CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4080
BOMBARDIER TRANSPORTATION CANADA INC.
Claim on behalf of N. Gordon-Tenant that he was called out of turn while assigned to the spareboard.
JOINT STATEMENT OF ISSUE:
The Company cannot be bound by conditions outside of its control. A fully qualified train operator must have 2 years of experience as fully qualified commuter train operator to train a throttle trainee. Mr. Gordon-Tenant qualified in March 2011 and does not meet the requirements to train and does not qualify for any training or premium associated with training. The Company does not believe that it should be negatively impacted when an employee is unable to meet the criteria required to receive the training premium.
(SGD.) G. MACPHERSON (SGD.) A. BROWN
GENERAL CHAIRMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
M. Horvat –
A. Brown –
Manager, Human Resources,
D. Mitchell –
General Manager Operations,
There appeared on behalf of the
M. Church –
G. MacPherson –
AWARD OF THE ARBITRATOR
It is common
ground that the grievor was called out of his turn off the spareboard to
protect an assignment on
9.12 If a spareboard employee first out is not
sufficiently qualified to take the call such that it makes it necessary for the
call to be given to a spareboard employee not first out, for qualification
purposes the unqualified spareboard employee first out is sent to protect the
assignment with the qualified spareboard employee. Article 20.1 or Article 20.3
applies whether or not the unqualified employee is sent to protect the
assignment with the qualified employee. Effective
20.1 When training a throttle trainee or a fully qualified Train Operator during the familiarization, Train Operators will be compensated $4.50 per hour training premium, which will be executed in the calculation of overtime.
20.3 When in the OJT period of a new Train Operator, Train Operators will be compensated $4.00 per hour training premium, which will be excluded in the calculation of overtime.
In essence the
The Company submits that the provisions of article 20 can have no application to the grievor because he has less than two years’ service as a locomotive engineer. In that regard it relies on the following excerpt from the Railway Employee Qualification Standards Regulation made pursuant to the Canada Transportation Act, S.C. 1996 c. 10, s 15(b):
No railway company shall qualify a person as an on-job training instructor for the occupational category of locomotive engineer unless the person
(b) completes not less than two years service as a locomotive engineer, including at least three months service in the area where the locomotive engineer is to give the on-job training.
After considerable reflection, I am compelled to share the interpretation of the provisions reproduced above which is advanced by the Company. The wording of section 15(b) of the regulation is, in my view, clear and straightforward. A person is not to be qualified as a training instructor in relation to any training for locomotive engineers unless they have two years’ service as a locomotive engineer. In my view it is entirely appropriate to conclude that the use of the word “training” as found in articles 20.1 and 20.3 of the collective agreement is to be interpreted in a manner consistent with the regulation.
I cannot share
the characterization of what transpires under these provisions as the equivalent
of “piloting”, as suggested by counsel for the
In these circumstances I agree with the Company that the fundamental protections of section 15(b) of the Regulation which governs on the job training for locomotive engineers is properly interpreted to mean to that the grievor could not be qualified to perform training, including training in the form of familiarization. Indeed, it would appear that it is for that reason that the Company does not assign an unqualified locomotive engineer to accompany a person of the grievor’s experience who is given an assignment out of turn on the spareboard.
For all of the foregoing reasons the grievance must be dismissed.