AH - 209
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”)
Sole Arbitrator: Professor George W. Adams
There appeared on behalf of the Company:
Mr. David Flicker - Counsel
Ms. Maureen Sabia - Counsel
Mr. Allan Neville
Mr. Ivan Waddell
Mr. William Greene
Mr. Eric Dusdal
There appeared on behalf of the Union:
Mr. Paul Cavalluzzo - Counsel
Mr. Doug Dunlop
Mr. Jim Parnell
Mr. Wally Davies
Mr. Howard Levitt
Mr. John Zawoyski
A hearing in this matter was held at Toronto, Ontario, on the 3rd day of July, 1975.
AWARD
This matter was heard in Toronto on Thursday, July 3, 1975. It arises under a collective agreement between Canadian Pacific Limited (hereinafter referred to as the company) and The Canadian Telecommunications Union, Division 1 of The United Telegraph Workers (hereinafter referred to as the union). The grievance is brought by the union under section 26.02 of the collective agreement and alleges that the company has arbitrarily changed the wage rate and title of a position designated as assistant automatic supervisor, grade 5, and alternatively alleges that one of the two assistant automatic supervisor positions has been downgraded in violation of article 20.01 and article 23 (Technical section) - Special rules, Clause 1. The important provisions of the collective agreement read:
Article 2 Scope of Agreement
2.02 When additional or new positions are created in the various classifications covered by this agreement they shall be included therein and compensation for them shall be fixed in conformity with that specified for similar positions already covered by this agreement. New employees will be paid the base rate of the applicable position grade.
2.02 Employees within the following classifications are covered by this agreement. A list of the positions within the classifications is contained in detail in Appendices “A” and “B” attached.
Article 20 (Technical section) Grading and advancement
20.01 All technical positions will be graded according to:
(1) The technical demands of the position.
(2) The responsibility or importance of the position in the office.
(3) Working conditions.
The grade of any position may be raised or lowered due to altered conditions resulting in any significant changes to Items 1, 2 or 3 above. If the grade is lowered the incumbent will retain his former rate until such times as a new position, or permanent vacancy at his location is bulletined at his present grade and in the classification for which the incumbent is qualified. Failing to bid on same, he shall revert to the rate for the appropriate lower grade in the office affected. Otherwise, he will retain his incumbency until it is overtaken in the lower grade. If the requirements of a position are increased at Montreal, Toronto, Ottawa, Winnipeg, Calgary and Vancouver and it is allocated to a higher grade, the position be bulletined. At all other offices the incumbent’s rate ill be increased in the higher grade providing he qualifies after suitable training. If the incumbent fails to qualify, the position will then be bulletined and the incumbent must vacate the position when it is filed. Changes in the grade of a position will be discussed with the regional General Chairman prior to implementation.
20.05 Senior rates based on Class “A” plus one unit can be paid for certain senior positions. These positions will be subject to the principles outlined in Clause 20.01 insofar as creating or eliminating senior positions, raising or lowering grades and protection to the incumbent is concerned. Should there be no Class “A” employee available for the position, it may be assigned to the senior Class “B” employee until he or another employee qualify as Class “A”. Should the Class “B” employee not be the first to qualify as Class “A”, the Class “B” employee will relinquish the position.
Article 23 (Technical Section) Special Rules
Automatic Plant Technicians
1 Grades for existing positions of Automatic Plant Technicians will be established on the basis of the original slotting procedures. Changes in grades, assignment of new positions or new equipment to any graded position will be subject to negotiation between the Regional General Chairman and the Regional Manager. The results of such negotiations will be made available to the Manager Industrial Relations and the System General Chairman, in order that new equipment assignments be uniform across the system.
Article 26 Grievance Procedure
26.02 union grievances may be initiated at Step 3 of Step 4, as applicable, of the above grievance procedure by the appropriate Union officer. Union grievances may related to disputes concerning the meaning, interpretation, or alleged violation of this agreement.
FACTS
The grievance was filed by letter dated October 3, 1974 from Mr. D. J. Dunlop, General Charmin Pacific Region to Mr. W. A. Greene, Regional Manager Pacific Region and arose in response to a job posting dated September 23, 1974, The posting reads, in part:
Applications will be received by W. A. Davies, Operations Supervisor, Vancouver up to and including September 28, 1974 for the following position:
Grade 4 Senior Automatic Plant Tech.
Location: Vancouver
Hours: 8:00 a.m. to 4:30 p.m.
Rest Days: Saturday - Sunday
Effective: October 1, 1974
This position replaces position of assistant supervisor automatic plant, Vancouver and is co-incident with transfer of D. L. Smallenberg to pension roll effective October 1, 1974.
The evidence establishes that prior to October 1, 1974 the company employed eleven grade 4 automatic plant technicians, two assistant automatic supervisors, grade 5 and one grade 6 automatic supervisor in its automatic plant shop in Vancouver. At the time relevant to the grievance the group supervisor for the Automatic Plant was Mr. E. Dusdal and the General Supervisor was Mr. F. M. Smallenberg. The automatic supervisor grade 6 was Mr. T. L. Sorenson and the two assistant automatic supervisors were Mr. P.L. Smallenberg and Mr. H, Graham.
Because Mr. P. L. Smallenberg was to retire on October 1, 1974 he left his position on August 1, 1974 to take advantage of his vacation entitlement. Mr. Graham then took over Mr. Smallenberg’s job and Mr. Graham’s position was posted or bulletined as a temporary vacancy and was award to Mr. Walter F. Davies, an automatic technician and a person with some twenty-eight years seniority. Thus until October 1, 1974 Mr. Davies was paid the wage rate allocated to the assistant automatic supervisor position and performed the duties of that position.
Mr. Graham’s duties, and Mr. Smallenberg’s duties were similar in many respects in that they both were assistant automatic supervisors but their duties also differed in a few significant ways. Mr. Graham’s duties were performed on an 8:30 a.m. to 5:00 p.m. basis and centered on the processing of telex work orders and handling trouble calls.
Mr. Smallenberg worked an 8:00 a.m. to 4:30 p.m. shift and his duties centered on the processing of private wire service orders (hereinafter referred to PWS work). He was also responsible for all motor vehicles assigned to the Vancouver area. However after noting these particular differences between the two positions it is necessary to detail only Mr. Smallenberg’s duties. The full extent of his duties and responsibilities consisted of the following.
1 The handling of trouble calls pertaining to PWS matters.
2 The processing of all phases of PWS work orders, entailing the assignment of specific work orders to respective staff and the follow up of these work orders to completion.
3 Occasional field trips on certain installations if necessary.
4 keeping current on the equipment in stock under his jurisdiction.
5 Providing for good shop housekeeping.
6 Responsibility for all vehicle assigned to Vancouver area. Day to day maintenance and monthly report.
7 Assisting in shop discipline.
8 The assignment of equipment break-downs to shop staff for repairs.
I am satisfied the evidence establishes that the bulk of Mr. Smallenberg’s duties consisted of the PWS work. His day to day responsibility for eight motor vehicles, including the preparation of a monthly report, was a minor aspect of his job duties in terms of the times expended and apparent importance. Some evidence of its clerical nature is indicated by the fact that, as of the date of the hearing, Mr. Sorenson has delegated the reporting aspect of this duty to a grade 2 technician.
Until October 1, 1974 Mr. Davies performed Mr. Graham’s job as the assistant automatic supervisor responsible for the telex work orders. Furthermore the evidence supports the conclusion that, despite Mr. Davies designation as a grade 4 senior automatic plant technician after October 1, 1974 as a result of his successful bid for the September 23, 1974 job posting, he continued to perform Mr. Graham’s job assistant automatic supervisor for a period of four to six weeks after October 1st. At the end of this period, Mr. Davies requested the hours he originally had bid for - 8:00 a.m. to 4:30 p.m.- and as a result of this request Mr. Graham returned to the supervision of telex work order and Mr. Davies began to process PWS work orders - Mr. Smallenberg’s responsibility prior to his retirement. I find that from this time until April 29, 1975 Mr. Davies performed all of Mr. Smallenberg’s former duties listed above with the exception of the minor responsibility for the motor vehicles. Mr. Davies had no responsibility in that, as alluded to, this duty had been delegated to Mr. Sorenson, the automatic supervisor who in turn delegated it to a grade 2 technician. On April 27, 1975 Mr. Davies was told by Mr. Sorenson on the direction of Mr. Dusdal that he was to be assigned to bench work. He was told to assist other technicians in the shop as required and was informed that Mr. Sorenson would become responsible for the PWS work orders and assignments. Mr. Davies testified that these directions were in fact implemented at the time and that since April 29, 1975 his job has substantially changed. All of his supervisory responsibility in respect of PWS work orders has been eliminated and he now spend most of his time performing bench work. From October 1, 1974 Mr. Davies was paid the wage rate of a grade 4 senior technician.
Mr. Dusdal gave evidence on behalf of the company that he had no direct contact with Mr. Davies during the period of time form October 1, 1974 to April 29, 1975. Thus while he may have believed that Davies’ duties changed on October 1, 1974 and fundamentally changed by at least early April 1975 his evidence cannot outweigh the evidence of Mr. Davies. Mr. Dusdal chose to work through Mr. Sorenson in this regard and Mr. Sorenson did not give evidence.
It was established that the company did not contact Mr. D. J. Dunlop, Regional Senior Chairman for the Pacific Region, in regard to either the ostensible change in Mr. Davies’ job duties on October 1, 1974 of the actual change in duties on April 29, 1974. However it was also established that the position of grade 4 senior technician exists under the collective agreement at locations in St. John, New Brunswick, Winnipeg and Calgary.
DECISION
The union takes the position that until at least April 29, 1975 the company arbitrarily changed the wage rate and title of the assistant automatic supervisor job performed by Mr. Davies. It further contends that on April 29, 1975 the position was then down graded without discussions or negotiations with the union in violation of article 21.01 (Technical section) and article 23 (Technical section) Special rules - Clause 1. Alternatively it contends that these sections were violated on October 1, 1974 if its first submission is unsupported by the evidence. On the other hand, the company maintains that it abolished the assistant automatic supervisor job of Mr. Smallenberg on October 1, 1974 and added a grade 4 senior technician job which Mr. Davies successfully bid for. Both of these actions, it argues, are within its management prerogatives and section 21.01 and section 23 are not applicable.
I find the evidence amply supports the union contention that on October 1, 1974 the company arbitrarily changed the wage rate and title of the assistant automatic supervisor position occupied by Mr. Davies prior to that date. As I noted in Re Windsor Public Utilities Commission and Int’l Brotherhood of Electrical Workers, Local 911, (1974), 7. L. A. C. (2d) 380 arbitrators have consistently upheld management’s right to abolish existing job classifications and to create new ones, but management cannot reclassify someone for the sole purpose of paying a lower wage rate in relation to the same set of identifiable job duties. Until April 29, 1975 Davies continued to perform the bulk of Smallenberg’s former job duties and yet was paid at the lower grade 4 senior technician wage rate. This was in of the technical salary scale provisions of the collective agreement. (See Article 2.03) Despite the September 23, 1974 bulletin, the assistant automatic supervisor job continued to exist until April 29, 1975 in that Davies continued to perform the bulk of the duties embraced by this position. He was therefore entitled to the wage rrate and any other benefit associated with the position.
The next issue pertains to the significance of the changes in Mr. Davies’ job duties after April 29, 1975. The trade union contends that this change amounts for a downgrading of the assistant automatic supervisor position and article 21.01 stipulates that an incumbent will retain “his former rate” under certain conditions and the ”/c/hanges in the grade of a position will be discussed with the Regional General Chairman prior to implementation.” The company, in a letter from Mr. Neville, Manager of Industrial relations, to Mr. Parnell,, System General Chairman, took the position that t20.01 had no application in writing:
Article 20 (Technical Section) Clause 20.01
In the company’s view this clause applies only to the regrading of an existing position at a time when the position is occupied. (Incidentally, this view is shared by Regional Chairman Dunlop in a letter to W. A. Greene date March 20, 1974.) In the case at hand the company at hand the company has not changed the grade of the position of Assistant Automatic Supervisor at Vancouver but has abolished the position at a time when it was not occupied (on the retirement of the incumbent P. L. Smallenberg).
I have found that from October 1, 1974 to April 29, 1975 the position was occupied by Mr. Davies and furthermore, I do not think that the occupation of the job in question affects the application of Article 20.01. Jobs can be regarded when they are vacant or when they are occupied. When they are vacant, no incumbent exists to obtain the protection of Article 20.01 but the union is still entitled to the benefits of the section to the extent that the section pertains to it.
However I do accept the submission that a difference exists between the regarding of an existing position and the creation of an entirely new position or the creation of an additional position - although the difference must be handled with care so as not to subvert the purpose of section 20.02. This distinction appears particularly appropriate where an employee’s job duties are so drastically changed as to bring him within the scope of an existing graded position.
A job or position consists of an identifiable and related set of job duties or tasks and normally one or two day duties characterize the job. Thus the assistant automatic supervisor job occupied by Mr. Davies consisted of supervisory duties and was characterized by the processing of PWS work orders. However after April 29, 1975 Mr. Davies ceased processing PWS work orders and began “hands on” work akin to work performed by grade 4 technicians, with the addition of so-called “lead, guide and direct” duties resulting in the “senior” designation in accord with Article 20.05. It was not disputed that similar senior positions exist at St. John, New Brunswick, Winnipeg and Calgary locations. Article 20.01 is directed towards significant changes in three particular elements of a technician position but the section would appear to envisage the continuation of the position in the sense that the identifiable set of job duties, which initially characterized the job, remain visible. If this were not the case a position could not be said to have survived the changes. Moreover Article 6 makes reference to the abolition of positions in contrast to the regrading concept found in Article 20.
I find that Mr. Davies’ duties were so fundamentally changed that the phrase “significant changes to item 1, 2, or 3” is without application. The changes in Davies’s job duties amounted to the abolition of his assistant automatic supervisor job and the creation of another position - a position falling within the graded position of Grade 4 Senior Automatic Plant Technician. The duties that characterized his work prior to April 29, 1974 cannot be said to have undergone a change in the elements envisaged by article 21.01 - rather they have been eliminated or given to others. I therefore find that section 20.01 has no application in this peculiar fact situation.
While Mr. Dusdal and Mr. Greene did say that Mr. Smallenberg was tending to work in the direction of the April 29, 1975 change, Mr. Smallenberg did not testify and I must give overriding weight to Mr. Davies’ direct evidence in this regard - evidence which establishes a fundamental change in the nature of the work performed.
This brings me to Article 23, (Technical Section) - Special Rules, Automatic Plant Technicians, Clause 1. I have held that a change of grade did occur on April 29, 1975. But Clause 1 also stipulates that “assignment of new positions or new equipment to any graded position will be subject to negotiation between the Regional General Chairman and the Regional Manager.” The union contends that this phrase applies whereas the company submits that the grade 4 senior technician is not a “new position” because identical positions have been established at St. John, Winnipeg, and Calgary.
Having regard to these arguments the reference to “new positions” in Article 23 has one of two possible meanings. It can refer to each time the company decides to expand its work force by taking on additional employees or it can refer to new positions that are unlike existing positions and therefore have yet to be graded. I believe the latter interpretation to be preferable for the following reasons.
From the company’s perspective Article 23 introduces a significant constraint on management’s right to make changes in the workforce in response to competitive and technological pressure. And from the trade union’s perspective Article 23 provides a significant opportunity to participate in the introduction of changes that affect the employees it represents. But both of these perspectives appear to combine against the former interpretation in that it would severely impact management’s initiative without providing the trade union with a significantly greater benefit that the latter interpretations would. In other words management would have to negotiate literally all expansive changes to its work force and yet the trade union has already negotiated the grades and job rates for new positions that can be viewed as additional. For this reason I think the parties intended the phrase “assignment of new positions” to refer to new positions in the system - that is to say positions that have not been graded under the collective agreement. Such an interpretation limits negotiations to a manageable number of initial changes in the job structure of the employer but preserves a significant role in the introduction of changes to the work force for the trade union. and accordingly when this meaning of Article 23 (Technical Section) Special Rules, Clause 1 is applied to the facts at hand, the company cannot be said to have violated the provision. The position posted on September 23, 1974 and actually implemented on April 29, 1975 is an additional position and not a new position in the sense that the evidence establishes that similar positions exist at a number of other locations across Canada.
Thus in deciding this grievance I have arrived at two separate conclusions. First, in changing the job duties of W. P. Davies on April 29, 1975 the company was not obliged to consult and negotiate with the trade union. Second, from October 1, 1974 until April 29, 1975 the company violated the collective agreement by paying Mr. Davies the wage rate of a grade 4 senior technician while he performed the job duties of an assistant automatic supervisor. Thus the grievance is dismissed as it pertains to a request that the company negotiate with the trade union, leaving the issue of remedy for the violation that has been made out.
With regard to the issue of remedy generally, the company argued that Mr. Davis was not entitled to any specific relief in that the grievance was in the form of a union grievance as opposed to an individual grievance. The trade union submitted that the distinction between union and individual grievances was irrelevant in that the provision of the collective agreement referring to union grievances (Article 26.02) used permissive or non-mandatory language.
The company did not submit that the grievance failed to request monetary relief and the trade union did not object to the timeliness of the company’s objection. Accordingly the meaning of Article 26.02 is squarely before me.
The distinction between individual and union grievances has long provided grist for the arbitrator’s mill. But the most comprehensive analysis appears in Re Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647 and Weston Bakeries Ltd. (1970), 21 L. A. C. 308 (Weiler). After exhaustively examining earlier arbitration awards the chairman of that board of arbitration outlined his understanding of the arbitral consensus in the following way:
This, then is the framework of principles within which this specific problem of interpretation can be isolated and posed here. A union begins, under s.34, with a right to grieve itself for any violation of the agreement, even without the consent of an individual who may be directly affected, as in Re U. A. W., Local 252, and Canadian Trailmobile Ltd. (1968), 19 L. A. C. 227 (Adell). However, it can contractually limit this right by appropriate language. No such limitations should be presumed from the alleged inherent “individual” (as opposed to “general”) nature of such grievances, though. Only if the explicit language of the agreement, as fairly interpreted without any such presumptions, leads to the conclusions that the parties did intend to limit access to arbitration through union policy grievances should arbitration boards give effect to any such limitation.
The approach demands that Article 26.02 be scrutinized closely to determine whether it establishes two mutually exclusive procedures for the processing of grievances. One striking feature of the clause is its use of permissive language - a feature relied upon by the trade union. Furthermore the parties have not attempted to elaborate a definition for a union grievance and the preamble to Article 26.01 is of no greater assistance in that it reads:
26.01 Disputes in respect to the meaning, interpretation or alleged violation of the terms of this agreement, or when an employee claims that he has been unjustly dealt with in respect thereof, may be dealt with in the following manner:
The language is in marked contrast to that found in reported cases where arbitrator have accepted the mandatory nature of a union grievance procedure but gone on to puzzle over the extent of the limiting language. (See Weston Bakeries Ltd.., supra; Re C. U. P. E. Local 1011 and Burlington Board of Education (1967), 18 L. A. C. 347 (Barber); Re U. A. W. Local 252 and Canadian Trailmobile Ltd., (1968), 19 L. A.C. 227 (Adell); Re C. U. P. E. Local 1090 and Township of Vaughan (1969), 20 L. A. C. 392 (Wetherhill); Re U. S. W. Local 2859 and Babcock and Wilcox (Canada) Ltd. (1972), 24 L/C. A. 361 (Simmons); and Re City of Toronto and Canadian Union of Public Employees, Local 43 (1974), 7 L. A. C. (2d) 53 Simmons. For example the relevant provisions in Weston Bakeries Ltd. (supra) read:
8.06 If the Union has a claim that the Agreement is being violated or misinterpreted by the Company, and such alleged violation or misinterpretation affects either the entire sale sand delivery group or the transport group, the Union shall have the right to submit a grievance in writing through any of its full-time representatives, within thirty (30) days after the alleged occurrence. The discussion of such grievance shall commence at Step #2 of the grievance procedure. The terms of this clause are not intended to bypass the right of individual employees to submit grievances in accordance with the procedures set out above.
The provisions in the Babcock & Wilcox (Canada) Ltd. (supra) read:
4.01 Any difference between the Company and an employee as to the meaning or interpretation of the provisions of this Agreement or any matter involving hours, wages or working condition covered by this Agreement may constitute a matter for a grievance.
4.06 Any difference arising directly between the Company and the Union may be submitted under the Grievance Procedure, in writing, by either party, commencing with Step 2. Such a grievance must be submitted within five working days after the circumstances giving rise to the grievance have originated or occurred.
And in the Sylvania Electric (Canada) Ltd. (supra) the provision in question reads:
23.07 The union shall have the right to file a policy grievance with the Company commencing at Step III of the grievance procedure within ten (10) working days after the circumstances giving rise to the grievance have occurred. A policy grievance shall be defined as a grievance (other than a disciplinary or discharge grievance) arising out of the application, administration, interpretation or alleged violation of this Agreement, with respect to the employees of a Department or of the Plant as a whole.
On the other hand the provisions in Holland River Gardens Co. Ltd. (1965), 16 L. A. C. 109 (Little) were drafted in a manner not unlike Article 26.02. They read:
Grievance Procedure
“Filing of Grievance
A “grievance” means a claim in writing by an employee covered by this Agreement , by the Employer or by the Union that this Agreement has been violated.
The grievance shall clearly describe the nature of the grievance and the remedy sought.”
“Employer and Union Grievances
If the Employer or Union wishes to file a grievance it shall do so by mailing a copy of its grievance, by registered mail to the Union or Employer, as the case may be, within five (5) working days of the occurrence of the event upon which the grievance is based and the Employer or Union, as the case may be, shall answer the grievance within five (5) working days after receiving same.”
“Arbitration Board
(1) Where an employee grievance at Stage 2 is unsettled, or where an Employer or Union grievance is unsettle, as the case may be, the Employer or the Union shall, within (5) working days, notify the other party of its intention to arbitrate the grievance and shall name its appointee to the proposed Arbitration Board.”
And after reviewing the significance of the Ontario Court of Appeal decision in Int’l Nickel Co. Of Canada Ltd. 35 D. L. R. (2d) 371, (1962) O. R. 1089 - the most important judicial pronouncement on point - the learned arbitrator in that case concluded that two mutually exclusive procedures had not bee established by the provisions.
Having reviewed all of the cases cited above in light of the peculiar wording found in the collective agreements confronting those boards of arbitration and having particular regard to the general framework outlined in the Weston Bakeries case, I have come to the conclusion that the parties before me have not evidenced an intention to create two mutually exclusive procedures for the processing of grievances. Further, even if I were not so satisfied the use of the term “union grievance” by itself would not appear to support the company’s argument. (See Re Corp. of City of Toronto and C. U. P. E., Local 43 (1973), 2 L. A. C. (2d) 199 (O’Shea).)
Accordingly I have jurisdiction to award monetary relief to an individual arising out of a grievance brought under Article 26.02. I therefore direct the company to compensate W. F. Davies for the losses he sustained as a result of the company’s violation of the agreement and I retain jurisdiction to resolve any differences in regard to the amount. owing.
DATED at Toronto this 5th day of Sept, 1975
Professor George W. Adams