Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 August 25, 2014 ArbitrAtion AwArds sized lumber in good condition should be passed through the oper- ator. The planer mill feeder's posi- tion is also a dangerous one. There is the risk of injury to both the planer feeder and other employees if he is not attentive, as lumber con- stantly moves past the worker and is accelerated at high speeds. With this in mind, West Fraser Mills let Christensen go after a De- cember 2013 incident which saw an irregular piece of lumber being fed through — it consequently spit out of the feeder. According to Christensen's su- pervisors, they witnessed him pick up a small piece of broken board from the floor and place it on the chains moving in front of him. At the time there was no other lumber moving because of jam at the tilt hoist, a problem which was out of Christensen's control. As the small chunk of lumber moved past the rollers, Christensen jumped back to protect himself. After a meeting with his manag- ers, he was let go for breaching safety protocol. As the employer saw it, there was a significant hazard as the lumber did not have sufficient length to pass the various pressure points in the rollers – a small chunk, therefore, could fly out of control, creating shrapnel that could seri- ously injure someone. Not to men- tion the equipment could have been seriously damaged. The United Steelworkers Local I-425 filed a grievance on Chris- tensen's behalf. While Christensen admitted to putting the irregular piece of lumber on the belt, and that it was wrong, he denied any at- tempt to let it enter the rollers. His intention instead was to walk down the length of the chain and remove the piece before it reached the dan- ger zone. However, realizing it was too late to do so, he jumped back to protect himself. There is a common practice at the mill that, if the operator has a broken piece of lumber, they will place it on top of the moving lum- ber at an angle, so that it proceeds downstream where the planer feeder will remove and discard it. As well, Christensen had suf- fered an injury on the job, about two weeks prior, when he was knocked down by a broken piece of wood fly- ing by. He jumped back this time, he said, because he was nervous and taking extra precaution. The issue at hand is whether Christensen, as the employer ar- gued, deliberately tried to sabotage the workplace, or if he, as the union argued, did so unintentionally. "Either way, Christensen's con- duct created a very serious hazard to himself and others – a hazard he was well aware of," said arbitrator Gabriel Somjen. However, Somjen ordered Christensen be reinstated – with- out any compensation for lost wages or benefits. Essentially, the incident was a seven-month sus- pension. Discharge was excessive, he continued, and the employer's ar- gument that Christensen's actions were "sabotage" was not factually correct. "There are other mitigating circumstances — the fact that no one was injured, nor was there any damage to equipment; his acceptance of responsibility for misconduct; and his willingness to return to work even without compensation — these are fac- tors in favour of a lesser penalty," Somjen said, adding that, "Chris- tensen is young and I expect that he is capable of performing his work diligently and safely and that he will not engage in unsafe con- duct in the future. Reference: West Fraser Mills and the United Steelworkers Local I-425. Gabriel Somjen — arbitrator. Donald Jordan for the employer, Colin Gusikoski for the union. July 9, 2014. employees paint themselves into a corner over work refusal TWo TenneCo Canada Inc. employees were suspended after they gave a painting assignment the brush off. David High and Jose Sousa — long-service employees at the company's Cambridge, Ont., facil- ity — received a one-day suspen- sion after refusing to do a painting job inside the plant. On May 20, 2014, High and Sou- sa were asked by supervisor Man- uel Santos to paint inside the plant. While the pair initially agreed, they later refused after learning more detail about the extent of painting that was required. Both High and Sousa had done painting on previ- ous occasions, including the pre- ceding weekend. Neither High nor Sousa provided an explanation for refusing to do the work, though High later testified he was concerned about doing the work with forklift traffic in the area. After their refusal, the supervi- sor said he would direct two junior employees to do the painting if High and Sousa would agree to fill in for them. High refused this offer, arguing it was a temporary assign- ment and he should be afforded bumping rights under the collec- tive agreement. Formerly the president of the union representing workers at the plant — United Steelworkers Lo- cal 2894 — High cited Article 9.07 of the collective agreement. The provision provides employees the right to refuse assignments in specific circumstances, and High claimed it applied to the painting. An hour-long discussion en- sued. At some point during the conversation, High asked for union representation. Finally, Santos told High and Sousa they were being suspended. The employer paid them for the balance of the shift and issued a one-day suspension that was served on the following day. The union grieved the suspen- sions, arguing High and Sousa were entitled to refuse the work because it was a temporary assign- ment under Article 9.07. Accord- ing to the union, this work refusal was not typical as High was one of the negotiators of the collective agreement language in questions in his former role as union presi- dent. He was simply exercising his rights as afforded to him by the col- lective agreement. In these circumstances, the union said, there was no basis for discipline for either of the grievors. The employer argued Article 9.07 of the collective agreement was not engaged since the act of painting was not a temporary as- signment. Rather, it was an assign- ment of duties as permitted under the management rights clause. The employer further argued that even if Article 9.07 did apply to the painting duties, it was not open to the grievors to initially accept the assignment and then subsequently refuse to do the work. The employer put forward that High and Sousa were not entitled to refuse to paint and that their insubordination warranted disci- pline, requesting the grievance be dismissed. "What occurred in this case could have been avoided if the grievors had followed the 'work now, grieve later' principle," arbi- trator Matthew R. Wilson said in his ruling. "There was no dispute that they were capable of painting and that any classification could perform those duties. In fact, both grievors had recently painted on the previ- ous weekend. There was no asser- tion that the duties were demean- ing or would result in loss of pay." Wilson found High and Sousa were insubordinate and their ac- tions warranted a disciplinary re- sponse. "Although I am sympathetic to Mr. High's passion and knowl- edge of the history of the collective agreement, these attributes are best displayed in grievance meet- ings and arbitration hearings, not the workplace," Wilson said. The grievors' long service and clean discipline records were taken into consideration in handing down the one-day suspension, he said. The discipline was found to be reasonable in the circumstances and the griev- ance was dismissed. Reference: Tenneco Canada Inc. Cambridge, Ontario Facility and the United Steelworkers (USW) Local 2894. Matthew R. Wilson — Arbitrator. Jamie Knight for the employer, Gary Kennedy for the union. Aug. 11, 2014. < from pg. 1

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