Employer decided before ‘conferring’ with union: arbitrator
After a review of snow-clearing practices at the Irving Pulp and Paper Mill in Saint John, N.B., the employer contracted out the last area that was previously done by employees.
“[Irving] already contracts out the vast majority of snow removal on the mill property and in the past, the use of supply and services employees to do a small portion of the snow removal has been a significant disruption to that department. We believe that it is more efficient to utilize the skills of our supply and services employees doing core work within that department,” said Cory Gallant, mill manager in response to a grievance filed by Unifor, Local 30 on Oct. 19, 2018.
But the employer violated the collective agreement, said the union, when it contracted Gulf Operators to do snow removal for that area of the Irving Paper plant..
In the past, employees of the supply and services unit were called out to complete snow removal if it fell on the mill overnight. As a business that operated 24-7, there was no down time, said the company.
Employees who did snow removal on the same day they were to work were allowed “sleep time” at the beginning or the end of their regular shifts, according to 16.06 (c) of the collective agreement. Workers typically took the time at the end and, as a result, left the mill site early.
Irving wanted to end this practice, as it involved them losing a portion of the workforce at times. As many as five employees were typically involved in snow clearing work, said the employer.
But the department never had to shut down due to snow removal duties, testified Charles Mike Miller, who worked in the supply and services area.
The collective agreement, in article 26.01, said Irving “will confer with the union and give written notice as far in advance as practicable, prior to such contracts.” But on Oct. 12, the union was advised about the new arrangement without any consultation, said Robert Pearson, president of Local 30.
Arbitrator Michel Doucet agreed.
“I declare that [Irving Pulp and Paper] has violated article 26.01 of the collective agreement. Although compensatory damages could have been ordered as a result of this violation, none will be awarded as the union did not submit any evidence that the bargain unit or any member of the bargaining unit had suffered damages as a consequence of the violation.”
The argument that snow removal falls under the purview of Gulf Operators was rejected by Doucet.
“[Irving] further argues that the work in issue in this grievance, ‘snow removal,’ is included under item number two of this list, which reads, ‘cranes and equipment (civil work)’. I cannot accept this explanation. If the parties wanted to create an exception to an obligation created by the collective agreement, they will have to be more specific and precise in the wording they use. I see no reason why I should conclude that ‘cranes and equipment (civil work)’ includes ‘snow removal’. This being the case, I must conclude that [Irving] did not provide the required notice in advance of its decision to contract out the work.”
“[Irving] suggested that the meetings of October and November 2018 complied with this obligation. I beg, however, to differ. When these meetings were held, [Irving] had already decided to contract out the work. Whatever the union might have said then was, therefore, irrelevant. This cannot be what the parties intended when they negotiated this clause. Why would the parties waste time ‘conferring’ on a matter when they know that whatever they say is inconsequential, because the decision had already been made?”
Reference: Irving Pulp and Paper and Unifor, Local 30. Michel Doucet — arbitrator. James Green for the employer. Mike MacMullin for the employee. Aug. 1, 2019. 2019 CarswellNB 366
