Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 November 28, 2016 ARBITRATION AWARDS As part of the position, the shipper/receiver told forklift op- erators where to put various items for shipment. When working this shift, workers were given a lead hand premium of $1.50 per hour. On June 21, 2013, forklift op- erator Kyle Elder said he was talk- ing to two other employees when Liness approached and told Elder to stop being a "dog f---er." Later in the shift, Edler reportedly told him he was "dog f---ing" and at the end of the day he was called a "f---ing dog f---er." The following week, Elder said Liness suddenly shoved him. When asked about these in- cidents by members of the plant committee Liness said he was sor- ry about the way he spoke but said did not intentionally shove Elder. Eventually, the pair discussed the incidents and Liness resolved to behave better in future. But on Jan. 27, 2014, Liness confronted office manager Shelly Bruder about a discrepancy with a pay stub. As he left the meeting, he swore at Bruder. He was given a one-day suspension for not treat- ing other employees with respect. Then in Feb. 2014, an email from Liness' account was sent to his wife, and it contained confi- dential company information. He deleted the email but the action was noticed and management is- sued him a written warning. Finally, on May 12, 2014, after hearing from Elder about a May 2 incident in which Liness yelled at him and unsafely drove too close to him while on a forklift truck, as well as another incident with yet another worker earlier that day, the company advised Liness he could no longer work as lead hand. Instead, he was demoted to forklift operator and was t no lon- ger relieve anybody as a shipper/ receiver on any shift, thus deny- ing him the right to earn either the higher wage rate of a shipper/ receiver or a lead hand premium. Soon after, Liness took leave due to depression and anger issues and attended four counselling ses- sions before returning to work in August 2014. Brewery, Winery and Distill- ery Workers Union, Local 300, grieved the demotion, arguing the decision wasn't arrived at by just and reasonable cause. It argued that demotion was not a remedy available to the employer in a dis- cipline case because the collective agreement said, "Employees may only be given a written warning, notice of suspension, or be dis- charged for just and reasonable cause." But arbitrator John Kinzie par- tially upheld the employer's deci- sion to demote Liness because the collective agreement language "references the more common forms of disciplinary measures, but I am not persuaded that it evi- dences an intention to thereby ex- clude demotion from the forms of disciplinary measures available to the employer." The decision included a condi- tion. "If the grievor can establish that he has overcome his anger management and depression issues to an extent that it is un- likely that he will repeat the kind of unacceptable behaviour and comments towards his fellow em- ployees that he has engaged in in the past, he is to then be reinstated to the shipper/receiver position to perform relief duties as he has done previously," said Kinzie. A trained professional would have to attest that Liness' anger is- sues are in the past before he could be returned to the higher job clas- sification, said Kinzie. Reference: Pacific Western Brewing Company and Brewery, Winery and Distillery Workers Union, Local 300. John Kinzie — arbitrator. Peter Csiszar for the employer. Robert Logue for the employee. Oct. 26, 2016. Ship workers not allowed overtime for sleepovers A shipping company began re- quiring two employees to sleep onboard a boat each night it was docked overnight at port. But the union argued the work- ers — who were expected to mon- itor the ship for safety reasons — should be compensated for the time spent onboard. The M.V. Gallipoli was a ferry vessel operated by the Newfound and Labrador Department of Transportation and Works, and began and ended its days in the port of Ramea. Most nights, it was docked in the small town while its crew lived in the surrounding area on Northwest Island, located south of the mainland. Before October 2014, no crew members were regularly remain- ing on the ship overnight. Shawn Marshall, acting director of ma- rine operations, was advised by Captain Roger Dominie that because most crew members re- sided in Ramea, none were stay- ing overnight onboard the vessel while it was docked. Marshall advised the captain at least one crew member should stay onboard every night in case of emergency. Occasionally, stayed on the ship to sleep. A schedule was eventually pre- pared for two crew members to take turns staying overnight. On March 9, 2015, Marshall wanted to further clarify the issue by contacting Siri Herat at Lloyd's Register about vessels being left unattended overnight. He was told leaving ships unattended was a violation of the International Safety Management code and was therefore an unsafe practice. Marshall also referred to a 1999 company memo written by Gor- don Murphy, director of human resources. "At least one employee must remain on board each of our vessels overnight to ensure secu- rity," the memo read. Finally, the Canada Shipping Act states "a vessel that is secure- ly anchored in port or securely moored to shore shall ensure that a deck watch is maintained." During the times a worker slept onboard, none of them grieved the fact overtime was not paid. The policy was grieved by the union, the Newfoundland and Labrador Association of Public and Private Employees (NAPE) on Nov. 4, 2014. It argued that requiring workers to spend the night onboard fit the definition of overtime in the collective agree- ment. It also argued that when oth- er ships were docked and crew members chose to bunk on the ships because they did not have accommodation on land, it meant the employers' requirement to have the ships manned at all times made the company argument for safety disingenuous. The employer countered saying that simply having crew members sleep onboard did not constitute work that should be compensated. And there was no language in the collective agreement that stipulat- ed how much an employee should be paid for being onboard over- night, so none should be paid. Workers were scheduled on a 14-days on, 14-days off rotation and receive $4,294 each year "in consideration of the hours worked by employees in excess of the hours contained in the established daily sailing schedule (EDSS) for their re- spective service and being available for callback to work for the dura- tion of their shifts," according to the collective agreement. An estimate of $6.9 million to compensate all those who stayed after hours was too onerous, ac- cording to the company. In finding for the employer, ar- bitrator James Oakley ruled no overtime should be paid for work- ers who spend the night onboard the Gallipoli."There is no provi- sion in the collective agreement to pay compensation to employ- ees who stay overnight on vessels outside the hours of the EDSS and who are not called to perform work on the vessel or to work an extra trip outside the EDSS." There should also be no differ- ence between those who chose to stay overnight and those who were required to stay onboard, ac- cording to Oakley. "The collective agreement does not contain any language to make a distinction between crew mem- bers based on the reason they stay overnight on vessels, or to make a distinction between crew mem- bers based on the vessel or the ferry service." Reference: Government of Newfoundland and Labrador (Marine Services) and Newfoundland and Labrador Association of Public and Private Employees. James Oakley — arbitrator. Christa Chaplin for the employer. Ed Hogan, Paul Foley for the employees. May 9, 2016. < B.C. pg. 1

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