Arbitrator finds company within its rights to contract out
It turns out there is such thing as bad press, a local British Columbia newspaper found out.
The Nanaimo Daily News, a daily publication headquartered on Vancouver Island, contracted out a position the union claimed was exclusively bargaining unit work — especially after a provision outlining a premium for the job was agreed upon in the most recent collective agreement.
But a judge disagreed, and decided the newspaper was well within its rights to contract out an employee.
The issue stems back to 2008, during the term of the previous collective agreement, when Therese Heck (the grievor), was asked to take on additional supervisory duties following the departure of another non-bargaining unit employee. That included organizing shifts and work dockets, managing a weekly list of back-up staff, holiday scheduling and attending meetings to discuss features of the paper — all of which were above and beyond her regular employment duties.
Of note is that Nanaimo Daily News’ collective agreement is split up into four segments — composing, editorial, pre-press and advertising. As part of the Heck’s additional duties, she played liaison between all department workers and sales staff.
Because Heck picked up the slack for a non-bargaining unit manager (whose duties were divided between Heck and the publisher), her pay rate remained the same.
That changed in September 2012, when the newspaper met at the bargaining table with the Communications, Energy and Paperworkers union (now known as Unifor Local 2000). During negotiations for the new contract, Unifor pushed for a provision outlining a 7.5 per cent premium based on the staffer’s regular rate of pay for the supervisory duties. In it, Heck was specifically identified as an employee who would be affected by the new provision.
But shortly after ratification, the employer hired a full-time manager, relieving Heck of her supervisory duties.
And although she received the premium for the weeks following ratification and before the new manager started, Unifor claimed the work was exclusively bargaining unit work, since Heck had done it for four years without compensation.
Then in December, Unifor filed a bad-faith bargaining complaint with the British Columbia Labour Relations Board.
The newspaper surprised the union when it decided to hire an outside employee to do the work a member had done for four years. Now, once compensation was agreed upon, the paper pulled the rug out from under Heck, according to Unifor. It appeared to the union that the employer only agreed to the premium provision because it was aware it would be replacing her shortly afterward — thus, the accusation of bargaining in bad faith.
The labour board dismissed the union’s claim in March.
He said/he said
As for whether or not Unifor was made aware of the newspaper’s intention to contract out the manager position, both parties failed to see eye-to-eye.
Whereas the publisher claimed the union was made aware of the plan to hire a full-time manager, the union said the fact they put the premium on the table in the first place indicated they were unaware.
After hearing both sides of the story, arbitrator Karen Nordlinger ruled the employer made efforts to let the union know of its intention to fill the manager position.
But the real issue, Nordlinger said, is the estoppels issue. That prohibits one party — in any subsequent proceedings — from alleging or proving that certain facts are otherwise than they were originally made to appear.
In this case in particular, Unifor saw Heck’s work as bargaining unit work that was taken away from the membership by hiring of a non-union employee. However, Nordlinger called this a circular argument.
"The union asserts that the employer is estopped from taking work from the bargaining unit because of their representation that it was bargaining unit work. The representation relied on was by way of the provision of the provision of the work actually done by the grievor for four years," Nordlinger said in her decision. "By allowing that to happen, the employer had confirmed that the work was bargaining unit work. The union asserts a type of prescriptive rights arising from a past practice that leads to an estoppel of the employer’s right to again assert jurisdiction over the work."
Therefore, Nanaimo Daily News was well within management’s rights to hire an employee outside of the bargaining unit — meaning that the work itself was not exclusive to the union membership.
"I find that the union did have notice that a manager was to be employed," Nordlinger ruled. "I accept that supervisory duties are generally the management rights duties which may be performed by bargaining unit employees from time to time. While the length of time in this case is not short, it was within the term of one collective agreement and I cannot find any detrimental reliance by the union under those circumstances, particularly when the union knew, or ought to have known, the work would be transferred."
Thus, the grievance was dismissed.
Reference: Nanaimo Daily News and Unifor Local 2000. Karen Nordlinger – sole arbitrator. Donald Bobert for the employer, Israel Chafetz for the union. Oct. 21, 2013.
