Canadian Labour Reporter

October 12, 2020

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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found both Klapatiuk and anoth- er driver in the warehouse. Klapa- tiuk said "We can't f---ing hot load" the pulp and that it was "too much." He didn't raise his voice but he had a frustrated tone. The supervisor said that if it was too much, they could put the pulp on the floor and load the rail car from there instead of directly from the production line, but the other driver said it was too much work for one day. Klapatiuk told he supervisor, "No offence… but you don't f---ing know how to do the job." The other driver became agitated and swore, and Klapatiuk tried to smooth things over by saying "It's OK… we're just frus- trated." The supervisor reported the exchange to Cariboo manage- ment, saying that both drivers sounded frustrated but the other driver yelled and used profanity. Afterwards, she was upset and said she had to hold back tears. She went home after her boss told her she didn't have to be at work when she was treated like that. The fibre line manager learned of the incident and assigned the shift supervisor to investigate. The shift supervisor met with both drivers. Klapatiuk admit- ted to using the work "bitch" in reference to the supervisor when talking to the coworker but said the supervisor didn't understand how loading rail cars worked. He said he was willing to apologize and felt sorry for how things hap- pened, though he didn't feel re- sponsible for what the other driv- er said and he felt that it wasn't "that big a deal." He also said he may have used profanity but it wasn't directed at the supervisor and he had tried to de-escalate the situation. On Aug. 30, Cariboo suspend- ed Klapatiuk for 3.5 days without pay for violating the company's bullying and harassment policy. The other driver received the same suspension. The union grieved the suspen- sion, arguing that it was an exces- sive amount of discipline. The arbitrator found that some of Klapatiuk's language and tone that he used towards the super- visor and coworker was bullying behaviour, but Klapatiuk showed "appropriate insight into the na- ture and gravity of his miscon- duct" during the investigative interview. He didn't try to hide his misconduct as he admitted what he said. The arbitrator also found that Klapatiuk tried to de-escalate the situation and spoke to the supervisor with "self-control and awareness that the exchange was hurtful" while the other driver acted more aggressively, and he expressed remorse and a willingness to apologize after- wards. However, Cariboo didn't distinguish between Klapatiuk's behaviour and that of the other driver. The arbitrator set aside the 3.5- day suspension and substituted a one-day suspension in its place, adding that such a suspension should be enough to make the point that "a repeat of this behav- iour will carry much more serious consequences." Reference: Cariboo Pulp and Paper and Unifor, Local 1115. Arne Peltz — arbitrator. Don Jordan, for employer. Craig Bavis for employee. July 13, 2020. 2020 CarswellBC 2282 Worker later expressed remorse for comments Collective agreement allowed for single steward appoint one for the carpet divi- sion and one for the hardwood division if there were employees or piecework/subcontractors working in each. The agreement stipulated that the piecework crew upon which the steward was a member would be one of the last two crews employed in the event of layoffs. In April 2017, QSG concluded a share purchase of Weston Hard- wood Design Centre, a supplier and installer of flooring, which had the same union as QSG. QSG entered into a single collective agreement covering employees of both companies and the Ontario Labour Board confirmed that an intermingling of employees due to the sale of a business had oc- curred. Just prior to the sale, the union had appointed Herbert Diaz as a steward for Weston's hardwood division. The appointment car- ried over to QSG. In October 2017, the union informed QSG by letter that it was appointing Jose Hernandez as steward under the collective agreement. Like Diaz, Hernandez worked as a pieceworker in the hardwood division. QSG didn't respond to the letter and didn't make any inquiries about Diaz's status. On Nov. 25, 2019, QSG laid off Hernandez. At the time, more than two other pieceworkers and their crews were still working for the company, including Diaz. The union filed a grievance, arguing that Hernandez was a steward who had been appointed without dispute from the com- pany and, under the collective agreement, he could not be laid off while there were more than two piecework crews still per- forming work for QSG. QSG disagreed, pointing out that the collective agreement al- lowed for a single steward unless there were employees or sub- contractors working in both the hardwood and carpet divisions. At the time of Hernandez's layoff, there were no employees working in the carpet division. The arbitrator found that both Diaz and Hernandez worked in the hardwood division and Diaz was appointed as a steward with Weston. When the workforce merged, Diaz became the steward for the merged hardwood work- force, as there was no existing steward in QSG's hardwood divi- sion at the time, said the arbitra- tor. The arbitrator found that Diaz's appointment was never revoked and the collective agree- ment didn't permit the union to appoint two stewards for the hardwood division. As a result, Hernandez could not be a stew- ard as long as Diaz was still in the role. The arbitrator pointed out that the union was only entitled to appoint a second steward when there were employees or subcon- tractors working in the carpet di- vision as well as the hardwood di- vision, which was not the case at the time of Hernandez's appoint- ment. Even if there were workers in the carpet division when Her- nandez was appointed, as soon as there were none, his status as a steward would end, said the arbi- trator. "[Hernandez] therefore was not properly appointed as a steward in the hardwood divi- sion and there is no support for the proposition that [his] ap- pointment revokes the prior ap- pointment of Diaz as steward," said the arbitrator, adding that it didn't matter that QSG didn't ob- ject to Hernandez's appointment when informed by the union since the collective agreement didn't require the company to re- spond. The arbitrator noted that since Diaz continued to be a steward af- ter Hernandez's layoff, there was no detrimental effect from the layoff and the union still had its interests represented. The arbitrator determined that QSG didn't breach the collective agreement when it laid off Her- nandez. Reference: LiUNA, Local 183 and Quality Sterling Group. Robert Kitchen — arbitrator. Joseph Liberman for employer. Neil Keating for union. Aug. 19, 2020. 2020 CarswellOnt 12930

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