Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS April 4, 2016 The college argued it would have taken about 20 minutes per exam, a much shorter estimation. The test was not part of the col- lective agreement because it was offered as an optional test that students could take and elect to count for 75 per cent of their final grade. The employer said because it was not included in the collective agreement, it was not required to compensate like other regular course work. Dube and the union argued that marking the exams was an atypi- cal assignment, that would have been covered in the "local agree- ment" which pertained specifi- cally to that college. The marking process was covered in that agree- ment, which made it voluntary, but also provided for sufficient notice that the additional work be included in the overall compensa- tion. Arbitrator Tanja Wacyk agreed with the union, but with some ca- veats. "Accordingly, while Mr. Dube argued he spent 19.75 hours on exams and related work, it would be inappropriate to use that as the measure of his compensation. Nor is it appropriate to use the college's estimate of approximate- ly 20 minutes per exam," she said. "However, in these narrow cir- cumstances, I find it is appropri- ate Mr. Dube be compensated in some measure for the prepara- tion time he lost leading up to the teaching period, and had to spend within the one week he was required to complete the exam work." Reference: Confederation College and the Ontario Public Service Employees Union (OPSEU) Local 732. Tanja Wacyk — arbitrator. Peter Kyzyl for the union, Wallace Kenny for the employer. March 22, 2016. Facebook post leads to disciplinary memo for 3 women THE Canadian Union of Public Employees (CUPE) Local 1603 filed a group grievance on be- half of Mary Goddard, Tammy Nadeau and Darlene Almon after a Facebook post led to discipline. The three were employees at the Saint John, N.B., nursing home Rocmaura. A letter was placed in their personnel files after they failed to appear at a meeting with management regarding a post on Almon's Facebook account. The post encouraged employ- ees to wear red in support of the union's bargaining unit as it nego- tiated with the employer. The post referred to the negotiations as an "upsetting and stressful time." The post was brought to the employer's attention and man- agement found it to be potentially defamatory. An investigation was launched into Goddard, Nadeau and Almon's involvement with the post and Almon was placed on paid leave while the employer conducted its investigation. Shortly thereafter, the union membership had a meeting with CUPE national representative Mi- chael Davidson. Confused about the employer's investigation into the Facebook post and concerned about Almon's being placed on leave, they asked Davidson to rep- resent them. The employer scheduled a meeting on Oct. 30, 2015, to dis- cuss its investigation. Davidson was not available to meet on that date, however, and requested the meeting be rescheduled. The em- ployer did not want to delay and informed the employees they could attend the meeting with an- other union representative. Goddard, Nadeau and Almon did not attend as Davidson had di- rected them not to meet to discuss the investigation without him. A letter was placed in the per- sonnel files of Goddard, Nadeau and Almon on Dec. 2, 2015. The letter stated the employees re- fused to co-operate with manage- ment and failed to attend a sched- uled meeting. The letter stated the employees' refusal to attend amounted to insubordination and warned that another incident of insubordination would result in disciplinary action including, but not limited to, suspension or dis- missal. The employer argued the memo was appropriate because it was non-disciplinary. The memo was putting the union on notice that, in the future, failing to attend a meeting when directed to do so by the employer would be consid- ered insubordination. The memo was necessary, the employer submitted, because the employees were in no way denied the right to union representa- tion. That right to representation, however, does not mean union members have the right of the representation of their choice. While the employer stated it does not object in principle to the right to choose a representative, that choice should not cause undue delay. The union filed a group griev- ance and requested the memo and all related correspondence be re- moved from the employees' files. The delay caused by David- son's unavailability for the Oct. 30 meeting was only a few days, the union argued, and past practice has always been that a grievor had a choice of representative. While the employer claimed the memo was not disciplinary in nature, it clearly stated that fur- ther refusal to attend meetings could result in suspension or dis- missal. Furthermore, because the memo was not treated as disci- plinary by the employer, it did not fall under the sunset clause provi- sion and would remain in the em- ployees' files indefinitely. Arbitrator Guy Couturier agreed the delay caused by Da- vidson's unavailability was rea- sonable in the circumstances and consistent with past practices. As a result, he found the memo to be contrary to, and in breach of, the parties' collective agreement. Couturier ordered the memo be removed from the personnel files of Goddard, Nadeau and Almon. Reference: Rocmaura and the Canadian Union of Public Employees Local 1603. Guy G. Couturier — arbitrator. Sophie Noel for the employer, Michael Davidson for the union. March 9, 2016. < Arbitration pg. 1 While the employer claimed the memo was not disciplinary in nature, it clearly stated that further refusal to attend meetings could result in suspension or dismissal. "It is appropriate Mr. Dube be compensated in some measure for the preparation time."

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