Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS February 13, 2017 another worker, Paddy Naylor, ran up to him shortly after he began operating the machine and told him to stop because they were on a wood changeover. Harsh words were exchanged with each man calling the other a "f---ing idiot" and resulted in Nor- bury walking to the lunchroom where he told Darrin Busscher, the night shift foreman, his side of the story. Norbury wrote a statement of the incident for Busscher then went back to work. About an hour and a half later, Naylor and Vanderbasch approached Nor- bury about the earlier episode. Norbury said that Vanderbasch was angry and he accused him of blowing it out of proportion by informing management, "ratting out union brothers" and "sucking up" to managers. Norbury said Vanderbasch told him he was going to closely moni- tor his future actions and especial- ly his coziness with various man- agers, which Vanderbasch said wasn't good for the union. When later asked by Buss- cher about that incident, Nor- bury wrote: "He then stated that I would not have any union support in any future matters and I was on my own." Later, Norbury spoke with the local's president, Brian Butler, about the events. In further interviews with man- agement, Norbury reported he had been bullied constantly by other workers writing "rat" beside his name on bulletin boards. Western Forest Products said in its reasoning for the firing that Vanderbasch was a "repeat of- fender who has engaged in a pat- tern of intimidating conduct to- wards a co-worker on the heels of a final warning that his employ- ment would be terminated should he engage in such behaviour." But the union, United Steel Workers, said Norbury's testimo- ny was not credible and Vander- basch's version should be believed. Vanderbasch claimed he merely wanted to counsel Norbury not to escalate little events up to man- agement and instead they should be worked out on the shop floor among the union members. The union said Vanderbasch's action did not constitute harass- ment and the resulting termina- tion was too harsh. Arbitrator Richard Coleman agreed and upheld the grievance. "It may well be that Norbury has been the object of acts and comments which well fit the definition of bullying and harass- ment, in particular if he has been called and labelled with the kinds of names and epithets listed in this award. There is evidence that these comments have poisoned the workplace for Norbury. But the events that occurred on June 23 do not fit into that category," said Coleman. The message delivered by Vanderbasch was not harassment but a discussion of how Norbury should have acted after his en- counter with Naylor, according to Coleman. "I reject the suggestion that Vanderbasch tried to intimidate Norbury. He instead tried to com- municate the union view that the kind of altercation alleged to have occurred between Norbury and Naylor should be dealt with by people on the shop floor and with the union reps' involvement, prior to involving management and a formal investigation." Vanderbasch was given back his old job and the termination or- der was annulled. "Harassment is a serious sub- ject and allegations of such an of- fence must be dealt with in a seri- ous way, as was the case here. The reverse is also true. Not every em- ployment bruise should be treated under this process," said Coleman. Reference: Western Forest Products and USW, Local 1 - 1937. Richard Coleman — arbitrator. Greg Heywood for the employer. Sandra Banisterfor the employee. Dec. 21, 2016. Nova Scotia worker wanted to apply but post removed WHEN TWO full-time trans- port department equipment operators retired from the Nova Scotia Department of Transport and Infrastructure Renewal in 2014, area manager Troy Webb posted two open positions on a bulletin board, but then hours later he removed them after a talk with other managers. The trans- port department was operating under tightened budget con- straints. Steve Stewart saw the postings and intended to apply but they were removed before he could re- spond. So he and his union, the Cana- dian Union of Public Employees (CUPE), Local 1867, grieved the decision, arguing the department had a duty to offer the full-time positions to casual or spare work- ers looking to gain more perma- nent jobs. In the collective agreement, which was signed in October 2013 and retroactively took ef- fect in 2011, it detailed 35 main- tenance and construction zones for the estimated 1,000 workers in the roads crew maintenance department. Zones 10 and 11, located in the New Glasgow area had 14 year-round equipment operators in zone 10 and nine in zone 11. The agreement did not spe- cifically state how many workers were employed in each zone, but CUPE argued the department was obligated to keep the num- bers the same in the zones, espe- cially if there was no reduction in the amount of work to be done, which there wasn't. The company explained that when the collective agreement was signed, there was a need for the full-time operators but in the past few years, the costs of certain raw materials such as road as- phalt has increased creating bud- get pressures for the department. Arbitrator Eric Slone dis- missed the grievance, arguing there was nothing specifically spelling out how many workers should be employed in each de- partment. "There is no basis in the evi- dence before me to conclude that the 2011 agreement, with its new way of classifying employees, cre- ated a fixed number of positions in any of these classifications that had to be filled and main- tained. Nor is there any history to fall back upon, this being a new agreement where the issue had not previously arisen," he said. The department's budget is- sues gave management the right to decide on how to reduce costs and using attrition was a gentle way of decreasing the labour force, according to Slone. "The employer had the right to consider whether there was suffi- cient work to justify filling the va- cancy. I accept that the employer was under budgetary pressure and by 2014, had to rationalize its work and workforce and perform less work than it had previously been doing. Reducing the com- pliment by attrition was a decent gesture, in the sense that no one had to be laid off. But, on the oth- er hand, no further opportunities for advancement were created." As well, the decision to cut the number of staff was not done in bad faith, which in other cases led to a grievance being upheld by an arbitrator. "Management's decision to reduce the compliment of year- round equipment operators ap- pears to have been a reasonable exercise of the employer's rights under the management rights clause, and was not made in bad faith or arbitrarily," said Slone. "Seniority rights in this context do not dictate that the employer cannot shrink the workforce, and reduce the number of year- round employees (such as equip- ment operators) where financial constraints force it to adhere to a shrinking budget for labour." Reference: Nova Scotia Department of Transport and Infrastructure Renewal and Canadian Union of Public Employees, Local 1867. Eric Slone — arbitrator. Kevin Kindred for the employer. Wanda Power for the employee. Jan. 13, 2017. < B.C. pg. 1

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