AH – 81
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
GRIEVANCE RE GENERAL TECHNICIANS
BOARD OF ARBITRATION: Howard D. Brown Chairman
C. W. Pethick Union Nominee
S. E. Dinsdale, Q.C. Company Nominee
There appeared on behalf of the Company:
J. W. Healy – Counsel
And on behalf of the Union:
M. Levinson – Counsel
A hearing in this matter was held at Toronto, on September 24, 1974
The dispute arose in this matter from a “correction bulletin #33” posted by the Company on April 18, 1973, which stated:
Applications will be received from those duly qualified up to and including April 27th, 1973 for the position of General Technician (Radio and T & R) Grade 5 headquarters Winnipeg, Manitoba for approximately 2 months. Graded step rates apply.
It is the Union’s complaint that the Company thereby violated articles 14(a)(2) and 14(b)(2) of the collective agreement between them and stated in a letter to the Company on April 22, 1973 in part:
… the Company should negotiate any changes in the nature of consolidation of jobs. This was not done in the recent bulleting of a position of General Technician (Plant and Radio) for a temporary period of 2 months. It is also my contention that the Company is in violation of article 14(b) clause 2, in the technicality that there is no allowance for the company to institute Temporary ‘General Tech. positions. It was never intended that the Company could create such jobs just for the convenience of utilizing same to do turn up work on projects. …
The Union is seeking a declaration that this posting is not proper for this collective agreement and that the Company could not create a category of temporary general technicians. The articles of the collective agreement in dispute are as follows:
14 (a) (2) When necessary, in the interest of efficiency, technical positions in different seniority groupings may be consolidated and will be done at a time when the position(s) is/are vacant or where the present occupant can be successful trained to perform the duties of the combined position. The rates of pay and rules governing bulletin procedures and seniority status as applicable to each such position will be negotiated by the General Chairman and the proper officer of the Company.
14 (b) (2) Newly established regular positions, or vacancies in regular positions of General Technician, will be awarded to:
(a) the incumbent of the position being established as a General Technician;
(b) the senior qualified applicant holding seniority in any grouping which represents 35% or more of the work requirements of the position.
The Company replied to the grievance on April 26, 1973 in part as follows:
You will note that Article 14A, Clause 2 says positions may be consolidated when
(a) Position(s) is/are vacant
(b) Where present occupant can be successfully trained.
This phraseology would indicate to me that a regular position is contemplated because when the bulletin was issued there was then no position in existence and, therefore, none was vacant, and there being no position there could therefore be no occupant. Article 14B, Clause 2, does not restrict us in submitting temporary bulletins. It merely states who will be awarded the position.
This grievance was first scheduled for hearing on June 5, 1974 but was then adjourned on the consent of the parties and subsequently came on for hearing as above noted and there is no dispute with regard to the Board’s jurisdiction to deal with the grievance.
It is the Union’s contention that there cannot be such a category in the circumstances of this case and if the Company can add a temporary group, then it could destroy the seniority rights within the technical classifications set out in article 4, clause 2. At the outset the Company submitted that the position combined radio technician and testing and regulating technician (T & R) and was filled on May 1st, 1973 by Mr. Schmilesky who had seniority in both plant technician and radio technician groups and was the only applicant. The Company submitted that it had the right to post this vacancy under article 6, clause 1, which is:
6(1) Vacancies in regularly assigned positions, temporary vacancies and new positions which are known to be of more than thirty (30) days’ duration will be bulletined throughout the seniority district in which they occur with the following exceptions:
(a) Non-Technical positions, due to vacations, which are known to be of twenty-five (25) working days or less;
(b) Non-Technical Grade 1 positions;
(c) Positions of “Senior” in all Non-Technical and Installation Technician groupings, as provided for in clause 7(b).
and article 6, clause 4:
6 (4) Applications to bulletined positions must reach the Regional Manager issuing the bulletin not later than ten (10) calendar days from the date of the 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 14.
The work entailed the minor testing and tune up of additions to the net work of mobile radio units and base stations and associated new work controls circuiting. Fifty percent of this work was installation and testing which is normally the work of a radio technician grade 4, and field testing and tune up is normally the duties of a district plant technician, grade 4. In this job, which the Company required to be done as a special project of a temporary (2 months) nature, there was insufficient work for two men. Hence the Company created a general technician classification and posted for the vacancy. After the project was completed the employee returned to his regular position and while he was so engaged, that position was blocked off and not filled. Article 6(a) provides that:
6 (a) An employee filling a temporary vacancy or a temporary position of any type shall return to his regular position at termination of such temporary employment.
The Company took the position that this was not a consolidation of positions but rather it had created a new general technician opening. The Union sought to rely on evidence of negotiations on the basis of ambiguity in the terms of the collective agreement relating to this issue. The Board (Mr. Pethick dissenting) ruled orally at the hearing that an ambiguity had not been established by the Union and the extrinsic evidence sought to be introduced was not admissible. At the conclusion of the evidence and submissions, counsel for the Union requested the Board to reconsider this ruling on the basis that the Board could take into account evidence in explanation of the background of the articles in dispute and referred the Board at that point to the case of The Canada Law Book Company and The Boston Book Company (1922), 63 S.C.R. 182; where at page 185 reference is made to Lord Haldane in Charrington & Co. v Wooder (1914), A.C. 71 where he said that:
If the description of the subject matter is susceptible of more than one interpretation evidence is admissible to show what were the facts to which the contract relates. If there are circumstances which the parties must be taken to have had in view when entering into the contract it is necessary that the court which construes the contract should have the circumstances before it.
There are a number of more recent cases dealing with the question of admissibility of extrinsic evidence which we do not here intend to set out but it is unquestionable that unless an ambiguity, either latent or patent, is found, extrinsic evidence even though admitted cannot be used to interpret the contract. While there may be differences of opinion on the application to be given to the terms in the collective agreement that is a matter for argument if the words use, as we found here, are clear in themselves and arguability as to construction does not involve an ambiguity. Faced with this issue at the hearing, the Board considered these matters and ruled accordingly at that time and are now not persuaded that such a ruling was incorrect or that there is any basis for permitting the Union to lead evidence of negotiations as background to the collective agreement terms at a further hearing. The Company was not prepared to meet such evidence at the hearing and of course objected to its admissibility and at that point the Board decided to dispose of that issue then. Had it allowed the evidence an adjournment would have been required before the completion of the case but having made that ruling, after consideration of the articles in dispute, we now see no reason to change our minds and confirm the decision given at the hearing.
The evidence establishes that the project to be turned up was for a temporary term in an area within 100 miles east of Winnipeg at various locations. Mr. Larivičre was the plant technician at Winnipeg and usually did T & R work in that area hence it was the opinion of Mr. Cowan, an installation foreman (included in the bargaining unit), that the work done by Mr. Schmilesky would normally be done by Mr. Larivičre who was at that time engaged in his normal duties. He said that this was the first time the company had posted this kind of bulletin for a combined classification. He was told by Mr. Allen, a superintendent, that this was a special project to turn up for two months and he wanted a general technician. Mr. Hammett, general chairman, referred to the technical groupings set out in the collective agreement and said that testing and regulating is included in plant technicians and the same would apply to radio technician grouping and each grouping has a separate seniority list for the purposes of promotion, training, transfers and staff reductions. He referred to article 18A dealing with relief employees which provides for regular relief of which there are a number across the system which are permanent jobs of a relief nature and would be posted as a permanent job. There has never been a temporary general technician to his knowledge. General technician classification is not a seniority grouping. Reference was made to article 14B, clause 4 whereby seniority is not granted to a general technician in any seniority grouping where the work requirement is less than 35% of the position. If then he works more than that percentage in plant and radio he would have seniority in both groupings.
Mr. Machan, who is the general supervisor of inside plant at Winnipeg, testified that the purpose was to perform the duties of testing and tuning up of trained to wayside radio equipment and in-pant carrier equipment in the eastern section between Winnipeg and Thunder Bay. This was technician’s work in radio classification and jobs associated in-plant approximately 50% each which would normally be done by a district technician. The job had nothing to do with existing work and the district plant technician was not affected. After posting was awarded for a two month period and the applicant’s regular job was left vacant for that period and after it was finished he returned to his former position as a grade 4 radio technician. He agreed that Mr. Larivičre often covered the eastern section to the Manitoba boundary but had not gone into Ontario. He further agreed that the work was attached to his classification and was not normally attached to a radio technician and that a temporary general technician is not in the schedule.
It is the Union’s argument that the technical groupings set out in article 4 are basis to the many rights of individuals in those classifications and should not be interfered with unless specifically permitted in the collective agreement. Here the work normally done by Larivičre was done by someone else which cannot be done under article 14. The company should not be permitted to add to the work of a radio technician and call it temporary while denying that work to others in the seniority grouping such as Larivičre. When he obtained over 35% of the plant technician’s work he got seniority in that grouping which affects the others in that seniority grouping. It was submitted that the parties envisaged the creation of general technicians under narrow grounds and not based on temporary situations. Bulletin 33 only allowed one employee to do certain work of another and did not comply with article 14A(2). A general technician can only be set up under article 14 and that section does not contemplate anything other than permanent positions and hence the company is not permitted to set up a combined temporary job. Reference was made to article 4, clause 3:
4(3) The classification “General Technician” may be included in any of the Technical Seniority groupings indicated in Clause 2 hereof subject to the provisions of Article 14B, Clause 1.
It was argued that the Company did amalgamate two jobs by bulletin and if permitted could minimize the work of any technical grouping by the creation of a temporary technician which would be detrimental to those in that group. In essence the position is that article 14 does not apply and therefore the general technician cannot be set up. The collective agreement does not provide for a general technician at Winnipeg in the schedules setting out classifications and locations. The Union would say that two people rather than one should do this work. Article 6 is general only and the relief positions are talked of in 14B, clause 3 and must then look at that article. There cannot then be, in its submission, a general technician temporary job.
The company’s submission is that this was additional work and did not affect that of the district technician and was simply a work assignment under the collective agreement filled by assigning it to a classification of general technician composed equally of radio technician and plant technician work with no effect on seniority rights. It was submitted that the two jobs were not consolidated but rather the Company filled an existing classification for two months which does not concern seniority groupings. The company can create the general technician’s job and the fact that only full time general technicians are listed confirms it as an established classification. The Company stated it had to follow article 6(1) as it was a temporary vacancy or new position for this project. Clause 14A was not applicable and the Company did not consolidate two positions under 14B. Temporary positions are excluded and this was not a relief position. The Company could have posted it and not called it temporary, applied 6(1) and 14B and abolish the job. It was further argued that this was the creation of a new position of general technician and not a consolidation of different seniority groups where the posting was open to any employee with seniority in radio technician or plant technician groupings. The collective agreement does not prohibit a general technician position to be filled temporarily.
What is in issue is whether the Company violated the terms of the collective agreement by creating a position of a temporary general technician and filling it for a period of two months. It is the evidence that the job entailed equal portions of work of a radio technician and plant technician in the area east of Winnipeg which work could have been performed by the district technician. However, it was developed by the Company as a special project for a temporary period. The evidence discloses that this is the first time that such a position has been established and there had never been in this area a position listed as general technician. This position is specifically dealt with in article 14B which provides in clause 1 that positions in different seniority groupings may be consolidated when positions are vacant or where an incumbent could be trained for the combined position, “when necessary in the interests of efficiency”. Clause 2 provides for the awarding of the positions as “regular positions or vacancies in regular positions of General Technician”. Nowhere in this article, nor indeed in the agreement, is found a specific provision providing for the establishment of the category of a general technician, temporary. Under article 6, the Company is required to post vacancies in “regular assigned positions”, which this is not, and “temporary vacancies and new positions” from which the bulletin arose in this case. But the question here is not whether the Company had to post but whether the new position could be created in the terms that it was. The point here is that, “positions” as such were not consolidated to form a new classification of general technician. A “position” would refer to something substantial or permanent leading to a regular position referred to in clause 2. No “position” was really established by the Company. Had it been an on-going work relationship as opposed to a set, temporary period, and it was set up in the same manner then it could be held to be contrary to article 14B. In that clause the parties have referred to vacant positions or the “present occupant”, for the purposes of training for the combined position, yet here there was not a vacant position in any of the seniority groupings nor was there a present occupant requiring training for a “combined position”. We cannot agree that the Company in fact created a new position to which 14B would be applicable.
What really happened was an assignment of duties or work to a radio technician in one area to do work of his classification and that of a plant technician in a designated area for a designated time. The fact that such work was assigned to him does not create a new position nor would it under 14B clause 4 give him any seniority in the other seniority grouping. We do not agree with the Company that there as a new position established whereby article 6 should have been applied. We find, however, that a new position was not established as there was not a consolidation of positions, hence articles 14B and 14A have no application.
The parties have included in the collective agreement provision for the classification of general technician and to establish this position, the Company must follow 14B. The Company argued here that it created a position of general technician but did not combine or consolidate positions in different seniority groupings. That simply cannot be done within this agreement. If the Company wanted to establish the position, it can do so only within 14B and could fill the position for the period of time it required and in this case abolish the position in two months, but the only route provided in the agreement to establish the position of general technician in the first place is by consolidating positions and this was not done here. In the Chairman’s opinion, the Company in fact made a temporary work assignment to this employee. By doing so, if that assignment of work infringed any individual rights in that district then it could be the subject of another dispute, but it is not, what the Union alleges and what the Company appeared to be maintaining, the creation of a new position. Clause 3 of article 14B refers to temporary relief positions but relates to the regular position of general technician and relief for that position established under 14B. If the Company had combined positions in different technical groupings it would have thereby established a regular general technician position and would have had to apply article 14B regardless of how long the position was required to be filled. The specific provision for this classification must preclude any other type of this classification. It cannot be a work assignment and at the same time the creation of a new position without the consolidation of positions. If it is a work assignment, which is the Chairman’s view, then a new position was not established and neither articles 14A or 14B apply.
On that basis, the grievance must be dismissed as there could be no violation of either of those provisions as alleged by the Union. Had, however, the Company acted to combine the positions then it was required to comply with article 14B to create the general technician classification.
DATED AT TORONTO, this 20th day of February 1975
(signed) H. D. BROWN (CONCUR) S. E. DINSDAL,E Q.C.
CHAIRMAN COMPANY NOMINEE
(DISSENT) C. W. PETHICK