AH Ė 37

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAYS

(the "Company")

AND

CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT and GENERAL WORKERS

(the "Brotherhood")

IN THE MATTER OF THE GRIEVANCE OF M. S. McCully

 

 

SOLE ARBITRATOR: H. Carl Goldenberg, Q.C.

 

 

 

AWARD

Mr. M.S. McCully, Junior Engineer, M.V. "Bluenose", was denied promotion by the Company to Fourth Engineer on September 30, 1966, on the ground he was not qualified. The Brotherhood denies the Companyís contention and claims violation of Article 5.1 of the collective agreement, which reads as follows:

Promotion shall be based on ability, qualifications, certificate and seniority; ability, qualifications and certificate being equal, seniority shall prevail. The Officer of the Company in charge shall be the judge, subject to appeal.

Mr. McCully has been employed as Junior Engineer on the "Bluenose" since 1956. He has a Third Class Certificate issued by the Department of Transport under the Canada Shipping Act. Notwithstanding this, his supervisors declared him unsuitable for the promotion on the basis of his work performance.

The Company alleges that Mr. McCully was responsible for damages to a main generator in the engine room in June 1962 because of carelessness or absent-mindedness. While it alleges no other particular incidents, it claims that Mr. McCully lacks the required sense of responsibility which, together with other factors, would have justified a promotion. The Company denies that it showed discrimination in refusing such promotion. The position taken by the Company was substantiated at the hearing before me.

While Mr. McCully has a certificate which would allow him to occupy a higher position, the certificate is only one of four factors on which promotion may be based under Article 5.1, the others being ability, qualifications and seniority. The best judges of "ability" and "qualifications" are the supervisors who have been able to observe a personís work over the years. In the absence of proof of discrimination, an arbitrator should not substitute his own judgement for theirs. An important additional consideration in the present case is that engineers are responsible for insuring the safety of crew, passengers and vessel.

While it would be wrong for the Company to assume that Mr. McCully will never be able to act without direction, I find that it was not in violation of the agreement in denying him a promotion in September 1966.

The grievance is dismissed.

Signed at Montreal, Que., May 25, 1967.

H. Carl Goldenberg

Arbitrator

COMMENTARY: The award in favour of the Company supports the principle that the Supervisorís judgment of qualifications should not be set aside unless there is clear evidence of discrimination.