AH - 211
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 S. P. Hechinger
Sole Arbitrator: J. F. W. Weatherill
There appeared on behalf of the Company:
A. H. Neville
There appeared on behalf of the Union:
E. G. Abbot
A hearing in this matter was held at Montreal, Quebec, on the 13th day of January, 1975.
AWARD
The grievor, a T & R Technician employed as such by the company for some three years, and formerly employed by the company as an Automatic Plant Technician, seeks the job posted by Bulletin Q-52 on April 1, 1971, for a Temporary T & R technician Grade 5 Senior.
After the job in question had been posted, the company determined that there were no qualified applicants. There was then posted a bulletin to fill the position at the Grade 5 (as opposed to the Grade 5 Senior) level. Although the grievor had applied on the first bulletin, he did not apply on the second. It is acknowledged by the company that the grievor did have the qualifications to be appointed to the Grade 5 job, but it is denied that he was qualified for the Grade 5 Senior job posted by bulletin Q-52.
The job in question was that of a Grade 5 Senior technician working in the carrier room, and the incumbent was required to act as leader of the employees working there, In addition to performing the work of a Grade 5 Technician, that is, work similar to that of other employees in the carrier room, he was to assign work, and offer advice, and, where necessary, instructions to the other employees. He would have no managerial authority as such, but would report matters relating to discipline to his supervisor. A Grade 5 Senior technician in any particular position must possess the qualifications of a Grade 5 Technician, together with a degree of expertise with respect to the particular equipment of the section which he directs. Apart from some general quality of leadership (which is not in issue here), he must be thoroughly familiar with the equipment of his section. It is not a question of technical competence as such (although that must be present), but of familiarity and experience with the particular equipment involved.
Entitlement to a posted job is, in general, provided for by article 3(3) of the collective agreement which is as follows;
“When a vacancy occurs the same shall be filed by the appointment of the senior applicant who is capable of filling the position, having due regard to merit, fitness and ability.”
While the grievor was the senior applicant for the job, the company takes the position that he was not capable of filling it, having due regard to merit, fitness and ability. At the time of the application, the grievor was a Grade 3, Class A Technician. The grade of position which he held related, by Article 20(1) of the agreement, to the technical demands of the position, the responsibility or importance of the position in the office, and working conditions. The class which he held within the grade was an indication of merit standing, and was based on examinations, relating to the equipment on which he was engaged. By Article 20(6), it seems that an employee would retain his class rating on promotion to a higher grade. Article 20(6) is as follows:
“Promotion from a position in one grade of a group to a position in a higher grade of a group will be accomplished by 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 in 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.”
Thus the grievor, on promotion to a Grade 5 position, would be classified as Grade 5 Class A. His Class A rating would entitle him to preference for a senior position over applicants holding a Class B rating, but could not, as such, entitle him to any particular senior position. Senior positions are established pursuant to Article 20(5) of the agreement, as follows:
“Senior rates based on “Class A” plus one unit can be paid for certain senior positions. These positions will be subject to the principles outlining in Clause 1, insofar as creating or limiting senior positions, raising or lowering grades and protection to the incumbent is concerned.”
At the time of his application the grievor was a Grade 3, Class A Technician. He was admittedly qualified for, and would have been entitled to a job as Grade 5 Technician, in which case he would have been classified as a Grade 5 Class A Technician. It may be that for certain jobs he would have been qualified to act at the Senior level. It does not appear, however, shown by evidence given by company and by cross-examination of the grievor and of present senior technician, that he had the qualifications to act as Grade 5 Class A Senior Technician in the Carrier Room. The reason for this is that he simply did not have the experience or the familiarity with the equipment in the location to support the conclusion that he could act as leader with respect to the work performed therein. No doubt the leadership qualities required for the job were of a rudimentary nature, and it is very likely the grievor possesses them. Virtually all his experience, however, had been on other types of equipment. At the very most, he might be said to have had a total of six weeks’ experience with equipment such as that to be found in the Carrier Room, and none of that was within the year preceding his application. Qualifications for the leader’s job relate, inter alia, to experience (and not, as the union argued, simply to the holding of an “A” classification), and the grievor simply did not have the experience which would justify his appointment to that particular leader’s job.
From the union’s own evidence, that is , the evidence of an employee actually working as a Senior Technician in the Carrier Room, and the evidence of the grievor himself, it would appear that the grievor would himself require advice and assistance on moving into the Carrier Room, and could scarcely be expected to provide it to others. On cross-examination the grievor’s lack of knowledge as to how to line up systems, isolate faults and restore ccts. Etc. was clearly established. It seems that he would be capable of learning the work, (and, to repeat, it is acknowledged he would have been entitled to a job as a Grade 5 Technician), and capable ultimately of performing a leader’s job. But he did not have the capacity at the time of the application.
Provision for a trial period, is made in Article 3(4) of the agreement, which is as follows:
“An employee accepting a position, shall be allowed TEN (10) to THIRTY (30) days as may be justified in which to qualify and failing, shall return to his former position without loss of seniority. The employee shall also, during the same period, have the right, at his own volition, to return to his former position, without loss of seniority.”
There is a discretion as to the length of the trial period to which an employee may be entitled. It may be noted as well that this provision would appear to be of more general application that that in Article 20(6) referred to above, which provides for a five day period in which an employee may demonstrate his ability to qualify for certain positions. It is not the case, of course, that everyone would be entitled to a trial period for any job; appointment in the first place is dependent on qualifications. And employee having the necessary qualifications would not properly be expected to perform the job fully immediately upon appointment, but would be entitled to an appropriate trial period. The issue then may be said to be whether the grievor had the qualifications which could entitle him to a trial period, or put another way, whether it reasonably appeared that, on completion of a trial period, the grievor would be able to perform fully all the duties of a Grade 5 Senior Technician in the Carrier Room. Thus Article 3 Clause 3 has precedence over Article 3 Clause 4 and Article 20 Clause 6.The evidence as to the experience required,(Company said 6 - 9 months in this particular case) and as to the grievor’s lack of experience on the equipment involved, requires the conclusion that he did not have that degree of qualification which would entitle him to a trial period of qualification which would entitle him to a trial period as Senior Technician, even though he would have been entitled to a trial as a regular Grade 5 Technician, at the Class A level.
For the foregoing reasons, the grievance must be dismissed.
Dated at Toronto, Ontario, this 24th day of January, 1972.
Weatherhill
Sole Arbitrator