Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 July 18, 2016 ARBITRATION AWARDS 6 Canadian HR Reporter, a Thomson Reuters business 2016 in August and September 2014 and the Alberta Union of Provin- cial Employees served notice to commence collective bargaining in June or July. As of Sept. 3, 2014, the parties had not met for collective bar- gaining, however, Sheperd's presi- dent and CEO, John Pray, advised the union in writing of its decision to lay off all support service work- ers at its Edmonton facilities. It also planned to contract out the work. The following day, the HR di- rector met with the union's bar- gaining spokesperson at 12:30 p.m. to discuss the changes, and at 1:30, the employer started inform- ing employees of its decision. Section 60 of the province's Labour Relations Code states that when a notice to commence collective bargaining has been served, there's a duty to engage in good faith bargaining and make every reasonable effort to reach an agreement, said Lyle Kanee, vice- chair of the board. And that duty includes an obligation to disclose relevant information. "When employers disclose sig- nificant decisions after notices to bargain have been served, unions must be provided with an oppor- tunity to digest the information disclosed and to respond to it in bargaining with the employer be- fore the employer communicates its decision directly to the affected employees." If the union knew Sheperd's planned to contract out entire bargaining units or significant parts of them, it most likely would have moved quickly to get to the bargaining table, said Kanee. "The duty applies to all ma- jor decisions, whether they are permissible under the collective agreement or not… the failure to give the union time to digest the decision and respond was inten- tional… Employers can't avoid the duty to engage in rational discus- sion by simply saying that they didn't think the union will have anything useful to say. The em- ployer's conduct was disrespect- ful of the union's role as exclusive bargaining agent." As a result, Sheperd's violated the Labour Relations Code when it failed to provide the union with sufficient notice to consider and respond to its decision around layoffs, said Kanee. As for the issue of unfair labour practices, section 147(3) of the code deals with "freezes" and says if a notice to commence collec- tive bargaining has been served, no employer shall "alter the rates of pay, a term or condition of em- ployment or a right or privilege of any employee represented by the bargaining agent or of the bar- gaining agent itself until the right of the bargaining agent to repre- sent the employees is terminated or a strike or lockout commences." The purpose of the section is to prevent employers from uni- laterally implementing unusual changes that could destabilize the bargaining process or undermine employee support for the union, said Kanee. Sheperd's decision to contract out all or substantially all of the bargaining unit works violated this rule because it was not of a "routine, frequent or smaller na- ture," meaning it was a "significant and unusual change." The employer's decision also jeopardized the integrity of the bargaining unit as it was "obliter- ated" or "severely damaged" at the various facilities. The bad faith bargaining was another reason for the violation, as was the decision's effect in destabilizing the collec- tive bargaining process and sub- verting employee support for the union, said Kanee. The board reserved its decision on remedy and said a board officer would arrange dates for a resolu- tion conference and hearing on remedy. Reference: The Alberta Union of Provincial Employees and Sheperd's Care Foundation. Vice-chair — Lyle Kanee. For the employer, Albert Lavergne. For the union, Carol Drennan, William Rigutto, Jim Petrie, Larry Dawson. April 28, 2016. Niagara company ordered to pay workers for lunch breaks A DISPUTE around lunch breaks was resolved recently when an arbitrator decided the employer had breached the collective agree- ment. The group grievance was filed in June 2014, however, only three of the original employees were affected with the recent decision as one had since left the company and another had died. Teamsters Local 879 claimed Centennial Concrete (Niagara) vi- olated the collective agreement by not paying for lunch breaks that were worked. Article 8.02 stated: "It is un- derstood that employees may take one-half (1/2) hour for lunch without pay during the working period to start at a time designat- ed by the dispatcher between the fourth and sixth hour worked." For the period covered by griev- ance, the dispatcher very seldom designated a time for a lunch break. Typically, in the ready-mix con- crete industry, drivers are subject to the needs of the customers and the drivers may have to forego a lunch break if their services are needed by the customers, said ar- bitrator Christopher Albertyn. If a driver is not able to take his un- paid lunch break, the employer is liable to pay him for the half-hour worked. In about 2013, Centennial de- cided to no longer pay for the worked lunch breaks and this de- cision was maintained until De- cember 2014. But the employees kept a record of some of the days when they were unable to take a lunch break. And sometimes a worker would have moved into overtime be- cause of the non-payment of the worked lunch break but, in the calculation of damages, the regu- lar rate of pay, not the overtime rate, had been used throughout. As a result, the arbitrator de- termined the following hours of work and damages were due to the employees: Jim McNair: 54.5 hours x $22/hour = $1,199; Ja- son Gillis: 13.5 hours x $21/hour = $283.50; Mark McCallum: 2.5 hours x $20/hour = $50. Centennial breached the col- lective agreement by failing to pay the employees the amounts stipulated above, said Albertyn, so the grievance was upheld and the employer was ordered to pay the amounts. "The company is further or- dered to advise (Ernie Bishop, vice-president) of the union, upon payment being made, as ordered, by providing him with a copy of the cheques issued." Reference: Centennial Concrete (Niagara) and the Teamsters, Local 879. Arbitrator — Christopher Albertyn. Joanne Mc- Mahon for the union. June 21, 2016. < Arbitration pg. 1 Sheperd's violated the Labour Relations Code when it failed to provide the union with sufficient notice of the layoffs.

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