Canadian Labour Reporter

May 8, 2017

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 2017 ARBITRATION AWARDS May 8, 2017 in 2009, while Miller's started in 2012. Campbell was rated in the plant operator 1 classification, and Miller was slotted in the plant operator 2 category. The company operated under an 11-stage progression system, from labourers to the highest- graded plant control room op- erator. Teck required employees who moved up the ladder to the top wage scale to be trained on all aspects of the plant floor, do- ing such tasks as loading trains with dry coal, then moving up to the top levels operating equip- ment and materials in the drying room. The agreement specifically spelled out what can be done during a time when a slot on the plant floor needed to be filled (which was what happened on the day in question). It said: "Temporary vacancies or assign- ments of 1 shift or less may be filled by any qualified person." All employees were required to regularly rotate throughout the various operations in order to stay current with how all areas operated, according to Jeff Pry- bitko, senior supervisor. The scheduling of who work ed where was decided on the floor and not by management, he said. In the collective agreement, appendix B said: "All plant opera- tions employees will be trained on load out." Each worker was paid his cur- rently graded pay rate, even if he worked at a lower-rated position for a shift. The union, United Steelwork- ers, grieved Campbell's assign- ment that day, arguing a clause in the collective agreement gave him the power to refuse the shift assignment. "Senior qualified employees shall be entitled to preference," in transfers between jobs, accord- ing to article 5.01 in the agree- ment. The union said Campbell should have worked a shift on the dryer floor and Miller should have been scheduled on the load- out operator position as he was the junior union member. The company countered and said the assignment was not a transfer between jobs, but rather a regularly mandated rotation of duties and, as such, part of Campbell's existing employ- ment. Arbitrator John Kinzie dis- missed the grievance and said the company was well within its management rights by assigning Campbell to do the load-out job that day. "In my view, the collective agreement does give the employ- er the authority to ignore senior- ity in one situation and that is in the circumstances of a tempo- rary vacancy in a job 'of 1 shift or less,'" he said. "In those circum- stances, the employer can assign 'any qualified person' to fill the vacancy." Because the agreement speci- fied that all workers — regard- less of their pay grade — were to be trained on the load out, "it is clearly implicit in that require- ment that all plant operations employees can be expected to perform load-out duties from time to time," said Kinzie. "In choosing which qualified employee to assign these du- ties to on any given shift, I am of the view that the collective agreement does not require the employer to be governed by em- ployees' seniority," he said. "Employees are not being transferred between jobs in these circumstances so article 5.01 does not apply." Reference: Teck Coal and United Steelworkers, Local 9346. John Kinzie — arbitrator. David McDonald for the employer. Colin Gusikoski for the employee. Feb. 1, 2017. Newfoundland postal worker not paid for lunch breaks A POSTAL worker who was nor- mally slated to work shifts of no more than 360 minutes at a time found he was working more after a route was reassessed. Darren Byrne worked in New- foundland as a postal carrier from 2010 to 2013. When a new subdi- vision was built in the neighbour- hood, 80 more homes became part of his route. When Byrne was originally hired, the route was assessed at re- quiring 350 minutes to complete, meaning he did not pass the six- hour threshold that would have entitled him to a paid 30-minute lunch break. In September, Byrne found the route timing began to pass the six- hour limit. He complained to supervisors and maintained he should have been provided the lunch break each time he exceeded six hours worked. Byrne hoped the route would be converted to a full-time shift. He said he was concerned the employer would simply split the route between two part-time shifts. The employer said that if he was concerned about the hours, he should have requested a re- view so a route measurement of- ficer could assess it and provide a proper assignment and amount of hours. The union, Canadian Union of Postal Workers, filed a griev- ance. It asked for redress of $7,500 for 200 shifts in which Byrne did not receive the paid 30-minute break. It also asked that all other af- fected employees be given similar reparations. Canada Post said the route in question was over-assessed at 6.22 hours and Byrne was being compensated on that basis. It argued employees are only entitled to the break once they work the extra shifts, but noth- ing compels part-time carriers to work more than six hours, even though the worker is scheduled to work more than six hours. "It is our understanding that if a part-time employee works six hours, he would then get paid a dinner break. If they do not physi- cally work the full six hours, then a dinner break would not apply," said a Feb. 9, 2011, dismissal of the grievance by Canada Post. But arbitrator Wayne Thistle upheld the grievance and ordered Byrne to be compensated for all the shifts he worked that exceeded six hours. "I find the agreement has been violated and Byrne is entitled to a half-hour paid meal period on those occasions when he was as- sessed over 360 minutes — over approximately a three-year period — and required to work for a con- tinuous period of more than six hours," said Thistle. Canada Post's contention that employees were not required to work more than the six-hour limit was dismissed by the arbi- trator. "Byrne is to be compensated for those occasions when he was scheduled and required to work for a continuous period of more than six hours," said Thistle. Various parts of the collective agreement were referred to by the arbitrator regarding paid breaks, which complicated the ruling, ac- cording to Thistle. "There are four different de- scriptions of eligibility" for the breaks, said Thistle. "Of the various descriptions for eligibility for part-time employees to certain pay and benefits, my understanding of what the parties had intended in these descrip- tions is that 14.06(a) specifies that the employee has to be 'working for a continuous period,' whereas in 14.06(c), 14.07(a) and 14.07(b), the parties have used 'required to work' and 'scheduled to work' in- terchangeably," he said. "When Byrne's route was as- sessed more than six hours, there were times when he completed the route in less than six hours. " "On such occasions, while scheduled and possibly required to work for a continuous period of six hours, he was not physically at work for a continuous period of more than six consecutive hours" said Thistle. "Thus, I conclude it was not 'compulsory' or 'imperative' that he work more than six con- tinuous hours to create eligibil- ity to the paid-meal period," said Thistle. Reference: Canadian Union of Postal Workers and Canada Post. Wayne Thistle — arbitrator. Ellen Campbell for the employer. Robert Garnier for the employee. April 19, 2017. < B.C. coal miner pg. 1

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