Canadian Labour Reporter

December 12, 2016

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2016 December 12, 2016 ARBITRATION AWARDS shifts as a circular saw filer (CSF). Dhaliwal was no longer classified as HSF, which meant he no lon- ger worked steady day shifts in his own office earning one hour per day of overtime pay, as well as a $0.20 per hour premium. In his new position, he earned $1.03 per hour less than before. The HSF position also included various supervisory duties and troubleshooting issues with other company locations. In September 2010, Dhaliwal saw a company job listing for an HSF and asked Matt Franks, hu- man resources manager, why it was being posted and if he knew about his history as a former HSF. Franks said he did not but told Dhaliwal he was free to apply for the position if he wished. Dhaliwal did so and in Janu- ary 2011 he was advised by Kerry McDonald, Canadian Forest Products maintenance superin- tendent, that he did not win the posting. It instead went to a work- er identified as Beaulieu. The posting called for a certi- fied benchman certificate that Beaulieu didn't possess and Dhali- wal did, so he asked McDonald why Beaulieu won the position. McDonald said he didn't know because the posting was created before he arrived at Isle Pierre (a month before). Dhaliwal tes- tified that when Beaulieu was first hired, it was Dhaliwal who trained him for his first two weeks on the job. United Steelworkers grieved the decision, arguing Dhaliwal should have automatically been moved back into the HSF position that he had previously occupied. The company argued the 2010 change of job titles was not grieved by the union, so in effect the new reality was deemed ac- ceptable by the union. The company wanted to make the HSF title no longer in ef- fect and instead refer to it as a chargehand. It admitted it used a template from another location that included a requirement for a benchman's certificate. The company said the require- ment was a mistake and the new chargehand position did not need to hold such a designation. It also said the title of HSF should be considered colloquial and it was not included in the collective agreement. Dhaliwal produced various company docu- ments including business cards from 1995 that identified him as HSF. The union said a new position of HSF should be written into the agreement in recognition of the years of service given by Dhaliwal, and it should not be known as the lesser position of chargehand. Arbitrator Wayne Moore dis- agreed with the union's conten- tion that Dhaliwal should be re- called to the position of HSF. "While some of the factors re- lied upon by the union deserve consideration and some weight in the cumulative analysis, it is my conclusion that they are simply not enough to warrant a separate classification," said Moore. Because the location no longer used a band saw, the requirement for a benchman's certificate was moot, said Moore. "It is also noteworthy that since the 2009 layoffs associated with the reduction in shifts, the grievor was retained, but as a CSF. This too supports the conclusion that the employer's requirement for a certified benchman ceased as part of the shift reduction and layoffs." The posting process was sim- ply an error by the company and it should not be considered preju- diced against Dhaliwal. "I do not find the mistaken in- clusion of the unnecessary quali- fication to have resulted in an un- fairness to the grievor. "Any concerns in that regard were more than adequately ad- dressed by the offer to re-run the process which was quite appro- priately declined by the union. It follows that I have found no breach of the collective agree- ment with respect to this alternate ground," said Moore. Reference: Canadian Forest Products and United Steelworkers, Local 1-424. Kim Bernhardt — arbitrator. Michael Wagner for the employer. Sarbjit Deepak for the employee. Aug. 2, 2016. CFL player 'bound by physician's decision': Arbitrator A veteran Canadian Football League (CFL) quarterback was signed and then released by the Toronto Argonauts less than one month later. Adrian McPherson was signed to the standard CFL contract on July 20, 2016, but on Aug. 27, he was released by the team. The Canadian Football League Players' Association grieved the release, arguing McPherson was injured at the time and therefore he should not have been let go be- cause a team could not do so to an injured player. Instead, it argued McPherson was allowed to "submit to an ex- amination by a neutral physician as agreed upon in accordance with the collective agreement." The physician was then given the ultimate responsibility to de- cide on a player's fitness and this power "shall be conclusive and binding upon the player and the club," according to the collective agreement. On Sept. 12, 2016, McPherson was examined by a doctor, Grant Lum, who wrote in a three-page report that the player was "fit to play skilled football," and there- fore his release was in accordance with the agreement. The association rejected the doctor's opinion and it said it wanted further testing to better determine McPherson's fitness. The player testified he told the team doctor during his exit inter- view that he should be examined with "sophisticated medical imag- ing" to determine whether or not he was injured. But McPherson said Lum rejected this request during the examination. This refusal constituted a breach of the collective agreement and his release meant he was not able to collect on certain veteran player benefits, as was laid out in the collective agreement. Arbitrator William Kaplan said the arguments were not valid because both sides agreed that a third-party physician held the fi- nal decision-making power. "The parties have decided that this process is final, binding and not subject to review," said Ka- plan. "There is nothing in any of the facts that indicate the process was deficient, for example, cur- sory, blind to the evidence, biased, or otherwise materially and fun- damentally inconsistent with the agreement of the parties." The issue of whether or not the doctor should have ordered more tests is not addressed in the col- lective agreement, so it cannot be considered in the decision, ac- cording to Kaplan. "Lum's report is self-evidently thorough and in compliance with the detailed instructions he re- ceived. It is not my job, nor either of the parties, to second-guess what tests were ordered, or, argu- ably, should have been ordered. "Instead, the parties have agreed upon certain independent physicians and entrusted them given their expertise and profes- sionalism to conduct a 'fully con- sidered' examination and to then be bound by the results," said Ka- plan. "Dissatisfaction with outcome is not a basis for either side to seek arbitral review, especially since the parties have agreed to be bound by the physician's decision. In this case certainly, and on these facts, that is the end of the matter." Reference: The Canadian Football League and the Canadian Football League Players' Association. William Kaplan — arbitrator. Steven Shamie for the employer. Donald Eady for the employee. Nov. 29, 2016. < Long-time pg. 1

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