(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.


And further:

 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




Tom Hodges