AH – 241
IN THE MATTER OF AN ARBITRATION
BRITISH COLUMBIA RAILWAY COMPANY
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, Local 6
GRIEVANCE RE TRAVELLING MECHANIC ARBITRATION
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Prince George, B.C ., on February 9, 1983.
The grievor in this dispute, Donald Kennedy, challenged the refusal of the Railway to appoint him to a vacancy in a job category called “travelling mechanic”. The vacancy arose in a place called Lemoray in the north-central part of the province. On May 10, 1982 the vacancy was advertised by bulletin pursuant to Art. 8 of the Collective Agreement.
There were only two applicants for the position, the grievor, an apprentice heavy duty mechanic, and F.J. Bickner, a certified journeyman. The successful applicant, Mr. Bickner gave evidence and was advised of his rights to participate.
In the Railway hierarchy the management official with the authority to make the final selection between competing applicants for this category of job was F.J. Koehn, the Engineer of the Maintenance of Way Service. Mr. Koehn gave evidence. On his evidence the actual selection was made by two supervisory employees in the Work Equipment Repair Department, one of nine departments which make up the Maintenance of Way Service. The travelling mechanic position is not in that department.
Those supervisors, Bruce Anderson and Byron MacDonald, had no direct knowledge of the job or the qualifications required to perform it. They determined that an applicant was not fully qualified for the position unless he was a certified heavy duty mechanic. Prior to this dispute the qualifications required of applicants did not include any formal mechanical training. In fact, the two previous incumbents in the disputed position had no mechanical training of any kind.
The grievor entered the employ of the Railway on February 9, 1976 in the capacity of a machine operator and he operated various pieces of equipment until he was accepted into the apprenticeship program on November 13, 1979. He continued in his apprenticeship until February of 1982 when his position was abolished due to lack of work. Mr. Anderson and Mr. McDonald, both of whom knew his work, described him as an above-average apprentice with a good work attitude. Their sole reason for rejecting him was that he was not a certified heavy duty mechanic.
In practice the initial decision with respect to who will be awarded a vacancy in the Railway is made on the basis of seniority in the job classification in which the vacancy arises. The Railway maintains computer records of all employees’ seniority by classification. Employees can acquire seniority in more than one classification. Neither applicant in this dispute had seniority in the travelling mechanic classification.
Where there are applications for a bulletined position from one or more employees who are on the classification seniority list for the vacant position, it is awarded to the senior applicant. In the Maintenance of Way Service that process takes place under the direction of Kenneth Young, the Area Payroll Manager. It is a clerical process administered under his direction by a clerk, Gwen Laferdy.
In the event there are no applicants with classification seniority the matter is taken by Ms. Laferdy to Mr. Young. He refers the matter for decision to the appropriate officer of the Railway. As stated, Mr. Koehn has the final decision between competing applicants but the decision in the first instance in this particular vacancy was in the hands of the area Roadmaster and it was to him that the matter was referred by Mr. Young.
The Roadmaster, Tony Pereirra, gave evidence and said, in effect, that he delegated his decision to Mr. Anderson and Mr. MacDonald. When he learned that there were two applicants for the position, neither of whom had classification seniority, he sought the advice of the two supervisors. He made his choice entirely on the basis of their advice. In his evidence, Mr. Koehn confirmed that he approved the decision, again based solely upon the advice of the two supervisors.
Turning back to the two supervisors, they were not familiar with the particular job. Mr. Anderson had been a travelling mechanic elsewhere in the system at some unspecified earlier time. He said that none of the travelling mechanics were qualified for their positions, in his opinion. Both supervisors said that they interviewed Mr. Pereirra, determined what he expected, and concluded that his requirements could only be met by a person immediately capable of obtaining certification as a heavy duty mechanic.
Thus the qualifications demanded by the Railway increased from no formal mechanical training to that of a certified journeyman. The Railway did not suggest any process of reclassification had taken place or that the actual job requirements had changed. Its sole justification for the extreme adjustment in qualifications was that the job required those qualifications and that employees appointed to the position in the past were not fully qualified.
The issue which emerged was not whether the grievor was qualified as the position was previously administered. The Railway did not seriously challenge that his qualifications exceeded those possessed by existing travelling mechanics. In fact, his qualifications vastly exceeded those of the previous incumbents in the disputed position. The Issue was whether the Railway could unilaterally increase the requisite qualifications and then reject an applicant who was otherwise qualified.
In the Maintenance of Way Service the work is divided into job classifications which are set out in the Agreement together with their rates of pay. The provision dealing with job posting and selection is Art. 8. There are two provisions, Art. 8.7 and Art. 8.8, that deal with selection of applicants. In seeking to reconcile the terms of the Agreement to its position, the Railway said that past appointments to the travelling mechanic position were made under Art. 8.8. The Railway submitted that Art. 8.7 had application only to applicants who had seniority in the job classification in which the vacancy occurred. In its submission, Art. 8.8 had specific application to applicants who lacked classification seniority. The two articles read:
8.7 Appointments to bulletined positions shall be made in order of seniority subject to the successful applicant being fully qualified to handle the assignment.
8.8 Should no applications be received for a bulletined position from employees holding seniority in that classification, other applications will be given consideration before new employees are hired.
The Railway said that seniority under this Agreement meant classification seniority and that service seniority was not recognized. The Railway pointed to the seniority provision, Art. 9, and said it was implicit in that provision that seniority meant classification seniority. The language of Art. 9 on which the Railway relied reads:
9.1 Seniority lists of all employees, showing name and date of entry into a classification in a department shall be posted in a place accessible to the employees concerned.
Thus the Railway argued that “seniority” meant “seniority in a classification” and that Art. 8.7 clearly contemplated that an applicant with classification seniority would be assessed on the basis of being “fully qualified” for the particular vacancy in the classification and employees without classification seniority would be assessed on the lesser test of Art. 8.8 wherein the only obligation was to “give consideration” to the applicant. I don’t agree with the interpretation of the Railway.
When the Agreement is read in its entirety it is clear that seniority means calendar service with the Railway and that seniority by classification is the principal means of calculating and recording seniority. One need go no further than Art. 8.7 and Art. 8.8 for that interpretation. Art. 8.7 speaks of “seniority” and Art. 8.8 speaks of “seniority in that classification.” On the submission of the Railway the descriptive words in Art. 8.8 would be redundant.
Art. 9 does not support the interpretation urged. Seniority is not defined in the article. It is true that only one method of calculation is set out, being classification seniority, but in industrial relation parlance seniority commences on the date of hire unless a contrary intention appears. See: Hartz Mountain Pet Supplies Ltd. (1975) 7 LAC (2d) 342 (Shime) and Canadian Labour Arbitration, Brown and Beatty, page 226. Art. 9 does not express a contrary intention. In addition, Art. 22.15 provides for seniority preference in vacations. I am not required to interpret that provision and I expressly avoid interpreting it, but, on its face, it would appear to contemplate a broader concept than classification seniority.
I will deal later in this Award with the reasoning and, at this stage, I will simply state my view that seniority in Art. 8.7 means calendar service with the Employer and that applicants for a position who are senior are entitled to a vacancy if they can meet the test of qualifications. Art. 8.8 appears to contemplate a priority ranking for employees with classification seniority entitling them to a vacancy in their classification in priority over applicants with no classification seniority and regardless of seniority of service. Where, as here, there are no applicants with classification seniority, the appointment must be made on the basis of seniority from the date of hire, subject to an applicant To accept the submission of the Railway would require me to restrict the meaning of seniority as a benefit.
Whereas the application of seniority to a particular circumstance, such as a promotion or lay-off, will impose an onus on the Union in asserting a breach of the agreement, the meaning of seniority invites a different standard. Seniority is a negotiated benefit but where an employer agrees to recognize seniority it is for the employer to negotiate language which would restrict its ordinary meaning. I now turn to the major issue of interpretation, that is, what standard is required of an employee who claims a vacancy and was that standard applied by the Railway in this dispute In accord with the Agreement.
Job classifications and rates of pay in this Agreement are negotiated. Rates reflect a structuring and hence different rates imply different qualifications. In the absence of an express provision an employer is not free to alter the relationship between job qualifications and jobs unless there is some change in job content. That is a restriction which is implicit in the setting out of job classifications and their respective rates of pay in a collective agreement. See: Canadian Labour Arbitration, page 195:
In one sense, the wage structure, as set out in the collective agreement, provides the norm or basis for measuring organizational changes effected during the life of the agreement. That is, if there were no actual changes in the method of performing the work and the operation remained static, there could not be any valid reclassifications, unless the collective agreement contained an express provision to the contrary.
The Agreement distinguishes between a heavy duty mechanic and a travelling mechanic in the most fundamental sense. Heavy duty mechanics are included in the Work Equipment Repair Department and receive a rate, effective January 24, 1983, of $16.75 per hour. Travelling mechanics are included in the Bridge and Building Department and receive a rate, effective the same date, of $13.98 as a starting rate.
In addition, two different approaches are taken to rate structures with respect to the two positions. Heavy duty mechanics receive a uniform rate. Travelling mechanics have an entry level rate and three stages of higher rates based on actual time spent in the position. The inference from the Agreement and the evidence is that the travelling mechanic classification bespeaks an actual job, whereas the heavy duty mechanic classification bespeaks a technical qualification which will equip employees to perform any of a variety of jobs requiring that technical qualification. On the scheme of the Agreement one would expect that if a travelling mechanic was expected to have technical qualifications in the form of journeyman certification the Agreement would so provide.
The Railway sought to rely on work rules governing a number of aspects of the relationship. They are called Maintenance of Way Rules And Instructions. It would appear that they were introduced unilaterally. The Rules cover a variety of subjects but a portion of them is addressed to the subject of qualifications. Not all job classification are included. For instance, the Rules do not contain any reference to a heavy duty mechanic but they do have reference to a travelling mechanic.
On a review of the Rules as they relate to the description of job duties, it is impossible to find any thematic approach. The nine departments of the Maintenance of Way Service are set out in Art. 18 and there are in excess of forty job classifications identified by job title and rate of pay. By contrast, the Rules contain only ten job classifications, eight of which appear to be supervisory positions. The only two non-supervisory position identified in the Rules are those of travelling mechanic and “work equipment operator”. The job classification of travelling mechanic appears in Art. 18 but there is no “work equipment operator” in the article. The only position in Art. 18 which would seem to relate is in the Machine Operator’s Department and the job classification is that of “machine operator”.
Nothing in the Agreement addresses how job classifications are to be created or the significance of the designation of duties contained in the Rules. For instance, the travelling mechanic position, in the Agreement, is lumped in with eleven other job classifications in the Bridge and Building Department. But the travelling mechanic classification is the only one of the twelve classifications to appear in the Rules.
The twelve positions contemplate some form of trade qualification but, by express reference, they do not require formal trade qualifications. For instance, the following notation with respect to the twelve trades positions appears as a postscript to the Bridge and Building Department schedule of rates:
NOTE: An employee in the B & B Department filling a position in the tradesman classifications of Electrician, Plumber, or Pipefitter for which the Railway requires Journeymen status, with proof of qualifications, will be paid
Read in context, the only inference which can be drawn is that of the twelve positions listed, only those of electrician, plumber, or pipefitter are acknowledged as trade positions for which the Railway may, at its election, require journeyman status, and, when such a requirement exists, a rate reflective of those qualifications is provided.
That provision is inconsistent with the requirement of the Employer that a travelling mechanic have journeyman qualifications. There is no provision for recognizing journeyman qualifications for a travelling mechanic in Art. 18 and thus no mutual intention to be implied from that aspect of the Agreement that the travelling mechanic position was one that would invite or require journeyman status. The insistence of the Railway that travelling mechanics be journeyman heavy duty mechanics creates the anomaly that journeyman status would be required but not paid for even though the same qualification requirement for an electrician, plumber or pipefitter would compel a higher rate of pay.
To add further confusion to the question of job classification and qualifications, Art. 26 of the Agreement is a special provision dealing with the Work Equipment Repair’ Department which specifically provides that a heavy duty mechanic or machinist must have a British Columbia Proficiency Certificate, a qualification beyond that of journeyman status. It is difficult to accept the view of the Railway that it can impose unilaterally the requirement that travelling mechanics be certified heavy duty mechanics when it found it necessary to make a specific provision in Art. 26 for the right to impose the requirement of certification as a qualification for tradesmen working in the Work Equipment Shop. On the interpretation of the Agreement by the Railway, Art. 26 would be redundant. It would be open to the Railway to impose the certification requirement unilaterally in response to its view of what an employee in the Shop required in order to be “fully qualified”.
On another point, Mr. Bickner was paid, as of January 24, 1983, at the rate of $15.54 per hour, which is a $1.24 per hour less than a heavy duty mechanic. The travelling mechanic rate, as stated, is fixed on the basis of years of experience in the position, not on formal trade qualifications. There are four levels, the highest rate being achieved after four years. To achieve the $15.54 rate it was necessary for the Railway to credit Mr. Bickner with an experience factor of four years. By that device the Railway paid him the highest possible rate based on experience when in fact he had no previous experience in the job.
From the rate structure of the Agreement it is clear that the parties intended that travelling mechanics would acquire qualifications through on-the-job experience. It does abuse to that notion of the job to pay the highest rate to an employee with no experience on the basis of formal trade qualifications and then insist that those qualifications are the minimum entry level qualifications for the job. On that reasoning the maximum rate would be paid to all entry level applicants and the negotiated rate structure based on experience would be redundant. If a travelling mechanic must be a certified heavy duty mechanic and if a certified heavy duty mechanic is to be credited with the highest experience factor rate on entry to the position, what need is there for the three lower rates? The least inference is that the approach introduced by the Railway is inconsistent with the structuring of the job to be implied from the rate structure of the Agreement.
In arbitral jurisprudence there has been some controversy over the standard to be applied to an employee who seeks to contest an appointment made out of seniority ranking. On the evidence of Mr. Koehn and on the language of the Agreement, it would appear that this Agreement contemplates that there will be no contest between applicants. Seniority will govern as between applicants who are “fully qualified” for the position regardless of whether a junior applicant has much superior qualifications to those of the senior applicant. The test in that regard is adequately summarized in Canadian Labour Arbitration at p. 252:
Clearly, under the first varietal, where the senior employee is entitled to the position in issue if he is able to perform it, seniority is likely to become the more relevant criterion. That is, under such a clause, a junior employee who was demonstrably more superior than a senior colleague would not be entitled to the job if the senior employee were able to meet the requirements of the job.
The application of that standard was confirmed by Mr. Koehn who insisted that a vacancy always went to the senior applicant providing he was “fully qualified” to perform the job. The only inference to be drawn on the evidence is that the grievor was infinitely better qualified to perform the specific job than the previous two incumbents in the position and, in general terms, that he was better qualified than many other employees who had been appointed the position of travelling mechanic in other areas.
In my view of the evidence the Railway sought in this dispute to upgrade the position of travelling mechanic In response to its desire to achieve greater efficiency of operations, at least with respect to the area in which the vacancy arose. In particular, the Railway urged that a travelling mechanic needed to have all of the skills necessary to complete all required field repairs on all heavy duty equipment located within his area of operations. On the evidence that was not a requirement imposed on travelling mechanics in the past and was never a significant part of the job duties.
A travelling mechanic spends in excess of 50% of his time dealing with the maintenance of a device called a rail lubricator. It is a relatively simple task requiring little formal trade qualification and one which anyone with any degree of mechanical aptitude can be taught in a very abort time. That aspect of the job, although menial in mechanical terms, required the employee to patrol the rail line and was an extremely important aspect of preventive maintenance and safety. Coincidental with that primary duty, the travelling mechanic did machinery repairs within his limited mechanical expertise and within the limitations imposed on him by the tools and equipment he could carry with him on patrol. Field repairs were the responsibility of heavy duty mechanics dispatched from the Work Equipment Shop in Prince George. The coincidence of having a roving mechanic with a heavy duty journeyman certificate was of great benefit to the Railway but it was not a requirement which had ever been imposed prior to this dispute.
There was an expectation that travelling mechanics would be able or would learn to perform maintenance and some repair functions on equipment but, on the evidence, looking to them to perform full field repairs on heavy duty equipment would be like looking to first aid attendants to perform surgery. That is the only inference which can rationalize the pattern of appointing persons totalling lacking in mechanical training or experience to what was now described as a function requiring not only a heavy duty mechanic, but one with certification. Whether the Railway could reclassify the position or upgrade qualifications is not the issue. The Railway did not purport to reclassify.
Mr. Bickner, the successful applicant, had no previous experience with rail lubricators when he was given the job on a temporary basis and had to be instructed in that principal aspect of the job. Be did not dispute that the task was well within the qualifications of the grievor. The Rules with respect to the job duties of travelling mechanic have been in existence for many years and, despite those Rules, travelling mechanics have been neither qualified nor required to perform field repairs on heavy duty equipment to any significant degree.
Returning to the language of the Agreement, it leaves unaddressed in any express sense many of the issues which arise with respect to the fixing of job classifications, qualifications, rates of pay for new jobs, reclassification and similar problems in the administration of the Agreement and the continuing organization of the work.
In particular, in the context of this dispute, the Agreement does not address expressly the right of the Railway to upgrade qualifications for in existing job classification which has been recognized in the Agreement and for which a rate has been fixed. Does the language of the Agreement imply a mutual intention in the parties whereby the Railway is entitled to raise the qualifications and duties for existing job classifications with no adjustment in rate? I do not think that intention can be implied.
I want to emphasize that this Award is limited to the specific issue raised by the facts. Having regard to the nature of the language and the sensitivity of seniority issues generally, it would be Improper for me to compromise Inadvertently the rights of the parties in future disputes by addressing the language in any general sense. With that caution in mind, I say that the Railway was in breach of the Agreement in this particular dispute because the qualifications it imposed in assessing the application of the grievor were unreasonable. The general test in such a dispute is summarized in Canadian Labour Arbitration on page 267:
Nevertheless, and regardless of the type of seniority clause which the parties have included in their agreement, It is also firmly settled that an employee’s claim that he was improperly denied a particular job would prevail if it could be shown that the standards and criteria relied upon by the employer in making its judgement as to the relative skill and ability of the applicant did not bear any reasonable relationship to the work to be done, that they were not invoked in good faith, or that such standards were not consistently or uniformly applied to all applicants.
It is in the context of that test that I find the Railway to be in breach of the Agreement. What may have happened if the Railway had sought to reclassify the position is irrelevant. No evidence was adduced of any change in the job which would explain the change in qualifications. There was no evidence led by the Railway that it had ever demanded the qualifications it now sought to impose on the grievor. The qualifications demanded do not bear any reasonable relationship to the manner in which the work had been done and it begs the question to say they are reasonable standards having regard to the manner in which the Railway would like to see the job done. By its change in expectation the Railway, in effect, created a new job but continued to insist the job had not changed.
I now return to the issue raised by the Railway as to its obligation to recognize seniority in the awarding of job vacancies. I repeat that the Railway was of the view seniority in the context of this Agreement meant classification seniority. In its view, applicants with classification seniority were the only applicants to be considered under Art. 8.7 and seniority governed in those circumstances only if the applicant was “fully qualified” for the specific vacancy within the classification. Finally, the Railway said its only obligation to applicants who lacked classification seniority was to give their applications “consideration” before looking to applicants outside the work force.
The interpretation urged by the Railway raises a number of problems. Assuming that seniority is indeed restricted to classification seniority, then how are applicants under Art. 8.8 to be “considered”? What factors and criteria are to be applied to their applications? Assuming they must meet the test of “fully qualified” and assuming that two or more of them are “fully qualified”, how will a selection be made between them? Assuming the issue will be settled on the basis of seniority, what seniority will govern? Employees can have classification seniority in several classifications. If the Railway is correct, there is no such thing as seniority based on length of service. Would seniority in that traditional sense be recognized on some informal basis for the purpose of administering Art. 8.8?
The submission of the Railway invoked a standard of strict interpretation. It submitted, in effect, that the literal meaning of the words used in the seniority provision failed to support the Union interpretation. It was on the basis of that reasoning that the Railway sought to avoid the implications of its practice with respect to the appointment of travelling mechanics. In its reconstruction of events the Railway said that applicants for the travelling mechanic position were not “fully qualified” within the meaning of Art. 8.7 and thus were appointed despite their lack of qualifications under the discretion vested in the Railway under Art. 8.8. Thus, said the Railway, its practice in appointments and in the qualifications it required was not a compromise of its discretionary right to insist that applicants be “fully qualified” at any time it chose.
The Railway said that the job posting giving rise to this dispute was a case in point in that it did not attract any applications from employees who were “fully qualified”. It said the appointment of Mr. Bickner was a further example of an exercise of its discretionary right to appoint employees under Art. 8.8 who were not fully qualified and that its exercise of discretion was not reviewable in the ordinary arbitral sense. The Railway raid that the term “fully qualified” meant that an applicant had to have a present ability to perform all aspects of a job. The Railway then undertook what I took to be a rationalization of its administration of the seniority and job postings provisions of the Agreement. In that rationalization it did not adduce evidence of a practice, per se, but rather adduced a retrospective reconciliation of its practice with its interpretation of the provisions of the Agreement.
In that retrospective reconciliation the Railway said that its firmly established practice of awarding jobs on a clerical basis to the senior applicant holding classification seniority was done as an exercise of discretion wherein the test of being “fully qualified” was not applied. The Railway then said that its practice of appointing applicant employees who did not have classification seniority to vacancies was a further exercise of discretion wherein it waived the requirement to be “fully qualified”. Finally, the Railway said that held in reserve was its right under Art. 8.7 to insist that any applicant for a particular vacancy be “fully qualified” in the strict sense of being able immediately to perform all aspects of a specific job in a particular classification.
The contention of the Union was that appointments to job vacancies were made on the basis of seniority and that where an application was received from an employee holding seniority in the particular job classification, appointments were made strictly on the basis of classification seniority. Where there were no applicants holding classification seniority, the job went to employees who were qualified to perform the job on the basis of their seniority calculated from the commencement of employment. In support of its interpretation the Union pointed to the evidence of Mr. Young as to the manner in which job vacancies were administered.
On the question of practice with respect to vacancies where there were no applicants with classification seniority, the Union relied on the evidence of Mr. Young that those vacancies were referred to the senior official having supervision in the department or area in which the vacancy arose. The Union further relied on the evidence of Mr. Koehn that when those circumstances arose he had the organizational authority to select between competing applicants and, in practice, he delegated that authority to the relevant supervisory official having charge of the position. The evidence of Mr. Koehn was that in those circumstances the choice between applicants was not a competition but was made strictly on the basis of the senior applicant who was “fully qualified”.
The understanding of Mr. Koehn that those decisions were made by supervisory personnel on the strict application of the “fully qualified” test is not in accord with the practice revealed with respect to the travelling mechanic classification. It was quite apparent that numerous travelling mechanics, if not all of them, were appointed despite the fact that they were not qualified at all on the test belatedly invoked by the Railway. The Railway said the practice remained uniform even though there was a radical difference in result. It was in the context of that anomaly with respect to practice that the Railway introduced its rationalization of the language of the Agreement and raised its argument that its practice of appointing employees whom it now described as not “fully qualified” did not impact on the interpretation of the Agreement but responded to a discretionary exercise which entitled it to raise and lower qualifications in its sole discretion.
One has to measure that view of discretion in light of the arbitral standard previously recited wherein an employer is seen as acting in breach of a collective agreement where “standards were not consistently or uniformly applied to all applicants”. Undoubtedly seniority is a contractual concept and there is no inherent right in an employee to have his seniority inhibit the exercise of the residual right of management to manage the enterprise. But where an employer agrees to recognize seniority as an inhibition on its right to manage, the principles of strict interpretation in favour of the employer are inappropriate.
Recognition of seniority by an employer represents a compromise of competing self-interests. The self-interest of an employer Is best served if It has the right to fix qualifications and make appointments in its absolute discretion. On the Union ethic, the self-interest of the employee Is served if appointments are made on the basis of strict seniority ranking. In the compromise of those extremes a host of possibilities exist and numerous variations appear In modern collective agreements.
In this dispute the language Is cryptic but it supports the contention of the Union that seniority will govern in all appointments provided the applicant Is “fully qualified”. The Union insisted that an employee with classification seniority Is deemed to be “fully qualified” In that classification. That contention is not supported in any express or implied sense in the language itself. However, it is supported by practice in the application of the Agreement. A question may arise in specific applications about whether the language raises a “bona fide doubt about (its) proper meaning”, as that concept is envisaged by the Labour Relations Board In University of British Columbia and Canadian Union of Public Employees, Local 116  1 CAN. L.R.B.R. 13 0 18. Whether the practice of the parties would resolve that doubt should be canvassed on specific facts.
That Issue was not raised on the facts In this dispute. Neither applicant had classification seniority. it became a collateral Issue raised in argument as the parties sought to reconcile the language of the Agreement. I do not think it appropriate to consider that issue. I note that the subject was addressed In a previous arbitration between the parties which itself arose on unique facts. (Decker Arbitration, October 11, 1980, Bryan E. Williams). In that arbitration the dispute arose because two applicants held classification seniority dating from the same day. The Railway pointed to that decision as supporting Its Interpretation of the Agreement but the decision does not appear to address the Issues In this dispute. The Railway sought to apply It by analogy In that It can be read as support for the view that the Railway is entitled to select the best qualified applicant. That is contrary to the practice as testified to by senior management witnesses. The meaning of “fully qualified” was not addressed In that decision. The arbitrator concluded on page 8:
The Company appointed the better qualified applicant to handle the assignment. The Company chose the applicant it felt to be sufficiently capable of carrying out the job function.
Apparently the arbitrator did not find it necessary to address the meaning of “fully qualified” In order to resolve the dispute. I find myself in a similar position for different reasons. I am of the view the grievor has established he was “fully qualified” no matter how rigidly that test Is applied In favour of the Railway.
In my view the sole question of interpretation here was whether Art. 8.7 applied to applicants who lacked classification seniority. In my view it does. The question of fact was whether the Railway acted unreasonably in fixing the qualifications for the position and in assessing the qualifications of the grievor. In my view it did act unreasonably. On the state of qualifications for the position existing prior to this dispute the grievor was “fully qualified”.
There are two approaches to the question of a review of a disputed promotion In British Columbia. One is summarized in Re Corporation of the District of Maple Ridge and Canadian Union of Public Employees, Local 622 (1979) 23 L.A.C. (2d) 86 (Hickling) and the other in Re: British Columbia Housing Management Corp. & Service Employees Union (1977) 15 L.A.C. (2d) 121 (J.H. Weller). Both cases are thorough reviews of arbitral thinking on the subject.
The issues which led to a division of arbitrators, a division which continues, do not arise in this dispute. Assuming the more limited review preferred by Prof. Weller in the British Columbia Housing Case, the grievor met the test of being “fully qualified” on the Railway’s own practice. Terms such as “qualified” or “fully qualified” are subjective and judgmental in the absence of formal qualifications. A sound adjudicative resource for defining such terms is evidence of the manner in which the employer has applied its test in the past. The Union adduced evidence disclosing qualifications in the grievor vastly beyond those possessed by the previous Incumbents. The employer adduced no evidence to show it had ever required the qualifications It demanded of the grievor in any prior appointment of any travelling mechanic anywhere in the system. Rejecting as I do the submission of the Railway that it was entitled to repudiate its consistent approach to assessing qualifications for the job of travelling mechanic, the. Only conclusion Is that the grievor was “fully qualified” In any reasonable measure of how that test had been applied to other applicants.
It may have been different if the Railway had adduced evidence that appointments to the travelling mechanic Position had been made subject to a disclaimer communicated to the Union that the applicants lacked qualification, but that was not the case. Nor was there evidence of an administrative process, communicated or not, wherein the Railway made a conscious evaluation of applicants and determined to appoint them regardless of the fact they were deemed not to be “fully qualified”.
It was, as I said, retrospective logic which sought to accommodate the language of the Agreement to the Railway’s exercise of managerial discretion. The Railway was incorrect in its assertion that it was entitled to exercise its discretion in that manner in the absence of clear language to the contrary. The Railway agreed to make seniority the deciding factor between employees who were “fully qualified” and it was bound to act reasonably and consistent with its own practice in assessing qualifications on that test. Its least obligation was to adduce evidence which made a radical increase in qualifications consistent with some change in circumstances which would make that decision compatible with the Agreement. A desire to add substantially to the duties of a position with no adjustment in rates of pay does not meet that requirement.
On the question of remedy, the grievor is entitled to be placed in the position immediately upon receipt of this Award and to receive compensation for any benefits he may have lost by reason of the failure to appoint him. It was not clear whether any loss did occur. I will reserve jurisdiction to assist the parties in the implementation of the Award if that becomes necessary. In placing the grievor in the position I am not unmindful of the submission that the more appropriate remedy would be to order the Railway to reconsider the application. On the evidence that is not appropriate. It is clear that his qualifications exceed those required of a travelling mechanic by a substantial margin. In addition, qualification is the only issue. There is no requirement to choose between applicants When the threshold test of qualifications has been met. The grievance is granted on the terms set out.
DATED at the City of Vancouver, in the Province of British Columbia, this 2nd day of May A.D., 1983.
(signed) ALLAN HOPE, Q.C.