Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2019 September 23, 2019 ARBITRATION AWARDS But when Beck and Stenback asked why they weren't offered the positions, they were told that be- cause they were operating under the performance road map (PRM) system at the time, they were not eligible to participate in the trans- fers. Under the PRM system (which was also being grieved by Unifor, Local 46), the bottom 25 per cent of employees in a territory were automatically placed into the sys- tem when they didn't meet four metrics (effectiveness, rework, per cent complete, and GPS con- formance). Once in the PRM, workers would have to measure outside of the bottom 25 percentile for six months before they could leave it. However, testified Blair Ste- vens, chief steward for Local 46, the union was never made aware that the PRM status would affect any transfer requests, and it was established company practice that seniority was generally the decid- ing factor in awarding transfer po- sitions. And since the agreement was settled in 2011 before the PRM existed, the employer could not insert language into the contract after the fact, said the union. (During transfer work assign- ments, employees were provided with paid accommodations, $55 per day for expenses and a per diem for days off.) The union filed a grievance on behalf of Beck and Stenback on Feb. 15. Arbitrator Gail Misra agreed with Unifor and upheld the griev- ance. "While it is BTS' right as the manager of its enterprise to de- termine when and from where it may need to temporarily trans- fer its employees, the collective agreement before me restricts the right of the employer to decide who may be chosen for temporary transfers." The evidence of past practice was given great credence by the arbitrator. "In this case, the parties have only given management the right to decide how to temporar- ily transfer workers where there is no agreement by the work team of bargaining unit members about how to do so. Since I have accepted that there was a long- established practice accepted by the union in London that it was senior, qualified volunteers who would be temporarily trans- ferred, there was no default left to the employer to allow it to decide how to do temporary transfers. In any event, even if BTS had the de- fault right to temporarily transfer workers, the parties had agreed on what that process would look like: BTS would have to 'transfer the employee qualified to do the job having the least amount of senior- ity within the team' (article 20.03). That is not what the employer did at any time or in any circum- stances about which I have heard evidence," said Misra. "BTS argues that it has man- agement rights which permit it to impose the criterion that an em- ployee in a performance manage- ment plan will be excluded from consideration for a temporary transfer. This collective agree- ment contains no 'management rights' clause." Reference: Bell Technical Solutions and Unifor, Local 46. Gail Misra — arbitrator. Frederic Henry for the employer. Micheil Russell for the employee. April 12, 2019. 2019 CarswellNat 3584 put back into service, ice was de- tected inside, which meant work- ers had to enter the confined space to manually remove the ice with a melter. When workers went into the space, the operator was responsible for ensuring that all blinds were in place so wastewa- ter would not rush into the space while workers were inside. When Ackerman began his shift, he was advised that the blinds would be removed before the clari- fier would be placed back into ser- vice, so he issued a work permit for that job around 8:30 a.m. But those blinds should not have been removed due to the clarifier being re-commissioned; the job was sup- posed to be cancelled but it wasn't, leaving the clarifier maintenance workers vulnerable. Later, Ackerman was told that ice was detected inside the clarifier and it would have to be removed. He signed a confined space per- mit at 11:40 a.m. and checked off all the boxes on the permit check- list that signified there was a space work space in the clarifier. However, one of the boxes in- dicated the proper isolation was in place, despite the earlier blind- removal operation. The confined space permits were renewed for the night shift, and work continued. Nobody was hurt due to Ackerman's mistake, but it was discovered the follow- ing day and investigated. On Dec. 21, Ackerman's em- ployment was terminated. "Your role as an operator is to ensure that procedure is followed when issuing permits to your co- workers, allowing them to work safely on their assigned tasks. We take issue with the fact that you identified the isolation on the confined space permit but failed to validate that was accurate," said the termination letter. The union, United Steelwork- ers (USW), Local 9316, grieved the decision and argued that two other employees were disciplined but not dismissed for the same inci- dent, specifically, the non-cancel- lation of the blinds being removed, which was unfair to Ackerman. While he did commit a significant error, it wasn't worthy of the disci- pline he received, said USW. Arbitrator James Oakley or- dered the employer to reinstate Ackerman but with a 12-month unpaid suspension. "There were inconsistent dis- ciplinary penalties in this case, when comparing the discharge of (Ackerman) with the six-week suspension issued to the main- tenance supervisor and the four- week suspension issued to the operations supervisor, and the fact that no discipline was considered for night shift employees with re- spect to the entry into the confined space on the night shift. (Acker- man) was at fault and is deserv- ing of a significant disciplinary penalty. However, I find that the penalty of discharge imposed on (Ackerman) is disproportionate to his responsibility compared to the responsibility of others and the disciplinary penalties imposed on others with respect to the same in- cident. I find that the employer did not have just cause to impose the penalty of discharge," said Oakley. Ackerman didn't uphold his end of the safety standard, said Oakley, which precipitated the disciplinary action. "(Ackerman's) behaviour was careless because he did not com- ply with his responsibility as set out in the standard. He had the information he needed to comply with his duty and to not issue the permit until he confirmed isola- tion of the confined space. In this case, there was no injury or actual harm, however, there was the po- tential for catastrophic harm." Reference: NARL Refining LP and United Steelworkers (USW), Local 9316. James Oakley — arbitrator. Darren Stratton for the employer. Brian Dwyer, Boyd Bussey for the employee. April 11, 2019. 2019 CarswellNfld 304 2 supervisors given less severe discipline for same incident < Lock-out procedure pg. 1 < Temporary positions pg. 1 Refusals based on workers being on performance management "This collective agreement contains no 'management rights' clause."

• Cover