SHP - 394
IN THE MATTER OF AN ARBITRATION
B.C. RAIL LTD.
THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL NO. 170, METAL TRADES DIVISION
SOLE ARBITRATOR:John Kinzie
APPEARING FOR THE UNION:
Theodore Arsenault – Counsel for the Union
APPEARING FOR THE COMPANY:
Wayne Carkner – Counsel for the Employer
A hearing in this matter was held in Vancouver, B.C. on March 5, 1992.
On December 5, 1991, the Employer terminated the apprenticeship agreement between itself and Darryl Alexander as well as terminating Alexander’s employment. Alexander has grieved both of those decisions.
The grievor was employed as an apprentice in the electrical trade on February 16, 1987. On September 20, 1989, the Employer terminated his employment stating in part that:
Assessments of your performance indicate that you continue to lack in the desire, the aptitude, and basic skills necessary for improved performance. Your performance at trade school has been marginal at best, relative to marks expected by B.C. Rail apprentices.
In fact, the grievor had failed his Level 2 exams at the B.C. Institute of Technology during the winter of 1987. He subsequently passed them in June, 1988.
The grievor grieved that termination and in my award, B.C. Rail Ltd., Award dated June 4, 1990, I concluded that the Employer did not have just and reasonable cause for its action. I ordered that it reinstate the grievor to his employment as an electrical apprentice and resume its obligations under the grievor’s apprenticeship agreement.
Since his reinstatement, the grievor has completed four years as an electrical apprentice with the Employer. He has worked more than 7,200 hours for the Employer in that capacity as required by Rule 27.2.1 of the collective agreement. However, the grievor has not qualified for his electrical trade’s certificate because he failed his Level 4 exams in October, 1991.
After that failure, the Employer conducted an investigation in accordance with Rule 20.22 which requires that an employee with more than 45 working days cumulative service not be discharged without being given a proper investigation. The ultimate result was the Employer’s decision to terminate the grievor’s employment and his apprenticeship agreement on December 5, 1991.
There is a specific and limited issue before me at this stage in the proceeding.
The Employer contends that it has met all of the obligations imposed on it by Rule 27 of the collective agreement to provide the grievor with 7,200 hours of apprenticeship in the electrical craft and the opportunity to secure a complete knowledge of the trade as per the agreed upon apprenticeship training programs. However, the Employer submits, the grievor has not met the obligations imposed on him to complete his apprenticeship training and obtain his trade’s qualification certificate within the prescribed four year period. This failure requires his automatic termination because an apprentice does not hold any seniority rights, other than as an apprentice. Thus, he is not entitled to bump into any other classifications under the agreement.
The Union disputes the Employer’s assertion that it was entitled administratively to terminate the grievor’s employment as an apprentice. It argues that the Employer must establish that it had just and reasonable cause for its actions. It maintains that automatic or administrative terminations are only justified where there is clear and express language in the collective agreement authorizing such action. In this case, the collective agreement would have to provide that if an apprentice did not complete his apprenticeship program in four years or if he did not successfully pass his Level 4 exams within the four year period, his apprenticeship agreement and his employment would be terminated. This collective agreement, the Union says, does not contain such language, and therefore the grievor’s termination is not justified as an administrative termination. The Employer’s decision is reviewable under the just and reasonable cause standard.
The Employer has faced this issue before with the Canadian Union of Transportation Employees, Local 6 which represents the maintenance of way employees on the British Columbia railway. Under its agreement with that union in 1982, Article 9.9 provided that:
Notwithstanding the provisions of Section 11.1 of Article 11 and except as may be mutually agreed between the appropriate officers of the Railway and the Union, an employee absent from duty without written authority for a period in excess of five (5) working days shall be considered as having left the services of the Railway of his own accord and the Railway shall be under no further obligation to such employee.
In British Columbia Railway Company, Award dated June 9, 1982 (Hope), the arbitrator dealt with the grievance of Parmjit Singh Randawa who failed to return to work from an authorized leave of absence in India on the date specified, with the result that the Employer terminated his employment under Article 9.9. With respect to the issue that is before me, Arbitrator Hope commented that:
In a consideration of the decisions of the Court of Appeal in the Valley Rite case and the Ontario Divisional Court in the Toronto Hydro-Electric case I extract the direction that an arbitrator, as a matter of law, must consider whether the parties have concluded as a matter of agreement that a particular category of conduct is conduct deserving of dismissal and hence beyond review by an arbitrator. It is my understanding of that high authority that the intention to make dismissal mandatory in response to particular conduct must be expressed in clear and unequivocal language both as to the category of conduct and the fact that mere proof of the conduct will amount to proof of just cause. The parties have agreed unequivocally that an employee who is absent from work without written authorization for a period of five days is subject to dismissal in the discretion of the Employer in the sense that the Employer is entitled to treat the absence as a voluntary quit.
[At pp. 117-118]
He subsequently concluded that:
I must conclude on the evidence that the grievor was absent in excess of five days without written authority and in circumstances where the absence of written authority is not excused. In the result the grievance must be dismissed. I can say that if the matter came before me subject to the full scope of arbitral review I may have found the circumstances appropriate for the imposition of some lesser penalty. In particular I note that the absence of the grievor from work did not affect the work routine and was without pay. Clearly his conduct was deserving of discipline but I would have been inclined to impose a lengthy suspension upon him as an appropriate response to the circumstances. I do not find it open to me to engage in such a review, however, and I find that the Railway has acted properly within the rights vested in it under Article 9.9.1
[At pp. 35-36]
I agree with the arbitrator’s reasoning in British Columbia Railway Company, supra. In this case, however, there is not the clear and unequivocal language that was found in Article 9.9 of the collective agreement between the Employer and the Canadian Union of Transportation Employees, Local 6. There is not a provision in the collective agreement between the Employer and the Union that states that an apprentice’s employment will be considered terminated if he does not complete his apprenticeship training within a certain prescribed period or if he fails his Level 4 exams. Such express language would be necessary for the Employer’s contention in this case to succeed, and the collective agreement does not contain it.
In summary, while the grievor’s failure of his Level 4 exams considered in light of his previous apprenticeship history suggests a strong prima facie case for termination of his apprenticeship agreement an his employment, the Employer’s decision to take those steps is not beyond arbitral review under the just and reasonable cause standard. Administrative termination without review is not authorized in this case.
It is so awarded.
Dated this 16th day of March, 19921.
(signed) JOHN KINZIE