Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 July 16, 2018 ARBITRATION AWARDS from a supplier in Alberta to ar- range for a pickup on Sept. 23. "We got from loads of fowl from Ponoka, Alta., at the last moment for this Friday night. Whoever is interested has to respond by 5 p.m. To balance out the hours, I might change the schedule for the rest of the week so that ev- eryone gets their 80 hours. First guarantees will be done and then overtime will be allotted," read a text from the employer's logistics manager that was sent to all driv- ers. Young plus five other drivers accepted the pickup, which the employer estimated would take about 14 hours. It was scheduled for a Friday, which was a regularly scheduled day off. A senior driver was given one run, while the three most junior drivers were also given the assign- ment. Young and another senior driver were not. Young filed a grievance that al- leged Gurpreet Ghag was given the run — in violation of the col- lective agreement — as he was ju- nior in seniority to Young. But the employer, Prairie Pride Natural Foods, said it adjusted Ghag's routes so that before add- ing in the extra run, his hours for the week would be 30. Ghag's other routes were given to a driver with more seniority that Young. The Ponoka run took longer than expected and Ghag earned 19.25 hours of overtime for the trip. "Overtime shall not be allo- cated to any employee that may provide hours of work in excess of the basic work week, unless no employee that would be work- ing less than the basic work week is available and willing to do the work," read article 11.06, which overruled the seniority provision, said Prairie Pride. The union, United Food and Commercial Workers (UFCW), Local 1400, argued that even though the employer adjusted various schedules to adhere to its guarantee of 80 hours every two weeks, the Ponoka run should have been considered overtime and therefore offered only to the most senior employees. Arbitrator William Hood agreed and upheld the grievance. "We order the employer to pay (Young) for 17.875 hours at the rate of time and one-half, less six hours at the rate," said Hood, backed by fellow board member Maurice Werezak, but not by Ri- cardo Corvino, who wrote a dis- senting opinion. (Young was already paid six hours for the week in question, which brought his total to 80 hours for the two-week period.) "Overtime is not a concept tied to the guarantee of 80 hours per two-week pay period. The only reference to overtime in the guar- antee is that overtime hours may be counted to satisfy the guaran- tee. There is no reference that the guarantee of 80 hours per two- week pay period sets a threshold for overtime in article 11," said Hood. "The employer's analysis of al- locating overtime based on hours worked in a two-week period as opposed to the one-week period is flawed," said Hood. "The union's analysis is pre- ferred." Reference: Prairie Pride Natural Foods and the United Food and Commercial Workers, Local 1400. William Hood — arbitrator. Leah Schatz for the employer. Dawn McBride, Sachia Longo for the employee. March 9, 2018. 2018 CarswellSask 133 Employer's overtime allocation analysis flawed: Arbitrator < Overtime denial pg. 1 Steelworkers (USW), Local 1-423, and he should have been paid $0.50 per hour less than the cer- tified journeyman rate, as per the collective agreement. On Jan. 12, 2017, Sherwood filed a grievance. After Kachenko left, a planer technician was assigned to be available to Sherwood should the need arise, but Sherwood was given the main responsibility to maintain the same planer that Kachenko was responsible for. The technician also left the company in February 2014. In December 2016, Sherwood approached Trevor Mackenzie, maintenance supervisor, and said he should be paid the non-certi- fied journeyman rate of pay be- cause he was doing the same job as a millwright ever since Kachenko left. After Mackenzie took the re- quest to management, the issue was studied because nobody else with the employer was being paid by the non-certified rate. Management concluded that the stipulation in the collective agreement stemmed from an ear- lier version that was created to ad- dress new rules around certifica- tion in the province. Arbitrator John Kinzie allowed the grievance. "(Sherwood) is to be compen- sated for the difference between the non-certified journeyman millwright's rate of pay and his apprentice rate from the date he received his trades qualification certificate in October 2017 and began receiving the certified rate retroactive to 14 days prior to Jan. 5, 2017, the date the grievor took his grievance up verbally with Mackenzie," said Kinzie. While he legitimately began his time as an apprentice on a train- ing basis, Sherwood's work after Kachenko left showed that he was working as a millwright, accord- ing to the arbitrator. "Initially, I can accept that he was learning from doing the job on an independent basis includ- ing consulting with operations staff and planning and organizing the work he had to perform ," said Kinzie. "However, after several months of performing that same job on the same basis, I am satisfied that there wasn't a 'genuine training purpose' any longer. By then, he would have known the job and would have been performing the full scope or central core of its du- ties for some time," said Kinzie. "The employer had simply de- cided to replace Kachenko in the planer infeed area with the grievor, after it had failed in its efforts to find a replacement for him," said Kinzie. The case was "unique," said the arbitrator which necessitated the unusual ruling. "That need for a replacement coupled with the capabilities of the grievor resulted in the unique solution of an apprentice replac- ing a journeyman," said Kinzie. "That unique solution then resulted in the cessation of (Sher- wood's) continued training and his becoming the journeyman responsible for the maintenance and repair of the planer infeed area ," said Kinzie. "That result in turn justified the need to pay the grievor the wage rate based on the actual work he was performing, i.e., the work of a journeyman," said Kinzie. Reference: Weyerhaeuser and the United Steelworkers, Local 1-423. John Kinzie — arbitrator. Kim Thorne for the em- ployer. William Clements for the employee. June 22, 2018. 2018 CarswellBC 1646 < B.C. apprentice pg. 1 "(It) resulted in the unique solution of an apprentice replacing a journeyman. "

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