Ad Hoc 2
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY (Communications Department)
COMMERCIAL TELEGRAPHERS’ UNION (Canadian National system division NO. 43) AGREEMENT NO.: 8.1
In the matter of Stephen Dicks Morse Teleprinter Operator, Moncton, N.B.
ARBITRATOR:Judge J. C. Anderson
Appearing for the Company:
P. E. Shantz – Assistant to the General Manager, Toronto
G. J Milley – Labour Relations Assistant, Montreal
R. S. Finegan – Supervisor, Employee Relations, Toronto
W. H. Barton – Schedule Analyst, Toronto.
Appearing for the union:
W. L. Allen – International President
Robert Tomlinson – General Chairman, Canadian National Division #43
W. G. McCannon – General Secretary Treasurer, CN Division #43
Stephen Dicks – Operator
A hearing in this matter was held in Toronto October 4, 1958
Following Agreement by the Canadian National Railway Company and the Commercial Telegraphers’ Union to ask me to serve as Arbitrator in a dispute between the Railway and the Union respecting the interpretation and application of a rule or rules of the Collective Bargaining Agreement between the parties, a hearing was held in Toronto on October 4th, 1958.
At this hearing, the full submissions and Statement of Facts were submitted to me as a single Arbitrator.
The Arbitration Agreement under which I was requested to act, is dated the 28th of July, 1958, and defines the terms of reference, and a copy of this Agreement is attached hereto.
At the hearing, it was agreed between the parties that, the submission to the Arbitrator which constitutes the disputes between the Railway and the Union, shall be the sole determination of whether the Railway did, or did not, violate Article 4, Clause 4 (d) and Article 4, Clause 4 (c), paragraph 1, second sentence, of the existing Collective Agreement, when it required Stephen Dicks, Morse-teleprinter operator, ‘JH’ office, Moncton, to return to his former position, or displace the junior Morse-teleprinter operator in the district. The Union withdrew from the Arbitrator any allegation that Article 8, Clause 1 (c) (exception 1) of the existing Collective Agreement, had been breached by the Company.
Under the terms of the Collective Agreement, matters of interpretation between the Company and the Union go first to the Board of Adjustment and this dispute comes before me, as single Arbitrator, by agreement of the parties, since the Board of Adjustment was not able, by a majority vote, to resolve the dispute. When matters come before the Board of Adjustment, the parties prepare a joint Statement of Facts for submission to the Board of Adjustment, and this Statement of Facts is jointly signed by the parties. This was done in this instance. There is, of course, a reservation that additional evidence, either written or oral, may be submitted to the Board of Adjustment.
For my purposes, I can best set forth the facts of the case, and the contentions of each of the parties, by setting forth in full the written evidence submitted by both parties to the Board of Adjustment. This, then, is as follows:
The Union claims that the Company violated Article 4 Clause 4 (d) and Article 8 Clause 1 (c) (exception 1) by dispensing with the services of Morse-Teleprinter Operator S. Dicks ‘JH’ Office, Moncton, N.B., when he was not the junior in the office.
JOINT STATEMENT OF FACTS
(l) On May 17, 1957, the Superintendent at Moncton N.B released a letter as a matter of departmental policy to the employees in Halifax, Moncton and Saint John advising them of the establishment of a torn-tape switching centre in Moncton on or about September 1, 1957, which would affect a number of employees in the district.
(2) On September 6, 1957, the staff in ‘JH’ Office Moncton were:
G. R. Jones Morse-Teleprinter Operator Morse Operator Group Seniority July 6, 1931
J. W. Hayes Automatic Operator Automatic Operator Group, Seniority May 10, 1943
S. Dicks Morse-Teleprinter Operator Morse Operator Group , Seniority June 20, 1947
D. M. Curwin Automatic Operator Automatic Operator Group, Seniority May 30, 1950
P. M. Cox Automatic Operator Automatic Operator Group, Seniority April 2, 1951
E. Connors (Mrs.) Automatic Operator Automatic Operator Group, Seniority May 27, 1957
J. E. Brown Automatic Operator (temp) Automatic Operator Group, Seniority March 23, 1956
(3) On September 6, 1957, the Manager at Moncton issued notices to all Operators in ‘JH’ Office except G.R. Jones, J.W. Hayes and J.E. Brown of the abolition of their positions, the notice to Stephen Dicks reading:
Further to Superintendent Marquis’ letter of May 17 concerning the establishment of a torn tape switching centre at Moncton, N.B. Effective with the close of business September 21, 1957, this letter will serve as fifteen day’s notice that your position as Morse-teleprinter Operator will be abolished. In accordance with provisions of the Agreement Article 9 Clause (d) you can revert to your former position or displace the junior Morse-teleprinter Operator in the district.
(signed) L. W. Smith, Manager.
(4) On September 6 the Superintendent issued Bulletin No C-127 reading:
Applications addressed to the undersigned will be received up to and including September 17 for the position of one or more Automatic Operators ‘MN’ offices, Moncton, N.B. rating as per schedule.’
(5) On September 9, Operator Stephen Dicks exercised his to option to return to his former position, his notice of intention to the Superintendent reading:
H. A. Marquis, Moncton. This is to advise that under layoff dated September 6 I wish to revert back to former position which being Fredericton, N.B. This subject to not being able to remain here at ‘JH’ or get into ‘MN’ Office.
(signed) S. Dicks.
(6) To fulfil requirements of notice to displace dated September 9 received from Stephen Dicks, a notice was issued by Manager Ford, Fredericton, to Mrs. Irene F. Totten, Morse-Teleprinter Operator, Fredericton, N.B on September 10 reading:
Please be advised effective September 25, 1957, that your services at this office will no longer be required.
(signed) H. L. Ford, Manager, (Fredericton, N.B.)
(7) on September 9 and 11 Automatic Operator J.W. Hayes and Morse-Teleprinter Operator G.R. Jones, respectively, applied for Automatic Operator positions ‘MN’ Office, Bulletin C-127 above.
(8) Automatic Operator J.W. Hayes was awarded a position in ‘MN’ Office on Bulletin C-127; consequently on September 10 the Superintendent issued replacement Bulletin no. C-130 reading:
Applications addressed to the undersigned will be received up to and including September 21 for the position of Automatic Operator ‘JH’ Office, Moncton, N.B. (early night tour), rating as per schedule.
(9) On September 16 Mrs. Irene F. Totten, Morse-Teleprinter Operator, Fredericton, N.B. (displaced by S. Dicks) exercised her option to return to her former position, her notice of intention reading:
Reference my lay-off notice. I hereby request that I be given permission to revert to my former position, that of Swing Operator, Liverpool - Yarmouth.
(signed) Irene F. Totten, MTO
(10) Morse-Teleprinter Operator G.R. Jones was awarded a position of Automatic Operator in ‘MN’ Office on Bulletin C-127; consequently, on September 19 the Superintendent issued Bulletin No. C-133 reading:
Applications addressed to the undersigned will be received up to and including September 29 for the position of Morse-Teleprinter Operator at ‘JH’ Office, Moncton, N.B. rating as per schedule.
(11) On September 19, Automatic Operator, J.W. Hayes and Morse-Teleprinter Operator G.R. Jones transferred to the positions of Automatic Operator ‘MN’ Office awarded on Bulletin C-127.
(12) On September 21 Operator S. Dicks’ concurrence was obtained to remaining on duty on a day-to-day basis beyond the expiry date of his notice dated September 6.
(13) On September 27 further notice was served on S. Dicks reading:
Further to letter of notice September 6, 1957.
This will serve as a further extension of notice for fifteen days from September 28.
(signed) L. W. Smith, Manager.
(14) On October 1, S.B. Vaughan was awarded the position of Automatic Operator ‘JH’ Office Bulletin C-130.
(15) On October 1 the Superintendent published notice that no applications had been received from qualified Morse Operators on Bulletin C-133 and that a new bulletin would be issued for an Automatic Operator.
(16) On September 26 the Superintendent issued replacement Bulletin C-143 reading:
Applications addressed to the undersigned will be received up to and including October 7 for the position of Automatic Operator ‘JH’ Office, Moncton, N.B., rating per schedule.
(17) On October 9 Roy Collier was awarded the position of Automatic Operator ‘JH’ Office Moncton, Bulletin C-143.
(18) October 12 was the last day Operator Dicks worked in ‘JH’ Office Moncton. He reported for duty in Fredericton on October 15.
CONTENTION OF EMPLOYEES
It is our contention that Morse Teleprinter Operator Mr. S. Dicks’ services at ‘JH’ Moncton should not have been dispensed with because, as of September 19, he was no longer junior in the office. The Company having made it known that they required the services of two operators at ‘JH’ Office and Mr. Dicks was the only remaining operator at that office.
We contend further that the Company having fulfilled their obligation by issuing bulletin C-133, had no authority under the Agreement to issue bulletin C-143 dated September 26 because there was no vacancy, Mr Dicks having been retained, rightfully, until October 12.
It is our claim, therefore, that Mr. Dicks should be returned to his rightful regular position at ‘JH’ Moncton, with full reimbursement of all loss in wages and any additional expense incurred by him when he had to leave Moncton and establish residence at Fredericton.
CONTENTION OF THE COMPANY
The Union claims that the Company violated one of the governing staff reduction rules, namely Article 4 Clause 4 (d) and one rule governing appointments and filling positions, namely, Article 8 Clause 1 (c) (Exception l).
The Company contends that in reducing staff in ‘JH’ Moncton, a Class ‘B’ Office, so described in Article 4 Clause 4 (a), our concern is the correct and proper application of staff reduction rules. It is not our privilege here to inject staff appointment rules or staff displacement rules. Any existing applicable staff appointment or displacement rules which extend rights and privileges to Mr. Dicks permitting him to claim another position after his current position is abolished become operative only after the staff reduction rules have been applied.
The applicable staff reduction rules are Article 4 Clause 4 (d) and (d.i.) and article 9 Clause l (b) and (c). The Union’s claim that Article 8 Clause 1 (c) (Exception l) is in any way applicable is denied because it deals with laid off employees subject to recall and not with reduction in staff.
Article 4 Clause 4 (d) and (d.i) of the Collective Agreement read:
(d) In the event of staff reduction at a Class "B" Office, the following rules shall apply, subject to the remaining staff being competent to fill the necessary assignments:
(i) The Operator with the least district seniority in either the Morse or Automatic Group in the office, and whose seniority is January 1 194O, or subsequent thereto shall be laid off first.
Mr. Dicks’ Morse Group seniority was subsequent to January 1, 1940. He had less seniority than Operators Jones and Hayes who continued to fill the remaining two positions in the office. Messrs. Jones and Hayes are competent to fill the necessary assignments.
Article 9 Clause 1 (b) and (c) read:
(b) Before dispensing with the services of a regular employee (other than when discharged) the company shall give such employee at least fifteen (15) days’ notice in writing. Likewise, an employee displaced from a regular position (not a temporary or relief position) shall be given fifteen (15) days’ notice.
(c) After the expiration of fifteen (15) days’ notice an employee, with his own consent may be retained in the service on a day-to-day basis up to but not exceeding seven (7) days for which no additional notice will be given. Should such an employee be retained in excess of seven (7) days, he shall be given a further fifteen (15) days notice before dispensing with his services.
Operator Dicks received the fifteen days’ notice as required in (b) and the Union does not dispute this fact.
Due to a delay in the transfer of the relay message traffic to the new relay centre in ‘MN’ Office the notice of September 6 to Operator Dicks was extended on a day-to-day basis for seven days and subsequently he was given a further extension for fifteen days. Operator Dicks agreed to the seven-day extension and the Union does not claim a violation of the rules.
On September 6, 1957, there were seven operators in ‘JH’ Moncton occupying five regular positions and one swing position, a total of six. The seventh operator was employed in temporary duties.
On September 6, the Manager of the office served written notice on four of the five Junior operators including Mr. Dicks informing them of the abolition of their positions to take effect at the close of business September 21. Notice to the other employee who was engaged in temporary duties was not a requirement of the Collective Agreement. His relief work was being completed before September 21 and he then returned to his former and regular position in another classification.
Having served this notice on the four junior operators as required by the staff reduction rules, the number of regular positions was reduced from five to two and the number of operators from seven to two.
Operators Jones and Hayes vacated their positions in ‘JH’ Office at the end of their work tours on September 18 by having applied for and being awarded position of Automatic operator in ‘MN’ office on Bulletin C-127.
The Union will probably contend that because Operator Dicks was employed in ‘JH’ Office after the two remaining positions were vacated by Messrs. Jones and Hayes that under the provisions of Article 8 Clause 1 (c) (exception 1), Mr. Dicks was entitled to claim one or the other of the two positions.
ARTICLE 8 Clause 1 (c) (exception 1) reads:
(c) Vacancies in regularly assigned positions, other than that of routine Aides and Office Boys, temporary vacancies and newly created positions, any of which are known to be of more than fifteen (15) days’ duration, shall be bulletined throughout the district in which they occur no later than five (5) days from date vacancy occurs or new position is established, with the following exceptions:
(1) If the position to be filled is in an office on the Eastern Region, laid off employees from such office shall be recalled in the order of their group seniority before the issuance of a bulletin.
Mr Dicks was not a laid off employee being re-called to service, therefore, the provisions of the foregoing exception do not apply in this case. When his position was abolished, Mr. Dicks exercised displacement rights to return to his former position at Fredericton under the provisions of Article 9 Clause 1 (d) which reads:
d) An employee, other than those in the clerical groups whose position is abolished or who is displaced may, seniority permitting, revert to his former position (including former office seniority rights) or displace the junior employee in his seniority group on the district and will give notice of such intention in either case within three (3) days from the date notice is received by him. After three (3) days and until the fifteen (15) days’ notice has expired, he may still exercise his seniority rights to displace but will not be paid for the extra necessary time required to give fifteen (15) days’ notice to the employee who is to be displaced.
It will thus be seen that Mr. Dicks, whose position in ‘JH’ Office was abolished, had a choice and elected to return to his former position. The alternative was to displace the Junior employee in his seniority group on the district who was located at Halifax.
Mr. Dicks, by his action claimed with the full authority of a displacement rule of the Collective Agreement, the right to another regular position as soon as his current position was terminated. The Company was obliged to see that the position which Mr. Dicks claimed was made vacant and this was done on September 1O when fifteen day’s notice was issued by the Manager at Fredericton to Morse-Teleprinter Operator Totten. In selecting Fredericton as his new position, Mr. Dicks did so of his own free will and with the same force and effect as though he had claimed some other position to which he may hold seniority and qualification rights under other rules.
Even if Mr. Dicks had been laid off, and had not claimed the Fredericton position, he still could not have laid claim to either of the two positions vacated by Messrs. Jones and Hayes. These are specified positions and must be advertised to the district.
By implication the Union contends that Mr. Dicks, whose position was abolished, had a right to claim, without bulletin, either the position of Automatic Operator in ‘JH’ Office vacated by Mr. Hayes in which he held no seniority, or the position of Morse-Teleprinter Operator vacated by Mr. Jones. This would mean that Mr. Dicks is privileged to move from a Morse-teleprinter Operator position paying a wage rate of $286.82 to one paying $322.46 without the issuance of a bulletin. Under no rule of the current Collective Agreement may Mr. Dicks claim such a privilege.
Article 8 Clause 1 (c) already quoted provides that vacancies in regularly assigned positions shall be bulletined throughout the district in which they occur not later than five days from which they occur. To have ignored this rule would have constituted a violation of the agreement and the Company would have been open to claims from employees in both the Automatic Operator and the Morse Operator groups who held prior rights. Moreover, a special rule applies for filling a vacancy for a Morse-Teleprinter Operator in a Class ‘B’ Office. This is Article 4 Clause 4 (c) reading.
(c) In filling a new position or vacancy for a Morse-Teleprinter Operator in a Class "B" office (regular or temporary), preference will be given to the senior qualified Morse operator with District Morse Group seniority prior to January 1, 1940, making application. If no application is received from such Morse Operator the Company may then, at its own discretion, establish an Automatic Department at the office affected, and appoint an Automatic Operator at prevailing rates of pay for such employees.
Obviously, Mr. Dicks’ Morse Group seniority of 1947 did not meet the requirements of the rule. Failing to receive any application to Bulletin C-133 from a qualified employee with district Morse Group seniority prior to January 1, 1940, the Company exercised its prerogative permitted by the rule just quoted to abolish the position of Morse-teleprinter Operator vacated by Mr. Jones and establish an Automatic Operator position in its place. This latter position of Automatic Operator was then advertised over the promotion district by Bulletin C-143 as required under the provisions of Article 8 Clause 1 (c). The position was awarded to Roy Collier on the basis of qualifications and group seniority.
In Summary the situation is this:
(a) The Union claims that the Company dispensed with the services of Morse-Teleprinter Operator S. Dicks. This is denied. Mr. Dicks has been continuously employed since receipt of the notice of September 6.
(b) The Union claims that the Company violated Article 8 Clause 1 (c) (Exception 1). A violation of this rule is denied. The rule is inapplicable. This is a staff appointment rule and not a staff reduction rule. Moreover, the rule quoted applies only to laid-off employees. Mr. Dicks was not laid off.
(c) The Union claim that Mr. Dicks was not the Junior in the office cannot be accepted. The only two positions in the office which were not being abolished when Dicks received his notice were those of Jones and Hayes. Both of these operators had greater seniority than Dicks and subsequent developments could not alter this fact.
(d) Without being specific the Union claims that Mr. Dicks holds rights to one position in ‘JH’ Office. His own position having been abolished, it, must mean that they claim rights either to the Automatic Operator position vacated by Mr. Hayes, the Morse-Teleprinter Operator position vacated by Mr. Jones, or the Automatic Operator position which was newly established when no applications were received on Bulletin C-133 from qualified employees having Morse Group seniority prior to January 1,1940, as authorized by the terms of Article 4 clause 4 (c). The Company denies he has such rights.
(e) By implication the Union denies the force and effect of Mr. Dicks, application of September 9 claiming the right to return to his former position at Fredericton.
The Union denies that Mr. Dicks has rights to his present position of Morse-Teleprinter Operator at Fredericton.
(f) The Company contends that Mr. Dicks’ application of September 9 claiming his former position at Fredericton was his right and that the Company had no alternative but effect a transfer on termination of his duties at Moncton.
(g) The Company contends that Mr. Dicks seniority does not entitle him to the specified position of Automatic Operator advertised in Bulletin C-130; for the Morse-Teleprinter Operator position advertised by Bulletin C-133; or for the Automatic Operator position advertised by Bulletin C-143.
(h) The Company contends that the rights of other employees would be seriously interfered with and jeopardized if the claim of the Union is upheld. The Company contends that the appropriate staff reduction rules were properly enforced and that the employee has no claim. It requests that the dispute be denied.
The Company reserves the right to submit additional evidence either orally or written.
(signed) J. S. Gauthier (signed) P. E. Shantz
General Chairman (for) General Manager
Signed at Toronto, Ontario, February 24, 1958.
At the Board of Adjustment proceedings, it was apparently agreed that the services of Mr. Dicks were not dispensed with as had been claimed. Therefore, he was not a laid-off employee, subject to recall, and I take it that this is the reason why, at the hearing before me, the Union withdrew any allegation that the Company had breached Article 8, Clause 1 (c) (Exception 1) of the contract.
After argument before me, as Arbitrator, it appeared that the contention of the Union was reduced to an objection to the Company’s issuance of Bulletin C-143 on September 26, 1957. This bulletin read:
Applications addressed to the undersigned will be received up to and including October 7 for the position of Automatic Operator ‘JH’ Office Moncton, N.B., rating per schedule.
It is the Union’s contention that as of September 26th, there was no vacancy in the ‘JH’ Office at Moncton, Mr. Dicks having been retained until October 12th, and it was the further contention of the Union that as of September 19th, after Jones and Hayes had received appointments and were transferred to the ‘MN’ Office, that Dicks was no longer Junior in the Moncton ‘JH’ Office. It was the Union’s further contention that because there was, prior to September 26, 1957, an Automatic Operator in the ‘JH’ Office Moncton, that the Company had no right to establish a further and additional Automatic Department.
It was the Union’s contention that Mr. Dicks, whose position was abolished by notice dated September 6, 1957, which reads as follows:
Further to Superintendent Marquis’ letter of May 17 concerning the establishment of a torn-tape switching centre at Moncton, N.B. Effective with the close of business September 21, 1957, this letter will serve as fifteen days’ notice that your position as Morse-Teleprinter Operator will be abolished. In accordance with provisions of the Agreement Article 9 Clause (d) you can revert to your former position or displace the junior Morse-Teleprinter Operator in the district.
(signed) L. W. Smith, Manager.
had a right to claim without bulletin the position of Morse-Teleprinter Operator vacated by Mr. Jones when he was transferred to the ‘MN’ office. If this contention were to be upheld, it would mean that Mr. Dicks would move from a Morse-Teleprinter Operator’s position paying a wage rate of $286.82 per month, to one paying $322.46 per month, without the issuance of a bulletin, and the Collective Agreement does not seem to me to grant Mr. Dicks any such privilege.
I find that Mr. Dicks’ position was a regularly assigned position as Morse-Teleprinter Operator in the Moncton ‘JH’ Office, carrying with it a wage rate as set forth in the revised contract, a monthly rate of $286.82, and that prior to his transfer to the Moncton ‘MN’ Office, Mr. Jones was a Morse-Teleprinter operator in the Moncton ‘JH’ Office, and that his position was a regularly assigned position carrying with it a monthly salary of $332.46.
I find that, as I have already stated, Mr. Dicks’ position was a regularly assigned position and carried with it a definite salary, and was abolished as has been earlier stated, by bulletin on September 6, 1957, by the Manager at Moncton. I also find that the position of Morse-teleprinter operator occupied by Mr. Jones at a salary of $322.46, was a regularly assigned position and that when he was transferred to the ‘MN’ office his position became open and by reason of Article 8 Clause 1 (c), Jones’ position had to be bulletined by the Company throughout the district.
Further, Article 4, Clause 1 (c) of the contract states that when there is a vacancy for a Morse-Teleprinter Operator in Class "B" Office (and Moncton was a Class "B" Office), and there was a vacancy for Jones position, that the Company was required to give preference to the senior qualified Morse Operator with District Morse group seniority prior to January 1st, 1940, if such senior qualified Morse Operator made application.
In this instance bulletin C-133 was issued by the Superintendent on the 19th of September, and read:
Applications addressed to the undersigned will be received up to and including September 29th for the position of Morse-Teleprinter Operator at ‘JH’ Office Moncton, N.B., rating as per schedule.
This was a bulletin to replace Jones, who was a regularly assigned employee, with a salary of $322.46. On October 1st, 1957, the Superintendent published notice that no applications had been received from qualified Morse Operators on Bulletin C-133, and that a new bulletin would be issued for an Automatic Operator.
Clause 4 (c) of the contract states in the second paragraph that if no application is received from such Morse Operator, the Company may, at its own discretion, establish an Automatic Department at the office affected, and appoint an Automatic Operator at prevailing rates of pay for such employees. Pursuant to this right, the Superintendent issued Bulletin C-143 under date of September 26th which reads as follows:
Applications addressed to the undersigned will be received up to and including October 7 for the position of Automatic Operator ‘JH’ Office, Moncton, N.B., rating per schedule.
And as a result of this bulletin, the position was awarded to Automatic Operator Roy Collier, he, of course, having greater Automatic Operator seniority than Dicks, who was Classified as a Morse Operator, with a group seniority dating from June 20, 1947, as Morse-Teleprinter Operator.
It is pertinent to note that under Article 10, Clause 2, last paragraph, all positions in Class "B" Offices are considered specified positions, or in other words regularly assigned positions and as such, under the terms of the contract, have a definite established monthly rate of pay attached to the position they occupy.
In Class "A" Offices, the pay is related definitely to the length of service, and the rate per Month depends on whether it is one year’s service, or over one and under two years service, or over two and under three years’ service, or over three years service.
The Union further contended that the staff appointment rule, Article 4 Clause 4 (C) that the Company could not establish a second Automatic Department at a ‘JH’ Office, having done so once several years previously. It must be kept in mind that the position formerly occupied by Jones was the one that was being bulletined for, before the replacement bulletin asking for an Automatic Operator was issued. It had nothing to do with Dicks’ position, which was abolished. However, it would seem to me that Clause 4 (c) last paragraph, could not mean that an Automatic Department could not be established a second time. If the work which was required to be done could be done be an Automatic Operator, as was the case in this instance, then the contract does could not mean that if an Automatic Department has been once established, that a further Automatic Department cannot be established, under this clause. The word "Department" is perhaps a little unhappy, but if the contract had intended to limit the establishing of Automatic Department to being done once, it would have said so and it does not say so. Moreover in the past the Company has applied the rule in the same manner as in this case, in offices across the System, and there has been no grievance by the employees. This, of course, does not mean that if the Company applied the rule wrongly that there should not now be a grievance, but it does show at least that in similar applications of the rule in the past, the Company has not been challenged.
One difference between the Company and the Union is that the Union contends that Dicks was laid off. The Company contends that the position that Dicks occupied was abolished, and as Dicks was a regularly assigned employee and had a specified position and as the original bulletin says, his position was going to be abolished, I can only conclude that his position was abolished and that Dicks was not simply laid off.
It is true that on September 6, 1957, the date of the notice abolishing Dicks position, the Company desired to retain only two regular operators at the ‘JH’ Office, and that Dicks was third in order of seniority among the regular operators. It is also true that before the layoff notice to Dicks, and the temporary extension granted, that Jones and Hayes bid out of the ‘JH’ Office and into the new ‘MN’ office, but it was not the position of Jones that was abolished, it was the position of Dicks, and when Jones was transferred that left a vacancy in his position, for which the Bulletin C-133 was issued.
To sum up, it appears to me that the Company has complied with the requirements of all the provisions of the contract. At the same time, it is understandable that when Dicks was still in the office on an extension on October 12th, and was actually at that time senior man in the office, he should feel that the bulletin for Jones position, which on being filled was filled by Roy Collier, an Automatic Operator, and in a sense Junior in point of time to Dicks, he should feel aggrieved.
At one time during the negotiations, after the grievance was entered, it would appear that the Company offered to change the Moncton ‘JH’ Office into a Class "C" office, and give Dicks back a position as Teleprinter Operator at the wage called for in a Class "C" Office. This could have been done, but it was apparently surrounded by certain conditions on the part of the Union and the Company did not go further with the idea.
Dicks no doubt has felt that he should have, in some way or another, stayed in the Moncton Office, and in my view there is absolutely no responsibility on the part of the Company under the contract to retransfer him to the Moncton ‘JH’ Office.
However, if this office can now be reclassified as a Class "C" Office, and if Dicks is able by reason of his seniority as a Teleprinter Operator to take the job available as a Morse-Teleprinter Operator in a Class "C" Office, at the applicable rate, it might be a gracious thing for the Company to arrange this, provided in so doing, it does not transgress any other terms of the Collective Agreement.
May I also add that the parties might be well advised, when the contract is open, to try to clarify the wording of the Collective Agreement so similar disputes are less likely to arise in the future. Under the present wording, and the facts of the case, it is quite understandable that the grievor and the Union have had the view that there had been a misapplication of the contract terms.
In the final result, I dismiss the grievance for the reasons above stated.
DATED at Belleville, Ont., this 1st day of November 1958. (signed) J. C. Anderson