IN THE MATTER OF AN ARBITRATION
BETWEEN : CANADIAN NATIONAL TELECOMMUNICATIONS
AND : CANADIAN TELECOMMUNICATIONS DIVISION OF CANADIAN
BROTHERHOOD OF RALWAY, TRANSPORT AND GENERAL WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF RON JOHNSON - DEMOTION WITHOUT REASONABLE CAUSE
BOARD OF ARBITRATION : Kevin M. Burkett, Chairman
S. E. Dinsdale, Q.C., Company Nominee
William Walsh, Union Nominee
APPEARANCES FOR THE COMPANY : J. W. Healy, Q.C., Counsel
Reg. Kelly, Labour Relations Officer
Ray Finegan, Director Industrial Relations
Ken Maxwell, Assistant Manager - Toronto
Vern McQuay, Area Manager
Merl Sereda, Manager Public Message Service
APPEARANCES FOR THE UNION : Martin Levinson, Counsel
Norman Hobbes, National Chairman
Phil Wendling, Ontario Chairman
R. Johnson, Grievor
A hearing was held in this matter in Toronto on January 9, 1980.
A W A R D
1. The Union grieves in this matter that Mr. R.W. Johnson, CRT Operator, Toronto, Ontario was injustly dealt with in violation of article 21 of the subsisting collective agreement between the parties when he as demoted by the Company to a Grade 2 clerk position in the Toronto P.M.S. work centre. There is no dispute between the parties as to the jurisdiction of this Board to hear and determine this matter.
2. Mr. Johnson, the grievor, commenced to work with C.P. Telecommunications in 1957 and moved to C.N. as an automatic operator when the two organizations merged in 1969. He commenced training to become a Cathode Ray Tube (CRT) Operator in 1969 and on January 21, 1974 was promoted to CRT Operator Grade 5. He performed this job until April 28, 1978 ; the date of his demotion.
3. The evidence establishes that between 1974 and 1977 the grievor was spoken to by Mr. V. McQuay, the area Manager, concerning the quality of his work on at least three occasions. Mr. F.K. Maxwell, the early night Assistant Manager, was assigned supervisory responsibility over the grievor on a temporary basis in July 1977. He testified that in checking the averages of the operators under his supervision at the time, he discovered that the grievor was processing 6.5 messages per hour when the standard was set at 17 messages per hour. He spoke with the grievor concerning his "average" and recorded the details of the conversation in a memo file dated July 6, 1977 which reads as follows :
"File of R.W. Johnson . . . Avg 6.5
Personal chat with Mr. Johnson today trying to get to bottom of his poor avg routing msgs to ‘te’ posn where minimal editing is necessary. He felt it was because he was working this posn constantly and he felt it was a form of punishment and he was reacting in reverse, his average was going down rather than improving. He suggested he be moved from posn to posn and he would try harder and would improve his average. I have decided to try it his way and plan to have him trained in the ontel area so as he can have the two posns, routing to ‘te’ and actually finishing the messages at the ontel posn, to compare. Time will tell if this change will show an improvement in his performance".
Mr. Maxwell monitored Mr. Johnson’s work following the July 6th memo and met with Mr. Johnson again on July 25, 1977 at which time he advised Mr. Johnson that his averages were still not satisfactory and identified further deficiencies in his work. Mr. Maxwell recorded the details of their conversation in the following memo to file.
"Ron Johnson Review . . . .
In three weeks avg increased from 8 per hour to 8.2 per hour. Ron s advised this is not acceptable. I pointed out he is not pressing his ‘in’ button immy when he finishes a message, I told him ‘you cannot improve your production if you don’t take calls’. Attached cable was handled by Mr. Johnson edit time 3 mins 15 secs. He is aware this time is no where near the standard. He could not give me an answer as to why he took so long, he claimed it didn’t take that long. I told him he was not following proper routine when taking msgs from customers and this was taking more time thus lowering his average. He promises to overcome these faults and bring his avg up".
Mr. Maxwell had further cause to speak with Mr. Johnson on July 28th concerning Mr. Johnson’s cutting off of a customer and failing to record information on his tally sheet. The memo to file reads as follows :
"R e v i e w - Cutting Customer off and not taking message also not recording info on tally sheet per routine
Mr. Wagner of Domglass telephoned to send cable to Germany, reached OPR 2 who was lvg on afternoon break and was relieved by Ron Johnson. Customer claimed had been waiting for sometime, was upset and complained to OPR (Johnson). Because of the tone and forcefulness of customer’s voice OPR cut customer off which only compounded the problem. OPR Johnson was told, during the review, never to cut off a customer, no matter what the circumstance, but should get supervisor to handle any difficult customer. Mr. Johnson confirmed he would do this in future".
4. Mr. V. McQuay testified that the number of operators under his supervision declined from 269 to 159 in 1976 and 156 in 1977. He explained that prior to 1976 it was difficult to do an adequate monitoring job but that as traffic declined the Company had to raise productivity standards in order to make a fair profit. He described the four main functions of a Grade 5 CRT Operator as receiving messages on either a Phillips or video machine which carries a standard of 17 messages per hour, editing messages for transmission, which carries a standard of 20 messages per hour, re routing, which carries a standard of 70 messages per hour and telephone delivery of telegrams. Mr. McQuay testified that the standards for the various functions were arrived at as a result of an across-Canada survey by time study experts attached to the General Manager’s office. The Company’s time study experts monitored operators on the line in 1972 and again in 1976 in setting the standards. He testified that the variations caused by long messages, difficult customers, credit arrangements and language difficulties are built into the standards. It is Mr. McQuay’s uncontradicted evidence that the Union has never challenged the standards or asked for details. It is his evidence that all but one or two operators working out of the Toronto office meet the standards. He testified that Mr. Johnson was in a class by himself in respect of his work performance vis-a-vis the standards. Mr. Johnson testified that "quite a few" operators don’t make 15 messages per hour but he did not name these employees or indicate to the Board how he came to be aware of the number of messages per hour handled by these other employees. Mr. McQuay explained that the Company monitors its operators on an on-going basis ; usually by plugging in to an operator for an hour at a time. Mr. McQuay gave uncontradicted evidence that the Company monitors any employee who is below standard on an on-going basis.
5. Mr. McQuay received a monitoring report from Mr. R.C. DeCordova, the permanent instructor, dated August 22, 1977 which makes reference to the grievor’s "averages" on July 20th, August 17th, 18th, 19th and 22nd.
The report reads : "Re : Operator Ron Johnson
The records show that this operator is well below what is expected of operators routing from the Phillips into the new Ontel system.
i.e. July 20th avg 8.2 msges per hour 2 clear periods
Aug 17th avg 7 " " "
Aug 18th avg 8.8 " " " 1 long
Aug 19th avg 9.5 " " "
Aug 22nd avg 10 " " " 2 clear periods
His overall telex edit average for August so far is 11.5.
Due P.O.W. no monitoring has been done recently".
Mr. McQuay met with Mr. Johnson on the same day and recorded the details of their conversataion in a memo to file which readsd :
"Reviewed with Ronald W. Johnson re poor performance as CRT Operator, he has promised repeatedly to improve without results.
I mentioned Grade 4 positions opened and he stated maybe he would like to go Phone Delivery, then I pointed out the overall loss he would take in that rating.
He is going to think over about bidding Grade 4 bulletin due August 25, 1977.
His average Recording time 8.2 per hour.
His Editing time on telex:
June 12.6 - July 13.9 - August 11.5"
Mr. McQuay met with Mr. Johnson again on August 25th and was told by Mr. Johnson that he had been advised not to bid on any Grade 4 vacancies. Following the meeting Mr. McQuay directed the staff supervisor to give Mr. Johnson "ample time on CRT, video, Phillips and telex editing as we want to give him one more opportunity to meet our standards". Mr. McQuay noted in the memo to file that Mr. Johnson’s performance was to be reviewed within the next 45 days. Mr. McQuay wrote to Mr. Johnson on September 8th, reviewed his work performance and concluded by warning Mr. Johnson that "unless an immediate and consistent improvement is noted in your work production you will leave me with no alternative but to conduct a further review of your performance in accordance with article 21 of the collective agreement".
6. Mr. McQuay received information from his monitors relating to their observations of Mr. Johnson during the week of September 1 - 9, the week of September 12 - 15 and the week of September 19 - 23. Mr. McQuay set out the information he had received from his monitors in a letter to Mr. Johnson dated October 14, 1977. In each of the periods monitored a number of lengthy edit times are recorded as are Mr. Johnson’s "averages" for each period. Mr. Johnson’s "averages", while improving, are shown to be well below the standard in each period. Mr. McQuay concluded the letter by commenting :
"It would appear that you are putting forth greater effort to bring up your averages and improve your performance, however the forementioned exceptions still reflect that you are below our standards and further effort will be required by you at all times to attain the degree of proficiency we require for CRT Operators".
Mr. McQuay received information from his monitors in respect of work performed by Mr. Johnson on Friday October 21st, Wednesday October 26th, Thursday October 27th, Friday October 28th and Monday November 1st. Again a number of lengthy edit times are shown as are "averages" which, although improved over July and August, are still below the Company’s standards. Again Mr. McQuay concludes the letter by commenting that "it would appear that you are putting further effort into improving your performance" but warns Mr. Johnson that his work remains below the standards to which he must strive.
7. Mr. McQuay received further reports from his monitors which formed the basis of a letter to Mr. Johnson dated January 25, 1978. Mr. McQuay set out additional lengthy edit times and complained about Mr. Johnson’s averages which were shown to be slipping further behind the standards for the hours monitored. Mr. McQuay conclluded by warning Mr. Johnson that "we cannnot continue to have your performance reflect such poor averages".
8. Mr. McQuay met with and then wrote to Mr. Johnson under the terms of Article 21 of the collective agreement on April 10, 1978 concerning the quality of his work. Mr. McQuay made reference to two customer complaints ; one in January and the other in March and concluded the letter as follows :
"Your average on TE routing is now slipping below average of last October when you handled 12.8 and 16.7 messages per hour compared to 7.3 and 8.5 and 10 messages per hour over March 29th., to April 3rd., this year, which even back then was below standard.
Today when questioned about averages you stated that we are only treating you this way, after rhyming off six names of fellow employees you thought we had not monitored, which we proved had been and just as many times as yourself, you still say impossible to meet standards set.
We do not have the time for continued supervision to monitor your work continually and to prevent such conduct being shown to our valued
customers or lengthy time taken on handling traffic as your record indicates.
Will you please let me have your comments regarding forementioned complaints within twenty four (24) hours to comply with Article 21".
Effective April 27, 1978 Mr. Johnson was demoted to a Grade 2 clerk in the Toronto PMS work centre. The reason given by the Company in its notice of demotion is "continuing deficiencies in your job performance and unsatisfactory conduct when dealing with customers over the telephone while in the position of telephone operator".
9. Mr. Johnson testified that as of 1978 he was averaging 15 messages per hour according to the number of sheets for each wire. These sheets were not put in evidence. Mr. Johnson maintained that he knew he had handled 15 messages per hour in 1978 because he counted his messages whenever he was on the Phillips machine. We assume that he counted in his head because no recorded count was put in evidence. Mr. Johnson testified in examination-in-chief that he had admitted to the Company on a number of occasions that he was slower than he should have been but maintained, without giving names, that other employees were not turning out 15 messages per hour. When asked by Union Counsel if the variable factors which can affect an employee’s performance (length of message, credit arrangements, difficult customers etc.) had affected his, he replied that they "all happened to me". Operators are instructed to record abnormal calls. Mr. Johnson was on notice from July that his "averages" needed improvement and yet there is no evidence that Mr. Johnson ever recorded his abnormal calls. Mr. Johnson made reference to the amount of time he spent on the Phillips machine which he maintains is a slower and more complicated piece of apparatus to operate.
10. Mr. Johnson admitted in cross-examination that he had agreed with the Company in July that he was working too slowly. He replied in the affirmative when asked in cross-examination if the information contained in the letters from the Company to himself which were placed in evidence was correct. He admitted that he was aware of the standards required and answered in the negative when asked if he thought the monitors were being dishonest.
11. The evidence establishes that 4 or 5 of the CRT Operators perform clerical functions at any one time. The evidence also establishes, however, that although some operators perform clerical functions more than others the operators performing clerical functions change from day to day and all are required to spend time operating.
12. The Company argues that the evidence establishes that Mr. Johnson could not perform at the standard required of those in his classification. The Company maintains that the standards are fair, as evidenced by the fact that all but a few employees attained them, and that Mr. Johnson was in a class by himself in that no one else produced at such a low rate. The Company argues that when reference is had to the long period of time during which the work of Mr. Johnson was monitored and his consistent failure to meet the accepted standards the Board must find that the Company was justified in demoting Mr. Johnson, not for disciplinary reasons, but because he was incapable of performing his job. The Company acknowledges that Mr. Johnson would not have been demoted on the basis of the customer complaints alone but when these are considered along with his inability to meet the standards set for his job, a demotion from the job is justified. In the absence of any evidence to establish discrimination, arbitration, or bad faith, the Company asks the Board to uphold the non-disciplinary demotion of the grievor.
13. The Union citing re Cominco Ltd. and United Steel-workers Local 480, 9 L.A.C. (2d) 233 (Weiler) accepts that a Company is entitled to demote an employee if it can show that the employee is not capable of doing his job. The Union maintains, however, that the onus is upon the Company to establish more than the bona fides of its decision making. The Union takes the position that a Company seeking to uphold a demotion must establish as a fact the employee’s inability to perform his job. The Union argues that in this case the Company has failed to meet the onus in that it has failed to establish the fairness of the standards applied, has failed to take into account the variables that may have affected the grievor’s messages per hour, has relied on the hearsay evidence of Mr. McQuay as to the actual performance of the grievor and has relied on a sporadic sampling of the grievor’s work which may not be indicative of his overall performance. The Union maintains that just because other employees are meeting the standard it is not necessarily a fair one. In the absence of evidence to establish the fairness of the standards on objective criteria the Union maintains that they cannot be relied upon as a yardstick against which to measure the ability of the grievor to perform his job. It is the position of the Union that, even if the standards are fair, the persons who actually observed Mr. Johnson at work had to be called and subject to cross-examination in order to establish the grievor’s deficiencies. The Union maintains further that even if the persons who monitored Mr. Johnson’s work had been called the sporadic sampling of his work would not have been sufficient to establish his inability given the variables which can affect an employee’s work. The Union argues in the alternative, that if it is found that the grievor is not capable of performing as an operator the Board must find that the Company should have assigned him to one of the five non-operating positions at the Grade 5 level.
14. The distinction between "pure demotion" and "disciplinary demotion" as made in the reported awards is succinctly set out at page 140 re Steel Co. of Canada Ltd. and United Steelworkers, Local 1005 (1974) 7 L.A.C. (2d) 132 (Beatty) as follows :
"When one turns to the propriety of the Employer’s action in demoting the grievor, one is confronted with a large number of arbitral opinions many of which were cited to us by the parties. In these opinions a consensus seems to have developed in distinguishing between (i) what is called ‘pure demotion’ where an employee is removed from his job based on the conclusion that he is simply unable, unsuitable or incompetent to perform the duties of that job or because of a reduction in the work force and (ii) what is referred to as a ‘disciplinary demotion’ where the demotion is invoked as a matter of discipline where in Re Int’l Chemical Workers, Local 721 and Brockville Chemical Industries Ltd. (1971), 23 L.A.C. 336 (Shime) at p. 339. ‘ . . . certain facts meriting discipline may be so co- extensive with the ability or competence of an employee to perform the job, that demotion is merited as a form of discipline".
The distinction has meaning in that the legitimacy of the Employer’s decision to demote will be assessed on the basis of different standards depending upon whether it is "pure" or disciplinary.
15. If an Employer is acting to discipline an employee by way of demotion he must establish firstly, that the employee’s misconduct is directly related to the employee’s ability to carry our the functions of his job. This restriction is placed on an employer’s right to discipline by way of demotion because demotion interferes with seniority rights and constitutes a penalty of an indefinite length. Arbitrators have properly ruled that where an employee’s misconduct does not directly affect his job capability, an Employer should not be permitted to interfere with seniority rights or impose a penalty of an indefinite term. If it is established, however, that the employee’s misconduct affects his capability to perform his job functions and if the Employer’s response meets the requirements of the corrective approach to discipline, a board of arbitration may uphold a disciplinary demotion.
16. Absent an express restriction in the collective agreement an Empoyer is entitled to discharge or demote an employee who is incapable of performing the job for which he is being paid. The Employer, however, must establish the employee’s inability or incompetence to perform the job for which he is being paid in order to support a non-disciplinary demotion. The Divisional Court ruled
in Canadian Food & Allied Workers, Local 175 and Atlantic and Pacific Company of Canada Ltd. et al, 76 C.L.L.C. 14,056 that where a collective agreement provides that qualifications are to be taken into account along with skill and seniority in promoting employees and no express discretion is given to management to make these determinations, a board of arbitration cannot restrict itself to the bona fides or "reasonableness" of the Employer’s decision. In upholding the appeal the Court held that a board of arbitration must determine relative qualifications of competing employees as a question of fact in these circumstances. The arbitration awards in re Cominco Ltd. and United Steelworkers (supra) at page 237, Commercial Telegraphers Union and Canadian Pacific Railway (1971) 22 L.A.C. 312 (Weatherill) at page 317, and re International Nickel Co. and United Steelworkers (1975) 8 L.A.C. (2d) 290 at page 296 must be read in light of the judgment of the Court in re Canadian Food & Allied Workers, Local 175 and Atlantic and Pacific Company of Canada Ltd. (supra). In our view the ratio of the Court’s judgment in Canadian Food & Allied Workers, Local 175 and Atlantic and Pacific Company of Canada Ltd. (supra) applies equally in asssessing the competence and ability of an employee who had been demoted. A board of arbitration must decide as a question of fact, regardless of the bona fides of the management decision-making process, whether an employee is incapable of performing his job as would allow an Employer to interfere with seniority rights and respond by way of demotion. This is not to say that the evidence of Company officials who have made a judgment as to the competence of an employee may not be persuasive.
17. How does a Company establish the inability of an employee to perform his job at an acceptable level as would cause a board of arbitration to uphold a non-disciplinary demotion ? In our view an Employer must establish firstly, the existence of reasonable work standards which relate to the job in question, (these need not necessarily be formal work standards), secondly, that these standards have been communicated to the employee concerned, thirdly, that the employee has had a reasonable opportunity to meet the standards, fourthly, that the employee has failed to meet the standards, fifthly, that the employee has been warned in respect of his failure to meet the standards and sixthly, that the employee has continued to fall below the established standard. If an employee can establish these facts it has established the inability of an employee to perform his job. If the trade union fails to establish discrimination, arbitrariness or bad faith in the Company’s treatment of the employee or fails to establish that the reason for the employee’s inability relates to factor(s), medical or otherwise, which are transitory in nature, there is no reason for a Board of Arbitration to interfere with the Company’s decision.
18. We are satisfied that the demotion of Mr. Johnson is a non-disciplinary demotion within the definition as set out in the Stelco award (supra).
19. The evidence in this case establishes that the Company has developed certain standards which are applied to the Grade 5 CRT Operator functions. These standards were developed by time-study personnel in 1972 and reviewed in 1976. The Company’s evidence is that the variables facing an Operator are built into the overall standard. The evidence is that all but a few Operators in the Toronto office work to these standards and that they have never been challenged by the trade union in the past. The Union asks us not to be pesuaded on this evidence that the standards are reasonable. The grievor himself did not testify that the standards were unreasonable, no other employees working under these standards testified that they were unreasonable and no other evidence was called to dispute the reasonableness of the standards. In the face of evidence which establishes that all but a few employees are meeting the standards and in the absence of any evidence impugning these standards, we are satisfied that they represent a reasonable, albeit broad-based measure of the quantity of work required of an Operator over time.
20. The evidence establishes that the standards were known to the Operators and indeed, Mr. Johnson, acknowledged that he was personally aware of the requirements of the Company in respect of volume of work. Mr. Johnson was promoted to the Grade 5 CRT Operator classification in 1974. He not only knew what was required, therefore, but had ample opportunity to acclimatize himself to the position and perfect his technique.
21. The Union maintains that the Company has not established the inability of the grievor to perform because it has relied on hearsay evidence and because it has only considered the grievor’s work at spaced intervals and often for only one hour at a time. The evidence of Mr. Maxwell as to the performance of the grievor in July is not hearsay in any sense of the word. Mr. Maxwell personally monitored the work of the grievor following his review of the grievor’s averages and indeed, the grievor admitted that he was working well below the standards during this period. Mr. McQuay proceeded on the basis of information provided him by his monitors and while the Board might not have been prepared to accord this evidence the same weight as those who actually monitored the grievor’s work, the grievor admittted in cross-examination that the contents of the letters sent to him by Mr. McQuay were correct. His admission in this regard is consistent with his failure to challenge the Company’s figures as they were revealed to him from July. In the face of his admission, and in the absence of any documentation to substantiate his claim that he was performing at 15 messages per hour in 1978, we are prepared to rely on the information set out in the letters from Mr. Maxwell to the grievor as being correct.
22. The evidence establishes that the grievor was frequently monitored between July, 1977 and April 1978 when he was demoted. The grievor did not complain at the time that the hours being monitored were atypical or that his overall volume of work was greater than that reflected in the figures shown to him by Mr. McQuay. There is no evidence that Mr. Johnson ever recorded the difficult messages he handled during this period. We do not take from this that Mr. Johnson did not handle difficult messages during this period but rather, that the number of difficult messages was not unusual. The fact of the matter is that over an extended period of time Mr. Johnson never attained standard for the numerous hours monitored and although his volume improved during September and October, it slipped back prior to his demotion. If the Company had attempted to rely on the volume of Mr. Johnson’s work at a particular point in time, or if it had monitored his work on only a few occasions, this Board might well have been prepared to discount the Company’s evidence on the grounds that it was not sufficiently reliable as an indicator of Mr. Johnson’s overall work performance. In this case, however, the Company has monitored his work on numerous occasions over an extended period of time during which the grievor was advised that his work was below standard. In these circumstances we view the monitoring information as indicative of Mr. Johnson’s overall performance and in the absence of any evidence to the contrary, other than the bald statement of the grievor that he was averaging 15 messages per hour, we are satisfied that the grievor was put on notice but was unable to maintain the required standards of his job. There is no evidence to suggest that the grievor was treated in an arbitrary or discriminatory fashion or in bad faith. There is no evidence that the grievor’s inability to perform was as a result of factors which will disappear in the future, and accordingly, there is no reason to interfere with the decision of the Company to demote the grievor. This is not to say that at some future date Mr. Johnson may not be able to demonstrate his ability to perform at the Grade 5 CRT Operator level if a vacancy arises in the classification.
23. The Union argues in the alternative that if the Board is satisfied of Mr. Johnson’s inability he should be given a Grade 5 clerical job and not demoted to the Grade 2 level. The Grade 5 clerical jobs to which the Union refers are jobs which require the incumbent to operate ; the very function which Mr. Johnson has been unable to perform to an acceptable standard. In the result, we are not prepared to direct that he be assigned one of these jobs. The grievor, although given ample opportunity to meet the reasonable standards of his job, has been unable to do so.
24. Having regard to all of the foregoing, this grievance is hereby dismissed.
DATED at Toronto, Ontario this 24th day of March, 1980.
Kevin M. Burkett, Chairman
(sgd) S. E. Dinsdale
DECISION OF WM. WALSH, UNION NOMINEE.
I dissent. My reasons therefore will be given at a later date.
DATED at Toronto, Ontario this 24th dat of March, 1980.
(sgd.) Wm. Walsh