Nothing compelled employer to work with union: Arbitrator
When a retirement residence decided to change schedules, it engaged in a “line-picking” exercise for employees, which was immediately grieved by the union.
Workers at Barrhaven Manor in Nepean, Ont., were advised on April 26, 2018, that schedules were going to be reduced and they would have to choose which line of work they would be slotted into, based on seniority.
On May 4, dietary aides, dishwashers and recreation staff all participated in the “line-picking” exercise at the behest of the employer, Revera.
The Canadian Union of Public Employees (CUPE), Local 4000-11 grieved the decision on May 18, which was quickly denied on the same day by Revera.
The new schedules went into effect on June 30.
CUPE argued that management unilaterally went ahead with the exercise, which was against the collective agreement. Both parties should have mutually agreed before line picking could happen, said CUPE.
When Alexandra Christie, manager of labour relations, emailed Lou Burri, CUPE president, and Andrew Skinner, CUPE executive chief steward, on April 18, the decision to proceed with line picking had already been made without the union’s input, which breached the agreement, said the union.
(The subject line of the email was: “Notification of scheduling changes and line/position picking.”)
Article 14.04 of the collective agreement under reduction of hours stated: “It is agreed and understood that in the interest of efficiency and effectiveness, other layoff procedures may be mutually agreed upon.”
But the employer and the union didn’t agree to anything, argued the union.
However, Revera said the words “may be” do not compel the employer to do so, it was only another possible outcome.
The employer should have also relied on articles 14.01 and 14.03, which said: “A layoff shall be defined as a permanent reduction in the workforce or a permanent reduction in the regular hours of work of an employee.” Because the employees had hours reduced, they should have been laid off and participated in a bumping exercise, said CUPE.
However, argued Revera, the line-picking exercise was part of a greater national strategy and was also covered under article 14.04. As well, article 1.01 gives sole power to management to lay off employees, it said.
Employees who participated in line picking were given the same bumping rights, said Revera, which made the union’s argument moot.
At the end of the exercise, only one employee was moved to an unscheduled part-time status from scheduled part-time because she didn’t wish to choose a line and was therefore moved down, said the employer.
Arbitrator Gail Misra agreed and dismissed the union’s grievance.
“The union argued that if the employer had to reduce hours, it should have simply laid off junior workers, given notice to employees whose lines were being reduced, and then conducted a bumping process to fill positions. I cannot accept the union’s position in this regard. The parties have negotiated language regarding what the employer should do in the event of a reduction in hours, and that is what the employer did in this instance, in accordance with article 14.04 of the collective agreement,” said Misra.
“There is nothing in the collective agreement before me that requires the employer to consult with the union about how it builds its schedules, nor is there any requirement that it get the agreement of employees or the union before it changes its schedule. As well, there is no suggestion or argument here that Barrhaven was acting in an unreasonable or arbitrary manner in developing the schedule it wanted.”
The argument made by CUPE that both parties must agree to a plan before “line picking” would be done, was dismissed by the arbitrator.
“What the union is seeking is a finding that only if the union and the employer mutually agree, then the employer can utilize the line-picking procedure. That would make no sense if one reads article 14.04 in its entirety. It seems obvious on an ordinary and plain reading of the language that the parties were leaving open that they may agree to some other method of proceeding in the event that a reduction of hours was required, but that in the absence of such agreement, the process was the detailed one they had outlined in the rest of article 14.04.”
Reference: Barrhaven Manor and the Canadian Union of Public Employees, Local 4000-11. Gail Misra — arbitrator. Erin Porter for the employer. Dan Pike for the employee. April 12, 2019. 2019 CarswellOnt 6936
Workers at Barrhaven Manor in Nepean, Ont., were advised on April 26, 2018, that schedules were going to be reduced and they would have to choose which line of work they would be slotted into, based on seniority.
On May 4, dietary aides, dishwashers and recreation staff all participated in the “line-picking” exercise at the behest of the employer, Revera.
The Canadian Union of Public Employees (CUPE), Local 4000-11 grieved the decision on May 18, which was quickly denied on the same day by Revera.
The new schedules went into effect on June 30.
CUPE argued that management unilaterally went ahead with the exercise, which was against the collective agreement. Both parties should have mutually agreed before line picking could happen, said CUPE.
When Alexandra Christie, manager of labour relations, emailed Lou Burri, CUPE president, and Andrew Skinner, CUPE executive chief steward, on April 18, the decision to proceed with line picking had already been made without the union’s input, which breached the agreement, said the union.
(The subject line of the email was: “Notification of scheduling changes and line/position picking.”)
Article 14.04 of the collective agreement under reduction of hours stated: “It is agreed and understood that in the interest of efficiency and effectiveness, other layoff procedures may be mutually agreed upon.”
But the employer and the union didn’t agree to anything, argued the union.
However, Revera said the words “may be” do not compel the employer to do so, it was only another possible outcome.
The employer should have also relied on articles 14.01 and 14.03, which said: “A layoff shall be defined as a permanent reduction in the workforce or a permanent reduction in the regular hours of work of an employee.” Because the employees had hours reduced, they should have been laid off and participated in a bumping exercise, said CUPE.
However, argued Revera, the line-picking exercise was part of a greater national strategy and was also covered under article 14.04. As well, article 1.01 gives sole power to management to lay off employees, it said.
Employees who participated in line picking were given the same bumping rights, said Revera, which made the union’s argument moot.
At the end of the exercise, only one employee was moved to an unscheduled part-time status from scheduled part-time because she didn’t wish to choose a line and was therefore moved down, said the employer.
Arbitrator Gail Misra agreed and dismissed the union’s grievance.
“The union argued that if the employer had to reduce hours, it should have simply laid off junior workers, given notice to employees whose lines were being reduced, and then conducted a bumping process to fill positions. I cannot accept the union’s position in this regard. The parties have negotiated language regarding what the employer should do in the event of a reduction in hours, and that is what the employer did in this instance, in accordance with article 14.04 of the collective agreement,” said Misra.
“There is nothing in the collective agreement before me that requires the employer to consult with the union about how it builds its schedules, nor is there any requirement that it get the agreement of employees or the union before it changes its schedule. As well, there is no suggestion or argument here that Barrhaven was acting in an unreasonable or arbitrary manner in developing the schedule it wanted.”
The argument made by CUPE that both parties must agree to a plan before “line picking” would be done, was dismissed by the arbitrator.
“What the union is seeking is a finding that only if the union and the employer mutually agree, then the employer can utilize the line-picking procedure. That would make no sense if one reads article 14.04 in its entirety. It seems obvious on an ordinary and plain reading of the language that the parties were leaving open that they may agree to some other method of proceeding in the event that a reduction of hours was required, but that in the absence of such agreement, the process was the detailed one they had outlined in the rest of article 14.04.”
Reference: Barrhaven Manor and the Canadian Union of Public Employees, Local 4000-11. Gail Misra — arbitrator. Erin Porter for the employer. Dan Pike for the employee. April 12, 2019. 2019 CarswellOnt 6936
