CASE-NO : AH088
DATE : 21/04/75
PARTIES : CN CTU
IN THE MATTER OF AN ARBITRATION BETWEEN
CANADIAN NATIONAL RAILWAY
COMMERCIAL TELEGRAPHERSí UNION,
CANADIAN NATIONAL SYSTEM, DIVISION
AND IN THE MATTER OF THE GRIEVANCE OF J. IRONMAN
BOARD OF ARBITRATION: J.F.W. WEATHERILL, CHAIRMAN
C.W. PETHICK, UNION NOMINEE
S.E. DINSDALE, Q.C., COMPANY NOMINEE
A hearing in this matter was held at Toronto on April 21st, 1975.
P. Cavaluzzo and M.L. Levinson for the Union.
J.W. Healy, Q.C. for the Company.
In this grievance the grievor protests the companyís failure to assign him to the bulletined job of General Technician, posted by bulletin C-55 on June 22, 1972.
The bulletin in question reads as follows:
Il y a ouverture pour une position de Technicien General Grade 5, Montreal, Quebec. Salaire selon la convention collective. Les demandes seront acceptees des employe competents jusquíau 2 juillet, 1973 inclusivement.
Applications will be received from those duly qualified up to and including july 2nd, 1972 covering position of one General Technician, Grade 5, Montreal, Quebec. Rating as per schedule.
The job of General Technician was a combined position, combining the work of an Equipment Technician with that of a Plant Technician. At the time of the posting the grievor, who then had some ten yearsí seniority, had worked as an Equipment Technician for some two and one-half years, and there is no question as to his qualifications in that job. At the time of the hearing of this matter, the grievor had been appointed Foreman of the Radio Shop.
The grievor was not awarded the position offered by Bulletin C-55. The job was awarded instead to a junior employee, a Mr. Sulston, who was also working as an Equipment Technician at the time. Mr. Sulston, however, had previously been trained for the combined job of General Technician, and it was the companyís view that he was qualified for the posted job, whereas the grievor was not.
Mr. Sulston was one of a group of employees who were trained for the job of General Technician following the posting of job bulletin C-61 in August, 1971. A number of employees, including Mr. Sulston, applied on that bulletin. The grievor was not one of those who applied, because, as he testified, "At that time I didnít care about these jobs". The company considered that there were no qualified applicants. It then selected the seven senior applicants, and offered them training for the new job. Mr. Sulston was one of those trained, the training involving some two weeks of courses, together with a period of practical experience. At the conclusion of the training, four of the trainees were offered the position which had been posted in bulletin C-61.
There seems to have been some protest by the union over the Companyís selecting employees for training without posting a training bulletin. The company advised the union that it would treat the bulletin as though it were a training bulletin. It may be that this was not a correct procedure, but there appears to have been a grievance filed, and certainly none was progressed through the grievance procedure. The grievor made no protest at the time. It cannot be said that the offering of training to the seven applicants of job bulletin C-61 was unfair to the grievor, or was in any way an attempt to discriminate against him. The result was, however, that when bulletin C-55 was posted the following year, Mr. Sulston was trained and qualified for the job whereas the grievor was not. No doubt the grievor was capable of being trained and becoming qualified for the job without difficulty, but he was not qualified to perform it without some training.
By Article 6(2) bulletined positions are, as a general manner, to be filled by appointment of the senior qualified applicant. While the grievor was senior he was not, as we have seen, qualified to perform the work without training, and previous arbitration cases have determined that it is qualification to perform the work without training which is contemplated by the collective agreement.
The collective agreement, however, makes special provision for the classification of General Technician. By Article 14A (2) (b), vacancies in that classification are to be award to:
(b) the senior qualified applicant holding seniority in any group which represents 35% of more of the work requirement of the position.
It is perhaps unclear whether the reference here to "qualified applicant" is to a person qualified for that portion of the work of the combined jobs which is also included in his existing job (as the grievor was "qualified" as an Equipment Technician), or whether it limits the groups from which applicants are to be chosen, without changing the requirement that they be "qualified" for the new job (in which case the grievor could not be considered). For the purpose of this award, we are prepared to view this clause in the light most favourable to the grievor, and to consider that it would entitle the grievor to appointment to the position, provided it involved, to the extent of at least 35%, the work of an Equipment Technician.
The evidence suggests that it was originally thought that the new jobs would combine those of Equipment Technician and Plant Technician on approximately a 50 - 50 basis. In fact, however the work of Plant Technician tended to predominate from the first, and by the time of the hearing it was said that some 90 per cent of the work was that of Plant Technician. It is, however, the situation as it existed at the material times which concerns us here. At the time that bulletin C-55 was posted, the four General technicians who had been appointed after training the previous year worked on the basis of a twenty turn per week schedule. The company determined that a fifth technician was needed, so that all turns could be covered. It was expected that the new assignment would involve Plant Technician work on one shift for the week and Equipment Technician for the other four shifts, that is, it would be 80 per cent Equipment technician and 20 per cent Plant Technician. The other assignments then were performing 80 per cent Plant Technician and 20 per cent Equipment Technician Work.
When all of the assignments are considered together, that is, when the work of the classification of General Technician as a whole is considered, it appears that at the material time that work was 68 per cent the work of a Plant Technician and 32 per cent the work of an Equipment Technician. Thus, even if the word "qualified" as it appears in Article 14A (2) be read as meaning, in the grievorís case "qualified as an Equipment Technician", it is clear that the grievor would not be entitled to the appointment, since the new classification consisted, even then, of less than 35 per cent Equipment Technician work.
It was argued that the particular assignment within the classification was one which involved 80 per cent Equipment Technicianís work. Indeed it appears that, had the grievor been successful on his application, he might, by reason of his seniority, have been entitled to that assignment. That is a matter which would depend on whatever circumstances obtained at the time. The grievor might not have chosen such assignment, even if he had the opportunity to do so; at some other time, a more senior person might displace him. In any event, it was not a particular assignment that was bulletined, but simply a position of General Technician. It is the general requirements of that position which must, in our view, be considered in determining this matter. The grievor did not, at the material times, have the qualifications necessary for the performance of the general work of a General Technician.
For the foregoing reasons, the grievance must be dismissed.
Dated at Toronto this 22nd day of July, 1975.
IN THE MATTER OF ARBITRATION
BETWEEN CANADIAN NATIONAL TELECOMMUNICATIONS
AND CANADIAN TELECOMMUNICATIONS DIVISION
NO. 43 OF THE UNITED TELEGRAPH WORKERS.
AND IN THE MATTER OF THE GRIEVANCE OF MR. J. IRONMAN.
The question to be decided by the Board was as to whether the Company violated Article 14a, Clause 2b of the Collective Agreement. Clause 2a is not involved in the case as this was a new position and there was no incumbent to be considered.
In August 1971, a bulletin No. C-61 was posted by the Company for positions of General Technician, which was to include work as Equipment Technicians and Plant Technicians. There were four General Technicians required.
At that time Mr. J. Ironman the grievor in the present case was not interested in accepting a position of General Technician, and therefore did not bid on the position.
On June 22nd, 1972, the Company required a fifth General Tehnicianís position and posted Bulletin No. C-55 requesting applications.
This time Mr. Ironman was interested in a General Technicianís position and bid it in, but the position was awarded to Mr. Sulston a junior in seniority to Mr. Ironman, on the basis that Mr. Sulston had taken training and qualified, while Mr. Ironman had not.
In 1971 the Company considered that there were no successful applicants to the General Technicianís positions for which Bulletin C-61 had been posted,, They chose seven of the 21 applicants and provided them with training. Mr. Sulston was one of those successful applicants.
There was no training bulletin posted. The Company advised the Union that they would treat Bulletin C-61 as a training bulletin.
As I read the Collective Agreement this was a violation of Article 12, Clause 2a of that Agreement, which requires that when training is planned a notice of training is to be issued to all seniority groupings in the District and the qualified employees were to be selected on the basis of general seniority.
In the Company treating Bulletin C-61 in August 1971 as a training bulletin, which it actually was not, it precluded the grievor in the present case from the training which would have enabled him to qualify for a General Technicianís position when Bulletin C-55 was posted on June 22nd, 1972.
I have to agree that in 1971, while there evidently was a protest by the Union in respect to the Company treating Bulletin C-61 as a training bulletin, no evidence was submitted which declared a grievance was filled or processed.
The award states that the grievor made no protest at the time. It is quite possible in my opinion that Mr. Ironman could have been unaware that Bulletin C-61 had been treated as a training bulletin and that the seven employees had been provided with training. No evidence was presented that suggested that Mr. Ironman was aware of it. If this was the case it would account for his not filing a grievance or protesting at the time. Had a proper training bulletin been posted and Mr. Ironman had failed to put in a bid, then of course he would have very little argument, but such is not the case.
While in 1971, Mr. Ironman was not interested in taking a General Technicianís position, he may very well have been interested in taking training, which would qualify him for a later position, had a training bulletin been posted, in accordance with Article 12, Clause 1 of the Collective Agreement.
It must be taken for granted that if there are no qualified applicants for a position, that the Company must train employees for the position to comply with Article 14a, Clause 2b and Clause 5 of the Collective Agreement.
While in this particular instance the Company had qualified applicants, it was only because they had treated a job bulletin in 1971, as a training bulletin, but in actual fact no training bulletin had been posted.
The award states in part, "that it is qualifications to perform the work without training which is contemplated by the Collective Agreement". I disagree with that decision, in respect to this particular agreement, where the position of General Technician is quite unique.
In this case an employee to qualify as General Technician had to have training as an Equipment Technician and Plant Technician. No employee could qualify for both job requirements without training in both.
Without training the only employees that could qualify are the ones with experience in both classifications. However the only way in which employees could qualify for either of these two categories of positions was through Company training, which is required. In other words all of the employees had to be trained before they could do the work required.
On page four in the last paragraph of the award, it states, "and previous arbitration cases have determined that it is qualification to perform the work without training which is contemplated by the Collective Agreement".
That may well be the situation taken on a general basis, but it is not my opinion the case under this particular Agreement or where a position of General Technician is concerned.
In fact such a statement is contrary to Article 14a, Clause 5 of this collective agreement which reads as follows:
"Training required by the successful applicant for a position of General Technician will commence as soon as possible after appointment, but in any event within six months from date of appointment, except where extension of this time limit is mutually agreed to by Company and Union due to unforeseen circumstances, which agreement shall not be unduly witheld".
This is entirely contrary to the above assertion as stated in the award. Clause 5 contemplates the applicant being appointed to the position without training and provides for training as soon as possible after the appointment, and in any event within six months. While this clause doesnít prevent the Company training employees prior to a position being established, it certainly does provide for training employees who have been appointed. As Mr. Ironman was the senior applicant, then as I see fit, he should have been appointed and trained as set out in Clause 5. He did qualify as contemplated in the Collective Agreement.
The only difference between the qualifications of Mr. Ironman and Mr. Sulston was that Mr. Ironman had training only as an Equipment Technician, whereas Mr. Sulston had training as Equipment Technician and Plant Technician, training which he received in 1971 as a result of Bulletin C-61 being treated as a training bulletin, and as no actual training bulletin was posted at the time, Mr. Ironman was denied the training and because of that, I take the position that he should have been awarded the position in 1972 and have been provided with training, as he was the senior applicant.
In my view Mr. Ironman did not bid in the position in 1971, and it is quite possible he was unaware that the bulletin had been treated as a training bulletin and therefore would not have protested. I believe he should be given the benefit of the doubt.
As pointed out in the award, Clause 2b provides that the senior qualified applicant holding seniority in any group which represents 35% or more of the work requirement of the position will be awarded the position.
I do not agree that this position when it originated was a fifth position within a group. It is a fact that after a year it became so. However when the position was bulletined in June 1972 it was for a position which at that time consisted of 4 days Equipment Technician duties and 1 day as a Plant Technician. That was a mix for that particular position and on that basis Mr. Ironman qualified under Article 14a Clause 2b.
No employee of all those applying for the positions either in 1971 or 1972 could quailify without training provided by the Company,. So why should Ironman be denied the position because he had no training?
In my view Clause 5 makes it mandatory on the part of the Company to provide Mr. Ironman with training before they could disqualify him.
The Company admitted that Ironman was a senior and that had he secure the training he would have been given preference. There is no doubt that he could qualify. The reason that he didnít qualify in 1972 for 1972 was simply that he had not received the training that in my opinion the Company was required to provide under Article 14a Clauses 2b and 5. Ironman should have been declared the successful applicant and then provided with training under Clause 5 of the article.
Thus the Company did violate Article 14a Clause 2b and Clause 5 of the Agreement.
The chairman in his award takes the view that this position was a fifth position within a group and with that I disagree. As far as the work distribution is concerned Ironman and Sulston are both in the same category, as both were Equipment Technician. Whether the Equipment Techniciansí share of the work was a 35% or 32% does not in my opinion in any way take away the provisions of Article 14a, Clause 1b. The chairman in his award takes the position that the General Technicianís position which was bulletined was within a group of five and disqualifies Mr. Ironman using the 68%-32% mix as the correct one. I take the position that if that is the case, neither Mr. Sulston or any other Equipment Technician could qualify.
However that was not the position of the Company. They accepted Mr. Sulston regardless of whether the Equipment Technician portion was 20%, 50% or 32%, and gave them training, and declared Mr. Sulston as the successful applicant on the 1972 position. They did not provide Mr. Ironman with training, nor the opportunity of securing it, and disqualified him. Therefore in my opinion the Chairman in his award made a bad decision as he should have ignored the 68%-32% mix claim of the Company and disregard that argument.
This would put Mr. Ironman and Mr. Sulston on a par in respect to the percentage in the mix, which I believe would have been the correct decision to make.
The only difference between the two applicants was simply that Mr. Ironman while being senior received no training by the Company, and Mr. Sulston was the junior and received training.
There was no training bulletin either in 1971 when the four positions were filled nor in 1972 when the fifth position was bulletined. Thus while, Sulston bid in the position in 1971 and received the training and therefore could qualify in 1972, Ironman was disqualified. He was declared unqualified because he hadnít taken training.
By upholding the Companyís position in the award in this case and considering the situation from the evidence presented it paves the way for all future General Technician positions being established in Winnipeg or throughout that region, or new positions coming up, the seven employees that received training in 1971 would receive all the preference, and they would be given all the General Technician positions, before Ironman or any other Equipment Technician could receive the training to qualify. It might be two, five, or ten years, but until those seven have obtained positions, no one else would be able to qualify.
Surely this was never the intent of Article 14a Clause 2b. It would result in absolute discrimination and would notify the benefits of seniority to all other employees.
Where the Agreement reads the senior qualified employee for the position of General Technician one must contemplate the need for training. Otherwise employees are denied the benefit of seniority.
The Company admits had Mr. Ironman received the training he would have been given the preference for the position. Clause 5 of Article 14a makes it mandatory for the Company to provide the training required by the applicant.
During his argument the Union Counsel named various other articles in the Agreement that refer to training. For example Clause 5 of Article 14a, referred to previously, Clause 6 provides for what takes place if training is delayed. Article 12, Clause 7 provides for training also. Even Article 5, Clause 12 contemplates training will be provided.
Thus as far as I am concerned the Company were required to provide training to Mr. Ironman before they could disqualify him, which they failed to do.
I therefore regret that I have to dissent from the decision of the Chairman of the Board and believe that the Board should have declared the Company in violation of Article 14a, Clause 2b of the Collective Agreement.
Dated at Toronto Ontario, July 17th, 1975.