Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 November 26, 2018 ARBITRATION AWARDS Hodge immediately radioed to Healey and told him to park his truck and report to the supervisor. Healey did so and a general fore- man escorted him to speak with superintendent Jamie Henderson. Throughout the investigation, Healey continued to deny driv- ing the truck without a belt. Hen- derson and Rod Phillip, another superintendent, inspected the truck and they found the belt was hanging from its retraction area, but it was twisted so it wouldn't retract. Eventually, Henderson was able to loosen the belt and operate it in a normal fashion. In the past, truck drivers had complained about the restrictive nature of the shoulder belts, but they were supposed to be oper- ated with an add-on clip, which helped alleviate the problem. And because there had been incidents in the previous two months, in which two drivers were injured after not wearing seatbelts, Suncor had instituted a strict policy edict that mandated drivers wear their seatbelts at all times while driving. On the day in question, a daily safety document that drivers had reviewed before beginning their shifts, included a note written at the top that read: "WEAR YOUR SEAT BELT!!!" After inspecting Healey's truck, Phillip and Henderson took cell- phone pictures and returned to the office. Healey denied the photos were of his truck cab and he maintained his seatbelt was operating normally when he was seen by Hodge. Healey was told to go home for the day, but on the way, he was ad- vised via a phone call that he was terminated. The union, the International Union of Operating Engineers (IUOE), Local 955, grieved the decision and it referenced an- other driver at the company's Kearl Lake, Alta., operation, who was given a written reprimand in February 2018 after he duct-taped the shoulder belt so it wouldn't re- tract. For the Healey situation, arbi- trator James Casey upheld the grievance because of an "uneven application of discipline," but he did not order North American Mining to reinstate Healey. "(Healey) intentionally vio- lated an extremely important safety rule and has failed to ac- cept any responsibility for his actions. Upon being confronted by management, he denied that he was not wearing his shoulder belt and continued to deny it at the arbitration," said Casey. "Given these circumstances, I conclude that the employment re- lationship is no longer viable and, as a result, I do not reinstate (Hea- ley)," said Casey. Instead, North American Min- ing was ordered to pay damages to Healey. "Given the safety-sensitive en- vironment and the importance of compliance with the safety rule, I would have dismissed the griev- ance and upheld the dismissal but for the unequal level of disci- pline imposed on the Kearl em- ployee. Given the uneven level of discipline, I find that dismissal of (Healey) was too severe," said Casey. "The disparity between (Hea- ley's) sanction of dismissal and the Kearl employee's sanction of writ- ten warning is, in my view, simply too significant to not address. On the other hand, (Healey) has by his own actions destroyed the viability of the employment rela- tionship. He intentionally violated an important safety rule knowing full well the likely consequences if caught, and continued to deny that he did anything wrong," said Casey. "In my view, it would be in- appropriate to order reinstate- ment given these circumstances." Reference: North American Mining and International Union of Operating Engineers, Local 955. James Casey — arbitra- tor. Hugh McPhail for the employer. Murray McGown for the employee. Oct. 26, 2018. 2018 CarswellAlta 2414 not working, Bruce Foss, who was also the local union president of the United Steelworkers (USW), Local 7144 or Jason Foss would re- place him. On June 21, 2017, Foss sent an email to Sylvain Dagenais of Air Liquide and requested informa- tion about Hickey's soon-to-be departed position. "Who is or will be performing work regularly done by the CIT in Mount Pearl (a union position)?" The questions were not im- mediately answered by Air Li- quide, but Jeff Schiissler, Atlantic provinces regional operations manager, testified that he rec- ommended to John Craig, New- foundland and Labrador manager, that the CIT position not be re- filled after Hickey's retirement. Most of the work done by Hick- ey had been performed at one refinery, but the contract had not been renewed. As well, another part of Hickey's former job was deemed to not be profitable, after Schiissler performed an analysis of the work. VitalAire, a sister company of Air Liquide's, had decided not to use Air Liquide's CIT but to in- stead hire its own contractor, ac- cording to Yves Thériault, nation- al manager, technical services. After hearing this, Schiissler estimated the work for a new CIT to replace Hickey would average about 200 hours per year. The USW grieved the decision and argued the company violated article 1.03 (A), which read: "Per- sonnel excluded from the bar- gaining unit shall not assume such duties as are normally performed by employees in the plant bar- gaining unit." Because Hickey was the high- est-paid person in the bargaining unit, allowing VitalAire to re- place the CIT position externally undermined the remaining em- ployees, argued the USW. Both companies should also be considered as the same employer, said the union, and they cannot eliminate a position in the bar- gaining unit without consulting with the USW. Air Liquide countered and said both companies were sep- arate and operated separately, and because no layoffs were trig- gered, the collective agreement was not breached, according to article 1.04: "The union shall be informed in advance, where the company intends to contract-out to other employers work normally performed by members of the bargaining unit, which shall result in the layoff of any employee." Arbitrator James Oakley agreed and dismissed the grievance. "There was no layoff of any employee in the bargaining unit. Therefore, it is not established that the company was required by article 1.04 (A) to meet with the union to discuss performance of the work in advance of any con- tracting out." The company did not violate article 1.03 because "there was no evidence that other employ- ees in the position of supervisory personnel or personnel excluded from the bargaining unit were do- ing the work," said Oakley. Even though the two compa- nies shared work at times, "the ev- idence presented does not estab- lish that the work formerly done by Hickey was done by an employ- ee of Air Liquide outside the bar- gaining unit within the meaning of article 1.03 (A)," said Oakley. "The evidence does not estab- lish that VitalAire and Air Liquide are one and the same employer for the purpose of employment of the person doing the work formerly performed by Gus Hickey," said Oakley. Reference: Air Liquide Canada and United Steelworkers, Local 7144. James Oakley — arbitrator. Malcolm Boyle for the employer. Boyd Bussey for the employee. July 23, 2018. No layoffs triggered that would necessitate talks with union Shoulder-belt mechanism twisted to prevent retraction < Retired worker pg. 1 < Seatbelt pg. 1

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