Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS have mutually agreed before line picking could happen, said CUPE. When Alexandra Christie, manager of labour relations, emailed Lou Burri, CUPE presi- dent, and Andrew Skinner, CUPE executive chief steward, on April 18, the decision to proceed with line picking had already been made without the union's input, which breached the agreement, said the union. (The subject line of the email was: "Notification of scheduling changes and line/position pick- ing.") Article 14.04 of the collective agreement under reduction of hours stated: "It is agreed and un- derstood that in the interest of ef- ficiency and effectiveness, other layoff procedures may be mutu- ally agreed upon." But the employer and the union didn't agree to anything, argued the union. However, Revera said the words "may be" do not compel the em- ployer to do so, it was only another possible outcome. The employer should have also relied on articles 14.01 and 14.03, which said: "A layoff shall be de- fined as a permanent reduction in the workforce or a permanent reduction in the regular hours of work of an employee." Because the employees had hours reduced, they should have been laid off and participated in a bumping exer- cise, said CUPE. However, argued Revera, the line-picking exercise was part of a greater national strategy and was also covered under article 14.04. As well, article 1.01 gives sole power to management to lay off employees, it said. Employees who participated in line picking were given the same bumping rights, said Revera, which made the union's argument moot. At the end of the exercise, only one employee was moved to an unscheduled part-time status from scheduled part-time be- cause she didn't wish to choose a line and was therefore moved down, said the employer. Arbitrator Gail Misra agreed and dismissed the union's grievance. "The union argued that if the employer had to reduce hours, it should have simply laid off junior workers, given notice to em- ployees whose lines were being reduced, and then conducted a bumping process to fill positions. I cannot accept the union's posi- tion in this regard. The parties have negotiated language regard- ing what the employer should do in the event of a reduction in hours, and that is what the em- ployer did in this instance, in ac- cordance with article 14.04 of the collective agreement," said Misra. "There is nothing in the collective agreement before me that requires the employer to con- sult with the union about how it builds its schedules, nor is there any requirement that it get the agreement of employees or the union before it changes its sched- ule. As well, there is no suggestion or argument here that Barrhaven was acting in an unreasonable or arbitrary manner in developing the schedule it wanted." The argument made by CUPE that both parties must agree to a plan before "line picking" would be done, was dismissed by the ar- bitrator. "What the union is seeking is a finding that only if the union and the employer mutually agree, then the employer can utilize the line- picking procedure. That would make no sense if one reads article 14.04 in its entirety. It seems obvi- ous on an ordinary and plain read- ing of the language that the parties were leaving open that they may agree to some other method of proceeding in the event that a re- duction of hours was required, but that in the absence of such agree- ment, the process was the detailed one they had outlined in the rest of article 14.04." Reference: Barrhaven Manor and the Canadian Union of Public Employees, Local 4000-11. Gail Misra — arbitrator. Erin Porter for the employer. Dan Pike for the employee. April 12, 2019. 2019 CarswellOnt 6936 place his next load of planer wood. After he found a suitable spot, he turned around to collect the wood. Williams heard on the radio that two other employees were travelling down one alleyway, so he chose an adjoining lane to avoid the traffic. He approached an intersection but did not see an- other operator, Rick Boekestyn, coming from another direction. Williams slammed on the brakes and turned to avoid Boekestyn but Williams skidded and collided with his forklift. "Rob coming 100 miles an hour around the corner," said Boekestyn about the incident in a supervisor's notes. Boekestyn said he was travelling between slow and medium speeds. Neither worker was injured in the incident but damage both forklifts were damaged. Shaun Fox, finishing superin- tendent, immediately conducted an investigation along with Ben Hark, another shipping supervi- sor. They collected data from the GPS system, which was used to calculate speeds, and they also measured Williams' skid mark as 35 feet long before the crash. After the crash, Williams' skid mark was a further four to six feet. Boekestyn had no skid mark be- forehand but registered a six-feet mark afterward. Williams said he was driving eight to 10 kilometres per hour before the incident. He also said the forklift can only travel maxi- mum 17 kilometres per hour but the GPS data showed that he was travelling 25 kilometres per hour. On March 2, 2018, Williams' employment was terminated. Five previous actions were listed on the letter that indicated progres- sive discipline was being imple- mented. The union, United Steelwork- ers (USW), Local 1-405, grieved the firing. During testimony, Williams admitted he had travelled too fast, especially considering the conditions. He said he acted like a "dumb ass" on that day. Williams admitted he didn't apologize right away, but later he said he did. Williams said the dismissal caused him great financial harm and it also strained his common- law relationship. Williams said if reinstated, he would work on any non-mobile job on the site. Arbitrator John Kinzie was not convinced and he dismissed the grievance. "(Williams) was travelling too fast for the road conditions, which were snowy to a degree and icy underneath, to stop and it was that conduct that caused the collision that occurred. (Williams) was solely responsible for the collision because he was driving his fork- lift at too fast a speed to permit a controlled stop in all the circum- stances." And Williams' past record showed that he would not be suit- able for another position, he said. "What (Williams') conduct dem- onstrates to me is that he can be careless or negligent in perform- ing his assigned duties. Further, I am of the view that there is no compelling reason to think that that would not also be the case if he was transferred to a production job in the sawmill or planer mill" said Kinzie. "(Williams') operation of his forklift has not improved despite the progressive, corrective disci- pline imposed by the employer. Progressive corrective discipline has not worked in this case," said Kinzie. Reference: Canadian Forest Products and the United Steelworkers, Local 1-405. John Kinzie — arbitrator. Michael Wag- ner for the employer. Sandra Banister for the employee. March 22, 2019. 2019 CarswellBC 640 Operator travelled 100 miles an hour, says coworker < Crash pg. 1 < 'Line picking' pg. 1 Nothing compelled employer to work with union: Arbitrator

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