AH597

AWARD

The Union grieves the Company’s administration of apprenticeships. In particular, it maintains that the Company improperly assigned “fast track” employees to work as S&C Maintainer Helpers for the purposes of completing their apprenticeships when, according to the Union, there were S&C Maintainer Helpers, not in the apprenticeship stream, who were then laid off. The Union submits that the laid off S&C Maintainer Helpers should have been recalled in preference to the assignment of the “fast track” apprentices. The dispute and joint statement of issue, filed at the hearing, reads as follows:

DISPUTE:

The Company’s use of junior employees (fast track employees) while senior employees were laid off.

JOINT STATEMENT OF ISSUE:

In December 2008, the Company issued lay off notices to a number of S&C employees. In January 2009, the lay off notices became effective. At the same time as the lay off notices were issued, fast track employees came on to the property. These fast track employees were placed into the Appendix 3 Apprenticeship Program of the collective agreement between the parties. The Company continued to employ fast track employees who had lesser seniority than the employees who were laid off. The Company posted numerous positions in January 2009 that provided opportunities for fast track employees to gain seniority, while the laid off employees were unable to bid on those opportunities.

The Brotherhood maintains that the Company’s actions have breached, inter alia, Wage Agreement No. 1, including Articles 8.6, 10 and Appendix 3. The Brotherhood requests that the Company make all laid off employees whole for all lost wages, benefits, pension and seniority.

The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.

The background history to this grievance is not in substantial dispute. Apprenticeship within the ranks of the bargaining unit which leads to a person assuming the position of S&C Maintainer has historically been administered under the provisions of Appendix 3 of the collective agreement. It appears that the original Appendix 3 was dated August 22, 1975 and was replaced by a version signed into effect on October 15, 1998. The text of that appendix reads as follows:

MEMORANDUM OF AGREEMENT BETWEEN CANADIAN PACIFIC RAILWAY AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS — SYSTEM COUNCIL NO. 11 COVERING THE APPRENTICESHIP PROGRAM FOR SIGNALS AND COMMUNICATIONS EMPLOYEES

It is agreed that the following rules will apply in the administration of the Apprenticeship Program for Signals and Communications employees.

Notwithstanding the provisions of Article 11 of the Collective Agreement:

1. The Apprenticeship Program is designed for the purpose of progressing the development of S&C Helpers to qualified S&C Maintainer/Wireman. Employees in the Apprenticeship Program will be known as Apprentices and will be paid the S&C Helper rate of pay.

2. The selection into the Apprenticeship Program will be based on seniority order to the extent practicable and when it is not practicable, the System General Chairman will be advised. However, a senior employee shall not lose seniority to a junior employee when, through no fault of his own, such senior employee has not had the opportunity to take training and qualify.

3. Once selected for entry into the Apprenticeship program, the Apprentices must remain in the program until:

– they become qualified S&C Maintainer/Wireman, or

– there are extenuating circumstances which will be resolved by the appropriate Company Officer and the System General Chairman.

4. While in the Apprenticeship Program, Apprentices will not be affected by staff reductions; that is, they will be allowed to continue in the program even though senior employees may be on lay-off status. Such time not to exceed 18 months from entry into the Apprenticeship Program.

5. While in the Apprenticeship Program, Apprentices may bid bulletined vacancies but will not be allowed to fill them; however, Apprentices will not lose seniority under such circumstances.

6. While in the Apprenticeship Program, the Company may fill temporary positions of less than 60 days with Apprentices if the Apprentices are considered sufficiently qualified.

7. Apprentices shall relocate to the location chosen for their apprenticeship training.

8. When rest days fall within the classroom training session, other rest days off will be given without loss of pay.

9. Employees required to travel on a rest day account training will receive up to four (4) hours pay at the basic rate of their position for any travel time in excess of four (4) hours.

10. Apprentices are required to take the qualification tests for S&C Maintainer/Wireman.

11. Apprentices who have successfully passed all qualification tests will be considered to be qualified S&C Maintainers/Wiremen and will be governed by Article 9.09.01.

12. Apprentices who fail a training or qualification test on the first attempt will be given a second opportunity to pass such test after a period of thirty (30) days.

13. Apprentices who fail a training or qualification test twice will be released from service.

14. An employee who fails a test twice and claims he did not have a proper test may appeal the decision under the provision of Article 12.7 of the Collective Agreement.

15. The Company shall provide each employee taking training with textbooks and other written material required for training which will remain the property of the Company and must be returned on request or on leaving S&C service.

16. Employees in S&C Maintainer/Wireman and higher classifications will, when required, assist other employees to learn and understand the functioning of signal systems and the various aspects of their jobs.

17. The requirements for qualification in each classification, the training and corresponding tests to be given will be established by the Company. The requirements for qualification in each classification will be made available to each employee.

18. An employee who has successfully passed all tests in a classification will receive a certified card. An employee becoming qualified in the classification of Signal Maintainer/Wireman or higher will also receive a diploma certified by General Manager, S&C.

This memorandum replaces the former Appendix 3 dated August 22, 1975.

SIGNED at Calgary, ALBERTA, this 15th day of October, 1998.

Prior to 2001 the apprenticeship program was administered entirely under the provisions of Appendix 3. As a result, new apprentices hired under the apprenticeship program were hired in seniority order from the ranks of the S&C Helpers. Such employees held seniority from the date of their hire in accordance with article 8.6 of the collective agreement. Following the successful completion of the eighteen month training program the helpers then progress to the status of S&C Maintainer/Wireman under the provisions of article 9 of the collective agreement.

It appears that during the term of the collective agreement in effect from 2001 to 2005 the Company experienced a shortage of S&C Helpers and qualified S&C Maintainer/Wiremen. It then sought to develop a process whereby the hiring of apprentices from a more qualified pool of new employees could be implemented. The new hires would be recruited from community colleges and come to the Company with a somewhat higher level of formal qualifications in technology. The Company’s concerns led to discussions with the Union which resulted in the execution of an amended version of Appendix 3 in 2001. That agreement acknowledged the right of the Company to recruit apprentices directly from the colleges rather than only from the in-house apprenticeship program. To that effect the agreement reads, in part, as follows:

It is agreed that the following rules will apply in the administration of the Apprenticeship Program for Signals and Communications employees.

Notwithstanding the provisions of Article 11 of the Collective Agreement:

(a) S&C Helpers (hired prior to January 1, 2001) will be grandfathered and will be entitled to go through the in-house apprenticeship program.

(b) The Company will be able to recruit 50% of its requirements through colleges rather than the in-house apprenticeship program.

(c) Current forcing provisions for the apprenticeship program will be modified to senior may/junior must. Where there are no bids, the Company may decide to hire rather than force (over and above 50%).

(d) New hires will not be entitled to the in-house apprenticeship program unless offered by the Company. Offers will be based on qualifications.

3. Once selected for entry into the Apprenticeship program, the Apprentices must remain in the program until:

– they become qualified S&C Maintainer/Wireman, or

– there are extenuating circumstances which will be resolved by the appropriate Company Officer and the System General Chairman.

4. While in the Apprenticeship Program, Apprentices will not be affected by staff reductions; that is, they will be allowed to continue in the program even though senior employees may be on Lay-off status. Such time not to exceed 10 months from entry Into the Apprenticeship Program.

5. While in the Apprenticeship Program, Apprentices may bid bulletined vacancies but will not be allowed to fill them; however, Apprentices will not lose seniority under such circumstances.

6. While in the Apprenticeship Program, the Company may fill temporary positions of less than 60 days with Apprentices if the Apprentices are considered sufficiently qualified.

A further letter of understanding dated December 19, 2003, made amendments and clarifications to the application of Appendix 3. It reads, in part, as follows:

Dear Sirs,

This refers to our recent discussions regarding the application of Appendix 3 of Wage Agreement No. 1, the Apprenticeship Program for S&C Maintainers.

The following is agreed to between the parties:

I. The Company may recruit 50% of its Apprentice requirements through colleges rather than from the S&C Helper ranks on a District-by-District and yearly basis (calendar year). On each District, once all grandfathered S&C Helpers (those hired prior to January 1, 2001) have been provided the opportunity to enter the program, the Company will have the ability to recruit up to 100% of its Apprentice requirements on that District through colleges. New hires (those hired subsequent to January 1, 2001), will not be entitled to the in-house Apprenticeship Program unless offered by the Company.

2. It is expected that by the end of 2003, the Company will have put twelve employees through the Apprenticeship Program. Out of the 12, there will have been nine grandfathered S&C Helpers and three college graduates.

In 2003, the Company has met its recruiting obligations in all Districts except for District 4, where two employees have been hired externally and one was hired through the in-house program. To correct this inequity, the Company agrees to recruit one more internal candidate than through the college ranks in District 4 in the future when the need arises. Once this inequity has been addressed, item I will apply going forward.

…

5. For the purposes of Article 8.6, college employees will not establish seniority rights until they have accumulated six months’ service within the bargaining unit. However, employees who complete the Apprenticeship Program short of six months’ bargaining unit service will be afforded a seniority date(s) for layoff purposes only (Article 10 of Wage Agreement).

Successful external candidates will be afforded an S&C Maintainer/Wireman seniority date once they have bid on and are awarded a position in one of those classifications. Grandfathered S&C Helpers who have not yet had an opportunity for training through no fault of their own will be afforded a seniority date one day prior to the external candidates dates. [sic] Seniority order for these grandfathered employees will be the same as their current S&C Helper seniority ranking.

Employees will be required to protect their seniority in accordance with the provisions of Article 8, Article 9 and Appendix 3 of the Wage Agreement.

It is understood that if an employee who has not had an opportunity for training through no fault of their own, and who has been provided a seniority date ahead of an external candidate, will lose that date if he/she does not accept entry into the program at the first available opportunity.

6. All items listed in Appendix 3 will apply to apprentices hired through the in-house program and through colleges.

As noted by counsel for the Union, under the provisions of the letter of December 19, 2003, the fast track or college employees are not brought onto the Company property until they first complete four months of classroom training. It is not disputed that during that period they do not fall into the bargaining unit and are paid at a wage not negotiated by the Union, apparently somewhat less than the rate for S&C Helpers. As is apparent from paragraph 5, college employees have no seniority rights until such time as they have left the classroom portion of their training, have assumed work as S&C Helpers and have completed six months’ service within the bargaining unit.

Counsel for the Union also notes that the December 19, 2003 Letter of Understanding was not incorporated into the subsequent collective agreement following the 2005 round of bargaining. This, he submits, is because the letter was initially conceived to deal with a temporary shortage of apprentices. The renewed Appendix 3, as reflected in a letter dated July 7, 2005, contains, in part, the following provisions:

(a) S&C Helpers (hired prior to January 1, 2001) will be grandfathered and will be entitled to go through the in-house apprenticeship program. The grandfathered Helpers that have not entered the program after three entrance offers have lapsed, upon ratification, will not be entitled to enter the program.

(b) The Company will be able to recruit 50% of its requirements through colleges rather than the in-house apprenticeship program.

(d) New hires will not be entitled to the in-house apprenticeship program unless offered by the Company. Offers will be based on qualifications.

…

(4) While in the Apprenticeship Program, Apprentices will not be affected by staff reductions; that is, they will be allowed to continue in the program even though senior employees may be on Lay-Off status. Such time not to exceed 14 months.

The Union’s fundamental position before the Arbitrator is that under the current collective agreement no part of Appendix 3 has any application to the fast track or college employees’ training. The Company asserts the contrary.

The instant grievance arises as a result of layoffs implemented in December of 2008. In that month a series of layoffs were announced which impacted twenty-one positions in District 2, six in District 3 and fifteen in District 4. With two exceptions all employees laid off were S&C Helpers. By a bulletin dated January 5, 2009 the Company posted “ten Positions to establish seniority dates in the classification of S&C Maintainer/S&C Wireman.” In a letter or protest dated January 12, 2009, the Union’s Senior General Chairman, Mr. Bryan Strong, expressed concern that fast track or college employees could not properly assume the posted positions in preference to laid off S&C Helpers, stressing that the fast track employees do not have any seniority date until such time as they complete six months of work as an S&C Helper, as is provided for all new employees under the terms of article 8.6 of the collective agreement.

In ensuing correspondence the Company took the position that it was entitled to issue bulletins which would allow fast track employees to establish seniority dates in the classification of S&C Maintainer/S&C Wireman. That resulted in the filing of the instant grievance. The Union maintains that the temporary sixty day positions created were a deliberate and artificial attempt to avoid the fast track employees from being forced into layoff.

The Company takes a different position. Its representatives sharpen the focus somewhat on the evolution of the positions of S&C Maintainer Helper and S&C Helper, noting that the latter position was historically a lower classification than S&C Maintainer Helper. They acknowledge that from 1976 until the end of 1996 the flow of employees to qualified status as S&C Maintainer/Wireman came from the ranks of the S&C Maintainer Helper. They also indicate that as of an agreement dated August 22, 1975, an understanding was reached whereby employees in the categories of S&C Maintainer Helper and S&C Helpers would be designated as “regular employees” or “trainees”. More particularly, employees hired on or before January 1, 1975, designated as “regular employees” would not be compelled to undertake training to attain the rank of S&C Maintainer/Wireman. “Trainees”, being hired after that date, would however be required to enter the training program for Maintainer/Wireman qualification. Should they fail in the program through two attempts the Company could release them from service.

While the position of S&C Maintainer Helper provided the bulk of employees flowing to the position of S&C Maintainer/Wireman in the twenty year period between 1976 and 1996, a substantial reorganization in 1999 all but eliminated the position S&C Maintainer Helper. That development necessitated a change in the way recruitment and training would be administered. It is as a result of those developments that the parties mutually developed the Apprenticeship Program reflected in their Memorandum of Settlement (MOS) dated October 15, 1998, reproduced above. The Company’s representatives stress that from the very outset of the Apprenticeship Program the parties agreed that the apprentices should be sheltered from staff reductions, as reflected in paragraph 4 of the 1998 agreement. In the result, contrary to the general language of article 10 of the collective agreement which governs layoffs in seniority order, employees in the Apprenticeship Program, which by that time were only S&C Helpers, were given a form of “super seniority” which effectively allows them to remain in the program until they have completed it, notwithstanding that more senior employees may have been laid of. That, it appears, was in recognition of the fact that the training program is sufficiently rigorous that people within it must be afforded an uninterrupted opportunity to complete their training to the point of qualification as S&C Maintainer/Wireman.

The unchallenged representation of the Company is that both parties encountered significant difficulties with the administration of the Apprenticeship Program as conceived in 1998. As senior S&C Helpers were forced into the Apprenticeship Program, many of them encountered difficulties in completing it, to the apparent point of a 25% failure rate. As not all employees have the training and/or aptitude for the higher technical demands of the S&C Maintainer/Wireman position, including the fact that a number of S&C Helpers simply do not want to aspire to that qualification, it became necessary to contemplate a modification of the Apprenticeship Program. It is for that reason that the parties agreed to the 2001 amendment of Appendix 3, the Apprenticeship Program. That agreement relaxed the provisions of the original Program so that the forcing of the employees into the Apprenticeship Program would thenceforth be on a “senior may/junior must” basis. Additionally, of importance to the Company, it then gained the flexibility of recruiting 50% of its requirements for trainees directly from colleges rather than through the in-house program. There can be no doubt but that the amended arrangement was advantageous to the Company, as well as to the employees, as some fifty-five employees were eventually recruited through the college ranks since 2001. It is also not disputed that the 50% ratio could be exceeded once the ranks of S&C Helpers hired before January 2001 were exhausted on a particular district. That, indeed, was effectively codified into a letter of understanding dated December 19, 2003 when the following provision was agreed to:

1. The Company may recruit 50% of its Apprenticeship requirements through colleges rather than the S&C Helper ranks on a District-by-District and yearly basis (calendar years). On each District, once all grandfathered S&C Helpers (those hired prior to January 1, 2001) have been provided the opportunity to enter the program, the Company will have the ability to recruit up to 100% of its Apprentice requirements on that District through colleges. New hires (those hired subsequent to January 1, 2001), will not be entitled to the in-house Apprenticeship Program unless offered by the Company.

(emphasis added)

The Company stresses that the entire thrust of the 2003 letter of understanding is to recognize that the Apprenticeship Program applies both to in-house recruits and to people hired directly from the colleges. In that regard it points to paragraph 6 of the agreement which reads as follows:

6. All items listed in Appendix 3 will apply to apprentices hired through the in-house program and through colleges.

Final adjustments relevant to this dispute were further agreed between the parties in September of 2004. It had by then become apparent that certain S&C Helpers had repeatedly declined the opportunity to enter the training program. It seemed problematic to continue to reserve to them indefinitely guaranteed entry into the program, as they had repeatedly affirmed that they had no desire to become S&C Maintainers. The parties then agreed to the following language:

The grandfathered Helpers that have not entered the program after three entrance offers have lapsed, upon ratification, will not be entitled to enter the program.

Secondly, in the same adjustment, the parties affirmed the standing rule that apprentices are not to be affected by staff reductions. However, they reduced the period of that protection to a maximum of fourteen months rather than the previous eighteen months. From that time paragraph 4 of Appendix 3 has read as follows:

4. While in the Apprenticeship Program, Apprentices will not be affected by staff reductions; that is, they will be allowed to continue in the program even though senior employees may be on lay-off status. Such time not to exceed 14 months from entry into the Apprenticeship Program.

The Company profoundly disputes that college recruits are somehow not included in the Apprenticeship Program. While it acknowledges that they do not fall under the collective agreement during the initial four-month period of classroom training, it submits that once they come onto the Company property and begin work as S&C Helpers under the terms of the collective agreement, notwithstanding that they do not have seniority status until they have completed six months of work (like any employee) they are nevertheless at that time employees who fall under the Apprenticeship Program. The Company’s representative argues that that it so notwithstanding that the 2003 MOS was not expressly continued within the terms of the collective agreement.

In support of that view the Company’s representatives point to what they qualify as a significant email communication from the Union to the Company dealing with that precise question. It appears that in July of 2005 a question arose as to whether trainees, including the fast track or college trainees working on the property and required to travel on a rest day as part of their training, would receive travel time premiums as provided in paragraph 9 of the Apprenticeship Program, as contained in Appendix 3. That question caused an exchange of correspondence between representatives of both parties. The Company’s representative, E.S. Training Specialist, Human Resources, Mr. Bryan D. Pinkney communicated by email to the Union’s Local Chairman Tim Kaye expressing the Company’s position that article 11 of the collective agreement does not apply to any apprentices and that paragraph 9 of the memorandum of agreement should govern. Three days later, on May 29, 2006 Mr. Kaye responded to Mr. Pinkney that he believed that:

The fast trackers are not covered by the in-house apprenticeship rules. I therefore believe that they fall under article 11.

To that Mr. Pinkney responded:

The fast trackers are unionized the first day of O.J.T. [on the job training] and to the best of my knowledge as such are effected [sic] by all Apprentice rules that would apply to any IBEW employee. Glenn and David: If I am mistaken please let me know.

To put finality to the question, on July 11, 2006 S&C Manager Glenn Mullally emailed Mr. Kaye to ask:

Was this resolved to your satisfaction? If not can you send me the original correspondence you sent to Brian Pinkney so I can review and advise the company position.

The following day Mr. Kaye responded to Mr. Mullally as follows:

Glenn;

I spoke to Kevin on this subject and in the interest of not complicating things by not having to [sic] many different rules we are willing to accept that once a fast tracker is on the property the apprentice rules apply.

The Company stresses the significance of the foregoing statement by the Union. It notes that Mr. Kaye affirmed that he had verified the Union’s position with then Senior System General Chairman Kevin Kearns and that he copied his communication to Mr. Mullally to Mr. Kearns as well as to Western Region Representative Bryan Strong who is now the Senior System General Chairman. In other words, in the Company’s submission the communication from Mr. Kaye must be viewed as an acknowledgement from the highest ranks of Union officers responsible for the administration of the collective agreement. That communication, made during the term of the current collective agreement, acknowledges that once college recruits leave the classroom portion of their initial training and come onto the property to work as S&C Helpers in furtherance of their apprenticeship they fall under the terms of the Apprenticeship Program.

I turn to consider the merits of the dispute. In doing so I reiterate that the narrow issue to be resolved is whether the protective provisions of Appendix 3 of the collective agreement, whereby apprenticeship trainees are to be protected against job reductions, notwithstanding their seniority, to the point of completing their training and gaining seniority status as S&C Maintainer/Wireman, apply to the college recruits once they work on the property.

It must be acknowledged at the outset that the arrangement which has been worked out between the parties for the purposes of training apprentices is to some degree unusual, to the extent that college recruits are initially hired into a classroom training program during which they form no part of the bargaining unit, and are compensated at rates apparently inferior to those found under the collective agreement. At that point in time, while the Union may have had some involvement in allowing for their recruitment, as reflected within Appendix 3, it does not represent them for the purposes of the Canada Labour Code or the collective agreement, it receives no dues from them and they in turn can assert no rights under the collective agreement. However, it must be evident that the situation changes significantly the day they set foot on Company property to begin on the job training doing the work of S&C Helpers. It is not disputed that as of that moment, while they may not have seniority until such time as they complete six months of service, a requirement for all employees, they do fall under the terms of the collective agreement and the Union becomes their exclusive bargaining agent. Indeed, the very purpose of that arrangement is to ensure that they can progress through the training process to become certified S&C Maintainers/Wiremen, a key classification within the Union’s bargaining unit.

If the Union’s interpretation of the application of Appendix 3 is accepted, results would flow which are manifestly counterintuitive to sound business practices acknowledged by both parties within the framework of Appendix 3. Within the Apprenticeship Program so framed both parties have recognized the importance of protecting apprenticeship trainees during the bad weather of job reductions, ensuring that they are able to continue in their work notwithstanding that non-trainee employees with greater seniority may be laid off. That is a concept, whether it is described as super-seniority or otherwise, which the Union has categorically accepted, at least insofar as it would apply to those people they would characterize as “in-house” trainees. However, should the Union’s interpretation prevail, the Company would find itself required to disregard the college trainees and retain in service those S&C Helpers who have expressly declared themselves to be entirely uninterested or unsuited to be trained for S&C Maintainer/Wireman qualification. They would effectively push from the workplace the college recruit apprenticeship trainees and frustrate the original intention of the amended Appendix 3 whereby the Company could rely on its discretion to hire more qualified apprenticeship candidates directly from the college ranks and ensure that they move undisturbed to the completion of their apprenticeship.

The Union makes much of the fact that the 2003 MOS, a document which expressly recognized that the Apprenticeship Program applies to in-house trainees and college recruits, was not renewed into the terms of the current collective agreement. Its counsel suggests that that fact settles the grievance in the sense that the fast track employees can no longer assert any protections under the terms of the collective agreement, including Appendix 3. The Arbitrator has considerable difficulty with that submission, given the history and context in which the provisions of the Apprenticeship Program have evolved over the years.

Firstly, as a general matter, the Union’s position raises substantial unanswered questions as to the status of a fast track employee who has completed his or her classroom training and is “on the property” performing work within the bargaining unit as an S&C Helper in furtherance of his or her apprenticeship. The Union simply cannot deny that from that point forward those individuals fall within its membership, are entitled to the protections of fair representation under the Canada Labour Code and, most significantly, are entitled to the protections of the collective agreement. That is so notwithstanding that they have not yet attained full seniority status. It is perhaps more accurate to say that they have inchoate seniority which is being earned through the completion of their first six months of active employment in the bargaining unit.

I find it somewhat artificial to suggest that Appendix 3 has no application to them and, as a document between the parties, is effectively unaware and unconcerned with respect to their status. Firstly, it must be acknowledge that their very existence flows from the provisions of Appendix 3, the terms of which expressly recognize the Company’s discretion to hire college recruits directly into the Apprenticeship Program. It is not insignificant that that arrangement came into being through the Union’s agreement and that it was refined over time to afford a significant degree of job protections to S&C Helpers who would otherwise have lost their employment because they could not successfully complete the training program when they were all forced into it. In my view a fair understanding of Appendix 3 must recognize that in its present form it reflects a sophisticated understanding between the parties in respect of the balancing of their mutual interests. Against that background there is a distinct air of unreality about the Union’s position which would effectively deny any collective agreement apprenticeship status to the fast track employees, employees expressly recognized by the terms of Appendix 3, at a time when they are Union members working under the terms of the collective agreement in furtherance of their apprenticeship training.

While counsel for the Union is correct in noting that while the 2003 MOS expressly recognized that the fast track employees had the protections of the Apprenticeship Program, I find dubious the argument that the non-renewal of that document into the text of the current collective agreement is somehow fatal to the suggestion that the Apprenticeship Program can now have any application to the fast track employees. In my view the 2003 MOS must be understood with a view to its immediate purpose at the time, which included recognizing the ability of the Company to recruit up to 100% of its apprentice requirements once grandfathered employees have been given the opportunity to enter the program, and ensuring that certain grandfathered S&C Helpers be afforded a seniority date one day ahead of external candidates. In the Arbitrator’s view the provisions of paragraph 5 of the 2003 MOS are best understood as an expression of a concept which the parties always believed should be the general rule. In the result, for all practical purposes all aspects of the 2003 MOS need not have been reinserted into the collective agreement, in light of changing circumstances and other adjustments. However it does, in my view, reflect a historical record of the general understanding of the parties concerning the application of Appendix 3, a record that can inform the current dispute. I find it difficult to conclude that the non renewal of the statement that college apprentices are covered by the apprentice rules reflects a conscious agreement of the parties to reduce their rights and leave them in a state of limbo.

If there is any doubt about that proposition, I am satisfied that it is fully laid to rest by the communication between the parties concerning the payment of travel/training premiums. The communications which took place surrounding that issue included the involvement of the highest officers of the Union. That resulted in a reasonable statement from the Union to the Company, during the currency of the present collective agreement that: “… once a fast tracker is on the property the apprentice rules apply.” The Arbitrator cannot see how it could be otherwise.

For reasons touched upon above, I would be inclined to come to the same conclusion, even without the express written acknowledgement of the Union. The communication of Union officer Tim Kaye to Company officer Glenn Mullally does, however, reflect a common sense conclusion which in my view is compelled by a fair reading of the history and content of the Apprenticeship Program. Very simply, the parties never intended that fast track apprentices emerging from the classroom training, coming to work on the property as S&C Helpers, would be the labour relations equivalent of stateless people. On the contrary, at that point they must be viewed as assuming full status as members of the bargaining unit with the unqualified protections of the collective agreement, including Appendix 3. As reflected in the terms of article 8.6 of the collective agreement, like all employees they must await the passage of six months’ active service to establish seniority rights. That, however, does not deprive them of the protections of the collective agreement, including Appendix 3.

On what basis can it be concluded that the apprenticeship trainees working on the property after recruitment from the college ranks cannot invoke the protections of the Apprenticeship Program which has evolved through the provisions of Appendix 3 of the collective agreement? Whether from a purposive standpoint or from a reading the history and text of the existing provisions of Appendix 3, the Arbitrator can see no basis for any responsible conclusion to the effect that the fast track employees are essentially deprived of the protections of the Apprenticeship Program once they begin to work within the bargaining unit. In my view it would require clear and unequivocal language within the terms of the collective agreement to support such a counter-intuitive conclusion. In the result, I am persuaded that the position of the Company is to be preferred and that, as acknowledged in the Union’s own written communications to the Company, the better view is that the Apprenticeship Program rules do apply to the fast track college employees once they have commenced work on the property as members of the bargaining unit. Those rules include protections against job reductions.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Ottawa this 30^th day of November 2009.

__________________________

MICHEL G. PICHER

ARBITRATOR