Canadian Labour Reporter

March 4, 2019

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2019 March 4, 2019 ARBITRATION AWARDS 8 that "could interfere with a singular focus on the Air Canada brand," ac- cording to a report written by Peter Rowbotham, manager, airport planning and analysis. The employer developed a workwear standards book that detailed what an employee must wear while on duty. The union grieved the ruling and argued it violated 1.02 of the collective agreement that read: "No employee covered by this agreement will be interfered with, restrained, coerced, or discrimin- ated against by the company, its officers or agents, because of membership in or lawful activity on behalf of the union." As well, Air Canada's actions violated an employee's freedom of expression, according to IAM. The company countered and said mandating a company-wide clothing standard was a legitimate exercise of its management rights. All employees, such as the under- the-wing staff, must present a common front and because they are also considered to be "brand ambassadors," the under-the- wing employees should adhere to the same standards as others who are more customer-forward. Air Canada relied on surveys that showed employee appear- ance was rated high in importance by its customers. Arbitrator Christine Schmidt disagreed. "The new cap require- ment is not reasonable and, as such, the company is in viola- tion of article 1.02 of the collect- ive agreement. The company is directed to remove the require- ment in the workwear standard that IAM members must wear only Air Canada-issued caps." "Effectively, the new rule elim- inates the long-standing en- titlement that bargaining unit employees enjoyed to wear IAM caps," said Schmidt. The evidence submitted by Air Canada in support of their case "was very general, sparse, and impressionistic, grounded in rather vague customer-experi- ence metrics, in circumstances where the employees impacted by the rule are not engaged in pub- lic contact jobs, and are for the most part unseen by customers. I note that the company's written arbitration brief makes almost no mention of the evidence upon which it relies to support what otherwise seems a sensible de- sire to achieve consistency and harmony in workplace dress and appearance. The impact of that otherwise rational objective on these below-the-wing employees is the suppression of their desire to continue a decades-old habit of expressing support for their trade union," said Schmidt. And although the employer didn't need to "prove harm to Air Canada's legitimate business in- terests, (the evidence) must be more robust than the information relied upon by the company. In my view, the information lacks objec- tivity and the company has failed to draw a clear and objective link between the new cap requirement for these below-the-wing employ- ees and the company's business interests," said Schmidt. Reference: Air Canada and International Association of Machinists and Aerospace Workers, District Lodge 140. Christine Schmidt — arbitrator. Christopher Pigott for the employer. Ian Roland for the employee. Jan. 31, 2019. National Elevator and Escalator Association (NEEA), which was an elevator industry representa- tive body that included Kone and Otis, Schindler and Thyssenk- rupp as members. All companies were parties to the Canadian Elevator Industry Welfare Plan, which was managed by an inde- pendent board of trustees, which was also part of the grievance. Arbitrator Emily Burke, in a 2014 ruling, found that the wel- fare plan was incorporated into the collective agreement but she didn't have jurisdiction to rule over Sun Life or the trustees. That decision was eventually overturned by the B.C. Labour Re- lations Board. Arbitrator Michael Flem- ing then heard the appeal and he ruled that the LTD plan was incorporated into the collective agreement. However, another appeal to the board resulted in the current case to decide which party should be liable for the LTD benefits: the employer or the trustees. The 1952 collective agreement said, under article 15: "The wel- fare plan covering life insurance, sickness and accident benefit and hospitalization, or any changes thereto that are in accordance with the Canadian Elevator In- dustry Plan and Declaration of Trust, shall be part of this agree- ment and be adopted by all parties signatory thereto." That part of the agreement re- mained "essentially unaltered" in subsequent agreements, said Fleming. Kone argued that the trust had a fiduciary responsibility for the LTD payments to Schwagly, and not the employer. It said that the LTD plan was initiated into the trust in 1998 but was done under no participation from Kone and, therefore, the trust must make the payments to Schwagly. The trustees argued that because they were not party to any collective bargaining, they were not bound by any arbitration deci- sions. As well, the trust instituted the LTD plan as an insured one, which meant it was not liable for any pay- ments. The IUEC argued that despite handing off pay-out responsibil- ity to the trust, the employer was ultimately responsible for any payments, such as the LTD. Arbitrator Fleming agreed. "The LTD plan is incorporated into the collective agreement. Sun Life found (Schwagly) to be ineligible to receive LTD benefits. (Schwagly) is eligible to receive those benefits. Kone, as guaran- tor, is primarily responsible for the payment of those benefits in those circumstances. The trustees have refused to authorize payment of the LTD benefits to (Schwagly) from the trust. They are not par- ties to the collective agreement, nor are they agents. The collec- tive agreement does not contain an express provision that LTD plan disputes are to be resolved by arbitration. The trustees have not expressly consented to be bound by arbitration. Kone, not the trustees, is responsible to pay the LTD benefits to (Schwagly)." And all three parties were counselled by the arbitrator to address the issue to prevent fur- ther problems. "The welfare plan has operated for approximately 65 years on a multi-employer ba- sis, apparently very successfully. The LTD plan had been in place for more than 15 years prior to this grievance. Given the particu- lar nature of the industry as de- scribed by the employer in its sub- missions, the effects of a finding Kone is liable to pay (Schwagly's) LTD benefits will be unsettling. That may well have implications for the successful operation of the LTD plan which will need to be addressed," said Fleming. Reference: Kone and National Elevator and Escalator Association and International Union of Elevator Constructors, Local 82. Michael Fleming — arbitrator. Sheila M. Tucker, Maggie Campbell, Mike Hamata for the employer. Theo Arsenault, Bennett Arsenault for the employee. Bruce Laughton for the trustees. Dec. 17, 2018. 2018 CarswellBC 3532 Trust argued it wasn't bound by any arbitration decisions < LTD payments pg. 1 < Union hat pg. 1 Evidence produced from company 'sparse; vague': Arbitrator

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