Policy modifications cannot change agreement: Arbitrator
When Bell Canada took over the operations of Bell Aliant in Atlantic Canada in 2014, the company changed the process for processing its short-term disability (STD) claims.
The union, Unifor, grieved the changes on July 15, 2016, after hearing that some members were denied union representation during their claims process.
Carlos Vicente, regional chief steward for the union’s Saint John region, testified he had experience about four or five times in the past as a union representative when employees requested it for the company’s sickness and disability benefit program (SDB), which was being transferred to Manulife.
On June 27, a Bell employee heard back from Jonathan Levesque, case manager at Manulife, after the employee asked for Vicente to be involved in his STD decision. “We can be available today for a call with you. We would keep this call with you only, as we are not discussing medical information with a third-party involved in a call.”
The employee responded that it was his right to have union representation during that call. But Levesque responded: “It is not part of our process to have a union representative involved in our calls.”
The call went ahead and the employee was advised by Vicente to listen carefully and ask any questions he had as it was important not to delay the STD process.
After a series of meetings to address the grievance between union and management, the company responded on April 10, 2017: “The process across Bell and all of its companies that utilize Manulife in the management of SDB cases; Manulife does not engage with a union representative on employee files. This is consistent throughout the organization.”
Bell argued that article 28.09, which dealt with the SDB process, didn’t provide for union representation during the claims decision.
Employee confidentiality cannot be maintained, argued the company, if union stewards “in close proximity to the employee” are able to see sensitive employee information, according to the employer.
On May 10, Unifor advised Bell that it wished to enter arbitration to have the matter settled.
The employer argued that the grievance was filed after the time limits lapsed, but the union said that during the initial talks about the changeover from Bell Aliant to Bell Canada, there was the understanding that union representation would continue to be a part of the claims process and therefore it only fully realized that the company would not allow union members to be present in 2017.
The union argued that under article 7.05 of the collective agreement, “all employees have the right to active representation.”
But, countered the employer, if employees have unfettered access to representation, this could lead to absurd situations such as union stewards attending every single company meeting.
Arbitrator Michel Doucet disagreed with Bell Canada and upheld the grievance.
“Whatever is the practice of the employer in other jurisdictions is not relevant. What is relevant in this case is the collective agreement between the employer and the union. Article 7.05 expressly recognizes what I believe already exists implicitly in all collective agreements, that is the right to union representation in all matters relating to the terms and conditions of employment, unless expressly stated otherwise in the agreement. In other words, if the employer wants to exclude union representation in the STD-claims process, it will have to do so at the negotiation table.”
When Bell changes its benefits provider, the changes cannot negatively affect the contract, said Doucet.
“The employer cannot by the introduction of some administrative changes modify unilaterally the collective agreement. Article 28.09 still applies to the modifications brought by the employer. Therefore, I cannot see how the employer could justify a refusal for union representation if a member of the bargaining unit makes such a request.”
Reference: Bell Canada and Unifor, Local 506. Michel Doucet — arbitrator. Frédéric Henry for the employer. Joël Michaud for the employee. Sept. 19, 2018. 2018 CarswellNat 5213
The union, Unifor, grieved the changes on July 15, 2016, after hearing that some members were denied union representation during their claims process.
Carlos Vicente, regional chief steward for the union’s Saint John region, testified he had experience about four or five times in the past as a union representative when employees requested it for the company’s sickness and disability benefit program (SDB), which was being transferred to Manulife.
On June 27, a Bell employee heard back from Jonathan Levesque, case manager at Manulife, after the employee asked for Vicente to be involved in his STD decision. “We can be available today for a call with you. We would keep this call with you only, as we are not discussing medical information with a third-party involved in a call.”
The employee responded that it was his right to have union representation during that call. But Levesque responded: “It is not part of our process to have a union representative involved in our calls.”
The call went ahead and the employee was advised by Vicente to listen carefully and ask any questions he had as it was important not to delay the STD process.
After a series of meetings to address the grievance between union and management, the company responded on April 10, 2017: “The process across Bell and all of its companies that utilize Manulife in the management of SDB cases; Manulife does not engage with a union representative on employee files. This is consistent throughout the organization.”
Bell argued that article 28.09, which dealt with the SDB process, didn’t provide for union representation during the claims decision.
Employee confidentiality cannot be maintained, argued the company, if union stewards “in close proximity to the employee” are able to see sensitive employee information, according to the employer.
On May 10, Unifor advised Bell that it wished to enter arbitration to have the matter settled.
The employer argued that the grievance was filed after the time limits lapsed, but the union said that during the initial talks about the changeover from Bell Aliant to Bell Canada, there was the understanding that union representation would continue to be a part of the claims process and therefore it only fully realized that the company would not allow union members to be present in 2017.
The union argued that under article 7.05 of the collective agreement, “all employees have the right to active representation.”
But, countered the employer, if employees have unfettered access to representation, this could lead to absurd situations such as union stewards attending every single company meeting.
Arbitrator Michel Doucet disagreed with Bell Canada and upheld the grievance.
“Whatever is the practice of the employer in other jurisdictions is not relevant. What is relevant in this case is the collective agreement between the employer and the union. Article 7.05 expressly recognizes what I believe already exists implicitly in all collective agreements, that is the right to union representation in all matters relating to the terms and conditions of employment, unless expressly stated otherwise in the agreement. In other words, if the employer wants to exclude union representation in the STD-claims process, it will have to do so at the negotiation table.”
When Bell changes its benefits provider, the changes cannot negatively affect the contract, said Doucet.
“The employer cannot by the introduction of some administrative changes modify unilaterally the collective agreement. Article 28.09 still applies to the modifications brought by the employer. Therefore, I cannot see how the employer could justify a refusal for union representation if a member of the bargaining unit makes such a request.”
Reference: Bell Canada and Unifor, Local 506. Michel Doucet — arbitrator. Frédéric Henry for the employer. Joël Michaud for the employee. Sept. 19, 2018. 2018 CarswellNat 5213
