AH – 29
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS COMMUNICATIONS DEPARTMENT
COMMERCIAL TELEGRAPHERS’ UNION
IN THE MATTER OF THE GRIEVANCEs OF J-M Beauchemin and A. Paquette
BOARD OF ARBITRATION: Judge Walter Little – Chairman
Micheal O’Brien – Company Nominee
Stan Bullock – Union Nominee
There appeared on behalf of the Company:
K. W. Healy, Q.C. – Counsel
R. S. Finegan – Employee Relarions Offcr
W. A. Young – Employee Relations Suprv, and
D. E. Ridley – Personnel Officer
And on behalf of the Union:
L. A. McLean – Counsel
R. Tomlinson – General Chairman
B. J. Van Iderstine – Assistant General Chairman
Maurice Guerin – Quebec District Chairman
A hearing in this matter was held at Toronto, Ontario, on February 11, 1966.
As both grievances were considered together we will first relate the facts leading up to the grievances, as well as admissions made on behalf of the parties by counsel, to avoid the necessity of adducing evidence.
In the statement of facts filed by Union counsel it was stated that on March 17, 1965, Norman Charron, Senior E.T. (Equipment Technician) Montreal, Grade 4, reported sick and was absent from duty. Beauchemin was present and available and was willing to replace Charron and work from 4:30 p.m., a full tour of duty, being 7-1/2 hours. If he had been requested so to do it was submitted he would have been entitled to pay at the overtime rate. Charron’s place was not filled for that tour of duty.
It was agreed that Bernier, the senior employee of the group of Equipment Technicians, Grade 4, engaged in maintenance and called "trouble shooters", was scheduled to work and did work the said evening tour of duty or trick on March 17.
It was also agreed that to insure the proper functioning of the equipment in the Montreal Switching Centre general maintenance is done by members of the group on the day trick, while the two men usually scheduled for the evening trick do running repairs first, and it is only when none of these are needed, that they do general maintenance.
It is further agreed, that on March 17, Robinson and Dumays, members of the group, were senior to Beauchemin, although Beauchemin was next in line on the overtime roster and would probably have been scheduled to work if overtime had been scheduled. It was pointed out that nothing in the Agreement compelled the Company to establish this overtime roster, but it had been adopted many years ago by the Union and accepted in practice by both parties to ensure the equitable distribution of overtime.
It was also accepted that when Mr. Martin, manager of the switching centre learned of Charron’s illness early in the afternoon on March 17, he decided, because there had been no trouble with the equipment that day, that all the work required during the evening trick could be performed by one technician. Bernier therefore carried on alone, did the work and has neither complained nor grieved that he had to work in this manner.
Company counsel also stated that it was a common practice throughout the system that people whose regular shifts included Saturdays, and this particularly occurred on Saturday afternoons – and when work was slack to frequently request permission to leave work one to three hours early without pay and that such request was frequently granted.
Counsel further stated that it was common practice, if a person is kept to work overtime because of someone’s absence, to assign that person for about 5 hours of overtime instead of the full eight hour shift. This depends on traffic conditions, but it was common to work less than the whole shift, rather than all of it.
Finally, Mr. Healy stated the Company has never in its history felt it was incumbent upon it or acted as if it were so incumbent, to maintain staff at the same numbers at any particular time.
None of the above three statements by Company counsel was disputed by the Union.
In the Paquette grievance, it was agreed that in the week of March 15 to 19, 1965, Billing Operator Babin R.A.C. Montreal was absent for one week on vacation. Normally, the complement of the office consisted of the said Babin, Paquette, Perret and Young, all with the same classification. It was a day shift operation - 8:30 a.m. to 5:00 p.m. In the week in question the only persons doing the work normally done by the four were Paquette, Perret and Young and a utility clerk named Rousseau who worked about 20 hours during the week. Some of the work which would normally have been done, but which was not of an urgent nature, was deferred.
The usual practice was for Paquette and Babin to operate the Addo-X-Calculator, while Perret and Young typed the bills on the electric typewriters. During the said week Paquette and Perret operated the Addo-X-Calculators, while Young and Rousseau did the bill work.
It was the Union’s submission that Paquette, being senior, should have been assigned 5 to 8 hours overtime on each of the five days, and thus he would have worked 13 to 16 hours. It was claimed this was the practice in the past.
Again there were no complaints or grievances that Paquette, Perret or Young had been overworked during the said week.
It was the contention of the Union that the issue before the Board was that as temporary vacancies had been caused by the illness of Charron and the absence on vacation of Babin the Company was obliged to fill them by scheduling Beauchemin and Paquette respectively, to work overtime on March 17 and March 15 to 19, respectively and its failure to do so was a violation of said Article 8 Clause 1(a).
The following Articles were referred to during the submissions.
Article 8 - Bulletining and Filling Positions
(a) Temporary vacancies and newly created positions of less than fifteen (15) days’ duration shall be filled without the necessity of bulletining, preference being given to the senior available qualified employee in the Office where the vacancy occurs.
(b) Special positions … shall be bulletined locally. …
(c) Vacancies in regularly assigned positions, … temporary vacancies and newly created positions, any of which are known to be of more than fifteen (15) days’duration, shall be bulletined …
(e) An employee filling a temporary vacancy, a temporary position or special position as defined in Clause 1, paragraphs (a) and (b) of this Article, … shall return to the regular position at termination of such employment.
Article 25 - Arbitration
Any grievance which is not settled … shall … be submitted to an arbitration board, provided the grievance involves the meaning or alleged violation of any provision of this Agreement.
Grievances shall not be subject to arbitration which involve:
(a) Any request for modification of this Agreement.
(b) Any matter not covered by this Agreement.
The decision of the Board shall be limited to the dispute or question contained in the statement or statements submitted to it by the party or parties. The decision of the Arbitration Board shall not change, add to, vary or disregard any provisions of this Agreement.
The Union submission was that the absence of Charron because of illness and of Babin on vacation created temporary vacancies which it was mandatory on the Company to immediately fill, by assigning Beauchemin to work overtime for one trick and Paquette for five tricks.
It was submitted that there was work to be done in each instance and in Beauchemin’s case he should have been assigned the work, as he headed the Overtime roster and in Paquette’s case he was entitled to five nights overtime as the senior available employee. Counsel stressed that the words of article 8, Clause 1 were "Temporary vacancies shall be filled" and this does not mean only if management decides to fill them.
In the alternative, counsel argued that where a temporary vacancy leaves work to be done, there is a work demand, which work must be given to the senior available employee or as in Beauchemin’s case, the one at the top of the Overtime roster, in the form of overtime, which must be scheduled. It was contended that Clause 1 contemplates providing and guaranteeing additional job opportunities to other employees in accordance with their seniority. As no pool of employees exists who could be recalled, the said clause can only be given meaning by creating job opportunities and guarantees for the existing group of employees. This could only be accomplished by the assigning of overtime or by moving persons to positions created by the temporary vacancies.
Company submitted that the grievance must fail for several reasons.
1. No temporary vacancy existed in either situation as none had been declared to exist by the Company, which has the sole prerogative to make such a declaration.
2. Article 8 is entitled - "Bulletining and Filling Positions" and thus deals with the method in which temporary vacancies are to be filled when they become available. Clause 1(a) reads "Temporary vacancies … shall be filled without the necessity of being bulletined", while Clause 1(c) says "Vacancies in regularly assigned positions, … shall be bulletined …". Even if the Union argument had any basis, the grievances would fail because Clause 1(c) requires bulletining while Clause 1(a) does not. Both clauses contemplate someone being promoted or transferred and have nothing to do with the scheduling or assignment of overtime.
3. The weakness of the Union submission is emphasized by the provisions of Article 8 Clause 1(e) which states that an employee filling a temporary vacancy, a temporary position or special position as defined in Article 1, paragraph (a) and (b) of this article, … shall return to the regular position at the termination of such employment. Neither of the grievors could have returned to a regular position as they were already in it. Thus it was obvious Article 8 Clause 1 has nothing to do with the scheduling or working of overtime.
4. Article 9 of the Agreement deals with staff reduction. There is however no article which says the Company must keep a fixed number of people at work at a particular time.
5. Finally, the Agreement is completely silent on the scheduling and assignment of overtime, although it deals with its computation and payment.
We completely agree with the submission of the Company and do so for several reasons.
1. Our chief reason is that no vacancy existed which either Beauchemin or Paquette was entitled to fill. It is a management function to determine the size of its work force unless an Agreement specifies otherwise. It is accordingly not bound to decide, because the incumbent of a job is absent, that it must immediately schedule another in his place or have someone else work overtime. That is exactly what occurred here. Bernier did the entire work of the trick on March 17 without objection, while in the week of March 15 to 19, the other three in the office assisted by Rousseau did the necessary work without complaint. Management had no legal obligation to have the work performed in any other way and thus did not violate the Agreement.
We are supported in our conclusion by the majority award of a Board chaired by Reville C.C.J. in Re Tidewater Oil Company (Canada) Limited and Local 9-599 Oil, Chemical and Atomic Workers - 14 L.A.C. - P.233. The award is not reported in full, but we are supplied with a copy of it and we quote several excerpts.
The Article being considered in that award reads as follows: "Vacancies in regularly assigned job classifications shall be bulletined within three working days of such vacancy occurring".
The award refers to the dictionary definition of the word ‘vacancy ‘and then refers to an Article in the agreement as follows - "Nothing in this Agreement shall limit the Company in the exercise of its function of management under which it shall … direct the working force … ". It then goes on to say, "This implies, therefore, the right of the Company to determine whether there is sufficient work to justify the filling of position in its working establishment. It follows, therefore, that the term ‘vacancies’ … not merely means an emptiness or a vacant position in the dictionary sense of the term but means a vacant position for which there is adequate work in the opinion of the Company to justify the filling of that position".
2. In any event, even if it could be said that a vacancy existed on each occasion, article 8 Clause 1(a) does not say it must be filled or when it shall be filled. It merely says "shall be filled without the necessity of bulletining". This entire article deals exclusively with bulletining and filling positions and cannot be extended in meaning to compel a Company to declare a vacancy to exist and make its filling compulsory.
3. Both grievances were in essence an attempt by the Union to compel the Company to schedule and assign overtime work to these grievors. There is nothing in the Agreement to compel the Company to do either of these things, the decision to schedule overtime is entirely within its discretion and its right to assign it to any person is not taken from the Company’s control by any part of the agreement. Where however the Company decides to schedule overtime, it would appear from the evidence that the Overtime roster already referred to has some status in practice, although we do not have to decide that point in resolving these grievances
For all the above reasons therefore the grievances are dismissed.
DATED AT Perry Sound This 23rd day of February, 1966.
Judge Walter Little Michael O’Brien
Chairman Company Nominee
I regret that I am unable to concur in the award of my colleagues in dismissing the grievances.
The facts are not in dispute. However, I submit that in accordance with Article 8, Clause 1(a) of the collective agreement, and in circumstances which were set out before us, that the vacancies which occurred, by reason of Charron’s absence for one day and Babin’s absence for one week, ought to have been filled by the qualified senior employees, available and willing to work overtime, being Beauchemin and Paquette respectively, and that they ought to have been paid at overtime rates for the hours in question.
In my view, Article 8 1(a) imposes a positive mandatory obligation on the company to fill temporary vacancies. The word ‘shall’ contained in the clause is an imperative work and is synonymous with ‘must’.
I believe that the words contained in the above clause mean what they say and, therefore, I cannot agree that the filling of temporary vacancies and the assignment of overtime work is entirely within the discretion of management.
It is my view that Article 8 1(a) contemplates, that in respect to a temporary vacancy, the work will be assigned to senior employees who are available and qualified to perform the work. It is my feeling that the purpose of this clause is to provide additional job opportunities for employees and that temporary vacancies can only be filled by giving the work created by such vacancies, to existing employees who are doing their regular tour of duty.
In these circumstances, I hold that this clause can only be meaningful if its application leads to the creation of additional job opportunities for existing employees.
On the facts agreed to by the company, I believe they have evaded the plain obligation imposed on them by Article 8 1(a), and, therefore, I would have allowed both grievances.
All of which is respectfully submitted.
Dated at Toronto, Ontario, this 28th day of March, 1966.