AH - 215
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE COMMERCIAL TELEGRAPHER’S UNION,
CANADIAN PACIFIC DIVISION NO 1
(the ”Union”)
AND
The CANADIAN PACIFIC RAILWAY COMPANY
(the “Company”)
IN THE MATTER OF THE GRIEVANCE OF
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 on the 10th day of March, 1971.
AWARD
The grievor alleges that he was improperly demoted from his position as Senior Traffic Chief, and seeks reinstatement and redress accordingly.
The company raised a preliminary objections to the arbitrability of this matter. The objections was heard, together with argument (word?), at the (word?) of the hearing, but with the consent of the parties I reserved by ruling on it and proceeded to hear the case on its merits. In this award, I shall proceed first to make my ruling on the preliminary objection.
The following provisions of the agreement are material to the objection:
Article 3 - Clause 4.
An employee accepting a position shall be allowed ten (10) to thirty (30) days as may be justified in which to qualify and failing that, 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.
Article 4
An employee’s rights under seniority shall extend over the Superintendent’s District on which he is employed. A complete list of all employees within the Superintendent’s District showing seniority and salary, shall be supplied monthly to the District Chairman, and copy posted on the bulletin board as soon as possible after the first of each month. This list, showing seniority in the classification shall be subject to correction on proper representation from any employee or his representative.
Article 27 - Clause 1.
Any dispute or grievance arising between the parties relating to the interpretation, application, or administration of this agreement, including any question as to whether a matter is arbitrable, or when an allegation is made that this agreement has been violated, either of the parties may after exhausting the grievance procedure established by this agreement notify the other party in writing of its desire to submit the difference or allegation to an Arbitrator.
The Union alleges that in demoting the grievor the company has, in this case, violated article 3, clause 4 and article 4 of the collective agreement . In this case the grievor had completed thirty days in the position of Printer traffic Chief, and it was argued by the company that there was no provision in article 3 for appeal from subsequent company judgements as to the competence of an incumbent to continue to occupy the position. As to article 4, that simply specifies the geographic extent of seniority rights, a matter not in issue in this case. Further, the assessment of an employee’s ability to perform his work is an inherent management right.
The collective agreement provides, as do man, that an arbitrator may not change, add to, vary or disregard any provision of the collective agreement. Even without this, of course, an arbitrator would have no such jurisdiction unless it were expressly conferred by the agreement. Nothing in this case is intended to affect the collective agreement in any way. What is necessary is to interpret the agreement as it stands and apply its provisions to the case before me.
As to article 4, it is my view that the company’s argument is well taken, although it is not really a matter of arbitrability. In any event it is clear that in fact the grievor’s seniority was not altered, nor were his rights under article 4 interfered with. His claim in this case would be the same, regardless of his seniority.
As to article 3, clause 4, however, it is my view that that provision confers a certain qualified right to continued employment on an employee who has been promoted and who is continued in his positions after the qualifying period. It is not necessary to consider the nature of the company’s discretion in assessing the performance of an employee who is still in the “probationary” period. If, however, the company is free simply to declared, without fear of challenge, that an employee who has passed that stage s “incompetent”, then it is obvious that no employee can rely on the collective agreement for security. In my view, however, such a determination by the company is subject to challenge to the decision of an arbitrator. Whether it be viewed as a “violation: of a right arising under article 3, clause 4, or simply as a dispute relating to the application or administration of the collective, it is clear to me that an employee who has been demoted is entitled to grieve, and if necessary o proceed to arbitration over the matter. Such is the instant case. It is therefore my ruling that the matter is arbitrable. I now proceed to deal with the matter on its merits.
The grievor became an employee of this company on June 7, 1969, under the provisions of clause 3 of a memorandum dated October 11, 196(6/8?), between Canadian National Railways, Canadian Pacific Railway Company, and certain trade unions. This agreement provided, inter alia, for reciprocal withdrawal by the companies of telegraph services in certain communities, and for the absorption of certain of the employees of the withdrawing company by the successor company. The grievor had been an employee of Canadian National for many years, latterly in the position of “supervisory Aide”. Pursuant to the agreement, he became an employee of Canadian Pacific with considerable seniority, and exercised his rights to become an all - Night Printer Traffic Chief.
The grievor was maintained in the position of Printer Traffic Chief from the time of his appointment until the time of his demotion, in October, 1970. There is no record of his being notified at any time during the first thirty days of his employment in that classification that he was not competent, and he was not then removed from it. In my view, he was entitled to consider, after July 7, 1969, that he was confirmed in the position of Printer Traffic Chief, and that that was his job. The company argued that article 3, clause 4 did not preclude it from voluntarily granting an extension to the normal thirty-day period, and that it did so in this case. It may be (although it is not necessary to decide the point here) that where an employee has failed to qualify, an extension of time could be granted. Other employees might perhaps have something to say about that. In any event, the grievor was not advised that he had failed to qualify, and was not told of any extension of time. In the circumstances attending the change-over of employees an extension might have been quite reasonable - but it was simply not done. Obviously, if there were any extension, the employee would be entitled to know its term, and its conditions, and what he would have to do in order to qualify. The grievor was given no such advice. The only proper conclusion in these circumstances is that after July 7, 1969, the grievor was entitled to the job of Printer Traffic Chief, subject only to availability of work, the potential rights of senior employees, good behavior and continuing competence.
The instant case does not appear to be a matter of discipline, strictly speaking. The material before me shows that on one occasion the grievor was late for work, but no discipline was imposed at the time, and while good attendance may be a proper factor to consider in assessing an employee whose job calls for leadership of others, one instance of lateness certainly does not establish incompetence. It was also said that on certain occasions the grievor had used obscene language. Again, a higher standard - from a disciplinary point of view - may perhaps be required of persons in a supervisory position, and continuation of this might (word, word) as a leader. In this case however, there is nothing more than a vague allegation, and no evidence to support the conclusion that the grievor could not perform his work properly because of his language. Nothing else in the material before me really relates to a matter of discipline. There was in any event no culminating incident which would lead to a review of the grievor’s conduct from this aspect. If the grievor was disciplined, he was disciplined without cause. Generally speaking, cases :see Tecumseh Products, 19 L. A. C. 180.
In my view, the company is entitled at any time to assess the work of its employees, and to consider whether or not they are competent to perform their assigned tasks. The onus is on the company to show, in the case of the employee who has been qualified, that he is no longer so, and it is under an obligation to advised the employee of the standard required of him. In the instant case, it was the company’s position that it had never been satisfied with the grievor’s work and that it finally concluded, after a year and one-half, that he was not capable of performing it. At the hearing of this matter, the company called evidence to support this (end of sentence unreadable). At the time of the investigation the company had already decided to demote the grievor, although this was not known to him. He was told that the investigation was in connection with his performance as a supervisor, and there were read to him a number of allegations relating to his work. To practically all of these the grievor answered with either a denial or an explanation. It could not be said, from a perusal of the record of the investigation, that anything had been proved against the grievor.
It was contended by the union that the evidence adduced at the hearing must be limited to that dealing with the changes made at the investigation. My ruling on this point was also reserved, and evidence was heard subject to such ruling. In my view, the company ought not to be restricted in the evidence adduced. Whatever might be the case in disciplinary matters, this is not, in my view, a discipline case. It is a case of demotion for incompetence, and it is to that issue generally that evidence should be directed. I therefore proceed to consider the evidence of the company’s witnesses on all points.
In (word) of the company’s witnesses is that the grievor was a hard worker, and there is no suggestion that he lacked the necessary knowledge of the technical aspects of his job. The complaints against him, from the evidence presented at the hearing, related to his diplomacy - or lack of it - in dealing with the employees under his direction, and to his distribution of work among employees. As to the grievor’s “diplomacy” or tact, of the effectiveness of his communications with employees, there is virtually no positive evidence. Even the grievor’s immediate supervisor acknowledged that all he had to go on was hearsay. There had, it seems, been complaints made about the grievor by certain employees, but there was no evidence to establish that these complaints were justified. Indeed the grievor himself, called as a witness by the company, testified that there was some dissatisfaction among some employees who were not treated with as much leniency as they had been under the previous Printer Traffic Chief - who had now become the grievor’s supervisor. It was the company’s own uncontradicted evidence that certain employees, favoured by the supervisor, had been subject to criticism by the grievor over such matters as improper punching of time cards. Even if there were any evidence to support the alleged complaints against the grievor, it is obvious that complaints from such a source would have to (unreadable).
The matter of distribution of work is, (word) an understanding of the technical aspects of the job, perhaps the crucial consideration in assessing the grievor’s competence. To some extent it is a matter of judgement as to whether this task, calling for the exercise of discretion by the grievor, was efficiently performed or not. Such judgement is the responsibility of the grievor’s supervisor and higher officers of management. Where it is made in good faith, it may not lightly be interfered with by an arbitrator. It must be shown, however, that there did exist grounds to support such a judgement , and where objective evidence to support this supervisor’s assessment is or ought to be available, it should be presented. In the instant case there is some evidence to support the conclusion that the supervisor (although not the other company officers) was in some way antagonistic toward the grievor. I do not, however, rely on this. What is of decisive importance is that there is again, virtually no evidence of actual (unreadable 2 sentences). The grievor’s answer to this was that it was necessary to do this at times in order to get all the work done efficiently. In the absence of specific instances where work was not performed which ought to have been, or where one employees was overworked while another was idle, it is impossible to come to any conclusions of facts in this regard.
There was evidence of one or two instances where it was concluded by the company that the grievor had not given proper supervision. In one case, an employee sent out a series of message incorrectly. The only non-hearsay evidence is that he was properly instructed by the grievor, but failed to carry out those instructions The criticism of the grievor is that he failed to check to make sure that the employee carried out his instructions properly. It is difficult to say in such a case whether the grievor erred. It may be noted that another complaint against him was that he took too much of the work on himself, when it should have been delegated to others! In any event, this is at most one instance of failure on his part. The other (unreadable sentence). Apart from the unsatisfactory proof of this incident, it is a second example of poor work during the grievor’s service on the job. It occurred in August, 1969, over one year before his demotion.
While there were a great many charges made against the grievor, it must be concluded from the evidence presented before me that there was little substance to them. on the other hand, there is evidence that the complaints of certain dissatisfied employees were given undue weight, and were indeed preferred to the explanations of the grievor. It was held against the grievor that he had a defence to every criticism. At the hearing, the grievor admitted that he was subject to error, but continued to defend himself against the allegations made against him. On the material before me, he was quite justified in this. It can scarcely be improper to defend oneself against unfounded and perhaps malicious charges.
On the evidence before me, the company has simply failed to show that the grievor lacked the ability to (unreadable sentence). If has not been shown that there existed ground on which the judgement that the grievor was incompetent could reasonably be made. It bears repeating that such grounds must be clearly established where it is alleged that an employee who has been performing a job for a year and one-half is incompetent to perform it.
For the foregoing reasons, the grievance must be allowed. It is my award that the grievor be reinstated in his position of All-Night Printer Traffic Chief forthwith, and that he be compensated for any loss of earnings flowing from his demotion. In the event the parties are unable to agree as to the precise amount payable to the grievor, I retain jurisdiction to deal with that matter.
Dated at Toronto this 6th day of April 1971.
Weatherhill
Arbitrator