AH – 499

IN THE MATTER OF AN ARBITRATION

BETWEEN

VIA RAIL CANADA INC.

(the "Corporation")

AND

BROTHERHOOD OF LOCOMOTIVE ENGINEERS

(the "Brotherhood")

RE: LOCOMOTIVE ENGINEER TRAINING SELECTION

GRIEVANCE RE INTERVIEW PROCESS – MARK SMITH

SOLE ARBITRATOR:                                Michel G. Picher

APPEARING FOR THE BROTHERHOOD:

Scott Chamberlain                – Legal Counsel, Ottawa

J. L. Shields                           – Legal Counsel, Ottawa

John Tofflemire                      – General Chairman, Oakville

APPEARING FOR THE CORPORATION:

E. J. Houlihan                        – Senior Manager, Labour Relations, Montreal

Melanie Bastien                    – Labour Relations Officer, Montreal

APPEARING FOR THE OBSERVER:

Frank O’Neil                          – Labour Relations Associate, CNR, MacMillan Yard

A hearing in this matter was held in Montreal on November 29, 2000

 AWARD OF THE ARBITRATOR

            Mr. Smith has some eleven years of service with the Corporation.

            His interview for locomotive engineer training resulted in failing marks on three of five sections. Upon a review of the interview document the Arbitrator is left in substantial doubt as to the actual scores recorded by Mr. Smith. For example, question number two of section A, concerning his actions in making a reverse movement, show two check marks which would result in a possible ten points, and a marginal notation “good”. Nevertheless the score registered on the right side of the page is zero. Secondly, the mark registered for him under section E, communication skills, is also doubtful. The initial notation under question one is that the grievor merits a full five points because he expresses himself clearly. Under the second part, as to whether he expresses himself logically and precisely the page shows five marks, with a slash through the number “5”.

            In a matter which concerns an employee’s livelihood and career progression, documents of this importance should be clear and unequivocal. On a review of the material the Arbitrator in frankly unable to determine the precise merits of the grievor’s performance on the interview. Specifically, while I am satisfied that his mark should be adjusted upwards to thirty-three for section B of the interview, for reasons related to uncertainty with respect to the responsibility for train journals touched upon in other awards, I cannot make a sufficient determination with respect to the ultimate standing of Mr. Smith under sections A and E of the interview. In these circumstances the only appropriate resolution is to direct a re-run of his interview.

            The grievance is therefore allowed, in part. The Arbitrator directs that Mr. Smith be afforded the opportunity of a further interview, with not less than seven days’ notice, in circumstances and under conditions similar to the original interview, subject of course to such changes in the factual questions as the Corporation may deem appropriate. The grievor shall retain all rights with respect to the procedure and  outcome of the interview.

Dated at Toronto, this 15th day of December 2000

(original signed by) MICHEL G. PICHER

                                                                                                      ARBITRATOR