Canadian Labour Reporter

May 6, 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 HAB Press business 2019 May 6, 2019 ARBITRATION AWARDS discuss this." A letter was sent on June 9 that advised Zunti that she would continue to be held out of service until she was more forth- coming about her situation. Zunti's union, Unifor, filed a grievance on June 20, but it was held in abeyance until the charges were dealt with. On Dec. 18, 2017, the union ad- vised CN that all charges against Zunti were stayed. An investigation was eventually held on April 5, 2018, and Zunti returned to work at CN on April 30. The grievance was amended on June 25 and it asked for back pay from Dec. 18, when CN became aware the charges were stayed. In its brief to the arbitration hearing, the company explained its decision to wait so long to rein- state Zunti. "The rail industry is inherently safety-sensitive. Illicit drugs (for that manner, any impairing sub- stance) have no place in a safety- sensitive work environment. It was necessary for the company to examine the risk posed by an employee who has been not only implicated but formally charged by the Crown for crimes related to drug trafficking. Until such time as the risk could be properly as- sessed, it was appropriate to with- hold her from service. The nature of the offence, and the safety-criti- cal nature of the railroad business, requires this." However, Zunti was not em- ployed in a safety-sensitive posi- tion, argued Unifor. "She does not work outside at the company's Walker Yard or (is) required to wear safety boots or other personal protective equip- ment. She works inside an office that is not a safety-sensitive work area." Arbitrator Graham Clarke or- dered CN to pay Zunti wages from Jan. 2 to April 29. "The arbitrator partially up- holds Zunti's grievance for the time period after CN learned that the charges against her had been stayed. Given the signifi- cant length of time she had been held out of service, CN ought to have immediately conducted its investigation. Instead, for rea- sons unknown, CN did not hold its interview until April 5, 2018. Zunti did not work her first shift until April 30, 2018. CN learned of the stayed charges on Dec. 18, 2017. The arbitrator concludes that, despite the upcoming holi- day season, CN could have easily completed all the steps needed to return Zunti to work by Jan. 2, 2018." But CN's argument about leav- ing her out of service due to the safety-sensitive nature of its busi- ness was upheld by the arbitrator. "CN had a legitimate right to protect its operations and reputation. CN is a major trans- portation undertaking carrying goods from coast to coast. Zunti worked alongside employees en- gaged in safety-sensitive duties. This office noted, in different circumstances, a railway's legiti- mate concerns whether some- one might be distributing illegal drugs in a safety-sensitive work- place," said Clarke. "The severity of the charges against Zunti, which arose as part of six highly publicized Edmonton drug busts, and which included cocaine trafficking allegations, tipped the balance in CN's favour," said Clarke. Reference: Canadian National Railway and Unifor. Graham Clarke — arbitrator. B. Kennedy, R. Shore for the employee. Jan. 29, 2019. 2019 CarswellNat 349 he wanted to cancel his vacation plans and instead would seek to be paid weekly indemnity and em- ployment insurance (EI). His return-to-work date after his recovery from surgery was set for Aug. 6. Porter's new plan was to recov- er at his daughter's house, instead of remaining home. He expected to receive EI pay- ments and a company-paid top- up of $610 a week. Porter understood that the col- lective agreement provided the payment regardless of whether he also received EI payments. However, Porter's EI claim was denied because he was physically outside of Canada from July 2 un- til July 18. Ryam Lumber denied the in- demnity payment so Porter and the union, United Steelworkers (USW), Local 1 - 2010, grieved it and requested $1,588, plus inter- est, for the two weeks and two days he didn't receive the top-up. The USW argued that the col- lective agreement promised em- ployees would receive the supple- mentary unemployment benefit (SUB) plan payment even if the employee was not eligible for EI payments. During the 2006 collective bar- gaining talks, the previous owner, Tembec, provided weekly indem- nity benefits for short-term dis- ability leave. The new employer wanted to change that plan and supplement it with EI payments, to help it re- duce costs. An addition was added and agreed to that read: "Should the employee not be eligible for EI, the insurance carrier will also be re- sponsible to cover the employees." The union argued there was nothing in the collective agree- ment that said an employee must qualify for EI benefits, only that the injury is supported by medi- cal evidence, which Porter had al- ready provided. As well, the union said it never did review the SUB plan and didn't agree to any of its terms. However, Ryam said the under the SUB plan, an employee must qualify for EI benefits to receive payments and since Porter ab- sented himself, he didn't quality. Arbitrator weighs in Arbitrator Elaine Newman agreed and dismissed the grievance. "(Porter) was 'eligible' for em- ployment insurance benefits be- cause he was medically certified as unfit to work. However, he was 'disentitled' to receive those benefits because he left the coun- try. The language chosen by the parties does not cover his circum- stances. The plain meaning of the words chosen does not support a different interpretation." USW's contention that the only requirement called for was to pro- vide documentation of the injury was rejected by Newman. "The union argues that the lan- guage only requires that an em- ployee prove disability and does not go so far as to say that the em- ployee must also meet the condi- tions of the statutory regime that entitles one to employment insur- ance benefits. To add that concept to the interpretation of the pro- vision would be for the arbitrator to wrongly amend that language. I am persuaded to disagree with this argument based on the clear and consistent approach of the jurisprudence," said Newman. And the argument by the USW that it should have been shown the SUB was rejected. "The union was not an unsophisticated bargaining partner. "It is true to say that the com- pany might have provided the SUB plan, but it is also true to say that the union was at liberty to request it. The union commit- tee had, the evidence discloses, dealt with SUB plans in the past. It might well have deferred con- clusion of the agreement until a request to review the plan in detail was satisfied." Reference: Ryam Lumber and United Steelworkers, Local 1 - 2010. Elaine Newman — arbitrator. Michelle Henry for the employer. James Fyshe for the employee. March 25, 2019. USW not 'unsophisticated bargaining partner': Arbitrator < Indemnity pg. 1 < Drug arrest pg. 1 Probe not completed until many months after charges stayed

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