CASE-NO : AH083
DATE : 19/04/74
PARTIES : CN CTU
IN THE MATTER OF ARBITRATION OF A DISPUTE
CANADIAN NATIONAL RAILWAYS
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
Pursuant to the provisions of a collective agreement between the parties, Professor H.W. Arthurs was appointed as Chairman of the Arbitration Board to deal with the disputte. Nominees to the Board were Stanley Dinsdale, Esq., Q.C. for the Company and Mr. C.W. Pethick for the Union. The arbitration hearing was held at Toronto, Ontario on 19 April 1974.
Representatives of the parties at the hearing were
For the Company: J.W. Healy, Q.C. - Counsel
For the Union: J. Sack - Counsel
PARTIES: CANADIAN NATIONAL RAILWAYS
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH
SUBJECT OF DISPUTE: Alleged violation of Article 12, clause 2(c) in that the
Company declined the grievorís claim that the Company
denied the grievorís December 1972 request for
COMMENTARY: The case relates to a decision by the Company to
provide Broadband training to a Relief Plant Technician
so that he may be fully trained for pursuit of his relief
work assignments. A Plant Technician, with greater
seniority than the occupant of the Relief Plant
Technician position, requested that he also be given
Broadband training. The grievorís request was declined,
in that the work assignments on the tour of duty of the
position he occupied did not include Broadband work.
DECISION: The Board declared the Company had violated the
agreement in failing to issue a notice of training but
were unable to make any order of compensation of any
other form of relief for the grievor.
CANADIAN NATIONAL RAILWAY - TELECOMMUNICATIONS DEPT.
- and -
CANADIAN TELECOMMUNICATIONS UNION DIVISION NO. 43
GRIEVANCE OF W.W. WELLS
Board of Arbitration:
Professor H.W. Arthurs, Chairman
Stanley Dinsdale, Q.C.
For the Union:
Jeffrey Sack, Counsel
Paul Cavaluzzo, Counsel
C.H. Hammett, President
For the Company:
J.W. Healy, Q.C., Counsel
Toronto April 19, 1974
The grievor, Mr. W.W. Wells, by letter dated December 21, 1972, protests the failure of the Company to consider him for training in the operation of its Broadband equipment. His claim is based upon article 12 of the agreement which provides:
Clause 1 :
The Company shall select the employees to be trained and will provide training facilities and instruction to the number necessary to meet staff requirements resulting from business demands, technological developments, promotion, job security, etc.
Clause 2 : ...
(c) When training is planned for new types of equipment in any technical groupings (e.g. Model 32 Printers), a notice of training will be issued to those working in the salary grade in the seniority grouping at the office concerned, specifying the equipment involved and the duration and location of the course. Preference will be given to the employees in the grouping in the office required to service and maintain such equipment.
It should be noted that the grievor claims no more than the agreement (assuming it applicable) affords him: the right to be considered for training. He in effect concedes, as he must, that the company has a discretion as to which employee or employees will be selected for training. His complaint is, however, that the company failed to issue a "notice of training" in December, 1972, when it resolved to offer Broadband training to an additional employee.
Of course article 12 (2) (c) only comes into operation "when training is planned for new types of equipment...". (emphasis added) The question must therefore be answered as to whether or not the Broadband equipment in question is a "new" type of equipment. This equipment has been used by the company at least since 1967, aat which time an initial group of operators was trained for it. The grievor contends that notwithstanding the fact that it has now been in operation for seven years or more, the Broadband equipment is still "new". At first blush, this contention seems difficult to sustain. The grievor contented, for example, that the equipment was always "new" so long as the individual who was to train on it was not familiar with it. We remain highly dubious about that assertion. However, there is a clue provided the wording of clause (2) (c) which leads us to decide that that article does in fact apply in the instant case. Specifically, reference is made in clause (2) (c) to "Model 32 Printers" as an example of "new" types of equipment. Apparently Model 32 Printers have been in use at least since 1964, and they thus antedate the introduction of Broadband equipment. Notwithstanding this, the parties have chosen to identify Model 32 Printers as an example of new equipment. The conclusion seems inescapable, at least on the basis of this reference, that if equipment used since 1964 is "new" then equipment introduced only in 1964 must also be "new".
Having reached this conclusion, it follows that the company was under an obligation to issue a "notice of training" when it wished to add to the complement of employees who are familiar with Broadband equipment. Its admitted failure to do so is thus a clear breach of the agreement.
What consequences flow from this breach?
The grievorís complaint essentially was that a junior employee had been afforded Broadband training while he was not. It is obviously impossible to now deprive that junior employee of the training he has received. Since no present financial advantage attaches to the recipient of the training, there is no case to be made out for compensation to be paid to the grievor. Indeed, in view of the fact that clause 1 specifically gives the company the right to select the employees to be trained, there would appear to be no power in this Board in the particular circumstances with which we are confronted to require the comapny to train the grievor in addition to the junior employee who was actually trained.
More substantially, it is clear that the result of the issuance of a notice of training would have been that the grievor had applied for, and presumably was considered for, such training. In point of fact, it is conceivable that he was so considered, although we have no evidence directly indicating whether he was or was not. About two years before the event in question, a similar incident had occured which had also elicited a protest by Mr. Wells. His protest on that occasion was met by an explanation from the company which he considered to be satisfactory, and with assurances that he would be considered when next the opportunity for training came open. Given this background, and the fact that a very small number of employees at the companyís Winnipeg operation were elegible for training, it is possible that the company may have considered Mr. Wells for training. Nothing turns directly on this point, and thus we make no such finding. However, since we have held that the company was free to select the trainee of its own choice, even if we were to make a finding that the grievor had not been considered, the companyís violation would still be essentially a technical one.
Some discussion ensued at the hearing of this matter as to whether the company had bypassed Mr. Wells and selected a junior employee, who was then a relief technician, so that it would have someone with Broadband training available on weekend and evening shifts, which are generally manned by junior employees, as well as for relief purposes on the day shift when the regular Broadband operators were ill or on holidays. As senior employee, Mr. Wells would not normally have worked evenings or weekends, and consequently would not have been available for this purpose. There is no need for us to decide whether the company acted wisely or, as Mr. Wells contends, shorthsightedly, in allowing this consideration to influence its decision. The agreement does not appear to circumscribe the discretion of the company, at least insofar as it is left free to judge the relevant merits of those who might possibly be offered the opportunity to train on "new" equipment. We do not mean to foreclose the possibility that the company could conceivably exercise its discretion so as to violate the agreement, but we have neither allegation nor evidence of such conduct in the instant case.
For all of these reasons, then, we declare that the company has violated the agreement in failing to issue a notice of training in December 1972, but we are unable to make any order for compensation of any other form of relief for the grievor.
Toronto April 23, 1974
(Sgd) H.W. Arthurs, Chairman
(Sgd) Stanley Dinsdale
(Sgd) C.W. Pethick_________