Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2016 November 7, 2016 ARBITRATION AWARDS warehouse were to be paid a premium of $0.65 per hour for working inside the freezer. An additional $1.35 per hour was to be paid to employees who met a weekly productivity expectation. In 2010, the company decided to discontinue the expectation of productivity and simply pay work- ers $2 extra per hour for any work in the freezer: "All full-time post- ed freezer employees shall receive $2 per hour added to their regular hourly rate." But the next sentence in the ar- ticle reflected premium shift pay: "Employees temporarily assigned to work in the freezer shall receive the freezer premium as per cur- rent practice." Western Grocers did not fully consider a distinction between regular and premium pay in cal- culating overtime, sick leave, holiday pay and vacation pay. So the union grieved the practice in 2014, after a worker took a closer look at his pay stub. Preston Quinton regularly worked in the freezer and in Jan. 8, 2014, met with the employer during joint labour-management to discuss hours he had worked, saying he achieved the extra $2 per hour in 2013, but it was not reflected in the extra calculations. Darren Melnechenko, union representative, discussed the is- sue with Chris Dusky, who rep- resented the employer during contract talks. Dusky promised to clear up the issue with Quinton's pay. However, Dusky testified he did not agree to fix the issue, but that he would pass on the information back to Lee Jones, senior director, labour relations. Dusky left the company shortly thereafter and the issue with Quinton was not addressed. Quinton's pay stub contin- ued to reflect the problem, but it wasn't noticed because he didn't closely study subsequent pay stubs. On Oct. 3, 2014, Teamsters filed a grievance. During negotiations that even- tually produced a 2013 to 2016 collective agreement, John Taylor, Teamsters' chief negotiator during bargaining talks, said he proposed the premium wording change so that the $2 would become perma- nently attached to the work, effec- tively giving workers a raise. However, the company dis- agreed the wording should in- dicate a permanent change and instead said it should just be a continuation of the pay as pre- mium only. Negotiators for the company had a hazy recollec- tion of the initial talks about the premium, and said there were no examples of how the pay would be applied during negotiations. As to whether or not the new agreed-upon rate would be used to calculate overtime, sick leave, holiday pay and vacation pay, both sides had different recollections on this matter. Jones testified Western Gro- cers never would have agreed to what the union later said was agreed upon. In its submission, the company argued the contract wording con- stituted a continuation of the pre- vious contract's language about premiums, not regular hourly rate because the salary grids were not amended to reflect the extra $2. "I have concluded that the in- terpretation advanced by the union is to be preferred to the interpretation advanced by the employer. I am satisfied that an objective reading of article 8.05 in concert with other relevant pro- visions leads to a conclusion that the additional $2 compensation for full-time posted freezer em- ployees is intended to be includ- ed in their overtime and other payments," said arbitrator Allen Ponak. "Accordingly, on a plain read- ing of article 8.05 and in the con- text of other provisions in the contract, I am satisfied that the correct interpretation is that ad- vanced by the union: freezer pay for full-time posted freezer em- ployees is not a premium," said Ponak. He ordered the grievance up- held but affected employees would only receive compensation based on work 30 days prior to the decision. Reference: Western Grocers and Teamsters Local 987. Allen Ponak — arbitrator. Craig Neuman for the employer. Clayton Cook for the employee. Sept. 21, 2016. Aerospace firm fills position with non-union worker An aerospace company quickly needed to hire a new machine programmer after the incumbent worker quit his position. After interviewing six internal applicants, the company decided to give the job to a worker who was not a member of the union. It said none of the internal candi- dates were qualified and it needed to hire someone who would be able to master the complex com- puter-programming language that powers lathes and mills. An arbitrator sided with the employer and dismissed the union's grievance. David Xu was employed by Northstar Aerospace in Milton, Ont., but in a non-union capacity. He eventually replaced Jason Sten- gel who resigned on Aug. 14, 2015. The six workers were given a two-part test of their knowledge of machine programming, and a verbal interview. The test passing benchmark was established at 75 per cent, while the interview pass would be 50 per cent. None of the six passed the test. After Xu was tabbed to replace Stengel, the union, Unifor, filed a grievance on behalf of the six workers. Eventually, three re- mained attached to the grievance after the other three bowed out: Bhanubhai Patel, Ivan Drevensek and Devendra Bhatasana. In the test results, Drevensek scored the highest for the inter- view portion, at 45 per cent, while Bhatasana's 68 per cent led the group's test results. Xu received scores of 63 per cent for the inter- view and 82 per cent for the test. Bosko Maric, engineering man- ager for Northstar, conducted the interview and testing. He said none of the original six applicants had experience with the latest ver- sion of Mastercam software and would have needed "extensive training" to get up to speed in pro- gramming the machine. He pointed out Xu's knowl- edge of the software, from seven years of experience, and said he provided examples of previous work done, even though it was not required for the interview. Maric said he marked Xu harder than the other workers, but he still passed both components. In the collective agreement, there is language that allows the company to go outside the bargaining unit to fill a position when no internal candidates are qualified. However, there is also a provision that allows for a 30- day training period if bargaining unit candidates require it to fill a posted job. Unifor argued this qualified as a "threshold" clause that would au- tomatically award a position to the most-qualified worker. It also said the testing process was arbitrary. But the word "may" in the ar- ticles meant the employer has lati- tude in its hiring decisions, said arbitrator John McNamee. "The fact that the company may waive knowledge and experience qualifications in respect of an in- ternal applicant in certain condi- tions, does not oblige it to do so except, as between an internal applicant who has the required knowledge and an external appli- cant who does not have both the requisite knowledge, skill, ability and experience. The word 'may' in this context is permissive and not imperative," said McNamee. The union also argued that a training period should be ordered in this case, so that one of the af- fected employees could eventu- ally qualify for the position. "This collective agreement permits the employer to provide a training period at its discretion under certain circumstances but it does not grant to an arbitra- tor the authority to overrule a decision not to grant a training period," said McNamee. "In the absence of evidence, or even an al- legation, that the employer acted unreasonably or in bad faith, I am unable to accede to that request." Reference: Northstar Aerospace and Unifor Local 112. John McNamee — arbitrator. David Francis for the employer. Scott McIlmoyle for the employee. Oct. 16, 2016. < Freezer pg. 1

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