BETWEEN:

AND

ARBITRATION BOARD: Judge J. C. Anderson – Chairman

James N. McQueen – Union Nominee

M. O’Brien – Company Nominee

There appeared on behalf of the Company:

R. S. Finegan

W. H. Barton

G. J. Milley

J. W. Healy

And on behalf of the Union:

R. Tomlinson

Gil Keenan

Clare Irwin

P. Podger

A hearing in this matter was held at Toronto on June 18, 1960.

The matter in dispute which the Union wishes a ruling upon is set forth in their letter to the Company under date of March 8th, 1960, in which it stated as follows:

The relevant section of the contract are as follows:

At the opening of the hearing Mr. J.W. Healy, on behalf of the Company, submitted that the matter before the Board was not a proper subject of an arbitration decision and he made the following submissions in support of this argument. That at the time of the switch over to the use of reperforator machines in the Switching Offices there was no provision for an arbitration in the contract. Secondly, that the written request for arbitration dated February 15th, 1960, was not made within ninety days of the change in the method of operation of the Supervisory Aides. Thirdly, that Article 4 Clause 1 uses the words "future changes" and that while the contract itself was effective from January 1st, 1958 it was not executed until the 26th of November, 1958, and any changes of the work of Supervisory Aides in the Reperforator Switching Offices had occurred prior to November 26th, 1958. In any event, Mr. Healy urges that if the changes which the Union allege were changes which took place within the term of the current Agreement that the only requirement of the Canadian National Telegraphs is to negotiate new rates of pay and rules governing working conditions and that there is no provision in the contract in the event or failure to agree on new rates of pay and rules to refer the matter to arbitration for final and binding determination. Further, Mr. Healy argues that at the time the present Master Agreement, dated November 26th, 1958, was negotiated, that any changes in methods of operation in switching centres by reason of the introduction of reperforator machines had already been made at certain centres and that the rates negotiated in the Agreement were rates which were negotiated after the time when changes in methods of operation as it affected Supervisory Aides had actually taken place, and that the only changes made after January 1st, 1958 were implementing a change in method of operation which had already taken place in some centres of the Company’s operation.

It is true that originally there were no provisions in the Collective Bargaining Agreement for arbitration and upon the application of the Union the Department of Labour issued, pursuant to Section 19.2 of the Industrial Relations and Disputes Investigation Act, a finding that an arbitration provision be inserted in the Collective Agreement in the form set forth in the Memorandum of the Chief Executive Officer, Mr. Bernard Wilson, issued the 11th of January, 1960. The Union should not be debarred from having its grievance heard by a Board of arbitration even though at the time the grievance arose the arbitration provision was not a part of the Collective Bargaining Agreement. The Board is also satisfied that from the correspondence between the parties that the Union’s request for arbitration was made known to the Company within ninety days of the last step of the grievance procedure or in any event the time limits in the arbitration clauses have been waved by the correspondence between the parties and their conduct since the matter became an issue between them.

The Union contends that because the parties since 1947 have bargained in conjunction with either railway non-operating unions and their employees and because of the complexities of such an operation there has been a tacit agreement to concentrate only on those items common to each.

As a result there has been no maintenance of job relationship and the parties have provided to take care of wage inequities during the life of the Collective Agreement.

And that there have been no changes in the job-to-job relation in classification of Supervisory aide since July 1947, except to the extent that they have been varied in across-the-board increases and the Union submits that because of these facts that the signing of a Master Agreement does not re-affirm the correctness of the existing job-to-job relationship, and for these reasons the Union submit that the wage comparisons in relation to "future changes" must be the relationship as it existed in June, 1947 compared to today.

The Union further contends that the Company’s submission that its only obligation under the Agreement is to negotiate with the Union and that failing to reach an agreement the matter is not arbitrable under the Industrial Relations and Disputes Act must fail because it is accepted as one of the primary functions of the Act to render it illegal for the Union to strike during the life of the Collective Agreement in return for final and binding settlement of the disputes through the process of arbitration, and further, the Union submits that since the Collective Agreement provides that "new rates of pay shall be negotiated" (as a result of future changes in methods of operation) This indicates the Union submits the Collective Agreement imposes an obligation on the parties to keep abreast of changing values of jobs, and that if the Company does not keep abreast of the changing values of jobs there has been a violation of the meaning of the rates of pay and/or working conditions and therefore the Union submits that the violation is not that the Company failed to negotiate, but that it failed to do what the contract says it must do during the process of negotiation.

The background of this Arbitration is rather unique. Since 1947 the Agreement, insofar as Sections 4 and 14 are concerned, has been carried forward in exactly its present form and up until this dispute arose the parties had been able to negotiate and arrive at a conclusion satisfactory to both parties under the existing clauses. On one or two occasions, by agreement, certain matters had been submitted to a single referee for final and binding determination, but when the dispute which is currently before this Board arose, the Union requested the Department to insert in the contract an arbitration clause. This was their right, and in due course the Federal Department of Labour spelled out an arbitration clause which, of course, became part of a Collective Agreement. As a result of the Canada Labour Relations Board’s finding it was ordered that the provision set forth in their finding under the heading "Arbitration" be a term of the Collective Agreement between the Commercial Telegraphers’ Union and the Canadian National Telegraphs, and under this order it is stated that any grievance which is not settled to the satisfaction of either the Union or the company by conference or negotiation or otherwise, in accordance with the provision of this agreement shall, upon written request of either party made within ninety days of the completion of the proceedings under the last step of the grievance procedure, be submitted to an arbitration board, provided the grievance involves the meaning or alleged violation of any provision of this Agreement. The order then goes on to state that a grievance shall not be subject to arbitration which involved (a) any request for modification of this Agreement, (b) any matter not covered by this Agreement, and (c) any matter which, by the terms of this Agreement is exclusively vested in the Company.

Under these arbitration provisions a grievance may be submitted to an arbitration board provided it involves a meaning or violation of this Agreement. The Union, of course, contend that the fact that because of what they say are changes in methods of operation, the Company has failed to conclude negotiations for new rates of pay and that they have violated Article 4 of the Agreement, but Article 4, while it does say "in the event of future changes new rates of pay and rules shall be negotiated" does not provide for final and binding arbitration in the event that the negotiations do not result in agreement as to the new rates of pay and working conditions, and under Article 14, Clause 4 the changes in the basic rates of pay which were proposed by the Union calls for the positions affected to be reviewed and compared with the duties and responsibilities of comparable positions by the proper officer of the Company and the General Chairman, with the object of reaching agreement on revised rates and maintaining unity on positions on which the duties and responsibilities are relatively the same, but it again fails to say that in the event the officer of the Company and General Chairman of the Union do not agree that the claim for new rates and working conditions shall be submitted to final and binding arbitration.

Under many Collective Agreements there are wage re-opener clauses which allow the Union or the Company to re-open negotiations on the question of wage rates, but if these negotiations do not result in Agreement the Union is not provided with conciliation service, nor is it allowed to strike, and the Company is not allowed, if it is not satisfied with the results of new negotiations, to lock out its employees and under such conditions there is no provision for arbitration when the new negotiations do not result in agreement.

It is a well established principle that rates of pay and working conditions are matters for negotiation and not matters to be settled through the standard grievance and arbitration procedure, and that such matters are only arbitrable under Collective Bargaining Agreements if the Collective Bargaining Agreements specifically provide for them to be settled through arbitration.

Therefore, the board is of the view that under the terms of the arbitration provisions of the contract it can’t hear a grievance which involves a request for modification of the Agreement or covers any matter not covered by the Agreement, and it would, in the board’s view, be modifying the terms Of the Agreement if it undertook to set the wage rates for employees in the Supervisor Aide classification simply because through negotiations no new wage rates had been agreed on by the parties through negotiations.

Article 4, Clause 1 simply says that when there are changes in methods of operation new rates and rules governing working conditions of the employees shall be negotiated by the Company and the accredited representatives of the employees, but the Agreement is silent as to what happens if no agreement is arrived at as a result of these negotiations, and your Board of Arbitration is of the view that it is not justified in reading into this clause a meaning that if new rates of pay or rules governing working conditions are not agreed upon that the matter shall then be determined under the arbitration procedure.

Article 14, Clause 4 states the method by which the parties shall attempt to negotiate changes in basic rates of pay under certain conditions, but again it does not state what will happen if agreement is not reached between the Company and the Union through negotiations. The board is of the view that if the original agreement had had a provision that if, as a result of such negotiations, finality would be arrived at through arbitration, then it would be empowered to hear the case of the parties with respect to changes that the Union feels have been made in the jobs and it would have been able to make a final and binding ruling with respect to the wage rates and working conditions in relation to such job changes. No doubt this difficulty be overcome when a new Collective Agreement is arrived at.

However, for the reasons above stated, this Board of Arbitration somewhat reluctantly comes to the conclusion that under the relevant clauses of the contract the issue as to the proper rates of pay for Supervisory Aides resulting from changes of methods of operation is not one which can, under the wording of the present contract, as a result of grievance be processed through the grievance procedure to a Board of Arbitration for final and binding determination and it so rules.

DATED at Belleville, Ontario, this 9th day of September 1960

Chairman Employer Nominee