In the Matter of Agreement 12 between the Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW–Canada), Local 100
And in the Matter of the Grievance of Andrew Attwell
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW–CANADA), LOCAL 100
CANADIAN NATIONAL RAILWAY COMPANY
Before: J. Leslie Wallace, Sole Arbitrator
For CAW, Loc. 100: Brian Stevens (National Representative, Toronto); Zoltan Czippel (Local 100 Vice-President, Mountain); Andrew Attwell (Grievor); Ken Hiatt (Local 100 President); Rob Martin (Location Chair, Edmonton)
For CNR: Ron Campbell (Manager, Labour Relations, Winnipeg); Ross Bateman (Director, Labour Relations, Toronto); Susan Blackmore (Senior Manager, Labour Relations, Edmonton); Rob Emond (Manager, Locomotive Reliability Centre, Edmonton), Grant Rodgers (Instructor, Edmonton)
Hearing: July 18, 2013, Edmonton, Alberta
Award: August 16, 2013
 This Award concerns the circumstances in which the Employer, CN Rail (“CN” or the “Company”), may terminate an apprenticeship and consequently the employment of the apprentice, under its current (2011-2014) Agreement 12 with CAW–Canada, Local 100 (the “Union”).
 On August 28, 2012, the Employer notified Apprentice Diesel Mechanic Andrew Attwell that his apprenticeship and employment were terminated for failure to display the desire and aptitude to learn his trade. Mr. Attwell was 19 years old at the time and approximately four months into his four-year apprenticeship period. He was employed at CN’s Walker Yards locomotive maintenance shops in north Edmonton.
 The Union grieves Mr. Attwell’s release. It seeks his reinstatement and financial redress. On December 13, 2012, I was appointed to hear this grievance by the Director General, Federal Mediation and Conciliation Service.
 On a preliminary issue, the Union requested that the Grievor’s name be obscured in this Award, for concern that disclosure of some of the facts might impair the future career prospects of this young man. The Company opposed the request. It will be already apparent that I decline the Union’s request. In my view, and at least where there is not agreement between the parties, the line between disclosure and non-disclosure of identity of a Grievor should generally be drawn at cases where extremely sensitive personal information (like medical or psychiatric history, to name the most common circumstances) would be disclosed. In other cases, like this one, the public interest in open justice weighs in favour of the normal practice, which is to identify grievors by name throughout.
 Mr. Attwell’s work history during his four months of apprenticeship with CN is set out in the Company’s written submission and is not in material dispute. Throughout this time he was posted in the Trip Centre, the portion of the Locomotive Reliability Centre devoted to minor inspections and day-to-day maintenance tasks like brake inspection and adjustment, and fluid top-ups. The relevant incidents the Company relies upon are:
· May 22, 2012: At an orientation session, Mr. Attwell publicly complained that the work of a Diesel Mechanic at CN was not what he had been led to believe when he was hired and advised that he intended to look for different work and leave CN. In a follow-up conversation with his manager Rob Emond he repeated the criticism. When Mr. Emond indicated that he could be released for his poor attitude and unwillingness to learn – Mr. Attwell was still on probation at the time – the Grievor asked Mr. Emond for another chance. Mr. Emond agreed.
· May 27, 2012: Just over a month into his apprenticeship, Mr. Attwell incorrectly set up a brake by failing to keep a brake piston’s travel within specifications. This is described by the Company as a “repetitive” task, and “the simplest job a mechanic does in his day”. He was coached in proper performance of the task and given a non-disciplinary PMRC (Performance Monitoring and Rules Compliance) notice.
· August 21, 2012: Instructor Grant Rodgers advised Mr. Emond that in his opinion Mr. Attwell was displaying a poor attitude and an unwillingness to learn in his instructional sessions. He told Mr. Emond that he had caught Mr. Attwell sleeping at his desk, texting from his cell phone and sitting in a location in the locomotive cab from which it was not possible to properly view the instructor’s demonstration. He advised Mr. Emond that Mr. Attwell had again left too much travel on a brake piston, only shortly after taking course instruction on that topic. He also related to Mr. Emond that Mr. Attwell has failed one of Mr. Rodgers’ unit tests and passed only on a second try. Mr. Emond warned the Grievor that he needed to improve his attitude and participation in class.
· August 23, 2012: Mr. Attwell failed two tests. In his Part 2A Functional Locomotive Brake Test, a practical test, he scored 78%. In the written portion of the Functional Locomotive Brake Test, an “open book” section of the examination, he scored 80%. The passing mark for both was 85%. Though the Company initially took the position that 85% is a passing mark mandated by Transport Canada, it is clear and admitted that in fact this pass mark is set by CN.
· August 27, 2012: Apparently because of the failed tests, Mr. Attwell was called to an investigative meeting with Supervisor Ralph Tassone. The purpose of the meeting was to investigate his “Failure to demonstrate willingness to learn as an Apprentice”. Union representative John Frederick attended with him. At the investigation, the Grievor admitted some, but not all, of the Employer’s criticisms, and offered some explanatory comments: Notably, that he had had permission to have his cell phone out in class but had not been texting; that unlike other students he had not had experience working on air brakes during his time in the Trip Centre; and that he was surprised at having a PMRC on his record for the May brake piston travel incident because the Supervisor had not identified the apprentice responsible for the incorrect brake setting.
 These comments did not result in any recorded follow-up investigation. Rather, on August 28, 2012, Mr. Emond by letter terminated the Grievor’s apprenticeship and employment. The explanatory portion of the letter says:
It is the Company’s position that you failed to comply with the requirement to continue to display the desire and aptitude to learn the trade as evidenced by your behavior and attitude prior to and during your recent training and your failure to pass two Transport Canada required Locomotive Safety Inspection Exams.
 Perhaps due to the fact that the Grievor was the subject of a formal investigative meeting on August 27, 2012, the Union initially took the position that this was a termination governed by Rule 27. This is the lengthy collective agreement clause governing discipline or discharge for cause and the investigation and grievance procedure. At the hearing, this position was dropped and it is now agreed that the only applicable Rule is Rule 30, “Apprenticeship”. The necessary portions of that Rule read:
30.4 The opportunity shall be provided for the Apprentice to secure a complete knowledge of the trade as per the agreed upon apprenticeship training program. Such apprenticeship program shall not alter the jurisdictional understanding as per Rule 54.1
30.5 JOINT APPRENTICE COMMITTEE
The Union and the Company may establish work location joint committees at each location where apprentices are employed to provide assistance to any matters relative to apprentice training and scheduling.
Work Location Joint Apprenticeship Committees (WLJAC) as identified in this Letter of Understanding shall be guaranteed adequate and sufficient time to discharge the necessary responsibilities assigned to them under the terms of the Agreement and by the parties. (…)
WLJAC will be comprised of two Local CAW representative, and two Local Management employees. (…)
30.6 APPRENTICESHIP TRAINING
In matters pertaining to Apprenticeship Training, the responsibility of the WLJAC Committee shall be to:
(a) Review apprentice schedules and assignments and tasks for the next three month period.
(b) Ensure that apprentices are evaluated as required regarding their academic and on-the-job performance and to review each evaluation that does not meet the required standard.
(c) In general, to be responsible for the successful operating of the apprenticeship standards in the facilities and the successful completion of the apprenticeship by the apprentice under these standards.
The Company will task a Manager(s) who will be the principal Company officer(s) responsible to manage the technical training function in Mechanical Services. The incumbent(s) will, in coordination with the CAW Skilled Trades Coordinator, direct the activities of local WLJAC’s to ensure the activities meet the objectives established.
Apprentices shall be under the direction of the WLJAC in all training matters and under the direction of the work activity manager of the assigned work area for work related matters. The WLJAC is authorized to move apprentices to a different task to ensure that each gains the practical experience in accordance with the pre-determined schedule of work training. The WLJAC Committee will be advised of all occasions where the apprentice fails to demonstrate proficiency in academic studies or any specific tasks.
30.8 Apprentices must throughout the apprenticeship continue to display the desire and aptitude to learn the trade or they will not be retained in the service except as may be otherwise mutually agreed.
30.9 APPRENTICESHIP STANDARDS
The following standards of apprenticeship covering the employment and training of apprentices in the trades included in these standards have been agreed to by the Company and the Union.
The purpose of these standards is to make certain that extreme care is exercised in the selection of applicants and that the methods of training are uniform and sound, with the result that they will be equipped for profitable employment, and to further the assurance to the Company of proficient employees at the conclusion of the training period.
The WLJAC may recommend discipline and/or cancellation of the apprenticeship agreement of the apprentice to the Company at any time for cause such as:
1) Inability to learn;
3) Unsatisfactory work;
4) Lack of interest in his/her work or education;
5) Improper conduct;
6) Failure to attend classroom instruction regularly.
 Rules 30.5, 30.6 and references to the WLJAC in Rule 30.9, are new in the parties’ most recent collective agreement. The parties have established a WLJAC for the Edmonton area. Two of its four members, Mr. Ralph Tassone and Mr. John Frederick, participated in the August 27, 2012 investigative meeting with Mr. Attwell and so had knowledge of the Company’s concerns with his performance. But it is common ground that Mr. Attwell’s performance as an apprentice was not a matter that ever formally came before the entire WLJAC.
 The Union’s initial argument is that Mr. Attwell’s termination was invalid because it was performed unilaterally by the Employer, without the involvement of the applicable WLJAC. The Union says that the development of the Committee structure and the consequent reworking of the language of Rule 30 in the latest version of Agreement 12 indicates the parties’ intention to remove from the Employer the exclusive right to make decisions in relation to the Apprenticeship program, including the decision to cancel an individual’s apprenticeship. Instead, it says, the parties have moved to a joint collaborative method for administering apprenticeship standards, and where necessary, discharging an unsuitable apprentice.
 I am unable to agree with this argument. Several aspects of the language of Agreement 12 weigh against it. First, as the Employer observes, it is not mandatory for the parties to even establish a WLJAC at a given location (“The Union and the Company may establish work location joint committees …). It says, and the Union does not contradict, that in fact not all locations where apprentices are employed possess a local committee. If the parties meant to cede such an important authority as this to the joint committee, one would expect there to be a mandatory obligation to appoint the alternative decision-maker.
 Second, the portion of Rule 30.9 titled “Probationary Period” imposes upon the Employer an obligation to consult the WLJAC before terminating an apprenticeship during the apprentice’s 500-hour probationary period:
The first 500 hours of employment for every apprentice shall be a probationary period to determine their suitability to learn their trade. During this probationary period, the apprenticeship agreement with the apprentice may only be cancelled by the Company or the apprentice, after consultation with the WLJAC. (…)
Mr. Attwell had completed his 500 hours of probation at the time of his release, so this language did not apply to him. The specific mention of an obligation to consult the Committee in the case of probationers, however, impliedly excludes any such obligation after probation.
 Third, the portion of Rule 30.9 titled “Apprentice Oversight” speaks only of the Committee’s power to “recommend” discipline or cancellation of an apprenticeship for “cause”. “Cause” is described to include several things, like “unreliability”, “lack of interest…” and “failure to attend”, that speak to the apprentice’s “desire and aptitude to learn the trade” within Rule 30.8. The use of the word “recommend” is a particularly clear indication that the parties did not intend to remove from the Employer its ultimate authority to terminate the apprenticeship of an unsuitable apprentice.
 For these reasons, I take the view urged by the Employer on this point. The function of the WLJAC is intended by the parties to be one of giving advice, assistance and oversight in respect of the Employer’s apprenticeship programs. With the partial exception of mandatory involvement in the termination of a probationary apprentice, the WLJAC is not intended either to perform the termination of unsatisfactory apprentices, or to have power to withhold approval from an Employer seeking to terminate the apprentice.
 There remains, however, the Union’s second line of argument: that the Employer’s decision to terminate Mr. Attwell’s apprenticeship did not meet the standards applicable to such a decision under Rule 30. For the following reasons, I consider this argument to be well founded.
 There is a substantial body of case law in this and other railway shopcraft agreements on the termination of apprentices under Rule 30.8 and its predecessor clauses. The thrust of this case law may be summed up in this way:
· Release of an apprentice under Rule 30.8 is not the same as a disciplinary dismissal under Rule 27. The requirement of a “fair and impartial investigation” under Rule 27.1 does not apply to a Rule 30.8 termination: SHP 177 (Todd) (1985, Weatherill).
· Rule 30.8 is not conceived as a disciplinary provision for which evidence of misconduct is necessary. It instead gives the Employer the discretion to assess on an ongoing basis whether the apprentice possesses the attributes like reliability, the ability to accept direction, teamwork skills, and personal integrity that evidence the apprentice’s “desire and aptitude to learn”: SHP 311 (Stevens) (1990, Picher).
· The Employer’s ability to release an apprentice for failure to display the desire and aptitude to learn the trade is, however, not unfettered. It must make such a determination by the “unbiased and proper application of reasonable rules in that regard”: SHP 54 (Moquin) (1978, Weatherill).
· In assessing the reasonableness of the Employer’s determination, the standards applied by arbitrators to cases of non-culpable discharge are relevant. These include considerations of whether the Employer has defined the level of job performance expected of the apprentice and communicated these to the employee; whether it has provided reasonable supervision and instruction to the employee and a reasonable opportunity to meet the standard of performance; and whether reasonable warning was given that failure to meet the standard could result in dismissal: SHP 393 (Alexander)(1990, Kinzie); SHP 649 (McCallion)(2009, Albertyn).
 Applying these principles to the facts of this case, it must first be observed that the incidents and observations that the Employer relies upon for its conclusion that Mr. Attwell did not display the desire and aptitude to learn the trade, are not all of the same type. Further, they fall into two widely separated time periods. In May 2012 he was coached and given a non-disciplinary PMRC notice for failing to properly set the brake piston travel on a locomotive. That same month, he attracted criticism and a threat of termination from Mr. Emond for expressing his dissatisfaction with the content of his apprenticeship and how it had been represented to him by CN. Then there is a gap of almost three months before he failed the two exams on August 23, and was criticized by his instructor for inattention, poor attitude, and a repeat of the error in setting brake piston travel.
 Taken individually, not all of these incidents and observations reasonably support the judgment that Mr. Attwell was not willing or able to learn his trade as of August 2012. The May 2012 failure to set brake piston travel correctly occurred so early in his apprenticeship that it is difficult to assign any appreciable weight to it. Even accepting as I do the Employer’s submission that this is an elementary, repetitive task for a Diesel Mechanic, it was a first recorded error by a very new apprentice. It was approached by his supervisor as a matter for coaching rather than discipline. Any significance to this error in May arises not from itself, but from the fact that it was repeated in August, a point to which I return presently.
 I likewise do not find it possible to assign significant weight to Mr. Attwell’s public criticism of the content of the Diesel Mechanic apprenticeship and how it had been represented to him. The Union suggests that this was perhaps only fair comment in light of the fact that not all provinces treat Diesel Mechanic as a recognizable apprenticeship trade, and CN’s Diesel Mechanic job is not necessarily congruent with the Heavy Equipment Mechanic trade recognized for apprenticeship in Alberta. It is not necessary to form an opinion on that point because, in my view, the important fact about this incident is that Mr. Attwell recanted (or at least submerged) his criticism when confronted by Mr. Emond, and then continued in his apprenticeship for three months without raising the issue again. The only conclusion to be drawn is that Mr. Attwell either accepted the warning or concluded that it was not a point he could profitably raise again, and that by continuing in his apprenticeship he was treating it as a dead issue.
 Nothing then appears in the record about Mr. Attwell’s performance until August, with the possible exception of the unit exam that Instructor Grant Rodgers reported that he passed only on a second try. The record does not state a date for this, however, and so the interval must be characterized as being without incident. During this interval he passed his 500 hours probation, which is at least some indication that his conduct had not yet identified him to the Employer as a problem apprentice.
 Then, within about three weeks in August, occurred the other events and observations that the Company relies upon for its decision. On August 21, Instructor Rodgers relayed to Mr. Emond his observations of Mr. Attwell’s inattention and poor attitude during the current instructional unit. These included observations that he had been sleeping during class, texting, and sitting where he could not properly observe instruction. Mr. Emond spoke to Mr. Attwell about these things immediately and gave him a warning that his conduct would have to improve. There is, however, no indication that Mr. Emond specifically told Mr. Attwell he might be terminated from his apprenticeship without improvement; the warning was instead couched in terms that his conduct might lead him to fail exams, which presumably might in turn jeopardize his employment.
 On August 23, Mr. Attwell failed two exams, one of which was in “open book” format. This is admittedly cause for concern about the Grievor’s aptitude or willingness to learn or both, but it must be observed that the failures were only “borderline”, being 78% and 80% on exams with a passing mark of 85%. These results are not by themselves very convincing of the proposition that this apprentice is profoundly unable or unwilling to learn. Without more – without some longer period of persistent failure, or of wider margins of failure, or both – the results are at least as consistent with transient inattention, or of having the proverbial “bad day”, or some other less blameworthy explanation.
 Finally there is the report by Instructor Rodgers that Mr. Attwell during his August training unit repeated the error of improperly setting the brake piston travel on the locomotive he was servicing. This in my view qualifies as a significant mistake for which nothing really mitigates the Grievor’s responsibility. He was well into his apprenticeship by then; it was a repetition of an earlier error upon which he had received coaching and recent instruction; and it was an error on an elementary task, failure on which could have serious results.
 I have reviewed these incidents and observations individually to this point and have indicated some reservations about their weight toward the proposition that the Grievor is unwilling or unable to learn the trade. These individualized judgments, of course, are not conclusive of the issue. Instead, the question for decision is: taken together, did these facts reasonably lead the Employer to the conclusion that the Grievor was not showing the necessary aptitude and desire? It is implicit in the standard of “reasonableness” that the Employer should get the benefit of a degree of deference in making this decision. The Employer, after all, has the experience and expertise to make it better suited to identifying apprentices with no real aptitude or desire for the trade than is an arbitrator sitting in review. In an even moderately close case, this arbitrator would be inclined to uphold the decision to terminate the apprenticeship.
 In my opinion, however, this is not a sufficiently close case that the decision to terminate Mr. Attwell’s apprenticeship may be allowed to stand. The shopcraft cases offered as authority in which a decision to terminate an apprentice under Rule 30.8 or its predecessors has been upheld, feature evidence of persistent or profound failure to meet the obligations of the apprenticeship. In SHP 152 (Frizell) (1984, Weatherill) the Arbitrator upheld the release of an apprentice who had “over a period of time, and in most segments of his apprenticeship training, done work that was not satisfactory, had poor timekeeping, had repeatedly been absent, and had generally demonstrated a lack of interest in his work”. In SHP 177 (Todd) (1985, Weatherill), an apprentice was properly released for a three year history of failing or indifferent academic results, culminating in two serious failing marks. In SHP 219 (Wozney) (1987, Weatherill), a termination of an apprentice that was upheld primarily for accumulation of demerits, the Arbitrator would also have upheld the termination under the predecessor to Rule 30.8 where the evidence featured persistent absenteeism and lateness in the order of 15% of total time and 15 absences over one four-month period. In SHP 649 (McCallion) (2009, Albertyn), the Arbitrator upheld the release of an apprentice who had again been persistently absent without excuse, approximately 12 times in a six-month period.
 The facts of this case, in my opinion, are simply not at all in the same order of seriousness or persistence as the precedent cases. The May 2012 incidents, for reasons already expressed, are of no weight in establishing that Mr. Attwell lacked the aptitude and desire for the trade. That leaves the Company’s decision based upon two very borderline failing marks, an admittedly significant repeat failure to set brake piston travel correctly, and Mr. Rodgers’ advice that he had been sleeping, texting, and being otherwise inattentive in class, all falling within the final three-week period before his release. Even accepting for purposes of argument that Mr. Attwell received full and proper warning of his deficient performance and that it might result in dismissal, the decision to dismiss was unreasonable because it was both premature and precipitous. Using the standards articulated by Arbitrator Kinzie in SHP 393 (Alexander) and applied by Arbitrator Albertyn in SHP 649 (McCallion), the Employer did not allow the Grievor a reasonable opportunity to modify his behavior and bring his performance to acceptable levels after being advised of the deficiencies. He received only a few days’ notice before being called to the investigative interview of August 27 that culminated in his release. In all the circumstances, I find that this fails the test of “proper application of reasonable rules” that is established for decisions to terminate apprenticeships under Rule 30.8.
 It follows that the grievance is allowed. Mr. Attwell is to be reinstated in his employment and apprenticeship. He is entitled to compensation for lost wages and benefits, subject as always to the obligation to mitigate. As requested by the parties, I remit the quantum of compensation to them for determination and reserve jurisdiction over that issue in event they cannot agree. It should be clear, however, that none of the interval between release and reinstatement counts toward the Grievor’s apprenticeship requirements; and that the Company remains fully entitled to evaluate the Grievor’s desire and aptitude to learn the trade on an ongoing basis and on his entire record, consistent with these reasons.
 I express my appreciation to the parties for the comprehensive and helpful materials presented and the co-operative and professional way in which the case was put before me.
ISSUED and DATED this 16th day of August, 2013 at Edmonton, Alberta.
J. Leslie Wallace