CASE-NO : AH089
DATE : 20/08/75
PARTIES : CN CTU
CANADIAN NATIONAL RAILWAY COMPANY
Grievance of W. Davis
Board of Arbitration
Prof. H.W. Arthurs, Chairman
S.E. Dinsdale, Q.C.
For the Union
P. Cavalluzzo, Counsel
For the Company
J.W. Healy, Q.C., Cousel
Toronto, August 20, 1975
On Jan 9, 1974, the union grieved on behalf of Mr. W. Davis the establishement and bulletining of a new position - "General Technician Grade 5, Vancouver, B.C."- and the awarding of that position to an allegedly junior employee. During the course of the hearing, the union did not offer evidence or argument relating to alleged defects in the bulleting procedure, or to the relative merits of the two employees involved. Indeed, as expressed by union counsel, the issue to be resolved in whether the company had the right to create or to establish the position altogether. While some surprise was expressed by company counsel at this definition of the issue, we hold that it was squarely raised by the initial grievance, and was addressed by the company in its pre-hearing "statement of dispute" filed with the board. We therefore must decide that issue, and that issue alone.
The position in question (in the words of the company’s "statement of dispute") ... consisted of consolidation of work that is normally performed by occupants of positions of Installation Technician and Plant Technician... The workload distribution of the disputed position was 70% Plant technician seniority grouping and 30% Installation Technician seniority grouping.
This description of the position was not challenged by the union which also acquiesced in the company’s statement that the position was a new one, and did not result in the elimination of any other position(s) or employee(s).
In essence, the dispute between the parties is whether the company is free to establish a new General Technical position at any time (as the company contends) or only when two existing positions are combined (as the union contends).
Each position finds some support in the language of the agreement, a situation which lead the union to urge that extrinsic evidence be admitted to resolve the alleged "ambiguity". The board, pursuant to the decision in R.V. Barber, ex. p. Warehouseman’s Union (Steinberg’s case) (1968) 68 D.L.R. 2d 682 (Ont. C.A.) , admitted the evidence but reserved its decision as to whether reliance should be placed upon it until a final decision could be made as to whether the language of the agreement was ambiguous, and hence susceptible of clarification through the use of extrinsic evidence. However, as we indicate below, even if we were to rule the language ambiguous, within the meaning of the Steinberg’s rule, the evidence is of little assistance in ascertaining its true meaning.
We turn , therefore, to our primary task of construing the agreement.
The union relies upon article 14a:
CHANGES IN METHOD OF OPERATION
Clause 1 :
In the event of future changes in methods of operation, new rates of pay and rules governing working conditions of the employees affected will be negotiated by the General Chairman and the proper Officer of the Company.
Clause 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 successfully 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.
It is the union’s contention that clause 2 governs the instant case, and that the company has violated that clause in two respects.
First, it is urged, there has been no consolidation of "technical positions in different seniority groupings", but rather the creation of a new position which (it is agreed) merely consolidated "work that is normally performed by occupants of positions" in two seniority groupings. Second, the company has failed to pursue the negotiations over "rates of pay... and seniority status" contemplated by clause 2. Parenthetically, it should be noted that the second objection arises only if the first fails; if the establishment of a new position is forbidden, there is nothing to negotiate about.
The company, however, relies upon the language of article 14b from which the union also seeks to draw inferences favourable to its case;
Clause 1 :
When necessary, in the interest of efficiency, positions in different seniority groupings may be consolidated. This will be done at a time when the positions (s) is/are vacant, or where the present occupant can be successfully trained to perform the duties of the combined position hereafter referred to as General Technician.
Clause 2 :
Newly established regular positions, or vacancies in regular positions of General Technician, will be awarded to :
(a) the incumbent of the position being establisheed as a General Technician;
(b) the senior qualified applicant holding seniority in any grouping which represents
35% or more of the work requirement of the position.
(Other clauses in article 14B will be referred to as they become relevant in understanding its essential intent and purpose.)
It is the company’s position that clause 2 of article 14B speaks to "newly established regular positions" as dinstinct from "vacancies in regular positions" of General Technician, and that it therefore has the right to "newly" establish such positions. In aid of this intepretation, it points to the fact that: General Technician" is a classification specifically recognized by the agreement (article 3), and that article 14B contains elaborate procedures for appointing employees to that classification and determining an appropriate rate of pay therefore.
The union, on the other hand, points to the language of clause I of article 14B which is almost identical to language found in clause 2 of article 14A. The union states that an employee holding the disputed classification is defined as someone who will, "perform the duties of the combined position hereafter referred to as General Technician". In effect, there can be no General Technician position which is not a "combined position", which in turn implies the preexistence of position which are "in the interest of efficiency ... consolidated". Clause 1, moreover, states that such condolidation may only occur "when the position (s) is/are vacant" or "where the present occupant can be successfully trained", in either case implying that the consolidated positions already exist.
Finally, the union points out that article 4, clause 3 recognizes that a General Technician position may only be established under article 14B, clause 1, and not otherwise.
Article 4, clause 3 states:
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.
This very specific language, "subject to the provisions of Article 14B, Clause 1", indicates (it is argued) that compliance with the definition provided in that clause alone will qualify a General Technician for inclusion in a seniority grouping.
We propose to deal with articles 14A and 14B seperately, but it is the connection between these articles which must be first explored. This connection was the subject of the extrinsic evidence proferred by the union.
Article 14A was inserted in the agreement in 1967, apparently to assist the company in manning its equipment in certain isolated locations whose operation did not warrant the establishement of two positions, as opposed to one position with combined functions, and a more attractive rate of pay. This much, at least, is common ground between the parties. Article 14B was added to the agreement in 1971 and (again this is undisputed) was intended to assist the parties in the process of filling General Technician positions and establishing rates of pay therefore. Where the parties disagree ia as to whether article 14B was subordinate to article 14A. The union’s evidence was that a representation to that effect had been made by a member of the management team in the 1971 negotiations. Allegedly, this individual stated that article 14B, clause 1, was a mere introduction to the other, operative clause of article 14B, and that it deliberately borrowed some of the language of article 14A, clause 2, as evidence that it was "subservient" to the latter clause.
We do not find the extrinsic evidence of the union on this point helpful in relation to the particular problems with which we must deal. Thus we need never reach the question of whether the agreement is so "ambiguous" (within the Steinberg’s rule) that we should rely on such evidence. First, the precise nature of the company’s representation was not clearly distinguished from the subjective understanding of the union’s witness on this point. Second, it does not speak directly to the issue of whether General Technician positions can be created in situations where there are no preexisting, consolidated positions. Third, as we shall shortly demonstrate, this view of article 14B, clause 1 proves to much from the union’s point of view. The linkage to article 14A would be fatal to the union’s case.
Turning to the interpretation of article 14A, we note that it is captioned "Changes in Method of Operation". Clause 1 of this article similarly deals with "future changes in methods of operation". This seems to be the essential precondition for the operation of the article. But if so, article 14A has no application to the instant case, since no such changes occured here. This conclusion is bolstered by the facts that article 14B is concerned specifically and exclusively with General Technicians and that it was added to the agreement later in time than article 14a. These facts raise a strong inference that the parties intented to amend article 14A by withdrawing General Technicians entirely from its coverage. It will be noted also that article 14A, clause 2 does not restrict the company to appointing General Technicians only in specific circumstances, and that it requires negotiation only following the consolidation of positions - which, again, did not occur here. Article 14A does not assist the union. Its case must therefore stand or fall on article 14B.
Article 14B does seem to define the entire understandings of the parties concerning General Technicians. We have already juxtaposed the arguments of the parties concerning its interpretation, and we must now assess their relative merits.
On a purely linguistic basis, there seems much to support the union’s position: the "definition" of General Technician in clause 1; the reference to "consolidation"; the timing of consolidation by reference to the protection of the interests of incumbent employees.
On the other hand, the company’s position is supported only by the phrase "newly established regular positions" in clause 2, which is read as referring to positions which are not consolidation of other positions. However, this interpretation is far from compelling. A position may be "newly established" if a consolidation has only recently occurred, in contradistinction to "vacancies" (the other situation mentioned in article 14B, clause 2) where there has been at least one incumbent of the General Technician position following a previous consolidation.
Clauses 7 and 8 of article 14B cast further doubt on the company’s interpretation. Both of these are concerned with establishing rates of pay for General Technicians. Clause 7 essentially provides that the rate will be one grade higher than the highest rate paid for the positions which were combined. In other words, without preexisting positions, now combined into a General Technician position, there can be no basis of calculating a rate. It is true that clause 8 establishes general standards for rates for General Technicians, unrelated to rates paid for other positions. But clause 8 must be understood as merely implementing a general undertaking in the closing sentance of clause 7: "where circumstances warrant, higher grades will be negotiated by the parties". This sentence, and clause 8 which sets the bounds of negotiation, both concern rates which are "higher" than the normal General Technician rate, calculated in the normal manner be reference to the rates of preexisting jobs. In the key area of rates, the expectations of the parties shine through: they clearly assumed all General Technician positions would result from consolidation.
Finally, relaince is placed by the company upon the fact that "General Technician" is a classification specifically listed in the scope article of the agreement (article 3). The inference sought to be drawn is that it is a classification like any other, and can thus be assigned to a position in the company’s discretion. There are at least two answers to this argument. First, "General Technician" is not a classification like any other. It is unique in that it is the subject of a special article of the agreement defining its utilization. Second, if the company is right, it could virtually destroy the whole elaborately-negotiated classification system, by establishing all new positions as "General Technician" positions with a suitable mixture of work. It would take compelling evidence to persuade us that the parties deliberately created such a possibility for industrial dissension.
We therefore conclude that the company violated the collective agreement by establishing a new position of "General Technician, Grade 5, Vancouver, B.C.". We note that a similar view of the collectice agreement was taken, obiter dictum, in re Canadian National Railway Co, (telecommunications dept.) , (1975) 8 L.A.C. (2d) 256 (H.D.Brown). No evidence having been offered, the grievance is dismissed in relation to the bulletining of this position, and in relation to thecompany’s selection of an applicant other than the grievor, Mr. Davis.
Since neither the union nor Mr. Davis suffered any financial loss due to the company’s violation, we limit the relief herein to a direction to the company to terminate its violation.
Toronto, September 2, 1975
Prof. H.W. Arthurs