AH - 204
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CANADIAN TELECOMMUNICATIONS UNION,
DIVISION NUMBER 1 OF THE UNITED TELEGRAPH WORKERS
(the ”Union”)
AND
CANADIAN PACIFIC LIMITED
(TELECOMMUNICATIONS DEPARTMENT)
(the “Company”)
Sole Arbitrator: Stanley Schiff
There appeared on behalf of the Company:
Harold Dunstan, labour relations officer
Sander Gibson, counsel
There appeared on behalf of the Union:
Jim Parnell, system general chairman
Cleveland de Laroche, regional chairman
Elizabeth Lennon
Paul Cavalluzzo, counsel
A hearing in this matter was held at Toronto, Ontario, on the 18th day of July, 1978.
The Company owns and operates a microwave system spanning Canada. Through a network of transmitting, receiving and retransmitting stations, microwave signals carry customers’ information for local and long distance reception. Customers include private television broadcasters, commercial banks and the federal government itself.
The stations, located some thirty-five miles apart, operate by remote control. To assure this continuous high-quality performance, microwave technicians, each assigned the responsibility for a group of three or more stations, regularly travel the circuit from the headquarters station for routine maintenance and emergency troubleshooting.
The grievance before me involves a vacancy in the position of microwave technician for a group of stations in south-eastern Ontario comprising those at Smith Falls, Rideau Ferry, Clarendon, Cloyne and Vanacher. The headquarters station is at Clarendon. In determining the requisites for this position, company officials decided that the “(s)uccessful applicant must reside in the immediate Clarendon Ontario are”, and the vacancy bulletin was drafter accordingly. After discussion with the union, the officials amended the bulletin to permit residence “within an approximate distance of ten (10) miles of the headquarters site.” Before me, the parties agreed that a later amendment et the distance at fifteen miles.
The union claims that the distance limitation is invalid both under the specific provisions of the collective agreement and under settled arbitral doctrine requiring any qualification imposed by an employer to bear a reasonable relation to the job demands. As relief the union asks for cancellation of the bulletin and rebulletining with no restriction on residence.
The applicant the company chose was notified of the hearing and attended. After I inform him of his right to counsel and to take full part in the hearing, he chose to proceed without adjournment or counsel. He thereafter testified on his own behalf.
The relevant provisions in the agreement are these set out in Article 3-Bulletining and filling of Positions:
3.02 All… vacancies for a known duration of thirty (30) calendar days or more shall be bulletined promptly by wire. Bulletins shall indicate the grade, headquarters, rest days and hours of duty of the position. Employees shall be allowed five (5) days in which to file application with the designated supervisory officer…
3.03 When a vacancy occurs the same will be filled by the appointment of the senior applicant who is capable of filling the position, having due regard to merit, fitness and ability.
3.10 When an employee is moved to a permanent position in the exercise of seniority rights, as provided in Article 3… of the Agreement, he shall receive free transportation for himself, dependent members of his family and household effects in accordance with Company regulations. If it is impracticable to commute, the employee will move to his new headquarters location within a six-month period.
At the outset, I cannot agree with the union’s argument that the second sentence of clause 3.02 exhausts the matters the company may include in a bulletin. The language of the sentence is certainly imperative and, should the company fail to include mention of any of the matters there set out, the union could justly complain. But, on the face of the provision, the language is not restrictive, and I can see no good reason so to read to. Moreover, the requisite content of the bulletin under clause 3.02 is one thing while the qualifications for the bulletined position may be quite another. Even if I were to accede to the union’s argument, this alone would no prevent the company from determining qualifications for the position and imposing them while assessing applicants under clause 3.03. Thus, if an applicant’s proposed place of residence were a legitimate matter for the company to consider in assessing him for this position, its mention in the bulletin as such would not violate clause 3.02.
I move then to clause 3.03 and concluded that its language standing alone does not bar the company from looking to the proposed residence. One of the measures of qualification described is “fitness” for the position in question. According to standard dictionaries, “fitness” may properly bear the meaning “suitability” or “appropriateness”, and the word has been read in the context of at least one collective agreement to mean “general suitability”. Re Int’l Chemical Workers and Consumers’ Gas Co. (1963), 13 L. A. C. 311 (Arell, chairman) (note). The evidence before me makes clear that, to perform the job adequately, a microwave technician must be able to travel to each of the five stations as quickly as possible under all driving conditions. Therefore, in the light of the job demands, if no other provision in the agreement bore on the word’s proper meaning, “fitness” in clause 3.03 could well include the matter of an applicant’s proposed place of residence.
But another provision does bear on the proper meaning and it prohibits consideration of place of residence at the stage of applying clause 3.03. That provision is clause 3.10.
On reading made imperative by the language and meaning of its first sentence as well as its position within Article 3, clause 3.10 comes into effect after a vacancy has been filled by application of clause 3.03. Then, and then only, does 3.10 govern specifically the matter of the newly-chosen technician’s ability to travel between what at that time is his permanent residence and what if the headquarters site of the new “permanent position”. If commuting between them is “practicable”, he may take up the new position without moving his residence. But “(if) it is impracticable to commute, (he) will move to his headquarters location within a six-month period”, with costs of transportation borne by the company. Since the matter of the geographic relation of the technician chosen under clause 3.03 is subject to these specific directions, clause 3.03 cannot sensibly permit consideration of the place of proposed residence at the earlier stage of choice among applicants and the stage before that of bulletining qualifications for the position. And those of course are the stages involved in the grievance. It follows that the company’s imposition of a distance limit as a qualification for the position was conduct beyond what clause 3.03 permits and the bulletining of it as such improper. However, I add that, consistent with the way I read clause 3.02, the company may include in a bulletin mention of the direction in clause 3.10 governing place of residence once an applicant has been chosen.
In this light the grievance is allowed without need for me to consider the second branch of the union’s argument. I declare invalid the qualifications of a limit of distance the company set out in the bulletin and its amendments, as well as the company’s determination to award the position to the present incumbent on them.
The company shall forthwith issue a fresh bulletin without including such a qualification.
Dated at Toronto this 1st day of August, 1978.
Stanley Schiff