AD HOC SUMMER VACATION

AWARD

The Union grieves that the Company has violated the vacation booking provisions of the collective agreement by requiring that employees in the Symington Locomotive Reliability Centre (LRC) bid their summer vacation time on the basis of seniority by shift. It is common ground that previously the facility has allowed employees to bid their summer vacation time on a seniority basis, without regard to their shifts, or any other sub-grouping.

The dispute and joint statement of issue, filed at the hearing, read as follows:

DISPUTE:

Whether vacation must be awarded in the seniority order of the entire Symington Locomotive Reliability Centre or whether the Company can allot vacation by shift.

JOINT STATEMENT OF ISSUE:

On January 11, 2000, following discussions with the Union, the Company posted a notice advising employees that vacation would be allotted in seniority order by shift at the Locomotive Reliability Centre at Symington Yard, Winnipeg, Manitoba.

The Union grieved alleging that the Company’s decision to award on a shift basis, in seniority order, violated rules 46.3 and 46.4 of collective agreement 12. The Union also argues that, in any event, the principle of estoppel prohibits the Company from effecting the change in allotting vacation.

The Company denies any violation of the collective agreement.

The following sections of the collective agreement are pertinent to the dispute:

SECTION 3

46.3 (a) An employee who has become entitled to a vacation with pay shall be granted such vacation time within a twelve month period immediately following the completion of the calendar year of employment in respect of which the employee became entitled to the vacation.

(b) Applications for vacations from employees at other than main shops filed between December 15 of the previous year and January 31, shall insofar as is practicable to do so be given preference in order of seniority of the applicants. Such applicants will have preference over later applicants. Applicants will be advised in February of the dates allotted them and unless otherwise mutually agreed employees must take their vacation at the time allotted. Notices of vacations will be posted to December 15. The dates mentioned in this Clause 46.3(b) may be changed by mutual agreement between the Local committee and the proper officer of the Railway.

(c) Unless otherwise mutually agreed, employees who do not apply for vacation prior to February 1st shall be required to take their vacation at a time to be prescribed by the Company.

SECTION 4

46.4 (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.

The facts are not in substantial dispute. For a good number of years the Company has allowed bargaining unit employees in the Symington LRC to book their summer vacation time solely on the basis of seniority, without regard to shifts, classifications or any other groupings. The Company submits that in recent times that system has caused it substantial difficulty with productivity and the timely servicing of locomotives. For example, in 1999, as a result of the bidding system seven of eight available heavy duty mechanics booked their vacation at the same time. The figures tabled by the Company do reveal a substantially uneven distribution of vacation times, with resulting disruption to the scheduling and completion of work.

The first position of the Union is that the awarding of vacations on the basis of shifts violates the provisions of rule 46.3(b) of the collective agreement. In the Union’s submission the language of the provision discloses two criteria to be applied in the awarding of vacation times: the time at which the employee submits his or her application and the seniority of the employee. The Union submits that under that system employees who submit their application prior to the deadline, extended to March 1 of 2000, must be given preference over employees who miss the deadline. As among those who apply within the deadline, all are to be given preference solely on the order of their seniority, insofar as is practicable. The Union stresses that seniority of employees under the terms of the collective agreement, and in particular as reflected in rule 23, is not based upon shifts, but solely on the basis of their standing within the seniority terminal on the basis of entry into the employees’ respective classifications.

The Union submits that the difficulties pleaded by Company to justify the change in its vacation bidding system do not meet the standard of impracticability contemplated within rule 46.3(a). In the Union’s submission practicability would, for example, come to bear in the scheduling of the vacation of employees who perform an essential service, such as crane operators in emergency auxiliary service. Stressing that the Living Webster’s Dictionary defines practicable as “capable of being effected or performed; feasible; capable of serving a use or purpose”, the Union’s representative submits that the Company can make adjustments, schedule relief assignments and, if necessary, force junior employees to fill positions vacated by reason of employees taking their vacations. It maintains that it is not necessary for the Company to revert to a shift basis in the assignment of vacations at the Symington LRC, and that its initiative in that regard violates both the spirit and letter of rule 46.3(b) of the collective agreement.

In the alternative, the Union argues estoppel. Stressing that the present system of vacation bidding has been in effect in the Symington LRC for approximately twenty years, the Union’s representative argues that employees have come to rely the system, with the senior most employees in the plant knowing from year to year that they can expect to obtain their vacation choices, and have made personal plans accordingly. The Union submits that for the Company to change the process has a detrimental effect on the employees, and that it should not be allowed to do so until the parties have another opportunity to address the issue at the bargaining table. Alternatively the Union suggests that reasonable advance notice would be required, a concept which it stresses is reflected in Appendix 4 of the collective agreement, which governs the splitting of vacation entitlements, with the parties being able to terminate the arrangement upon relatively extensive notice.

I turn to consider the merits of the grievance. In doing so I find it useful to reflect upon the prior jurisprudence generally governing the issue of practicability in the booking of annual vacation periods by seniority. The issue arose between the Company and the then Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, in a case heard in 1969, CROA 175. In that grievance a warehouseman at Cornerbrook maintained that his entitlement to bid his vacation by seniority was violated by the Company, where the Company decided to separate freight shed and office employees for the purposes of vacation bidding. In that case the operative provision of the collective agreement read as follows:

22.16 Application filed prior to February 1st, in so far as it is practicable to do so, will be allotted vacation during the summer season, in order of seniority of applicants, and unless otherwise authorized by the officer in charge, the vacation period shall be continuous. Applicants will be advised in February of dates allotted them, and unless otherwise mutually agreed employees must take their vacation at the time allotted.

While in that case the designation was not on the basis of shifts, the issue was directly analogous to the dispute, dealing as it did whether the Company could properly subdivide group within the same seniority pool for the purposes of bidding annual vacation. Arbitrator Weatherill had little doubt that the Company was entitled to do so, as reflected in the following passage from the award, which dismissed the grievance:

It is clear from article 22.16 that dates for vacations are to be allotted by the company, and that this is to be done during the summer season and in order of seniority “as far as it is practicable to do so”. The question is whether it would have been practicable for the company to have treated at least the Corner Brook employees as coming all within one group for purposes of vacation. Put another way, the question is whether the company properly treated the office and freight shed employees as constituting separate groups for this purpose.

I am unable to agree with the union’s contention that the word “practicable” should be read as meaning “capable of being done, effected or performed by human means, or by powers that can be applied”. Of course employees could have been given vacations on the basis the union suggests. If this was what was intended, there would have been no necessity for the qualification of “practicability” in the collective agreement. The term was of course intended to have some meaning, and I have no doubt that the meaning is that vacations should be allotted in order of seniority as long as that does not disrupt unduly the efficient operations of the company. Where there are two aspects of the company’s operations, as here, it is obvious that the efficient continuation of the operations of each must be considered. It would not in fact be practicable for the company to allocate vacations in the manner contended for by the union.

A similar issue arose in CROA 244, a dispute between the Company and the then Canadian Brotherhood of Railway, Transport and General Workers. In that award the arbitrator sustained the decision of the Company to depart from a pure seniority basis in the assignment of vacation dates in its freight shed in Toronto, by adding the factor of classification as a further qualification for vacation entitlement. The Union submitted that the Company violated the collective agreement by requiring employees to bid for their vacations on a seniority basis by classification. The Arbitrator rejected the grievance and commented on the language in question as follows:

In general, the times at which vacation may be taken are governed by article 9.14, which is as follows:

9.14 Applications filed prior to February 1st, in so far as is practicable to do so, will be allotted vacation during the summer season, in order of seniority of applicants, and unless otherwise authorized by the officer in charge, the vacation period shall be continuous. Applicants will be advised in February of the dates allotted them, and unless otherwise mutually agreed, employees must take their vacation at the time allotted.

This provision, it may be seen, says nothing as to the number of employees who may be absent on vacation at any one time. It would seem from the article that the company could properly determine, at least in the first instance, how many employees could be away at any one time, and in view of the reference of practicability in the agreement, it would seem clear that this could be done on a regional, local, shift, group, or classification basis. It would be a question to be determined in the circumstances of any particular case whether the company properly treated any grouping of employees as separate for vacation purposes. This matter is, however, subject to mutual agreement.

In the Arbitrator’s view the foregoing awards give substantial guidance to the resolution of this dispute. They stress that collective agreement language which gives a right to vacation bidding on the basis of seniority does not exclude other factors where the provision contains the qualifier “insofar as is practicable to do so”. As Arbitrator Weatherill stressed, practicability in that context does not merely mean that it might be possible to do a certain thing. The concept is clearly intended to be weighed by reference to the maintenance of the Company’s operations without any undue disruption of normal work schedules and productivity. This Arbitrator agrees with the Union that the concept of practicability cannot be invoked by the Company solely as a means to avoid making adjustments to solve its production problems during vacation periods. Where, however, there is evidence that the assignment of adequate relief staff and the transferring of the necessary trades persons from one shift to another to meet production demands is unreliable or unduly disruptive, the standard of impracticability may be met.

The Arbitrator has substantial difficulty with the first position of the Union, namely that the language of rule 46.3(b) does not, on its face, allow of the assignment of vacations on a seniority basis by shift. The contrary seems clearly to be the case in practice, across the system where the collective agreement applies as a whole. It is not disputed that at a number of locations in Canada, including, for example the Symington Heavy Repair Centre, Walker Yard in Edmonton and MacMillan Yard in Toronto, vacation allotments are in fact based on both classifications per shifts and minimum percentages of staff being allowed to be off on vacation at any given time. Nor can the Arbitrator agree with the Union’s representative that such arrangements must necessarily be the product of local agreements to deviate from the requirements of the collective agreement. The only areas in which local union officers can make agreements to vary the provisions of the vacation bidding articles of the collective agreement relate to an adjustment of the dates for bidding as provided under rule 46.3( b) and the arrangements to be made for carrying on work, as contemplated under rule 46.4(a). The concept of mutual agreement does not, on the face of these provisions, extend to whether vacation bidding is to be on the basis of shifts, classifications or any other grouping. In the result, the Arbitrator is satisfied that it is open to the Company to resort to the assignment of vacation entitlement by shifts, as indeed it has done in parts of its operation other than the Symington LRC, subject of course to the general requirement of practicability.

In the instant case, therefore, the issue becomes whether the Company has demonstrated that the bidding of vacations without regard to shifts or any other sub-groupings does bring a measure of impracticability to bear which would justify the Company’s initiative. Having carefully reviewed the evidence, I am satisfied that the Company’s case is made out. In fact, as illustrated on the draft bidding chart which the Company tendered in evidence, it is not clear that the system which it proposes do bring into effect substantially inconveniences the senior most employees in the Symington LRC. While some minor adjustments will obviously have to be made, the system proposed by the Company is, in the Arbitrator’s view, reasonably balanced and, most importantly, necessary to avoid the very real disruption, and documented delays in production which the prior system has produced.

Nor is the Arbitrator persuaded that this is an appropriate case for estoppel. While it may be that employees have become accustomed to the prior system, and that certain of them may have expectations as to the time they may successfully bid for their vacation period, this is not a circumstance where irreparable harm will result to any of the employees involved. The very system of bidding vacations in the January period is to allow employees the longest possible notice of the actually scheduling of their vacation. In that circumstance there is considerable latitude for the employees affected to make such adjustments as may be necessary in their own personal and family plans. This is plainly not a circumstance of irreparable hardship.

For all of the foregoing reasons the Arbitrator is compelled to conclude that the language of rule 46.3(b) does, as the Company contends, allow it to conduct vacation bidding in the Symington LRC on the basis of seniority by shifts. That has been made necessary by the disruptions in production and work schedules occasioned by the broader based system of bidding solely by seniority, in effect in the past. By introducing into the Symington LRC a system of bidding vacations by seniority on a shift basis, as has been in effect at many locations elsewhere in the bargaining unit, the Company has not violated any provision of the collective agreement. The grievance must therefore be dismissed.

Dated at Toronto, February 18, 2000

_________________________________________

MICHEL G. PICHER

ARBITRATOR