Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2019 CSR | January 2019 | News to ensure that power was shut off from the equipment. According to job overview documents, they were also to ensure that they were fully trained in all lockout proce- dures and if any doubts existed, to consult with a supervisor. Incident during cleanup Jenkins testified that on Nov. 1, 2017, the "mill broke down." He was instructed to clean up the area during the downtime, and since he needed to clean up fall- en material near the "top chain," he went up the stairs to push an emergency button designed to shut down dangerous equip- ment. After doing this, he pulled out two disconnects and went underneath the top deck to clear out the debris. At this point, supervisor Galen Corbin informed him that he had not followed the LOTO proce- dures, and Jenkins told Corbin that he didn't know that he had to follow the LOTO procedure to do the cleanup. At the hearing, Jen- kins referred to job overview doc- uments that provide that "general cleanup of the sticker/picker area requires no lock out," therefore he thought that pushing the emer- gency stop button was sufficient, and that the LOTO procedures were not required in clean-up. Supervisor Corbin testified that Jenkins moved the restrict- ing gates and passed under the equipment five separate times, did not place locks on the discon- nects as mandated by the proce- dures, and did not "try" to ensure the power was disconnected. Jenkins replied that he thought all that was needed was to place a bar over the disconnects. After the incident, Work- SafeNB reviewed Twin Rivers' LOTO procedure, and the in- spector did not make any recom- mendations. The mill superintendent ruled that LOTO procedure was vio- lated, and that Jenkins was be- ing discharged because he had already received a one-week suspension for a previous LOTO violation in 2015. The arbitration hearing Twin Rivers presented an estab- lished "Lock Out Expectations Procedure," introduced dur- ing labour/management meet- ings, in which failure to lock out equipment, tampering with another person's lock, or not following standard lockout pro- cedures were grounds for dis- ciplinary actions ranging from a one-week suspension up to termination for the first offense, and termination for the second offense. Jenkins maintained that he had never seen the documenta- tion, and that if he had, he would have followed the LOTO proce- dures. The safety supervisor said that Jenkins removing the retractable gate was a direct violation of the rules, and that if an employee needs to go underneath the top deck, the lock-out procedure should be followed. Supervisor Corbin testified that he had numerous discus- sions with Jenkins about the LOTO procedures, but Jenkins claimed he did not remember them. Corbin said there were safety meetings involving these proce- dures, a job training review, and an employee review question- naire, which Jenkins signed as having completed. The union representing Jen- kins asked Corbin if he had ever demonstrated the appropriate procedures on the floor of the mill, and he said that he had not, believing that Jenkins' training was sufficient and he was con- vinced that Jenkins knew what he had to do. There was a difference in un- derstanding whether LOTO procedures were to be followed during downtime cleanup activi- ties and Jenkins believed he had done nothing wrong. Determining violation and appropriate discipline According to the arbitrator, the issues in this grievance were: • Did Jenkins violate any "lock out" requirements on Nov. 1, 2017? • If so, did the collective agreement's "sunset clause" — which removed discipline from an employee's record after one year of no further incidents — apply to disciplinary measures imposed under the "lock out" requirement? • Notwithstanding any disciplinary guidelines in the employer's "lock out" policy, did the employer have just cause to terminate Jenkins' employment after a first violation? The arbitrator found that al- though there were inconsisten- cies in the documentation sur- rounding clean-up procedures, they did not justify what Jenkins did, and he was aware that what he was doing was against safety procedures. The arbitrator also did not find Jenkins' testimony credible overall; and inconsis- tent with what he said to his su- pervisors at the meeting at the mill after the incident. And, if he was unsure of his obligations, he should have clarified them with his supervisor, and he chose not to do so. However, he then ruled that the employer breached the collective agreement in that the first viola- tion should have been removed from Jenkins' employee file. And, to the claims that the employer could circumvent the collective agreement due to the seriousness of the violation, the arbitrator ruled the mitigating circumstances of the confusion surrounding Twin Rivers' clean- up procedures, the fact that the incident took place during a "downtime" when production had stopped and no employees were actually injured, and the employee had a discipline-free record for the year preceding this incident, combined to merit a lesser penalty. The arbitrator stated that be- cause Twin Rivers had changed some of the LOTO procedures that should occur during clean- up, and Jenkins suggested that he would have behaved differ- ently if he had fully understood the required LOTO procedure during cleanups, that Jenkins was unlikely to repeat this unsafe behaviour. The arbitrator believed that the work relationship was not irrevocably damaged, but Twin Rivers needed assurance that Jen- kins would not repeat similar un- safe activities. Therefore, he ruled that Jenkins should be reinstated, but because he was not com- pletely forthcoming in accepting responsibility for his actions, and to make it clear that the behav- iour is not condoned, he would receive no compensation for his period of unemployment since the incident. In addition, Jenkins would have to sign a statement, to be placed in his employment file, that he understands the current lock-out procedures. For more information see: • Unifor, Local 5080 and Twin Rivers Paper Co. (Jenkins), Re, 2018 CarswellNB 396 (N.B. Arb.). Clean-up < pg. 1 Worker believed clean-up didn't require lockout Credit: Shutterstock/genkur

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