Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 August 17, 2015 ARBITRATION AWARDS in November 2014. He was ter- minated for allegedly violating reporting and calling rules in 2013 and again in 2014, which led to the accumulation of 45 demer- it points and subsequent firing. Normandeau filed two griev- ances alongside the Teamsters Canada Railway Conference union (TCRC). Given that Nor- mandeau was a 30-year veteran of the railroad, the union argued termination was excessive. The grievor was first penalized in 2013 with 20 demerit points when a train he was operating between Island Pond, Vermont and Richmond, Que., was de- layed one hour pulling into the yard because Normandeau said he needed a meal. The employer said he was disciplined because he did not eat during the desig- nated time periods, as per the col- lective agreement. The second incident, in 2014, which led to 20 more demerits and termination, occurred along the same route. Normandeau had operated the main line without authority — he only had clear- ance to operate an auxiliary track. The employer conducted an in- vestigation and determined Rule 85 under the Canadian Rail Op- erating Rules mandate had been broken. Arbitrator Michel Picher dis- agreed termination was the ap- propriate penalty, saying longev- ity and quality of service must be viewed as a significant mitigating factor. The grievance was allowed in part. "Longevity and quality of service must be viewed as a sig- nificant mitigating factor in the instant case," Picher said in the decision. "While (I) cannot deny the se- verity of the error committed by the grievor, it is not unreasonable to view the longevity and quality of his prior service as significant mitigating factors to be taken into account." Pitcher ordered Normandeau be reinstated and to reduce the number of demerits to a total of 45 on his current record. Normandeau would not re- ceive compensation for any wag- es or benefits lost and without loss of seniority. Reference: St. Lawrence & Atlantic Railroad and the Teamsters Canada Railway Conference. Jean-Marc Mon- tigny for the company, Aleisha Stevens for the union. Michel G. Picher — arbitrator. July 30, 2015. Seasonal worker did not have seniority rights SOON AFTER the New Bruns- wick Department of Transpor- tation and Infrastructure and the Canadian Union of Public Employees (CUPE) Local 1190 entered into a memorandum of agreement to give seasonal work- ers the right to recall based on seniority and job performance, Lance Deleavey was passed over for a worker with less seniority. Deleavey learned in 2013 that he would not have seasonal em- ployment that year, and was in- formed he was being passed over because of his lack of bilingual- ism. He later learned employees with less seniority had been hired to work for the season because they had the necessary language skills. Deleavey was also unable to find work for the 2014 season because other employees who had worked the 2013 season had passed him in seniority. Deleavey testified that while he was not fluent in French, he had never had a problem commu- nicating with French-speaking colleagues. With the exception of one division, he said, the district Deleavey worked in was primar- ily English-speaking. While he acknowledged com- munication was an important consideration for safety reasons, Deleavey said he had never been required to speak French in the past because all of his colleagues were bilingual. The union filed a grievance on Deleavey's behalf, arguing the employer essentially overruled seniority rights with an unrea- sonable exercise of management rights. It was inappropriate for the employer to skip over Deleavey in favour of junior employees with bilingual language skills, the union argued, and it demanded Deleavey receive all wages, mon- ies, seniority and benefits he was entitled to for the 2013 and 2014 seasons. The employer, however, ar- gued the memorandum of agree- ment guaranteed a right of recall based on seniority, satisfactory performance and having the "skills, qualifications and experi- ence to do the work." Seniority is only one factor in the right to recall, the employer said, with skills — including the ability to speak French and English in a bilingual province obliged to provide services in both official languages — being just as important. The employer argued De- leavey's seniority rights were re- spected. He was not selected for work in the 2013 season because, not being bilingual, he was only eligible for English-essential po- sitions. Other seasonal employees ap- plying for English-essential po- sitions had more seniority and were, therefore, hired instead. As a result, the employer asked that the grievance be dismissed. Adjudicator weighs in "This matter addresses an essen- tial characteristic of New Bruns- wick as the only province which is officially bilingual," said adjudica- tor John McEvoy. "Official bilingualism has existed in New Brunswick for decades. Taking judicial notice, there is both a constitutional and statutory obligation on the pro- vincial government to provide services to members of the public in the official language of their choice." Deleavey simply did not satisfy the language qualification for the seasonal positions for the 2013 season, McEvoy said. A number of employees did exercise their rights of recall for unilingual positions based on seniority and qualifications in ac- cordance with the parties' mem- orandum of agreement. Deleavey could not do so because of his level of seniority, and he was not eligible for any number of bilin- gual positions because of his lack of language qualification. The grievance was dismissed. Reference: New Brunswick Department of Transportation and Infrastructure and the Canadian Union of Pub- lic Employees. John P. McEvoy — Adjudicator. Daniel Standing for the employer, Kim Cail for the union. June 17, 2015. "Deleavey simply did not satisfy the language qualification for the seasonal positions."

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