Refusals based on workers being on performance management
After postings for temporary transfers appeared, a number of workers in Bell Technical Solutions (BTS) applied for the positions, which paid extra salary and per diems.
David Beck and Tyler Stenback both worked at BTS in London, Ont. as installation repair technicians and on Jan. 24, 2017 they each received a text message: “Looking for [volunteers] to be loaned to Windsor [Ont.]. Leaving Jan. 26 to Feb. 5.”
Both employees responded affirmatively to the message but didn’t hear anything back from BTS. Later, they learned that workers who were junior to their seniority dates had been accepted for the transfer.
According to the collective agreement, “[the employer] shall give priority to the employee with the most seniority on the transfer list for this transfer territory, as long as this employee has more seniority than the next part-time employee eligible for upgrade in the same team territory.”
But when Beck and Stenback asked why they weren’t offered the positions, they were told that because they were operating under the performance road map (PRM) system at the time, they were not eligible to participate in the transfers.
Under the PRM system (which was also being grieved by Unifor, Local 46), the bottom 25 per cent of employees in a territory were automatically placed into the system when they didn’t meet four metrics (effectiveness, rework, per cent complete, and GPS conformance).
Once in the PRM, workers would have to measure outside of the bottom 25 percentile for six months before they could leave it.
However, testified Blair Stevens, chief steward for Local 46, the union was never made aware that the PRM status would affect any transfer requests, and it was established company practice that seniority was generally the deciding factor in awarding transfer positions.
And since the agreement was settled in 2011 before the PRM existed, the employer could not insert language into the contract after the fact, said the union.
(During transfer work assignments, employees were provided with paid accommodations, $55 per day for expenses and a per diem for days off.)
The union filed a grievance on behalf of Beck and Stenback on Feb. 15.
Arbitrator Gail Misra agreed with Unifor and upheld the grievance.
“While it is BTS’ right as the manager of its enterprise to determine when and from where it may need to temporarily transfer its employees, the collective agreement before me restricts the right of the employer to decide who may be chosen for temporary transfers.”
The evidence of past practice was given great credence by the arbitrator.
“In this case, the parties have only given management the right to decide how to temporarily transfer workers where there is no agreement by the work team of bargaining unit members about how to do so. Since I have accepted that there was a long-established practice accepted by the union in London that it was senior, qualified volunteers who would be temporarily transferred, there was no default left to the employer to allow it to decide how to do temporary transfers. In any event, even if BTS had the default right to temporarily transfer workers, the parties had agreed on what that process would look like: BTS would have to ‘transfer the employee qualified to do the job having the least amount of seniority within the team’ (article 20.03). That is not what the employer did at any time or in any circumstances about which I have heard evidence,” said Misra.
“BTS argues that it has management rights which permit it to impose the criterion that an employee in a performance management plan will be excluded from consideration for a temporary transfer. This collective agreement contains no ‘management rights’ clause.”
Reference: Bell Technical Solutions and Unifor, Local 46. Gail Misra — arbitrator. Frederic Henry for the employer. Micheil Russell for the employee. April 12, 2019. 2019 CarswellNat 3584
