Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS February 27, 2017 that stated he would receive a sus- pension instead of a dismissal and that he must remain free of any further disciplinary issues for one year. The agreement included 15 de- merit points to be assessed against him going forward. On Nov. 18, 2015, Lougheed said he removed his safety glasses to rub his eyes. He originally said it was only for a brief moment, but after an investigation, it was determined he removed the glasses for lon- ger that he should have. Before he removed the safety glasses, he advised a trainmaster that he was doing so to remove garbage. In a letter, CP gave the following formal reason for his firing: "For failing T-21 safety proficiency test, for not wearing your safety glasses in the locomotive while in Winnipeg yard." The union, Teamsters Canada, grieved the decision arguing the small misstep was not a proper use of progressive discipline and was too harsh. As well, Teamsters said the company didn't conduct the in- vestigation in a fair and impartial manner. Arbitrator Graham Clarke ruled in favour of Lougheed when he ruled the termination should have been imposed only if he con- tinued to have attendance prob- lems, not for the removal of safety glasses. "For a termination resulting from progressive discipline, the existing disciplinary record and the culminating incident must be clear. The arbitrator then consid- ers the penalty of termination," said Clarke. "CP has not established that Lougheed's most recent incident, when read together with his past record, justified the ultimate pen- alty of dismissal." The company claimed that Lougheed had received previous disciplinary notices when he was found to have removed his safety glasses. "CP referred to previous E-tests and Lougheed's alleged failures. Lougheed commented during his interview that he had never been told of some of these failures," said Clarke. But because Lougheed was sub- ject to the reinstatement agree- ment at the time of his dismissal, nothing indicated that he could be terminated due to a safety viola- tion and the culmination of prop- erly administered progressive dis- cipline. "This case is not one where a party seeks to enforce a last- chance agreement," said Clarke. "Moreover, a failure to respect critical safety issues is found no- where in the parties' March 16, 2015, reinstatement agreement. Rather, the parties' agreement fo- cuses on attendance/availability at work." The employer was ordered to reinstate Lougheed and replace his termination with a written warning. Reference: Canadian Pacific Railway Company and Teamsters Canada . Graham Clark — arbitrator. Dave Pezzaniti, Dave Guerin for the employer. Ken Stuebing for the employee. Jan. 16, 2017. Alberta welder laid off due to poor efficiency rating DURING A PERIOD of layoffs at Universal Industries in Lloy- dminster, Alta., welder Angus MacLellan was judged to be too slow completing his work and he was dismissed despite being the second-most senior welder. Over a 22-year career, MacLel- lan was only ever given one non- conformance report, indicating sub-standard work on one piece. In his most recent reviews — in 2012 and 2015 — he was judged to have average and above-average skills, with no negative remarks given. But in August 2015, manage- ment decided it needed to lay off some workers. MacLellan was one of the welders tapped to be laid off, while 10 less-senior welders retained their positions. He was recalled to work in No- vember, but he testified he would have switched to other work that was available, if it had been of- fered. Fabrication foreman Shane Smith and production superin- tendent Trevor Falcon collec- tively made the decision to lay off MacLellan based on the time he took to complete a D-doors as- signment in June 2015. As well, the overall work abil- ity and suitability for jobs were as- sessed and MacLellan was judged to be lacking, leading to his even- tual layoff. "(MacLellan) had a high rate of repairs, defect rate, on the work he was qualified to do.... (and) just put more time into fixing it than other individuals," said Falcon. MacLellan was observed as needing 158.5 hours to attach two D-doors to a frame, which was the longest of all welders who were re- corded during the period. By comparison, two other less- senior welders were recorded as 41.5 hours and 23.75 hours to complete the same assignment. Photographs were also pro- duced as evidence that MacLel- lan's quality of work was not ac- ceptable because they indicated his work needed to be polished to get up to standard. MacLellan said that this was a common practice whereby the quality control inspector would mark up photos with a grease pen- cil and return them to the jour- neyman welders, who would then fix any deficiencies. The employer testified that in previous rounds of layoffs, se- niority was the overriding factor in determining who would be let go, but because the Lloydminster shop was down to 26 workers, it needed to become more judicious in its decisions. The union, International Brotherhood of Boilermakers, grieved the layoff arguing the em- ployer should have given the more senior worker more consideration because his skills were compara- ble to the others and he was never given any counselling or guidance to address his perceived poor work skills. Arbitrator Tom Jolliffe upheld the grievance and ordered the company to compensate MacLel- lan for the time he was laid off. "There was no considered or suitable analysis of the grievor's ability on any comparable basis with all the other less senior em- ployees who were not laid off, and who presumably had the same tradesman qualifications and certification as MacLellan, who admittedly had worked on a wide variety of welding projects during his 22-year employment as a jour- neyman welder, whatever his im- mediate assignments leading up to the layoff," said Jolliffe. He dismissed the photographs of his poor work as not being rel- evant to this case. "The photographs of some cor- rective welds were taken more than a year after the fact and can have little weight in any layoff determination made in August 2015," said Jolliffe. As well, another less-senior welder continued to work while MacLellan was laid off, but was subsequently laid off himself before MacLellan was recalled indicating his skill level was not greater than MacLellan, as the employer argued. "It more likely raises the pros- pect that it was more convenient to allow him to finish the project on which he was working," said Jolliffe. "In my view, the evidence falls far short of showing on a substan- tial and demonstrable basis that the griever — with his consider- able experience and longstand- ing certification — was less able than all the other journeyman welders who were not laid off, which would be the accepted test for showing a person not to have relative equality with his cowork- ers by reference to such language as contained in Article 8.03 (of the collective agreement), albeit more usually applied to promo- tion cases." Reference: Universal Industries and International Brotherhood of Boilermakers. Tom Jolliffe — arbitrator. Ronald Robinson for the employer. David Mercer for the employee. Jan. 23, 2017. < CP conductor pg. 1

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