Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 February 19, 2018 ARBITRATION AWARDS to the organization's three differ- ent sites on Dec. 16 in Kitchener, Cambridge and Guelph — all in Ontario — to "stop by and say hi and wish our members happy holidays." Hanley had worked for UFCW since March 2016 and he spoke with Nandlal via email re- garding site visits. In the past, Hanley and his UFCW predecessors had vis- ited the sites on their own with- out alerting the employer, but Hanley testified: "She was told I had done a walk-around at Cam- bridge without the union stew- ard. (Nandlal) asked me to let her know when I would be in the facil- ities. I did, we had a good working relationship." Beginning in September, Han- ley sent email requests whenever he wanted to visit the three loca- tions to greet workers and see if they had any concerns that could be addressed by the union. Each time, Nandlal replied: "Fine," to the requests, said Han- ley, but on Nov. 30, Nandlal an- swered: "If you wish to do De- cember site visits so soon after the November site visits that were on agency time, you are welcome to meet with staff after hours/out- side of their regular work time (they will not be compensated for their time)." Hanley repeated his request to visit the sites, but he was again de- nied by Nandlal. On Dec. 16, the union grieved the decision and argued the employer breached the collective agreement, specifically article 7.09, which said: "Repre- sentatives may have access to the employer's premises in order to investigate or assist in the settle- ment of a grievance and to regu- larly visit the employer premises to service the member's needs. Such rights shall not be unreason- ably withheld." But Nandlal testified about her refusal to allow site visits so soon after the November stopovers. "These didn't need to happen on company time. He could meet with them after hours on employ- er sites," said Nandlal. However, the UFCW argued the article allows for the union to "regularly visit" sites meaning the frequency was not governed by any other language in the article. Arbitrator William Marcotte agreed and ruled the collective agreement was breached. "I find the purpose of the visit falls properly within the provi- sions of art. 7.09. I find the em- ployer's decision to deny the union access was unreasonably withheld ," said Marcotte. Despite the employer's argu- ment that union visits disrupt workers, the amount of distur- bance is minimal and well within acceptable limits, according to the arbitrator. "When he does engage a mem- ber, he estimated those conversa- tions lasted, at most, five minutes. In my view, given the nature of the work performed by bargaining unit members and Hanley's con- duct when he interacts with them, I find whatever disruption of work may occur, it conforms with the notion in the submitted awards of no undue disruption," said Mar- cotte. The time between the visits cannot be managed because there is no wording that restricts them, said the arbitrator. "These are not reasonable con- siderations for withholding con- sent. There is no restriction in art. 7.09 as to the 'regularity or irregu- larity' of union representatives' visits," said Marcotte. "Secondly, there is no restriction on the time when a visit can occur. There is nothing in the submitted awards to indicate union visits cannot oc- cur during the working day." Reference: John Howard Society of Waterloo-Wellington and United Food and Commercial Workers Canada (UFCW), Local 175. William Marcotte — arbitrator. F. D. Carere for the employer. M. Jagodits for the employee. Feb. 5, 2018. Article 27.10, overtime rates of pay, of the collective agreement said: "All employees shall be eli- gible for overtime in their depart- ment and all overtime shall be of- fered in order of seniority." For about a year, Brenner testi- fied, she had been offered over- time which she accepted on mul- tiple occasions as a scheduler in a non-supervisory classification. Each time, Brenner was paid her supervisor rate when she worked as a scheduler. But when the human resources department was notified of the practice, it ruled that overtime should be offered to schedulers who were inside the classification. Brenner was not in the classifi- cation as she was a supervisor. Blommaert testified that the same issue had been previously raised by the union and grieved, however no resolutions were reached. But Glen-mary Christopher, home-care manager, Yorkton as- sessment and scheduling, argued that if the ruling succeeded, other classifications would be affected and this would result in "absurd" outcomes. If, for example, a licensed prac- tical nurse (LPN) missed a shift, a continuing-care assistant (CCA) could be asked to work as an LPN as both jobs were in the same de- partment. But, a CCA did not necessarily have the proper qualifications of an LPN, said Christopher. Compounding this, said Donna McLeod, manager of schedul- ing services, was that schedulers could not know who was qualified to perform certain duties, so of- fering overtime to all workers in the same department — instead of in the same classification — would make scheduling much more complicated and it might compro- mise patient safety. The employer submitted that the wording must be taken into context within the greater mean- ing of the collective agreement, despite its actual wording. But CUPE countered and ar- gued past practice and the "clear and unambiguous language" in the article must be followed. Arbitrator chair Kenneth Ste- venson (backed by arbitrator Sharleen Rayner and Eric Sarauer) disagreed with the union and dis- missed the grievance. Despite past practices, the em- ployer "has the right to organize the workforce and to assign or re- assign duties and, in so doing, to rely on classification," according to the arbitrator, and SRHA can continue to offer overtime within the same classification first. "Work within the bargaining unit is typically assigned based on classification. The employer has many departments where there are a number of different classifi- cations" said Stevenson. If overtime was offered on the basis of 'ability and qualifications to perform the work,' this could create a chaotic situation in mak- ing a determination as to which employees within classifications, other than the one to be replaced, might be able to perform the re- quired work" said Stevenson. "We acknowledge that in these circumstances, (Brenner) had the ability to perform the work, but the employer is entitled to deter- mine the classification required to perform the overtime work." Brenner recently worked some overtime shifts, which shows the employer had not shut her out from receiving the benefit, ac- cording to the arbitrator. "Notwithstanding this, it is ap- parent that Brenner does get over- time opportunities as a scheduler when no other employee within the scheduling classification is available. In the last month, Brenner says she received three full days of overtime," said Steven- son. "The evidence supports the employer's assertion that the as- signment was made for good busi- ness/operational reasons." Reference: Sunrise Regional Health Authority and Canadian Union of Public Employees (CUPE), Local 4980. Kenneth Stevenson — arbitrator. Jolene Horejda for the employer. Sachia Longo for the employee. Dec. 21, 2017. 2017 Carswell- Sask 645 UFCW site visits 'within acceptable limits': Arbitrator < Lack of overtime pg. 1 < Limiting visits pg. 1

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