, of course, not working.

On October 8, 1990 (ten days after the conclusion of the strike), Thanksgiving Day arrived. Thanksgiving Day is a General Holiday within the meaning of Rule 43.1 of the collective agreement. Thus, the employees in the bargaining unit were expecting to be granted a holiday with pay. However, the Railway declined to pay them for the holiday, relying on Rule 43.1.3(c) which states that:

In order to qualify for pay for any one of the holidays specified in Rule 43.1.1, an employee...

(c) must have rendered compensated service on at least twelve (12) of the thirty (30) calendar days immediately preceding the General Holiday. This Rule does not apply to an employee who is required to work on the holiday.

Note: An employee who is on WCB prior to the general holiday(s) and who is entitled to wages for a minimum of one (1) shift in the thirty (30) calendar days prior to the general holiday shall be entitled to pay for the holiday.

In the submission of the Railway, the situation is clear and straightforward. The employees did not render compensated service to the Railway on at least 12 of the 30 calendar days preceding the Thanksgiving Day holiday. The word "must" which is the opening word of sub-paragraph (c) above, is universally regarded as having imperative or mandatory effect. Accordingly, for the union to succeed in this grievance, it should be required to point to a provision of the collective agreement which would relieve the employees against the fact of non-compliance. This, the union cannot do. The only provision of the collective agreement which does offer such relief is the "Note" at the end of sub-paragraph (c), but that only applies to the situation of a compensable injury. Nowhere in the collective agreement is relief offered against the apparently mandatory effect of Rule 43.1.3(c) on account of the employees engaging in a lawful strike. It follows that the employees did not qualify for payment for the Thanksgiving day holiday. In brief summary, that is the essence of the argument on behalf of the Railway.

The Railway also places reliance on an award dated September 17, 1985, in which Mr. Rope was required to interpret and apply similar qualifying language found in a collective agreement between the Railway and another union. There, the qualifying language stated that the employee "must be entitled to wages", rather than "must have rendered compensated service", but was otherwise identical (except that the "Note" did not then exist) to the qualifying language in the case at hand. The question raised before Mr. Hope was whether an employee who was absent on WCB leave should be considered "entitled to wages" within the meaning of the subject provision of the collective agreement. Mr. Hope answered that question in the negative. Interestingly, it was because of that award that in a subsequent round of collective bargaining, the "Note" was added to the qualifying language now contained in the various collective agreements in force on the Railway.

It should be recorded at this stage that no attempt was made by the Railway to operate the trains during the period of the lawful strike. Nevertheless, counsel for the Railway took some exception to the assertion by counsel for Local 170 that the striking employees were not scheduled by the Railway to work during such period. In my view, the union's characterization of the situation is correct as a matter of law. No doubt, an employer whose employees are on strike is entitled, by all lawful means, to attempt to maintain operations: for example, by redeploying management personnel or by hiring replacement employees. But for the period of the lawful strike, the employer does not have the right to schedule the striking employees to be at work and to perform their usual bargaining unit tasks. If the striking employees have the lawful right to withdraw their labour, or, put another way, if the employer is not in a position to compel attendance at work by the imposition or threat of industrial discipline, it becomes meaningless to speak of the employer scheduling the striking employees to go about their usual work irrespective of the fact of the strike. See Olsonite Manufacturing Ltd. (1977) 14 L.A.C. (2d) 234 (O'Shea) and General Refractories Co. of Canada Ltd. (1985) 20 L.A.C. (3d) 380 (Davis).

The awards I have just cited form part of the jurisprudential stream I am asked by Local 170 to follow in determining the merits of the present grievance. The first case cited by Local 170 is Hilton Mines Ltd. (1967) 18 L.A.C. 211 (Lalonde). It is reported in headnote form only. The headnote reads as follows:

The collective agreement provided for payment for certain holidays, provided employees worked the last regular scheduled shift immediately preceding the holiday and the first regular scheduled shift following the holiday. The holiday in question was on August 1, 1966, and the employees had been on strike for some time prior to that, the strike being settled by ratification of a memorandum of agreement on July 31st. Held, by a majority of the board of arbitration, P.F. Renault dissenting, there had been no regularly scheduled shifts since the commencement of the strike, and entitlement to holiday pay was to be determined by reference to the last regular scheduled shift prior to the beginning of the strike.

In chronological sequence, the next award is Olsonite Manufacturing Ltd., which is cited above. There, the collective agreement stipulated that entitlement to pay for a statutory holiday depended upon the employee having "... worked on his last scheduled working day prior to the holiday and on his next scheduled working day after the holiday", the only exception being an illness substantiated in writing by a doctor's note. The grievors claimed holiday pay for a statutory holiday which occurred the day prior to their recall to work following the termination of a lawful strike. The strike had commenced mid-day on April 15 and had come to an end on May 25. The statutory holiday was on May 24. The reason why the grievors were not recalled until May 25 was a shortage of raw materials. The company argued that the grievors were not entitled to holiday pay for May 24 because they had not completed their last scheduled shift when they left work at the commencement of the strike on April 15. The arbitrator said this (at p.236):

Having considered all the evidence and the representations of the parties, I find that at the time the lawful strike commenced at noon hour on April 15th, the company's right to schedule work for the striking employees automatically ceased. Even though the company intended that the employees should complete the work it had scheduled for April 15th, and indeed for the balance of the month, the company's right to schedule its employees to perform that work ceased to exist at the time the lawful strike commenced. Even though a company may ask employees to work during a strike, a company has no right to schedule employees to perform work during the duration of a lawful strike. If a company had the right to schedule employees to work during a lawful strike, the company could enforce that right by disciplining employees for failing to work. There can, of course, be no question but that the company has no right to discipline employees for not working during a lawful strike. The right to schedule work for employees did not revive until the strike was settled.

Then, at p.237, the arbitrator made this important observation:

I therefore find that the grievors satisfied all the requirements of art. 36.2 of the collective agreement, since they worked on the last day prior to the holiday that the company had the right to schedule them to work, that is, up until noon hour on April 15th, and they also worked on the day immediately following the strike.

(emphasis added)

It might be argued that, strictly speaking, the arbitrator in Olsonite was not correct in his assertion that the grievors had worked the last day prior to the holiday "... that the company had the right to schedule then to work", for the undeniable fact is that the company did have the right to schedule the grievors to work the full day on April 15 (and subsequently) at the time the schedule was initially made up; and it hardly needs saying that the intervention of lawful strike was something solely in the hands of the union and the grieving employees. Looked at in that light, and upon an unyielding application of the qualifying-day language of the collective agreement, the arbitrator might well have justified a conclusion different from the one reached.

Indeed, a different conclusion on precisely the reasoning just suggested can be found in 3M Canada Inc. (1982) 4 L.A.C. (3d) 420 (M. G. Picher) an award which drew explicit disagreement in the 1985 award in General Refractories (cited earlier). I quote from pp. 382-83 of General Refractories:

It is clear that as of March 6th when the work schedule for the succeeding week was posted the grievor was scheduled to work on March 11th. The question then becomes whether that scheduling is to be viewed as surviving the concerted action of the employees on March 9th to withdraw their labour by means of strike action which they had a legal right to do. In my view the exercise of that legal right carries with it the corollary that there no longer exists a right in the employer to schedule such employees to work. While the general law of this province provides a right in the employer to maintain his operations by the use of non-striking employees, strike replacements and/or non-bargaining unit personnel, that does not speak to the right to schedule striking employees. The issue which is raised is not the employer's right to schedule work but the right to schedule striking employees to do such work. For that reason I prefer the analysis of the arbitrator in Re Olsonite Manufacturing Ltd. and U.A.W. Local 195 (1977), 14 L.A.C. (2d) 234 (O'Shea), to that expressed in Re 3M Canada Inc.. Industrial Mineral Products Division and United Cement, Lime & Gypsum Workers (1982), 4 L.A.C. (3d) 420 (Picher). I quote, with approval, the Olsonite analysis....

In my view, the explanation for the awards in Olsonite and General Refractories does not lie in a close interpretation of the qualifying-day language of the collective agreements, and then an application of that language to the particular facts. Rather, it lies in a purposive understanding of qualifying-day provisions generally; in the arbitral conclusion that the operation of such provisions in collective agreements implicitly presumes the existence at the material times of a particular legal relationship giving rise to corresponding rights and obligations; and in the further arbitral conclusion that that presumptive substratum simply is not present where a lawful strike or a lockout has been declared: c.f. Township of Muskoka Lakes (1981) 1 L.A.C. (3d) 125 (MacDowell) in which the "lockout scenario" was examined and where, at p.137, the arbitration board observes that, "We do not think the (qualifying language) was meant to deal with this situation...."

While the qualifying language placed before the arbitrators in the awards cited to this point may arguably be distinguishable from the language placed before me, the same cannot be said of the contract language or the facts in Canadian Forest Products Ltd., November 29, 1982 (Owen-Flood). There, the collective agreement provided as a qualifying condition to the receipt of statutory holiday pay that the employee must have :.. worked at least one (1) day during the sixty (60) day qualifying period just preceding the holiday". As noted at p.2 of the award, "Due to the work stoppage, the grievors did not work at least one day in the sixty day period just preceding the holiday."

At pp. 15 et seq., the arbitrator said this:

... the real question before me is whether or not on the basis of the collective agreement I may reasonably infer that it was never intended that a period when one could not work was meant to be included as part of the sixty day qualifying period.

Here, I must digress to observe that it seems to me and I so find that the purpose of the section is to give the benefit of the statutory holiday to those who, having had an opportunity to work during the sixty day qualifying period, did in fact work. If they decline to work when there is work available, then they cease to qualify.

That, of course, brings up the question as to what is the effect, if any, of a strike or lockout or indeed a combination strike and lockout?

... the clause or condition must be capable of performance by each party. If without fault of the person seeking to qualify, the work is not available, then under the wording of the clause at bar it cannot be said that the qualifying period is running. In the case at bar, the work was not available due to... a strike.

... nothing in my view flows from whether the reason for the work not being available was a work stoppage caused by a strike or a lockout. A strike or a lockout is the exercise of a legal right and in my view, the exercise of legal right does not produce any penalty or advantage to either party under the wording of the collective agreement, insofar as Section 4(b) of this agreement is concerned.

I think that the wording in the case at bar implies that work will be scheduled. If the work was not scheduled, then the qualifying period does not run. on the evidence before me, no work was scheduled because of the strike for the sixty day period in question.

... the work must be scheduled and there is no suggestion that the work was scheduled insofar as... the grievors are concerned.

... for the reasons mentioned, I allow the grievance. ...

While some of the reasoning in the Canadian Forest Products award is perhaps over-broadly stated, I believe the central theme is sound: that in most instances, it is reasonable to infer that a qualifying-day provision of a collective agreement was not intended to defeat a claim for statutory holiday pay where the apparent failure to satisfy the provision is attributable to the lack of scheduled work due to a lawful strike or a lockout. I spoke earlier in this award of what I understood to be the underlying rationale for some of the earlier-cited awards. Those comments should be taken as repeated here and as forming part of my reasoning.

While the matter may not be altogether free from doubt, I believe this award represents what seasoned labour relations practitioners would accept as a sensible judgment about who should enjoy the benefit in question in this penumbral situation. It is consistent as well with the general arbitral tendency to construe liberally the provisions of a collective agreement establishing "earned benefits" like statutory holiday pay; put differently, to narrowly or strictly construe or apply any language relied upon to withhold such benefits. And finally, it is within the mainstream of the arbitral jurisprudence on the precise point in issue.

The grievance is allowed. I will remain seized of the matter to ensure correct implementation.


(sgd) Donald R. Munroe, Q.C.