Canadian Labour Reporter

April 30, 2018

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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7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS was cited: on Nov. 3, 2015, and on Dec. 1, McLarty was warned about his lax safety practices: "Ian, it is imperative that you take safety seriously. Our em- ployees are hired to help achieve the goals of the business and that includes staying focused and per- forming the work assigned to you in a safe and timely manner," said the December letter. On Dec. 30, McLarty was given a one-day suspension, but it was for bringing in his dog to work, which was against Canfor policy. Three more lockout violations (for not properly turning off all energy sources to machinery) were investigated but none were found to be worthy of any disci- plinary actions. However, on Feb. 14, 2016, McLarty was given a 10-day sus- pension for yet another lockout violation. "When we first asked you if you were locked out, you said that you knew you 'fucked up again.' How- ever, you later said that you were properly locked out on the MCC (motor control centre) panel rath- er than on the local disconnect. In essence, you denied being in a lockout breach," wrote manage- ment in his disciplinary letter. Also, during the investigation, McLarty unlocked a colleague's locks with his own keys, which was upsetting to the other worker and against company policy. The culminating incident that lead to McLarty's firing was on May 30. McLarty was setting up to work on a machine that required an air pressure lockout when Tim Dika, day-shift supervisor, approached McLarty and he asked him if he had done the proper lockout pro- cedures. McLarty said he had, but Dika pointed out that he had missed the air valve that was not locked out. McLarty claimed: "I'm not in the bite," when questioned why he hadn't locked out. "He said, 'OK, I fucked up,'" wrote Dika in his notes immedi- ately after the incident, after he pointed out the procedure matrix printout that illustrated the lock- out scheme. McLarty was sent home pend- ing an investigation and he was fired shortly after. The union, Unifor, Local 446, grieved both the 10-day suspen- sion and the termination and argued McLarty was subject to "unjust discipline" for the two in- cidents. It also called for the arbitrator to not regard the other non-lock- out violations and the unproved incidents in making a decision. Arbitrator Andrew Sims dis- agreed and upheld the termina- tion. "(McLarty's) evidence and his proven infractions both lead me to doubt that his style of working will change, or that he truly ap- preciates the caution he needs to exercise based on the employer's rules rather than just his own ex- perience," said Sims. By not apologizing, it showed McLarty didn't fully realize the gravity of the safety situation, said Sims. "More significant, in my view, is concern that, in both the Feb. 14 and May 30 incidents, (McLarty) sought to deflect re- sponsibility away from himself." "The employer clearly warned (McLarty) of the consequences of a further lockout infraction fol- lowing the Feb. 14 incident when they decided (appropriately in my view) not to terminate but to im- pose a significant suspension in- stead," said Sims. And when he made his own keys for another worker's locks, this proved McLarty doesn't pos- sess "respect for the employer's safety rules and that was his deci- sion to have lockout keys cut for himself rather than going through the employer. This too exhibits a certain 'I'll do it my way' attitude; perhaps based on years of experi- ence, but still insensitive to the employer's procedures," said Sims. Reference: Canadian Forest Products and Unifor, Local 446. Andrew Sims — arbitrator. Michael Wagner for the employ- er. Gordon Nekolaichuk for the employee. Feb. 23, 2018. 2018 CarswellAlta 471 work at 8 a.m. the following day. After the aircraft was fixed around 1 p.m., West left for Gander and returned by 4 p.m. The next day, he resumed his regular shift. West claimed four hours of pay at $28.57 per hour as a shift- change premium. He testified that before he left for the shift, West had to arrange for care of his sen- ior parents and his dog in his ab- sence, due to the short notice of shift change. West was paid $25 for each leg of the flight to St. John's, but he wasn't paid for any overtime. His request for the premium was denied, because IMP said West did not work any hours out- side his regular eight-hour shift and that the following day his regular night shift was converted to a day shift. Barry Wadman, site manager, testified that the employer does not pay a premium when workers are deployed, which is what hap- pened to West that night. Because of the nature of the work, said Wadman, employees are required to be flexible and are often deployed on different shifts to service emergency aircraft. The union, the Public Service Alliance of Canada, UNDE Lo- cal 90120, filed a grievance dated Aug. 24, 2015, citing the collective agreement: "If an employee is given less than seven days' advance notice, the employee shall receive a pre- mium rate of time and one half for work performed on the first changed shift," read article 17.02, on which the union made its claim for overtime pay. Arbitrator James Oakley de- nied the grievance but said "the union is estopped by the fact it did not object to the employer's con- sistent practice over 12 years to not pay the shift-change premium on deployment. The employer was not previ- ously put on notice of the union's interpretation and did not seek to address the issue in prior rounds of collective bargaining." But IMP did breach the col- lective agreement, said Oakley. "The employer sent the griev- or, Terry West, on deployment on Aug. 11, 2015, and gave him less than seven days' notice of the shift change. Under the correct interpretation of article 17.02, the employer would be obligated to pay the shift-change premium to (West)." If the union wanted to raise the issue of premiums pay for shift changes, it must wait, said the arbitrator. "The parties may address the issue in the next round of collect- ive bargaining. In the meantime, the effect of the application of es- toppel is that the employer's cur- rent practice may continue until the expiry of the collective agree- ment," said Oakley. "The union is estopped from grieving the practice." Reference: IMP Group Limited Aerospace Division and Public Service Alliance of Canada, UNDE Local 90120. James Oakley — arbitrator. Kate Hopfner for the employer. Leslie Robertson for the employee. Nov. 29, 2017. 2017 CarswellNfld 529 Employee didn't 'truly appreciate the caution': Arbitrator < Premium pay pg. 1 < Equipment lockout pg. 1

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