AH - 208

AH - 208

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO 1 OF THE UNITED TELEGRAPH WORKERS

(the ”Union”)

AND

CANADIAN PACIFIC LIMITED

(TELECOMMUNICATIONS DEPARTMENT)

(the “Company”)

IN THE MATTER OF THE GRIEVANCE OF Mr. R. J. Ellestad

Sole Arbitrator: David M. Beatty

There appeared on behalf of the Company:

D. W. Flicker - Counsel

A. H. Neville - Director, Industrial Relations

There appeared on behalf of the Union:

P. J. Cavaluzzo - Counsel

J. D. Parnell - Vice-President

D. J. Dunlop - Regional Chairman

A hearing in this matter was held at Toronto, Ontario, on the 8^th day of September, 1975.

(First sentence is unreadable.)

On October 1(3 or 8)th , 1974, the position of Roving T& R Technician, Grade 4, held by the grievor was upgraded and bulletined according to the procedure outlined in article 20.01 of the collective agreement. As a result o that procedure a Mr. G. L. Krul displaced the grievor in the upgraded position and on October 29, 1974, Mr. Ellestad was instructed by Mr. G. M. Ibbitson, the Senior Operations Supervisor for the Alberta Region, to advise the company which position he intended to occupy in accordance with article 6 of the collective agreement. On October 30, 1974, pursuant to Mr. Ibbitson’s instructions, Mr. Ellestad made application for the Evening Telex position, Grade 5, held by D. M. Roisen. On November 1, 1975, Mr. Ibbitson denied Mr. Ellestad’s request on the grounds that he had not had any training on or close exposure to the equipment required to be operated in this position and because Mr. Roisen himself had just recently complete an extensive eight week training program for this particular job. After repeating his claim for entitlement to the Evening Telex position, Mr. Ellstad made application for the T & R, Grade 5 position occupied by Mr. S. Robberstad and ultimately on November 18, 1974, was the successful unqualified applicant for the T & T Broadband Technician, Grade 5, position replacing Mr. V. R. Fisher. He has apparently remained in that position pending the resolution of his original claim that he entitled to assume the position of Evening Telex, Grade 5, occupied by Mr. Roisen.

It is the union’s position that pursuant to article 6 of the collective agreement Mr. Ellestad is entitled to that position. Article 6.01 provides:

Article 6 - Staff Reduction

6.01 “An employee affected by staff reduction or whose position has been abolished shall have the right to displace any junior in the same classification on his seniority District, and the services of the junior in the classification shall be dispensed with.”

It was Mr. Cavalluzzo’s contention that even conceding, which the grievor did, that he was not qualified to perform this job at the material time, by the plain language of article 6.01 the company was obliged to assign the job to the grievor when he made the application for it and pursuant to article 23 to provide him with the requisite training to allow him to perform the tasks associated with it. Very simply, it was Mr. Cavalluzzo’s position that no where in article 6.01 were ability, merit and fitness made material qualifications as to on employee’s right to displace an employee junior to himself under article 6. To the contrary, all that article 6 required, according to Mr. Cavalluzzo, was that an employee be affected by a staff reduction or the abolition of their job, that they be senior to the employee they seek to displace, and that the job claimed be in their own classification and seniority district. There being no dispute on any of these matters, Mr. Cavalluzzo concluded that the company was obliged to assign the job in question to the grievor and to provide him with the necessary training to enable him to perform those tasks associated with it.

Mr. Cavalluzzo supported his contention that ability and merit were not relevant factors in the application of article 6 by referring to other provisions in the agreement where the parties had expressly (end of sentence is unreadable). Specifically he referred to article 3.03 of the agreement which provides:

Article 3 - Bulletining and Filling of Positions

3.03 “When a vacancy occurs the same will be filled by the appointments of the senior applicant who is capable of filling the position, having due regard to merit, fitness and ability.”

Mr. Cavalluzzo contended that it was manifest from the provision that the parties were cognizant of such considerations and when they agreed it appropriate, had made them material qualifications to an employee’s right to claim a vacant position. In the result, both on its plain language and in light of the contrasting provisions in Article 3, Mr. Cavalluzzo concluded that one could not reasonably construe article 6 as requiring an employee to have the requisite ability and qualifications for the position they sought under the terms of article 6. In short, on its clear language, seniority and seniority alone was the material criterion to determine if an employee such as Mr. Ellestad was entitled to displace another employee in his classification and seniority district.

The company’s position on this threshold issue was completely at odds with that advanced by the union. Mr. Flicker took the position that article 6.01 must be read in the light of article 3.03 and that accordingly merit, fitness and ability were relevant criteria in determining an employee’s rights in the displacement context. Mr. Flicker supported his position by referring to article 6.02(a) of the agreement. That, and the two sections which precede it provide:

6.02 - (Technical Section)

“The junior employee, if he came from another classification or group shall have the right to return to his former position. If such position has been abolished or is held by an employee with greater District seniority, he may displace any junior on the District in the same or lower grade in his former classification. In the case of the latter, his rate would be that of his class and step in the grade of the position he is to occupy, and he may thereafter exercise his District seniority in accordance with Article 3, Clause 3.01.”

6.02 - (Non-Technical Section)

“The junior employee, if he came from another classification, shall have the right to return to his former position in that classification. If such position has been abolished or is held by an employee with greater District seniority he may displace any junior on the District in the same or lower graded positions to that formerly held and may thereafter exercise his District seniority in accordance with Article 3, Clause 3.01.”

6.02(a) - (Non-Technical Section)

“Any employee in the Non-Technical section unable to hold a position in his classification at his location may exercise his greatest General District Seniority to displace any junior employee having less General District Seniority in any Non-Technical classification on the District. An employee so displaced will in turn use his General District Seniority. Any such employee will be provided with the necessary implant training to enable him to do, provided that he meets the standards, as outlined in the Company’s training plan.”

Note: General District Seniority is that date established upon first entry into any position in any Non-Technical classification on the employee’s seniority District.

It was Mr. Flicker’s position that the underlined portion of article 6.02(a), although by its terms not applicable to the facts of this case, conclusively demonstrated that a merit or ability qualification was implicit in article 6.01. That is, Mr. Flicker argued that if the union’s position were correct and such considerations were not material to the application of article 6.01 (which applies to both Technical and Non-Technical employee) then the underlined portion of the article 6.02(a) would be purely superfluous. Rather, Mr. Flicker contended it is precisely because such considerations are (word?) and relevant to the operation of article 6.01 that the parties have agreed, for whatever reason, to waive their application with respect to the employees employed in the Non-Technical section of the company’s operations.

Mr. Flicker offered additional support for the employer’s position by referring to the chaotic results, testified to by the employer’s officials, which would result if ability and merit were not releveant criteria in the operation of article 6.01. As they hypothesized, if the union were correct, in any staff reduction which involved several employees bumping others, the company could be confronted with a situation in which four or five employees held jobs which they were presently unable to perform and for whom the company would be obliged to provide detailed and often complez training in order that they could become proficient in these jobs. The consequent interference with and interuption to the service provided by the company which would necessarily flow from such situation, attested, according to Mr. Flicker, to the unreasonableness of the union’s proposed construction.

Put succinctly then the basic and threshold issue divding the parties with respect to Mr. Ellested’s grievance is the proper meaning to be ascribed to article 6.01. Given the union’s admission that the grievor did not possess the requisite qualifications to perform the job in question at the material time and would have required an extensicve training program of some eight weeks to secure the necessary skills, the specific issue is before me is whether his lack of qualifications is fatal to his grievance. For the reasons that follow I have determined that it is. Standing alone, it is manifest that article 6.01 does not expressly provide that an employee whose job is abolished must possess the requisite ability or qualifications they seek to displace. Nevertheless given the potentially serious and adverse consequences to the company’s operations that would flow from the acceptance of the union’s argument, it would, I think, not be unreasonable for an arbitrator simply to conclude that implicit in article 6.01 is the requirement that the employee have the requisite ability to perform the job he seeks to claim. It simply does not follow, as Mr. Cavalluzzo suggested, that the same calamity and chaos would result in any extended bumping situation under either interpretation of article 6.01. Mr. Ellestad’s grievance itself is confirmation of the fact that if the union’s interpretation were to prevail, employees would be able to secure jobs for which they were not presently qualified. There was simply no evidence to suggest as Mr. Cavalluzzo asserted that Mr. Ellstad’s case was an exceptional one. To the contrary, it would seem to me for example that if the union’s interpretation were to prevail an employee, in the context of a staff reduction, could properly lay claim, under article 6.01 not only to jobs in his classification which were graded beneath the position from which he was displaced but as well to higher grade jobs in his classification to which he would not otherwise be entitled under article 3, dealing with an employee’s right to promotion and vacant positions. Indeed if the union’s position were accepted there would be every inducement for an employee to seek to take advantage of a staff reduction or the fact that his job was abolished and to claim, on the basis of his seniority rating, such jobs in his classification to which he would otherwise be denied under the normal promotion procedure envisaged in articles 3 and 20.Very simply if the union’s position were correct it must follow that some one such as Mr. Ellestad could in the context of a displacement, insist he be awarded a higher rated job in his classification and would obtain what could only be construed as an unwarranted promotion. In short, taken to its logical conclusion, the union’s proposed interpretation of article 6 could result in the subversion of the WORD underlying articles 3 and 20. Given such (word?) and potentially adverse consequences to the company’s operations, I would require clear and unequivocal language in the agreement before concluding that the parties intended such a result.

When one turns then to the agreement itself I am not persuaded that article 3.03 by itself necessarily confirms the union’s interpretation. Although it is true that this clause does expressly recognize the relevance of merit , ability and fitness in determining whether an employee is entitled to claim a vacant position, I do not think it follows that as a general principle the failure of the parties to include similar language in article 6 necessarily implies such factors are irrelevant to the application of that provision. For the reasons I have already described, article 6 cannot be read in isolation from the rest of the agreement. If as I have suggested it would be open for an employee, under the union’s proposed construction of article 6 to lay claim to jobs he would not otherwise be entitled to under articles 3 and 20, that may in fact more logically compel the conclusion that the merit qualification expressed in articles 3 and 20 must be deemed to be implicit in article 6. In short I am not persuaded that the contrasting language employed by the parties in these two provisions clearly and unequivocally manifests an intention that in the application of article 6, the only relevant criterion to be considered by the employer is the seniority rating of the employee claiming entitlement to displace a fellow worker in the same classification and seniority district.

Indeed when one considers the language of article 6.01, together with the three clauses that succeed it, it becomes manifest that an employee may not displace a junior employee from a position for which he does not have the requisite qualifications. Article 6.01 is a general provision which by its terms applies to staff reductions and the abolition of jobs in both the Technical and Non-Technical spheres of the company’s operations. Article 6.02 goes on to provide first for the rights of the displaced, junior employee who works in the Technical Section and then for rights of those persons who work in the Non-Technical Section. In article 6.02(a) referred to earlier, the parties then provided for the rights of an employee in the non-Technical Section who is unable tot hold a position in his classification in the circumstances described in article 6.01. By this provision those employees are entitled to assert their greatest General District Seniority to displace any junior employee in any Non-Technical classification in the District regardless of their ability to perform that job. That, in fact, is the effect of the concluding sentence of article 6.02(a) in which the company agrees to provide such employees with the necessary training to enable them to displace junior employees so long as they can meet the basic standards described in the training plan. To adopt the union’s interpretation of article 6.01 would, as Mr. Flicker properly contended, render this final sentence superfluous. It is only if one construes article 6.01 as requiring an employee to have the requisite ability to perform the job of the employee he seeks to displace can one ascribe any meaning or purpose to the concluding sentence of article 6.02. The stipulation in article 6.02(a) to provide training to employees in the Non-Technical Section is significant only if one interprets article 6.01 to mean that the employer is not otherwise obliged to train employees for positions they lay claim to in the displacement context. It necessarily follows that if the employee is not WORD under article 6.01 to provide any training for an employee who seeks to displace some other employee pursuant to that provision, such employees must have the present qualifications to perform such jobs. (An exception to this general rule would prevail of course, as it did on November 18, 1974, if none of the applicants for a position had the requisite qualifications.) Given that the grievor did not have the requisite qualifications and would not in the circumstances prevailing on October 18, 1974, be entitled to require the employer to train him for Mr. Reisen’s position., I must conclude that he was not entitled to that job on the date in question.

It is not necessary for the resolution of this grievance to speculate as to why the parties might distinguish between Technical and Non-Technical employees as they have in this article. Nevertheless it might be observed that in many of the more complex and sophisticated processes normally associated with Technical classifications the training that would be required to enable an employee to perform the tasks associated with a new position could be expected to be more extensive, costly and time consuming than that associated with Non-Technical jobs. Accordingly, it might well prove more feasible to include such a training provision for the latter group but not for the former. In any event and whatever the rationale for the inclusion of article 6.02(a) in this agreement, it serves to confirm the employer’s conclusion that the criteria of ability and qualifications are in fact relevant and operative in the criteria in the application of an employee’s displacement right under article 6.01. In the result and recognizing the parties agreement that Mr. Ellestad was not qualified or able to perform the work at the time in question, I must conclude he was not entitled to claim the Evening Telex position, Grade 5, nor in the circumstances was he entitled to demand the employer train him for this position.

Finally, and in the (word?), Mr. Cavalluzzo argued that if article 6.01 (word?) not plain on its face, if anything could be read into that section if must be article 20.06 and not article 3.03 of the agreement. Article 20.06 provides:

Article 2- -(Technical Section) Grading and Advancement

20.06 “Promotion from a position in one grade of a group to a position in a higher grade of the same group will be accomplished by a bulletin in accordance with article 3. The rate for the successful applicant will be that of his class and step but of the higher grade. Similarly, should an employee successfully bid on a job in a lower grade his rate will be that of his class and step, but of the lower grade. The successful appointee will be the senior applicant provided he is qualified or can qualify after suitable training in accordance with article 23. Should the senior applicant be unable to demonstrate within five days from the closing of the bulletin that he has the capability to qualify for the position, it will go to the next senior applicant who is qualified or who can demonstrate within the same time period that he has the capability to qualify.”

Manifestly both from its title and on its plain language this provision has no application to the abolition of jobs and staff reductions. It deals with promotions between grades within certain groups. Necessarily, it can not have any application to the claim made by Mr. Ellestad on a displacement application for the position held by Mr. Reisen. There was simply no evidence before me that the employer improperly failed to bulletin Mr. Reisen’s job. Although it is true that this provision also makes reference to the training period stipulated in article 23, entitlement to such training is founded on the employees’ demonstrating that they have the requisite qualification, (which the grievor has admitted he did not), or that they will have the requisite qualifications after suitable training in accordance with article 23. Article 23 provides:

Article 23 - (Technical Section) Training

23.01 “As the requirement s of the service may make it necessary (word?) training shall be provided by the Company.

23.02 “Other than for those already within the Testing & Regulating, (word?) and Installation classifications, all (word?) employees seeking training outside their present classification or group will require Grade XI education. If formal education has not reached this level, employees may qualify by establishing mental (word?) of the corresponding level by undertaking a “Monderlic Test”. Such test to be under the supervision of the Company’s Employment Bureau. An employee failing to qualify under this test may undertake re-examination after six months from the date of the previous test.

23.03 “ The Company will provide training facilities and instruction to meet staff requirements. When training is planned to qualify additional technicians for any classification or group, a notice of training will be posted in all district offices specifying the technical qualifications required and the duration and location of the course. For “Out of Classification or Group” training senior employees will be given preference for entry into such training schools but will be required to pass an entrance examination. For “In Classification or Group” training preference will be given to senior applicants where they will be involved in maintaining equipment covered by the training course. Examinations will be uniform throughout the system and will be designed to establish whether or not the employee has the basic knowledge to assimilate the training being offered. The Company will make available, on a loan basis, suitable study material which must be returned in good condition upon request by the Company, The Company will give the System General Chairman advance notice of any change in the entrance requirements.”

In the first place, as article 23.01 and the introductory sentence of article 23.03 made clear, it is only when the “requirements of the service” or “staff requirements” make it necessary, that the company is obliged to provide raining. That is to say the company’s obligation to provide training is conditioned upon the objective needs of the company and not on the subjective and personal situation of each employee. From the agreed statement of facts, it is apparent that having already trained Mr. Reisen for the Evening Telex Grade 5 position, there would no longer be any services requirement to train Mr. Ellestad for the same position. The fact Mr. Ellestad (sentence unreadable.) Training under this provision is simply not conditioned on the needs or desires of the individual employees. In the result and in light of my earlier determination that training is not generally contemplated in the displacement process described in article 6.0. I can find nothing in this agreement which would have entitled Mr. Ellestad to the training programs envisaged by article 23, on October 18, 1974. By that date Mr. Reisen had already completed almost half of his course for the position of Evening Telex, Grade 5. It is simply not material to the disposition of this grievance that in September 1974, when the company determined that Mr. Reisen should be trained for this position it may have been obliged pursuant to article 23.03 to provide the grievor with notice of that training course. Very simply that is not the grievance before me which, by its terms, claims the grievor’s rights were violated on October 18 when he was denied the position in question. Regardless of the grievor’s rights in September 1974 to be notified of the impending training program to which Mr. Reisen was assigned, (which would appear to turn on the scope of the second sentence of article 23.03 and on which I made no determination), the grievance before me had its inception on and by its terms has been restricted to whether on October 18, 1974, he was entitled to displace Mr. Reisen from the position of Evening Telex, Grade 5.

In the result and for the reasons given I must conclude the company did not violate article 6.01 of the collective agreement in refusing to assign Mr. Ellestad to the position of Evening Telex, Grade 5. Accordingly his grievance must be dismissed.

Dated at Toronto this 11^th day of September, 1975.

David H. Beatty

Sole Arbitrator