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November 24, 2006 |
Issue No. 79 |
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UNION POLICY AGAINST CO-OPERATING WITH CONTRACTORS CONTRARY TO COLLECTIVE AGREEMENT, ARBITRATOR RULES After two days of helping a contractor's employees in their workplace, two employees complied with their union's request to follow its policy of not aiding contractor work. The employer decided it was high time to bring a formal grievance against the union's policy, and a B.C. arbitrator declared that the policy was inoperative, as it was inconsistent with the collective agreement. Details below. EMPLOYER NOT ENTITLED TO DISCRIMINATE ON THE BASIS OF UNION ACTIVITY, EVEN WHEN APPOINTING EMPLOYEES TO POSITIONS OUTSIDE BARGAINING UNIT When an employee was removed from consideration for temporary supervisory assignments due to the fact that she had attended a union conference and worn a union T-shirt, the union filed a grievance. An Ontario arbitration board held that the employer had contravened both the collective agreement and the Labour Relations Act by discriminating against the employee on the basis of her union activity. Details below. |
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— DETAILED REPORTS — |
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UNION POLICY AGAINST CO-OPERATING WITH CONTRACTORS CONTRARY TO COLLECTIVE AGREEMENT, ARBITRATOR RULES The Facts: After experiencing pushback from its employees with respect to working with contractors, to the point where it had to issue a directive to get two of them to work with a contractor's employees, Norampac Inc., a packaging manufacturer in Burnaby, B.C., decided to formally challenge a union policy that directed members not to co-operate with contractors. Norampac's collective agreement with the Communications, Energy and Paperworkers Union of Canada contained a detailed set of provisions regarding the employer's ability to contract out work, found in Article 3. Among other things, the employer was prohibited from bringing a contractor into the mill if that work would result in the layoff of an employee, or performance of the job of an employee who was on layoff or was working outside his/her job category, and contractors were not to be "employed in the mill to do work normally done by members of the bargaining unit, unless necessary employees [were] unavailable," although this did not interfere with the employer's right to hire contractors for major installations. In addition to Article 3, the collective agreement included a Letter of Intent and a Code of Ethics on contracting out. The former essentially provided that union employees were to be used before contractor employees in overtime/emergency situations, while the latter dealt with conditions that would apply to non-union contractors. The union's policy on relations between union members and outside contractors stated that union members "do not work side-by-side with [contractors]. We do not have mixed crews. Contractors do their work, we do ours. Where there is a job which is divided between contractors and mill crews, there must be a sharp line between where their work stops, and where our work begins. We don't help [contractors] by telling them where things are or how things are done. We don't bring them things or carry things away for them. We don't make it easy for them to do our work. Under no circumstances do we work as lead hands, overseeing or coordinating the work of contractors." While the union policy had been in existence since 1995, it was practised inconsistently. Sometimes union members worked in mixed crews with contractors or assisted in coordinating contractor crews, and other times, the union or its members acted in conformity with the policy. In those instances, the employer simply worked around it to avoid confrontation. In November 2002, two of the employer's electricians helped contractors to pull cable through the mill for two days. On the third day, the union insisted that its members comply with the policy, and the two electricians stopped helping the contractors. A supervisor issued a direct order to the two electricians to help the contractors. While the electricians complied, the head electrician, who was a member of the bargaining unit, left the workplace for a period of time, citing "stress" as the reason. At this point, the employer decided that the union's policy needed to be formally challenged. The employer filed a grievance against the union's policy on March 6, 2003. The Arguments: The employer argued that the union's policy must be declared unenforceable and of no effect, as it conflicted directly or indirectly with the collective agreement, and in particular with management's residual right to manage the plant and direct the work force. The union denied that the policy was in conflict with any of the collective agreement's provisions, and attempted to draw a distinction between the collective agreement, which dealt with the circumstances in which the employer was able to bring a contractor into the plant, and the union policy, which dealt with the relations between union members and contractors already in the plant. In response to the employer's assertion of its management rights, the union submitted that the employer had to exercise them in a reasonable manner, and that directing its employees to work with contractors in a manner inconsistent with the union's policy would be an unreasonable exercise of those rights. The Decision: Arbitrator Don Munroe allowed the grievance. He held that the union's policy was in conflict with the collective agreement, as it purported to extend the limitations on contracting out that the parties had already agreed to. Munroe explained that Article 3 of the collective agreement, the Letter of Intent, and the Code of Ethics all served to impose requirements and prescribe limitations on the employer in its use of contractors, but also clearly envisaged that the employer would be able to use contractors in the plant in certain situations. Munroe cited Arbitrator Hope's observation in Canadian Association of Smelter & Allied Workers, Local 1 v. Alcan Smelters & Chemicals Ltd. (1987), 28 L.A.C. (3d) 353 that, "[w]here an employer agrees to restrict its right to contract out, it will be accountable for the full scope of limitations consistent with the language to which it has agreed." However, Munroe proclaimed, the reverse is also true: "where a union has agreed in collective bargaining that contracting out by the employer will to some extent be restricted or limited, then the union, too, will be accountable for that negotiated result, in the sense that the union will be precluded from adopting and seeking to enforce a policy which purports to enlarge upon the restrictions or limitations to which it has agreed." For this reason, the distinction that the union attempted to make was not easily drawn, as the question was "not solely whether the union's policy directly clashes with ... a provision of the collective agreement, but also ... whether the policy purports to enlarge upon the restrictions or limitations to which the union agreed in collective bargaining. In context, that as much runs afoul of the parties' bargain, as revealed by their collective agreement, as would a union policy worded in a manner running directly counter to the bargain." The parties had clearly anticipated instances where there would be contractors in the workplace, and the union's policy of directing members not to work alongside a contractor's employees "amount[ed] to a unilateral attempt by the union to add constraints on the employer ... beyond those contained in the collective agreement." Munroe stated that, generally, "employees are required to obey instructions that are given to them by their supervisors, provided the instructions are not clearly precluded by the collective agreement, or are not otherwise unreasonable or unlawful." And while the union had argued that it would be unreasonable for the employer to direct its employees to work with contractor employees, the arbitrator could find no basis for declaring such directions to be unreasonable and therefore unenforceable. The union was in essence trying to enlarge the restrictions on the employer's use of contractors contained in the collective agreement and, for this reason, Munroe held that the union policy was not binding on the employer. Since the union and the employees could not rely on it as a basis for declining employer directions, the policy was inoperative in that sense. Comment: Where collective agreement language restricts the right to contract out bargaining work, arbitrators will focus on the precise scope of the clause in question. This case serves as a reminder that the sword cuts both ways – the union can rely only on the restrictions mutually agreed upon, and nothing further. For further discussion of contracting out, see section 17.2 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Norampac Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 1129 |
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EMPLOYER NOT ENTITLED TO DISCRIMINATE ON THE BASIS OF UNION ACTIVITY, EVEN WHEN APPOINTING EMPLOYEES TO POSITIONS OUTSIDE BARGAINING UNIT The Facts: After an employer learned that one of its employees, to whom it assigned the position of "temporary shift supervisor" from time to time, had attended an OPSEU conference and was observed wearing a union T-shirt, it decided to temporarily refrain from assigning that employee temporary shift supervisor duties. The grievor, Rose Murrell, had worked at Casino Niagara as a security guard for 8 1/2 years, and was a member of the bargaining unit represented by the Ontario Public Service Employees' Union. She was one of the bargaining unit employees who was occasionally assigned the position of "temporary shift supervisor," pursuant to Article 2.02(a) of the collective agreement: "With the employee's agreement, he or she may be asked to fill the role of Shift Supervisor on a temporary basis. The employee will not lose seniority while working outside the bargaining unit." Employees who undertook this role filled in for regular shift supervisors who were unavailable, and earned a premium over their regular wage when acting in that capacity. In order to perform the role of "temporary shift supervisor," employees needed to obtain an extra licence – known as a "key licence" – from the Alcohol and Gaming Commission, entitling them to act as a supervisor. When acting as a temporary shift supervisor, employees were technically removed from the bargaining unit, but continued to accumulate seniority, and retained their rights in respect of their regular bargaining unit positions. Both parties benefited from the arrangement, as the employer was able to employ fewer permanent supervisors, and the employees who were eligible for the temporary shift positions earned more money and gained supervisory experience. In the spring of 2005, Murrell attended an OPSEU convention, and was observed by management wearing a T-shirt with the union logo on it on one of her days off. Although the grievor held no union office, and had not otherwise been particularly active in union affairs, the employer decided that her apparent union sympathies were inconsistent with the role of a temporary shift supervisor, and asked her to attend a meeting with the employer's security manager. The manager suggested that the grievor's union activities were inconsistent with her performing the role of temporary shift supervisor, and, as reported in a May 9, 2005 memo of their April 19 meeting, he "indicated to her that [he] would not take steps to have her key license removed, but would simply refrain from scheduling her as a Dual Shift Supervisor for the time being." In her own memo, of April 22, the grievor explained that she felt she had no choice in the circumstances but to resign from being a "dual" employee. She stated that she wanted to "make it clear that the decision to resign was not done so willingly," and that she had "advised the management that [she] disagreed with the decision and would not be satisfied being put on the back burner as [she] felt it was punitive." Murrell filed a grievance on May 1, 2005, alleging that the employer had discriminated against her and penalized her due to her association and involvement with her union. The Arguments: While the union conceded that the employer enjoyed a large degree of discretion with respect to the assignment of the temporary supervisor positions, it submitted that when the employer exercised that discretion, it was not entitled to discriminate against or deny advantageous work opportunities to an employee on the basis of whether or not he or she supported the union. It claimed that the employer's management rights were constrained by Article 3.01 of the collective agreement, which provided that "[t]he employer, union and employees agree that there will be no intimidation, harassment, discrimination, interference, restraint or coercion exercised or practiced by their representatives because of membership or non-membership in the union, or because of activity or lack of activity in the union," and by Article 3.02, in which "[t]he employer, union and employees agree that they all have rights and obligations under the Ontario Human Rights Code." Although the temporary supervisor position was "outside" the bargaining unit, employees in that position continued to accumulate seniority and maintained their status within the bargaining unit. In the union's submission, the employer's decision to suspend Mullen from "dual" status after she showed interest in her union was a clear message to other employees not to engage in union activity, and was in breach of both the collective agreement and the Labour Relations Act. The employer contended that, because there were no provisions regulating the allocation of temporary shift supervisor positions, it enjoyed an unreviewable discretion to assign those positions as it saw fit, by virtue of Article 4 of the collective agreement, which provided that the employer retained all management rights unless "expressly contracted away," and that it was the exclusive function of the employer to, among other things, "hire, assign, direct, promote, demote, classify, transfer, layoff, [and] recall" employees; "institute changes in jobs and job assignments and job classifications"; and "generally manage and operate the activities of the employer." Furthermore, the employer argued, when an employee was working in the position of a temporary supervisor, the collective agreement did not apply to that employee, as the position was outside the bargaining unit. Finally, the employer denied that it had acted improperly, as there had been no adverse consequences to the grievor, who had tendered her resignation from "dual" status before the employer had taken any actual steps against her. The Decision: Arbitrator Richard MacDowell delivered the majority decision of the arbitration board upholding the grievance, finding that the employer had contravened the provisions of the collective agreement by denying remunerative employment opportunities to Murrell on the basis of her union involvement. MacDowell noted that the Supreme Court of Canada's decision in Ontario Public Service Employees Union, Local 324 v. Parry Sound (District) Social Services Administration Board, [2003] S.C.J. No. 42 (QL) made it clear that "an employer's broad 'management rights' to run the business, must nevertheless be exercised in accordance with external employment law," but he emphasized that Article 3 of the collective agreement was sufficient to protect the employees at Casino Niagara from being discriminated against on the basis of their support for a union, without relying on the sections of the Ontario Labour Relations Act that protect employees' rights to participate in lawful union activity without facing discrimination or pecuniary penalties. It was plain to the arbitration board that the employer discriminated against the grievor by denying her remunerative work opportunities due to her modest interest in her union. The security manager's May 9 memo "[made] it clear that, as a result of the grievor's 'union involvement,' she would no longer be scheduled to work as a temporary supervisor. The memo also raises the spectre that the employer would take steps to have the grievor's 'key licence' removed." The employer's overtly discriminatory conduct "[could] not but inhibit lawful union activity," MacDowell proclaimed, and "carrie[d] with it unavoidable consequences that the employer could not only foresee, but that it must be taken to have intended.... [I]t is a 'message' that the other employees are unlikely to miss." The board rejected the employer's argument that the protection of Article 3 did not apply to the selection of temporary shift supervisors, because that position was outside the bargaining unit. "Such a narrow reading of Article 3," MacDowell wrote, "is inconsistent with both its content and its context – as well as with the protections found in the Labour Relations Act, with which the collective agreement should be congruent." The employer did not have a "free hand to discriminate" just because the collective agreement did not govern how temporary supervisors were to be selected, since Article 3 was clear on its face, and contained a simple proscription against discrimination. MacDowell described it as "a general undertaking by all parties affected by the collective agreement, that their behaviour will not be animated by this particular form of 'discrimination.'" Moreover, Article 4 recognized that the employer's management rights "must be exercised in a manner that does not collide with the other provisions of the agreement one of which is Article 3." In the board's view, the employer was not "entitled to take into account the grievor's trade union activities, or to put her access to these work assignments 'on the back burner' because she engaged in those activities, or to threaten to have the grievor's key license removed for going to a union convention, or wearing a union T-shirt." The board ordered that the grievor be compensated for lost work opportunities, notwithstanding the difficulty in calculating the loss. Comment: The arbitration board did recognize that "one can conceive of certain types of 'union activity' which, while lawful and protected, would nevertheless demonstrably interfere with the performance of an employee's assigned duties," and that "there may be circumstances where an employer is permitted to differentiate or to respond, even though that response may affect the exercise of a protected right." MacDowell quoted from the decision of Arbitrator Beck in Toronto Newspaper Guild, Local 87 v. Toronto Star (1977), 15 L.A.C. (2d) 326: "The basic principle is that...the demands of a particular job come ahead of authorized union activities. This is not for one moment to say that a company may arbitrarily – or even artificially – conclude that an employee's job demands are incompatible with his union activities. The particular facts must clearly demonstrate the incompatibility.... [A] company may not, under the guise of putting the demands of a job first, discriminate against an employee for union activity in [the] sense of making it difficult if not impossible for him to carry on legitimate union activity because he knows that certain jobs or promotional prospects will be foreclosed to him because of such activity. To repeat, there must be a reasonable balance between employer and employee." For further discussion of the interpretation of collective agreements, see Chapter 16 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Ontario Public Service Employees Union v. Complex Services Inc. (c.o.b. Casino Niagara) |
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