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8 Canadian HR Reporter, a Thomson Reuters business 2018 April 16, 2018 ARBITRATION AWARDS The site was located about 30 kilometres away from his home in Happy Valley-Goose Bay. Bishop worked the first 10- hour shift without incident, but the next evening, he was advised by Brett Landsberg, supervisor, that no further work was available due to a safety shutdown at the site. Bishop was paid five hours for showing up, but he also didn't work on June 3 and 4. Later, Bishop found out Chad French had worked the two shifts. As shop steward, Bishop was the most senior employee in the Pardy's bargaining unit and it was specified in the collective agree- ment that "the employer will fol- low the principle of last on — first off and, following a layoff, rehiring shall be executed on the principle of last off — first on." Bishop grieved the missing 10 hours of pay and requested to be paid the higher wage for the oper- ating engineers' wage schedule in the Muskrat Falls collective agree- ment, because he estimated he worked 75 per cent to 99 per cent of his shifts during that rotation under that wage schedule. The union, International Union of Operating Engineers (IUOE), Local 904, argued Bishop was covered by the Pardy's collective agreement and not the Muskrat Falls collective agreement, which it argued began to apply after the employee crossed the brass point and entered onto the job site. Pardy's also said that because the job was for a separate contrac- tor Barnard/Pennecon, his rights under the Pardy's collective agree- ment did not apply. The employer said the contrac- tor rented equipment hourly and it decided to cancel the shifts due to the shutdown. Pardy's argued Bishop's shifts were cancelled, and therefore he was not laid off. Arbitrator James Oakley dis- agreed and upheld the grievance. "The employer shall pay com- pensation to (Bishop) for loss of income on June 3 and 4, 2017, in an amount calculated by refer- ence to the amount paid to Chad French," said Oakley. "I find that the Pardy's collec- tive agreement applies to (Bish- op's) scheduled work," said Oak- ley. "The agreement applies to work performed in the Happy Val- ley-Goose Bay area such as gar- bage disposal and vacuum truck services." The argument that Bishop was not covered under the Pardy's colllective agreement was firmly shot down by the arbitrator in his ruling. "A reduction of work, with an unequal impact on employees, is a layoff. I find that the cancellation of (Bishop's) shift on June 3 and 4 was a layoff within the meaning of article 6.05 of the Pardy's collec- tive agreement," said Oakley. "There was a reduction in the available work and (Bishop) was treated differently compared to the employee who continued to work" said Oakley. "The differential treatment amounted to layoff. Under the principle of last on — first off, stat- ed in article 6.05, (Bishop) should have continued to work on June 3rd and 4th," said Oakley. Reference: Pardy's Waste Management and International Union of Operating Engineers (IUOE), Local 904. James Oak- ley — arbitrator. Tim Sullivan for the employer. Ronald Pink for the employee. Dec. 13, 2017. back seat. The motion caused his shoul- der to separate, which Nixon testi- fied registered a 9.8 on a pain scale of one to 10. Because this wasn't the first time it happened to Nixon, he testified, so he knew he had to go to hospital immediately, be- cause the first-aid office at Deere- Hitachi would not be equipped to handle such an injury. Nixon phoned his brother to take him to the hospital and his brother arrived on-site around 1:12 p.m. While waiting for his brother to arrive at the job site, Nixon called the main office number and left a message. Nixon then texted his friend, Chris McGovern, who worked at Deere-Hitachi and asked him to notify his supervisor that he wouldn't be working that day. "Tell him I signed in but I fell on my way back to my car," wrote Nixon in the message to McGov- ern. Around 1:20 p.m., Terri Gan- der-Rowe, HR manager, was ad- vised that Nixon was injured and she phoned him. Nixon told her that he had fallen in the parking lot. Gander-Rowe then began an investigation into the parking lot video, to see if she could deter- mine exactly what happened. After the video footage was examined, the employer found no evidence Nixon actually fell. Al Quadling, production su- pervisor, met with Nixon on Nov. 14 to further inquire about the in- cident. Again, Nixon said he fell in the parking lot. Nixon also said he wouldn't be filing a worker's com- pensation claim and he needed two weeks away from work, as per doctor's orders. Another meeting happened on Nov. 22, when Gander-Rowe asked Nixon to again explain what happened. Quadling and a union steward were also supposed to be in attendance. When Nixon arrived, he found only Gander-Rowe was in the room, so he decided to tell the truth. "There is something I have to tell you. I didn't fall in the park- ing lot," said Nixon. When asked why he didn't tell the truth immediately after the injury, Nixon said he was "embar- rassed." The employer issued Nixon an indefinite suspension and on Nov. 27, he was terminated. The union, the International Union of Operating Engineers (IUOE), Local 115, grieved the de- cision and argued the punishment was too harsh and progressive discipline was a better option. The employer argued because Nixon lied five times about the injury, dismissal was acceptable. Arbitrator John McConchie upheld the grievance and ordered Deere-Hitachi to reinstate Nixon but without back pay. "(Nixon's) offence, being dis- honesty, was serious, but it was not among the most serious of the dishonesty offences. (Nixon's) decision to spare himself embar- rassment and the potential dis- belief of the employer was foolish and dishonest, but it does not put him beyond redemption with this employer. His lie did not mask an underlying wrong, such as theft, or even that he had the ability to attend work but decided not to do so at the last moment," said Mc- Conchie. Because he has apologized re- peatedly, Nixon would most likely not do it again, said the arbitrator. "I also conclude that (Nixon) was and is remorseful and now under- stands how his truly bone-headed idea could cause so much trouble for his employer." Reference: Deere-Hitachi Specialty Products and International Union of Operating Engineers (IUOE), Local 115 . John McConchie — arbitrator. Michael Kilgallin for the employer. Brett Matthews for the employee. March 19, 2018. 'Differential treatment amounted to layoff,' rules arbitrator < Separated shoulder pg. 1 < Temporary layoff pg. 1

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