AH – 44
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS TELECOMMUNICATIONS
COMMERCIAL TELEGRAPHERS’ UNION
IN THE MATTER OF THE GRIEVANCE CONCERNING Bilingualism
SOLE ARBITRATOR: J. A. Hanrahan – Chairman
M. O’Brien – Company Nominee
W. J. Ogilvie – Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
R. S. Finegan – Employee Relations Officer
W. Bellamy – Superintendent, Maritime District
W. A. Young – Employee Relations Supervisor
R. T. Birt – Labour Relations Officer
And on behalf of the Union:
E. B. Joliffe, Q.C. – Counsel
R. A. Tomlinson – General Chairman
A. G. Ingram – General Secretary-Treasurer
P. F. Delaney – District Chairman
A hearing in this matter was held at Toronto, Ontario, on July 10, 1967.
The facts established that in the year 1966 it became apparent a vacancy would occur in the Company’s office at Edmundston, New Brunswick, for the position of Manager - Repeater Attendant. This was caused by the retirement from that office of the former incumbent, Mr. Wilkes.
For reasons that will be outlined, the Superintendent of the Maritime District, Mr. J. Bellamy, decided that a bilingual (French-English) employee should replace Mr. Wilkes. On January 10, 1967, this Bulletin was therefore issued:
Applications addressed to the undersigned will be received from those duly qualified up to and including January 19, 1967, for the position of Manager-Repeater Attendant, Edmundston, N.B. Rating per schedule. Successful applicant must be bilingual (English and French).
Under date of January 18, 1967, the grievor, Mr. Floyd E. Everett, sent this telegram to Mr. Bellamy:
File 5015-C-5. Please consider this my application on Bulletin C-5 covering the position of Manager-Repeater Attendant, Edmundston, N.B.
Under date of January 18, Mr. Bellamy sent this telegram to Mr. Everett:
Re your application Bulletin C-5, please confirm that you can meet the bilingual qualifications and that you have a working knowledge of both French and English, both written and spoken.
The grievor’s answer read:
Re application Bulletin C-5, I do not have a working knowledge of French, either written or spoken, but, however, would certainly take advantage of any training that would be made available to me in order to meet this qualification.
On January 20, 1967, the original Bulletin C-5 was cancelled, to be replaced by one bearing date of January 24, reading:
Applications addressed to the undersigned will be received from those duly qualified up to and including February 2, 1967, for the position of Manager-Repeater Attendant, Edmundston, N.B. Rating per schedule:
W. Bellamy, Superintendent.
(For the information of those interested in applying for this position a working knowledge of the French language is essential.)
On January 23, 1967, the grievor filed this application:
Herewith please consider this my application on Bulletin C-8 covering the position of Manager-Repeater Attendant, Edmundston, N.B.
Certain correspondence passing between the parties prior to the matter being directed to Arbitration was filed by Mr. Jolliffe. Extracts from these letters actually portray the opposite positions as well as the evidence produced before the Board.
The first letter was dated January 8, 1967, from Mr. F.P. Delaney, District Chairman of the Commercial Telegraphers’ Union, to Mr. W. Bellamy, reading:
I wish to protest the wording of Bulletin C-5. This bulletin stipulates that the applicant must be bilingual. I am not aware of any requirements under our agreement for this type of appointment. Further, I would like to point out that on a number of occasions over the past years we have had assignments at this office and in some cases forced assignments and in each case the incumbent assigned was always English speaking only. These employees carried out their duties in a satisfactory manner and I see no reason to alter the practice at this time.
I would request that the present bulletin be cancelled and a new one issued in its place.
Under date of January 9, Bellamy replied, in part:
… It is a fact that our agreement makes no provision for the issuance of bulletins stipulating that bilingualism should be a necessary qualification for appointment to any position under the agreement. As a matter of fact, in no case does the agreement stipulate what qualifications are or are not necessary for appointment to any specific position. On the other hand, there is nothing in the agreement which prevents us from stating that particular qualifications are required.
In Edmundston and the immediate vicinity, virtually all our customers are French speaking or have on their staffs French speaking officers and employees with whom our representatives must deal. You will recall that this matter was discussed some time ago and that in order to be certain of having a French speaking employee available we recruited a trainee from outside the service into our most recent T. & R. School. This was done after it had been established that it was not possible for us to provide adequately competitive service in Edmundston without a bilingual staff.
It is in fact that from to time we have been forced to temporarily appoint or assign employees who had no knowledge of the French language. This action was necessary in order to ensure continued operation of our plant but it involved us in overtime costs in order that we might have a French speaking employee on duty an resulted in strong criticism from our customers.
As stated above there is nothing in our agreement which prevents us from stipulating special qualifications required for any position. The fact that the ability to transact business in the French language is necessary to our Edmundston staff, makes it impracticable for us to appoint an employee with a knowledge of English only.In these circumstances I feel that I must allow Bulletin C-5 to run as originally issued and appoint the senior applicant qualified in the various phases of the work and in the French language.
A letter from the General Chairman of the Union, Mr R.A. Tomlinson, addressed to Mr. F.H. Beauchamp, Manager Regional Manager, under date of January 17, contained this suggestion, after adding his objection to the C-5 Bulletin:
You will recall I mentioned this matter to you a short time ago, at which time I explained I was prepared to recommend to our General Committee that the Company and the Union negotiate a provision covering this matter. The following provision incorporated in our agreement may resolve this situation:
The Company and the Union recognize that it is desirable to promote bilingualism among employees of the Company. To that end, the Company agrees to pay 75 per cent of the cost of a course in either the French or English language, whichever may be applicable. The Company further agrees that an employee who possesses or acquired reasonable efficiency in both English and French will be paid a premium of 5 per cent of his basic salary.
On February 3, 1967, the following Bulletin C-8 was published:
There being no applicants with schedule seniority for the position of Manage-Repeater Attendant, Edmundston, N.B., Mr. E.L. Roy is appointed.
When the successful applicant was notified that he would be admitted to the Testing and Regulating School, Mr.Bellamy wrote him a letter, containing this information:
When you were interviewed in the connection with the possibility of our receiving training, it was explained to you that we anticipate a vacancy in Edmundston, N.B. for which a knowledge of both the French and English language will be necessary and to which we do not expect to receive applications from qualified employees. We indicated that should there be no qualified applicants for the Edmundston position, we would expect you to accept it. You indicated that you were agreeable to this arrangement, and, on the basis, you were accepted for training in the school.
Following the appointment of Mr. Roy, on January 22, 1967, Mr. Tomlinson wrote the General Manager, Mr. H.J. Clarke, saying, in part:
During our discussion on this matter we emphatically stated the earlier bulletin should have been cancelled and rebulletined because it contained a rider to the effect to qualify for this position an employee must be bilingual. There has never been such a requirement and the Company is acting in a capricious manner in refusing to act in good faith by eliminating all reference to whether an employee is English, French or Italian.
Under date February 14, R.S. Finegan, General Manager, wrote Mr. Tomlinson, saying, in part:
The population from whence we drive our business at Edmundston, N.B. is predominantly French speaking. For this reason, it is imperative that at Edmundston our representative, who must deal with the business public, must be able to carry on the Company’s business and protect its interest in the French language when necessary. It is therefore essential that one of the qualifications for the appointee to the position of Manager-Repeater Attendant be a working knowledge of French.
The question of a French speaking Manager for Edmundston was discussed with the District Chairman some time prior to his retirement of the former incumbent, Mr. Wilkes. It was made clear to him at that time that in filling the vacancy that would be created, we would have no alternative but to fill it with someone who could speak French. Our planning was all done on this basis. When the bulletin was issued, the applications were screened in order to determine the senior qualified applicant as called for in Article 8 of the collective agreement. There were no applications received from employees holding seniority under our agreement who had the necessary qualifications including the ability to speak French …
There was no dispute that the grievor was fully qualified to perform the duties required in the job, except as he frankly admitted, he could not speak French.
The evidence produced before the Board established that Edmundston has a population of 13,400 of which 90 per cent are "basically French speaking." Mr. Bellamy testified that the surrounding district is even more predominantly French speaking.
A survey of telephone calls received at this office, taken over a period of three days, showed that approximately 73 per cent were French-speaking calls; that the customers expected to be dealt with in the French language.
It was established that the former holder of this office, Mr. Wilkes, was not fully competent in the French language. He spoke what one witness described as "Pigeon French." On the other hand, he apparently had an exceptional personality that endeared him to the community, so much that when he retired, a community party was held for him. This was described as most unusual for one in that position.
In describing the general duties of a Manager-Repeater Attendant, Mr. Bellamy told what was required of him in the area of public relations. He said he was expected to call on customers occasionally, not with great frequency; he was expected to promote the sale of company facilities; he was expected to accept complaints from customers that may be brought in across the counter or conveyed to him by telephone; and generally "to represent the Company in the local public." He was also expected to accept calls from the public in connection with circuit troubles or equipment troubles and to obtain from the customer, as exactly as possible, the type of difficulty being experienced.
Questioned as to whether or not the special staff concerned with sales would not be more likely to contact the public with respect to such matters, the witness replied that in many cases the association the Manager had with business people in the community developed leads that could result in the sales staff being called in. Often, however, a sale could be made by the manager himself.
Mr. Bellamy told that the Company required bilingual representation in Moncton, N.B., in Campbellton and Bathurst. A system now in effect in districts where the offices closed in the early evening, permitted customers to dial an indicated number to obtain a French-speaking employee.
Under cross-examination Mr. Bellamy stated that he knew of no other office in the Maritime district where he would insist on a bilingual appointee.
Mr. Bellamy told that this office handled approximately one hundred telegrams a day, of which 91.6 per cent were in the English language. There are two other members of the staff in this office, each of whom is bilingual. One is on duty with the Manager, the other reports for duty later in the day.
The Superintendent explained, however, that apart from telegrams the major portion of income in this office was derived from leased facilities, such as Telex. It was in this area, particularly, that the manager’s ability to speak French was important. The Company experienced difficult competition in this field from the New Brunswick Telephone Company and their business was done in the French language.
It is obvious from the foregoing there are two points to be decided in this matter. The first is whether there was an actual need for the services of one who speaks both French and English in the position of Manager-Repeater Attendant at Edmundston. The second is whether there is anything in the contract that would prevent the Company from requiring such a qualification.
As to the first, from all the evidence heard, we are convinced the decision made by the Company was not reached on the basis of cultural or political considerations, not with any intent to discriminate against the grievor by circumventing his seniority rights. We are satisfied an actual business necessity existed for one better qualified in the command of the French language than the former occupant of the post, in order to remain on a competitive basis with its principal contender, the New Brunswick Telephone Company for its most profitable source of income, the leading business.
In this respect we consider of cogent value the evidence that the New Brunswick Telephone Company conducts its business in the French language in this community. That gives a realistic picture of a business fact of life in this particular area. It is one this Company could not reasonably continue to ignore, nor can this Board in reaching the conclusion it has expressed.
As to the second point, the contractual rights involved, Mr. Jolliffe referred the Board to several provisions in the collective agreement. Both counsel were in agreement, however, that the pertinent provision is contained in a Memorandum of Agreement, incorporating amendments to Article 8, Clause 1 (c), reading in part:
8.1 (c) Such positions will be filled within thirty days of Bulletin by the appointment of the senior qualified applicants …
To be underlined is the word "qualified".
The main thrust of Mr. Jolliffe’s argument was that for years past the parties had operated with the word "qualified" being interpreted as having reference to the ordinary duties involved, without any suggestion that bilingualism was a requirement. For the Company to add unilaterally such a requirement to the ordinary qualifications was to jeopardize seriously the pattern as to seniority rights of employees; that if it should be sanctioned in the present instance, there would be nothing to prevent the Company exercising the same right elsewhere. Such action, it was claimed, would affect the provision in the agreement dealing with a reduction in staff, with the result that should the Company so decide, a junior employee speaking French would be able to bump out a senior employee unable to do so.
Mr. Jolliffe suggested the proper way to interpret this word was not to "haggle" over dictionary meanings, but to look to the manner in which the parties had recognized the word "qualified" in the past.
A good portion of Mr. Healy’s argument dealt with the point we have already decided, namely, whether the conditions in Edmundston justified as an actual business necessity the action taken by the Company.
Mr. Healy disagreed with the view that the Company could require an ability to speak French in all circumstances. Such action would be subject to review in arbitration proceedings and the validity of the necessity would be of determining importance.
Counsel for the Company argued that Mr. Jolliffe well knew that requirements in the operation of a business constantly required changes in methods or in employee requirements; that such changes were common in business, unless there was a specific provision in a collective agreement prohibiting such action.
In support of this reasoning Mr. Healy referred the Board to a decision of His Honour, Judge R.H. Reville, in a matter concerning the National Union of Natural Gas Workers and the Union Gas Company of Canada, 12 LAC, 58, the headnote reading:
Job classifications and qualifications are not frozen at the date of the collective agreement. It is within the rights of the management to change job qualifications to meet changing conditions. Thus, where a company institutes a requirement of written examinations in order to qualify for certain jobs, the management rights clause of the agreement is violated if the union prevents those of its members who wish to secure these jobs when properly posted from writing such examinations.
In the body of this award, at page 172, this was held:
Dealing with the first issue, there is a wealth of authority to support the proposition that the company may unilaterally alter, modify and extend job qualifications and job descriptions during the lifetime of the collective agreement in the absence of any clause in the collective agreement forbidding or preventing such company action. Such power is, of course, contained in the usual management rights clause to be found in most if not all collective agreements.
In a matter concerning the right of management unilaterally to set qualifications for jobs, re United Cork Linoleum & Plastic Workers and Union Carbide Canada, Limited, 17 LAC 171, the foregoing quotation was cited with approval.
Mr. Jolliffe drew the attention of the Board to the fact that both collective agreements dealt with in the foregoing Awards contained Management’s Rights Clauses, which this agreement does not.
As to this latter point His Honour, Judge W. Little held, in a matter concerning United Rubber Workers, and Firestone Tire and Rubber Company, 11 LAC 277:
The absence of a "management rights" provision in a collective agreement merely means that the company retains all rights which it had prior to the agreement save such as are specifically taken away by the agreement.
After a careful study of the provisions in this collective agreement to which Mr. Jolliffe drew our attention, we are convinced the answer is to be found, as suggested by both counsel, in considering the word "qualified". Is it an ambiguous word that requires interpretation by reference to the past conduct of the parties?
In effect, what the Union asks us to find is because previously the word "qualified" has not been used so as to include the factor of bilingualism, the parties intended its exclusion. In other words, that its absence in previous bulletins should be taken as past practice to assist us in our interpretation.
It is basic that when a written contract is clear and unambiguous the conduct of the parties cannot be used to prove that it means something different than it says. This was stated effectively in a matter concerning Phelps Dodge Cooper Products, 16 LAC 229:
Plain and unambiguous words are undisputed facts. The conduct of the parties may be used to fix a meaning to words and phrases of uncertain meaning. Prior acts cannot be used to change the explicit terms of a contract. An Arbitrator’s function is not to rewrite the parties’ contract. His function is limited to finding out what the parties intended under a particular clause. The intent of the Parties is to be found in the words which they, themselves, employed to express their intent. When the language used is clear and explicit, the arbitrator is constrained to give effect to the thought expressed by the words used.
It was established there is no written description for the job in question or for others covered by this agreement. As indicated, the word "qualified" is not defined. This, in our opinion, leaves the Company free to give to that word its ordinary meaning, namely, competent to fill the necessary requirements.
We have already found there was a business necessity existing in Edmundston, recognized for some time, requiring the incumbent of this job to have a working knowledge of the French language. This made it unwise to continue hampering the full potential of the operation by not having someone so qualified in this position. This was reasonable and possible because of the absence in the contract of language preventing such action.
Of interest is the reasoning found in an Award in a matter concerning New York Air Brake Company and International Machinists, 61-1 ARB, 3852, where it was held:
The union contented that a collective agreement is like any other contract in that it is breached if either party unilaterally changes the status of the employees whose conditions of employment the contract governs. In the judgment of this arbitrator that view is incorrect. The essence of business management is the undertaking of risks and the effort to minimize the difficulties uncertainty entails by anticipating and adjusting to change. To survive, a company must have the freedom to rearrange its resources to meet changing requirements. That freedom is limited only by its obligation not to discriminate among employees and to honour the obligations imposed by the collective agreement and by law which might specify other limitations. The flexibility not specifically denied management is reserved to it. The more competitive is the product market of the company the more precious is that flexibility. Indeed the preservation of employment opportunities for its employees may be dependent upon it.
Our conclusion, therefore, is that if the word "qualified" in this provision of the agreement is to be circumscribed by excluding bilingualism, it remains a matter for a negotiating effort at the next opportunity. Such a restriction is not contained in that undefined and unambiguous term.
Inherent in this finding, of course, is the suggestion by Mr. Healy that it would always be incumbent upon the Company in arbitration proceedings to establish a realistic standard for its use. In this matter we find they have fulfilled that requirement.
For these reasons this grievance is dismissed.
Dated at Brampton, Ontario, this 17th day of July, 1967.
J. A. Hanrahan M. H. O’Brien
Chairman Company Nominee
COMMENTARY: A majority award signed by the Chairman and the Company Nominee based their decision on the meaning of the word "qualified". Unless bilingualism is specifically excluded from the meaning of "qualified" under the provisions of the Agreement then it can be considered to be included. It is incumbent on the Company to establish a realistic standard for the use of the bilingual qualification and the Board ruled that this had been fulfilled in the present case.