BETWEEN

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Professor Frances Bairstow

Did the Company violate Rule 52.1 of Wage Agreement No. 16 when they failed to award a bulletined position to Electrician D. Simpson?

The Company and Union submitted a joint statement of Fact as follows:

The Union has based its case on two arguments.

1) Is it proper, under Wage Agreement 16 to require a "C" licence for the bulletined position of electrician in the Area Maintenance Department?

2) If the "C" licence is required, then the payment requiring a "C" licence should be maintained as in the Construction industry.

The Company employs approximately 1400 electricians, the greater majority of which work on the installation, repair, rebuilding, wiring, maintaining and inspection of electrical machinery and components in diesel locomotives and other railway rolling stock. These electricians are employed in various railway shops across Canada.

A small number of electricians work in Area Maintenance Departments. These are geographic areas covering a host of railway facilities. There are approximately 15 such departments in the Railway. The work includes installing, repairing and maintaining electrical installations in the various railway buildings and facilities. Electricians in these maintenance departments do not work on diesel locomotives and other railway rolling stock.

When a vacancy occurs in Montreal, the Company, as required under the collective agreement, bulletins such vacancy outlining the position involved, whether temporary or permanent, the hours of work, the days off, and the requirements of the position including qualifications. The particular bulletin involved in the grievance before us, required that the successful applicant "must hold a "C" licence from the Board of Examiners of Electricians". This requirement was not a new one, but has been standard for all bulletined vacancies of electricians in the Area Maintenance Department since at least 1962.

That Act defines railway stations as public buildings and requires that electricians working on electrical installations in such public buildings hold a "C" Licence issued by the Board of Examiners of Electricians.

The Union bases its claim on its interpretation of the language of Rule 57.1 of the wage Agreement No. 16. The Rule reads as follows:

In support of its argument, the Union points out that nowhere in this Rule is there any reference to "C" Licence. If this is a requirement, the Individual should have been afforded and granted the "C" licence under Rail sponsorship during the individual’s term of apprenticeship.

So far as Mr. Simpson is concerned the Union maintains that he is a "Fully Qualified Mechanic" under the terms of Wage Agreement No. 16, because Rule 23.9 (c) reads:

The Union points out that the "C" Licence is one required in the construction industry and is paid by decree in the Province of Quebec, and is far in excess of the rates paid on the CN Rail; and should the CN Rail have the right to demand a "C" Licence under Wage Agreement No. 16, where one is not required, than CN Rail should be instructed to pay the rate in accord with the "C" Licence Law.

The Union claims that in other provinces where such work is performed in various locations of the Railway, that Mr. Simpson’s qualifications would be sufficient to entitle him to be considered a "Fully Qualified Mechanic". Here in Quebec, Mr. Simpson is deprived of being entitled to work on construction and therefore earns a lower rate than a person considered to be a "C" mechanic in the "eyes of the Quebec" authorities or in accordance with Quebec requirements. Therefore, since Mr. Simpson is so deprived, he should be given every opportunity to qualify. For support, the Union points to Rule 31.7:

The Company based it’s position on the reasoning that the qualifications for the electricians were set in accordance with the job and the law. Since Mr. Simpson does not have either a "C" licence or the certificate required, he had to be refused when he bid on the job.

Section of the 1968 Quebec Electricians and Electrical Installation Act stipulates:

The basis of the Union’s case rests on the fact that the Agreement does not require Mr. Simpson to hold a "C" licence. Mr. Simpson has the qualifications necessary for the posted position and is being unfairly deprived. If the Company persists in its refusal to give him the position of electrician in the Area Maintenance Department, then he should be given the opportunity to acquire further training.

The basis of the Company’s position is that it is not the Company but the Province of Quebec, in its law governing electricians which requires the possession of a "C" licence, based on standards laid down by its own authorities. The Company must conform to the laws of the Province. It has no choice in the matter.

Following the first arbitral hearing on February 24th, the Union requested arbitral leave to submit further data in support of its argument that Mr. Simpson was deprived of his opportunity to be employed as an Electrician in the Area Maintenance Department. That supplementary data was sent to the Arbitrator and Company on April 7th and was followed by a full day Hearing on April 24th.

In the second Hearing, Mr. Ed Forzley, General Chairman of the Union’s Prairie and Mountain region, testified that in the four provinces west of Quebec, Ontario, Manitoba, Saskatchewan and Alberta, similar provincial licensing provisions exist in the statutes, but there is no requirement of licenses as such. The provincial authorities are satisfied that as long as the worker can do the job as Electrician, he has met the standard requirements. In those localities, then, this is all that the Canadian National requires and workers with the same skill levels as Mr. Simpson are employed as electricians.

The supervisor of the Area Maintenance Department, Mr. M. Baxter also testified in the second Hearing. Mr. Baxter has acted as general foreman in the Area Maintenance Department since 1962.

In its supplementary submissions the Union reiterated its earlier contention that Mr. Simpson was the object of discrimination by the Company, since they insisted that other employees who did not possess the "C" certificate were employed as Electricians in the Area Maintenance Department. These Electricians were all paid the same rate of pay and were all doing the same work. The basis of their argument was that if there was such a requirement, i.e., the "C" license, that there was inconsistency in the way the Company was applying the requirement.

The Union added that Mr. Simpson was given a certificate by the CNR as a fully qualified journeyman in 1968 in the Province of Quebec. Mr. Simpson is also the holder of an International Brotherhood of Electrical Workers diploma as a qualified electrician. According to the Union, this proves their contention that this requirement of the "C" license is a Company requirement which the Company is unilaterally insisting upon.

To bolster its argument on discrimination against Mr. Simpson, the Union referred to other employees who did not possess "C", licenses and had still been employed in the Area Maintenance Department. They were Mr. Robert Ault, employed in 1969 and Mr. Graham Stone, 1963 to 1969, who did not have a "C" license.

In counter argument, Mr. Baxter testified that Mr. Ault bid on area maintenance work, but since he did not have a "C" license, he bid out. Mr. Ault had been an oiler who had been put in service in July, 1969. In 1970, Mr. Baxter as Foreman and the Local Union chairman agreed that Mr. Ault could come into the group but that the type of work he could do would be restricted until he obtained his "C" license. He never took the examination for the license and then shortly after left the employ of the CNR.

Mr. Baxter informed the Hearing that the "C" license in the Province of Quebec came into being in 1962. The Quebec Licensing Board (Offices of the Board of Examiners of Electricians and of the Inspection Service of Electrical Installations) was established in 1964.

After this, anyone in the work gang was encouraged to take training in order to acquire their "C" license. Mr. Graham Stone did not take the exam and left the Company. Prior to that period he was working on automatic oilers after completing his apprenticeship.

Mr. Baxter testified that he was placed in charge of the Area Maintenance Department in 1966. From that time on, he acted consistently in seeing to it that no one did area maintenance electrical work unless he possessed a "C" license. Other electricians lacking the license were turned down for positions. At the present time there are twenty-four (24) electricians in the Area Maintenance Department. Twenty-three (23) do hold "C" license certificates. Only Mr. Langdale does not hold a "C" license. He has been an employee for about thirty-four years with the Company. But Mr. Langdale is limited to working only on the automatic oilers. He can’t be shifted to any other occupation. Mr. Simpson was turned down on his bid for the job in the Area Maintenance Department because he did not have a "C" license, although they recognize that he has finished his apprenticeship.

The Company rejects the comparison of the requirements of the Area Maintenance Department with those of the Electric Zone. The Electric Zone Department des not bulletin for electricians with a "C" license. It has twenty-seven (27) electricians, twenty-one (21) with a "C" license. The area Maintenance Department is not involved in transportation service work but in construction or maintenance work involving installations. This work comes under the direct jurisdiction of the provincial licensing authorities. Therefore, different restrictions apply and have applied since 1962 - restrictions placed by law, not a new requirement of the Company.

The Company maintains it is operating in accordance with article 57.1 of the Agreement between the parties which stipulates "any man who...is competent to execute the work to a successful conclusion will be rated as a journeyman electrician". It is the Company’s responsibility to decide who is competent in accordance with Article 57.1.

Despite the Union’s argument that the provincial law has since been revised to require a Certificate of Qualification, not a "C" license; the Company maintains that Mr. Simpson must still acquire the appropriate Certificate via the channel provided for in the law. He must pass an examination given by the Province of Quebec.

At the April 29th Hearing, Mr. Simpson presented a letter from the Province which advised him to be present on May 5, 1976 in a place where the proper examination was to be given. Mr. Simpson also testified that he had made many serious and determined attempts to up-date his qualifications in order to be eligible for the provincial examination. Mr. Simpson impressed the Arbitrator with his motivation and determination to qualify and has had unfortunate experiences through no fault of his own in having courses cancelled or unavailable to him. It might have been advisable for the appropriate officials of the Company to have made some energetic representations on his behalf to the provincial authorities to have facilitated his serious attempts to meet the qualifications which were required by the Board and demanded in the Agreement.

However, both Mr. Noble on behalf of the Company and Mr. Baxter testified and reported under questioning by the Arbitrator that if Mr. Simpson passes the May 5th examination, then he will be entitled to bid on the first available posted job in the Area Maintenance Department.

With respect, the Arbitrator must reject the request of the Union that she determine if a "C" license should be required or not. The determination of qualifications for positions is the responsibility of the employer except where matters of general health and safety are concerned or on so called "public works or public projects" which become the responsibility of the appropriate legal authorities. In this instance railway property is adjudged to be part of "public buildings". This effectively means that electricians working on such installations are subject to public law.

The Arbitrator can accept the Union’s contention that if Mr. Simpson were working in another province, e.g., Manitoba, he might be considered fully qualified as an Electrician. But laws on many aspects of human conduct and industrial practice differ from province to province. So long as the provincial authorities are given the responsibility to legislate and administer these areas of concern, companies must conform to such provincial laws, even though they may be inconsistent or differ from one location to another.

In the Miller grievance, the Arbitrator has reasoned and decided that the appropriate law, the Canada Labour Code must be supreme in determining the treatment, accorded a worker within its jurisdiction. Thus, in the Simpson case, the Quebec law is the determining, factor in whether Mr. Simpson is qualified or not. To rely on the law In one case where it favours the worker and reject It in another case where the worker feels deprived because of the operations would be capricious and a violation of the intent of minimum standards and legal protection. This the Arbitrator cannot do. She cannot substitute personal judgment in an instance where the law is mandatory.

The Arbitrator further finds that it is not within her arbitral powers to determine the rate which should be paid to Mr. Simpson, since she does not have the authority to determine whether Mr. Simpson should be required or not required to possess such a licence.

The Arbitrator is satisfied that the Company has proven its contention that it is not practising discrimination against Mr. Simpson, but that it is maintaining consistency in its treatment of electricians employed in the Area Maintenance Department and that Mr. Simpson will be given full consideration for employment as Electrician when the next opportunity arises within the Department, upon completion of Quebec requirements.

The grievance is denied.

Arbitrator

May 7, 1976