Canadian Labour Reporter

August 21, 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 August 21, 2017 machine, so it could continue op- erating during his absence. When he looked at his follow- ing paycheque and saw that he "had been paid for a banked day that I did not request for taking a day off and having someone fill in for my shift," Shiers filed a griev- ance on Aug. 1. Joanne O'Leary, production re- source scheduler for the company, handled scheduling duties. She testified that CKF instituted an attendance management system in July 24, 2007, to better manage scheduling after it found that too many absences from 2001 to 2006 negatively affected production. The employer posted the up- dated policy on all union bulle- tin boards in 2008, according to O'Leary. The policy said: "Employees will be required to use all eligible paid leaves (e.g. floaters, banked days) before any unpaid leave of absences will be granted." Ever since the implementation of the policy, a holiday was used when employees requested time off for unexpected circumstances, said O'Leary. When Shiers made the request, O'Leary said she spoke with him and his wife (who works on the same machine) and said he would have to use a holiday for the time off, — but Shiers said this didn't happen. The union, Unifor Local 576, grieved the decision and argued there was nothing in the collec- tive agreement that specified how days off are to be treated, meaning the company breached it. The union said employees should be allowed to choose how to be compensated when taking days off. The arbitrator, Augustus Rich- ardson, dismissed the grievance. "The onus lies on the union to establish a violation of the collec- tive agreement. There was no evi- dence that any particular clause of the agreement was applicable or had been breached. The rule or condition imposed by the em- ployer with respect to requests for leave was a reasonable one; it had been in place since at least 2008; it did not violate any provision in the collective agreement," said Rich- ardson. The suggestion that O'Leary didn't fully explain the policy to Shiers was rejected by the arbitra- tor. "The fact that Shiers did not agree with the policy when it was applied to him in July 2015 is not evidence that the rule was ar- bitrary, or that is was suddenly imposed — or resurrected — without notice in 2015. O'Leary testified that she had always ap- plied the rule, and she would be responsible for many such re- quests over the years," said Rich- ardson. And because there was nothing specific in the collective agree- ment, the employer's policy could be enforced, according to Rich- ardson. "Is he or she to be treated as having used a paid holiday (whether banked or a floater)? Or is it to be considered an unpaid day off? To put it another way, is there anything in the collective agreement that allows the em- ployee who seeks permission to be excused from his or her scheduled day of work to require that the em- ployer treat it as an unpaid rather than as a paid day? "Neither party drew my atten- tion to any provision in the col- lective agreement that expressly dealt with — or answered — that question." Reference: Canadian Keyes Fibre and Unifor, Local 576. Augustus Richardson — arbitrator. Rebecca Saturley for the employer. Gary Healey for the employee. June 5, 2017. Oil worker fired after refusing to take drug test AFTER HE was seen smoking a marijuana joint while on the job, a worker on the Hebron oil field project was terminated after he refused to submit to a drug test. Rodney Mitchell worked as a blower operator at the Bull Arm site in Trinity Bay, N.L., when on July 19, 2015, he was seen smoking a cigarette inside a vehicle. He was escorted off site for vio- lating a site absolute. Mitchell immediately informed his union shop steward Glenn Saunders that he had a medical marijuana prescription and he wanted to fight his dismissal. After the employer, Kiewit- Kvaerner Contractors (KKC), conducted an investigation of the incident, the site contractor Exx- on Mobil Canada sent a letter on July 19 that said: "Company will deny access to the Bull Arm fab- rication site by Rodney Mitchell for the remaining duration of the Hebron Project." Mitchell was then terminated via a July 30 letter. On Sept. 30, KKC requested the union, International Union of Op- erating Engineers Local 904, refer a blower operator for the site. After Mitchell was rejected due to his previous violation of a site absolute (violation of the sub- stance abuse policy), the union filed two grievances alleging the contractor denied his right to employment and that it was "dis- criminating against the grievor by denying him the opportunity for an accommodation of his medical condition." The company denied the griev- ance on Oct. 26 and said the time limit of five days to file the initial claim were not met, which was ex- pressly written into the collective agreement. Article 14.10 stated: "Time lim- its are mandatory but may be ad- justed by mutual agreement of the parties, evidenced in writing." But the union argued that the company's past practice of trying to work out such matters before proceeding to the arbitration pro- cess amounted to it taking a liberal approach to the time limits. And by discussing the issue of medical marijuana, it was taking a "fresh step" which reopened the issue, effectively moving forward the time limits. Mitchell's doctor eventually sent a note confirming his prescription and Mitchell felt this was an indication from the company that it was continuing to consider him for future employ- ment, thus extending the time limits. Arbitrator James Oakley dis- missed the grievance. "The RDTC (Resource Devel- opment Trades Council of New- foundland and Labrador) did not file the grievances within the time limit in step 1 of article 14.01. The time limit is mandatory. The par- ties did not mutually agree in writ- ing to adjust the time limits under article 14.10. The parties did not mutually agree in writing to waive any part of the grievance and ar- bitration process under article 14.11," said Oakley. Despite how the employer op- erated in the past, the agreement always takes precedent, according to Oakley. "The HPEA (Hebron Project Employers' Association) is not prevented by past practice, or by its actions in relation to this case, from relying upon the time limit objection, by operation of waiver, estoppel or any other ground. "Also, there was no evidence of a consistent past practice to dis- regard time limits. There was evi- dence that the HPEA has raised time limit objections to other grievances," said Oakley. Reference: Hebron Project Employers' Association and Resource Development Trades Council of Newfoundland and Labrador. James Oakley — arbitrator. Darren Stratton for the employer. Timothy Morris and Harry Mugford for the employee. Feb. 27, 2017. < Nova Scotia worker pg. 1

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