AD HOC – 71
IN THE MATTER OF AN ARBITRATION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
IN THE MATTER OF A DISPUTE REGARDING APPOINTMENT OF A JUNIOR BILINGUAL TELEPHONE OPERATOR AT MONCTON, NEW BRUNSWICK
ARBITRATION BOARD: Rory F. Egan Chairman
S. E. Dinsdale, Q.C. Company Nominee
C. W. Pethick Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
R. Finegan – Manager Labour Relations
W. A. Young – Labour Relations Officer
And on behalf of the Union:
L. A. MacLean – Counsel
R. Gay – District Chairman (Maritimes)
R. A. Tomlinson – General Chairman, Toronto
A. G. Ingram – General Secretary-Treasurer, Toronto
A hearing in this matter was held at Toronto on January 6, 1972.
The issue brought by the parties before this Board has its origins in the posting of a bulletin on March 25, 1971. The bulletin reads as follows:
Applications will be received from those duly qualified up to and including April 3, 1971 for the position of one Telephone Operator, Moncton, N.B. Rating as per schedule. The successful Applicant on this bulletin must be capable of carrying on the Company’s business in both official languages.
The dispute centres around the requirement that the successful applicant must be capable of carrying on the Company’s business in both official languages.
The applicant to whom the job was awarded was Mrs. G.A. Little. Mrs Little meets the bilingual requirements. Her seniority, however, is less than three other employees who are not bilingual and who were excluded from the position through their inability to meet that requirement.
The Union argues that the bilingual requirement is contrary to the provisions of the collective agreement, while the Company, on the other hand, takes the position that bilingualism is a reasonable qualification for the job at the location in question, which is Moncton, New Brunswick.
The Union claims that the action of the Company in appointing Mrs. Little to the position violates the provisions of article 6 – Bulletining and Filling Positions, with particular reference to clauses 1 and 3 of that article. Those clauses read, respectively, as follows:
Clause 1: Vacancies in regularly assigned positions, temporary vacancies and newly created positions, other than positions in Grade 1, and “Senior” positions mentioned in Clause 6 hereof, which are known to be of more than thirty (30) days’ duration, will be bulletined throughout the district in which they occur.
Clause 3: Applications to bulletined positions must reach the District Manager issuing the bulletin not later than ten (10) calendar days from the date of bulletin. Such positions will be filled within thirty (30) days from the date of bulletin by the appointment of the senior qualified applicant except as hereinafter provided for in Clause 11.
The evidence is that 40 to 50% of the population of Moncton, New Brunswick is French speaking. The staff of the employer’s office at Moncton consisted of twenty-one persons, of whom seven were clerks, five were telephone operators, eight were teleprinter operators, and one was is chief operator. Of this staff of twenty-one persons, only three were bilingual – namely two clerks and one teleprinter operator. There were no bilingual telephone operators. Mr. Healy, for the company explained that during a period of expansion in the 1950s, many bilingual persons were hired, but because of a reduction in staff in 1967 and 1968, those persons who were bilingual, being junior in point of service, had been laid off, and the employer found itself with only three bilingual employees, none of whom were telephone operators. It seems clear on the evidence that there was a demand for transactions to be conducted in French, and Mr. Gay, who gave evidence for the Union, confirmed that he was aware that there had been requests for business to be conducted in French. He also gave evidence of an instance where a customer had to come to the office to conduct his business because there was no one available to speak to the customer in French on the telephone. It was also given in evidence that the University of Moncton was bilingual and that the President of the university had complained of the lack of French speaking telephone operators. Mr. Gay also testified that this office in Moncton is the only service the Company has available in New Brunswick on a 24-hour a day basis. He further mentioned that there had been a “zenith” telephone number to an operator in Quebec city. He was not certain whether such a service continued to be available.
We are of the opinion that, on the evidence, the bilingual requirement was reasonable and necessary in the circumstances outlined above.
The question remains as to whether the Company, notwithstanding the reasonableness of the requirement, is prohibited by the terms of the collective agreement, as the Union maintains, from unilaterally requiring bilingualism where such a requirement was not previously attached to the job of telephone operator at Moncton.
It might be appropriate at this point to remark that there is no written job description for the position in question nor is the word “qualified” defined in the agreement.
In support of its position the Union cited two cases:
Canadian Railway Office of Arbitration Case No. 257, heard at Montreal, Tuesday, January 12, 1971 concerning Canadian National Railway Company and Canadian Brotherhood of Railway, Transport and General Workers, J.F.W. Weatherill, arbitrator (CROA 257).
Canadian Railway Office of Arbitration Case No. 281, heard at Montreal, Tuesday, May 11, 1971 concerning Canadian National Railway Company and Canadian Brotherhood of Railway, Transport and General Workers, J.F.W. Weatherill, arbitrator (CROA 281).
Each case deals with a situation where the Company required that applicants for open positions be bilingual and the Union grieved. In case CROA 281, which concerned the position of stenographer, the grievance was dismissed on the grounds that because of, at the time when the rate for the job was struck, the parties knew that in many cases the stenographers were bilingual.
In case CROA 257, the agreement contained a clause prohibiting change in agreed classifications or basic rates except in the circumstances and under conditions set out in the agreement. The learned arbitrator held that the requirement for bilingualism in that case amounted to a change in the classification and that the Company had, therefore, violated the contractual prohibitions.
Article 11, clause 4 of the agreement with which we are dealing, contains a prohibition against a change in basic rates only. It reads as follows:
No changes shall be made in agreed upon basic rates of pay for individual positions unless warranted by altered conditions resulting in changes in the character of the duties or responsibilities. When changes in basic rates of pay are proposed, the work of the positions affected will be reviewed and compared with the duties and responsibilities of comparable positions by the proper officer of the Company and the General Chairman, with the object of reaching agreement on revised rates to maintain uniformity for positions on which the duties and responsibilities are relatively the same.
The clause obviously presupposes the alteration of conditions which change the duties and responsibilities of jobs, but deals only with the rates involved. The question of changes in basic rates is not, of course, before this Board.
In the case between Canadian National Railways Telecommunications Department and the Commercial Telegraphers’ Union, a board of arbitration under the chairmanship of J.A. Hanrahan dealt with the question of bilingualism as a qualification for a position under a prior agreement between the parties. The learned arbitrator points out that there were two points to be decided by the board. The first was whether there was an actual need for the services of a person who could speak both French and English. The second was whether there was anything in the contract that would prevent the Company from requiring such qualifications. As we have pointed out earlier, the same two points arise in the present case. We have found on the evidence that the requirement is reasonable and justified in the particular circumstances obtaining at Moncton.
On the issue involving the right to introduce the bilingual qualification, the learned arbitrator in the foregoing case finds in favour of the Company. The award contains the following paragraph:
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.
In the course of his decision, Arbitrator Hanrahan cites with approval the head note to a decision of His Honour, Judge R.W. Reville, in the case of the National Gas Workers and the Union Gas Company of Canada , 12 L.A.C., 58. It reads:
Job classifications and qualifications are not frozen at the date of the collective agreement. It is within the rights of 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.
He further quotes from the body of the Reville award the following passage:
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 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.
It is our opinion in line with the Hanrahan and Reville cases referred to above, that where, as here, a genuine requirement for a bilingual operator exists and there is absence of restrictive language in the agreement, it is open to the Company to post the job setting out the bilingual requirement and to fill the job with the person holding the required qualifications without violating the collective agreement.
We would add that we do not find article 14 of the collective agreement to be relevant.
The grievance is accordingly dismissed.
DATED AT TORONTO, this 10th day of March 1972.
(signed) RORY F. EGAN (signed) S. E. DINSDALE
CHAIRMAN COMPANY NOMINEE
C. W. PETHICK