Canadian Labour Reporter

October 28, 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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7 Canadian HR Reporter, a HAB Press business 2019 CANADIAN LABOUR REPORTER ARBITRATION AWARDS Subramanian what they were talk- ing about and Subramanian replied he was a union steward talking about a union matter. Subramanian apologized for the gum and left the area to throw it out, but the vice- president followed him, threaten- ing to throw Subramanian out of the workplace. The company issued a verbal warning to Subramanian for be- ing on the production floor with- out a lab coat while chewing gum and not properly covering his fa- cial hair. Seventeen months later, on July 16, 2018, a supervisor saw Sub- ramanian in the production area wearing a chain around his neck — employees could not wear jewelry — and no beard net. Subramanian argued that it was his wedding chain and he had been given per- mission to wear it inside his shirt, but HR didn't have it on file. He was given a written warning for vi- olating the policies on jewelry and beard nets. Both warnings were eventu- ally removed from Subramanian's record under a sunset clause, but the union grieved them, claiming they were the product of harass- ment and anti-union animus. It argued that in the first incident, the vice-president escalated the situation after Subramanian re- vealed he was a union steward. That plus the decision to dis- cipline instead of counselling showed an anti-union bias, said the union. In the second incident, the union argued Subramanian didn't violate policy as his moustache didn't require a beard net and he had permission to wear the chain. Instead, the supervisor targeted him, said the union. Arbitrator weighs in The arbitrator found that the evi- dence showed the vice-president didn't know who Subramanian was initially in the first incident and was justified in pointing out that Subramanian wasn't wearing a lab coat and was chewing gum. The arbitrator acknowledged that the vice-president could have acted better by not following Sub- ramanian or threatening to kick him out, but he didn't impair Sub- ramanian's steward duties and the warning was legitimate. In the second incident, the su- pervisor knew Subramanian was a steward but only approached him when he saw the chain. Subramani- an escalated the matter by pushing back — had he apologized or cov- ered the chain, it's likely the matter would have been resolved. How- ever, Subramanian should not have been disciplined for no beard net as his moustache didn't require one, found the arbitrator. And the com- pany also should have asked him about it before disciplining him. Although Subramanian should not have been disciplined for the second incident, the arbitrator found no anti-union motivation behind either warning. "The discipline imposed was mild, the incidents were more than a year apart and involved two different managers, the second of whom was unaware of the first incident, and there was no effort to impair Subramanian's ability to act as a steward, providing that he complied with the policies that apply to anyone in the production area," said the arbitrator in dis- missing the grievances. Reference: La Rocca Creative Cakes and UFCW, Local 175. Lorne Slotnick – arbitrator. Oct. 8, 2019. Ashley Brown, Laura Freitag for employer. Jane Mulkewich for employee. 2019 CarswellOnt 16207 On April 10, 2019, the compa- ny determined it was over budget on the second vessel and would have to reduce labour costs. The electrical area manager asked the manager of electrical trades if some of the electricians could be shifted to work on the third ves- sel instead of being laid off, but construction delays made that impossible. The second vessel had reached a stage where the work required more experienced crews, so the company looked to make its cuts from a group of more than 40 probationary employees who had no seniority. The company came up with a list of nine electricians based on factors such as atten- dance records and who was near- ing the end of a current task. One left voluntarily while the other eight were laid off. One week later, the company requested a dispatch to the second vessel project of 13 electricians who were experienced in marine work who had recently finished work on BC Ferries projects. Thir- teen electricians were moved to the third vessel project to make room, but the third vessel wasn't far enough along to take on addi- tional electricians. The company cancelled the dispatch for the new electricians. On May 23, the company hired 10 electricians, including three who had been laid off on April 10. On July 9, 12 more were dis- patched, including another per- son from the April 10 layoffs. The union grieved the lay- offs, arguing that the collective agreement stipulated that "no employee will be disciplined or discharged except for just and reasonable cause." The union said there was no shortage of work and the layoffs were a "disguised ter- mination" so the company could replace the employees with atten- dance and other issues. Arbitrator cites previous case law The arbitrator noted that previ- ous case law had established that a valid layoff can occur without an actual reduction in work. Other factors such as budgetary issues, operating efficiency, or other eco- nomic grounds were legitimate reasons to lay off workers. Conversely, it had also been es- tablished that in cases where there was a "disguised termination," there was "a clearly identified employee or specific group of employees who had issues with or were at logger- heads with the employer." The arbitrator also noted that when there are no seniority-relat- ed restrictions — as with the pro- bationary employee laid off — or any other restrictions within the collective agreement, "it is quite normal and prudent business practice to lay off when possible employees who are less produc- tive when making a decision to who to lay off." It made sense to choose employ- ees with attendance issues. Howev- er, not all of the workers had these issues, which undermined the ar- gument the dismissal was disciplin- ary in nature, said the arbitrator — particularly at an important time in the construction projects. The arbitrator also noted that the company successfully met its target launch date without hiring more electricians until late May, showing that it didn't have work that it absolutely needed the laid- off employees to perform. "The union theory which pos- tulates that an employer would orchestrate a layoff of nine em- ployees at a crucial period in the construction timeline in order to disguise the termination of three lacks any merit or credibility," said the arbitrator in dismissing the union's grievance. Reference: Vancouver Shipyards Co. IBEW, Local 213. Nicholas Glass – arbitrator. Aug. 26, 2019. David Woolias, Carly Stanhope employer. Brandon Quinn for employee. 2019 CarswellBC 2632 Finances legitimate reason to lay off workers: arbitrator < Layoffs pg. 1 < Anti-union pg. 1 Ontario union claimed steward targeted with warnings "There was no effort to impair Subramanian's ability to act as a steward"

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