Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS July 31, 2017 maintenance work could be better performed. During the weekends, there was a need for less-experi- enced apprentices such as Shep- herd and Dobson to be on duty. Wayne Hnatyshin, director of engineering, testified the lodge had been challenged to improve its level of maintenance due to de- clining business during the 2014- 15 season. He said he regularly heard from some guests at the lodge that the level of service had dropped in recent years and some promised not to return until the upkeep was improved. J.D. Power, a consumer insights consultancy, advised the lodge owner, Fairmont Hotels, that Jas- per lodge was rated in the bottom 10 per cent of its hotels in terms of guest satisfaction for 2014 and 2015. Lodge management undertook a comprehensive look at mainte- nance operations in an effort to better serve customers and decid- ed to make the change to schedul- ing. Hnatyshin said by 2016, the level of satisfaction had improved significantly. The union, Unifor, Local 4534, grieved the decisions separately in March and April 2016. It ar- gued the collective agreement allowed for changes to schedules only when "necessary." But the company did not establish that the changes to Shepherd and Dobon's scheduling were "necessary." It said there were no "carpenter emergencies" on the weekends in the past, so the new scheduling re- gime was not needed. As well, Dobson's level of train- ing would suffer because he would not be paired with a journeyman on the weekend when he was working, said the union. Arbitrator Cheryl Yingst Bartel dismissed the grievances and said the employer was well within its management rights when it made the change. "The decision of the employer to concentrate its most experi- enced staff during the week was made for the legitimate business reasons to gain the greatest ef- ficiencies in the completion of work when the hotel is historically at its lowest occupancy — by its most senior labour force — with the least impact to guests. I find the decision was objectively rea- sonable, made in good faith, was made to achieve operational effi- ciencies and as such was made for legitimate business reasons." The argument that manage- ment should have consulted with the union before making any changes was also denied by the ar- bitrator. "While I sympathize with the frustration of the union in not being advised of certain of this information at an earlier stage in this process, and while discussion between union and management should always be encouraged to foster strong labour relations (as has historically been the case be- tween these parties), I note that there was no obligation in this col- lective agreement for the employ- er to do so," said Bartel. And Dobson's training level would not suffer due to the chang- es, she said. "While Dobson had concerns with the quality of his appren- ticeship as a result of the change, I find that these concerns were not well-founded. Dobson was not entitled to any guarantee that he would be working five days per week with his journeyman, even had his regular days off not changed." Reference: Jasper Park Lodge and Unifor, Local 4534. Cheryl Yingst Bartel — arbitrator. Michael Vos for the employer. Brenda Kuzio for the employee. May 31, 2017. Bonus payments not made, despite agreement SECURITY GUARDS working at a mining site in Newfoundland and Labrador were not given bo- nus payments, despite promises in the collective agreement saying payments "up to eight per cent" would be given. The employer, Atlantic Safety Centre (ASC), had provided secu- rity services to Vale at Long Har- bour, N.L., since 2014. Twelve full- time and eight part-time workers were responsible for patrolling the nickel processing plant. The three-year collective agreement was implemented on July 28, 2015, and included a bo- nus statement written just below the wage schedule. The contract would not have been signed with- out the bonus clause included, testified Allan Moulton, union representative. The bonus payment was to be made once each year, on the provi- so that it would be paid if employ- ees achieved a certain standard — although the details were not agreed upon at the time of signing. But, after the first year, no pay- ments were made. Moulton and Mona Saunders, president and COO of ASC, dis- cussed how best to secure the bonus wording in July 2016. How- ever, Saunders eventually notified Moulton that because Vale had not approved of the bonus, no payments would be made. Saunders testified that ASC and Vale eventually agreed that bonuses would be paid based on a key-performance-indicators (KPIs) scale implemented by Vale. A change was made to the con- tract between ASC and Vale that settled the terms of payments based on hours worked, after the agreement was signed. But there was no such language in the new contract that mentioned the bo- nus payments. Saunders sent an email to Vale on Aug. 19 that finalized the de- tails on how the KPI would work and how the payments would be made. Jeff Brown, senior contracts co- ordinator at Vale, sent a letter Oct. 24 that said: "After careful consid- eration of your request, unfortu- nately, we will not be approving bonus payment." The union, Fish, Food and Al- lied Workers/Unifor, grieved the decision on Sept. 27. It argued ASC agreed to a bonus and the fact that Vale didn't approve it should have no bearing because it wasn't a party to the collective agreement negotiations. ASC countered and said be- cause there were no express state- ments about how the payments would be made, or how much it would represent, the bonus was discretionary and completely up to the company to decide. Arbitrator James Oakley up- held the grievance. "ASC is re- quired to pay a bonus under schedule A of the collective agree- ment, for the period July 28, 2015, to July 28, 2016. The amount of the bonus is required to be based on performance by employees of jointly set goals of Vale and ASC. ASC is required to pay the bonus to employees whether or not Vale approves the bonus." Saunders' actions negotiating the deal with Vale contributed to the confusion, according to Oak- ley. "However, (Saunders) also tes- tified that she questioned whether the bonus should be based on the workers doing their jobs or based on the workers doing work over and above their jobs. Also, when she completed the KPI form, she did not know the meaning of cer- tain parts of the form. She did not know how the SHE (safety, health and environmental) portion of the form was to be completed. She did not know the meaning of lagging indicators and leading indicators," said Oakley. And despite ASC contending it could not pay the bonuses, the collective agreement's wording had to be honoured. "There was no evidence of any discussion that payment of the bonus would be subject to financial circumstances or subject to any condition other than performance of the jointly set goals," said Oakley. Reference: Atlantic Safety Centre and Fish, Food and Allied Workers/Unifor. James Oakley — arbitrator. Rodney Zdebiak for the employer. Greg Pretty for the employee. Feb. 2, 2017. < Alberta lodge pg. 1

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