DATE : 18/10/85
PARTIES : CN CAW
CANADA ARBITRATION BOARD
PROVINCE DE QUEBEC
THE CANADIAN ASSOCIATION OF COMMUNICATIONS AND ALLIED
GRIEVORS : Robert Desbiens
GRIEVANCE NO : 913-D-8-1
exercising the right of
Mr. Guy E. Dulude, q.c.,
Company nominee :
Mr. George J. Milley
Mr. Fred Reed
Company lawyer :
Mr. T. Keith Billings,
Union lawyer :
Mr. Pierre Grenier,
Laid off on Sept. 18, 1982, after 17 years of service as a motor messenger, the grievor tried to displace an employee having less seniority , in the position of Telepnone Delivery Operator.
After administering the usual employment tests for such a position , the employer refused the displacement on the grounds that Mr. Desbiens did not have the necessary qualifications. Hence this grievance disputing this decision and submitted to us through the regular channels.
The pertinent stipulation of the collective agreement is as follows:
10.5 "An employee in the non-technical classifications whose position is abolished or who is displaced, qualifications being sufficient, has the option of :
(a) Exercising his general district seniority to :
1. ( ... )
2. displace a junior at the location in any non-technical
classification or technical seniority grouping ; or
3. ( ... )"
The dispute lies only in whether or not the grievor’s qualifications are sufficient to hold the position of telephone delivery operator.
What do the telephone delivery operator’s duties consist of ?
Basically, the incumbent delivers the contents of telegram by phone to the addressee and registers, either on the telegram itself or on an appropriate form, the steps taken.
The majority of the messages are destined to businesses and their contents include all kinds of information (dates, quantities, prices, etc.)
The languages used are French and english, in such proportion that the incumbent of the position must be sufficiently bilingual in order to deliver the message clearly, without too much difficulty, in either language.
This is what we have retained from the evidence provided.
In more concrete terms, the telephone delivery operator is given a pile of messages to be delivered, by the dispatcher, at the very start of the work shift.
At the time in question, there were twenty or so operators working for this department, some of which had difficulty speaking one or the other official language. To help them, the dispatcher sorted the messages and gave them a pile mainly written in their mother tongue.
After receiving such an assignment, the operator dials the addressee’s phone number as it appears on the telegram, checks the latter’s identity, reads the contents of the message, asks the addressee if he/she wishes to receive a copy and if so ensures that the address and postal code are correct, record the details of the delivery on a standard form and files the message as well as the form in a "work completed" pile.
When the addressee cannot be reached, the operator records this on the telegram and places it in the work (completed) pile to be collected later by the dispatcher.
During the course of a day’s work, a good operator can deliver up to 80 messages, sometimes even 100.
The clerical work performed by the operators is extremely basic. It consists only of filling out the standard form for each call.
As far as the degree of bilingualism required, it is confined to the ability of reading the message clearly in one or the other official language. Telegrams written in another language are read by the operator as best he can and then spelled out.
In view of the grievor’s request to displace an operator having less seniority and doubting his qualifications for such a position, the department manager decided to refer the grievor to the company’s testing centre.
Mr. Desbiens was therefore given three five-minute written tests, one dealing with business terms, one dealing with numbers and one with comprehension. He was also given an oral reading test using short telegrams in both French and english.
The written tests are from the industrial psychology institute based in New york, a corporation devoted to preparing such tests throughout America. The employer has been dealing with this institute since 1955. It has been resorting to such tests for every request for a junior clerical position whatever the case may be: employment or moves.
According to the evaluation method used, the straight results achieved by the grievor in each test were first converted to a level according to a chart. Then, using a form entitled "hiring summary worksheet for junior clerks", the levels obtained were inserted in a table where equivalent numeric amounts were added up to provide a global evaluation. The results of the grievor were as follows:
results Level equivalent
1) Clerical terms 20 (on 52) 5 5
2) Comprehension 11 (on 50) 1 0
3) Numbers 26 (on 54) 3 1
Global evaluation : 6
A list of the various levels, with descriptions, was provided.
There are five levels, as follows:
U.Q. "Under Qualified" : 0 to 5
Q.1 "Minimum Qualified" : 6 to 11
Q.2 "Well Qualified" : 12 to 16
Q.3 "Over Qualified" : 17 to 20
The global evaluation of the grievor, i.e. 6, places him at the very bottom of the Q.1 category "minimum qualified". The description of this category and the recommendations of the institute are as follows:
"Q1 - Minimum Qualified, and recommended only in tight labor
market ... Q1 applicant is risk for this type of assignment, because
meets only minimum standard on psychological traits ... should be
hired only if no other applicants can be found, and some favorable
characteristics present, e.g. good interview impression, right type
of job experience.
Q1 employees found just about able to pay own way ... wages plus
overhead just equal productivity ... not an income-producer for
company ... basically just hiring "hand" employee to fill spot,to
maintain activity ,but not to increase produdtion ... to many Q1
employees, either in a company as whole or in a department, can
definitely reduce efficiency or operation.
Again, however, applicant may be Q1 on just one or two traits or
his average Q-level may be at high-Q1 level ... in tight labor market,
high-Q1 would be acceptable - e.g. on aptitude tests, total weighted
score for Q1 ranges between 6 and 11 points ... score of 9 or better
has been found acceptable."
Despite their highly scientific nature and their great use to an employer with respect to hiring practices, such psychological tests cannot however be conclusive with respect to an employee’s right to displace another employee.
The employer does not enjoy the same degree of freedom in the selection of candidates since it has granted, in article 10.5 of the collective agreement, a preferential right in favor of the employee whose position is abolished, i.e. that of displacing an employee having less seniority.
There is no longer a question of choice among diversely qualified candidates to a position. The selection must be done according to the seniority on only one condition: "qualifications being sufficient".
What does this mean ? The ability to meet the requirements of the position, and nothing else.
It was clearly proven that in his mother tongue, the grievor was capable of reaching customers by phone, reading them the message contents and completing the standard form and the few minor clerical tasks involved .
In our opinion, the problem lies mainly with the degree of bilingualism required.
The distribution of the work among telephone delivery operators requires that each one of them be fluent in either of the official languages. The work is not usually sorted beforehand to separate the messages written in one language from those written in the other.
It is true that in order to help some employees currently in service maintain their position, the employer showed some conciliation toward those employees whose knowledge of French or English was not sufficient to allow them to perform satisfactorily. In view of this problem and exception, the dispatcher would first sort the messages in order to give these employees messages mainly written in their mother tongue.
This very specific exception does not however prove the rule. An arbitration board cannot dictate a new method of operation to the employer. Furthermore, it does not have the authority to decree new exceptional cases (displacement, job vacancies through bulletin boards, etc.) favoring employees no longer in a position but at the employer’s service, especially since the introduction of such new exceptional cases would result in increasing the number of unilingual operators while the phenomenon of "attrition" aims at eliminating them progressively.
The degree of bilingualism required to assume the position of telephone delivery operator is quite low: to be able to read a telegram clearly, in both official languages.
What did the evidence show on this matter ?
The grievor maintained having phoned out such messages to the adressees "on a couple of occasions" while in the dispatcher’s office during the latter’s absence. He added that no one complained afterwards of his performance.
The employer strongly objected to this statement stating that it was not aware of these facts and that in any case motor messengers were not authorized to proceed in this fashion.
Mr. Desbiens also testified on the reading test he was given by the employer. He was given two sheets containing each five messages of approximately three lines, one in French, one in english. He specified that he was not given any time limit to read the texts before the evaluator and that he had accomplished this task adequately, having had difficulty in pronouncing only certain english words not commonly used.
During the cross-examination, the employer presented him with one of the samples used for this type of test and had him read certain parts. The board noted that, obviously, the grievor was not fluent in english and that he stumbled over certain words or pronounced them in such a way that it made them very difficult to understand when not following them on paper. For example, the word "premises" or those ending in "th". Generally speaking, and for certain conciliatory customers, Mr. Desbiens could maybe get by. His most serious mistake was to read the number 3.08 as if it were 3.8.
Whatever the outcome of this very superficial reading test taken before the board, its probative value is of little significance since it is not on the day of the hearing, i.e. July 18 1985, that we must evaluate the grievor’s qualifications, but rather as they were in September 1982, when he filed his request to displace and was refused by the employer.
To do so, what elements could we use to evaluate the grievor’s ability to read telegrams then ?
In the evidence submitted by Mr. Desbiens, there exists only his statement to the effect that, on two occasions, he delivered short messages in english to clients he had called. There is nothing in there that we could use to evaluate the quality of the transmission if not that these customers do not seem to have complained afterwards. It is very little.
On the other hand, we have Mr. Guy Giroux’s testimony, hiring supervisor for the company, who gave Mr. Desbiens the aptitude tests. Talking about the results of the reading tests, he stated:
"In French, he was proficient. In english, he had trouble with
pronunciation, trouble with the numbers. He was not
recommendable for phoning out. For instance, the word
"information". He said it in French. In my report dated
September 20, 1982, I mentioned that Mr. Debiens had revealed
a great (weakness) in his english pronunciation."
During the cross-examination, the witness specified:
"Upon listening to Mr. Desbiens read, I had the text in front
of me. I understood certain words, others not. In the context
of a telegram, he wasn’t clear at all. He stumbled over numbers
mainly, and didn’t pronounce the "th" in dates. As for the rest, I
can’t remember. It was inadmissible for the person receiving the
Let us recall that the grievor had to prove that in September 1982, he had sufficient knowledge of english to be able to read in english,to the addressee, the messages sent by CNCP telecommunications’ customers, whether commercial or personal in nature.
Thus, despite the sympathy we feel toward an employee having 17 years of service whose position is abolished and who intends to exercise his right of displacement, despite all the distinctions that can be made with respect to the employer’s requirements to fill such a position whether hiring from outside or displacing employees within according to their seniority, there will always remain as a dominating factor the proof that Mr. Desbiens did not possess minimal qualifications in his second language to adequately perform the duties of the position he requested.
For these various reasons, we have no other choice but to reject his grievance.
MONTREAL, November 4, 1985
Guy E. Dulude
DISSENT TO THE ARBITRATION AWARD
The grievance submitted to the board deals on whether or not the grievor, Mr. Roger Desbiens, is sufficiently qualified to fill the position of Telephone Delivery Operator.
After evaluating the three tests which were given to Mr. Desbiens, the board reached the conclusion that "such psychological tests cannot be conclusive with respect to an employee’s right to displace another employee." The decision specifies that the employer granted, in article 10.5 of the collective agreement, a preferential right favoring the employee whose position has been abolished. And in this case favoring Mr. Desbiens since, as the decision rightly concludes, the selection must be made according to seniority on the only condition that qualifications are sufficient.
The decision retains the bilingualism requirement as the sole criteria for rejecting Mr. Desbiens’s grievance.
"The distribution of the work among telephone delivery operators requires that each one of them be fluent in either of the official languages. The work is not usually sorted beforehand to separate the messages written in one language from those written in the other." And concludes that "in order to help some employees currently in service, the employer showed some conciliation toward those employees whose knowledge of French or English was not sufficient to allow them to perform satisfactorily." The decision also retains that "the dispatcher would first sort the messages in order to give these employees messages mainly written in their mother tongue."
Thus, the evidence shows that the distribution of the work does not require that each operator be fluent in either of the official languages. The cited case of a certain Mr. Molnar, which never raised any objections, who was very "weak in French" and who was given mainly English and Hungarian (his mother tongue) messages to deliver, is in this respect conclusive.
Even through the employer strongly objected to Mr. Desbiens’s statement to the effect that "on a couple of occasions" he delivered messages to customers by phone in the absence of the dispatcher, it is nonetheless plausible that the rules of procedure issued by the employer are, in the course of daily practice, modified according to the actual need of enabling the employees to carry out their duties adequately. The case of Mr. Molnar is quite enlightening in this respect, not as an exception but as evidence.
While admitting that practice does not constitute the rule, it would have been better for the board to consider CNCP Telecommunications’ actual operations as established by the evidence to determine the actual sufficient qualifications of the position sought by Mr. Desbiens, thereby avoiding the need to impose a new method of operation on the employer, or the addition of a new exception with regard to attribution wich tends to eliminate progressively such exceptions. As a matter of fact, it would seem just as plausible, given the evidence, that bilingualism, even at a very low degree, is not conclusive among the sufficient qualifications, although it is the only criteria used to justify the dismissal of Mr. Desbiens’s grievance.
It is even more surprising to note that even on the chapter of bilingualism, Mr. Desbiens, according to the board "could maybe get by"generally speaking. In fact, the grievance’s only failure seems to lie in the time lapse between the hearing, when Mr. Desbiens seemed to more or less get by (July 1985), and the time when he filed for the position and was refused by the employer.
The testimony of Mr. Giroux, who gave Mr. Desbiens the tests, is not as conclusive as it would appear: "He stumbled over numbers mainly, and didn’t pronounce the "th" in dates, as for the rest, I can’t remember."
The omission of "th" in pronouncing dates is far from being a serious mistake making the comprehension of dates impossible. As we all know, in english, the context clarifies the meaning. The person who would have heard a date pronounced without the "th" would have no trouble whatsoever understanding the date in question. Even if the operator were to say "two October" instead of "October second", there would be no confusion possible.
How would the grievor have proven that in September 1982, he had a sufficient knowledge of english to be able to read telephone messages to the addressees? The company lawyer maintained that Mr. Desbiens had practiced his english in the hope of improving before the hearing. This statement does not however arise from the evidence, Mr. Desbiens having even declared under oath that he had not practiced his english.
As Mr. Giroux’s mother tongue is not English, he would not have been the person best qualified to evaluate Mr. Desbiens proficiency. Therefore, we must conclude--as the board did not do -- that Mr. Desbiens’s linguistic skills had not improved much over almost three years, a very reasonable conclusion given the grievor’s age and education.
And in such a case, the board should have, by comparing Mr. Desbiens’s skills as demonstrated at the hearing with the actual conditions prevailling in the message delivery room as revealed by the evidence, accepted the grievance and ordered the reintegration of his position, even with the provison that the grievor take english proficiency courses at the employer’s request.
Fred A. Reed
October 18, 1985S