When an employer attempted to abolish a position following a retirement, the union grieved arguing that the move was in violation of an agreement on staffing levels.
Landing a job by mistake in 2004 in the Post Office’s commercial Receipt Verification Unit when she was promoted ahead of other workers with more seniority, a junior worker was permitted to keep her job under the terms of an agreement between the union and the employer.
According to the agreement, the worker was allowed to remain and work in the unit “over and above complement” until she was able either to acquire an original position in the unit or transfer out. The employer also agreed not to delete any positions in the unit as a result of her placement.
However, when a full-time worker in the unit retired in 2009 after an 11-year leave, the employer sought to abolish that position. The union grieved.
“A deal is a deal”
Before the Arbitrator, the union argued that “a deal is a deal” and that the terms of the agreement prevented the employer from deleting any positions in the unit as long the junior worker remained in the unit above complement. In any case, the onus was on the employer to justify abolishing the position. While the employer was in possession of the relevant operational information, it had not made out a case referencing volume differentials, revenue profiles or a risk factor analysis, the union said.
The letter served only to outline a solution to a particular problem, the employer said. It was not a legally binding memorandum and it did not limit management’s ability to abolish positions in the unit based on operational considerations. The letter only reflected the employer’s undertaking not to use the junior employee’s presence in the unit to delete any staff positions.
The Arbitrator agreed with the employer’s understanding of the scope of the agreement. It did not prevent any staff deletions from the unit, it only precluded deletions of positions as a consequence of the junior employee’s presence.
“The Union wanted assurances that management would not take advantage of [the junior employee’s] presence to eliminate positions. The wording [of the agreement] reflects such intentions, but does not go so far as to prohibit all position abolishments while [the junior employee] remains above complement in the [unit]. Thus, the abolishment of [the retiring employee’s] position, in and of itself, did not violate the letter,” the Arbitrator said.
Onus on the employer
However, the Arbitrator agreed with the union that the onus was on the employer to establish that the position would have been eliminated irrespective of the junior employee’s presence in the unit. The employer had not satisfied that onus, the Arbitrator said.
“In the current case, I have concluded that the Employer has not satisfied its onus of establishing that the abolishment would have occurred even if [the junior employee] had not been working in the [unit]. It provided insufficient evidence to explain the abolishment of [the retiring employee’s] position. I did not see productivity information such as [unit] volume or risk factors, two of the key elements in determining workload. I was not provided with any indication of labour saving processes or technological innovations since 2004 that would have allowed management to do the same amount of work with less people. I was not provided with an analysis of work capacity with and without [the junior employee] and how the workload could be managed even if [the junior employee] was not present in the [unit] performing the same work as everyone else.”
While the employer’s analysis of its staffing needs may have been justified, it did not supply the information necessary to support its action. “As a result, the Employer could not meet its onus to establish that the presence of [the junior employee] had no impact on the deletion of [a unit] position.”
The grievance was allowed.
