SHP633

AWARD

The issue

1. There have been two previous awards in this matter: a preliminary award on May 16, 2006 and a procedural award on February 4, 2007.

2. This award deals with the substance of the Union’s complaint that the Company has violated the Trades Modernization Agreement (“the TMA”) and that the Union is entitled to substantive relief as a result. The TMA was concluded on March 10, 1996 and signed on March 12, 1996.

3. The TMA has been renewed in subsequent collective agreements, in 1998, 2001, 2004, and 2007. (In 2001 there was an amendment to the dispute resolution process, which does not affect the issues in this case).

4. In the award of May 16, 2006, I dismissed the Company’s objections to my jurisdiction. The parties agreed on April 3, 2007 that I have jurisdiction to hear this matter, to determine the nature of the obligations the Company undertook in the TMA, and to issue an award with respect to the grievances raised by the Union concerning its allegation of a failure by the Company to fully implement the TMA. Consequently, I have jurisdiction to consider the issue in dispute between the parties.

5. The parties were not able to agree a joint statement of issue. The Union filed its proposed joint statement on February 5, 2005. The Company filed its statement of issue on April 3, 2007.

6. The Union’s description of the issue reads as follows:

DISPUTE:

The requirements of the Company to provide training to employees in order to achieve Tradesperson status within their trade, as required by Appendix X of Agreement 12 (Trades Modernization Agreement) and Attachment #10 of the Memorandum of Agreement between CNR and CAW Local 100 signed March 6^th 2001.

JOINT STATEMENT OF ISSUE:

In the Trades Modernization Agreement found in Appendix X of Agreement 12 the parties agreed to enhance the skills of existing employees and to achieve the portability of the trades to outside the Rail Industry. In addition the Company agreed that they would:

ensure that all employees are properly trained to achieve Tradesperson status within their trade and enable those employees to complete their assignments in a safe and efficient manner.

Attachment 10 of the Memorandum of Agreement dated March 6^th, 2001 provided that

The Division Mechanical Officer and/or the Chief Mechanical Officer and the Regional Vice-President of CAW Local 100 will meet annually, but no later than March 1^st, to review progress made at each location in the preceding year and also to discuss training plans for each location for the present year.

Upon request from a Regional Vice-President of the Union, the Company will provide details of the nature of the training provided and the number of employees trained by location and classification.

The Company commits to offer training to employees from every location on the system.

It is the Union's contention that the Company has failed to live up to its obligation to ensure that all employees are properly trained to achieve Tradesperson status within their trade, as required by Appendix X of Agreement 12. More specifically the Company has failed to provide sufficient necessary training and opportunities to most of the tradespersons within the bargaining unit in order for them to achieve red seal (interprovincial) qualifications in their trade. Furthermore the Company has failed to meet with the respective Region Vice-Presidents of the Union to review progress made at each location in the preceding year, and also to discuss training plans for each location for the present year, as required by Attachment 10 of the Memorandum of Agreement between CNR and CAW dated March 6^th, 2001. In addition the Company has failed to provide the required training to employees from every location across the system.

The Union requests in settlement of this matter that the Company be directed to provide a training plan for all locations across the system to deliver the necessary training and to abide by such training plan. Further the Union requests that any employees who were in the service as of September 10^th 1996 who were not granted an exemption from training and who have not been subsequently trained sufficiently to satisfy the criteria for red seal qualifications, as of the date of the commencement of the arbitration hearing on this matter, be compensated for the delay in providing to them the required training.

It is the Company's contention that the Trades Modernization Agreement does not provide for red seal (interprovincial) status and further that there is no timetable outlined in which training of employees must be provided. The Company requests that the Arbitrator dismiss the grievance.

7. The Company’s description of the issue reads as follows:

DISPUTE:

The interpretation of the Trade Modernization Agreement, Appendix X, of Agreement 12, as it relates to the training commitment contained in the Trade Modernization Agreement.

COMPANY STATEMENT OF ISSUE:

It is the Company’s position that the Trade Modernization Agreement, contained no reference to “red seal” inter provincial trade qualifications, nor was there any reference to the term of “red seal” contained in the negotiation notes leading to the Trade Modernization Agreement signed in September 1996. Furthermore, the term of “red seal” is not found anywhere in Collective Agreement 12, pre or post Trade Modernization. The Company submits that the Union is attempting to achieve a level of qualification at arbitration which they failed to achieve through the Trade Modernization Agreement in 1996, or subsequent rounds of national negotiations in 1998 and 2001, in which “red seal” qualifications were part of the Union’s negotiation agenda.

The Company submits that employees have received extensive training every year since 1996, providing them with skill enhancements that are mutually beneficial and that we have continued to train Heavy Duty Mechanic and Electrician Apprentices sufficiently to allow them to challenge provincial qualification tests. Furthermore, the Company submits that the Car Mechanic trade is presently portable to outside of the railway industry with no requirement for additional training. Notwithstanding, it is the Company’s position that the primary reference to training in the Trade Modernization Agreement is related to the training of former pipefitters, Boilermakers, Blacksmiths, & Sheet Metal Workers into their new trade of Car Mechanic or Heavy Duty Mechanic and the training of Heavy Duty Mechanics and Car Mechanics for the Pipefitter, Boilermaker, Blacksmith and Sheet Metal related tasks flowing into the remaining trades.

Contrary to the Union’s assertions, the Company submits that the Union’s obstinance [sic] has caused the discussions on trade portability to stagnate compared to the cooperative progress achieved at CP Rail.

Collective Agreement 12 contains no language that would support an award of compensatory damages as the Union is seeking. Accordingly, the Company respectfully submits that the question of damages is unfounded, premature and beyond the scope of the Arbitrator’s jurisdiction in adjudicating the matter before him.

For all of the foregoing reasons, it is the Company’s position that no violation of the Collective Agreement has occurred and the Union’s appeal in all respects should be dismissed.

The collective agreement provisions

8. Since the parties have fundamentally different understandings of what was required of the Company in the TMA, which is Appendix X to the collective agreement, it is as well to set out its terms:

APPENDIX X

TRADES MODERNIZATION AGREEMENT

March 6, 2001

PREAMBLE:

In accordance with the closed period commitment reached between the Union and the Company, the parties formed a Joint Committee on Trades Modernization. The terms of reference of that Committee were to review and where necessary modernize existing trade structures and classifications, and their associated work rules, to achieve greater efficiency and productivity, while ensuring the safety and security of all employees. Furthermore, the parties agreed to enhance the skills of existing employees and to achieve the portability of the trades to outside the Rail Industry.

Conditions and terms of the Collective Agreements shall be amended as indicated below.

The Union and the Company, as parties to the Collective Agreement, and with the valuable assistance of Mediator V. Ready, have agreed to the following:

1. The Company shall ensure that all employees are properly trained to achieve Tradesperson status within their trade and enable those employees to complete their assignments in a safe and efficient manner. On the job skill development and classroom training will be provided to the extent necessary to enable employees to continually upgrade their knowledge, skills and abilities within their recognized trade.

2. The Company shall provide in-house and recognized technical school programs for the development of skills, and improved employee awareness of their work responsibilities. The importance of safe work practices and vigilance shall be included in all training programs. The Company and the Union shall cooperate in the development of training programs and modules. The Company shall continue to provide additional training to employees when it deems it appropriate.

3. No one in the bargaining unit will have their rate of pay reduced as a result of any provision of this agreement. No employee will be denied a position in his new trade as a result of not having received proper training. No existing employee will lose his or her employment or suffer a reduction in pay as a result of failure to meet the standards of the new trade. Special cases shall be referred to the L.A.C. for review.

4. The Company and the Union agree that there shall be three recognized trades: Car Mechanic, Heavy Duty Mechanic, and Electrician.

5(a) Tradespersons shall perform the duties of their trade. However, where due to the nature and volume of traffic or workload there is insufficient work at a line point to justify the existence of a full time position in a trade, a tradesperson of a different classification may be used to perform minor work of another trade to keep a piece of equipment in service. An illustrative list of the tasks which may be performed by another trade under this provision is attached in Appendix 1. Furthermore, the Company shall not utilize this provision at any line point without giving as much advance notice as possible to the respective Vice President of the Union including a written account of the full particulars on the changes to the nature or volume of work or traffic. Except in instances of unavoidable circumstances, at least 10 calendar days notice shall be provided unless otherwise mutually agreed. The Dispute Resolution Process found in this Appendix will only apply to disputes that arise under proposed expansion of the application of Section 5(a) to locations other than those in effect as of March 6, 2001. The burden of proof in such a dispute rests with the Company. All other disputes will be progressed in accordance with Article 7.

5(b) In order to expedite train operations at a train yard, when minor defects are reported on a locomotive, and a Car Mechanic is readily available and a Heavy Duty Mechanic is not, the Car Mechanic may be required to perform such minor repairs.

6(a) In instances of temporary shortages in a specific trade at a back shop as a result of project work between 14 and 89 days duration, the Company can utilize employees in one trade to perform work in another trade for which they are qualified, provided that such assignments will not result in the lay-off of an employee in the other trade. In instances where there are employees on layoff status in the receiving trade at the location, the Union agrees to an expedited recall procedure to determine whether the laid-off employees desire the work in question.

6(b) The following conditions will apply with respect to Article 6(a):

i) is only applicable at a back shop;

ii) is not a substitute for normal overtime;

iii) the local Chairperson will assist to ensure an expeditious implementation;

iv) the trades people coming in will only be used for work for which they are already qualified;

v) the Company will consult with the Union in each instance prior to the utilizing of this provision.

7. With the exception of the provisions of Article 5(a) above, any grievance which may arise with respect to the application of the Trade Modernization Agreement shall be progressed in accordance with the provisions of Rule 27 of the Collective Agreement.

8. The parties will use their best efforts to ensure full implementation of this Trade Modernization Agreement in an expeditious manner. The Union and the Company commit to working jointly to ensure the success of trade modernization into the future. A process will be instituted on a semi-annual basis to review, enhance and fine-tune the existing trades.

9. Nothing in this agreement is intended or should be construed to either expand upon or diminish the scope of work of this bargaining unit in relation to any other bargaining unit(s), non-bargaining unit employees or outside agencies or contractors. However, it is understood that supervisors will not perform bargaining unit work except in instances of emergencies.

10. In the event that new technologies arrive that do not fit obviously within one of the three modernized trades, the matter may be referred for Disputes Resolution under the terms of this Agreement.

11. Employees will, as far as practicable, be assigned to the modernized trades in accordance with the principles of natural flow as follows:

Generally,

· Machinists would flow to Heavy Duty Mechanics;

· Carmen would flow to Car Mechanics;

· Electricians would remain Electricians or flow to Heavy Duty Mechanics;

· Blacksmiths would flow to Heavy Duty Mechanics or Car Mechanics;

· Boilermakers would flow to Heavy Duty Mechanics or Car Mechanics;

· Pipefitters would flow to Heavy Duty Mechanics or Car Mechanics;

· Sheet Metal Workers would flow to Car Mechanics or Heavy Duty Mechanics.

The principle of the above is that employees will go to the modernized trade to which their work flows. Seniority rules will govern when employees have more than one option. Every effort will be made to avoid unnecessary disruptions to the operation or to employees’ lives in the implementation of this process.

12. The Company, prior to implementing this agreement at any location, will notify the Union of the number of positions there are to be in each trade. In the event of a dispute, it may be progressed in accordance with the Disputes Resolution Procedure beginning at the Labour Adjustment Committee stage.

13. New seniority lists will be established in accordance with the following principles:

1) active tradespersons acting as tradespersons will have their earliest regional tradesperson seniority date dovetailed into their new tradesperson seniority list.

2) employees on layoff at the time of implementation will be dovetailed onto a supplemental recall list to the trade(s) to which their work flows and will be subject to recall to their new trade in accordance with such list.

3) when two or more employees have the same seniority date, their relative seniority standing on their respective seniority list shall be determined as follows;

i) the employee with the greatest service in the bargaining unit

ii) if i) is the same, the employee with the greatest amount of service with the Company will be senior

iii) if ii) is the same, the employee who first signed the Company’s application form, from which he was hired, shall be senior

iv) if iii) is the same, or is unable to be determined, the employees’ names shall be placed on the seniority list as mutually agreed by the proper officer of the Company and the respective Vice President of the Union

14. Implementation of this Agreement shall commence on or after October 15, 1996.

15. The parties agree to meet within 60 days of the signing of this Agreement to modify the terms and conditions of Collective Agreement 12 and Collective Agreement 12.90 to reflect the intent of this Agreement. Any disputes regarding the modifications of the Collective Agreements shall be referred through the Dispute Resolution Procedure to Mediator/Arbitrator V. Ready for final and binding resolution.

Trade Classifications:

Employees in the Mechanical Department at CN governed by the CAW - Shopcraft Collective Agreements 12 and 12.90 shall henceforth be designated as one of the following:

Car Mechanic

Car Mechanics work shall consist of inspection, maintenance and repair of freight and passenger cars and performance of all other work, including wrecking service, that is generally recognized as Car Mechanic’s work.

Heavy Duty Mechanic

Heavy Duty Mechanics work shall consist of inspection, maintenance and repair of motive power units and performance of all other work that is generally recognized as Heavy Duty Mechanic’s work including facility maintenance.

Electricians

Electricians work shall consist of inspection, maintenance and repair of electrical and electronic high or low voltage circuitry systems on motive power and rolling stock and all other work generally recognized as Electrician’s work including facility maintenance.

Note: Where Provincial regulations require that the employees performing these tasks be licensed, the Company will assist the employees in accordance with the Education Financial Assistance Plan and pay costs to obtain the required certificates.

The above trade classifications will be finalized at the time of modifying the terms and conditions of Agreements 12 and 12.90 and are intended to include all work and jurisdiction found in the previous Shopcraft Collective Agreements except where expressly modified by this Agreement.

Overlap Between Electricians and Heavy Duty Mechanics

Electricians will have sole responsibility for all locomotive electrical troubleshooting, all electrical repairs, rewiring or rebuilding, all electrical bench and component work or work in the electrical cabinet, and all high voltage work. Heavy Duty Mechanics may be assigned to perform trip inspections, pre-release and mileage inspections, or replacements or changeouts of parts or electrical components, without the need to call an Electrician. This will not restrict the use of Electricians to perform these functions when necessary.

The following examples arose in the course of discussion and are not meant to be exhaustive or characteristic, but are only listed for illustration:

1) Electricians need not be assigned to disconnect traction motor cables

2) If a locomotive is shopped with an axle generator cable having been knocked loose, the Heavy Duty Mechanic may be assigned to reconnect it.

3) Following a mileage inspection, the Heavy Duty Mechanic starts up the locomotive to perform running checks and notices a cab heater is not functioning. Upon removing the cover, he sees that a brush is disconnected. He may replace the brush without the need to call an Electrician.

Helpers

The Helpers classifications of the various trades will be dealt with in the same manner as the tradespersons classifications, and shall be subject to further review between the Union and the Company.

Dispute Resolution Procedures

1) Should a dispute arise as a result of trade modernization related to the application or implementation of this agreement, the regional Vice President or his designate of CAW Local 100 who represents the region or employee affected may refer the matter in dispute in writing to the Chief Mechanical Officer for resolution within 7 calendar days of the dispute arising. The referral must identify the Article and paragraph of the Article that is alleged to have been violated or involved.

2) The Chief Mechanical Officer or his designate must respond in writing within 7 calendar days of receipt of the Union submission. Should the matter not be resolved, either party may refer the matter to the Labour Adjustment Committee for review. The LAC must be convened and hear the dispute within 7 calendar days of the request for review. The Company shall not proceed with further implementation of the matter in dispute until such time as the LAC has agreed to a resolution of the dispute or the matter has been referred to and adjudicated upon by the Mediator/Arbitrator under the terms and conditions that follow hereunder. However if the Union does not agree to convene the LAC within the said 7 day time limit, the Company may proceed with further implementation, notwithstanding the above.

3) If the LAC does not resolve the dispute either party may refer the matter to the designated Mediator/Arbitrator for final and binding resolution. Failure to refer the matter to the Mediator/Arbitrator within 7 calendar days from the date the LAC heard the dispute and failed to resolve the matter will result in the matter being considered to have been dropped and further implementation will proceed.

4) The Mediator/Arbitrator agreed to and designated by the parties to mediate/arbitrate disputes will be Vince Ready, or in his absence Colin Taylor unless otherwise mutually agreed to by both parties. If the Arbitrator is not available within a reasonable time frame, the parties will attempt to agree on an alternate Arbitrator for that dispute. Should the parties be unable to agree on an alternate Arbitrator the matter would be referred to the Federal Mediation Conciliation Services who shall appoint a Mediator/Arbitrator on behalf of the Minister for that dispute.

5) The Jurisdiction of the Mediator/Arbitrator shall extend and be limited to solely the mediation and expedited arbitration of specific disputes respecting the meaning or alleged violation of one or more specific provisions of this agreement concerning trade modernization between the Union and the Company.

6) The special mediation-expedited arbitration process will be conducted in accordance with the instructions of the Mediator/Arbitrator, or as otherwise agreed to by the parties at the time of the commencement of the proceedings.

7) Each case referred to the Mediator/Arbitrator must have a signed Joint Statement of Issue. Should the Company and the Union fail to reach agreement on a Joint Statement of Issue either party may submit an ex-parte Statement of Issue, provided 48 hours prior to proceeding ex-parte, that party has advised the other party of its intention to proceed ex-parte and has provided a copy the ex-parte Statement of Issue to the other party.

8) The decision of the Mediator/Arbitrator shall not, in any case, add to, subtract from, rescind, or disregard any provisions of this Trade Modernization Agreement nor any provision of Collective Agreement 12 and Agreement 12.90.

9) Each decision of the Mediator/Arbitrator which is made under the terms of this agreement shall be final and binding upon the Company and the Union as well as the employee(s) involved.

10) The Company and the Union agree that the powers of the Mediator/Arbitrator are restricted by and to these rules notwithstanding any other agreement to the contrary. The Mediator/Arbitrator shall not have the power to modify these agreed upon rules without the expressed written consent of both the Company and the Union.

11) In the event that the parties encounter difficulties in implementing the decisions of the Mediator/Arbitrator, the Company and the Union agree that the Mediator/Arbitrator will remain seized of each of the cases presented to him for arbitration.

12) The decision of the Mediator/Arbitrator shall not be reviewed in any court by either the Company, the Union or the employee(s) involved.

13) This special mediation/arbitration session shall be held at times and places as mutually agreed upon by the parties or as otherwise determined by the Mediator/Arbitrator. All fees charged by or costs incurred by the Mediator/Arbitrator shall be shared equally between the Company and the Union.

IMPLEMENTATION COMMITTEE

TRADE MODERNIZATION

Implementation of trade modernization shall commence on or after October 15, 1996.

System implementation will progress from Toronto to Edmonton and then Winnipeg. During this time regional implementation committees will implement the Agreement to the Great Lakes, St. Lawrence and Atlantic Regions, the Mountain Region, and the Prairie Region.

During the several meetings that were held with respect to the trade modernization, the parties agreed that in order to properly implement trade modernization, an implementation committee would be formed.

Prior to implementation the Company will appoint at least 2 Company officers to the System Implementation Committee. The Union will appoint an equal number of Union Officials to the System Implementation Committee. These people shall be responsible for the implementation of the Agreement at the 3 major locations and to ensure that qualified sub-implementation committees implement the Agreement expeditiously throughout the System at the facilities, train yards and line points. The Company will assume all costs of these Committees including regular wages, benefits, and reasonable O.C.S. expenses in accordance with Company policy.

APPENDIX 1

Change or adjust brake shoes or other brake components on cars or locomotives and boosters. Check and top up fluid levels in locomotives.

Inspect, repair or replace air brake hoses, train lines,

Replace fuel filters in locomotives.

Remove and replace radio bases or radio headsets in locomotives or cabooses.

Replace or adjust/repair windshield wiper blades/arms in locomotives or cabooses.

Replace bell ringer cartridge in locomotives.

Replace/repair coupler head components.

Replace/repair safety appliances.

Repair door locks/latches on locomotives.

Replace hot plates, refrigerators, water coolers in locomotive cabs or cabooses

Change out IDU or SBU components.

Repair windows on locomotive cabs or cabooses. Repair seats.

Replace 27 pin jumper cables

Replace sand hoses, nozzles.

Repair handrails.

Replace light bulbs.

Check fuses, breakers.

Turning of switches and throwing of breakers to test electrical components.

The foregoing represents full and final settlement of the closed period commitment on Trade Modernization between the C.A.W./T.C.A. Canada and Canadian National.

For the Company,

For the Union,

(Sgd) R.J. Dixon

Vice-President

Labour Relations and Employment Legislation

(Sgd) J. Moore-Gough

President, Local 100

The issue restated

9. The Union’s case is founded on the following sentence in the Preamble to the TMA: “Furthermore, the parties agreed to enhance the skills of existing employees and to achieve the portability of the trades to outside the Rail Industry.” The Union says that the Company is obliged to train employees to achieve “red seal” status within their trades; the Company denies that it undertook this obligation. It points out there is no reference to “red seal” in the TMA. Red seal is a level of success in provincial trade certification examinations. It is the standard for inter-provincial recognition of the trade qualification.

10. The Employer’s interpretation of this preamble provision is a mission statement that, once the parties had agreed on the trades, the Company and the Union would jointly approach the provincial bodies to get those trades recognized.

11. The equivalent industrial trade of the heavy duty mechanic is the heavy duty technician. The electricians’ equivalent is the industrial electrician. There is no inter-provincial status for car mechanics : the Union says the car mechanics should be trained to the level of a trade they could fit into. The Union suggests the steel fabricator is the equivalent portable trade for the car mechanics. The Company says there was no discussion of anything like this, and certainly no agreement of a portable trade for the car mechanics.

Factual background

12. The May 16, 2006 award described some of the background to this matter, and I will not repeat what was said there. The parties had the opportunity in the further hearing following that decision to amplify their recollection of the factual background.

13. Doug Fisher, the Company’s Director of Labour Relations and with the Company since February 1996, and John Moore-Gough, the Union’s representative at the hearing and its President at the time the TMA was concluded, also the custodian for the Union of the TMA in the subsequent period, both provided the factual background to the conclusion of the TMA and to the dispute between the parties regarding the implementation of the TMA.

14. The TMA had its origins in the mid to late 1980s. The Company and Canadian Pacific Rail conferred on what they came to see as a fundamental operational problem: there were seven railway crafts (machinists, carmen, electricians, blacksmiths, boilermakers, pipefitters, and sheet metal workers), each with their own jurisdiction, for the repair and maintenance of locomotives. It took five craftsmen to remove a fuel pump, subject to the incidental work rule which allowed another craft to perform the work if the designated craft was not available within a stipulated time. Technological advances in locomotive design had reached the point that a lot of the historical skills of the railway crafts were no longer necessary. CN and the other railway companies were looking for something different. They reached the conclusion that the consolidation of the bargaining units was the preferred way to proceed. The companies also wanted to eliminate the trades, combining them into one or more composite mechanic trades, able to perform all shopcraft work.

15. CN, CP Rail and VIA Rail separately served notice on the Canada Labour Relations Board (“the CLRB”) and the affected bargaining units to consolidate the units into one. There were extensive hearings in the early 1990s with the unions protecting their interests and the companies pushing their agenda. Ultimately, in the spring of 1994, the CLRB decided that one shopcraft unit was appropriate for each of CN, CP and VIA. The CLRB’s decision coincided with the expiration of the collective agreements covering the affected employees.

16. The railways spoke among themselves and decided to serve demands on the unions for a single collective agreement for a single craft. The CLRB ordered a run-off vote and the Union, which had recently completed a merger with the Brotherhood of Railway Carmen, was successful in obtaining employee support to become the bargaining agent of the Company’s shopcraft unit.

17. In the 1994 negotiations for a first collective agreement for the new bargaining unit, the Company sought to press its agenda of what became known as trades modernization, to reduce the number of railway trades. It also had demands to change the work rules and the employment security provisions of the collective agreement.

18. The bargaining was very contentious. The employees faced layoffs high up the seniority list. The Union wanted to give those laid-off some chance to succeed in their trades outside of the railway industry. It wanted some trade portability for its members. The employees’ existing trades would enable them to be hired by another rail company, but the Union wanted them to have portability outside of the industry, inter-provincially, in the event of their being laid-off. The Union was also concerned by the training being given to the trades. In its view, the training was on specific tasks, suitable for the Employer’s needs, but insufficient for the equivalent outside trade. This limited the workers’ capacity to work beyond those tasks in the trade as a whole.

19. The rather aggressive stance from the railways (CN, CP and VIA) met with fierce resistance from the unions and a national rail strike / lockout commenced in March 1995. (The Union was locked-out by the Company). Parliament intervened nine days after the start of the strike with back-to-work legislation. That legislation applied to virtually all of the bargaining units at CN, CP and VIA. It included a provision for the establishment of a commission to conduct a binding mediation-arbitration process for all issues outstanding. The government appointed The Honourable George W. Adams, Q.C., to chair the commission that dealt with the CN and CP disputes. The process was a short, intensive mediation-arbitration in the spring of 1995. Mr. Adams made clear he would resolve the outstanding issues in the manner he thought was right in the circumstances. As a result, during the mediation phase, the Company and the Union reached agreement, on about May 3, 1995, to a process to determine the trades modernization issue.

20. The Company and the Union agreed to appoint a mediator to assist them to consolidate the existing crafts and, failing agreement, the mediator would decide the appropriate consolidation, the work rules, and related issues.

21. The parties agreed to appoint Hugh Jameson as mediator. Mr. Jameson accepted the mandate, he scheduled some meetings, but ultimately fell seriously ill. He was unable to complete his mandate. The Company and the Union had exchanged some proposals, but there was disagreement as to whether the process agreed in May 1995 remained in effect. The parties had agreed on a 60-day process, but, with Mr. Jameson’s illness, the time expired and the Union took the position that the process was over because there was no agreement to extend the timeframe. Much correspondence was exchanged between the parties during the summer and fall of 1995, and into the winter of 95-96.

22. In February 1996 (the month Mr. Fisher started working for the Company) the Company sent a proposal to Mr. Moore-Gough, the Union’s then President, on the trades modernization dispute. The Union rejected the proposal and advised that the process was complete and that the status quo should be maintained. Mark Boyle, Mr. Fisher’s predecessor as Director of Labour Relations, then filed Company Grievance No.1. The Union rejected it on multiple grounds and the Company pursued it. The parties agreed to put the grievance and other grievances before Arbitrator Vince Ready.

23. Mr. Ready was given virtually the identical mandate that had been given to Mr. Jameson, to assist the parties to resolve the trades modernization issue. Mr. Fisher became involved at this stage on behalf of the Company.

24. An unsuccessful meeting occurred between the parties in Montreal in August 1996.

25. The Company and the Union and their full committees met on about September 6, 1996 in Winnipeg. Negotiations continued, through Mr. Ready’s mediation, resulting ultimately on September 10, 1996 in the agreement which is Appendix X, the TMA. The appendix was slightly modified in the 2001 round of bargaining.

26. Mr. Moore-Gough’s recollection of the September 1996 negotiations is that the Union was prepared to reduce the number of trades (as the Company wanted) in exchange for the training it wanted so that those trained would have trade qualifications that would be portable outside of the railway industry and across the country. This is not Mr. Fisher’s or the Company’s recollection.

27. At that time a distinction existed between provincial and inter-provincial trade qualification. Inter-provincial trade qualification was the red-seal qualification. The distinction no longer exists. Provincial trade qualification is now sufficient for inter-provincial recognition.

28. Mr. Fisher’s recollection of the 1996 negotiation is that it was primarily concerned with the challenge of transferring the seven crafts into the three new trades, and how that would be done. Most of the discussion was on what demarcation would exist between the trades, to protect some semblance of craft delineation. The Union came up with the names of the new trades, and there was no suggestion of any connection with external trades.

29. Mr. Fisher recalls that the other important issue discussed was the Union’s concern that the crafts would not suffer any adverse effects as a result of the consolidation. The Union wanted to be sure that employees would not be laid-off or suffer reduction of pay because they did not have all the skills for the new trades.

30. According to Mr. Fisher, there was no discussion in the negotiations of red seal training, no discussion of inter-provincial transferability, no discussion of training to the level of external standards. The only discussion regarding training before the TMA was concluded had to do with the training required by those in the flow trades to be able to perform the tasks of one of the three new trades.

31. Mr. Fisher says that the notion of portability was never a topic of discussion. The discussion was all about what were to be the new trades, what work each would do, and what the parties would do with those who flowed into the new trades. The preamble to the TMA was a mission statement: once the parties had agreed on the trades, and what they would do, the Company and the Union would approach the provincial apprenticeship bodies to get the new railway trades recognized. The notion of portability was tied to the new railway trades.

32. In the TMA the trades were reduced from seven to three: heavy duty mechanic, car mechanic and electrician. Existing employees in the seven railway crafts were placed into one of these trades, the one to which their work flowed. New seniority lists were established for each of the three new trades.

33. From Mr. Fisher’s perspective, the major exchange between the parties in concluding the TMA was that the Employer got some of what it wanted: the merging of the crafts into three new trades; and the Union got some of what it wanted: job security for its members. Under Article 3 of the TMA, protection against layoff or reduction in pay was given by the Company to the Union for those employees who did not meet the skills requirements of the new trades.

34. There was initially an Joint Implementation Committee. It dovetailed the seniority lists within each of the new trades. It then passed responsibility for the implementation of the TMA to the Joint Trades Modernization Training Committee, also known as the Trades Modernization Committee (“the TMC”). It was to supervise the training requirements of the TMA.

35. Paul Mathieson, then the Chief Mechanical Officer of the Company, wrote to Mr. Moore-Gough on November 8, 1996 regarding implementation of the TMA. This document is the closest in time to the conclusion of the TMA and it reflects the parties’ attitude to the issue now in dispute between them. The letter reads:

Dear Mr. Moore-Gough:

As part of the Trade Modernization Agreement, the Company and the Union agreed to work together to review the training required to develop and upgrade employee skills in the new classifications. I believe that it is important, for both the Company and the Union, that the appropriate training strategy be in place as quickly as possible. The following outlines a recommended course of action.

· The Training Committee consists of four Company and four CAW members.

· The committee be jointly chaired by the Company and the Union.

The Committee’s mandate would be to determine the curriculum required to elevate affected CAW employees to the level of the new trades within CN and also review the requirements for Provincial Certification in the new trades and establish an appropriate curriculum. The committee could also consult on other peripheral issues associated with Trades Modernization training. The Committee’s recommendations would then be presented to Management for review and implementation.

The Committee’s first meeting will be in early 1997. To facilitate the process, I will provide you names of CN members by 15 December and request you provide names of CAW members by the same date.

Please provide me with your thoughts on this process and any changes you recommend by the end of November.

Yours truly,

J.P. Mathieson

Chief Mechanical Officer

36. Mr. Moore-Gough responded in writing on November 14, 1996. He confirmed that he concurred with Mr. Mathieson’s sentiments that both the Company and the Union put in place an appropriate training strategy as quickly as possible. Mr. Moore-Gough wanted clarification as to whether the Company would cover lost wages and reasonable expenses of the Union Committee members before agreeing on the number of individuals to be appointed to the TMC by each side, and making the Union’s appointments. Mr. Moore-Gough confirmed that early 1997 was the appropriate time to start the process. He then added the following:

In addition to the matters raised in your letter, I believe the Committee should evaluate the training requirements across the System and place priorities upon these requirements. Such an evaluation should take into account both the needs of the Company and those of the employees. This evaluation process should consider not only the requirements created by the Trade Modernization Agreement but also other factors that have arisen, as the result of changes that have been implemented in the recent past. One example is the situation in Toronto, in which we have a number of employees already in new trade classifications, as a result of the reductions in Moncton and Montreal with the corresponding increase in Toronto.

37. Mr. Mathieson responded on December 16, 1996 that the Company was prepared to support 2 to 3 union members on the TMC and cover loss of wages and reasonable expenses. The TMC proceeded on this basis.

38. Subsequently, Mr. Moore-Gough and Mr. Mathieson agreed on the following mandate for the TMC:

· Strengthen the skills of the Railway’s tradespersons to enable them to effectively and safety perform their respective trades within and outside the railway industry.

· Implement a process that supports the development of qualified tradespersons to meet the future technical requirements of the railway industry.

39. The role of the TMC is to recommend to the parties what training should be undertaken. The TMC had no authority to go beyond what is mandated in the TMA.

40. The consolidation of the three new trades proceeded very smoothly. However, beginning early in 1997, it became clear that the Union and the Company had diverging views on training and training obligations. It was then, according to Mr. Fisher, that Mr. Moore-Gough began articulating the Union’s view that the Company was required by the TMA to provide training to all employees in the bargaining unit to allow them to challenge and pass provincial trade qualification tests. Mr. Moore-Gough expressed his view that such training would be mandatory for all employees, unless the employees were eligible to retire.

41. The earliest document presented in the hearing to indicate a difference of opinion between the parties concerning the implementation of the TMA is a grievance filed with Mr. Mathieson by the Union’s then Vice-President for the Mountain Region, John Fix, on February 2, 1997. It reads as follows:

February 2^nd 1997

Dear Sir:

This grievance respectfully submitted as per Article 1 of the Dispute Resolution Procedure of the Trade Modernization Agreement claiming violation of such agreement.

During the implementation of this agreement I have been advised by the company that it is their position that employees are not required to take training to achieve portability of their trade to outside the Rail industry. The Company believes that it is up to the employee whether or not they wish to be trained to achieve portability.

It is the Union’s position that existing employees will be trained to achieve portability of their trade to outside the Rail industry.

It is also the Company’s position that where provincial regulations require that employees be licensed, the Company will assist the employees in accordance with the Education Financial Assistance Plan and pay costs to obtain the required certificates.

It is the Union’s position that the Company will pay all costs associated with obtaining provincial certificates including wages.

It is also the Company’s position that tasks listed in Appendix 1 can be added to by simply notifying the Union 10 days in advance.

It is the Union’s position that there can be no additions to Appendix 1 without further negotiations with the Union.

Please advise.

42. This letter clarifies that, not long after Mr. Mattieson and Mr. Moore-Gough resolved the terms of reference of the TMC, there were differences between the parties as to the obligations the Company had undertaken in the TMA. Mr. Moore-Gough says that he never approved of Mr. Fix’s letter, nor would have done so, because in some respects he says it was not consistent with the Union’s position.

43. According to Mr. Fisher, about 6 months after the TMA was concluded, it became evident to him that the Union was pushing an agenda which he says had not been shared with the Company prior to that. Within the TMC, the Union was comparing the railroad trades to outside trades. For the Union, the gaps between the three new railway trades and the equivalent outside trades needed to be closed. The Union wanted workers to be exposed to outside mandatory training for tasks not required on the railway so that they could pass the interprovincial exams for portability within the outside trades. Mr. Fisher says this was entirely new, not part of what was contemplated or agreed in the TMA. Mr. Moore-Gough began to speak of turning the car mechanics into steel or heavy metal fabricators, a recognized outside trade. Mr. Fisher says this was raised for the first time some 6 months or more after the conclusion of the TMA, and was never incorporated within it.

44. In support of his contention, Mr. Fisher says that the description of the trades in the TMA has no reference to industry in general. Instead the trades are described with reference to the functions to be performed within the railway.

45. Mr. Fisher and Mr. Moore-Gough have had dozens of discussion through the years on the question of the Company’s training obligations under the TMA, the subject of this grievance. According to Mr. Fisher, they have had diametrically opposing views on the matter since the summer of 1997. Mr. Moore-Gough disputes this. He says there was no conflict regarding implementation and training under the TMA until 2001 when the Company was plainly stalling in its implementation of the TMA.

46. According to Mr. Fisher, through 1997-98 the Company and the Union were discussing trades modernization implementation. There were steps taken to try to address some of Mr. Moore-Gough’s concerns, but, from the Company’s perspective, it is noteworthy that the collective agreement was not modified with respect to trades modernization.

47. The key difference between Mr. Fisher and Mr. Moore-Gough concerning the Company’s trade modernization training commitment is the following. Mr. Fisher contends that the mutual commitment of the Company and the Union has been to work together to get the three new trades recognized by the provincial authorities. That is what is meant by portability. Mr. Moore-Gough contends that the mutual commitment of the parties is to ensure that each individual, each tradesperson, within the three new trades is training to the level where they can individually achieve portability within their trade, to work in industry generally, not just in the railways.

48. The negotiations for a renewal collective agreement began in September 1997 and it was around then, according to Mr. Fisher, that the significant disagreements around training began to show themselves. Mr. Moore-Gough made clear the Union’s motivation for portability outside of the railway. Mr. Moore-Gough explained that if the employees were all trained in skills so they could work in industrial jobs outside the railway, it would increase their mobility, and that would force up the wages of the skilled trades in CN. In the end, the 1997-98 bargaining round did not result in any modifications to the TMA. The Union achieved some significant pension changes, but the trades modernization dispute continued.

49. On September 24, 2007, the members of the TMC – union and management – wrote to Dennis Waller (Mr. Mathieson’s successor), the then Vice-President, Mechanical of the Company, and to Mr. Moore-Gough and advised of the outcome of their discussions on September 12, 1997, based on the mandate received from Mr. Mathieson and Mr. Moore-Gough. The memorandum includes the following:

The Union’s main thrust in trade modernization has been to create a process for its membership to become portable, outside the Railway industry. The Committee felt it was important to meet with representatives from the different Provinces where Shopcraft employees are assigned, because the certification and apprenticeship requirements vary from jurisdiction to jurisdiction.

In order to enhance the skills of employees and to enable them to achieve tradesperson status within their trade, an in-house training curriculum was required. And, since the three modernized trades within the Railway now include work that “flowed” from the previous, smaller trades, we recognize that an in-depth review of the work responsibilities of each craft would be necessary.

Therefore, in the course of its activities, the Committee has:

1. Established communication with the jurisdictional Departments of Labour in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, and Nova Scotia, to review the trade designations and regulations of each Province and evaluated the trade requirements and compatibility with the three recognized CN Mechanical department trades. Various routes to Provincial / Red Seal (Interprovincial) certification were examined. A meeting with Quebec Provincial representatives is tentatively scheduled for October.

…

4. Pending confirmation by the Province of Quebec, the Committee has determined that the work of Car Mehanics is a close fit to the Steel Fabricator / Fitter (or Provincial equivalent), Electrician matches with Industrial Electrician (or Provincial equivalent) and HDM matches with the Provincial equivalent of Heavy Duty Mechanic.

5. Made recommendation to CN Performance and Development for a comprehensive training record-keeping database to capture all recognized training. …

6. Made initial, cursory estimates of costs for the training.

7. Determined that employees who face a significant gap in skills and knowledge due to a re-classification into their new trades (e.g. Pipefitter, Boilermaker .. to HDM) or cannot be upgraded to a level enabling them to challenge the trade certification will be indentured in to Provincial apprenticeship programmes in their respective Province.

…

The above work has revealed that certain challenges exist which will require direction from Senior Union and Company officers to overcome:

Concern #1:

Notice has been given by some Provincial apprenticeship and labour representatives that the day-to-day work activities of the Railway may not directly match the Provincial / Red Seal certification requirements. These Provinces have declared that they will be conducting their assessments of the type and nature of work performed by CN tradespeople in their respective Provinces with a view to identifying training and work experience gaps. To facilitate this process, our efforts in writing the skills and knowledge assessments were done using the format and language used throughout the National Occupation Codes.

…

50. The TMC was working under the impression that red seal status for individual tradespersons was the target of the TMA training. In Mr. Fisher’s view, the TMC had no mandate to be operating on this basis, and it was for this reason that the focus of the TMC needed to be rectified.

51. Mr. Moore-Gough explains what the TMC contemplated and how it discussed the process for obtaining trades portability. The TMC anticipated that each of the provincial authorities would make an assessment of what experience and training would qualify for provincial certification of a particular trade. So, for example, a provincial assessment would be made of the range of experience of a heavy duty mechanic within the Company, and the authorities would determine what additional training or apprenticeship would be required of those performing the work in the Company in order for them to be certified in that trade provincially.

52. Mr. Moore-Gough says that TMC anticipated fewer problems obtaining recognition of the heavy duty mechanic and electrician trades as equivalent to the provincial trades of heavy duty mechanic and industrial electrician. The Company’s heavy duty mechanic was recognized in Alberta and many there had been red-sealed. The machinists in Ontario had been recognized as heavy duty mechanics. In large measure the work of the electrician was akin to that of the industrial electrician. So the TMC did not anticipate problems in obtaining certification of the heavy duty mechanic and electrician trades. The area of concern was with the car mechanic trade. No province had a car mechanic trade. That is why the TMC anticipated there would need to be changes to that trade for it to obtain provincial recognition. The TMC met with the provinces to see what trade the car mechanics would fit with and the provincial authorities came up with steel fabricator / fitter classification.

53. Ross Bateman, who, at the time of testifying, had been working for the Company for 33 years, is a Senior Labour Relations Manager. He explains that Mr. Waller had been concerned with the direction of the TMC and with its recommendations. He felt the TMC was discussing training well beyond what he anticipated and what he believed the Company was obliged to do under the TMA. He wanted to address the role of the TMC. Mr. Waller also wanted the focus of the training undertaken by the TMC to be on the so-called orphan or flow trades: the boilermakers, blacksmiths, pipefitters, and sheetmetal worker whose trades were to be encapsulated by the three new trades. He wanted to ensure they were effectively rolled into these three new trades.

54. To these ends a meeting was arranged with the Union for November 1, 1997. Present were Mr. Waller and Mr. Bateman for the Company, and Mr. Moore-Gough, the President of the Union.

55. Mr. Bateman was involved in the formulation of a letter sent by Mr. Waller, to Mr. Moore-Gough on December 1, 1997. It records what was discussed between the parties on November 1, 1997. The Union relies on this letter for its interpretation of the TMA. Mr. Bateman and the Company take the position that there was no intention to amend the TMA by the letter. I quote the portions of the letter that have a bearing on the issues in this matter:

This has reference to the meeting on November 1, 1997, in Windsor, Ontario, during which we discussed a number of issues related to training requirements associated with the Trade Modernization Agreement. It was agreed that our meeting would constitute a Labour Adjustment Committee meeting and the following summarizes the issues discussed and our mutual agreement on trade modernization training:

1. Role of the Trade Modernization Committee: It was agreed that the Trade Modernization Committee would continue in an advisory capacity throughout the implementation of trade modernization training, and assist in dealing with any issues that arise in regard to training. It was additionally agreed that the committee could be used to develop core and optional training associated with modifications to the Electrician and Heavy Duty Mechanic Apprentice program, subject of course, to an overall agreement on main table discussions on the apprentice rules.

2. Training – Mandatory versus Voluntary: It was agreed that training would not be mandatory for employees who would otherwise be eligible to take advantage of available options such as bridging and early retirement. However, the Union maintains that other employees will be required to undergo training to obtain portability status. Should an employee in this latter category fail to obtain portability status for legitimate reasons, the Union is amenable to forego training for portability requirements on a case by case basis provided valid reasons are evident. Joint recommendations to exempt employees from training may be referred to the Labour Adjustment Committee for authorization.

3. Order of Training: It was generally agreed that training should first be applied to employees from former trades that have flowed to the Car Mechanic and Heavy Duty Mechanic classification. The Union was of the view that the selection for training should be on a seniority basis, however, there was recognition of the Company’s requirement to train where the benefits are evident. In this regard, there may be situations where junior employees receive training prior to a senior employee.

Employees previously holding positions in one of the three core trades who require training to obtain trade portability, will be canvassed to determine their interest for training. Subsequent to canvassing employees in the above category, selection for training will be based on interest, seniority, and where benefits are evident.

4. Timing of Training: The Company has genuine concerns that acceptable productivity levels could suffer dependent on the number of employees released for training at a given period of time. In this regard, it was agreed that training would be tied to some form of cost/benefit factor with the view to protect productivity levels. April 1998 will be the target date to commence training.

5. Target Locations for Commencement of Training: …

6. Red Seal Qualification: The Company has concerns in regard to future training costs associated with employees who do not obtain red seal (inter provincial) qualifications as a result of not achieving the percentage required for red seal qualification on the trade exam. Provided the Company’s training satisfies the criteria for employees to obtain red seal qualifications, and the employee received all the training required, the Union was not opposed to the Company’s position that no further training should be warranted, subject of course, to Labour Adjustment Committee review if an individual decision is disputed.

7. Employee Skill Questionnaire: ...

8. Communication: …

I trust the above accurately describes our discussions and mutual commitment to address employee training needs as a result of the Trade Modernization Agreement. Should we agree, please affix your signature in the appropriate space below, returning one signed copy to this office.

The letter is then signed by Mr. Waller and Mr. Moore-Gough.

56. The content of numbered paragraph 1 of the letter was agreed by the parties. From Mr. Bateman’s perspective, the role of the TMC was advisory, and this was confirmed. Further, the carmen qualification training was 3 years, and the training for the other trades was 4 years. That was to change. Now all of the apprenticeships are four-year programs. Mr. Bateman understood the agreement to be that the TMC could be used to develop training associated with modifications to the apprenticeship programs. According to Mr. Bateman, the Union wanted there to be core, and optional, training for the heavy duty mechanic and electrician apprentices.

57. The second numbered paragraph records the Union’s position. Mr. Bateman points out this was not agreed. The Union wanted the employees to be required to undergo training to obtain portability status. According to Mr. Bateman, Mr. Waller was not willing to agree to this. Mr. Bateman prepared the letter in the way, describing what was stated as what “the Union maintains …”. The letter shows that this was the Union’s position, not something that was agreed between the parties.

58. Mr. Bateman says that, in numbered paragraph 2 of the letter, the reference to trade portability was not to red seal portability, but to portability into the Employer’s new trade structure, the three new composite trades. The Union wanted the training for the flow trades to be mandatory to bring them to the level required of the three new trades. Mr. Bateman says that the Company was willing to train all those willing to undertake the training, but it was not in favour of compelling those who did not want the training to do so.

59. In paragraph 3 of the letter, the flow trades (the former trades) would be the first to be offered training. There would be exceptions based on operational needs.

60. Mr. Moore-Gough has a different recollection of the discussion he had with Mr. Waller regarding whether the training would be mandatory or voluntary. He says Mr. Waller wanted the training to be voluntary. Mr. Moore-Gough would not agree. There was discussion of the issue which resulted in agreement, according to Mr. Moore-Gough, that training would be mandatory for all employees, except as specifically exempted. Individuals within 7 years of early retirement were eligible to bridge their early retirement under the employment security agreement. So, for example, if an employee was at least 48 years old and had 23 years service, the training would be voluntary for them. Similarly, an individual whose language skills were insufficient for them to appreciate what was being taught could be exempted. They could opt out of the external training if they wished. For everyone else, the external portability training was to be mandatory. Mr. Bateman disputes this, claiming that Mr. Waller’s position was that no employee should be forced to undertake the training.

61. As regards a key paragraph on which the Union relies, numbered paragraph 6 concerning the red seal qualification, Mr. Bateman’s recollection is that this paragraph recorded the Company’s concern that it would not have to keep training those who failed to pass the red seal qualification in the trade examination. The discussion went to training only; from Mr. Bateman’s perspective, it did not entail any agreement to determine what the training qualification would be.

62. Mr. Moore-Gough’s evidence is that Mr. Waller’s concern was not that the Company would provide the courses and pay for them to enable employees to undertake the red seal tests. Mr. Waller’s concern was that the individuals would fail the test and the Company would be repeatedly put to the expense of having to keep training them. Mr. Waller thought that was an unnecessary burden on the Company, and Mr. Moore-Gough says he had to agree. He understood that concern and the abuse of the process. Accordingly, Mr. Moore-Gough recalls that he said that as long as the training provided to an individual were sufficient to have the reasonable opportunity to pass, the Union would not complain if they were not re-trained. If the training was adequate, then one occasion of such training would be enough. This was all subject to the Labour Adjustment Committee’s review. The Company could take the position that the training was adequate, yet the individual failed, and that there would be no more training. If the Union thought that the training was not adequate, it could dispute that before the LAC.

63. In my view, Mr. Moore-Gough’s evidence accords with what is contained in numbered paragraph 6.

64. Mr. Moore-Gough relies heavily on this paragraph. He says it entailed a common understanding that the training required was to red seal level, subject to circumstances when an individual could not pass the trade examination for red seal status.

65. The Company’s position is that there was no agreement to train employees to red seal status, no agreement that specific employees would be trained to the red seal standard and no time frame for the completion of the training the Company was required to provide.

66. Notwithstanding this, the TMC (consisting of four managers and three union representatives) prepared a slide presentation and handouts for a trade modernization presentation, which was given at various locations across the country during 1998. The slides include the following:

Slide 1 – Background

In September 1996 the Trade Modernization Agreement was signed. This was followed by the introduction of the agreement across CN and the consolidation of the seniority lists into the 3 modernized trades (October 96 to February 97)

In April of 1997 the Trade Mod Training Committee was setup by Paul Matieson and John Moore-Gough to develop system training requirements in order that …

All Shopcraft personnel can achieve trade person status within their modernized CN Trade

All Shopcraft can achieve trade certification and inter-provincial portability.

Slide 2 – 3 Modernized Trades

There were 3 designated modernized trades determined by the Trade Mod Agreement

1) the electrician, the portable trade being the Industrial Electrician

2) the Heavy Duty Mechanic, also referred to as the Heavy Equipment Technician

3) the Car Mechanic, did not have an outside trade designated by the Trade Mod Agreement. Through consultation with the provinces the portable trade was determined to be the Steel Fabricator/Fitter

67. The slide show also contends that the training for the purpose of provincial certification and portability was compulsory.

68. While not disputing that the slide show was shown across the country at the Company’s various work sites, the Company’s position is that the TMC had no authority to make this presentation because the content of the presentation was not in accordance with what the parties had agreed in the TMA. There is no stipulation in the TMA that training be to the level of interprovincial portability, there is no mention of equivalent industrial trades, and there is no mention of compulsory training. In Mr. Fisher’s view, these were additions to the TMA made by Mr. Moore-Gough because that was the agenda he was hoping to achieve. The Company regards the TMC as having the authority to develop a plan for the training of employees pursuant to the TMA, nothing more.

69. When the slides being presented came to management’s attention, Mr. Fisher says he quickly intervened and made clear that the slides did not reflect the deal. He pointed out that the trades mentioned in the slides were not the trades that the Company had agreed to. In the Company’s view, the TMC presentation of May 1998, some 22 months after the TMA was concluded, reflected the Union’s agenda, not what was in the TMA. As Mr. Fisher expresses the Company’s concern, it was clear to management that there was something very wrong with the committee – it was making commitments which were not in the TMA – so the Company intervened and ceased its participation on the committee.

70. Guidelines regarding the Indentured Apprenticeship Training Program were issued by the TMC, on Company letterhead, to the Local Training Committees operating in each of the different centres where employee training was taking place. The Guidelines include the following:

· Committees should be comprised of representation from management and CAW. ..

· Committees should establish close contact with provincial Apprenticeship Board Representatives.

1. …

…

3. Assisting employees to register in the apprenticeship program to achieve provincial certification.

4. Reviewing the provincial Apprenticeship Training and Standard Record Book for each applicable trade and determining which skills and tasks are best taught in which work areas.

5. Developing a rotational Apprentice Training Plan for each applicable trade indicating the shop, type of work, tasks to be performed and the length of each work rotation. …

…

71. These guidelines suggest that the parties were acting as if the purpose of the TMA training was to achieve provincial certification for each employee (with a 60% pass). If the employee passed the provincial examination at the 70% level during the relevant period, they would then obtain red seal or interprovincial certification.

72. By late 1999 the Union was concerned that insufficient training was being offered to employees by the Company. On November 23, 1999 Mr. Moore-Gough wrote to Mr. Waller. The relevant portion reads:

I would like to receive a report from the [TMC] on the amount of training received to date, both in house training and the outside technical school training. I would also like some idea of what training is being scheduled in both categories during the year 2000. I believe we also need a status report on just how much training is still outstanding.

The Trades Modernization Agreement has been in effect for over three years and there is real concern that the progress on the training issue is not progressing as fast as it should. As such I would like to ensure that Trades Modernization Training is given a priority during the next year.

73. A new committee was constituted, the National Steering Committee for Trade Modernization (“the NSCTM”). Mr. Fisher explains its purpose was to find a way around the parties’ disagreement over the Company’s obligations under the TMA.

74. The NSCTM met on January 31 and February 1, 2000 to establish a training plan for the forthcoming year. Following this meeting, the chairperson of the NSCTM, appointed by the Company, Dave Loftus, wrote to the three district managers of operations of the Company. In his letter he mentioned that, in the past, the local training committees had “very limited support mechanisms”, so sub-committees responsible for specific geographic areas were being appointed to complete the training within specified timelines.

75. Mr. Moore-Gough explains that Mr. Loftus’s concern was that the local management was not supporting the TMC training efforts. The cost of the training was from the Company’s head office budget, but the cost of the replacement workers and overtime was borne by the local budgets. This discouraged local management from supporting the release of employees for the training. Mr. Loftus was attempting, by writing to the regional managers of the Eastern Canada Division, the Prairie Division and the Pacific Division to explain to them the Company’s obligation under the TMA to implement the necessary training initiatives.

76. On July 17, 2000, Mr. Moore-Gough wrote to Mr. D’Amico, then the Company’s Chief Mechanical Officer. The first three paragraphs of that letter read as follows:

I am writing in respect of a problem at the MacMillan Yard Locomotive Reliability Centre concerning the implementation of the Trade Modernization Agreement. We have had a number of heavy duty mechanics and electricians take a training upgrade course and write their test for attaining red seal (interprovincial) status. Some have passed red seal (which requires 70% to pass) some have failed red seal but have passed provincial certification (which requires 60% to pass) and some have failed to achieve either certification.

I understand that the Company is taking the position in Toronto that once an individual takes the test that if the individual fails the Company’s responsibility towards attaining red seal status is closed. This, however, is not consistent with the Trade Modernization Agreement. The Agreement provides for a commitment to ongoing training towards Tradesperson status. It was recognized that there may be limited certain circumstances in which an individual will be unable to achieve Tradesperson status, however, any decisions concerning ending training towards that end must come from the Labour Adjustment Committee.

When I review some of the cases in Toronto, I find a number of individuals within a few marks of achieving either red seal or provincial certification. To deny these individuals further training or further opportunities to write again is not only inconsistent with the Trade Modernization Agreement but also is a waste of time, effort and training that has been expended.

Mr. Moore-Gough calls on Mr. D’Amico’s assistance to address this situation.

77. From the Company’s perspective, the understanding reached at the November 1, 1997 meeting was that, once the required training had been provided, that fulfilled the Employer’s obligation, despite the success or otherwise of the individual in the trade certification examination.

78. The Union continued to be frustrated by the training being done by the Company under the TMA, so, it proposed in September 2000 (demand #22), as part of bargaining a renewal collective agreement, that an agreed deadline be established for completion of all training under the TMA “in order for all employees to achieve red seal status in their respective trade”.

79. This proposal was not adopted by the parties in their collective agreement for the period 2001-2003, but a Memorandum of Agreement was concluded on March 6, 2001, Attachment 10, that addressed the demand. The relevant portions of the letter from Mr. Dixon, Vice-President, Labour Relations and Employment Legislation, to Mr. Moore-Gough read as follows:

The following is without prejudice to the parties’ respective views regarding the intent and application of [the TMA].

The Company and the Union both had concerns regarding Trade Modernization which were discussed at length.

The Union expressed concern regarding the notion of training (or the perceived lack thereof) being provided by the Company under the terms of [the TMA], dated September 12, 1996.

The Union pointed out that the Company was falling short of the Union’s expectations regarding the quanta of training (on-the-job, in-house or class room), and also that the training was not being offered at all locations on the system. The Union also proposed that it considered Trade Modernization training to be mandatory for employees, and implemented on a “senior may, junior must” basis, at each location.

The Company, in order to address the demands of the Union, is willing to commit to the following measures, under the terms of Appendix X [the TMA].

The Division Mechanical Officer and/or the Chief Mechanical Officer and the Regional Vice-President of CAW Local 100 will meet annually, but not later than March 1^st, to review progress made at each location in the preceding year, and also to discuss training plans for each location for the present year.

Upon request from a Regional Vice-President of the Union, the Company will provide details of the nature of the training provided and the number of employees trained by location and classification.

The Company commits to offer training to employees for every location on the system.

…

The foregoing represents full and final settlement of … Union demand #22.

80. The Company makes the point that there is no reference in this document to red seal training, or of any obligation on the part of the Company to pursue the training of those in the three shopcraft trades to red seal status.

81. Mr. Moore-Gough recalls that the first time the Company said it would not carry out red seal training was in about 2001 or 2002. Mr. Fisher recalls the objection to any red seal training being made in 1997 and consistently thereafter.

82. No employee of the Company has been terminated or laid-off for failing to be certified in their trade, provincially or interprovincially.

The training actually done

83. Susan Seebeck, the Company’s Senior Training Manager, testified. She told of the Company’s investment in training. In around 1995 the annual training budget was about $14m. It increased to $16m in 2006. By 2000-01, because of the integration of the Illinois rail service, it increased to about $23m. Much of this involved out-sourcing costs. Over the next few years all technical training was integrated within the Company, which resulted in a significant cost saving. Then a decision was made to decentralize training across the regions, with the result that the Company’s central training budget is about $7m annually.

84. For the period between 1996 and 2002, approximately 15% of the Company’s training budget was spent on training required under the TMA. Given that the Union’s shopcraft bargaining unit constitutes about 8.6% of the Company’s workforce (or 12.6% of its Canadian workforce), this meant that more was being spent on training for this unit than on other categories of employees.

85. The amount spent on TMA training between 2002 and early 2004 dropped to about 5% of the Company’s training budget, below the ratio of shopcraft employees to the Company’s staff complement. The reason for this was that Ms. Seebeck was advised on the likely resolution of the TMA dispute with the Union, and that no further training expense need be incurred. (The Company’s belief that the TMA dispute was resolved was addressed in the award I issued in this matter on May 16, 2006).

86. The effect of this reduction was that, since 2002, only new hires receive trades modernization training. This is so that they meet the trade qualification for one of the three new trades. Consequently, before 2002, the Company arranged for upgrade training and assessment of shopcraft employees by the colleges and the taking of trade qualification examinations, but since 2002 the colleges no longer do assessments and upgrade training of existing employees.

87. In the period from 1997 to 2002, the Company spent about $1.2m on upgrade training and assessment of existing employees from colleges like Centennial, Red River, and the Northern Alberta Institute of Technology. Another $1m spent on apprentices during this period.

88. Since early 2004 technical training has become the responsibility of the regions, so the training under the TMA must come from the regional training budgets. TMA training expenditure no longer comes from the central training budget.

89. The total spent by the Company on TMA training from the conclusion of the agreement in 1996 until the end of January 2007 was $14.7m. This figure does not include the facilities costs, the costs of the materials used in the courses, and the replacement wages of those covering for those taking the training.

90. About 73% of all training expenditure by the Company on the shopcraft unit in the period 1995 to 2007 was spent on TMA training, upgrading employees’ technical skills to meet the requirements of the three new trades.

91. As of the time of the hearing, the following training had been given by the Company. In Edmonton and Winnipeg all of the electricians, and some in Toronto, have been trained to provincial trade status. Most of the carmen had been trained. In Alberta most heavy duty mechanics are red-sealed, through the apprenticeship program in that province. Some heavy duty mechanics in Winnipeg and Toronto were trained. No other employees in the Prairie region had been trained. In Great Lakes Region, only a handful of employees had received training to provincial trades status. None of those trained had passed the provincial trade examinations. New training was scheduled, but has not occurred. No-one had been trained in Atlantic Canada, or in Quebec, or in British Columbia.

92. The new hires since 1996 went into a registered apprenticeship program and then obtained red seal status. However, the Union alleges that some were refused release to take the training and their tests. In addition, the Union alleges that in Prince George, B.C., heavy duty mechanics are not being put into the apprenticeship program.

93. It appears from the above that, until 2002, the Company was substantially complying with its training obligations under the TMA, despite criticism from the Union that not sufficient training was being given. Since then, there has been significantly less effort by the Company to arrange training under the TMA.

94. Ms. Seebeck explains some of the difficulties. Substantial progress was made in the upgrade training for those in the flow trades to the qualifications for the three new trades. It is not clear from the evidence how much of this type of training is still needed. Many of those working in the three trades were trained (or, as apprentices, are being trained) to achieve the qualifications for the three new trades. However, as regards the next step – the upgrading of skills to outside trade qualification – only the easier part of this task has been accomplished. Ms. Seebeck clarifies that those who fitted the upgrade profile were, in large measure, trained to the requisite level, yet there are many others within the trades who cannot readily be upgraded, particularly the car mechanics.

95. Ms. Seebeck was involved for the Company in trying to secure recognition of the railway trades from the provincial apprenticeship boards. These negotiations occurred principally with the colleges, which acted as proxies for the apprenticeship boards. She discovered that certain provinces were not willing to change their apprenticeship requirements to accommodate the limited range of work skills performed within the railway industry. The work experience of those within the shopcraft unit was not sufficient for the apprenticeship work experience required by certain of the provinces. As a result, the on-the-job training obtained by apprentices within the Union’s bargaining unit was not sufficient to obtain trade certification. This was particularly true in Quebec, which had secondary level educational requirements beyond the on-the-job training. As a result, the TMC focused its trade qualification training in Edmonton, Winnipeg and Toronto.

96. The difficulty for the TMC in obtaining recognition for the on-the-job training received by shopcraft apprentices is that there is no clear comparator for the car mechanic trade. The heavy duty mechanic has a provincial equivalent, as does the electrician, not so the car mechanic.

97. The mismatch between what the Company could offer in work experience, and what was required by the provinces was as follows: about 30-35% for heavy duty mechanics, about 30% for electricians, and about 60% for the car mechanics. In other words, for heavy duty mechanics the Company’s work experience was providing about 65-70% of the on-the-job training required, and about 70% for the electricians; but the work experience offered by the Company provided only about 40% of what was required of a car mechanic to obtain the steel fabricator ticket, which the TMC saw as the equivalent portable trade outside of the railway industry.

98. Ms. Seebeck explains that this shortfall, this mismatch as she calls it, cannot be addressed by training. It involves a difference in the work that is performed by the three trades – heavy duty mechanic, car mechanic and electrician – in the railway industry as compared to that performed in the recognized trades outside of the railway industry. The work hours augment the training, but the training cannot substitute for the lack of work hours in areas of expertise not covered in practice by these three trades.

99. The Company and the TMC tried to find a solution to this problem. Various options were considered, e.g. bringing work in. Eventually the focus of the Company changed to trying to get approval from the provincial authorities for the three railway trades to be given provincial and interprovincial trade status.

100. These difficulties inform the Company’s justification for the position it has adopted on the TMA dispute. It sees its task as trying to achieve provincial recognition for the three railway trades, so that there is portability across industry. It sees the goal of the TMA as being to persuade the various provincial apprenticeship authorities to accept the equivalency of the on-the-job training offered within each of the three trades as being sufficient for provincial and interprovincial trade qualification.

What training obligations did the Company undertake in the TMA?

101. The Union contends that the Company undertook two things, which the Company disputes. The first is that training would be mandatory for all employees, subject to certain exceptions approved by the LAC. The second is that the training would be to the level of portability outside of the railway industry.

102. On the first point, the Company takes the position that the requirements that employees undergo training, and that the Employer provide that training, were directory, not mandatory. The Union argues the training is peremptory and it must be provided by the Company.

103. On the second point, the Company takes the position it has no obligation to train employees for portability outside of the railway industry.

104. What does the collective agreement say on the two points of contention? On the first point, the relevant provisions are Articles 1 and 2 of the TMA:

105. The Company undertook, by these provisions, to train all of the shopcraft employees to achieve tradesperson status within their trade. Their trade is defined by Article 4 of the TMA: car mechanic, heavy duty mechanic or electrician. The Company is also to ensure that every employee, from the previous seven crafts, is trained so as to be able to perform the requirements of the new trade efficiently and safely. The obligation applies with respect to all employees who are enabled to continually upgrade their knowledge, skills and abilities within their recognized trades.

106. Paragraph No.2 of Mr. Waller’s letter to Mr. Moore-Gough of December 1, 1997, signed also my Mr. Moore-Gough, addressed this question. The first sentence reads: “It was agreed that training would not be mandatory for employees who would otherwise be eligible to take advantage of available options such as bridging and early retirement.”

107. Mr. Moore-Gough’s evidence is that the training would be mandatory subject to agreed exceptions. Mr. Bateman’s evidence is that, throughout, the Company took the position that the training would be voluntary.

108. What appears from Mr. Waller’s (Mr. Bateman’s) carefully worded letter, at paragraph No.2, is that the parties agreed that training would not be compulsory for those who would otherwise be eligible to take advantage of available options, such as bridging and early retirement. No agreement beyond that is expressed in the letter. Beyond that the Union maintained that other employees would be required to attend training, subject to exceptions on a case by case basis. Nothing is said of the Employer’s position, but it is not recorded as an agreement with the Union. This suggests that the Employer was maintaining its view that training would not be mandatory, as Mr. Bateman testified.

109. I find that there are mandatory and permissive aspects to the Company’s obligation in the TMA. The Company shall ensure all employees are properly trained to achieve tradesperson status, and it will provide “job skill development and classroom training to the extent necessary to enable employees to continually upgrade their knowledge, skills and abilities within their recognized trade”. The language does not clearly indicate whether employees are obliged to undergo the training offered by the Company. Certainly the Company is obliged to offer the training, but it is not clear that every employee must accept that offer. There is no explicit statement that employees shall attend the training provided by the Company, subject to exceptions. The employees are to be enabled by the Company’s training obligation, without a clear concomitant duty to avail themselves of the opportunity.

110. The March 6, 2001 Memorandum of Agreement that resolved Company demand #37 and Union demand #22 in the bargaining for the 2001-2003 collective agreement, clarified and resolved this difference between the parties. The following is stated: “The Union also proposed that it considered the Trade Modernization training to be mandatory for employees, and implemented on a ‘senior may, junior must’ basis, at each location”. The recording of the Union’s proposal clarifies that the Employer did not agree with this interpretation of the TMA. Then, to resolve the demands, among other things, “The Company commits to offer training to employees from every location on the system”. There is no statement that employees shall avail themselves of the offer of training. As a consequence the Company is obliged to offer training to every employee, and implicitly the employees to whom the training is offered can accept or reject the offer. To the extent there was doubt as to whether the training was compulsory prior to the March 6, 2001 agreement, since then the training is no longer compulsory for every employee.

111. The March 6, 2001 agreement begins as follows:

The following is without prejudice to the parties’ respective views regarding the intent and application of [the TMA].

112. Does this without prejudice qualification to the agreement affect the agreement that the Company needs to offer training at every location? I have found that the March 6, 2001 agreement implicitly clarified that employees were not required to attend such training. In my view, the without prejudice qualification concerns only the parties’ respective views of the TMA. They are not required by the March 6, 2001 agreement to change their views. The effect, though, of this agreement is that the Company’s obligation is to offer training, and employees have a choice as to whether they will avail themselves of it.

113. So, to the extent there was doubt as to the compulsory nature of TMA training, the March 6, 2001 agreement clarified that, from then on, the Company was obliged to make the training available to any employee who wished to avail themselves of it. The training is therefore not mandatory for all employees, but the Company is required to provide the training for those who want it.

114. The second point concerns portability outside of the railway industry.

115. I start with the provisions of the TMA. As the Employer contends, there is no reference to interprovincial portability, to red seal training, in the body of the TMA. The agreement portion of the TMA, which contains the parties’ respective rights and obligations, as distinct from the preamble, has no reference to portability or red seal training.

116. The Union relies on the last sentence of the preamble, “the parties agreed to enhance the skills of existing employees and to achieve portability of the trades to outside the Rail Industry”.

117. Mr. Moore-Gough’s evidence is that the parties could not dictate to the provincial authorities what was required for provincial certification. The parties, in conjunction with the provincial authorities, had to review the various trades and their designations. In some instances the authorities would want to come into the workplaces to see what work was being done before they would agree that a trade designation could be used. The first thing the TMC had to do was to meet the provincial authorities to determine how the trades would be recognized by the provinces and to see what curriculum of training would be required.

118. As regards the question of portability, Mr. Mathieson’s letter to Mr. Moore-Gough and Mr. Moore-Gough’s reply in November 1996 are helpful in clarifying the parties’ intent. The new trades created by the TMA had no status provincially; they had no recognition as trades; and there was no recognized apprenticeship in the new trades. The three new trades emerged from seven crafts that had provincial recognition. These were trades for which there were recognized apprenticeships, recognized provincial certifications. What was needed by the parties was recognition of the new trades, their provincial certification. That is what is stated as one of the two key mandates of the TMC by Mr. Mathieson in his letter to Mr. Moore-Gough of November 8, 1996: “review the requirements for provincial certification in the new trades and establish an appropriate curriculum”. The other key mandate was to “determine the curriculum required to elevate affected CAW employees to the level of the new trades within CN”. Employees who were not trained in all the functions of the three new, modernized trades were to receive training to elevate them to the level required to perform all of the functions of these new trades.

119. In substantial measure, this is what Mr. Moore-Gough confirmed in his reply to Mr. Mathieson on November 14, 1996. Both Mr. Mathieson and Mr. Moore-Gough were of the view that the target was to obtain provincial certification for the new trades and to establish an appropriate training curriculum. As Mr. Fisher contends, in the initial stages following the conclusion of the TMA, there was no common expectation that the training must meet the requirements of outside, provincially-recognized trades.

120. Did this change, though, in the meeting between Mr. Waller, Mr. Bateman and Mr. Moore-Gough on November 1, 1997 (almost a year later), recorded in the document both Mr. Waller and Mr. Moore-Gough signed?

121. Paragraph No.6 concerns red seal qualification. I quote the paragraph again for ease of reference:

122. It does seem, despite Mr. Bateman’s evidence to the contrary, that here Mr. Waller was accepting the premise that the Company would train employees to at least to the level of being able to challenge the provincial trade examinations. The Company was contesting whether it would have to repeat payment for this training if an employee, having received the training, failed the examination. The paragraph records that the Company would not be obliged to repeat the training costs. But the clear implication of the Union conceding the training would not need to be repeated (subject to overall review by the LAC) was that the Company was obliged to carry out the training in the first instance to enable the employee concerned to challenge the inter-provincial trades examination.

123. How does this letter gel with the terms of the TMA? The Employer argues, in my view correctly, that the parties are bound by the terms of the TMA, not by a letter concluded between Mr. Waller for the Company and Mr. Moore-Gough for the Union. Mr. Waller and Mr. Moore-Gough did not have the authority to vary the terms of the TMA, i.e. to alter the obligations the parties had incurred in their collective agreement (the TMA being a part of the collective agreement).

124. Furthermore, in subsequent bargaining for renewal of the collective agreement for the period 2001-2003, the Union sought to agreement from the Company that a deadline be set for all training under the TMA for all employees to achieve red seal status in their respective trades. That proposal was not agreed.

125. Despite the absence of a reference in the TMA to train individual employees to a level that would enable them to face the provincial examination for red seal certification, in practice during the period 1997 to 2002, the Company undertook a training obligation to each employee to enable that employee to face the provincial trade examination, and the Company acted upon it. As is evident from Ms. Seebeck’s testimony, significant effort and progress were made towards this type of training. Many employees were trained to the level contemplated in paragraph No.6 of Mr. Waller’s letter of December 1, 1997.

126. Furthermore the TMC, including the management representatives on it, acted in a manner as if the Employer had undertaken the obligation to train employees to be able to challenge the provincial trades examinations.

127. In addition, management cooperated with the investigations being conducted by the provincial authorities to determine what training and experience was required for provincial certification of those in the three new trades.

128. In all of these circumstances, the Company represented to the Union, at least in the period 1997 to 2002, that it accepted the obligation to train employees to face the provincial trade examinations.

129. Notwithstanding this past practice, the provisions of Articles 1 and 2 of the TMA are not ambiguous and they can be interpreted on their face. In my view, the reference to red seal training confuses proper consideration of what was to happen. In the TMA the parties undertook to obtain recognition from the provincial authorities of the three new trades. The anticipation was that there would be little difficulty obtaining recognition of the heavy duty mechanic and electrician trades because of their similarity to existing trades, but there was going to be difficulty obtaining recognition of the car mechanic trade. Nonetheless the parties undertook to do this in conjunction with the provincial authorities. This is what is meant by the preamble commitment to achieve the portability of the trades to outside the rail industry.

130. Then the parties agreed that the Company would undertake the training of all employees to achieve tradesperson status within their trade. This meant training them to the level at which they could write the provincial trade examinations and receive their provincial trade certificate. The TMA said nothing of the level at which employees had to pass the examination, nothing about a red seal pass. The Employer had simply to provide the necessary to training to enable the employee to have a reasonable prospect of facing the provincial trade test.

131. So, the aim of securing provincial recognition for the new trades went hand in hand with the training that was to be done. The parties were to arrange provincial trade recognition, and the Company, through the aegis of the TMC, was to ensure that all employees had the training opportunities to face the provincial trade tests.

132. These were the obligations the Company undertook, and these were the obligations that, in substantial measure, the Company fulfilled until 2002.

The result

133. From the above, until 2002 the Company in large measure complied with its obligations under the TMA, as amplified by practical agreements between the parties. There was collaboration between the Union and the Company with the provincial authorities to obtain recognition of the three new trades. There was also a significant amount of training of employees to enable them to take the provincial trade examinations.

134. In 2002, for reasons explained in my May 16, 2006 award, the Company ceased the TMA training. The Company argues that the TMA has not time limit within which to provide the training and that the delay in the provision of training under the TMA is not necessarily a breach. I do not agree. Article 8 of the TMA, which requires best efforts to ensure full implementation of the TMA in an expeditious manner, requires the ongoing provision of training, as occurred prior to 2002. By failing to fulfil its TMA training obligations since 2002, the Company breached the obligations it had undertaken, as I have described them.

135. I therefore uphold the Union’s grievances concerning trades modernization training, subject to what I say above regarding the nature of that training obligation.

The relief due to the Union

136. In the Union’s Joint Statement of Issue, the Union requests, as relief, that the Company be directed to provide a training plan for all locations across the system to deliver the necessary training and to abide by that training plan. The Union also seeks compensation of those in the Company’s employ on September 10, 1996 whose training was delayed and who have not been sufficiently trained to satisfy the red seal qualifications criteria.

137. In recommending an amount of compensation the Union suggests that over the 6-year period since 2002 approximately 720 employees should have been trained at a cost of between $25,000 - $30,000 each, resulting in damages of between $18m and $21.6m. Alternatively, the Union suggests that each employee in the bargaining unit receive $5,000 as compensation, provided the training plan is put in place.

138. The first part of the Union’s claim for relief is reasonable, in my view, and I direct the Company, within a period of three months from the date of this award, to prepare, for joint discussion with the Union, a training plan for all locations across the system to deliver the necessary training. This training is to enable those who wish to avail themselves of it to be able to challenge the provincial trade tests in order to achieve tradesperson status within their recognized trade (car mechanic, heavy duty mechanic, or electrician).

139. Should there be some dispute between the parties concerning the implementation of this direction regarding the training plan, I remain seized to determine the dispute by mediation-arbitration.

140. The Company’s training obligation is to ensure, once for each employee who avails themself of the opportunity, that the employee is trained to a level that will give them a reasonable opportunity to satisfy the requirements of obtain tradesperson status within their trade.

141. As regards the Union’s claim for monetary compensation, I can find no legal basis for doing so. There has been a lost opportunity for employees during the 6-year period since 2002, but there is no evidence of actual financial loss, no evidence of layoffs or of loss of earnings. There is no evidence of any actual cost to any employee as a consequence of the failure by the Company to provide the requisite training.

142. In my view, the appropriate remedy for the Company’s failure to provide the training over the past 6 years is to accelerate the training to be offered in the forthcoming period to make up expeditiously for the lost opportunity. This requirement for an accelerated training schedule should be incorporated by the Company into the training plan it prepares, as I have directed above.

143. As stated earlier, I remain seized to deal with any dispute between the parties concerning implementation of this award by way of mediation-arbitration.

DATED at TORONTO on October 8, 2008.

_____________________

Christopher J. Albertyn

Sole Arbitrator