SHP - 82



Ontario Northland Railway

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey



A. Rotondo



A hearing in this matter was held in Montreal on October 9, 1980.



The Joint Statement of Issue and Joint Statement of Fact in this matter are as follows:

Joint Statement of Issue

Company policy with respect to the selection of apprentices

Joint Statement of Fact

On January 16, 1980, the union filed a grievance on behalf of helpers and car cleaners claiming that these employees were "unjustly treated because of the unfair practice of choosing apprentices and establishing their seniority". The company maintains throughout that there was no violation of the Collective Agreement and that the term "unjustly treated" has to do with the (?) of discipline. The company reserved the right to question the arbitrability of the matter.

The matter relates to selection of certain persons to be Apprentice Carmen. The persons concerned were all employees of The Company at the material times, some in this bargaining unit (as car Cleaners or Carman Helpers), some in another (as Labourers). The (?) issue would arise, however, even with respect to those who had not previously been employed by the company.

In appointing persons as Apprentice Carmen, the company did not give effect either to seniority in the bargaining unit or to service with the company. In certain cases, employees with less service or seniority were appointed to Apprentice jobs, while those with greater service or seniority were passed over. The union contends that in such cases the senior employees were treated unjustly, and it seeks relief by way of arbitration. The company contends that the matter is not arbitrable, and that in any event there was no violation of the collective agreement.

The matter of Apprentices is dealt with in article 31 of the collective agreement. Article 31.1 is as follows:

Applicants must be able to speak, read and write the English language (or French in the Province of Quebec). They must be able to successfully pass Company entrance examinations, including a mechanical aptitude test. All other basic qualifications being equal, children of employees will be selected as apprentices in preference to other applicants.

There is no other provision relating to the selection of applicants. The union suggested that the last sentence of the article might be contrary to the Canadian Human Rights Code, but it is not clear to me that that is the case, and in any event that question is not before me. It is not alleged that there was any violation of article 31.1 as such.

Article 28.6 of the agreement is one of a number of provisions dealing with the grievance procedure. It provides that where an, employee subject to the agreement believes he has been "unjustly dealt with", he may present his "alleged grievance" to his supervisor, and that if the, matter is not adjusted then, he may present it to his local union representative, who may then progress the grievance in writing pursuant to article 28.7. No doubt complaints of the sort involved here could be raised as grievances in this way.

That is not to say, however, that such complaints, if not adjusted within the grievance procedure, may proceed to arbitration. The arbitration of grievances is provided for by article 29 of the collective agreement. The sorts of matters which may be referred to arbitration are defined in article 29.1 as consisting of "A grievance concerning the interpretation or alleged violation of this Agreement, or an appeal by an employee that he has been unjustly disciplined or discharged."

The grievance in the instant case simply does not come within that definition. It is not a claim that article 31.1 has been violated, and apart from that there appears to be no provision in the collective agreement restricting the company in its selection of persons to he Apprentices. Article 28.6, which makes the grievance procedure available to employees who believe they have been unjustly dealt with is a procedural provision and not a substantive one. It does not impose any obligation on the company other than that of dealing with grievances. There is no allegation that that obligation has not been met.

The instant grievance, then, is not one concerning the interpretation or alleged violation of the collective agreement (and of course it does not relate to discipline or discharge) and accordingly it is not one which may proceed to arbitration. It is true that there may be said to have been an "alleged violation" of article 28.6, in that it was argued that the employees in question were "unjustly dealt with". I have dealt with that argument above, noting that that is simply a procedural provision, and there is no issue raised as to the procedure followed.

There has been no violation of the collective agreement, and the grievance must accordingly be dismissed.

DATED AT TORONTO, this 30th day of October, 1980.

(signed) J.F.W. Weatherill