SHP – 177
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Railway Company
Canadian Council of Railway Shopcraft Employees and Allied Workers
IN THE MATTER OF THE GRIEVANCE OF C. TODD
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
D. J. David
A. Y. de Montigny
And on behalf of the Union:
A hearing in this matter was held at Montreal on May 22, 1985.
The Joint Statement of Fact and Issue in this matter is as follows:
The dismissal of Apprentice Curtis Todd on January 5, 1984, in accordance with Rule 31.8 of Wage Agreement No. 51.
JOINT STATEMENT OF FACT
On January 5, 1984, Mr. Curtis P. Todd, Boilermaker Apprentice, was released from Company service for the reason that he failed to obtain the required passing grade of 65% on three occasions:
1) Once for work and testing in the classroom.
2) Twice for not having obtained a satisfactory evaluation on his work in the shop.
JOINT STATEMENT OF ISSUE
It is the position of the Union that Mr. Todd was treated unfairly, as he was given only two days between evaluations to show improvement with little guidance from his immediate supervisor. The Union requests reinstatement with compensation.
The Company denies the claim.
At the hearing in this matter, the union sought to amend the Joint Statement by adding the following:
In the absence of a proper investigation pursuant to Rule 23.30 and the Company’s consistent application of its apprenticeship policy, the Union requests that Mr. Todd be reinstated with compensation and that he be afforded the opportunity of a proper evaluation.
The company objected to the amendment of the Joint Statement. It appears, however, that the union, which had prepared the document, noticed what it considered to be an error in it as soon as it was returned, signed, by the company, and promptly sought to have it amended. While the company is not required to agree to the amendment, the statement may now be considered as an "ex parte" statement. The union, however, should not, in the circumstances described, be limited to the matters set out in the signed document, and should not be prevented from putting forward its argument with respect to the application of Rule 23.30. That is, I consider that in the circumstances of this case, I am not strictly bound by the signed Joint Statement.
The grievor entered the company’s service in November, 1980, and began the standard four-year program as a Boilermaker Apprentice. The program includes a variety of on-the-job training assignments, and a number of classroom training periods. Work is assessed, and assignments and tests are marked. The passing standard both for shop and classroom work is 65%. The company’s policy, as the grievor was aware, is that an apprentice will not be retained in the program or in the employ of the company if, on three occasions during the course of his program he fails to attain the required standard.
The grievor was marked on five occasions in 1981, three in the spring (when he would appear to have been in the medium range of the total group of apprentices), and two in the fall. In respect of his work in miscellaneous metal fabrication, the grievor only attained 61%. He was interviewed with respect to that, and reminded of the requirements of the program.
In January, 1982, at the conclusion of an assignment on specific diesel repairs, the grievor attained the mark of 65%, which was, of course, at the very borderline of failure. The grievor was graded on five other occasions in 1982, and on each occasion his mark was satisfactory, although it may be noted that he did not complete the drawings required for certain classroom work, and was advised that greater effort was required.
On December 15, 1983, the grievor received a grade of 62% in respect of his training assignment, the grievor being substantially behind in the submission of his drawing lessons. Shortly thereafter, on December 20, the grievor was evaluated with respect to his four month on-the-job training assignment on structural boiler work. The grievor’s mark in respect of that work was 53%. A question was raised as to the fairness of that evaluation, but the material before me does not establish that it was arbitrary or discriminatory, or that management was not within the exercise of its discretion in assessing the grievor.
It was argued that the third failing mark came too quickly after the second for the grievor to have had an opportunity to improve himself. In all of the circumstances, however, I do not consider that it can properly be said that the grievor was unfairly treated. He was aware of the requirements of the system, he had failed on one occasion in the past and had a borderline mark on another, and he had been spoken to with respect to his work being in arrears. The two last failing marks relate to separate aspects of the apprenticeship program and reflect in each case performance over a period of time.
Article 31.8 of the collective agreement provides as follows:
31.8 An apprentice must throughout his apprenticeship continue to display the desire and aptitude to learn the trade or he will not be retained as an apprentice.
This provision would appear to impose a certain obligation on apprentices, coexisting with and parallel to the obligation of meeting the standards of the apprenticeship program. To the extent that the grievor’s failure to meet those standards, and to submit required work may be considered a failure to display the desire and aptitude to learn the trade, then it would appear that the company was entitled no longer to retain him as an apprentice.
Article 23 of the collective agreement deals generally with the matter of seniority. Article 23.30 is as follows:
23.30 An employee with more than 65 working days cumulative service shall not be discharged without being given a proper investigation.
This provision must be read together with that in article 23.01, which provides that a new employee shall not be regarded as permanently employed until he has completed 65 working days cumulative service. It is, in effect, a provision for a "probationary" period, and makes it clear that the employer need not establish just cause for the discharge of such an employee. The grievor, of course, was not a probationary employee, and could only be discharged for just cause.
The "investigation" referred to in article 23.30 would appear to be that provided for in article 28.1, which states that "no employee shall be disciplined or discharged until he has had a fair and impartial investigation and his responsibility established". In the Moquin case between the same parties (17 July, 1978), I indicated doubt as to whether article 28 was applicable in a case such as this. In that case, too, an apprentice had been dismissed in the exercise, as the company alleged, of article 31.8. It was held on the facts of that case that the company was not entitled to rely on that article, and that it was improper for it to dismiss the grievor. The facts in the instant case are different, and as I have indicated, it was proper for the company to dismiss the grievor, pursuant to article 31.8.
It was argued in the instant case that article 23.30 provides a blanket prohibition against dismissal of any permanent employee without a proper investigation. In my view, the article, read in context, cannot properly be given this effect. It deals not with dismissal but with discharge, and while the two terms may in some contexts be used interchangeably, they often have different meanings in labour relations matters, and I think that they do under this collective agreement. It is specifically provided that apprentices who do not meet the obligation imposed by article 31.8 may "not be retained", and the apprenticeship program calls for those who do not meet its standards (as the grievor did not), to be offered the opportunity to resign, or to be dismissed. Such persons are not "discharged", and are not alleged to be guilty of an wrongdoing for which their "responsibility" must be established through an investigation. In my view, neither article 23.30 nor article 28 imposed an obligation on the company to conduct an investigation in the instant case.
There was, I find, no violation of the collective agreement, and for all of the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 5th day of June, 1985.
(signed) J. F. W. Weatherill