AH - 220
IN THE MATTER OF AN ARBITRATION
BETWEEN:
COMMERCIAL TELEGRAPHER’S UNION,
CANADIAN PACIFIC, DIVISION NO 1
(the ”Union”)
AND
CANADIAN PACIFIC RAILWAY COMPANY
COMMUNICATIONS DEPT.
(the “Employer”)
Sole Arbitrator: Maynard B. Golt, Q.C.
There appeared on behalf of the Company:
D. N. Macleod Chairman
R. A. Mountford
G. G. Shaw
L. W. Neale
W. J. Bell
There appeared on behalf of the Union:
C. Pethick Chairman
R. McKay
D. C. Connolly
D. J. Dunlop
A hearing in this matter was held at Toronto, Ontario, on the 18th and 19th days of October, 1965.
By letter dated September 15, 1965, the Minister of Labour of Canada appointed me Arbitrator in this matter, pursuant to Article 27 of the Collective Agreement, effective January 1, 1960, between the Union and the Employer.
The parties presented their evidence and argument to the Board at hearings in Toronto on October 18th and 19th, 1965. The Union was represented by Messrs C. Pethick, Chairman, R. McKay, D. C. Connolly and D. J. Dunlop. The employer was represented by Messrs. D. N. MacLeod, Chairman, R.A. Mountford of Winnipeg, G.G. Shaw, Winnipeg, L. W. Neale, Calgary and W.J. Bell of Vancouver.
The point of contention is, to use the words contained in a letter dated September 7, 1965, by Messrs. Pawson and Pescud to the Honourable Minister of Labour as follows:
“The employees of Canadian Pacific Railway Company, Communications Department, covered by agreement between the Company and Canadian Pacific Division No. 1 of the Commercial telegraphers’ Union, are in dispute with the Company on three issues involving interpretation and application of the agreement.”
The following exhibits have been filed on behalf of the union:
Exhibit U-1: Memorandum of Agreement between the parties.
Exhibit U-2: Memorandum of Understanding amending Art. 23 of Ex. U-1.
Exhibit U-3: Memorandum of Understanding respecting the Vancouver issue.
Exhibit U-4: Brief submitted by the Union.
Exhibit U-5: Memorandum of Understanding covering the automatic technician classification (it suspends the “automatic classification” in Ex. U-1.
Exhibit U-6: Log indicating work being done by the Non-Scheduled all night Chief Operator in Calgary for the months of May, June, July 1965, covering the hours between 1a.m. and 7.30 a.m..
Exhibit U-7: Schedule from April 19, 1965 to Oct.9, 196(?) showing message traffic at Brandon on Saturdays (word?) handled by T. and R. Chief.
The following Exhibits have been filed on behalf the Employer:
Exhibit C-1: Statement of Facts respecting the wage rate for a Teleprinter Operator in the Vancouver Stock Exchange.
Exhibit C-2: Brief containing evidence in support of Ex. C-1.
Exhibit C-3: Memorandum of Understanding (duplicate of Ex. U-1).
Exhibit C-4: Company version of dispute and statement of facts re Calgary case.
Exhibit C-5: Memorandum of additional evidence respecting the Calgary case.
Exhibit C-6: memorandum of additional evidence respecting the Calgary case.
Exhibit C-7: Log for month of March representing the month before the abolition of position of all night T. and R. Chief.
Exhibit C-8: Log representing a period after the abolition of position of all night T. and R. Chief.
Exhibit C-9: Company version of Brandon dispute.
Exhibit C-10: Memorandum of further evidence re Brandon dispute.
Inasmuch as there are three disputes involved, I propose to deal with each one individually.
(A)
DISPUTE RELATING TO THE VANCOUVER STOCK EXCHANGE
The position of the Union is outlined in detail in Ex. U-4. Briefly it is contended that since the Vancouver Stock Exchange completed its move to new quarters, the duties and responsibilities of the Vancouver ticker operator have not only increased, but the new system put into use constitutes a change in the method of transmission—thus bringing into force Art. 9 of Ex. U-1 which reads as follows:
“ In the event of future changes in the method of transmission of telegraph traffic, Morse or Teleprinter Operators not required to work as such in the office affected, shall, if competent, be given first consideration in order of seniority in manning any device for the purpose of transmitting or receiving telegraph matter. If training is necessary to qualify for such positions, facilities for this shall be provided by the Company. The rates of pay and positions to be negotiated by the parties hereto.”
During the hearings, the Union contended, and it was not denied by the employer, that prior to moving, questions were transmitted by the operator directly to the trading floor from the Board. However, since then, the existing system has become inoperable because of insufficient floor space, and the operator in order to carry out his functions is now obliged to use either a tape recorder or loud speaker. The Union further maintained that extra pressure is thus placed upon him inasmuch as he must now receive as well as transmit messages and in addition to the teleprinter qualifications which he must possess, he must be cognizant of all stocks and stack symbols on the Montreal and Toronto Exchanges. Furthermore, he is obliged to make boardruns at regular intervals, and testimony given by Mr. Douglas Dunlop, the senior clerk in the Vancouver office, confirmed this, as well as the fact that the increase in work resulted in the operator being unable to partake of his regular lunch period.
The Company, on the other hand, categorically denied that a change in the method of transmission had occurred within the meaning of Article 9 of the Memorandum of Agreement (Ex.U-1). Mr. W. J. Bell. Assistant Superintendent of the B. C. district testified that the equipment being used by the Vancouver operator was chosen specifically for him. The recording device allows the said operator to commit to storage approximately 90 minutes of messages which can be recalled at any time and as far as the new keyboard now in use which incidentally contains three instead of four rows of symbols, only eleven key have been changed - these being merely fractions and words or symbols relating to the stock market. A clerk who assists him changes the tapes, obtains the (word?) slips for him and carries out other minor duties. The witness admitted that the operator must have a thorough knowledge of symbols relating to all stocks on the Board and there are about 350 of them. It is during the lunch period that the operator carries out his boardrun, and other minor duties. However, according to the witness, the operators’ responsibilities are limited, since he has no contact with the public, and he simply types what is dictated to him on this one way device.
Having heard all the evidence, I am not prepared to accept the contentions of the employer, as it would appear that there has in fact been a change in the method of transmission. Although it is possible, as was maintained by its witnesses that increased skills are not necessary to fulfill the existing requirements of the newly established system in the Vancouver position, and that therefore a new method has not been erected, I for one am not prepared to concur, since nowhere in Art. 9 of Ex, U-1 is it indicated that any such increase in skill is necessary. A careful reading of the said Article shows that it merely states as follows: - “If training is necessary to qualify…” - thus clearly implying that there can be a change in method of transmission without an increase in skill. Furthermore, the allegation that the particular skills of a ticker operator are merely alternative to those of the regular teleprinter operator is again unacceptable, for there would be no boundary to the limits where alternative skill would end as opposed to acquiring new ability.
This argument, if acceptable, could be carried to an illogical conclusion, and one would thus be tempted to say, in such case, that a new method of transmission was not imposed - rather an alternative one only had been superimposed.
I should point out at this time that I am dealing with a particular case only, and this award should not be construed as applying to other areas of the employer’s communication system, but unless mutually agreed upon between the parties, should be restricted solely to the position at the Vancouver Stock Exchange.
Possibly the change in method of transmission of telegraphic traffic is not as great as alleged by the union, but it is not as minute as maintained by the employer. Without a doubt, there has been a change, and since Article 9 of Ex. U-1 speaks of “future change” without expressly indicating the degree or manner of such change, then therefore the mere fact of a change is a sufficient catalyst which opens the door to negotiation of rates of pay, and positions to be established. Of course, it could be argued that the change in method contemplated therein commences with newly established duties of the operator, for even if his physical work becomes less onerous (which now seems to be the trend with the electronic innovations of modern automation), he is nevertheless required to adjust to a new system.
The employer enlarging on its’ argument, submitted that the rates paid in Ex. C-2 and the special rates referred to in Ex. C-3 recognize certain skills of teleprinter operators assigned to telegraph message service, and included in such skills are effective and courteous relationships with customers. (See Exhibit C-3, page 4 which outlines the reasons for the rates of pay in EX. C-3), knowledge of telegraphic rates and practices, ability to detect errors is telegrams, knowledge of correct routings, etc.. Again this argument is invalid since I cannot see how these elements can in any way be considered to be “skills”. I trust I will be excused if I hasten to state that in my opinion these are basic fundamental ingredients which the employer has the right to expect from an average, intelligent employee and which he is entitled to receive without paying extra remuneration - nor can they conceivable be considered as alternative to the particular skills of a ticker operator - and I for one do not consider good eyesight and hearing to be a skill as suggested in Ex. C-2 but rather to be a gift or a blessing.
I took occasion to examine the different keyboards mentioned by Mr. Bell during the hearings. It is difficult to state the degree of hardship, if any, which could overtake an operator, for we are all accorded different degrees of adaptability. Suffice it to say that after discussing the accepted (word?) with various people, I find that there has been a change which could conceivably cause some difficulty to a person less susceptible to mechanical change.
The problem now is to adjust the wage increase. The rates established in Ex U-? (word?) were agreed upon in July 1968, and reflect an increase of $1(?).00 per month for employees (assigned to a new method of operation, experimental) henceforth known as Teleprinter - Telephone operators. According to the employer’s evidence (Ex. C-1), this(?) new position arose by combing the functions of the telephone and teleprinter operators, so that now the employee transcribes the customer’s verbal instructions directly on to the teleprinter keyboard, thus producing a perforated paper tape at the same time as the telegram appears in typed form on the teleprinter before the operator. The extra duties imposed on the new classification (and to which the employer agreed to ) do not seem to me to be more enorous than those with which the Vancouver operator is presently charged with - yet an increase in salary was agreed upon.
Considering that there has been a change in the method of transmission of telegraph traffic; and
Considering that as a consequence, Article 9 of the Memorandum of Agreement (Ex. U-1) is thus activated; and
Considering that the rates of pay and positions to be established are thus susceptible to negotiations; and
Considering, as indicated by the evidence, that the duties of the Vancouver ticker operator supersede and are in excess of those pertaining to the normal duties of a Telegraph Operator; and
Considering the desirability of effecting an equitable solution with respect to the wage rate of the Vancouver ticker operator only,
Therefore, it is hereby ordered that the Ticker Operator on the Vancouver Stock Exchange be paid a differential of $15.00 (fifteen dollars) per month over and above the salary of a Teleprinter Operator.
“B”
DISPUTE RELATING TO THE ABOLITION OF A SCHEDULED TESTING AND REGULATING POSITION ON THE ALL NIGHT TOUR AT CALGARY
This dispute concerns the abolition of the above post, and the alleged relegation of the duties of said position to the all night Chief Operator (who is excluded from the Collective Agreement Ex. U-1, Art. (?), Clause 3). In its evidence, the Union maintained that there has been a gradual erosion or this position: the constant transfer of duties, and in support of its position, it produced a log (Ex. U-6) containing entries which indicate work being done by the all night Chief Operator (Non-scheduled) for the months of May, June, and July 1965 between the hours of 1 a.m. to 7:30 a.m.. It also produced a schedule (Ex. U-7, p.5) for the period from April 19, 1965 to October 9, 1965, showing message traffic at Brandon (for Saturdays only) handled by the T. and R. Chief. Mr. D. C. Connolly, wire chief in Calgary testified, on behalf of the Union, and maintained that T. & R. work was being done by the all Night Chief Operator, citing various instances, such as tube testing, ire testing and other work being constantly delegated from various shifts to the All Night Chief Operator. The Union maintained that instead of reducing the non scheduled staff, the company is reducing the scheduled staff, thereby violating the wage schedules as set forth in the Memorandum of Agreement (Ex. U-1). Mr. Pethick argued that Art 2, Section 1 (Ex. U-1) is clear and that those excluded personnel should not be doing the work of the T. & R. men (who are covered by the Collective Agreement) but if they so persisted, then they should as a consequence come under Union jurisdiction. He concluded that T. & R. work is being assigned to company employees excluded from the Collective Agreement all this being contrary to the said Agreement.
In reply, the employer denied violating Article 2 of Ex. U-1. Mr. Mountford explained that leased wire services provided by the company have been (word?) from pole to wire lines to a new microwave system thus eliminating older equipment resulting in some T and R work being done by non scheduled personnel. Mr. McLeod expressed the opinion that the Union misinterpreted Article 2, and in Ex. C-6 has elaborated on its alleged meaning. Mr. Neale testified that the work load has been so reduced to such an extent that one man can because of the special duties and administrative knowledge vested in the Chief Operator - who must be (words?) technician. Mr. McLeod furthermore contradicted the Union claim of creation of jobs by categorically (word) that an additional day job had been added, but the Union maintained that his additional job was in a totally different area, such as for example, in telex operations. In its memorandum (Ex. C-5), the employer invoked the principle of custom and usage, maintaining that over the years, it has bee the accepted practice for supervisory personnel to perform limited testing and regulating duties as required, and in Ex. C-6, the employer denied that any controversy arose over the propriety of said personnel transmitting or receiving the occasional telegram. Exhibits C-7 and C-8 represent “logs” before and after the position of the all night T and R chief was abolished.
Obviously (and it has been admitted by the employer and by Mr. Neale during his cross-examination of Mr. Pethick) some T and R work is being done by non-scheduled personnel, but considering the relevant articles of the Collective agreement, together with the amount of such work being done by the latter, is it reasonable to assume that the Collective Agreement is being violated or is it merely a question of “residual work” being performed by supervisory personnel as per “custom and usage”, as is claimed by the employer?
A careful study of Ex. U-6 indicates about 1000 entries for work done by the non-scheduled personnel during a three month period between the hours of 1 a.m. and 7:30 a.m.. Ex. U-7 further indicates messages sent and received on Saturdays only at Brandon by the T and R Chief for the period from April 19, 1965 to October 9, 1965 (when the scheduled (man?) is not on duty), (word?) contains an averaged of 5(?).2 messages sent and 53.4 messages received on these days.
The position of the All Night T. and R. Chief in Calgary may be located in the minimum schedule of wages, of Ex. U-1 (p.49) and (word?) is an employee within the meaning of clause 1 of Article (?) (Ex. U-1), strictly speaking, since the employer in fact admitted violating the agreement (“residual work” ExC-6) what is the conclusion to be drawn from the mass of work being done by the “prohibited” personnel? Does the custom (word?) overcome the admitted violation? Does lack of provision in this and earlier agreements allowing the delegation of T and R work allow such work to be performed by other personnel, as claimed by the employer?
I do not think so. Article 2 of Ex. U-1 is clear, concise and explicit, and the evidence and admissions elicited during the hearings lead to but one conclusion - and that is that the collective Agreement has been, and is being violated. The quantity of work indicated in Exhibits U-6 and U-7 would seem to me to be more than “residual”, and I would go further and state unequivocally that the position of the All Night T and R chief at Calgary is slowly being encroached upon. Also, I cannot accept the propositions that the lack of a prohibitive clause respecting delegation of T and R denies entitles the employer to mete out such duties in large quantities to other personnel. In my opinion, the existing clauses, together with the wage schedules and classifications are inclusive and all embracing, and unless the Collective Agreement contains a clause specifically allowing such delegation (which I fail to find) the duties of each classification are self-evident and comprehensive, and prohibit either party from acting outside the scope of the contract in an appreciable degree and to such an extent so as to contravene the provisions respecting the bargaining unit. As far as “custom or usage” is concerned, there again it is a matter of appreciation of the evidence. There does however, come a time when they must be weighed against equity - and in the case before me, I find that the latter outweighs the former. Social, technological, and economic progress forbid that we become subservient to the theory of custom and usage - it is morally indefensible. I should also, at this point, emphasize that I am in no way discussing the problem of “acquired rights “.
Finally, clause 3 of Article 2 of Ex. U-1 specifically excludes all night chief Operators from the agreement. Obviously it was never intended to bring the latter within its sphere, since clause one when speaking of “employees assigned to service…” categorically excludes those contained in clause and as mentioned herein above, the all night Chief Operator falls within the said clause. The scope of my jurisdiction, as arbitrator, does no allow me to alter any aspect of the Agreement - my sole duty is to interpret the meaning of the disputed clauses - and to decide if a violation has occurred. Under no circumstances can I therefore (word?) the (word?) of the All-Night Chief Operator (word?) a classification within the scope of the Collective Agreement (words?). However, I do find that the Union is (words?) from the grievances complained of.
Considering the evidence and admissions elicited respecting work being done by he all-night Chief Operator; and
Considering that the Union is entitled to relief from the grievance complained of; and
Considering that the Union has proved its case;
Therefore I order that the position of all Night Training and Regulation Chief at Calgary be reinstated forthwith.
(C)
DISPUTE RELATING TO THE ABOLITION OF TELEPRINTER OPERATOR
POSITION AT BRANDON
The above dispute arose essentially from the union’s fear that the abolition of the above post would result in a continued reduction of schedule staff and a further distribution of its work among employees of other classifications, including those outside the scope of the Collective Agreement (Ex. U-1). Mr. Pethnick, on behalf of the Union, maintained that the various classifications and the duties addressed thereto were clearly enunciated in the agreement, and should be restrictively interpreted in favor of the employees. He argued that because of the Testing and Regulating Chief (whose background, he maintained is solely technical) send and receives telegrams on Saturdays, then therefore the provisions of the Collective Agreement are being violated. He then quoted a number of articles dealing with differentials between job classifications, as well as various clauses relating to the qualifications necessary for admission or advancement in those areas to indicate that the duties of a teleprinter operator do not fall within the scope of T & R or other personnel - if only because of their training which is, in the main, technical. In his testimony, Mr. M, McKay of Winnipeg, a morse operator stated that Brandon has experienced a steady decrease in message traffic due to the use of telex and other allied services, but when the employer practiced economy, it was not the non-scheduled, but rather the schedule personnel who bore the brunt of staff reductions. He also argued that the sole operator on in Brandon is unable to handle the volume of work and thus for an interim of several hours during the week, including relief and lunch period, employees of other classifications - and in particular the Agent (who is excluded from the Collective Agreement) will have to be assigned to this post. Consequently, the reduction in schedule staff which necessarily has the result of crossing of classification lines tends to erode the bargaining unit and so the Collective Agreement is thus violated. A comparison table of schedule and non-schedule staffs for the years 1950 and 1965 we introduced as Ex. U-7.
Mr. McLeod, representing the viewpoint of the employer, stated that since 1929, the proportion of the communication dollar spent on the telegram has been diminishing, and as a result o fundamental changes in the communication industry, the company has introduced alternative services, such as telex, data processing and television network outlets. These media have undeniably had the agreeable result of creating jobs at increased wage levels. The testimony of Mr. G. G. Shaw, superintendent of the Manitoba district indicated that message traffic at Brandon where duties are now mainly local ha declined 29% in the past five years while Winnipeg has experienced a 35% decrease. He maintained that not only has the schedule staff in Manitoba been increased in the technical aspect, but also that no established employee has lost his job because of the abolition of this post. According to him, the message volume in Brandon simply does not justify the position of a second teleprinter operator. Exhaustive reference was made to the existing situation in Chapleau and other areas where T. and R. men have handled these duties for many years. Mr. McLeod then denied that there was a reduction of staff in Brandon as claimed by the Union. (See p.11 of Ex. U-4) and he explained that job classifications exist merely because they represent different sets of skills, as well as schedule personnel is necessarily related to major changes in the industry, as for example, in the sales department - where additional sales staff is necessary to because of an increase in volume of business.
At the risk of being repetitious, I must once again enunciate and reaffirm the scope of my mandate as arbitrator. The terms of the contract are unalterable and are susceptible merely of interpretation. That and to discover the true meaning of any disputed clause and the intent of the parties is the limit of authority vested in me. The age of automation is truly upon us and the solution to the problem of man versus machine will require the harmonious endeavors of both labor and management for many years to come. It is a major problem containing many collateral one, such as job security, the rights of the employer to introduce new equipment, etc. but these are complexities which will have to be discussed and resolved when Collective Agreements are signed or renewed. The grievance which I must decide upon, although it involves the above elements, emanates from an existing contract, and it is within that instrument only that I must seek the solution. The Union demands rigid adherence to the written clauses of the contract, and in addition to its technical arguments, it pleaded the necessity of jog security, the problems of morale, the retraining of older personnel and various other factors. On the other hand, the employer submitted that technical advances have ended or substantially reduced the need for certain types of services, and with this reduction has come a corresponding drop in the need of related personnel and a rise in what is termed “work mobility”. The latter allows the employer to have lower rated duties performed by higher rated classifications (at no reduction in salary) to the extent required to avoid the employment of more people than are necessary to perform the work - a principle which the employer maintains has been recognized and applied through the years.
Considering the evidence and the exhibits produced at the hearing, I am of the opinion that the company has not violated the agreement. The two major factors influencing my decision are:
1. The maxim of ”acquired rights” - as opposed to the theories of “custom and usage” of “equity” which I discussed in the previous case, (Calgary position) and
2. The right to assign work, provided the work was not of such an extent as to bring the person doing it within the bargaining unit. The lengthy evidence respecting the use of T & R personnel in Chapleau, Dryden and other stations who have been allowed to do work outside their classification leads me to conclude that the Union knowingly acquiesced over the years, to such practices, and the rectification of these abuses, if (word?) such abuses exist, can now be remedied only by some formal understanding forming part of the Collective Agreement, or any negotiated renewal thereof. It is possible, as was maintained by the Union that the occasion to raise this complaint never presented itself because of (word?) circumstance. (Words ???) it cannot become the subject or remedial (word?) by arbitration - for that would do (word?) to rewriting a vital aspect of the (word?) contract. This being the case, I do not feel it necessary to discuss the (word?) element, except to say that the evidence did not indicate that the assignment of work was of an extensive nature.
Considering that in the present case only, the employer has proved that it is the possessor of “acquired rights” and
Considering that the Union has not proved to the satisfaction of the undersigned that the Employer has violated the terms of the Collective Agreement;
I would therefore dismiss the grievance of the Union as being unfounded in fact and in law, and rule accordingly.
Arbitrator Montreal, November 2nd, 1965.