AH - 197
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAYS,
TELECOMMUNICATIONS DIVISION
(the ”Employer”)
AND
CANADIAN BROTHERHOOD OF RAILWAY,
TRANSPORT AND GENERAL WORKERS
CANADIAN TELECOMMUNICATIONS DIVISION
(the “Union”)
IN THE MATTER OF THE GRIEVANCE OF D. A. Chalmers
Board of Arbitration: D. M. Beatty
N. L. Mathews, Q.C.
W. Walsh
There appeared on behalf of the employer:
W. Healy Q. C. Counsel
R. Kelly
There appeared on behalf of the Union:
E.J. Shilton-Lennon Counsel
N. Hobbs
A hearing in this matter was held at Toronto, Ontario, on the 28th day of May, 1980.
Mr. D. A. Chalmers is employed as one of two General Technicians who are assigned by the employer to its Jasper Alberta location. His Job Grade is rated at level five. The other General Technician is Mr. R. Czobitko and he is paid at a grade six level. That is the only difference between these two individuals who otherwise are qualified to and actually do perform, (subject to their own informal division of labour), exactly the same duties which are normally assigned either to a plant or to an Equipment Technician. But it is a significant difference and is one which in fact underlies and gives rise to the instant grievance.
The issue arose in this way. Mr. Czobitko went on vacation during the period from July 2 until July 14 , 1979. As a consequence, during that period of time the grievor was obliged to carry out all of the duties required to be performed by the General Technicians at Japser. The evidence is that he did so. He said that although he had had to work harder and that it was often more difficult to perform the duties assigned to him, he was able to do all of the work that came into the Jasper office. And, his testimony was corroborated by Mr. Czobitko’s recollections that he could not remember there being any backlog of work awaiting him on his return from his holidays. In fact, however, to accomplish this feat Mr. Chalmers was obliged to work overtime on four separate occasions. In total these four assignments amounted to some thirty hours of work and twenty of these were worked on two days he otherwise would have enjoyed of his normal days off.
The question to de decided by our Board is how Mr. Chalmers ought to be paid for this period when he single-handedly discharged all of the General Technician’s duties. Specifically the issue raised by Mr. Chalmers’ grievance is whether, during the period Mr. Czobitko was absent from work on his vacation, the grievor can properly be regarded as having replaced Mr. Czobitko in his position and, as a consequence, be held to be entitled to be paid the latter’s higher, grade six rate.
In a sense, how one resolves that questions turns on one’s perception or characterization of the grievor’s work performance during the period in question. According to the grievor, during this period when he performed all of the duties required of the General Technician classification without any relief, one could regard his performance of work in one of two ways. In the first place it could be said, under Article 6, clause 8 of the Collective Agreement, that Mr. Czobitko’s going on vacation created a “temporary vacancy” which was either formally assigned by the grievor’s supervisor, Mr. Stephens, to the grievor, or was, de facto, assumed by him. On this view of his work activity during the period in question, the difference in the Job Grades of the two Technicians becomes significant and the grievor would be entitled to his colleague’s higher rate. Alternatively the grievor argued that in the circumstances described he should be regarded as having actually performed the duties of two jobs - both Mr. Czobitko’s and his own. He was, after all, the only employee performing the work which normally was assigned to two Technicians. And, on this characterization he claims that he would be entitled to be paid the wages of both the General Technician positions.
The employer’s response to the grievor’s claim, which was narrowed and clarified by Mr. Healy at the hearing, was that both of his depictions of his work activity during Mr. Czobitko’s vacation were gross mischaracterization. On its view, properly described, the grievor could only be seen to have performed exactly what was expected of him - viz., his own job. According to the employer, Mr. Chalmers was
“…not required to change (his) hours of work or rest days. In effect (he) was not required to relieve Mr. Czobitko’s position. Hence (his) salary was not increased to the Grade 6 level”.
On the employer’s view then, the grievor would only have been entitled to his normal wages, together with any overtime pay for the hours he worked beyond his regular shift. And that in fact is what he was actually paid.
In a sense then the difference between the parties arising from this grievance can be reduced to the question of whether the grievor was performing Mr. Czobitko’s job during the latter’s vacation. On either of the grievor’s characterizations of his work he was. On the employer’s he was not. In turn, the resolution of that issue, and the grievor’s correlative claim to be paid Mr. Czobitko’s higher rate in lieu of or in addition to his own, fails to be determined, under the terms of the parties’ Collective Agreement, specifically on whether or not the employer was obligated to regard the latter’s position as being vacant during his vacation. Under the terms of Article 6, Clause 8 that, it was agreed, was a cornerstone to the grievor’s claim. Only if Mr. Czobitko’s position could be regarded as being “temporarily vacant” under that provision could the grievor assert his seniority to fill it and to claim the higher rate of pay under Article 11, Clause 1. Those terms provide:
Article 6, Clause 8:
(a) Temporary vacancies in the Technical Groupings of thirty (30) days or less shall be filled without the necessity of bulletining, preference being given to the senior qualified employee in the office where the vacancy occurs.
Article 11, Clause 1:
An employee in a Technical classification assigned for one day or more to a higher grade position and an employee in a Non-Technical classification assigned for a minimum of four (4) hours or more of a working day shall receive the corresponding step in the higher grade and will be increased to the next higher step on the date an increase would have been due on his regular position provided he is on the assignment at that time. An employee temporarily assigned to a position in a lower grade shall not have his rate reduced.
In joining issue on this narrow question, the parties were also agreed with respect to the criterion that ought to be adverted to in order to resolve it. Both of them, accepted the principles advanced by the Boards of Arbitration in Re Polymer Corp. and O.I.C. Chemical and Atomic Workers, Local 9 - 14, (1974), 5 L.A.C. (2d) 344 (Rayner) and in Re R.J. Simpson Manufacturing Co. (Canada) Ltd. and United Automobile Workers, Local 1738 (1976). 11 L.A.C> (2d) 145 (Hinnegan) as accurately reflecting the consensus of arbitrage opinion as to the meaning or the term “vacancy” in the labour relations context. According to these awards in determining whether of not a vacancy exists one must consider not only whether a position is empty or vacant in “the dictionary sense of the term”, but whether, in addition, there is “adequate work” to justify the filling of that position. On this principle then, the question that is raised in the instant case is whether, in the circumstances of Mr. Czobitko’s holidays, there was sufficient or adequate work available which would require the company, acting reasonably, to have filled it by assigning the grievor to it.
In our view the clear answer to that question is that there was not, either on the objective facts that existed at the time Mr. Czobitko went on his vacation or on the circumstances that actually prevailed during his absence, that degree of available work which, acting reasonably, would have obligated the company to declare his position temporarily vacant. And this is so even conceding, as the employer did, that the summer season is generally the busiest time of year for the General Technicians at the Jasper location.
From the employer’s perspective, it would have had little doubt that in fact Mr. Chalmers could have been able to handle the entire work load of the General Technician classification by himself for at least four of his five regular days of work. That is so because as the evidence made clear, in fact on four days of every week in the year, one General Technician has been able to handle all of the duties assigned to this classification. That is, on each of the days that either Mr. Czobitko or Mr. Chalmers takes as his regular days off, the other has been able to cope with the work load coming into the office. From this perspective then, while recognizing that Mr. Chalmers would have had to have worked alone on all four days rather than only on two of them as would be the case when Mr. Czobitko was on duty, the employer could quite reasonably in our opinion have expected the grievor to carry on the operation of the Jasper location by himself. There was, in short, nothing inherent in the nature of the work load which, on at least four or the five days of his regular rotation, would have justified the employer assuming there was sufficient work available to warrant a second Technician.
The question remains then whether on the other three days of the week, there would have been sufficient or adequate work available to justify the company declaring Mr. Czobitko’s position of temporarily vacant, allowing with some other relief employee. In the company’s view there was not. In their opinion, the operation of the Jasper location could be handled by Mr. Chalmers working his regular fifth shift and by covering and being available on his days off on an overtime basis. In <Mr. Stephens view if the grievor was agreeable to being subject to a call out on his days odd, the operation of the Jasper location could be adequately maintained.
And, subsequent events proved Mr. Stephen’s to be exactly right. The facts of Mr. Chalmers’ work activity during Mr. Czobitko’s vacation period are the most objective and eloquent evidence which bear out the reasonableness of the company’s assessment of the amount of work that would be available during his absence. Mr. Chalmers’ own evidence, it will be recalled, was that he was in fact able to perform all of the work coming into the office by working some thirty hours of overtime in addition to his regular hours of work. And, it will be recalled, as Mr. Stephen’s correctly anticipated, most of that overtime work, two-thirds in fact, fell on what otherwise would have been two of the grievor’s days off. In other words, except for working two of his four days off in the period of question, Mr. Chalmers was able to do virtually all of the work coming into the Jasper office on a schedule that did not differ significantly from that which he followed when both he and his colleague were present at work. Even though we have no reason to doubt that the grievor would be working harder when he worked alone, the fact remains as the employer maintained, that his basic pattern of work did not change during Mr. Czobitko’s vacation. Apart from the one “weekend assignment the grievor was only obliged to work, an average of five hours of overtime on each of the two weeks that Mr. Czobitko was on vacation. Thus, given that both Mr. Chalmers and Mr. Czobitko conceded that overtime work was a regular and normal feature of their jobs throughout the yea, the grievor’s work experience clearly confirms the company’s assessment that, apart from being available on an overtime basis on his days off, the grievor would be able to handle the flow of work by himself without significantly altering his regular work pattern. His actual record of work confirms, in short, the reasonableness of the employer’s prognostication that there was not a sufficient or adequate amount of work available to justify declaring Mr. Czobitko’s pattern temporarily vacant and, eventually, adding a relief employee. In the circumstance that it anticipated would transpire and which, the objective evidence confirms actually occurred, we think it entirely reasonable for the company to have decided to cover off this one period of additional available “weekend work” by paying the grievor an overtime premium rather than declaring his position vacant. Those tow days on which the grievor was obliged to work his days off when taken across the entire two week period of Mr. Czobitko’s vacation do not, in our opinion, amount to such a significant amount work as to make unreasonable the employer’s decision not to treat them as giving rise to a temporary vacancy.
On the conclusion it follows, as the Union conceded, that the grievor’s claim for Mr. Czobitko’s higher rate during the latter’s vacation must fail. However, in reaching this conclusion it should be apparent that the gravamen of Mr. Charmers’ complaint, the fact he is paid a lower rate than his colleague who performs exactly the same duties, remains. Nothing we have said in this award will assuage his sense of injustice at the anomaly that continues to exist in the General Technician classification at the Jasper location. And, for so long as it remains unresolved it can be expected to continue to act as a source of irritation and of potential grievances in the future. Quite plainly, the fact that he is not entitled in the circumstance of Mr. Czobitko’s annual vacation to assert a claim for the latter’s higher rate under the terms of Articles 6 and 11 will not likely be sufficient to dissuade the grievor of the inequity of his position. It is however, for the reasons we have given, a sufficient basis on which his grievances must be denied.
Dated at Toronto this 26th day of August, 1980.
David M. Beatty Chairman
“I concur” Norman L. Mathews, Q.C. Company Nominee
“
“I dissent” (dissenting opinion attached) William Walsh Union Nominee
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL TELECOMMUNICATIONS
AND
CANADIAN TELECOMMUNICATIONS DIVISION OF CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF D.A. CHALMERS
DISSENT
I have had full opportunity to review the award of the chairman. With respect, I must dissent.
The issue is fairly summer up on page 3 of the award: “…the difference between the parties…can be reduced to the question of whether the grievor was performing Mr. Czobitko’s job during the latter’s vacation. On either of the grievor’s characterizations of his work he was. On the employer’s he was not.”
On page 5 the chairman examines the arrangement followed during the remainder of the year when neither employee is on vacation. He finds that during those months each of the two employees has two days off per week, and it follows that one or the other of the two employees is alone four days each regular week. From this arises the conclusion that since it is capable of being a one-employee operation during a total of four regular days a week, it can be son considered for a fifth day as well. However, if this situation is examined a ;little more closely a different result ensues.
During most of the year, in non-vacation time, the grievor is alone on the job only two days per week during which he is required to perform the work of the higher paid Czobitiko. For only a minority of the time during most of the year he fills in for Czobitiko. But during the vacation period in question, he was required to fill in for Czobitiko the majority of the time, indeed the entire time, regular hours and overtime.
In the normal periods, therefore, the grievor receives his lower pay, while filling in for his higher paid fellow-employee two days a week. And he again received only the lower rate of pay when he filled in for the period in question on a full-time basis.
Whatever may be the justification for the Company paying the grievor less than Czobitiko in the normal months of the year when he fills in for only two days a week, there is a clear inequity when he is required to work at the lower rate while filling in the job on a full-time basis.
The inequity is more pronounced since, as recorded in the award, the employer agreed that the vacation season at this Jasper location is generally the busiest time of the year for the employees involved.
For these reasons I would uphold the grievance.
Respectfully submitted
Wm., Walsh