Arbitrator rules management can decide staffing levels
When two full-time transport department equipment operators retired from the Nova Scotia Department of Transport and Infrastructure Renewal in 2014, area manager Troy Webb posted two open positions on a bulletin board, but then hours later he removed them after a talk with other managers. The transport department was operating under tightened budget constraints.
Steve Stewart saw the postings and intended to apply but they were removed before he could respond.
So he and his union, the Canadian Union of Public Employees (CUPE), Local 1867, grieved the decision, arguing the department had a duty to offer the full-time positions to casual or spare workers looking to gain more permanent jobs.
In the collective agreement, which was signed in October 2013 and retroactively took effect in 2011, it detailed 35 maintenance and construction zones for the estimated 1,000 workers in the roads crew maintenance department. Zones 10 and 11, located in the New Glasgow area had 14 year-round equipment operators in zone 10 and nine in zone 11.
The agreement did not specifically state how many workers were employed in each zone, but CUPE argued the department was obligated to keep the numbers the same in the zones, especially if there was no reduction in the amount of work to be done, which there wasn’t.
The company explained that when the collective agreement was signed, there was a need for the full-time operators but in the past few years, the costs of certain raw materials such as road asphalt has increased creating budget pressures for the department.
Arbitrator Eric Slone dismissed the grievance, arguing there was nothing specifically spelling out how many workers should be employed in each department.
“There is no basis in the evidence before me to conclude that the 2011 agreement, with its new way of classifying employees, created a fixed number of positions in any of these classifications that had to be filled and maintained. Nor is there any history to fall back upon, this being a new agreement where the issue had not previously arisen,” he said.
The department’s budget issues gave management the right to decide on how to reduce costs and using attrition was a gentle way of decreasing the labour force, according to Slone.
“The employer had the right to consider whether there was sufficient work to justify filling the vacancy. I accept that the employer was under budgetary pressure and by 2014, had to rationalize its work and workforce and perform less work than it had previously been doing. Reducing the compliment by attrition was a decent gesture, in the sense that no one had to be laid off. But, on the other hand, no further opportunities for advancement were created.”
As well, the decision to cut the number of staff was not done in bad faith, which in other cases led to a grievance being upheld by an arbitrator.
“Management’s decision to reduce the compliment of year-round equipment operators appears to have been a reasonable exercise of the employer’s rights under the management rights clause, and was not made in bad faith or arbitrarily,” said Slone.
“Seniority rights in this context do not dictate that the employer cannot shrink the workforce, and reduce the number of year-round employees (such as equipment operators) where financial constraints force it to adhere to a shrinking budget for labour.”
Reference: Nova Scotia Department of Transport and Infrastructure Renewal and Canadian Union of Public Employees, Local 1867. Eric Slone — arbitrator. Kevin Kindred for the employer. Wanda Power for the employee. Jan. 13, 2017.
