IN THE MATTER OF ARBITRATION OF A DISPUTE

BETWEEN

CANADIAN NATIONAL RAILWAYS

TELECOMMUNICATIONS DEPARTMENT

AND

CANADIAN TELECOMMUNICATIONS UNION

DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS

Pursuant to the provisions of a collective agreement between the parties, Mr. E.E. Palmer

was appointed as Chairman of the Arbitration Board to deal with the dispute. Nominees for the Board were Mr. S.E. Dinsdale, Q. C., for the Company and Mr. C.W. Pethick for the Union. The arbitration hearing was held at Toronto, Ontario on 31 January 1975.

Representatives of the parties at the hearing were

FOR THE COMPANY: J. W. Healy, Q.C. - Counsel

FOR THE UNION: M. Levinson - Counsel

PARTIES: CANADIAN NATIONAL RAILWAYS

TELECOMMUNICATIONS DEPARTMENT

and

CANADIAN TELECOMMUNICATIONS

UNION DIVISION NO. 43 OF THE UNITED

TELEGRAPH WORKERS

AGREEMENT: 8.1

SUBJECT OF DISPUTE: The grievor was employed as Radio Technician, Grade 5,

in microwave work at Newcastle, which position he

occupied for some ten months after completion of training

pursuant to Article 12.2(a). At the time of his application

for the Moncton position, he was not qualified through

training or previous experience for train radio work and

had not yet fulfilled his Article 12.4(a) obligations

respecting the microwave training.

The grievance alleged violation of Article 6.4. The

Company’s Step 1 and 2 decisions were based on Article

12.4(a), with Step 3 taking the added position that the

grievor was not qualified for train radio work and

consequently was not the "senior qualified applicant" to

the bulletin. This latter position returned the dispute to the

original allegation that the Comapny violated Article 6.4

At the arbitration hearing, the Union entered a preliminary

objection on the grounds that the Company introduced

"a new defense". The hearing was adjourned for written

argument by counsel for the parties and decision by the

Board on the preliminary objection.

DECISION: The Board in a majority decision dismissed the

preliminary objection.

NOTE: The Union subsequently withdrew the grievance in its

entirety.

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN NATIONAL RAILWAY COMPANY

TELECOMMUNICATIONS DEPARTMENT

(hereinafter called the "Company")

- and -

CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO. 43 OF THE UNITED TELEGRAPH

WORKERS

(hereinafter called "the Union")

BOARD OF ARBITRATION: E. E. Palmer, Chairman

S.E. Dinsdale, Q.C.

C.W. Pethick

APPEARING FOR THE COMPANY: J.W. Healy, Q.C., and Others

APPEARING FOR THE UNION: M. Levinson and Others

PRELIMINARY AWARD

The facts relating to the preliminary arguments in this matter were not in dispute. Thus, it was agreed that the grievor in this case, Mr. D.R. Smith, commenced service with the Company on 24 July 1967, in the Installation Group at Moncton. On 23 April 1968, he commenced training in the Equipment Technician Program and, on 5 August 1968, he was appointed in this classification to a position in Halifax.

Subsequently, on 9 April, he posted for and received appointment to a training program for Radio Technician at Newcastle, New Brunswick. The training in this program was basically concerned with microwave system work assignments. Again, subsequent to this training, he bacame a Grade 5 Radio Technician on 28 January 1972.

Later that year on December 14th, the Company posted a bulletin, No. CM49, for two positions as Radio Technician Grade 4 at the Moncton Hump Yard. The grievor applied for this job, as did a number of other employees of the Company. On 15 December 1972, the Company announced the two successful applicants, neither of which was the grievor. One of these, however, a Mr. D. curtis, had less seniority than the grievor as a Radio Technician. It was also agreed that the grievor could have performed the job at Moncton within a reasonable familiarization period. (The foregoing facts are set out in Exhibit VIII).

Apparently, between the date of December 15th and December 27th, Mr. Smith filed a grievance with the Union, alleging that he had been improperly refused the above job. Consequently, the Union wrote to a Company official in Moncton, informing the Company of this grievance and drawing their attention to Article 6 of the Collective Agreement in effect between the parties and, more specifically, clause 4 of that Article (see Exhibit IV).

The Company responded to this grievance on 5 january 1973, denying the grievance and referring the Union to Article 12 (4) of the Collective Agreement (see Exhibit V). This was regarded by the parties as the completion of Step One of the grievance procedure contemplated by the Collective Agreement.

On 14 January 1973, the Union again contacted the Company regarding this grievance, and, in effect, taking it to Step Two of the grievance procedure. In their correspondence with the Company the Union reiterated the position taken at Step One and concluded their letter with their request that, if the grievance was still denied, the Company provided them with reasons why the applicant was denied the job (see Exhibit 11).

The Company responded to this letter on 25th January 1973. In this letter, the grievance was again denied. The following was the stated reason of the Company for denying the grievance (see Exhibit III):

Our decision to not appoint Mr. Smith on Bulletin CM-49 was based on the provisions of Article 12, Clause 4 of Agreement 8.1 which states that an employee having accepted training in a technical classification may be required to maintain continuous employment on the position for which most recently trained for a period of not less than 3 years. He was trained for his present position and has occupied it for less than a year.

On 14 February 1973, the Union again contacted the Company, requesting further consideration of this grievance. The relevant parts of this correspondence read: (see Exhibit VII).

From the information on hand it is assured Mr. Smith received the same training as many Radio Technicians had before him, and, like others whether they were Equipment Technicians or Plant Technicians, on completion of their training accepted the first available position in accordance with Article 12 clause 4.

With further respect to this same article and clause, it is a fact that employees do move from one location to another, yet remain in the classification utulizing the training received to again meet the terms and full intent of this clause.

You will recall in the not-too-distant past the reason for this clause to be included in our Agreement. Without going into the details of which you and I are both aware of, suffice to say the Union recognized the problem and subsequently was mutually negotiated into the Agreement.

The final exchange of correspondence relevant to a determination of this matter was a letter from the Company to the Union dated 2 March 1973. (Exhibit VI). The relevant parts of this letter read:

You may be aware that Mr. Smith entered service on 24 July 1967 in the Installation Grouping at Moncton. Subsequently, he was accepted for Equipment Technician training, which commenced 23 April 1968 and was placed as an Equipment Technician in Halifax on 5 August 1968.

Under date of 9 April 1971, Traininig Notice CM-3 invited applications for one or more Student Radio Technicians and set out the period and the Newcastle location of the training program. The purpose of the program was to train successful applicants for microwave system work assignments. On completion of training, Mr. Smith was placed in such position of Radio Technician, Grade 5, headquarters Newcastle, effective 28 January 1972.

Bulletin CM-49, dated 4 December 1972, advertised openings of Radio Technician, Grade 4, located at the Moncton Hump Yard. As you are aware, no doubt, the Radio Technician Work Centre is dedicated exclusively to train radio work programs. Since Mr. Smith’s training was related to the operation and maintenance of the microwave system installations, he was not qualified to assume the Radio Technician position at the Moncton Humpyard Work Centre without further training.

In any event, Mr. Smith’s training for microwave systems work programs was followed immediately by his placement on 28 January 1972 in his present position. When he applied to Bulletin CM-49 for the Moncton Humpyard openings, he had worked less than one year in a Radio Technician position for which he was "most recently trained".

Article 12, clause 4 (a) provides that an employee accepting training "may be required to maintain continuous employment within the grade in the grouping on the position for which most recently trained for a period of not less than 3 years from the date of original appointment following training". Since Mr. Smith had not yet completed 3 years of employment on a position for which most recently trained and there was work program requirement for continuing the position he occupied, it was the decision of the company to invoke this provision of the collective agreement in the matter.

In the circumstances, we cannot agree with District Chairman Curwin’s claim that the company was in violation of Article 6, clause 4 when it awarded Bulletin CM-49 to Messrs. D.J. MacDougall and D. Curtis as well as with the suggestion that these appointments be upset and the bulletin be re-awarded to Messrs. D.J. MacDougall and D.R. Smith.

Subsequently, the present arbitration board was selected to hear this matter and a hearing in relation to it was held in Toronto on 20 March 1974. At that time the Board satisfied itself that Mr. Curtis was adequately informed of his rights in this matter. No other jurisdictional argument was raised by the parties. It was agreed at that time that the parties would submit written argument to the Board concerning certain matters preliminary to this case.

The Union argument in this case was:

I refer to the question to which the board requested written submissions. At the hearing of this matter, the company indicated its intention to propose a new defense to the grievance, i.e. the grievor was not "qualified" for the position of Radio Technician Grade 4 at the covered Moncton Hump Yard. The issue to which these submissions are addressed is whether the company can raise this defense at the hearing.

It is submitted that it cannot. In a letter of January 11, 1973, the grievor asked the Superintendent at Moncton the reason why he was not appointed to Bulletin CM-49. In his letter of January 15, 1973, the Superintendent responded that the bulletin had been awarded to a junior employee in accordance with Article 12 Clause 4 of the agreement. He then went on to state:

"The above mentioned Article fully covers the reason why your application was disregarded." (emphasis added)

It is submitted that this letter is the best evidence of the company’s reasons for denying the position to the grievor as it was within one month of the company’s decision. We emphasize that Article 12 Clause 4 was the sole reason given to the grievor. The question of the grievor’s qualifications did not arise until the letter of March 2, 1973 of the Vice-President and General Manager of the company.

It is respectfully submitted that in assessing the company’s decision in awarding Bulletin CM-49, the board should only review those considerations that went into that decision. The above quotation speaks for itself.

It is suggested that the principles developed in an analogous area of arbitral review of managerial decisions is helpful to our case. A similar problem arises when an employer attempts to expand his grounds for discharge from those that were given at the time of discharge. The applicable principle in such cases had been articulated by Mr. Justice Laskin in Re Aerocide Dispensers Ltd. (1965), 15 L.A.C. 416 where he stated at pages 426-7 :

"The board is justified in a case of challenged discharge to hold the employer fairly strickly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved. This is not to say that the board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit an assigned cause to be reformed into one different from it merely because the evidence does not support the assigned cause rather one something like it... If another cause of discipline emerges from the evidence other than the one stated at the time, it is not an automatic conclusion that the employer would have treated it the same way merely because it finds it necessary to say so because of the turn of evidence at the arbitration."

As the board knows, this principle has attracted substantial acceptance by other arbitrators over the years. It is submitted that the board should apply a similar principle in this case where the company is attempting to expand its reasons for the decision made to award Bulletin CM-49. The board must review only the reason given at the time of the decision and not those that have been subsequently inserted in order to buttress the company’s case.

The integrity of the company’s action is clearly thrown into question when it seeks to change the grounds upon which it initially made its decision. It is submitted that to put into issue the question of the grievor’s qualifications after the fact is to defeat its own case. No doubt arbitrators have been reluctant to interfere with management decisions in relation to qualifications of employees. However, such decisions are reviewable in the sense that the decisions must be honest and reasonable. This principle of review has been articulated by Professor Weiler in Re Kysor of Ridgetown Ltd. (1967), 18 L.A.C. 382 where he stated at page 389:

In earlier cases I have held that at least the minimal standard articulated by Roach, J., must be adhered to, and that this involves two separate requirements, and thus the employer’s initial discretion is certainly not completely untrammelled and unreviewable. The judgment of the company must, first, be honest and unbiased, and not actuated by any malice or ill-will directed at the paticular employee (or any undue favour for another claimant for the position) and second, the managerial decision must be one which a reasonable employer could have reached in the light of the facts available. There is no question of the first applying here but the issue of the second requirement is complex. By "reasonable", I mean that the employer’s judgement must be one which has taken into account all relevant considerations and which has not been based on any factors which are improper within the scope of the agreement."

It is submitted that the company’s decision in awarding Bulletin CM-49 was neither honest or reasonable in that the grievor’s qualifications were not even considered.

In light of the foregoing, it is respectfully submitted that the board should refuse to allow the company to bring into issue the grievor’s qualifications as a defense to this grievance.

The Company response to the above agreement was:

In Mr. Levinson’s letter to you of April 18, he states in the first paragraph that at the hearing of this matter the company indicated its intention to propose a new defence to the grievance i.e. that the grievor was not "qualified" for the position of Radio Technician Grade 4 at the Moncton, Hump Yard. With respect, the question of the grievor’s qualifications did not constitute a new defence. The correspondence which has been filed with the Board and which constitutes the grievance and replies, includes the question of the grievor’s qualifications. In Mr. Clark’s letter to Mr. Hammett dated March 2, 1973 there is the statement:"Since Mr. Smith’s training was related to the Microwave System Installations, he has not qualified to assume the Radio Technician position at the Moncton Hump Yard Work Centre without further training." Accordingly, this issue was not one raised for the first time at the hearing and the union could not claim to have been taken by surprise. If it had been taken by surprise, of course, the most that it would be entitled to would be an adjournment .

The grievance alleges violation of Article 6 Clause 4 of the collective agreement. In order to succeed therefore, the grievor must establish that he was the "senior qualified applicant". It is not sufficient to establish that he was the senior applicant. The onus of establishing that he was qualified was his when he filed the grievance. Nothing has happened in the meanwhile to relieve him of that onus. That onus cannot be lifted simply because at the earlier steps of the grievance procedure the company chose to rely on Article 12 Clause 4, which of course it was entitled to do. At the hearing I filed with the Board a copy of an award chaired by Mr. Weatherill dealing with the same parties and dated December 28, 1968. It dealt with the application of precisely the same language as is now to be found in Article 6 Clause 4 (at the time of the earlier award Article 6 Clause 2). That award found that the requirement was that the applicants must be presently qualified to perform the work which is to be done. It went on to state "under the present agreement, it seems clear that the grievors are entitled to succeed if they establish before this board (1) that they were the senior applicants, and (2) that they were qualified for the work to be done." This is precisely the issue before your Board in this case. There can be nothing in the correspondence between the parties which can change the nature of this issue. In none of the letters filed with the Board was it ever indicated by the company that the grievor was qualified to perform the work to be done. In fact the reverse is true as mentioned above.

A further ground for submitting that there is no merit in Mr. Levinson’s submission is a purely practical one. If the Board were to find that the provisions of Article 12 Clause 4 were not sufficient grounds for denying the position to the grievor, the Board could scarcely award the position to the grievor without knowing whether or not the grievor could do the work. If in fact the grievor is not qualified to perform that work, as the company claims, both the grievor and the company would be placed in an impossible position by such an award.

It is submitted that the Aerocide Dispensers case referred to by Mr. Levinson is not an authority for the proposition he is putting forward. In the case at hand the onus is clearly on the grievor to establish his case. In the Aerocide Dispensers case the onus was on the company to establish the reasonableness of its action in discharging the grievor. Also, the nature of a discharge case, as in all matters of discipline, must be distinguished from a case involving mere allegations of breach of agreement. The former imposes a unique and special obligation on an employer to set forth clearly its reasons for the discharge. It ordinarily cannot by hindsight intoduce new reasons. But even accepting this, it is interesting to note that Mr. Justice Laskin did state that the Board should not be overly technical in assessing an assigned cause of discharge. Further Mr. Levinson’s quotation from the Aerocide award fails to include a significant sentence, the one indicated by four dots preceding the last sentence of the quotation. That sentence is as follows : "The parties prepare their submissions to arbitration according to the issues raised by the grievance and the answer or answers thereto, and the case comes to arbitration after having run the gauntlet of the grievance procedure and discussion therein."

In our case the issue of the qualifications of the grievor was raised in the answer to the grievance, and the parties did come to arbitration, or should have come to arbitration, prepared to deal with the issue.

In my submission reference to the Kysor of Ridgetown case is premature at this stage of our case. It becomes applicable only when the Board is deciding whether or not the employer exercised its judgment reasonably when it concluded that the grievor was not qualified.

In summary, it is respectfully submitted that the Board should hear the whole case including the issue of the grievor’s qualifications.

The union subsequently informed the Board that it did not intend to respond further to this argument, but would rest its case on what was already stated.

Before dealing with the above arguments, it is useful to set out the exact wording of article 6 (4) and 12 (4), which are central to the determination of this matter:

6(4) Applications to the bulletined positions must reach the Regional 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 apllicant except as hereinafter provided for in Clause 14.

(a) An employee accepting training in a Technical classification must apply for and accept appointment to the first available position, regular or temporary, utilizing the training received. Subject only to availability of positions, he may be required to maintain continuous employment within the grade in the grouping or the position for which most recently trained for a period of not less than three (3) years from the date of original appointment following such training. Failure to comply with the foregoing will result in any seniority in the grouping being forfeited and may also result in debarment from any further training under clause 2(a) and (b) of this Article.

(b) An employee accepting training in a Non-Technical classification must, upon completion of such training, apply for and accept appointment to the first available position , regular or temporary, utilizing the training received, in the classification and at the location for which trained. Subject only to the availability of positions, he may be required to maintain continuous employment in that classification at that location for a period of not less than two (2) years from date of original appointment following such training. Failure to comply with the foregoing may, at the option of the Company, result in the employee being debarred from exercising seniority for any position in that classification in future and may result in debarment from any further training under Clause 2(a) and (d) of this Article.

Having considered the positions of the parties set out above, the Board is of the opinion that the Union’s argument cannot be accepted. Such a position seems sustainable on a number of grounds. First, a close perusal of the exchange of documents noted above does not disclose that the Company did not consider the question of the grievor’s qualifications at the time their decision was made. Granted, the exchange of correspondence does not suggest thia was a substantial reason until the letter of 2 March 1973; it does not follow, however, that the Company had not considered this matter at the time the decision was made.

In any event, it is the view of this Board that the question of qualifications in a case like this is one that can always be raised. A plethora of reported arbitration awards have stated that the onus on the Union in such cases is to show both that the grievor has the relevant seniority and ability to do the job. See, e.g. : Re Anchor Cap & Closure, 3 L.A.C. 933 (Cochrane 1951); Re Steep Rock Iron Ore Mine, 11 L.A.C. 163 (Anderson, 1960) : Re Canadian Westinghouse, 12 L.A.C. 158 (Little, 1961); and Re Roselawn Dairy 12 L.A.C. 234 (Reville 1962). The reasons for such an approach are obvious. First, persons may make a decision as to a man’s job application on what appears to them to be completely satisfactory and conclusive reasons for so acting, without ever considering the issue of qualifications which, if looked into, would provide a suitable alternative answer. It would be a strange result that if the grievor won the first issue he should automatically be put on a job which he could not do. Second, as opposed to Aerocide situations, the onus is on the Union in these cases. Thus, they are initially fixed with the onus alluded to above. It follows, then, that the Company may assume they will have to affirmatively prove the constituent of that onus before they say anything. At the most, the Union is only entitled to know the Company’s case in advance; where it is not, their only right is that of an adjournment: Re Ford Motor, 8 L.A.C. 895 (Cross, 1951). Indeed, this right to raise new grounds, even at the hearing, has been noted by the arbitration in Aerocide, now Chief Justice Laskin, in Re Westeel Products, 1L.A.C. 306 (Laskin, 1949). Here the letter of 2 March 73, at least insofar as this case is concerned, satisfied this obligation.

Consequently, the Board denies the Union request that the Company be precluded from raising the question of the grievor’s qualifications

DATED at London this 9th day of October, 1974.

(Sgd.) E.E. Palmer_____________

I concur (Sgd.) S.E. Dinsdale____________

I dissent ______C.W. Pethick____________