No evidence of negative effect on job security: Arbitrator
When two positions opened at the Town of Sackville, N.B., in tourism and crosswalk-guard departments, the town decided to contract out the jobs to an employment agency.
“The collective agreement has been violated as the position of crosswalk-guard vacancy should have been posted as of Aug. 9, 2017,” read a letter from the union, the Canadian Union of Public Employees (CUPE), Local 1188, after it discovered the town contracted Open Sky Co-operative to fill the position.
Open Sky was an organization that offered employment to adults living with autism or other mental-health challenges.
The union also grieved after employment agency Kelly Services filled the tourism counsellor position.
But the town responded via letter that “no member of your bargaining unit has his or her job security affected by the Town’s decision to contract out the services that you have indicated in your grievance.”
The union cited article 13, which said, “When a new position is created, or when a vacancy exists, the employer shall post, within thirty (30) working days, the position for a period of ten (10) working days before being filled.”
Under article 29, the collective agreement called for “work or services presently performed or hereafter assigned to the collective-bargaining unit will not be affected by sub-contraction, so as to affect the job security of the member of the bargaining unit.”
The Town argued that it could have used article 13, but instead it relied on article 29 when it decided to hire replacement workers for the part-time positions (four hours per day from September to October for the tourism position; 3.75 hours per day from September to June for the crosswalk-guard position).
Pam Hicks, accounts payable clerk who filed the two grievances, testified that in the past, the employer only contracted out for cases when “overflow” existed, such as an extended sick leave or covering for vacations.
Michael Beal, town treasurer, testified that he knew of at least three positions in the past that were contacted out and none were grieved by the union.
The Town argued that the two open positions were unlikely to be filled by any bargaining-unit members, as they were limited in hours and scope, but also the new hiring had no affect on current members if they were filled by outside contractors.
Arbitrator Robert Breen agreed and dismissed the two grievances.
“Article 29 of the parties’ agreement, a ‘protective’ provision, speaks to a requirement that the Town not affect the job security of a union member. I find there is no evidence of this shown to exist in either instance grieved before me. And, again, there was no grievance filed by any employee claiming any affect on personal job security, and no evidence that any union member even wanted one of these positions.”
CUPE had argued that because the two new positions would be directed by town personnel, this constituted a direct relationship and therefore the employees should become a part of the bargaining unit.
However, this was not accepted by the arbitrator.
“I am satisfied on my analysis taken here of the ‘contracting arrangements’ that the two contractors are and remain in ‘fundamental control’ of the employer/employee relationships established. It is the two contractors, I find, who control the most basic and fundamental aspects of the work life for the two hires, including the burden of remuneration, and authority over their hiring and employment retention,” said Breen.
“I find, on the evidence led before me, nothing to support an allegation of ‘bad faith’ by the Town. There is no question that this employer in fact acknowledges that a posting is required when or if an employee’s job security is affected. As to the two vacancies in dispute, the Town plainly undertook to satisfy itself, and I find that it did so in a reasonable way, that no union member’s job security was affected by the contractings intended.”
Reference: Town of Sackville and Canadian Union of Public Employees, Local 1188. Robert Breen — arbitrator. Pierre Bertrand for the employer. Marcos Salib for the employee. June 27, 2018.
“The collective agreement has been violated as the position of crosswalk-guard vacancy should have been posted as of Aug. 9, 2017,” read a letter from the union, the Canadian Union of Public Employees (CUPE), Local 1188, after it discovered the town contracted Open Sky Co-operative to fill the position.
Open Sky was an organization that offered employment to adults living with autism or other mental-health challenges.
The union also grieved after employment agency Kelly Services filled the tourism counsellor position.
But the town responded via letter that “no member of your bargaining unit has his or her job security affected by the Town’s decision to contract out the services that you have indicated in your grievance.”
The union cited article 13, which said, “When a new position is created, or when a vacancy exists, the employer shall post, within thirty (30) working days, the position for a period of ten (10) working days before being filled.”
Under article 29, the collective agreement called for “work or services presently performed or hereafter assigned to the collective-bargaining unit will not be affected by sub-contraction, so as to affect the job security of the member of the bargaining unit.”
The Town argued that it could have used article 13, but instead it relied on article 29 when it decided to hire replacement workers for the part-time positions (four hours per day from September to October for the tourism position; 3.75 hours per day from September to June for the crosswalk-guard position).
Pam Hicks, accounts payable clerk who filed the two grievances, testified that in the past, the employer only contracted out for cases when “overflow” existed, such as an extended sick leave or covering for vacations.
Michael Beal, town treasurer, testified that he knew of at least three positions in the past that were contacted out and none were grieved by the union.
The Town argued that the two open positions were unlikely to be filled by any bargaining-unit members, as they were limited in hours and scope, but also the new hiring had no affect on current members if they were filled by outside contractors.
Arbitrator Robert Breen agreed and dismissed the two grievances.
“Article 29 of the parties’ agreement, a ‘protective’ provision, speaks to a requirement that the Town not affect the job security of a union member. I find there is no evidence of this shown to exist in either instance grieved before me. And, again, there was no grievance filed by any employee claiming any affect on personal job security, and no evidence that any union member even wanted one of these positions.”
CUPE had argued that because the two new positions would be directed by town personnel, this constituted a direct relationship and therefore the employees should become a part of the bargaining unit.
However, this was not accepted by the arbitrator.
“I am satisfied on my analysis taken here of the ‘contracting arrangements’ that the two contractors are and remain in ‘fundamental control’ of the employer/employee relationships established. It is the two contractors, I find, who control the most basic and fundamental aspects of the work life for the two hires, including the burden of remuneration, and authority over their hiring and employment retention,” said Breen.
“I find, on the evidence led before me, nothing to support an allegation of ‘bad faith’ by the Town. There is no question that this employer in fact acknowledges that a posting is required when or if an employee’s job security is affected. As to the two vacancies in dispute, the Town plainly undertook to satisfy itself, and I find that it did so in a reasonable way, that no union member’s job security was affected by the contractings intended.”
Reference: Town of Sackville and Canadian Union of Public Employees, Local 1188. Robert Breen — arbitrator. Pierre Bertrand for the employer. Marcos Salib for the employee. June 27, 2018.
