AH – 55
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS TELECOMMUNICATIONS DEPARTMENT
COMMERCIAL TELEGRAPHERS’ UNION DIVISION 43
IN THE MATTER OF THE GRIEVANCE RE TRAINING
ARBITRATION BOARD: Professor H. W. Arthurs - Chairman
Mr. M. J. O’Brien - Company Nominee
Mr. 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
C. Hammett –
A. G. Ingram – General Secretary-Treasurer
A hearing in this matter was held at Toronto, Ontario on 16 September 1968.
By letter dated June 28, 1967, Mr. Charles H. Hammett, Chairman of the Pacific District of the Union, initiated the instant grievance. The opening paragraph of his letter indicates the nature of this grievance:
It is my strong view that the Company has violated the terms of our current agreement in not giving an opportunity to those qualified employees to enter a training school under the terms of Article 5, Clause 1 rather than hire Mrs. M. Moffat who held no rights under the Agreement.
In order to understand the nature of the grievance, certain background facts must be recorded. For some years past, the Company has had need of employees to perform the service of relief Automatic Operator during the summer vacation schedule. If employees who are trained to perform this job are available, they are invited to apply by means of a Bulletin announcing the vacancies. However, in the event that no trained employees are available, the Company customarily holds one or more training schools for relief Automatic Operators. Employees enrolled in the school must possess minimum qualifications to enable them to profit from it, and they are subjected to a course of training lasting approximately six weeks.
To put the matter shortly, the Company did not conduct such a training school in 1967, although two employees were apparently anxious to enroll and possessed minimum qualifications. Instead, relief functions were performed during the summer vacation period by a Mr. Northcote (a trained Automatic Operator), by the assignment of overtime to various of the other Automatic Operators, and by Mrs. Moffat, a former Automatic Operator, re-hired for a period of about 2-1/2 months to perform relief work. As indicated, the union grieves against the third method employed to cover this period.
The Company explains its failure to hold the school, basically, by reference to the impending installation of certain automatic equipment known as the C8500 which was expected to displace (and has in fact since displaced) the Automatic Operator’s position. Although the Company had indicated early in February, 1967 that a training school would be held, within several weeks it had been advised that installation of the C8500 unit was imminent. Accordingly, it was decided not to hold a training school which would equip employees for work which would soon vanish. However, in mid-May the relief Automatic Operator position was bulletined. When it was discovered that alone of the eight trained Automatic Operators on the staff of the District Office Mr. Northcote had applied, the Company was left in a position where it had to seek assistance elsewhere. It was for this reason, so the evidence went, that Mrs. Moffat was contacted, along with at least one other former employee of the Company. The Union makes much of the Company’s failure to bulletin or to train other employees to fill the relief position between February and May. The Company responds by pointing to the fact that the installation of the C8500 unit had been expected to occur early in the summer, which would obviate entirely the need for relief operators. Only in May was it realized that the date of commencement of this equipment was to be postponed and that there would, consequently, be a requirement for relief Automatic Operators over the summer.
Vigorous cross-examination by union counsel did not materially shake the evidence noted above. However, it is clear from the testimony of both the Company and the union witness, and from the correspondence exchanged between the parties, that the Company was also concerned because (except for Mr. Northcote), none of the trained Automatic Operators had responded to the May Bulletin requesting them to undertake relief work during the vacation. The parties appear to be on common ground in stating that no employee is contractually bound to apply for a bulletined job simply because he possesses the necessary training, although there may be some moral obligation on trained employees to make themselves available for the tasks which they are capable of performing. In the circumstances of the present case, it appears that the working conditions of a relief Automatic Operator were much less attractive than those enjoyed by the trained employees (who normally worked in other classifications) so that their failure to apply for the bulletined position is at least understandable, as well as contractually permissible.
Against this background of facts, then, what is the nature of the Company’s obligation to provide training for qualified employees? Article 5, Clause 1, appears to be the only language in the agreement dealing specifically with training:
5.1 As staff requirements indicate, or when for any reason changes in its operating methods or practices require additional knowledge and skill, the Company will provide the necessary facilities and instructions to enable such employees as are designated by the company to become proficient in the operation of such methods or practices, and during the qualifying period such employees will be compensated at the pro rata rate of their regularly assigned positions.
The Company shall decide the nature and period of training that will be made available to employees. The selection of the employees to be trained shall also be made by the Company on the basis of seniority if qualifications are sufficient.
In essence, the Union argues that the opening phrase of Clause 1 - "as staff requirements indicate" - describes an objective set of facts which, if it exists, automatically imposes a legal obligation to provide training. According to the union, the arbitrator may determine what actually were the Company’s "staff requirements". If these "requirements" included relief Automatic Operators, the Company was obliged to provide training to qualified employees to meet its "requirements". But the decision to train, according to the union, cannot be unilaterally determined by the Company.
Whether the union’s contention is right or wrong as a general matter, the agreement does speak very clearly in Article 15 to the particular problem with which this Board is confronted. Article 15 provided merely that where additional relief employees are required to meet vacation schedules, such positions shall be bulletined. Article 15 does not provide that in the event that inadequate response is received to the Bulletin, any training course must be held for relief employees. Although the point was not raised, it would seem that the Company could discharge its contractual obligations in relation to meeting its requirements for relief employees, by inviting trained employees to apply for the position. this it did.
However, Article 15 is referred to here not because it is dispositive of the issues in the case, but rather because it casts some light upon the interpretation of Article 5 contented by the union.
Article 15 clearly does appear to constitute a promise by the Company that a "sufficient number of regular relief positions will be established to meet all reasonable vacation requirements". This is a promise by the Company, and it is a promise which measures the extent of its obligation under the "staff requirements" language of Article 5. Thus, it would appear that if the Union felt that an insufficient number of positions were established for vacation relief, it ought to have filed a grievance to that effect. However, it does not follow that the union was entitled to complain because the Company met its staff requirements by re-hiring its former employee Mrs. Moffat.
We were referred to no language in the agreement which would forbid the Company to resort to the labour market, once it had discharged its obligation to bulletin vacancies. Certainly Article 5 does not impose such a restriction, as it merely compels the Company to "provide the necessary facilities and instruction" to enable employees (on the basis of seniority) to train for vacancies. Where no issue of training is involved (as it was not in the present case) Article 5 would not appear to come into play.
The matter can be approached in another way. If, as the union contends and the Company concedes, employees with training as Automatic Operators are under no obligation to apply for the bulletined vacancy, upon what basis can it be said that the Company is obliged to provide training to other persons who will be similarly unencumbered by any legal obligation? For example, even the two employees who were prepared to train in 1967 might legally have declined to assume the responsibility of relief Automatic Operator once vacancies in that position were bulletined. To be sure, the employees in question did give their word that they would not in fact refuse to undertake such duties, but the fact remains that they were (on the union’s argument) legally free to do so. Equality of obligation in this context is a principle which assists us in interpreting Article 5 favourably to the Company.
Finally, even if we were to accept the union’s position, and make our own independent assessment as to what the Company "staff requirements" were, on the assumption that there was a legal obligation to train employees for any vacancies that might have existed, we ourselves would have taken into account the anticipated introduction of the C8500 unit as a relevant consideration in assessing staff requirements. Surely it would have been pointless to have the two employees in question go through a prolonged training course so that they could undertake relief functions for a period of several weeks which would never re-occur on any subsequent occasion. It is true that with the wisdom of hindsight it now appears that the C8500 did not come into operation in the summer of 1967, and that the need for relief operators was consequently somewhat greater than had been anticipated, but this cannot affect the Company’s obligation which must be measured as at the time of the conduct complained of. Looked at from that perspective, we cannot find that the Company acted unreasonably or in violation of the agreement.
Accordingly, the grievance is to be dismissed.
The Union Nominee, Drummond Wren, dissents
DATED AT Toronto, October 29th, 1968.
H. W. Arthurs M. J. O’Brien
Chairman Company Nominee
COMMENTARY: The Union argued that the Company violated the collective agreement when it decided to hire a former employee to fill a temporary position of Automatic Operator which position has been duly bulletined to employees in the bargaining unit. The Union further claimed that under the provisions of Article 5, Clause 1 of the agreement, the Company must train employees who have the required pre-requisite qualifications before hiring a former (already fully qualified) employee. The Company’s position, supported by a majority award, was that, having received an insufficient number of applications on the bulletin, Article 5, Clause 1 of the agreement does not require that a further number of employees be trained nor does it forbid the Company the right to resort to the labour market once it has discharged its obligation to bulletin vacancies.