Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS to have this handled in a private manner." As well, according to Hender- son, Loitz had continually singled her out in the past and decreased her workload and number of hours worked. Henderson hadn't received a negative review and she was the only warehouse employee to take courses to further her education so it was wrong of the employer to dismiss her, she testified. The employer also posted a new employee to the warehouse, which "effectively added a permanent employee to Nisku through a back door, doing a job that I could have been doing. I believe this should be considered a breach of article 34 by management for my dismissal, and that I should be reinstated," said Henderson in a note sent to the em- ployer after her termination. According to article 34, "if the company needs to reduce the workforce, it will invite employ- ees from the job classes being re- duced to volunteer for severance. The company will choose the employees to be terminated from the list of volunteers. If there are insufficient volunteers to meet the proposed reduction, the company may select additional employees to be terminated." However, Henderson was cho- sen for dismissal due to various reasons (for example, she had caused some friction with other employees and sometimes over- reached her boundaries with cus- tomers), according to Loitz. And the new employee hired at the Nisku location was not in the ware- house department but in the trans- mission classification, she said. Seniority was only one factor in the decision but not the determi- native one, said Loitz. As well, Henderson was rude during the termination meeting and she swore at Loitz on the way out, said Loitz, which justified management's consensus to end her employment with ATCO. Arbitrator D.P. Jones (backed by fellow board member Roger Hofer and dissented by Mark Wells) found the grievance was not valid and dismissed it. "The union has not established that the employer's decision to terminate Henderson's position was being unreasonable, capri- cious or made in bad faith." The fact that Henderson had no negative job performance issues was not relevant, said Jones. "While the employer could undoubtedly take performance into account in making a decision under article 34, [Henderson's] reference to her satisfactory per- formance appraisals cannot be determinative in light of Loitz's evidence that she did not look at the performance appraisals of any of the 11 warehousemen because there was no question that they were all satisfactory (because an unsatisfactory performance ap- praisal would have come to her attention)." And the contention by Hen- derson that Loitz beleaguered her during her employment was re- jected by Jones. "Although [Henderson] per- ceived that she was targeted by Jean Loitz, both in her remarks at the termination meeting and in her evidence at the arbitration hearing, there is no evidence of any prior difficulty in the rela- tionship between the two of them that would substantiate such a perception." Reference: ATCO Electric and Canadian Energy Workers' Association. D.P. Jones — arbitrator. Dan Bokenfohr for the employer. Paulette DeKelver for the employee. Aug. 21, 2019. 2019 CarswellAlta 1934 the work wasn't progressing well enough, so it changed the sub- contractor to the Lancaster Group of Companies, which had a collec- tive agreement on the same site but with the Sheet Metal Workers union. "I have heard a rumour about fire-stop work; can you confirm or deny that Aecon has taken the fire-stop away from Kaefer, and awarded it to Lancaster," wrote Chuck Rudder, business manager for HFIAW, to Myles Bellefontaine, project manager for Kaefer. "They have taken it away from us but who is doing the work I will have to follow up on. Considering we can't keep up to our current work fronts, I didn't make a great fuss about it," replied Bellefon- taine. On Feb. 13, the union grieved the employer's decision and re- quested "to be made whole, as if the work was performed by work- ers of Local 119," according to the grievance letter. It argued that the work re- tracted from Kaefer fell under the relevant collective agreement but when it was transferred to Lan- caster, the contract was breached as the new company's union was not the "sole collective bargain- ing agent for all employees fall- ing within the jurisdiction of the union," that was referred to in article 3 of the deal that ran from June 28, 2015 to April 30, 2017. Aecon had the right to assign any work to any contractor and there were no restrictions on this power in the collective agree- ment, said the company. The job was Kaefer's to com- plete once it was assigned to it and fell under the one-job provision, said the HFIAW, which meant that the entire work had to be completed by Kaefer. However, arbitrator William Hood disagreed and dismissed the grievance. "Employers have the right to contract out work from members of the bargaining unit unless the right is prohibited or restricted by very specific language in the collective agreement. There is no language, let alone specific lan- guage, that prohibits or restricts management's right to contract out the fire-stopping work to be performed by a sub-contractor that is not signatory to the collec- tive agreement where the work is performed by union members who are not members of the insu- lators union." "With respect, I do not find the above decisions persuasive or of much assistance in determining whether the fire-stopping work must be completed by a contrac- tor signatory to the collective agreement, or work performed by its members because the work was initially performed by a sub- contractor under the terms of the collective agreement." The union's argument that once Kaefer began a job, it must complete it, was also rejected by the arbitrator. "It would be an unreasonable interpretation to prevent the em- ployer from its rights to assign the work to Lancaster merely be- cause it let Kaefer and the mem- bers of the insulators' union in the front door to initially perform the work. I do not see this any dif- ferently than if the retraction of the work was initiated by Kaefer walking off the job site and re- fusing or unable to continue per- forming the fire-stopping work. It would not seem reasonable if the fire-stopping work could be initially awarded to Lancaster or some other contractor to a dif- ferent trade union, or no union, that — absent clear and explicit language in the collective agree- ment — the employer would be precluded from awarding the work that remained like it could have initially," said Hood. Reference: Aecon Construction Group and International Association of Heat and Frost Insulators and Allied Workers, Local 119. William Hood — arbitrator. Larry Seiferling for the employer. Crystal Norbeck for the employee. Sept. 6, 2019 2019 CarswellSask 456 No language restricting which company does what job < Contractors pg. 1 < Job cuts pg. 1 Seniority not determinative factor in dismissal: employer

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