AH – 79
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
GRIEVANCE RE L. J. SOMOGYI
ARBITRATION BOARD: W. B. Rayner Chairman
S. E. Dinsdale, Q.C. Company Nominee
M. Tate Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
And on behalf of the Union:
J. Sack – Counsel
A hearing in this matter was held Toronto on December 17,1973.
The grievor in the present case alleges that the Company has violated article 11, clause 1 of the collective agreement which reads:
11.01 An employee in a Technical classification assigned for one day or more to a higher grade position … shall receive the higher grade …
The grievor was, at the time of the grievance, and still is, employed by the Company as a District Plant Technician, Grade Four at Kamloops, British Columbia. On December 14th, 1972, the grievor was assigned by the Company on a “trouble call” basis to cover part of the functions carried out by a Mr. Tanaka at Vernon, B.C., who was a General Technician, Grade Five. Mr. Tanaka had gone on vacation from December 14th until January 2nd, 1973. Although the grievor was assigned on a trouble call basis on December 14th, 1972, he actually went to Vernon on December 26th, 1972 and remained there until January 2nd, 1973.
A Mr. Smith, who was a Relief Equipment Technician at Vancouver, B.C., Grade Four, was also assigned to Vernon, B.C. where he did some work that Mr. Tanaka had been doing. Mr. Smith was paid the grade five rate and went to Vernon on December 14, 1972. It might also be pointed out that the grievor has significantly more seniority than Mr. Smith.
The Union takes the position that the grievor should have received the grade five rate for the period December 26th, 1972 through January 2nd, 1973, for his relief of Mr. Tanaka.
The Company takes the position that the grievor was not assigned to a higher grade position pursuant to article 11 of the collective agreement. The Company takes the position that the grievor was doing the work that he normally performs and was simply doing it at a different location.
The primary function of the grievor as a district plant technician is to carry out the testing and regulating in the maintenance and repair of telecommunication equipment. This is known as T&R work. The grievor testified that there was also a telex component in the work at Vernon which he did not have to do in Kamloops in his normal T&R work. However, the Board does not propose to put substantial weight on this factor as there was evidence before it to indicate that district plant technicians do telex work in other areas.
Mr. Tanaka’s classification is a general technician. In effect, this means that Mr. Tanaka is qualified to perform both T&R work and equipment technician work. Equipment technician work can be broadly defined as the maintenance, installation and repair of telecommunication equipment in customers’ offices. Mr. Smith, the equipment technician assigned from Vancouver to cover off this part of Mr. Tanaka’s work was paid the higher rate. The Company took the position that Mr. Smith was entitled to the higher rate because the bulk of Mr. Tanaka’s work fell under the equipment technician heading. However, at the hearing Mr. Healy suggested that the Company might well have not been responsible for paying Mr. Smith the higher rate, in view of the fact that he was not performing all of the work of Mr. Tanaka.
There was a dispute between the parties as the percentage of Mr. Tanaka’s time devoted to T&R work and to equipment technician work. The Company took the position that Mr. Tanaka spent approximately 30% of his time doing T&R work and the remainder doing equipment technician work. This percentage was arrived at through a formula devised by the Company to determine the work load for all employees generally in each classification. However, there was direct evidence both from the grievor and from a statement by Mr. Tanaka filed before this Board indicating that his actual split was approximately 50% in each area. In the Board’s opinion the evidence of the Union is to be preferred over that of the Company in this regard, since it is far more direct. Accordingly, the Board must determine the case on the basis that Mr. Tanaka’s work was approximately 50% T&R work and 50% equipment technician work.
In cross-examination, the grievor admitted that he was not qualified to do equipment technician work and that Mr. Smith was not qualified to do T&R work. However, Mr. Tanaka was qualified to do both components of the job and did, in fact, spend 50% of his time on each component. In these circumstances, the grievor claims that he is entitled to the higher grade.
In his argument, Mr. Sack suggested that the entitlement to the grievor did not depend upon the Company’s formal instructions to the grievor but rather depended upon what the grievor actually did. In other words, Mr. Sack suggests that the Company cannot deny a man the higher grade simply because of their formal designation. As a general principle, the Board does not quarrel with the suggestion put forward by Mr. Sack. However, on the facts of this case, the Board does not feel that the grievance can succeed.
In the Board’s opinion, the grievor was assigned by the Company to do T&R work at Vernon on a call basis. It is true the grievor spent considerable amounts of time at Vernon but the work that he was doing was completely within his classification including the telex work. Indeed, the grievor and Mr. Smith were not qualified to perform all of the work of Mr. Tanaka.
Mr. Healy suggested that the only relevance of the percentage split between T&R work and equipment technician work was to indicate why the Company paid Mr. Smith a grade five rate and not the grievor. He further suggested that the Company probably did not have to pay Mr. Smith the higher rate but in any event, the grievor was not entitled to the higher rate simply because the Company chose to upgrade Mr. Smith.
It should be pointed out that article 11 speaks of the assigning of an employee to a higher grade position. The formal assignment of the grievor was not to a higher grade position. He was assigned to do T&R work only at Vernon. As stated earlier, the Board, of course, would not deny the grievance simply because of the formal assignment of the Company. However, when one looks at the actual work done by the grievor at Vernon, it would appear that he also continued to do T&R work that he normally did within his classification with the one exception, that being the addition of the telex work. However, there was evidence indicating that telex work was done by district plant technicians and this work also was within the grievor’s classification. Accordingly, the Board must conclude that the grievor was not either formally assigned to a higher grade position and did not, in fact, carry out duties of Mr. Tanaka that were not part of his own classification. On these facts, the Board cannot conclude that the grievor was assigned to a higher grade position and the grievance is accordingly dismissed.
DATED AT LONDON, this 14th day of February 1974.
(signed) W. B. RAYNER (CONCUR) S. E. DINSDALE, Q.C.
CHAIRMAN COMPANY NOMINEE
(DISSENT) M. TATE
I have had an opportunity of reading the chairman’s proposed award and cannot join in dismissal of the grievance. I concur with my learned colleague in his estimation that the grievor performed 50% of Mr. Tanaka’s work, however, once that conclusion is reached, I submit that the grievor was entitled to the same rate of pay as Mr. Smith who performed the other 50%. The grievor has twenty years of service, Mr. Smith has one year.
As noted, the work the grievor did at Vernon, B.C. was work regularly performed by Tanaka. With reference to the telex element, evidence was submitted that this type of work was outside the grievor’s classification and represented 70-85% of his work at Vernon. This was not part of his regular duties. Evidence was further submitted that plant technicians are paid grade 5 rates in other areas (e.g., Prince George, etc.). They are classified as grade 5 and required to do telex work. I therefore place weight upon the telex component of the grievor’s work at Vernon.
In my view article 11 of the collective agreement is pertinent. To sum up, it is agreed that the grievor was assigned to at least 50% of Mr. Tanaka’s job which was in a higher wage bracket. Another individual, Mr. Smith who possessed lower seniority and assigned at the same time, was granted this increase. Further, an added element (telex) was part of the grievor’s work at Vernon. Further still, telex work is apparently an important component of the job of other plant technicians in other areas who are accorded a grade 5 rating.
Accordingly, I would have allowed the grievance to succeed.
DATED AT TORONTO, this 11th day of February 1974.
(SIGNED) M. TATE