Canadian Labour Reporter

FEBRUARY 18, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 Continued from page 6 Tests demonstrated McMillan had 13,423 ng/ml of amphet- amines in his system. The positive cut-off level for this drug is 250 ng/ml. McMillan was notified of the result and asked to provide an explanation. McMillan was also informed of his right to con- tact the medical review officer to contest the results. McMillan disclosed the medications prescribed to him and denied tak- ing any other prescription, over-the-counter or illicit drugs. He failed to contact the medical review officer about contesting the test results. During the investigation, McMillan expressed his belief the testing procedures were flawed because he dropped the speci- men container in the toilet. McMillan was suspended for 90 days and dismissed for his failure to comply with the company's drug and alcohol policy. Teamsters Canada Rail Conference filed a grievance on McMil- lan's behalf. The union argued there was no just cause for his suspension as the incident was an isolated one caused by an er- ror in judgment. Because no damage or injury resulted from the incident the union called for the suspension to be removed and McMillan be paid for the 90 days. It argued the test and sample collection were not prop- erly conducted, rendering the results unreliable. The union requested McMillan be reinstated without loss of seniority and benefits and that he be made whole for all lost earnings with interest. CN denied the test was flawed in any way. The company con- tends the test was carried out by a trained professional and no contamination took place. "The fact that there was no damage or injury flowing from his violation is of little assistance to Mr. McMillan," arbitrator Chris- tine Schmidt said. "There could have been dire consequences. The threat to public safety occasioned by Mr. McMillan's conduct cannot be overstated." Schmidt made it clear CN did not fire McMillan merely for testing positive for amphetamines, but because of the circum- stances relating to testing that he could not explain. Accepting the doctor's medical opinion that there was no pro- cedural or medical explanation for the positive amphetamine test result, Schmidt concluded McMillan was untruthful during the investigation and "continues to be untruthful to this day." The grievances were dismissed. Reference: Canadian National Railway Company and Teamsters Canada Rail Conference. Christine Schmidt — arbitrator. M. Mar- shall for the employer, R. Caldwell for the union. Oct. 14, 2013. B.C. schools get taught a language lesson SChOOLS IN BRITISh COLUMBIA have been taught a lesson in the interpretation of a collective agreement. The British Columbia Teachers' Federation (BCTF), which rep- resents teachers in the province, filed a policy grievance against the British Columbia Public School Employers' Association after they claimed teachers were not being properly reimbursed while on leave for union business. Up for debate was whether or not the collective agreement's provisions pertaining to leave for union business required the union to reimburse the employers' association should a teacher on leave for union business be replaced. The collective agreements reads as follows: "Where an (on-call) teacher replaced the member on union leave, the reimbursement costs paid by the local or the BCTF shall be the salary amount paid to the (on-call) teacher. Where a non-certified replacement is used, the reimbursement costs paid by the local or the BCTF shall be the salary amount paid to the replacement." As the employers' association saw it, the clause outlines the conditions of granting the union leave requests — but that the employer was to be reimbursed for all costs of the leave, includ- ing benefit costs. What is more is that the term 'salary amount' is simply a reference to the rate of pay that the reimbursement costs would be based upon if the teacher on union leave was replaced with an on-call teacher. However, the BCTF disagreed. The union interpreted 'salary amount' in the contract to mean its obligation to reimburse the salary costs when an employee on leave is replaced with an on-call teacher, as the wording sug- gest. That did not include benefits. Essentially, salary is defined as just that. In her decision, arbitrator Irene Holden said when looking at a collective agreement, it is imperative to determine the intention of both parties during the negotiating stage. With that theory in mind, she referenced the mediation notes taken at the bargaining table as evidence of the intent of the spe- cific clause. Perhaps not surprisingly, there was plenty of back and forth between both parties. However, there was no specific reference as to what would be covered under the umbrella term 'salary amount.' Whereas long-term leave would require the union to pay for benefits and salary, there were no specifics under the leave for union business provision. During the hearing, the employer at- tempted to merge these two provisions and argue for similar terms of reimbursement, the arbitrator said. Because the employer and the union did not, at any time, discuss the meaning of the clause, Holden based her decision on its literal meaning, and sided with the BCTF. "This was a case of a unilateral misunderstanding," Holden said. "This is where the issue should remain — at the bargain- ing table." Therefore, she ordered the employer reimburse the union if there had been any cases of overpayment based on its interpreta- tion of the collective agreement. Following the decision, the public school employers' asso- ciation proposed new language surrounding the leave for union business clause in the upcoming round of bargaining. Reference: British Columbia Public School Employers' Association and the British Columbia Teachers' Federation. Irene Holden — arbitrator. Delayne M. Sartison for the employer, Craig Bavis for the union. Jan. 29, 2014.

• Cover