When the union asked for access to the factory on short notice, they were turned down. Management wanted at least a week’s notice. The arbitrator felt that the short notice was not unreasonable, but under the circumstances (there were no management personnel available to supervise the visit), the request could legitimately be refused.
When a union representative’s request to visit the plant was put off until the following week, the union grieved. The union characterized the employer’s denial of its request for access as a violation of the collective agreement.
The union concluded its first collective agreement with the employer in 2008. The employer was a food manufacturer operating out of a number of locations.
Health and safety and ensuring the integrity and security of its food manufacturing processes were abiding concerns of the employer.
The employer strictly monitored and controlled access to its premises.
The employer maintained a “Visitor and Contractor” policy for visitors to its manufacturing facilities. All visitors were required to sign in and out. All visitors required a company escort and all visitors entering the plant were required to wear hair and beard restraints, lab coats and badges.
At about 3:30 pm on March 10, 2011 the union representative e-mailed the company’s Human Resources manager to request access to the plant at 6 pm to conduct some business.
However, the manager was unable to reach the company president to get the required authorization. The manager was also unable to reach the plant supervisor.
Request could not be accommodated
However, in her reply to the union representative, the manager simply said that the company was unable to accommodate the union’s request on “such short notice,” but that a visit could be arranged for the next business/production day. She said that the employer’s normal practice was to require one to two weeks’ notice in advance of a proposed plant visit.
The union grieved. The parties bypassed grievance procedures and took the complaint straight to arbitration.
The union claimed that its request for access to the workplace fell within the specifications of the collective agreement: The union sought permission from the “designate” to get access to the plant in order to “administer the collective agreement.”
For the employer to give no reason for its refusal to grant access was unreasonable, as was its insistence on one to two weeks’ notice, the union said. The collective agreement referenced no such time frames with respect to notice.
Legitimate business reason for denial
The employer said it had legitimate business reasons to do deny the request. Proper authorization could not be secured on such short notice and no management person was available to escort the union representative according to the requirements of the company’s “Visitor and Contractor” policy. Moreover, the company did not make a blanket denial but offered to grant access on the next production day.
The grievance was dismissed.
The employer did not violate the collective agreement, the Arbitrator said. “[The manager] was faced with circumstances which led her to reasonably conclude that a management representative would not be on site to grant access and escort the [union representative] and otherwise monitor her access and ensure her visit adhered to the Visitor and Contractor Policy. I consider it reasonable to require that a member of management be present on the premises before access to the Union Representative will be granted.”
Short notice not inherently unreasonable
However, the union’s request to gain access to the plant on short notice was not inherently unreasonable, the Arbitrator said. There was no evidence of past practice or language in the collective agreement to support the employer’s contention that one to two weeks’ notice was appropriate or required. The language of the collective agreement suggested that appropriate notice was more likely measured in hours and days, not weeks, the Arbitrator said.
“Preferably at least 24 hours’ notice should be provided. Where less than 24 hours’ notice is provided the Union runs the risk that its request can’t be accommodated for bona fide business reasons … and that the Employer’s denial will be viewed as reasonable.”
That was what happened in this case, the Arbitrator said.
“In this case the reason for the dismissal of the grievance is not because the request was made on short notice. The grievance has been dismissed because the short notice meant that the Employer was faced with legitimate business reasons which prevented it from accommodating the request. That is to say, short notice in and of itself is not sufficient reason for the Employer to refuse an access request, particularly where the only collective agreement requirement is that the Union Representative ‘calls ahead.’ ”
Commenting on the “growing pains” associated with developing a new bargaining relationship, the Arbitrator encouraged the parties to consider the labour relations implications of their actions and to attempt better communications in order to avoid such misunderstandings.
“I recognize that this is a first collective agreement and that there may be ‘growing pains.’ It is apparent, however, that better, more direct communications between the parties during the relevant time might have obviated the need to embark on costly, time consuming litigation.”
Reference: WHL Management Limited Partnership and United Food and Commercial Workers Canada, Local 175. Louisa M. Davie — Sole Arbitrator. Natalie Wiley for the Union and Mark Mendl for the Employer. May 9, 2011. 16 pp.
