AH – 53
IN THE MATTER OF AN ARBITRATION
Canadian National Railway Company
Canadian Telecommunications Union
IN THE MATTER OF THE GRIEVANCE OF
ARBITRATION BOARD J.F.W. Weatherill - Chairman
M.J. O’Brien - Company Nominee
Drummond Wren - Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
R. S. Finegan – Employee Relations Officer
W. A. Young – Labour Relations Officer
And on behalf of the Union:
Jeffrey Sack – Counsel
G. C. Kurtz – District Chairman
A. G. Ingram – General Secretary-Treasurer
A hearing in this matter was held at Toronto, Ontario on 16 September 1968.
The grievors claim that they were entitled to be promoted to certain posted jobs. The collective agreement, by article 6(2), provides in such cases that the jobs are to be filled by the appointment of the "senior qualified applicant". It is agreed that the grievors were the senior applicants for the jobs in question. The issue before this board is whether or not they were "qualified". If the grievors were qualified for the jobs, then they ought to have been promoted to them, and they are entitled to the relief sought.
The collective agreement does not define the sense in which the term "qualified" is used in article 6(2). Having regard to the general interpretation given such language in the construction of collective agreements, however, we have no doubt that it sets out the requirement that applicants be presently qualified to perform the work which is to be done. The determination as to whether an applicant is qualified is of course one which the company must make in the course of its management of the enterprise. It would appear, however, that the company has an obligation to make that determination correctly. There appears to be no provision in this agreement, as there is in some, to the effect that the company’s determination is final on such matters, save only where it has been made arbitrarily or in a discriminatory fashion. Under the present agreement, it seems clear that the grievors are entitled to succeed if they can establish before this board (1) that they were the senior applicants; and (2) that they were qualified for the work to be done. The first condition is conceded; the second is the issue of fact which is before us.
We would point out that while the issue of a discriminatory or arbitrary determination by the company may arise in a case of this sort (given the provisions of this agreement), it is as a collateral issue only, and is not a condition of the grievors’ success. Here, the condition of the grievors’ success is simply the proof of their qualification for the work. Such qualification must be established regardless of the bona fides or otherwise of the company’s conduct.
The jobs sought by the grievors were posted as a result of the reorganization and reclassification of employees in the testing and regulating group at the company’s Winnipeg office. The new classifications and the appropriate rates had been a matter of agreement between the parties. Pursuant to the agreement, certain classifications were posted, and the grievors, as well as others, applied.
Before December 1, 1967, when the new classifications became effective, the testing and regulating group consisted of some sixteen persons, whose classifications were as follows (the complement of each classification is shown in the left-hand column):
1 Plant Chief in Charge 631.86
1 (Late Night) Chief Operator 623.64
2 (Day) Plant Chiefs 607.06
1 (E-N) Plant Chief 607.06
8 (Day) Plant Chiefs 590.50
1 (E/N) Plant Chief 590.50
2 (Swing) Plant Chiefs 597.12
Although the wage scale does not show this, the plant chiefs who received the rate of 607.06 were known as Plant Chiefs "A", while those who received 590.50 were Plant Chiefs "B". The rate of 597.12 was a composite rate based on the assignment of the employee to relieve either or both "A" and "B" men. There was no distinction between "A" and "B" ratings as to technical competence. The "A" positions were filled simply on the basis of seniority within the group.
After December 1, 1967, the classifications and salaries in the testing and regulating group were as follows:
Classification Grade Rate
1 Central Office Supervisor (Excluded)
1 Senior Plant Technician 6 Sr. 669.87
1 Senior Plant Technician (Telex) 6 Sr. 669.87
1 Senior Plant Technician (E/N) 6 Sr. 669.87
1 Senior Plant Technician (L/N) 5 Sr. 638.89
(formerly Chief Operator)
9 Plant Technicians 5 618.89
1 Plant Technician (Swing) 6 Sr. 669.87
1 Plant Technician (Swing) 5 618.89
The job of Plant Chief in Charge was eliminated, and the supervisory duties of that position incorporated in that of Central Office Supervisor, which became a management position. For the positions within the bargaining unit, a grading system was instituted. Although in some of the new grades the addition of "senior" appears, this refers to an increase in grade and reflects increased duties and responsibilities. No such distinction as that between the former Plant Chiefs "A" and "B" appears. With the new classifications, the grievors have become Plant Technicians, Grade 5.
Four of the new classifications were posted. These were: Senior Plant Technician; Senior Plant Technician (Telex); Senior Plant Technician (E/N); and (Senior) Plant Technician (Swing). Each of these was graded as Grade 6 Senior, and carried a maximum rate of 669.87. Mr. Yakubec applied for the job of Plant Technician (Swing). One other employee applied, although Mr. Yakubec was the senior. The company determined that there were no qualified applicants for the job, and ultimately it was assigned to one Rea, who had formerly been classified as Plant Chief "B". Mr. Rivais applied for the job of Senior Plant Technician. A number of others applied, although Mr. Rivais was the senior. The job was awarded to one Goodwin, who had formerly been classified as a Plant Chief "B". Mr. Martin applied for the job of Senior Plant Technician (Telex). A number of others applied, although Mr. Martin was the senior. The job was awarded to one Brocklehurst, who had formerly been classified as a Plant Chief "B". In considering whether the grievors were in fact qualified for these jobs, we note that the qualifications of the successful candidates are immaterial. This was in no sense a competition between applicants for the jobs. If the grievors were qualified, then they were entitled to the jobs, whether or not other applicants were better qualified.
The jobs sought by the grievors were "senior" positions at the grade 6 level. The majority of the plant technical positions at Winnipeg are at the grade 5 level. The grade 6 positions call for a higher degree of technical knowledge, and in the case of those graded as "Grade 6 Senior", an increment of $20.00 per month is paid in addition to the grade 6 rate for leading, guiding and directing the other plant technicians. The requirements for the posted jobs then were: a high degree of competence with respect to all of the technical equipment in the office; the ability to work out problems unassisted, using recognized methods; the ability to diagnose faults, and to lead, guide and direct other technicians in the operation and maintenance of the equipment and the clearing of faults. It may be noted that a "high degree of competence" is a requirement of the job, which must be satisfied by any applicant. In our view, this is a reasonable requirement for the job in question, and we see nothing here contrary to the Northern Pigment case, 1 L.A.C. 216, referred to by counsel for the Union.
The grievors testified that the new jobs were not in fact different from the jobs they had performed as Plant Chiefs "A". It was their evidence, in effect, that the successful candidates had taken over their jobs, and that in the result they had been demoted. To a great extent, this view was based upon the responsibility which the grievors as Plant Chiefs "A", felt they had in the absence of the Plant Chief in Charge. In fact, the major responsibilities of the Plant Chief in Charge were assumed in his absence by the Assistant Manager Plant, his superior. Within the office, on minor matters of a day-to-day nature a plant chief might assume some responsibility on occasion, and where there was an "A", or senior man, he would naturally be regarded as the leader. During longer absences of the Plant Chief in Charge, as on vacations, the senior plant chief would be expected to be temporarily assigned to act as Plant Chief in Charge. Such a temporary assignment was of course a different matter, and was not a characteristic of the Plant Chief’s job as such. Certainly the agreement of the parties establishing the senior classifications with a $20.00 monthly increment in return for the leading, guiding and directing function suggests that a new responsibility is contemplated.
The grievors say that the successful applicants do not lead, guide or direct other employees to an extent different from themselves. The question is, however, whether they may properly be required to do such work, and whether they have the qualifications for it.
In assessing the applications received, the Superintendent of the Prairie District, Mr. Law, asked several of his supervisors to give their assessments of the qualifications of each of the applicants. They were simply required to assess the applicants in the light of the requirements. On the basis of those assessments and of his own knowledge, Mr. Law made the necessary determinations, and made the appointments. At the hearing, evidence as to their assessments of the grievors’ qualifications was given by Mr. Hall, a former Assistant Manager Plant who was familiar with the grievors, Mr. Machan, who had been Mr. Hall’s predecessor as Assistant Manager Plant, and who had known the grievors, and Mr. Gustafson, Inside Plant Superintendent, and a former Assistant Manager Plant. Three others, it seems were called on to give assessments, including one Wolk, who had been Plant Chief in Charge, and was now the immediate supervisor of the grievors. None of these others, however, was called to give evidence at the hearing. We do not draw the interference that any of these persons would have given testimony damaging to the company’s case. It is a question rather of the sufficiency of the evidence which is before the board.
We turn now to a consideration of the qualifications of each of the grievors. This is a difficult question of fact in each case. The requirements of the work have been (and perhaps only could be) expressed in rather general terms. The grievors have been engaged in related work for many years. It must be borne in mind, however, that the jobs in issue here require certain leadership qualities, and as to these the assessments of knowledgeable members of management, if fairly made, are entitled to great respect from a tribunal such as this. It is with these considerations in mind that we assess the evidence on either side of the issues before us.
Mr. Yakubec’s seniority dates from June 2, 1948. He has been engaged for many years working on equipment of the sort here in question. He has taken courses given by the company in the operation and maintenance of this equipment, including, a general testing and regulating course (4 months), Telex (3 weeks), Reservak (3 weeks), Broadband (2 weeks), equipment maintenance (2 months) and a three-day course in transistors. The grievor failed to pass his examination on transistors, but testified that he was given a two-week course in three days, and that his examination was unfair. He had in fact acted as Plant Chief in Charge on a number of occasions.
The assessments made of Mr. Yakubec by the company’s officials show some variation, although none recommended that he be appointed to the posted job. Mr. Machan and Mr. Gustafson considered Mr. Yakubec to be generally knowledgeable; Mr. Hall, however, found that his general knowledge of circuitry left much to be desired. All, however, found that his trouble-shooting techniques were haphazard and that he did not adopt a logical or orderly approach to the diagnosis and elimination of faults in the equipment. In this respect, therefore, he lacked the sort of "leadership" qualities which were required.
Mr. Rivais’ seniority dates from May 20, 1946. He has held a variety of jobs with the company, and has been engaged for many years in technical work of this sort. He has had training in Telex, microwave, and transistors. He is admittedly unable to do broadband work, or diagnose problems with that equipment. In their assessment of Mr. Rivais, each of the company’s witnesses, while recognizing his competence to handle routine work, emphasized his inability to deal with matters of an unusual or non-routine nature. All these witnesses were firmly of the view that Mr. Rivais lacked any quality of leadership in technical matters.
Mr. Martin’s seniority dates from September 19, 1951. He has had a number of jobs with the company, and many years’ experience with the equipment involved here. He has had training in Broadband (6 weeks), Telex (3 weeks), transistors (2 weeks) and testing and regulating (4 weeks). He had been a radar technician in the Air Force and held supervisory duties during that period. In his case (as in the cases of the others) , there has been no criticism of his work performance. The company’s witnesses, while acknowledging Mr. Martin’s knowledge, emphasized that he was very slow in performing his work, and concluded, in general, that he lacked the drive or initiative to be a leader. It may be observed that Mr. Martin was never told his performance was slow, and that the evidence is that his work was never criticized in any way.
Mr. Martin’s case differs from the others in that it seems to have been recognized that he had the theoretical qualifications for the job. In Mr. Machan’s assessment of Mr. Martin, it is stated under the head of "theory": "Has not demonstrated any abundance. Hard to analyze. Rated fair - uncertain". In his viva voce testimony, Mr. Machan said of Martin: "He falls short as well under the heading of theory. He’s hard to analyze because he hasn’t offered any proof of his ability". These statements contradict those of Messrs. Hall and Gustafson, who state that Martin had demonstrated his ability to comprehend the work and that he had a good knowledge of electronic theory. The real trouble with Mr. Martin, in the company’s view, was that he was slow, and would not be able to lead, guide and direct others. Mr. Gustafson, in his testimony, acknowledged that the successful applicants had no experience in leading, guiding or directing. To do that, he said, the man must have a good knowledge of the equipment and its theory. Since Mr. Martin, according to the evidence, did have that knowledge, it would seem that he thereby established at least one of the criteria of his ability to lead. Mr. Martin applied for the job of Senior Plant Technician (Telex), and in that capacity would be required to lead, guide and direct from three to five others. These persons, of course, would be qualified Plant Technicians.
In cases of this sort, the onus is upon the union to establish the qualifications of the grievors for the jobs sought. Having regard to all of the evidence, it is our conclusion that it has not been shown that Messrs. Yakubec and Rivais were in fact qualified for the work which was involved. The case of Mr. Martin, as we have noted, is on a different footing, since taking the evidence as a whole his technical qualification is, in our view, established. The matter of his ability to lead, guide and direct others is certainly not free from doubt. Having regard to the circumstances of this case, including the number of persons led, the nature of the "leadership" involved and its relationship to technical knowledge, and upon a consideration of all of the evidence before us, it is our conclusion that Mr. Martin’s qualifications for the work in question have been made out. Mr. Martin, we find, was the senior qualified applicant for the job of Senior Plant Technician (Telex), and as such was entitled to the appointment.
For the foregoing reasons, it is our award that the grievance of Mr. Martin succeeds, and that he is entitled to the relief asked. This board will remain seized of the matter for the purpose only of determining the compensation to which Mr. Martin may be entitled, if the parties are unable to agree as to that.
The grievances of Mr. Yakubec and Mr. Rivais are dismissed.
DATED AT TORONTO, THIS 20th DAY OF DECEMBER, 1968.
J.F.W. Weatherill Drummond Wren
Chairman Union Nominee
Minority opinion of M. O’Brien.
I appreciate the opportunity of studying the award of the majority, and the consideration given my comments by the chairman.
Although I agree with the disposition the Board makes of Yakubec and Rivais I am unable to agree with the Board in the case of Martin.
It was not shown in evidence that there was any need to tell Martin about his shortcomings. They were introduced to show that he was not able to meet the minimum acceptable requirements of the new job and did not affect his status on the old job.
The decision to promote an employee involves many intangible things which are almost impossible to itemize or categorize, as well as the tangible things which have to be considered. Knowledge of the intangible things (which in my view are just as important as the tangible things) are gained in the day to day dealings with a person.
There was no evidence that the management people who gave evidence regarding Martin were in any way biased or that they did not give him full and fair consideration.
I believe that in a case such as this the decision of reasonable and knowledgeable management made in an obviously fair and unbiased manner should not be upset by a board such as ours and for this reason I would dismiss Martin’s grievance.
All of which is respectfully submitted.
Dated at Toronto this 11th day of January 1969.
COMMENTARY: Following lengthy negotiations, the parties signed a Memorandum of Agreement to cover revised rules and rates of pay governing the services of all employees in the technical classification within the Telecommunications Department. This Memorandum of Agreement, now generally referred to as the "Technical Agreement" includes a provision for the establishment of "Senior" positions in the various classifications of technician where, in addition to regular duties, a technician is required to lead, guide and/or direct other technicians, or to assume other minor supervisory responsibilities for which an amount of twenty ($20.00) per month ($4.60 per week) is paid in addition to the applicable step rate of the salary grade involved. At Winnipeg a number of "Senior" Plant Technicians were designated and with implementation of the new "Technical Agreement", local bulletins were issued. After a most careful review of the individual qualifications of the applicants, it was concluded that the grievors, Messrs. Yakubec, Rivais and Martin, were not qualified as to technical knowledge and/or the ability to lead, guide and direct others.