Collective agreement grievances 'have a way of just continually bubbling up,' says labour professor
A recent decision by an Ontario arbitrator found in favour of a small airline whose newly unionized pilots filed a grievance.
The employer, Skylink Express, had assigned the pilots cargo loading and offloading duty, which it said they had always done, but the union alleged a violation of the collective agreement.
The decision in favour of Unifor Local 2002 hinged on language of the management rights provision and other descriptions of work to be performed by the pilots, but came down to a simple lack of evidence.
“When the parties sit down to negotiate a first collective agreement, or even renewal agreements, they are never going to be able to address every aspect of the employment relationship or to address every eventuality,” said Adrian Jakibchuk, partner at Littler in Toronto.
“So for employers, if you've got a well-drafted management rights provision in the collective agreement that is broad enough to capture these gaps, it essentially allows those things to fall to the employer to decide what hasn't been expressly addressed in the collective agreement.”
The union filed the grievance on May 19, 2023, and the decision was filed on January 23, 2024.
Lack of definition of work duties led to grievance
The union was certified to represent a number of Skylink employees in November 2021, and the agreement was negotiated during March 2022 and ratified on March 26; members were defined as “all pilots … excluding managers, the chief pilot and persons above the rank of chief pilot.”
During bargaining, there were no discussions of cargo duties and no language was included in the collective agreement – which both parties signed off on – that addressed who was responsible for those duties. The union filed the grievance on May 19, 2023, “claiming that pilots were being required to on-load and off-load aircraft in violation of Articles 2 and 3 of the Collective Agreement,” the arbitration decision read.
Since the union had brought the grievance, the onus was on them to prove the violation. Its main argument was that in the collective agreement, the pilots’ work was defined as “all commercial flying of company aircrafts,” which they said excluded cargo loading.
However, as the arbitrator wrote in her decision, they did not present any evidence that the pilots should not have to perform cargo-loading duties.
Skylink claimed that the cargo loading had been a daily part of the pilots’ work for years, and that cargo duties were clearly outlined in the Company Operations Manual, the client network guide, and in pilot job postings.
“The fact that pilots are being asked to perform cargo duties and they don't think they should have to be doing those jobs, if that was something that was a concern for pilots, that is something that the pilots would have been well aware of, and the pilots could very easily have brought to the union's attention,” Jakibchuk said.
“The most obvious way in which that would be brought to the union representative’s attention would be through this representative on the bargaining committee who is a pilot working for Skylink.”
Management rights provision fills ‘gaps’ in collective agreements
“One of the things that the employer obviously did do is negotiate a broad management rights provision into the collective agreement, and that is what I think this case largely turns on, is what was contained in that management rights provision,” said Jakibchuck. “One way to look at a management rights provision is it's kind of like a gap-filler in a way.”
These “gaps”, he said, are apt to appear in lengthy collective agreements, and it’s in employers’ best interests to have broadly worded management rights provisions to catch gaps, as in this case.
Citing the collective agreement, the arbitrator wrote that Skylink “has broad management rights, that include the rights to assign work, direct the work force, and direct the methods necessary to manage the business. These management rights may be exercised without limitation unless there is clear and express language in the Collective Agreement that restricts the Employer’s exercise of management rights.”
The union submitted that this provision is restricted by the clause defining pilots’ work as “commercial flying”. The arbitrator disagreed.
Did the company act in bad faith?
The second argument the union brought was that Skylink had acted in bad faith by not providing information it had about the pilots performing cargo duty, nor mentioning it during negotiations. However, the arbitrator discounted that argument based on the evidence Skylink brought, including the fact that one of the bargaining committee members was a Skylink pilot.
“It seems to me that the employer was strategic in not addressing this as a bargaining issue, because for them, it wasn't a bargaining priority. The work had already been assigned to the pilots and of course, they don't want to change that,” said Adam King, assistant professor of labour studies at the University of Manitoba.
“If that was something that the union members wanted to address, it would have been something that the union itself would raise for negotiation.”
Although the employer handily won in this case, it might cause problems down the road, he said.
“In instances where issues are not resolved at the bargaining table, or afterward through grievance procedures, in workers’ favour, those kinds of things can linger and sour the employment relationship,” said King.
“It’s one of the reasons why protecting the right to strike and bargaining in good faith are so important, because if you push issues and sort of kick the can down the road, and don't adequately address these issues, they have a way of just continually bubbling up. My worry in this situation is that you have an issue here that seems like it matters to union members, and now it's going to go unaddressed … the employer can't totally ignore the wishes of workers, and if you have an issue that goes unresolved, it can pose challenges for you in the workplace going forward.”
