AD HOC – 279
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
CANADIAN BROTHERHOOD OF RAILWAY TRANSPORT & GENERAL WORKERS
RE INTERPRETATION OF ARTICLE C – TRAINING UNDER THE SPECIAL AGREEMENT
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Corporation:
A. Léger – Human Resources, VIA Rail
And on behalf of the Union:
A. Cerilli – Regional Vice President, Prairie Region
Tom McGrath – National Vice President, Ottawa
R. J. Stevens – Regional Vice President
G. Ariss – Representative
D. Olshewski – Representative
B. Cherney – Representative, Local 283
A hearing in this matter was held in Toronto on September 5, 1990.
At the hearing the parties filed the following agreed Joint Statement of Issue:
JOINT STATEMENT OF ISSUE:
The Special Agreement signed by the parties on November 19, 1989 contains an Article that provides for training.
The Brotherhood maintains that the right to an education is covered by the Article on Training and includes formal education if and when needed to qualify an employee for more specialized training.
The Corporation maintains that Article C - Training, is not intended for continued schooling and does not provide for advanced education.
This grievance arises as a result of the changes in passenger train services following the federal government’s Order-in-Council of October 4, 1989 implemented by the Company in January of 1990 "Order-in-Council P.C. 1989-1974 (SOR/89-488)". The right of employees adversely impacted by the changes in passenger services are provided, in part, in a special agreement between the Union and the Company dated November 19, 1989. Article C of that Agreement makes provision for the training of employees adversely affected by the reduction in train passenger services. It reads as follows:
C.1 An affected employee who:
(i) has been laid off or who has been advised that he may be laid off and who is, or will be, unable to hold other work on the Railway because of lack of qualifications; or
(ii) is required to relocate; or
(iii) is required to suffer a substantial reduction in his rate of pay;
will be considered for training for another position within or without his seniority group, providing he has the suitability and adaptability to perform the duties of that position and provided he has indicated a willingness to work in the job for which he may be trained whenever vacancies exist.
C.2 Such training will be:
(i) at training classes conducted by qualified railway personnel;
(ii) at classes conducted by an approved training agency.
C.3 The type of training for which an employee may apply must:
(i) qualify the employee for a recognized railway position;
(ii) qualify the employee for employment on the railway on completion of the training period in a position for which the employee has been trained; or
(iii) in the case of employees with 20 or more years of cumulative compensated service, or on Employment Security, include the possibility of qualifying the employees for employment within or without the railway industry; or
(iv) in the case of an employee on Employment Security, i.e. 4 years’ service, qualify the employee for employment within or without the railway industry, provided the employee resigns upon obtaining employment outside the Corporation upon completion of the training.
C.4 An employee will receive 100% of the rate of his last railway position during his period of training. In addition, he will be provided for the training period with books, equipment, tools and allowed other necessary supplementary expenses associated with the training program.
C.5 Should the employee be recalled from layoff before the scheduled completion of training, the employee will be allowed to complete the program without forfeiture of pay or seniority rights.
C.6 An employee who has completed a training program may be required to take a position for which he has been trained, except in instances where the employee wishes to exercise his seniority in his seniority group.
C.7 Upon request, the subject of training of an affected employee or groups of affected employees under any of the above provisions shall be discussed by the Regional Vice-President and the appropriate officer of the Corporation either prior to or at the time of lay off. In addition, such discussion may include representatives of Employment and Immigration Canada, in cases of training for outside employment. All payments under this agreement are to be reduced in whole or in part in each case by the amount payable for the same purpose under a Government Assistance Program.
C.8 The Corporation, where necessary and after discussion with the Brotherhood, will provide classes (after work or as arranged) to prepare present employees for upgrading, adaptation to technological change and anticipated new types of employment in the Corporation. The cost of such training will be borne by the Corporation.
The Special Agreement of November 19, 1989 is an amendment of a long-standing special agreement whose origins date from the time the Corporation took over train passenger services from CP Rail and the Canadian National Railway. The purpose of the Special Agreement subsisting between the parties has been to minimize the adverse effects upon employees of changes in passenger services, pursuant to federal government initiatives.
Training has long been part of the Special Agreement. However, the most recent version of the Special Agreement, whose training provisions are reproduced above, contains a number of amendments. Subparagraph iv of Article C.3 was added as a new provision. It provides to employees who qualify for employment security, that is employees with four years’ service, the broader opportunity of training for employment either within or without the railway industry, an advantage previously restricted to employees with 20 or more years of cumulative compensated service. Additionally, Article C.4 provides to the employee in training 100% of the rate of his last railway position, rather than 80%, as provided under the prior version of the Special Agreement. Additionally changes were made to the procedures under Article C.7, and Article C.8 was added as a new provision.
This dispute comes before the Arbitrator as a policy grievance in relation to the general application of these provisions by the Corporation. At issue is the scope of the Corporation’s obligation in respect of training. The Union maintains that when an employee qualifies for training under the terms of Article C of the Special Agreement he or she is entitled to be provided training in the form of formalized education courses, such as degree courses in a high school, community college or university. As is apparent from the language of Article C, for the purposes of this Special Agreement, the parties are agreed that an employee who is on employment security is considered to fall under the qualifying provisions of Article C.1.
The Corporation submits that the concept of training contemplated by the Special Agreement is not so far-ranging as the Union would have it. It argues that the Agreement, both in its present form, and in its historic evolution, reflects an understanding that training is to be vocational in nature, and not general schooling or formal education that cannot be related directly to a specific trade or occupation. Its spokesperson submits that from its inception the Special Agreement has been intended, insofar as Article C is concerned, to be a vehicle for job training, and not an instrument whereby the Corporation undertakes obligations to laid-off employees to provide them with generalized formal education. In his submission the concept of "training" reflected in Article C is to be distinguished from that of "education" in the broader sense. In this regard he points to the Corporation’s own internal policy whereby employees who do pursue avenues of self-betterment by upgrading their education may apply for and receive financial assistance, which can include up to 75% of their tuition fees for college and university courses. This, he submits, is different from the concept of job training which he maintains is reflected in the intention of Article C of the Special Agreement.
The Union seeks to rely, in part, on what it maintains was said and undertaken at the bargaining table when the amendments to the Special Agreement were negotiated. It submits that the discussions between the parties included talk of advance apprenticeships in traditional trades as well as university and community college training. While the Arbitrator has no doubt that there were such general discussions, it is difficult to conclude from the material before me that the parties jointly intended that laid off employees, or employees on employment security as of January 1990 would have an unqualified right to a full college or university education, as the Union submits. If that had been the intention of the parties, it was open to them to so provide in clear and categorical terms in the language of the Agreement when they amended it. This, however, they did not do. The amendments of the Special Agreement do not in any way relate to the nature of the training to be provided. Rather, the amendments relate to identifying which employees will be eligible for particular types of training, as well as the percentage of salary to be paid to the employee during the period of training. These are the principal thrusts of the new version of Article C.3 (iv) and Article C.4. The language relating to the training to be provided under the Agreement remains unchanged from that which was made available under predecessor forms of the Special Agreement.
The material before the Arbitrator reveals that the language of Article C of the Special Agreement originated in the Supplemental Agreement between the parties made on November 16, 1964. The language of Article 6 of the Supplemental Agreement then provided as follows:
6. A laid-off employee, who has five or more years of cumulative compensated service and who is unable to hold other work on the railway because of lack of qualifications, will be considered for training for another position within or without his seniority group on the railway providing he has the suitability and adaptability to perform the duties of that position and providing he has indicated a willingness to work in the classification for which he may be trained wherever vacancies exist. At the option of the company such training may be
a) at training classes conducted by qualified railway personnel; or
b) at classes conducted by an approved training agency. The type of training for which an employee may apply, must:
i) qualify the employee for a recognized railway position,
ii) be possible of completion during the employees anticipated period of lay-off,
iii) offer a likelihood of employment on the railway on completion of the training period in a position for which the employee has been qualified.
Upon request, the subject of training of an employee or groups of employees shall be discussed by the General Chairman or equivalent and the appropriate officer of the railway at the time of lay-off. Any unresolved differences between the parties concerning the usefulness of training for future railway service, or the suitability and adaptability of an employee for training, may be progressed to arbitration before an arbitrator selected by the parties or, failing that, appointed by the Minister of Labour.
Subsequently, in July of 1975, the Supplemental Agreement reproduced above was amended whereby the scope of training for employees with 20 or more years of cumulative compensated service was expanded to include training for employment both within and without the railway industry. With the advent of the Special Agreement in July of 1978, similar provisions to those appearing in the Supplemental Agreement were brought into the Special Agreement under Article C.
In the Arbitrator’s view what the foregoing reveals is an understanding between the parties of the need to provide training to employees adversely affected by the impact of layoffs within the bargaining unit. In its original conception the training obligation under the supplemental agreement of 1964, amended on January 29, 1969, was plainly limited to the training of employees for other jobs within railway service. That narrow objective still continues to be reflected in Article C of the Special Agreement insofar as it applies to subparagraphs (i) and (ii) of Article C.3. It is clear, however, as regards subparagraphs (iii) and (iv) of Article C.3 that the amended Special Agreement of November 19, 1989 provides a wide scope of training as regards the employee with 20 or more years of cumulative compensated service, or the employee with 4 years of service who qualifies for employment security. Those individuals may apply for training for positions not only within the railway, but outside the railway industry.
Notwithstanding the amendments to Article C.3, however, the intention of the parties remains reflected, at least in part, by the unchanged words of Article C.2. It specifically provides that the training is to take place either at training classes conducted by railway personnel or, alternatively, at classes conducted by "an approved training agency". In my view those words are more consistent with the vocational or trade oriented training which the Corporation maintains applies under that provision. It might be arguable that the phrase "approved training agency" was deliberately chosen as a means of accommodating the fullest range of educational institutions. However, that appears doubtful. The words which the parties chose must be construed within the context of the Special Agreement, and in light of its purpose, which is to provide a measure of job protection by allowing employees access to other jobs in the railway industry, or to presumably comparable jobs outside the industry. If the parties had intended by the notion of "an approved training agency" to encompass high schools, community colleges or universities, they could have done so in specific terms. Absent such specificity, I am not able to conclude that they intended so broad a meaning as is argued by the Union.
The Arbitrator finds further support for that conclusion in the language of article C.7. The reference in that provision to the possibility of consulting with officials of Employment and Immigration Canada "… in cases of training for outside employment" is, I think, reflective of an intention to orient employees towards job training in the form of specific trades courses and skills programs including government assistance programs. It is not language that supports the Union’s view of training as generalized higher education.
That is not to say, however, that the provision so construed does not provide significant protections to the employees who qualify. The representative of the Corporation submitted at the hearing that the provisions of Article C would, for example, be available to an employee who might wish to obtain qualification as a carpenter to improve his possibilities for any employment either inside or outside the railway industry. It is clear that the terms of Article C of the Special Agreement must be assessed on an individual, case by case basis as they apply to individual employees making requests for training. For the reasons related above, however, I must accept the submission of the Corporation that article C is intended primarily as a vehicle of access to vocational training for specific, clearly defined jobs, and was not intended to include general high school, college or university degree courses.
For the purposes of clarity, it may be appropriate to cite an example related by the Corporation spokesperson. He notes that the Corporation declined the request of an employee to do a Quebec CEGEP general business course as a precondition for qualifying for a technical course in photography, for eventual placement as a photographer in public relations. He submits, in my view correctly, that the intention of Article C does not extend to providing the general CEGEP course, although it would apply in respect of a vocational course in photography which would lead directly to employment in that occupation, whether inside or outside the railway industry. In my view that example does provide an appropriate distinction consistent with the language and intention of Article C of the Special Agreement.
For the foregoing reasons the Arbitrator finds that the interpretation of Article C of the Special Agreement advanced by the Corporation is correct, and the grievance must be dismissed.
DATED AT TORONTO, this 17th day of September, 1990.
(signed) MICHEL G. PICHER