Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 December 4, 2017 ARBITRATION AWARDS On June 14, he moved to a tem- porary position as engineer in the plant until Aug. 22. During that time, he was paid $40.34 per hour and he received his third-class en- gineer's ticket. Ketchum was returned to the fireman position and he was paid $35.20 per hour. The union, the United Steelworkers, Local 1-2017, grieved the pay rate and submitted Ketchum should have been paid as third-class engineer, due to his ticket status. The union said a Nov. 2, 2012, memorandum of agreement (MOA) indicated a third-class en- gineer should be paid third-class wages no matter what job the em- ployee is doing. The agreement was negotiated when the sawmill owner decided to build the power plant. It said workers' pay rates "will apply to the specified classifications." The MOA specified pay rates for engineers, but the position of fireman was not included. Coni- fex originally intended to use au- tomation and contractors when needed to burn wood, and not hire dedicated staff. However, the power plant did not start as planned and it suffered a catastrophic failure. The power plant was eventu- ally opened in March 2015 and the employer decided to hire full-time workers to burn the wood, despite what the MOA said. A March 4, 2015, letter from Lorraine Ducharme, vice-presi- dent of human resources, to the union stated the company would hire fourth-class engineer-level workers and classify them as fire- men, which was not previously codified in the collective agree- ment. Conifex argued it paid Brant Lennard the lesser fireman rate, even though he held a third-class engineering ticket. The company said that because the union did not grieve that case, Ketchum's case was similar and he did not de- serve to be paid a third-class engi- neer's rate. Arbitrator Arne Peltz upheld the grievance, but said the current situation would stand. "I therefore find that the employer has estab- lished the basis for an estoppel precluding the union from enforc- ing the strict legal right to third- class engineer pay for a fireman such as (Ketchum). The estoppel will remain in effect until the expi- ry of the current collective agree- ment (June 30, 2018)." A grievance meeting had been held in the spring of 2016 to dis- cuss Lennard's pay discrepancy. The employer said the letter that established a fireman's rate held sway. The union eventually agreed, as then-plant chair Ken Stock accepted the company's po- sition. "Stock acted as plant chair in raising the matter of pay for a fire- man who held a third class. He questioned Lennard's fourth-class ticket rate and upon being shown the fireman letter, accepted that Lennard was not entitled to be paid as a third-class engineer. Thus, there is no issue here as to the union's right to manage its grievance process. The question is whether Stock had authority to as- sure (Kevin McIntyre, the power plant manager) that there would be no demand for third-class pay on behalf of a fireman," said Peltz. Due to Stock's continued ac- tions being endorsed by the union when he accepted the rate for Len- nard, it established a precedent, said the arbitrator. "Whether or not Stock had actual authority, I find he had os- tensible or apparent authority, as argued by the employer. McIntyre dealt with Stock on a regular ba- sis to address both concerns and grievances in the plant. The union allowed Stock to perform his role as chair and deal with manage- ment in order to settle disputes," said Peltz. Reference: Conifex Power Limited Partnership and United Steelworkers, Local 1-2017. Arne Peltz — arbitrator. Michael Wagner for the employer. Craig Bavis for the employee. Oct. 19, 2017. uncomfortable with his voice, but the incident only lasted about 30 seconds before Murr left the lunchroom. The following day, he went up to Klassen and said, "I'm sorry. I didn't want to make you feel un- comfortable." Murr received a written disci- pline level on Nov. 17 that read: "The volume of your voice was loud and it was described by a wit- ness as attacking. You initiated this interaction in an inappropri- ate location, at an inappropriate time, and in an inappropriate way." On Dec. 12, Murr phoned Line Poulin, manager of the human resource centre in Quebec, about his benefits. He wanted to have his daughter's name removed as she had moved out and he was no longer covering her medical costs. Murr didn't want to pay for cover- age that he wasn't using. Poulin testified Murr was "rude" and "loud" during their conversation, as she was not the correct person to help him and he was annoyed at the benefits letter being in French, which he didn't understand. Poulin said she felt he was being discriminatory toward her. Later, Murr testified he wasn't being discriminatory and he had a French background, including French parents. Klassen spoke with Poulin about the incident via email. She asked: "Did you find his voice to be loud?" and she received the following response: "At the begin- ning yes, but I wasn't, so he cor- rected his tone." Murr was given a one-day sus- pension for his behaviour on Dec. 20. The letter said: "This is the second such interaction between yourself and another employee where your behaviour was inap- propriate." The company offered Murr counselling for his repeated bad behaviour and he said he was open to receiving such help. On Jan. 6, 2017, the union, The Communications, Energy and Paperworkers Union (CEP), Lo- cal 609, informed the company it wished to grieve the suspension. The grievance was eventu- ally presented to management on Jan. 16, but the employer rejected it because the time limit for the grievances had already expired on Jan. 13. A team-building session took place on Jan. 17, and it included Murr, who was directed to partner with a trusted colleague for a one- on-one session. However, when it was suggest- ed Murr pair with Klassen, he said, "I'm not working with her. I'm not comfortable with her." The following day, Klassen and Knaus had a discussion about Murr and the decision was made to terminate him. The union grieved the termina- tion on Jan. 23. Arbitrator William Hood up- held the grievance and ordered Akzo Nobel to reinstate Murr and compensate him for any losses incurred. "I have found that there was no behaviour or conduct that warranted discipline. (Murr's) employment is intact and it is not a question or substituting a differ- ent penalty." When Murr said he didn't want to have Klassen as a partner in the team-building session, this didn't constitute harassment, according to Hood. "To (Murr), having been disci- plined two times by Klassen since November, and rebuffed the prior afternoon when she refused to ac- cept his grievance, this was rub- bing salt into the wound." A post-dismissal discovery that Murr had used the corporate credit card for personal expenses (which were all paid off by him) cannot be considered to further justify the firing, said the arbitra- tor. "In my view, the just and rea- sonable penalty for the misuse of the corporate credit card would be to give (Murr) the benefit of the doubt and substitute the termina- tion with the warning to only use the corporate credit card for busi- ness purposes going forward." Reference: Akzo Nobel Chemicals and Communications, Energy and Paperworkers Union, Local 609. William Hood — arbitrator. Leah Schatz for the employer. Gary Bainbridge for the employee. Nov. 1, 2017. Plant chair had 'ostensible or apparent authority': Arbitrator < Chemical plant pg. 1 < Estoppel pg. 1

• Cover