Canadian Labour Reporter

8 Canadian HR Reporter, a HAB Press business 2020 February 17, 2020 ARBITRATION AWARDS Windsor. It was an urgent situa- tion, so the union had to agree by the end of February. The union said it would agree to the extension on the condi- tion that the Windsor plant be the "sole source" of the product under the contract. It proposed add- ing a clause that stated that the Windsor facility would be "fully utilized for the product before any other facility is awarded the product." Nemak was concerned about this clause in case demand for the product exceeded the Windsor plant's capacity. The company es- timated the range of production fluctuation would be between 91 and 115 per cent of the project volumes, so the union agreed to some flexibility if demand ex- ceeded capacity. The new clause stated: "Based on the current volume projec- tions, the company will designate [the Windsor plant] as the sole source for the [product]. This as- sumes that the [Windsor plant] will be able to meet customer de- mand, delivery and quantity re- quirements." With the new clause, the collec- tive agreement was extended until 2022. However, the product had de- sign problems that led to delays and significantly reduced volumes at the Windsor plant. Nemak was unable to obtain other contracts, so the company was faced with millions of dollars in losses. As a result, the company decided to close the Windsor plant in mid- 2020 and move the existing pro- duction under the contract back to Mexico. The union challenged the clo- sure, arguing that the collective agreement prevented Nemak from manufacturing product under the contract anywhere but Windsor unless demand exceeded the plant's capacity. The arbitrator noted that at the time the parties negotiated the extension, neither seemed to consider the possibility that production volumes could drop below projections, perhaps be- cause they had to act quickly. In addition, both parties agreed that if the contract ended, there was nothing to prevent Nemak from closing the Windsor plant. The arbitrator found that the union's proposed clause stated that the Windsor plant had to be fully utilized before outsourcing production, but this was changed in the final agreement. The re- vised wording stated Windsor's "sole-source" guarantee was based on the volume projections and the assumption the plant could meet delivery and quantity requirements. In the circumstances, the vol- umes dropped so low that the Windsor plant couldn't meet de- livery and quantity requirements in an economically sustainable way. The change in the clause's wording protected the company against volume reduction, said the arbitrator. The arbitrator noted that if Ne- mak had obtained other contracts for Windsor or full production under the contract was only tem- porarily delayed, the work would have to be done in Windsor. However, there was no indica- tion things would improve. "I cannot conclude that there was a clear promise made that even where volumes were so low as to be negligible, that there was a clear promise to maintain pro- duction in these unique circum- stances," said the arbitrator in dis- missing the grievance. Reference: Unifor, Local 200 and Nemak of Canada. Norm Jesin — arbitrator. Michael Wills for employer. Anthony Dale for employee. Nov. 29, 2019. maintenance and repairs. Each morning, Marusiak started his shift at 6 a.m. at the Greyhound yard where he was based and drove a service van to the Winterburn yard to work on the buses there. He then returned to the Greyhound yard, where his shift ended at 2:30 p.m. First Student had a policy stipu- lating that company vehicles were for company work only and no worker was allowed to take them home. There were GPS units in- stalled in each vehicle so First Stu- dent could track their location. Employees working out of the Greyhound yard recorded their hours manually because the yard didn't have electronic time clocks. The employee handbook stipu- lated that falsification of time cards, dishonesty, theft and unauthorized use of company vehicles were ex- amples of inappropriate behaviour. First Student discovered through GPS data from Maru- siak's service van that on Nov. 29, 2018, while returning from the Winterburn yard, he bypassed the Greyhound yard and went home for 38 minutes. Over the next three weeks, the GPS device recorded seven other occasions where Marusiak went home — for periods between 36 and 53 min- utes. On the morning of Dec. 5, the GPS data stopped transmit- ting while the van was at the Win- terburn yard and didn't turn back on for nearly seven hours. Further investigation revealed Marusiak had filled out incorrect times on several timesheets that didn't account for his midday ab- sences. At the meeting, Marusiak said when he went home it was to check on his wife — who was re- covering from surgery — and he didn't want to bother the manager with time-off requests because the manager had seemed annoyed when he had asked a few times earlier. He also denied shutting off the GPS device, saying the van was left unlocked in the Winterburn yard and sometimes other work- ers went into it to get washer fluid or antifreeze. However, First Student termi- nated Marusiak's employment. The union grieved, arguing ter- mination was excessive and lesser discipline was more appropriate. The arbitrator found there was no proof Marusiak disconnected the GPS unit, as he had denied it and other employees had access to it. However, the arbitrator also found that Marusiak violated company policy by taking the van home several times, breaching both the rules on unauthorized use of a company vehicle and time away from work. His excuse that he didn't want to bother his man- ager wasn't acceptable and not seeking authorization was a "seri- ous offence," said the arbitrator. In addition, the evidence indi- cated Marusiak falsified his time sheets on at least five occasions. Even if he didn't want to bother his manager, he could have filled the sheets out accurately to reflect the time off, said the arbitrator. The arbitrator found Maru- siak's misconduct was serious but noted that he had 16 years of ser- vice with a mostly clean record. In addition, he was under stress due to his wife's health issues — which were the reason for the absences. Noting that his location could be monitored through the GPS device and his timesheets could be checked, the arbitrator found dismissal was excessive and or- dered First Student to reinstate Marusiak. However, there would be no compensation for the loss of pay and benefits since his dismiss- al, which would serve as discipline for the misconduct. Reference: First Canada ULC, Branch No. 31720 and Teamsters, Local 987 of Alberta. Roger Gunn — arbitrator. Michael Ford for employer. Jess Handly for employee. Jan. 15, 2020. 2020 CanLII 2716 (Alta. Arb.). Misconduct serious but service, ill wife mitigating factors < Reinstated pg. 1 < 'Sole-source' pg. 1 Nemak plan had to make economic sense: arbitrator

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