CASE-NO : AH091
DATE : 05/11/75
PARTIES : CN CBRT
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY,
AND: CANADIAN TELECOMMUNICATIONS
DIVISION, C.B.R.T.& G.W.
AND IN THE MATTER OF THE GRIEVANCE OF D.G. HEWITT
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 November 5th, 1975
P.J.J. Cavalluzzo, for the Union
J.W. Healy, Q.C., for the Company
In this grievance it is alleged that the company violated the provisions of Article 14A of the collective agreement when it required the grievor to perform certain teleprinter work on Saturdays and Sundays, without having negotiated rates and working conditions in accordance with the article.
In general, the facts are not in dispute, although there is some conflict in the evidence as to the amount of work in question which the grievor was required to perform. The grievor, an employee of some eleven years’ seniority, was classified at the material times as a Telephone Operator, and worked in the company’s Quebec City office. A telephone operator is in direct communication with the client, taking his message and preparing it for transmission. The grievor had been trained to transmit messages using the company’s CRT equipment, by which the message is displayed on a screen in the proper format and with the proper indications. Because of this CRT operation the grievor was, in accordance with the collective egreement, paid at the Step 9 level of his salary grade, which was Grade 5.
At its Quebec City office, the company employs persons classified as Teleprinter Operators, as well as Telephone Operators such as the grievor. A teleprinter operator transmits messages by typing them out on perforated tape; as well, he receives messages which arrive by this system or by telex. The classification of Teleprinter Operator is also in Salary Grade 5.
The Quebec City office is open for continuous operation, although the number of employees on duty at any time varies considerably. During the period preceding the event which led to this grievance, there were, on the Monday to Friday day shift, five Telephone Operators and two Teleprinter Operators scheduled; on the evening shift there were three Telephone Operators and one Teleprinter Operator; and on the night shift there was one Telephone Operator, but no Teleprinter Operator. On Saturdays, the schedule called for four Telephone Operators on the day shift, two on the evening shift, and one on the night shift, whereas there was only one Teleprinter Operator scheduled on the day shift, and none at all on evenings or nights. Again, on Sundays, there were three Telephone Operators scheduled on the day shift, two on evenings and one on nights, whereas there was only one Teleprinter Operator scheduled on days and none on evenings or nights.
As a result of a decrease in the number of messages transmitted or received by teleprinter on week-ends - and perhaps also because of the scheduled Teleprinter Operator’s desire to leave weekend work - the company shifted the operator who had been so scheduled, a Mr. Kiley, to another schedule. There was then no Teleprinter Operator assigned to work on weekends. The Telephones Operators on weekend shifts were instructed to perform the necessary teleprinter work which occured during their shifts. Much of this work, it seems, has fallen to be performed by the grievor, who had formerly worked in the classification of Teleprinter Operator. The evidence is, however, that the "full gamut" of Teleprinter Operator’s work is not involved; what is required is, for the most part, perusing and tearing off printed messages and handing them over for telephone delivery. There is some comflict in the evidence, as we have noted, as to the amount of such work which the grievor has performed since Teleprinter Opeerator functionswere made a regular part of his weekend duties. We do not find it necessary to resolve this conflict, since it is clear in any event that there was an assignment to Telephone Operators, and to the grievor in particular, of Teleprinter Operator work as a regular part of their weekend duties in addition to their duties as Telephone Operators. This assignment was made without any negotiation as to rates of pay or rules governing working conditions.
Article 14A of the collective agreement is as follows:
Changes in Method of Operation
Clause 1 :
In the event of future changes in the 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 efficienccy, 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 positon. 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 proper Officer of the Company.
Clause 3 :
An employee in a Non-Technical classificaton may be required to perform any work in his own or lower salary grade in any position.
Clause 4 :
On the introduction by the Company of technological, operational and/or organizational changes of a permanent nature, the provisions of the Agreement dated May 20th, 1971 relating to Job Security and Technologacal, Operational and Organizational changes, as applicable, will govern.
Cousel for the union ragued, first, that the company was in violation of the collective agreement in that it had consolidated two non-technical positions. It was argued that Article 14A(2) carried the implication that that could not be done. That article permits the consolidation of technical positions in different seniority groupings, in certain circumstances. That provision may perhaps be read as creating a specific exception to a general prohibition, express or implied, of unilateral alteration of the system of job classififacation. However that may be, the instant case is simply not an example of the alteration of that system. The jobs of Telephone Operator and Teleprinter Operator have not been "combined" within the meaning of Article 14A(2): both jobs continue to exist as separate classifications, and there are persons assigned to each of them. In this case, there as been an assignment to Telephone Operators of certain job duties coming within the scope of the other classification. Such an assignment may or may not be proper (which question will be addressed later in this award), but it does not constitute the creation of a combined job within the meaning of Article 14A(2).
In the alternative, counsel for the union advanced a second position, namely that what had occured was a change in "methods of operation", and that therefore the negotiations contemplated by Article 14A(1) were required. In the instant case, as we conclude for reasons to be set out below, the assignment of work which took place was one of a sort contemplated by the collective agreement. It was, further, simply the extension to the day shifts on weekends of a situation which, it appears, already existed on the other weekend shifts. Fluctuations in proper work assignments (if they were such), do not constitute changes in "methods of operation" so as to involve the "technological, operational or organizational change" procedure referred to in Article 14A(1) and (4). Here, methods of operation were not in fact changed, although there was a change in the manner of assigning employees to carry out those methods. This was not, in our view, a situation to which Article 14A(1) or Article 14A(4) applied.
The third argument advanced on behalf of the union was to the effect that this was an improper assignment of work, not protected by Article 14A(3). It was the company’s position that the grievor was properly required to perform this work by reason of that article. At the hearing, counsel for the union sought to adduce certain evidence relating to the application of this provision in respect of the company’s operation in Winnipeg. Objection was taken to this, and the board made the following ruling:
"There appears to be a genuine difficulty in the construction of Clause 3 of Article 14A, in that it is not immediately clear how the concluding phrase ‘in any position’ modifies the general permissive provisions of the article. It is not, however, a case of ‘ambiguity of reference’, to use the language of some cases of this question, nor is it one where the general subject-manner is unclear. Evidence of past practice would not, we think, be admissible on what is really a problem of construction. The proper construction of the article is a matter for the board to determine after hearing argument on the question. The unlikelihood of any evidence of practice assisting the board is, we think, increased by the fact that this collective agreement covers operation at great many locations across the country, and a true practice which would reveal any accepted meaning given to the clause might be difficult and time consuming to establish.. We consider that the evidence as to a pratice at Winnipeg is not admissible."
As to the construction of Clause (3), counsel for the union contented first, that the clause pertained to work within any particular non-technical classification; and second, that it would at most apply to temporary assignments outside of his classification. On our reading of Article 14A(3), neither of these arguments can be accepted. Certainly the article does not restrict proper work assignments to those within the scope of an employee’s own classification: its effect is clearly the opposite, and is to expand the range of possible assignments beyond the scope of an employee’s classification. He may be assigned work "in his own or lower salary grade" and this work may be "in any position". We would agree that the company could not rely on this clause to justify its simply overlooking the system of job classification, or indeed the system of bulletining and filling positions, which is established under the collective agreement. Article 14A(3) however, does not necessarily relate only to temporary assignments. It may as here, cover the inclusion, as a regular part of his work, of work of another classification in the assignment given an employee in a particular classification.
In the instant case of the grievor continues to be a Telephone Operator, and to perform the duties of that classification. On the weekend shifts, he also performs the work of a Teleprinter Operator. That is work in his own salary grade. It would appear to be work in another "position", but in any event it comes within the language of the article, which is very broad.
In our view, the assignment here in question was one which it was open to the company to make under Article 14A(3) of the collective agreement. The leeway there conceded has not been abused in this case, and there has been no undermining of the classification or bidding system.
In the circumstances of this case, there has been no violation of the collective agreement. The grievance must therefore be dismissed.
DATED AT TORONTO THIS 28TH DAY OF NOVEMBER, 1975
C.W. Pethick (Dissent)_______