AH – 10
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN NATIONAL RAILWAY POLICE ASSOCIATION
IN THE MATTER OF THE grievance OF Richard Douglas Conway
MEMBERS OF THE BOARD: Judge Harold E. Fuller - Chairman
J. W. Healy - Nominee of the Company
James Worrall, Q.C - Nominee of the Union
There appeared on behalf of the Company:
N. A. McLean – Labour Relations Assistant
A. W. McCulloch – Assistant Director of Investigation
J. K. Chadwick – Superintendent of Investigation
R. D. Edmondson – Special Agent
And on behalf of the Union:
Grenville C. Price – Counsel
L. King – National President
A. Markoff – President of Toronto Local
L. Hawke – National Secretary
A hearing in this matter was held at Toronto, Ontario, on April 22nd, 1964.
On September 11th, 1963, a grievance was filed by Richard Douglas Conway, classified as a Constable in the Investigation Department, reading as follows:
PART OF AGREEMENT VIOLATED:
Article No. 16
STATEMENT OF CLAIM
On October 12th, 1962, I was assigned temporarily to the Investigation Department of the Canadian National Express. During my tour of duty there, I was called upon to relieve the Special Investigators due to Overtime accrued by them. I remained on the above assignment to September 3rd, 1963. During this time, I was paid as a Constable while performing the duties of and relieving the Special Investigators. The difference in pay being as follows:
(1) Oct. 12 to Oct. 31/62 - $15.00.
(2) Nov. 1/62 to Apr. 30/63, 6 months @ $29.00 - $174.00.
(3) May 1/63 to Sept. 3/63, 4 months @ $19.00 - $76.00.
This makes a total difference in pay of $265.00.
This grievance arises out of the assignment of the grievor on October 16th, 1962, to Constable’s duties in plain clothes in the Express department area of Toronto, where he was continuously employed as such until September 3rd, 1963.
The grievor claims that during the whole of this period he was paid according to his classification, and that he should have been paid the rate of pay of a Special Investigator and claims that during the whole of the period he performed the duties of and relieved Special Investigators.
He relies on Section 16.1 of the collective agreement between the parties which reads as follows:
16.1 Employees engaged temporarily, or employees temporarily promoted, shall receive the regular rate applicable to the position on which employed.
The Bargaining Unit in this matter is set out in Article 1, Section 1.1 of the collective agreement which reads as follows:
1.1 The following rules and rates of pay shall govern the service of employees of the classifications set forth herein, subject to the exception as hereinafter provided.
(2) Patrol Sergeants
There are specifically excepted from the Bargaining Unit the employees as set out in Article 12 sub-section 1.2 which reads as follows:
1.2 The Rules and Rates of Pay hereinafter provided will not be applicable to the following:
All employees of the headquarters staff of the Investigation Department at Montreal,
All employees in the Special Service Branch,
All employees in the various regions classified as:
superintendent, inspector, special agent, captain, special investigator, special guard, watchman, chief clerk, general clerk, ticket examiner, secretary and stenographer.
The Canadian National Express referred to by the parties is a Department of the Canadian National Railway Company and is not separate entity.
The Board had been referred to a number of Articles of the collective agreement during the course of the proceedings and it is convenient to set them out here.
ARTICLE 4 UNIFORMS
4.1 Employees governed by this Agreement shall be required to perform their duties in civilian clothes or in uniform as the Company may direct.
ARTICLE 14 GRIEVANCE PROCEDURE AND DISCHARGE CASES
14.1 It is the mutual desire of the parties hereto that complaints of employees shall be adjusted as quickly as possible.
14.2 If an employee has an unsettled complaint, it may be taken up as a grievance within five working days and presented in the following manner and sequence.
STEP NUMBER ONE
The employee shall present the grievance in writing to the local officer in charge provided that he may be accompanied by the appropriate member of the Association. The local officer in charge shall deal with the grievance and shall give his decision to the employee within not more than three working days after the day he received the grievance.
STEP NUMBER TWO
If the decision of the local officer in charge is not satisfactory to the employee, an appeal may be made in writing by the employee through the appropriate representative of the Association to the Director of Investigation within three working days after the day the employee receives the decision in Step Number One. The Director of Investigation shall render his decision writing within not more than five working days after the day he received the written appeal under this Step.
STEP NUMBER THREE
If the decision of the Director of Investigation under Step number Two is not satisfactory to the employee, an appeal may be made in writing to the employee through the appropriate representative of the Association to the Executive Vice-President within five working days after he receives the decision of the Director of Investigation under Step Number Two. The decision under this Step shall be given within five working days after it has been presented hereunder.
STEP NUMBER FOUR
Failing settlement under Step number Three any difference between the parties arising from the interpretation, application, administration or alleged violation of this Agreement, including any question as to whether the matter is arbitrable, such difference or question any be taken to arbitration, as provided in Article 14A. If no written request for arbitration is received within seven working days after the decision in Step Number Three is given, it shall be deemed to have been settled or abandoned.
14.8 The time limits as provided in this Article may be extended by mutual agreement.
ARTICLE 14(A) ARBITRATION
14(A) 4 The board shall not make any decision inconsistent with the terms or provision of this Agreement, nor alter, modify or amend any part of this Agreement.
14(A) 5 The settlement of a grievance at any stage in the grievance procedure shall not involve retroactive payment beyond a period of sixty days prior to that date on which the grievance was first submitted in writing.
There is little dispute with respect to the facts. The grievor has seniority with the Company from April 24th, 1958. He first worked as a uniformed Constable for several years. At times he was assigned for short periods to the Express Department.
In the Express Department the Company employs a number of persons classified as Special Investigators. They are not within this Bargaining Unit and are paid a rate higher than Constables in the Bargaining Unit.
The work of a Special Investigator is much the same as the work of a Constable. Both do patrol work and perform the usual duties expected of a Constable in the protection of Company property and interests in the area in which they work.
Included in these duties is the prevention of pilfering by employees of the Company.
The differences between the two jobs are: first, a Constable works a regular eight-hour shift. A Special Investigator does not necessarily work on an eight-hour shift and as was stated by different witnesses he was "out of the schedule" that is, his tour of duty might consist of four hours in the morning and then after a lapse another four hours later on in the day.
In addition to his normal patrol work, a Special Investigator may be called on to investigate claims filed against the Company, in which case he checks records, calls on shippers, et cetera. He spot-checks vehicles leaving the premises to make sure there are no goods on the vehicle which should not be there, and makes special investigations which may require his services outside of the area in which he normally works when called on to do so by the Company. He normally works in plain clothes.
When the grievor was assigned to the Express Department there had been some unusual difficulties with respect to pilfering, and the grievor was assigned to work with one King for about three months in an effort to prevent this.
During this period they both were assigned to surveillance work which is the normal duty of both classifications.
During this period these two worked together and alternately, and the work consisted primarily of foot patrol in the Express Department and observation of employees. There was no checking of trucks during this period according to King.
During this period Conway and King did the same type of work except that King did work with respect to claims which Conway did not do.
King left the Department at about this time and Conway continued to work on the same type of work for the balance of the time he was there.
He does say that at times he conducted spot checks on express vehicles leaving the premises against the waybills to determine whether or not the driver had shipments on his truck he should not have. Conway agreed that this was the only work he did during the whole of the period he was in the Express Department that he considered to be beyond the duties of a Constable. He stated that he did this checking with the assistance of a Special Investigator once or twice a month and spent approximately three hours each time a vehicle was checked.
He expressed the opinion that he and the Special Investigator were jointly responsible for this spot checking.
According to Mr. Edmondson, who is in charge of the investigating work in the Express Department, Conway did no spot checks on vehicles but did regular patrol work during the whole of the time he was is the Express Department.
He stated that while there was not much difference in the jobs, the Special Investigators did have additional work to do including investigation of claims, et cetera, and that the job of Special investigator required considerably more instruction on the job than a Constable.
On this evidence Mr. Price, for the grievor, argued that admittedly the grievor had performed the same work as Special Investigators during the whole of the period he was in the Express Department, and he argued, therefore, that by virtue of Article 16, Section 16.1 of the collective agreement, Conway was an employee either engaged temporarily or temporarily promoted and was entitled to receive the regular rate applicable to the position on which he was employed.
For the Company Mr. McLean raised the objection; first, that the grievance was not filed within five working days of the time of the complaint, in accordance with Section 14.2, and that, therefore, the Board had no jurisdiction to hear it.
Secondly, he argued that Section 16.1 was limited to jobs within the Bargaining Unit. He pointed out there were other Unions with contracts with the Company and argued that this Union could not, and had not, in Section 16.1 attempted to fix the rate to be paid to an employee working on a job outside of the Bargaining Unit.
Finally, he argued that in any event the duties performed by the grievor came within his ordinary normal duties and he, therefore, was not entitled to be paid the rate of a Special Investigator.
He also pointed out, and it is not disputed, that the grievor had been told when he was assigned to work in the Express Department that it would be good experience for him there and that subsequently in August of 1963 the grievor was offered a position of Special Investigator for a period of approximately four months effective from September 1st, 1963, and refused the appointment.
With respect to the contention of the Company that this grievance was not filed within the time limits as provided in Section 14.2 of the collective agreement and that, therefore, the grievance is not arbitrable, the Board is of the opinion the Company has waived the provision by its conduct.
The parties have agreed in Section 14.8 that the time limits provided in Article 14 may be extended by mutual agreement and, of course, in any event, the parties are entitled to waive any provision of the agreement if they so desire.
In the present instance a grievance was filed and went through all steps of the grievance procedure, and proceeded to arbitration with each side appointing an arbitrator without the Company in any way indicating it was objecting to the grievance on the ground it was not filed in time.
In the opinion of the Board the Company, under these circumstances, and particularly in view of Section 14.8 of the collective agreement, has waived its right to object on this point and the grievance is properly before the board.
If a Company desires to rely on the time limits provided in the collective agreement for filing grievances, the point should, at least, be raised early in the grievance procedure.
The Board proposes to deal with this grievance on its merits.
The grievor was employed as a Constable. There is no job description of the work o£ a Constable, but a Constable may be required, in accordance with Section 4.1, to perform his duties either in civilian clothes or in uniforms as the Company may direct.
Admittedly the main duties of a Constable consist of patrol work; protection of Company’s property and interests, and this includes inspection of railway cars, vehicles, and premise in whatever area the Constable is assigned to.
In the present instance the grievor was assigned, admittedly, as a Constable to the Express Department. There, admittedly, during the first three months at least he did no work of any kind that could be classified as out of his normal duties as a Constable.
According to his evidence thereafter he, together with a Special Investigator, spot-checked express vehicles on occasion. Even if one accepts his evidence he was engaged on this duty not more than six hours in a month. His opinion is that this particular work was not the work of a Constable, and he says he considered that he was jointly responsible with the Special investigator for this work.
According to the Company he was not assigned to spot checking of vehicles and was, therefore, of course, not responsible for the work and at most assisted a Special Investigator in the carrying out of the Special Investigator’s duties.
Even if Section 16.1 does apply in this cases to succeed the grievor must show that he was assigned to, and performed, work for the period in question which was beyond the scope of the duties and responsibilities of his own classification and within the duties and responsibilities of a higher classification.
The fact that a person in one classification may, on occasion for a short period of time, perform work within the higher classification does not necessarily require the payment to the claimant of the work of the higher classification even for the time he ‘s actually engaged in that work.
In this case there is a good deal of overlapping in. the job content of that of a Constable and that of a Special Investigator. Normally these two classifications apparently perform approximately the same work.
A Special Investigator, however, may be required to work irregular hours; may be required to investigate claims; may be required to call on shippers and check records; and these duties require different qualifications than those required for a Constable, and presumably it is because of these extra qualification that there is a difference in the rates.
The grievor in this case was not called on to perform any of these of these jobs which require the additional qualifications nor was he required to work irregular hours and the only work which even he himself claims is beyond the duties of a Constable is the rather limited period, from time to time, when he assisted a Special investigator in checking Vehicles.
On the evidence this Board is unable to find that the grievor was employed during the period in question the position of Special investigator, and he has failed to bring himself within the provisions of Section 16.1 of the collective agreement and for this reason this grievance dismissed.
It may be noted that even the grievor himself prior to the filing of this grievance did not consider that he was performing the duties of a Special Investigator. It is obvious he was seeking more pay, and it is noted that as late as July 18th, 1963, he wrote to the Company on the subject of clothing allowance and stated:
Since October 15, 1962, I have been assigned to Plain Clothes duty in the Express Dept.
No claim or suggestion is made in this letter that he was performing the duties of a Special Investigator, but he goes on to say that this assignment to plain clothes duty necessitated the wearing of his own clothes, resulting in an added expense to him and a saving of the Company’s uniform, and his therefore, asks for a clothing allowance.
His request was denied and subsequently this grievance was filed.
With respect to the argument of the Company that Section 16.1 of the collective agreement only applies to positions within the Bargaining Unit, in view of the decision of the Board of the merits it is not necessary for the Board to decide this point.
The Board might point out, however that it would be most unusual for parties to agree in one Bargaining Unit that an employee temporarily promoted shall receive the regular rate applicable to the position on which he is employed when such position is outside of the Bargaining Unit.
It could be such promotion would involve a promotion to a job within another Bargaining Unit, where the employee and the Company, of course, would both be bound by the terms of whatever collective agreement was in effect with respect to persons employed on the particular job.
This Union has the right to bargain only for those within the Bargaining Unit while they are within the Unit.
DATED at Welland, Ont. this 28th of April, 1964.
HAROLD E. FULLER JAMES WORRALL
J. W. HEALY