IN THE MATTER OF AN ARBITRATION
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA
(CAW-CANADA LOCAL 101)
(MULTIPLE GRIEVANCES - DISQUALIFICATION)
ARBITRATOR: Tom Hodges
FOR THE EMPLOYER: Adrianne McCulloch, Manager, Human Resources
Al May, Operations Manager, Wheel Shop
Hans Thrien, Operations Manager, Track and MF
Owen Jones, Manager, Quality and Safety
FOR THE UNION: Brian Stevens, National Representative
Rick Broszeit, Vice President, Prairie Region
Garry Vandenbossche, Grievance Chair, Winnipeg
HEARING: July 13, 2010, Winnipeg, Manitoba
AWARD: August 2, 2010
The parties agree that I have jurisdiction to hear argument and render a decision as an Arbitrator
pursuant to the Rule 29 of the Collective Agreement.
Between December, 2008 and May, 2009, 28 employees from the CPR Winnipeg Diesel or Car Shops
received layoff notices and attempted to exercise their seniority to the nearby Progress Rail facility.
Management at Progress Rail determined that the 28 employees would not be able, either immediately
or in a reasonable period of time, to qualify on the positions claimed. As a result, the employees were
laid off while more junior employees remained employed. The Union contends that the Company’s
disqualification of the individuals amounted to a violation of Rule 23.28 of the agreement, and in some
instances Rule 17 and Appendix 12, and requests that the 28 employees be made whole for whatever
loss incurred. The Company disagrees in this regard, and has declined the Union’s grievances.
Progress Rail and the CAW have categorized the 28 employees affected by this dispute into four groups.
Group A encompasses three Diesel Mechanics who were laid off from the CPR Winnipeg Diesel Shop
between December of 2008 and March of 2009. They were formerly Electricians with Interprovincial
Red Seal Certificate of Qualifications, and were displaced to Progress Rail as Maintenance Electricians.
Soon after electing to displace they were disqualified by Progress Rail management. Some six months
later Progress Rail chose to provide training to the employees. They were then deemed qualified, and
assumed the Maintenance Electrician positions initially denied at Progress Rail.
Group B comprises five Diesel Mechanics who were laid off from the Winnipeg Diesel Shop on
March 9, 2009 and displaced to Progress Rail the same day. Following a verbal interview with the
Employer, also that same day, they were disqualified. Their layoff from Winnipeg Diesel Shop became
permanent in September/October of 2009, and the five employees were subsequently provided
training, deemed qualified, and were placed in the positions initially denied at Progress Rail.
Group C is made up of nine Diesel Mechanics, plus four Diesel Mechanics who were former Electricians.
They were laid off from Winnipeg Diesel Shop in March of 2009 and were refused displacement to
Progress Rail following a verbal interview. They were recalled to the Diesel Shop in late-summer.
Also in this group is Rail Car Mechanic Alex Chubinski, who was laid off from the Winnipeg car Shop
on November 19, 2008. He displaced to Progress Rail on November 23, 2008, and while he satisfied
the welding requirements of his position, he was subsequently disqualified account lack of production.
The Union then asked that Mr. Chubinsky be accommodated under Rule 17 of the Collective
Agreement, which governs circumstances of disability. The Company did not believe the situation to be
such a case, and declined the CAW request. Mr. Chubinsky was recalled to the CPR Winnipeg Car Shop
on January 11, 2010.
Group D involves six Rail Car Mechanics who were laid off from CPR In March-May of 2009. They
attempted to displace to Progress Rail but were all disqualified. They subsequently completed
familiarization training of various lengths, were deemed qualified, and were placed in the positions
initially denied at Progress Rail.
The CAW does not openly allege any instance of bad faith, arbitrary behavior, or discrimination in the
circumstances surrounding this dispute, but rather, a flawed and unreasonable process. They believe
that the employees affected were summarily disqualified without any consideration of work history,
after just a verbal interview/test, and with no bona fide opportunity to demonstrate skills and abilities.
The Union contends that the Employer failed to consult with the grievors and their representatives,
or provide the required written explanation and reasons in support of their decision to disqualify,
as contemplated by Rule 23.28. They allege as well that the provisions of the Rule afford every
employee, at a minimum, a 30 day trial period for qualifying, if they so require. As such, they request
that the disqualifications be ruled invalid, and that the matter of settlement be turned back to the
parties for resolution, and that the Arbitrator retain jurisdiction should the parties be unable to
conclude the matter. They do not ask that affected employees simply be declared qualified but that due
to the absence of a proper process they be allowed to sufficiently demonstrate whether or not they can
qualify in a reasonable period of time.
The Company maintains that the employees identified in Groups A, B, C and D were in fact properly
disqualified in accordance with the provisions of Rule 23.28. They assert that this clause of the
agreement provides management with the discretionary right to assess the likelihood of an employee
being able to qualify for a given position within a period of 30 days. The Employer also maintains that
Rule 23.28 does not mandate a 30 day trial period, but rather the opportunity to conduct a subjective
assessment as to feasibility. They believe as well that a review of the qualification questionnaires clearly
indicates that the training required to ensure the proper skill and knowledge would require an extensive
period of time, well beyond the 30 days provided for in Rule 23.28.
The Company argues that the Union has not, in their view, provided any evidence to support the
contention that the disqualifications were conducted in a bad faith, arbitrary of discriminatory manner.
With respect to Mr. Chubinski, the Employer further argues that there was no violation of either Rule 17
or Appendix 12, and that the employee, in exercising his seniority, fell short in demonstrating the
required skills and abilities. Management also declared that some of the displacing employees expressed
concern for their own safety had they been allowed to work the position initially claimed.
Finally, the Company says that it provided training to the grievors approximately six months after the
original decision to disqualify the grievors on a voluntary basis. It does not accept that the training was
offered in recognition of any collective agreement obligations.
The Progress Rail Facility in question is the former Weston Main Shops of CPR, located in Winnipeg. In
an agreement dated March 29, 2000 between the parties, Progress Rail assumed control and
management of this aspect of CPR Operation support. The agreement between the parties is enshrined
as Appendix 42 of Collective Agreement No. 101 between the CPR and the CAW Local 101. Of particular
import within its text is the following:
CPR and Progress employees at Weston who are represented by the CAW will be placed on a common seniority list by classification to be used for the purpose of staffing all positions at Weston. CPR Weston employees as well as other CPR employees outside of Weston will maintain existing seniority rights and obligations to CPR Weston positions.
In all respects, CPR employees at or outside Weston will continue to enjoy the same seniority rights as at present. As examples, and without limiting the generality of the foregoing, all CPR positions at Weston that would continue to be advertised outside Weston at present, will continue to do so, as set out in Rule 23. Any employee currently entitled to displace at Weston would still be able to so, under the same circumstances as at present. Where a CPR employee is unable to hold a position in Winnipeg outside of Weston, it is expressly understood that such employee will have the additional right to displace a junior Progress employee at Weston.
Rule 23.28 of the Collective Agreement lies at the core of the instant dispute between the parties, and
as such, warrants its full reproduction within the body of this award:
An employee claiming a position in the exercise of seniority, who in the judgment of the Company cannot reasonably be expected to qualify to perform the duties required within a period of 30 days or less, shall not be denied such position by Management without consultation with the Local Union Representative.
An employee exercising seniority, who, in the judgment of the Company can reasonably be expected to qualify for the position claimed, shall be allowed a trial period which shall not exceed 30 calendar days, except that by mutual agreement between the Regional Union Representative and the proper officer of the Company, such period may be extended up to 90 calendar days, in order to demonstrate his ability to perform the work required.
Should an employee be denied a position being claimed in the exercise of seniority, or should he fail to qualify during a trial period, he and his authorized representative will be entitled to receive an explanation in writing from the proper officer of the Company, including the reason for the decision rendered, which shall be subject to appeal in accordance with the grievance procedure.
Where an employee is disqualified from holding a position at any time during the specified trial period, such employee will be returned to his former position. This will not necessitate additional bulletins.
Appendix 29 of the Collective Agreement further solidifies the principle under debate, in item i) of the
March 29, 2001 Letter of Understanding with respect to concerns at Weston Component Shops
regarding the substantial training required for the operation of certain machines and manning of specific
In accordance with the provisions contained in Rule 23.28 of the Collective Agreement, employees shall be afforded the thirty day trial period for qualification purposes, if required.
These three core clauses of the Collective Agreement when read as a whole, as they should be read,
meld to form compounding provisions that govern the rights and obligations of the employees who
were in service at the time of the formation of Progress Rail from the former Weston Shops. The 30 day
qualifying period is as a result well ensconced as an opportunity for an employee who has been
adversely affected, and the CAW goes so far as to venture that Appendix 29 makes it an absolute rather
than a potential.
What is certain is that an employee cannot be judged by the Company as unable to qualify within the
30 day period and thus denied a position without consultation with the Local Union Representative.
Equally evident is that an employee so denied or an employee failing to qualify within a trial period is
entitled to a written explanation with reasons.
Progress Rail management has emphatically asserted its right under the provisions of Rule 23.28
to make the determination of whether or not an employee has the wherewithal to qualify for a given
position within a specified period of time. They cite Brown and Beatty Section 6:3100 in support:
…. the primary function of an Arbitrator’s review is to ensure that the judgment of the company be honest, and unbiased, and not actuated by any malice or ill will directed at the particular employee, and second, the managerial decision must be reasonable, one which a reasonable employer could have reached in the light of the facts available …... even when arbitrators assert jurisdiction to review an employer’s decision as to the relative abilities of several employees on the merits, there remains a strong presumption of arbitral deference to the employer’s judgment. The following caution is one that many arbitrators have echoed: an arbitrator must realize that an employee’s supervisors are in the best position to judge his qualifications and an arbitrator should for that reason hesitate to substitute his own judgment for that of the company …..
This principle was reinforced by Arbitrator Picher in his findings from SHP 233, wherein he stated that:
If anything, the position of the Company is stronger under the language of that article. The thrust of the Union’s complaint is that the grievors were denied a trial period in the paint shop. Before being allowed such an opportunity, the applicant must “in the judgment of the Company” reasonably be expected to qualify for the position. The language so framed vests a subjective discretion in the Company. In the face of such language an arbitrator ought not lightly interfere, absent evidence of arbitrary, discriminatory or bad faith treatment on the part of the Company. Those things are clearly not alleged in the instant grievance.
And further, in a case from January of 2009, involving the same parties as the current dispute,
Arbitrator Picher allowed that:
On a plain reading of the paragraph it appears that it is at that point, prior to the employee commencing the work that the Company determines that he or she cannot reasonably be expected to qualify within a period of thirty calendar days or less. That judgment, at the point when the job is claimed, requires consultation with the Local Union Representative. The paragraph does not speak to the removal of an employee who, at the outset, was reasonably expected to qualify, where experience on the job shows that the individual is in fact in difficulty and will not qualify within the thirty calendar day period.
During the hearing, the Arbitrator was drawn in particular to the circumstances of the disqualification of
Diesel Mechanic Frank De Oliveira. At the time of his layoff from the CPR Winnipeg Diesel Shop on
March 9, 2009, he was an employee with roughly 20 years of service, almost all of it at the Progress Rail
Facility and its predecessor Weston Main Shops. Evidence submitted by the Union and not refuted by
the Company indicated that Mr. De Oliveira’s work experience included five years on and off on the
Henri Line 5-Axis CNC machine. This is of interest as it was while attempting to displace on to a very
similar machine in March of 2009 that he was declared by management as unable qualify within 30 days.
At the very least, it would appear that the Company may have not taken all of the information available
to them into account when formulating their decision regarding Mr. De Oliveira.
The disqualification of Rail Car Mechanic Alex Chubinski warrants additional scrutiny. He was issued
notice of temporary layoff on November 24, 2008 as part of a staff reduction at the CPR Winnipeg
Car Facility. Upon displacing to Progress Rail, Mr. Chubinski underwent welding testing and training
in order for management to evaluate his ability to demonstrate the required welding skills . Once
deemed qualified, he was placed in a position performing welding on rail car bolsters on
December 1, 2008.
At that time, Mr. Chubinski advised the Employer that he had physical limitations that impacted on his
ability to perform railcar repair. Given his limitations, the employee was reassigned to the welding/
reconditioning booth, and received two days of training. It was determined, however, that
Mr. Chubinski was unable to meet the required production standards, and that he could not reasonably
be expected to qualify for the position within a 30 day period. He was disqualified from the position on
December 19, 2008.
The Union alleges a violation of Rule 17 and Appendix 12, the primary disability management
provisions of the Collective Agreement , believing that Mr. Chubinski should have been further
accommodated by the Company. However, there is no disputing that Progress Rail had indeed
already reacted in a positive manner by re-placing Mr. Chubinski in a position that had previously
been filled by another employee with similar medical restrictions. The question that remains is
whether the Company provided sufficient opportunity for Mr. Chubinski to demonstrate if he could
adequately qualify for the given position within a reasonable period of time. It would appear to the
Arbitrator that he did indeed qualify in terms of skill and ability, but was not yet performing to target
production levels. The Company maintains that this was sufficient reason to disqualify the employee.
The lingering thought, however, is that the Company, while not necessarily obligated to further
accommodate Mr. Chubinski for medical reasons, might have considered advancing the possibility, or
alternatively, addressed the production concerns with him and his representative with a view to
developing a plan for enhancing Mr. Chubinski’s output on the job.
Arbitrator Picher spoke in SHP 369 to such issues of reason and good faith, when an Employer is faced
with the assessment of a particular employee’s qualification to perform the duties of a given position:
As a general rule, boards of arbitration are reluctant to interfere where determinations in respect of the awarding of a job bulletin are, by the express terms of the collective agreement, vested within the judgment or discretion of the Company. In the instant case, however, the Arbitrator has substantial difficulty, absent any evidence advanced by the Company, in finding that it could reasonably, and in good faith, have formed the opinion that the grievor could not reasonably be expected to qualify to perform the duties of the bulletined position within the thirty calendar day period.
It is duly noted that the CAW also alleged a violation of Appendix 45 of the Collective Agreement as an
element of the instant dispute. I defer to Arbitrator Picher’s treatment of this contention, emanating
from the January, 2009 case cited above, regarding a dispute of similar nature involving the same
However, the Arbitrator is compelled to accept the submission of the Employer that Appendix 45 has no application in the case at hand. Appendix 45 of the collective agreement deals exclusively with the trades modernization program, whereby the parties agreed to certain definitions respecting the work jurisdiction of a number of trades with allowance being made for a certain, albeit defined, permissible overlap in functions. It is not a provision which has any bearing on the merits of the instant
dispute as the grievor was at all material times assigned to perform machinist’s work.
From the Arbitrator’s perspective, given all of the material and representations provided by the parties,
it would appear that on balance the principles of due process, contemplated under the compounding
provisions of the Collective Agreement that have been cited above, were not fully embraced in judging
whether or not the employees were qualified to displace to positions at Progress Rail. At a minimum,
there should have been adequate, more than passing, consultation with the Local Union Representative
at the point at which a decision was enacted to disqualify an employee up front without opportunity to
qualify in a reasonable period of time. Moreover, the CAW has argued, quite rightfully in my mind,
while relying on the wisdom imparted by Arbitrator Veniot in Province and Nova Scotia and N.S.G.E.U
184L.A.C. (4th) 422, that any written notice must contain sufficient detail for the employee to fully
comprehend the reasons for the disqualification. Although the Company argued that there is no
language within Rule 23.28 that sets out specific requirements for a disqualification letter, I am
persuaded that a simple form letter cannot possibly satisfy the intent that was envisioned by the original
parties to its creation.
The Arbitrator has additional difficulty with the evidence presented that none of the 28 employees
affected were initially deemed qualified, coupled with the fact that a short time later approximately half
of them became qualified after receiving training of duration that could be considered as falling under
the umbrella of Rule 23.28. Without a doubt, this latter action can be considered more in line with the
letter and intent of the salient provisions of the agreement between the parties. As for the 13
employees who were recalled to the Diesel Shop, there is no reason to believe that they would not have
qualified at Progress Rail, had they not been recalled to CPR, and in the alternative, been given the
comparable training at Progress Rail.
Production and productivity are legitimate Employer concerns, but must be addressed in the proper
manner befitting an organization of Progress Rail’s stature , and in accordance with the collective
agreement. It is my earnest recommendation to the parties that they agree to meet in the wake of this
award, and jointly develop a displacement/qualification process and protocol document that is
consistent with the instructive provisions of the Collective Agreement, and thereby aid in avoiding, in
the future, circumstances such as those surrounding the current dispute.
The grievance must therefore be allowed. The affected employees are to be compensated for any lost
earnings and benefits and pensionable service that they may have incurred during the period from when
they were disqualified from displacement to Progress Rail until they were subsequently qualified or
recalled to the CPR Shops.
I remain seized to address any issue dealing with the interpretation or application of this award.
Dated this 2nd day of August, 2010