Canadian Labour Reporter

November 19, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2018 November 19, 2018 ARBITRATION AWARDS 20 years of service. Burnett re- fused the award and said that he should have received the honour three years previously. In January 2013, Burnett heard that Pat Smith, general manager, would receive a 35-year service award. Smith told Burnett he started work at the co-op in 1977, also as a student. When he found out Smith was to receive the honour, Burnett was told he would receive the same award. Finally, in May 2016, Burnett filled out a vacation note for Cory Weedmark, supervisor. After talking about the issue with a payroll employee, Burnett was advised that Weedmark's student hours were counted to- ward his vacation time. Burnett and the union, the Re- tail, Wholesale, and Department Store Union (RWDSU), Local 544, grieved and alleged that in 1986, 1987 and 1988, he only re- ceived three weeks of vacation, when he should have been given four. In 1995, 1996 and 1997, Bur- nett received four weeks, but he should have been given five, ac- cording to the grievance. Also, in 2000, 2001 and 2002, Burnett received five weeks per year, but he should have received six weeks' time off, according to the union. The official files of the employer list Burnett's senior- ity date as 1977, not 1981, as they were updated during the 2013 to 2016 collective agreement years. The co-op argued that seniority changes were made during the 2008 bargaining sessions, due to provincial definitions regarding students that had changed. As president of the local union, Burnett was privy to the discus- sions then, but he didn't grieve any missed vacation time then. This showed Burnett was too late in making the grievance, ar- gued the employer. Arbitrator William Hood (backed by Laura Sommervill, employer nominee, but dissented by Don Erhardt, union nomi- nee) agreed and dismissed the grievance. "The delay in this case is not days, weeks, months or years, but decades. The delay stretches back to 1980. The most recent cause of action is founded in 2000, when (Burnett) claimed he was entitled to six weeks' vacation and was only provided with five weeks." "(Burnett), having been de- prived of his graduated vaca- tion-entitlement rights with full knowledge of their existence, albeit disputed by the employer, delayed in bringing the griev- ance. This leads to the inference that (Burnett's) rights have been waived," said Hood. The blame for the missing vaca- tion allotment should be placed on Burnett and the RWDSU, said Hood, even though the employer should have provided him with more vacation over the years. "(Burnett) was at the bargain- ing table for the union when the go-forward changes were made in 2007-08 to track student hours for vacation entitlement. The union did not raise the issue of retroactivity that would address (Burnett's) claims. We would have thought that if these claims were alive, the issue would have been pressed. The fact that it was not pressed until 2016 is more consis- tent with the message the claims were water under the bridge and off the table." "Sleeping on one's legal rights may, in and of itself, militate against granting relief from breach of a time limitation. (Bur- nett's) conduct was far more than the mere sleeping on his rights. For the period from 1986 to 2015, the employer had every reason to believe (Burnett) knowingly was not pursuing the claims. The employer had reason to believe (Burnett) was satisfied when the employer recognized his long- service award," said Hood. Reference: Discovery Co-Operative and Retail, Wholesale, and Department Store Union, Local 544. William Hood — arbitrator. Gary Bainbridge for the employer. Robert Frost-Hinz for the employee. Oct. 29, 2018. which was an emergency-stop button, then he pulled out two of three disconnects for his equip- ment. He went to the top deck, then pushed debris from beneath and placed it on the belt. Corbin saw what Jenkins was doing and immediately came up to him to say he didn't follow the company's lock-out tag-out (LOTO) procedure when shutting down the equipment. LOTO called for all energy sources to be isolated and then locked with a padlock so nobody could accidentally turn on the power while another worker was inside a machine. The worker would be the only one who could unlock the padlock. Twin Rivers Paper had been cracking down on LOTO mishaps due to a fatal accident and more scrutiny from WorkSafeNB. The procedure mandated a one-week suspension after the first offence and termination after the second one. After he was challenged by Corbin, Jenkins testified that under the procedures manual for his job title, it said, "general clean- up of the sticker/picker area re- quires no lock-out" but only that the "E-stop panel be pushed." Jenkins was sent home after the incident and was later terminated. Safety supervisor Mark Fitzhebert testified that the docu- ment entitled Training Plan for Labourer Sticker Picker said: "When cleaning under top deck at sticker-picker work station, lock, tag and try is required. Stick- er-picker unscrambler and top deck both need to be locked out." Corbin said that after the Nov. 1 incident, a sign was placed near the top deck that read: "Lock out equipment before entering." The union, Unifor, Local 5080, grieved the termination and said Jenkins' previous LOTO sanction in 2015 was well outside of the sunset clause and it shouldn't have been considered by the employ- er. As well, the union took um- brage with the company's LOTO training, which only consisted of written documents. Arbitrator Michel Doucet up- held the grievance and ordered the company to reinstate Jenkins. However, Jenkins was not entitled to compensation because he "was not forthcoming in accepting responsibility for his action." "(Jenkins), having had no other lock-out violation in the year pri- or to Nov. 1, 2017, could not be discharged. The decision to dis- charge (Jenkins) should therefore be declared null and void." And once he was back on the job, said Doucet, Jenkins should take heed of his action regarding the missed lock-out. "(Jenkins) should not under- stand my decision as condoning his actions. Rather, he should see it as a chance that he is given to prove that he can be trustworthy and that he understands the im- portance of safety-related rules." Twin Rivers Paper was also ad- monished for its role. "It is important that this con- fusion be cleared up and that the employees be informed of their safety obligations in such circum- stances." And Jenkins should have taken his own personal safety more ser- iously, said Doucet. "As to (Jenkins') knowledge of the lock-out procedure, I note that he signed attendance lists for the various safety sessions offered by the employer. If he did not under- stand what his obligations were, he had the obligation to ask ques- tions; he never did." Reference: Twin Rivers Paper and Unifor, Local 5080. Michel Doucet — arbitrator. Bradley Proctor, Dominic Caron for the employer. Oct. 3, 2018. 2018 CarswellNB 396 Company, worker shared blame for miscommunications As union head, employee should have known: Arbitrator < Sawmill pg. 1 < Grocery-store worker pg. 1

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