Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 26, 2014 ArbitrAtion AwArds circumstances constituted an emergency, therefore making the exclusive clause in the collective agreement null and void. According to the contract, ex- cept in the case of an emergency or for the purpose of providing training, no non-bargaining unit employee shall perform any work normally performed by a union- ized worker. The incident in question began when the alarm system at the wa- ter works sounded. As part of the system, an automated call goes out when a problem is identified. The call order at Kitimat goes: Aiken's work phone, Aiken's cell- phone, Public Works (which can radio Aiken), Aiken's home phone — and is then followed by non- bargaining unit supervisors and managers, Wayne Sussbauer and Charles Cale. When the problem occurred, after-hours and after Aiken had already left work for the day, it had to make its way down to the first two non-bargaining unit mem- bers before anyone responded — that is, Aiken was not available or did not answer. As such, Sussbauer and Cale (who were still on site) decided to check out the source of the alarm. They argued that, because he had already been automatical- ly dialed by the system, they saw no need to call Aiken directly — plus, they were dealing with an emergency. Both Sussbauer and Cale ended up having to shut off one of the water pumps to isolate a minor flood and stem the overflow of water in one of the pump houses. They put the alarm on silent. The following Monday morn- ing, Aiken arrived and worked on the pump in question — adjusting the valve, calibrating the pressure, and putting the valve back in ser- vice. But when he found out what had happened the night prior, he filed a grievance. Unifor argued Aiken should be made whole for missing a call-out (a minimum of two hours' pay at double time) and that two other bargaining unit repair workers should be put on the call list be- fore management. Because there was no dispute as to whether the job should be considered bargaining unit work, the question becomes whether the incident should be considered an emergency, and then, whether or not management took the job away from a union member. The event should not be con- sidered an emergency, said the union, because an emergency by definition would have been a sud- den state of danger or conflict, requiring immediate action. Be- cause the managers put the alarm on silent and left Aiken to fix the problem on Monday morning, it was not an emergency. On the other hand, as the employer saw it, isolating a valve and pump in order to prevent the magnitude of water loss did constitute an emergency. "The two pieces of equipment were simply isolated from the rest of the system until bargaining unit members were able to diagnose and correct the problem," the district argued during the hearing. "Fur- ther, neither exempt manager took any corrective steps – no repairs or other maintenance was done." As well, the union wanted more than one bargaining unit member on the automated call-in list. As it currently stands, there was one unionized employee (Aiken) and four non-union managers — in re- ality, it should be reversed. But, as the employer said, the makeup of that list was not men- tioned in the collective agreement. In his decision, arbitrator David McPhillips determined that an "emergency" need not have im- minent risk to life or bodily harm, but rather can include unusual or sudden happenings that are not anticipated. As such, there was no basis to conclude this particular situation was predictable, and Sussbauer and Cale simply came upon a situ- ation that required an immediate response. Moreover, the manag- ers did not perform any extensive work — instead, they only ad- dressed the immediate situation (turning off the valve) and left the real fixing to Aiken on Monday morning. In light of these issues, he dis- missed the union's grievance. reference: District of Kitimat and Unifor Local 2300. David C. McPhillips — arbitrator. Adriana F. Wills for the employer, Rick Belmont for the union. May 9, 2014. sawmill employee short-sighted about safety glasses Hector Torres' failure to wear safety glasses was short-sighted, ruled arbitrator Mark J. Brown. Terminal Forest Products sus- pended Torres on Sept. 5, 2013, for five days when he failed to wear safety glasses while on the job. Torres was working as a trim operator at the employer's Main- land Sawmills location in Rich- mond, B.C., when the incident occurred. On Sept. 3, 2013, charge hand Efren Ocampo observed Tor- res working on the trim table without safety glasses. Ocampo approached Torres and asked him to put his safety glasses on, as required by the company's safety policy. Torres reportedly refused. Ocampo testified Torres an- grily told him, "This is fucking stu- pid! I know what I am doing here!" He said he asked Torres a second and third time to put his safety glasses on, stating Torres refused each time. The incident was re- ported to management at the end of the shift. Torres' alleged use of profanity was not mentioned in the report. Following an investiga- tion Torres was suspended. A similar situation occurred in July of 2012, when Torres was sus- pended for three days after refus- ing to wear his safety glasses. Due to the seriousness of the Septem- ber 2013 incident and its relation to previous discipline, Torres was subject to a longer suspension. The United Steelworkers In- ternational Union Local 1-1937 grieved the suspension on Torres' behalf, however, arguing he was in fact wearing the safety glasses. Torres testified Ocampo never asked him to put his safety glasses on, stating he wore the glasses for the balance of his shift. He ad- mitted he often washes his safety glasses while he is on break, and does not wear them for five to 10 minutes while they dry. Torres testified Ocampo was the one who uttered profanities during their exchange, stating Ocampo interrupted him when he was working at the trim table, yelling at him to "Get back to the fucking station!" The union argued Torres was never told to wear his safety glass- es by Ocampo. Accordingly, there is no cause for discipline and if cause for discipline is found, the union argued a five-day suspen- sion is excessive. The employer, however, argued Torres violated the safety policy and refused a direct order to put the glasses on three times. Because the incident is similar to previous discipline, the employer requested the griev- ance be dismissed. "The narrow issue before me is whether Torres was wearing safety glasses or not; and, whether he refused to wear them after he was directed to do so by Ocampo on three occasions," Brown said in his ruling. Torres and Ocampo are at polar opposites on this point." However, Brown concluded it was more likely than not that Tor- res was not wearing safety glasses when Ocampo approached him, saying there was otherwise no rea- son for Ocampo to raise the issue. "He may have seen Torres on an occasion when his glasses were drying," Brown said. "Even if I give Torres the benefit of the doubt on this point and assume he wore his glasses at times other than that, he acknowledges that on occasion he does not wear his safety glasses while they are drying. That in and of itself, is a violation of the em- ployer's policy regarding the use of glasses." Brown therefore concluded that Ocampo did indeed instruct Torres to wear safety glasses, and Torres' refusal to do so was just and reasonable cause for disci- pline. The grievance was dis- missed. reference: Terminal Forest Products Mainland Sawmills and the United Steelworkers International Union Local 1-1937. Mark J. Brown — sole arbitrator. Peter Parsons for the employer, Gary Kobayashi for the union. May 26, 2014. < from pg. 1

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