AH – 26
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS
IN THE MATTER OF THE GRIEVANCE OF K.T. Savage
SOLE ARBITRATOR: Judge J. C. Anderson
There appeared on behalf of the Company:
W. Hodges – Labour Relations Assistant
D. McGrath – Labour Relations Assistant
J. G. Silcox – Training Assistant
S. Goldenberg – Senior Agreement Analyst
And on behalf of the Union:
J. A. Pelletier – Secretary, Joint Protective Board
G. S. Jones – General Chairman, Prairie Region
J. D. Hunter – Active General Chairman, Great Lakes Region
F. C. Johnston – Secretary, General Adjustment Committee, Great Lakes
A hearing in this matter was held at Montreal on Friday, August 27th, 1965.
The meeting in connection with the dispute between the above mentioned parties was convened at the Canadian National Railways Labour Board Room in Montreal on Friday, August 27th, 1965, and the full submissions of the parties with respect to two grievances (the first one that of Mrs. K.T. Savage, Unit Cost Clerk, and the second one that of Mr. B.V. Rootsaert, Relief Train Messenger), were heard.
I will deal first with the claim of Mrs. K.T. Savage.
Mrs. Savage, was at the time of the grievance, and still is, a Unit Cost Clerk in the London Car Shops, having seniority dating from March 16th, 1943.
She applied for the advertised position of Maintenance Clerk, Engineering Department, located in the area offices in London.
The position was awarded to a junior employee, Mr. R.E. Thompson, on the 31st of August, 1964. His classification was that of Roadmaster’s Clerk, and his seniority dates from March 5th, 1958, so that it is abundantly clear that Mrs. Savage has approximately fifteen (15) years greater seniority than that of the successful applicant.
The contract provides, under Article 12.11 that:
When a vacancy or a new position is to be filled, it shall be awarded to the senior applicant who has the qualifications required to perform the work. Management will be the juge of qualifications subject to the right of appeal by the employee and/or the Brotherhood. The name of the appointee and his seniority will be shown on the next bulletin.
Mr. F.C. Johnston, a Local Chairman, dealt with the grievance by taking it up first with Mr. G.G. Watson, Office Assistant in the Engineering Section at London, an according to his evidence, in a conversation on or about the 15th of September, 1964, Mr. Watson told Mr. Johnston that he had been prepared to have Mrs. Savage try out the job, but that he had been overruled by Mr. Silcox.
The grievance then went to Mr. Silcox, who gave it as his opinion that Mrs. Savage did not have the ability to handle the position, and the grievance followed the grievance procedure, and the company’s position was that Mrs. Savage did not have the elementary knowledge for the position.
The Union submitted that because the London Car Shops were due to close in 1966, under which all employees covered by Agreement 5.1 would have to exercise their seniority in accordance with Article 13 of the Agreement, that certain meetings were held in May of 1960 and again in January of 1964, when the closing of the shop was discussed.
According to the Union’s version of these meetings, verbal assurance was given that the employees would be trained to take other positions, and there was an arrangement that employees would be encouraged to bid on vacancies so that the impact of closure time would not be too severe.
The Union’s view is that the Maintenance Clerk position in the Engineering Section is not the highest rated position in that section because there are two positions; Engineering Clerks 1 an 2, which are higher, and that when the Company closes down a Shop, the Company should be more lenient on qualifications than under normal circumstances and that the employee who bids on a job should be given training where required.
The Union also points out that Mr. Clare Hilton was Unit Cost Clerk at the London Car Shops, and that he applied for a position of Maintenance Clerk, Engineering Section, London and was awarded it. However, he worked on this position for a time and bid on and received a higher rated position and when bumped off that position, exercised his seniority back to the Maintenance Clerk’s position, and the Union contends that he was more qualified than Mrs. Savage and that if Mrs. Savage was given the training of the Codes in the Department, she could perform the work.
While agreeing that discussions from time to time taken place about the closing of the London and Stratford Shops, the Company points out that for the most part this orderly closing mass progressed without undue difficulty for employees.
Reductions have taken place through normal attrition, transfer, or bidding on vacancies within the seniority groups.
On January 20th, 1964, Mr. E.P. Stephenson, General Manager of the Company’s Great Lakes Region, met with Mr. C. Beckerton, General Chairman of the Brotherhood, in Toronto, and discussed the closing of the Stratford Shops. He confirmed the commitments made in a letter to Mr. Beckerton, dated January 27th, and Mr. Beckerton and Mr. Stephenson, according to the evidence, agreed verbally that the commitments made with regard to the Stratford employees would also apply to the employees at London.
In the letter from Mr. Stephenson to Mr. Beckerton, there is the following paragraph:
You raised the question about whether a CBRT&GW member, wishing to relocate himself, would be given an opportunity to familiarize himself with what might be for him unfamiliar work. I said that he would. A CBRT&GW member at Stratford who exercises his seniority into the lowest rated category in shed or yard offices, for instance, will be given a reasonable time to qualify in his new job. I am sure that this is something that we can make mutually satisfactory arrangements for between us.
The Company say that this undertaking applied to the lowest jobs and not to the senior clerk position.
When, by bulletin LA-16, there was a vacancy in the position of Maintenance Clerk in the office of the Area Engineer at London, the grievor made application and she was the senior applicant. There were, according to the evidence, three applicants.
The interview was with Mr. J.G. Silcox, Office Supervisor, and Mr. C.G. Watson, Office Assistant (Engineering).
According to Mr. Silcox, the interview with Mrs. Savage lasted three hours, while the interviews with the other two lasted something under one hour. Mr. Silcox gave very definite evidence that Mrs. Savage, according to his judgment (which he says was concurred in by Mr. Watson), was not found to possess the basic qualifications necessary to perform the work of a Maintenance Clerk.
The position of Maintenance Clerk again became vacant and was advertised on November 16th, 1964, and Mrs. Savage again applied. At that time, because of her former protest against disqualification, she was asked to complete a written test in accordance with Article 12.16 of the Agreement, which says in part:
When a senior applicant is not awarded a bulletined position, he may appeal the appointment … After making an appeal, he may be required to demonstrate his qualifications for the position. The Local Chairman may be present at such demonstration.
The written test was taken on November 24th, 1964, an in the presence of Mr. F.C. Johnston, Local Chairman, CBRT&GW, London, Ontario, and according to the marking of the test, she received only a very low mark, which from the Company’s point of view, indicated that she did not have the elementary background knowledge which would justify placing her on the position for training.
There was filed with me, a letter from Mr. Watson to Mr. Silcox, under date of October 26th, 1964, and the Union did not protest the filling of this letter. In the letter Mr. Watson states:
that it was the joint considered opinion of himself and Mr. Silcox, that Mrs. Savage was not qualified to meet the requirements of the position.
He also states:
It is most desirable that an applicant for the position of Maintenance Clerk, have Maintenance of Way experience, preferably the experience of a Roadmaster’s Clerk or similar position.
He then goes on to state, that according to his recollection, at no time did he consider Mrs. Savage as qualified for the position, nor express such an opinion to anyone.
It is abundantly clear that the Maintenance Clerk is one of the senior clerical positions in the Engineering Section and that the duties and responsibilities of the position are varied and many.
Mrs. Savage has had many promotions since she started, but all of those promotions have been in relation to the natural line of progression from the work which she first started to do. She was a Stenographer from the time she was employed until approximately 1956 when she became a Staff Record Clerk, and later a Clerk Stenographer and later a Clerk, and then a Staff Clerk, and a Unit Cost Clerk. She has had no experience in the Engineering Section such as that which would be received by a Roadmaster’s clerk or a person occupying a similar position.
It is understandable that Mrs. Savage and the Union should feel that because of her much greater seniority then the applicant who received the position, that she should be given an opportunity to see if, after some training she would not be qualified, and the Union felt that Mr. Stephenson had given some commitment along this line.
However, if the letter of Mr. Stephenson is examined carefully, what he really says is that if a member of the Union exercises his seniority into the lowest rated categories, that he will be given an opportunity to qualify.
Mr. Silcox was quite definite that of all the applicants, Mrs. Savage was by far, the least qualified.
It would appear that the Union and Mrs. Savage have been advised that if there was an opening in the Engineering Section as a Roadmaster’s Clerk or similar position, that the Management would do their best to put her in that position and give her a fair trial period.
The contract, of course, states that seniority shall be the governing factor provided the senior applicant has the qualifications required to perform the work, and that when consideration is given as to the qualifications of the applicant, relating to the requirements of the work, management will be the judge of these qualifications.
In this case, I am satisfied that Management carefully considered the qualifications of all applicants and that Management came to the conclusion that the grievor did not even possess the minimum qualifications necessary for the position and that her potential qualifications were so limited that she would not, within reasonable qualifying period, been able to satisfactorily perform the work.
Naturally the Union, and employees who have much greater seniority than the successful applicant as it is in this case, feel that the Management is not giving due weight to seniority. However, in this instance I am satisfied that the Management spent a good deal of time in testing the qualifications of the applicant, and the fact that she was given a written test, and that Mr. Silcox spent three hours with her to try to decide whether or not she had the minimum qualifications for the position, leads me to the conclusion that because she was the senior applicant, she was on this occasion given every reasonable consideration, when her qualifications were being compared with those of the other, and successful applicant.
The Management did not at any time, downgrade Mrs. Savage’s qualifications for the line of work which she has been following, but Mr. Silcox was of the definite opinion that she did not possess the mininum qualifications for the position in the Engineering Section which requires quite definite knowledge and potential than the work which she has been performing.
Therefore, I must come to the conclusion that the Company has not been in breach of Article 12.11 or the Agreement when they did not award the position of Maintenance Clerk in the Engineering Section to Mrs. Savage, and the grievance will be dismissed.
DATED, at Belleville, Ontario, this 1st day of October, A.D., 1965.
JUDGE J. C. ANDERSON,