AH572

IN THE :MATTER OF AN ARBTI'RATION

BETWEEN: CANADIAN NATlONALRAlLWAY COMPANY

AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS SYSTEM COUNCIL NO. 11

AND IN THE MATTER OF A GRIEVANCE OF A MATTER RELATrnG TO TIlE PRACTICE OF BANKrnG TIME

SOLE ARBITRATOR: IF.W. Weatherill

A heal,ilJ.g in this matter was held at Montreal on January 24,2007,

K. Stuebing, Jor the Union.

C. Gilbert and A. Y. de Montigny. for the Company,

AWARD

The Dispute and J0111t Statemeltt ofIs!lUe in tbls matter are as follows: Dispute

Company decision to cease allowing employees covered under the Signal and Communication Installation urnbrella to bank time i'n exchange of Lime 'Off during the Christmas holiday perjod.

JOillt StatemclI.t ofIssue

On February 2, 2005, the Company informed the Union chat employees would no longer be allowed to bank tim.e in order to have additional time offduring the Christmas Holiday period of2005 and that it would apply the-terms o/th.e collective agreement with respect to overtime.

JiVhile acknowledging that collective agreement 11.1 does not contain any provision with l'esper;t to bcmking time., the Union still maintains th(~L the Company was estopped from discon.tinuing the practice within the S&C installatio'fl department. The Unionju7'the7' contends that the Company failed to provide satu,factory reasons for such cCl11.ceilation.

The Company denies the Union. '8 contentions and declines the Union's request.

It is clear that there has existed a practice of allowing installations employees - employees in the installation division of Signals and COlmnl.lnications to "bank" overtime in order to have additional time off during the Christmas holiday period, additional, that is, to the Chlistmas and other rest days which the collective agreement provides ill respect ofiliat period. TIlis is particularly important in those cases, mld there are mat1Y of them, where employees work a considerable distance fron) their homes, and are required to live away from home during their work periods. This is accommodated to som.e extent by alT~l1lging work schedules of tour days onl three days off, or in some cases eight days OIl/three days off, but even with alTangements such as these, there is 110 doubt that it is a benefit to employees In these circumstances to be able to bank overtime and have additional time offat the Christmas season. This an'a1''1gement did not, in the past, cause significant

2 difficulty for the company, and reflected a reduced workload and more difficult working conditions in the winter season. A:b well, the union provided a "vohmteer list" of employees available to respond to calls for installation work. during the holiday peliod, should the need arise.

The practice has varied on different Regions. hl the Western Division, following a substantial redl1ction in the work force, it has not been followed sillce 1982, and has since been discontinued in celtalll other areas. No grievances appear to have been filed in those cases. In late December, 2004, employees apparently on the "volunteer lisf' were very slow to respond to calls mgently required to be done in the Northam Ontario Zone. This may have been one of the considerations 1.11at led the company to annotmce, inli ebl1lary, 2005, that it would no longer allow eIJlployees to ban1c time in order to have extra time ill the Christmas season. As well, the company cited chauges in technology and the scheduling of operatiollS which allowed the work of these employees and other to continu.e during this period, although it has established minimum availability requirements which still would leave some employees with the choice ofrequesting vacation or work in the Christmas peliod,

The practice of allowil1g the banking oftime has existed 011 the Eastern regions for some fifty years. It does not appear from the material before me, however, that the practice was in some way automatic: in recent years at least the company has made a decision each year, in late October or early November, as to the number of hours to be banked. (This evidence was received subj ect to an objection by the union; that objection will be dealt with below, as well as an objection by the company to reference beillg ma.de to certain other material.) 111ere is no ma.terial before me relating to any discussions between the paJ.1ies with respect to the banking of time in any year, although the company's illtemal CODmlUlllcations indicate that employees would have an option whether or not to banl{ time, and that supervisors were to make "suitable an'angemel'1ts" with their staff.

At the hearing of this matter. the union (which b.ad given the company some two weeks' notice of its intention to do so) referred to certain articles of the collective agreement which may be

3 said to refer, either implicitly or explicitly, to banking time. The company objected to the introduction of such evidence, whl.ch appears to contradict the words in thejoint statement ofissue: "that collective agreement 11.1 does not contain allY provision with respect to banking time'). Article 13 .19 of the collective agreement contemplates that the parties shall jointly submit a jOint statement of issue, although it also conten'lplates ex parte statements where the pmties cannot agree upon a j oint statement. There is no language which would limit the parties from presenling ma.teria] going beyond the joint statement hl the instant case tbe 111110n seeks to refer to certain provisions in the collective agreement. That document is of course properly and necessarily before me, as a foundation of arbitral jurisdiction. To accept the company's objection that material provisions of the collective agreement cannot be referred to because their existence is denied in the joint statement wonld have the effect of amending the collective agreement itself That is something which the parties may do, but it does not appear that that is what they sought to do in this case; it would take very clear language to achieve such a result.

It would appear that the company, at or about the time it advised the union it would no longer make at:rangements for banking time; advised the uJJion that t11e ma.tter was t'lot dealt with in the collective agreement. The union appears, inexplicably, to have accepted that, but subsequently realized that that was mistaken, and now seeks to refer to the material provisions of the collective agreement ill argument. On this point, I am in agreement with what is said by arbitrator Picher in SHP Case 373:

There is nothing, however, in the collective agreem.ent to support the suggestion that whell one party has made an error, in good faith. in the executic)1t of a joint statement offacts. that it cannot seek correction of that error prior to or at the commencement ofthe arbitration hearing. While thejoint statement ofissue a:nd jOint statement offacts are a procedural device developed by the parties to expedite th.e hem'ing oj a grievance, they are not intended to he so rigidly applied as to defeat the substan.tive rights of either

4 party by a technical irregularity, A board of arbitration constituted u;n.cler the Canada Labour Code is, subject to the terms of the collective agreement, charged with following a fair and liberal procedure wh.ich will allow the pa.rties the fidlest opportunity to explore the substance o/their claim with respect to the alleged violation ofthe tenns ofa collectiveagree:ment. Absent clear ianguag;e in a collective agreement to the contrary, undue rigidity in the interpretation or application ofgrievance documents is to be avoided,

The ImlOn, as noted above, obj ected to the receptiOll of certail1 ill'temal company documents showing, over a mnnber of years, that the company did indeed take a decision with 'respect to arrangements fbr bat'lldng time In the fall of each year, While the union was llot a party to this conespondence, it is admissible as showing what procedures the company followed internally, although it does not go to any interactions there may have been between the parties. It does show that company officers were expected to make arrangements in respect of banking with their employees in each of those years. Certain other documents, submitted by the union, show comnnmications to employees adViSlllg how and what time was to be banked in a particulm: year,

TIlere are, in fact, two provisions in the collective agreement which, deal, expressly or otherwise, with the matter of ballking time. The first of these is article 19.3(d)) which is as follows:

19.3 In order to qual(fy for pay for anyone of the holidays ::.pecified in Article 19.1, "n employee

(d) 'When S & C gangs, otherwise continuously employed, are closed down for Christmas and New Year's holidays to allow employees to retum to their homes, and where employees do affected are. by mutual arrangement and as a consequen,ce of such close-down, required by the Company to work additional days over Clnd above their normal workweek prior to such close down, the additional days so worked will be

5 recognized as shifts or tours of duty for which the employee is entitled to wages in the application of Clause (c). Where such close-doWll occurs and the Company does not require the employees to work additional days as a consequence thereof; the number of working days in the period of dose~down will be credited in the application of clause (c).

Although it may be taken to cOlmrm that there has been a practice, tl1is is not a clause which provides that there shall be banking time, but simply refers to a modification of the effect of clause (c), which requires a certain amount of work to be pCliOlmed to entitle employees to holiday pay, The most that can be said, in my view, is that article 19.3(d) contemplates the possibility of a system of bunking days and deals with an aspect ofthe system when such days are arranged.

Artjcle 5.7(b) of the collective agreement is as follows:

An S & C 1'estman, if requirecl to work in excess ofeight (8) hours on a regular work day or to work on a rest day. shall be compensaied in accordance with Article 6 of this Agreement; except that present understandings ofthe accumulation of "bank time" will con.tinue in effect.

Article 6 of the collective agreement deals with overtime and cal]s. Article 5.7(b), again" while contemplating that there may be "bank time" (at least for some employees), does not requite it. Rather, its effect is that where bank time is arranged, the extra time worked prior to Christmas, to be banked for the holiday, will be paid for at straight time, rather than at overtime, which would otherwise have been the case.

'While the parties were in euor in stating, ill the joint statement, tha.t the collective agreement contained no provision "with respect to banking time". and while it is, as I have f01..Uld~ appropriate that this eJ.Tor be con'ected, it remains that the collective agreement contains no provision calling fot" as opposed to contemplating the possibility of bank time. The clauses referred to do, as I have ft

6 said, SUppOlt the existence of a practice, with respect t-o which there is really no doubt, but they do not indicate that the company is bound to continue it. The company would, accordingly. not be in violation of the collective agreement in bringing an end to the practice.

The esseJJ:tial argl.l,ment in the matter, of course, is whether the company is bound by the practice which it has in fact followed for llUIllY years, and in particular whether it is estopped from continuing that practjce. The elements of estoppel are clearly set out in Brown and Beatty, Canndian Labour Arbitration, (4111 ed.) at 2:2211:

• - a dear and u.neq-uivocal representation, particularly where the representation occurs itt the context of bargaintng; which may be made by words or con.duct; or in some circumstances it may result from silence or acquiescence; intended to he relied 011. by the party to whom it was dirocted; although that intention l'nay be inferred from what reasonably should have been understood; some reliance in the form ofsome action or inaction; and detriment resulting therefrom.

In the illstant case, there was 110 representation by words that the practice of banldng time would continue. There was certainly no representation "ill. the context ofbargaining" ~ indeed, as will be noted below, the contrary appears to be the case. The strength of the union's case is in the length of tim.e the practice has continued· in the east. Its weakMsses are three: the fact of annual decisions, althou.gh these might perhaps have been tak:en by employees as merely announcements of liming or of the number of shifts to be banked; the fact of the discontinuance of the practice OJ1 another region (best C011sidered as an assertion that the annual decision was witltin the compani s discretion, not as a "representation" that the system would continue in the east) although not in the west); and (going to the matter of detrimental reliance») that the union had sought to negotiate a provision relating to ball1dng time in the negotiations leading to tile present agreement.

On October 17,2003, the Senior System General Chairman ofthe union wrote the company's Vice President Labour Relations setting out a list of demands relating to changes to be negotiated in the collective agreement. These inchlded the following:

7 Add new {~rticle 6. 5; "Upon agreement between the frlrtployee and supervisor, an employee may elect to receive time oi! in lieu of payment for overtime worked, at the rate of 1 !6 hours offfor very overtime hour worked. An employee muy accumulate up to a maximum offive working days (40 hours), which may be taken offat a time to be agreed upon by the supervisor. lfnot taken, they wiLL be paUl out after four months. "

AlticIe 6, as noted above, deals with overtime and calls. While tbe proposed article deals expressly with overtime~ and while the union's evidence, which 1 accept, is that its dema11d was made for the benefit ofmailltainers, not installers, its effect, as it reads, would nevertheless be to create a form of banking time, althou.gh not O1'le specific to the Clu1stmas season, nor one specific to the Signals and Communications employees affected by the present case. It was not agreed to by the company~ and does not appear in the memorandum of Settlement made on March 24, 2005.

It was argued for the union thai if the company did seek to amend its practice, it bad an onus to provide an Opportlmity to bargain. It is clear. however; as the demand just cited shows, that the union had, and exercised, rut opportunity to bargain, and put forward a request which would, in its effect, have encompassed the bene1it it now seeks. The company's announcement, in February, 2005, that it would not mTange for banking time in 2005, was made prior to the memorandum of settlemellt of March 24 of that year. In my view, even if the fact ofthe longstanding practice co~Lld be considered to be a represelltation that the practice would continue. it caml.Ot properly be said that the unioll relied on that practice to its detriment it was 110t deprived of a timely opportullity to bargain in respect ofthis benefit.

Itl giving the judgment ofthe COlttt in G.N.R. v. Beatty (1981).128 D.L.R. (3d) 236, Osler.

1. stated at p. 245 that, "to permit the unilateral alteration of the practice - ~ during the tern) ofthc collective agreement - - would be to render an injustice to the employees and the union". Tn the instant case, although it maybe doubted whether there was a "clear and unequivocal representation" that the lJractice would continue, I think it cannot properly be said that the union had "lost the

8 opportunity to negotiate a change in the terms of the agreement to embody the practice ill express contract language", as arbitrator MacDowell put it in the Beatrice Foods case, (1994) 44 L.A.C. 59, at p. 66, refening to the C.N.R. case, noted above. ill the instant case, the union was advised, almost two months prior to the signing of the memorandum of agreement, that the company would not continue the practice of banking time. It had already put 011 the table a proposal that, while not intended to deal with that particular issue would, on its terms, have recognized it in the collective agreement. There was no detriment in tenns of a lost oPPOliLmiiy to bargain.

Having regard to all of the foregoing, I do not thhik it can properly be said that the company is estopped from relying on the collective agreement, or from ending its practice III respect of ba,l'ucing tim.e.

Accordingly, the grievance must be dismissed.

DATED AT OTTAWA, this 13 dl day of February, 2007,

Arbitrator

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