No layoffs triggered that would necessitate talks with union
After the highest-paid unionized employee at a Mount Pearl, N.L., industrial gas supplier retired, his position was not refilled.
Gus Hickey worked as a customer installation technician (CIT) at Air Liquide Canada, but he retired on June 1, 2017. His duties included installation of liquid carbon dioxide, nitrogen, oxygen and argon tanks for various locations around Newfoundland and Labrador.
Hickey’s job entailed being on call on a 24-hour, seven-days-per-week basis. But when he was not working, Bruce Foss, who was also the local union president of the United Steelworkers (USW), Local 7144 or Jason Foss would replace him.
On June 21, 2017, Foss sent an email to Sylvain Dagenais of Air Liquide and requested information about Hickey’s soon-to-be departed position. “Who is or will be performing work regularly done by the CIT in Mount Pearl (a union position)?”
The questions were not immediately answered by Air Liquide, but Jeff Schiissler, Atlantic provinces regional operations manager, testified that he recommended to John Craig, Newfoundland and Labrador manager, that the CIT position not be refilled after Hickey’s retirement.
Most of the work done by Hickey had been performed at one refinery, but the contract had not been renewed. As well, another part of Hickey’s former job was deemed to not be profitable, after Schiissler performed an analysis of the work.
VitalAire, a sister company of Air Liquide’s, had decided not to use Air Liquide’s CIT but to instead hire its own contractor, according to Yves Thériault, national manager, technical services.
After hearing this, Schiissler estimated the work for a new CIT to replace Hickey would average about 200 hours per year.
The USW grieved the decision and argued the company violated article 1.03 (A), which read: “Personnel excluded from the bargaining unit shall not assume such duties as are normally performed by employees in the plant bargaining unit.”
Because Hickey was the highest-paid person in the bargaining unit, allowing VitalAire to replace the CIT position externally undermined the remaining employees, argued the USW.
Both companies should also be considered as the same employer, said the union, and they cannot eliminate a position in the bargaining unit without consulting with the USW.
Air Liquide countered and said both companies were separate and operated separately, and because no layoffs were triggered, the collective agreement was not breached, according to article 1.04: “The union shall be informed in advance, where the company intends to contract-out to other employers work normally performed by members of the bargaining unit, which shall result in the layoff of any employee.”
Arbitrator James Oakley agreed and dismissed the grievance.
“There was no layoff of any employee in the bargaining unit. Therefore, it is not established that the company was required by article 1.04 (A) to meet with the union to discuss performance of the work in advance of any contracting out.”
The company did not violate article 1.03 because “there was no evidence that other employees in the position of supervisory personnel or personnel excluded from the bargaining unit were doing the work,” said Oakley.
Even though the two companies shared work at times, “the evidence presented does not establish that the work formerly done by Hickey was done by an employee of Air Liquide outside the bargaining unit within the meaning of article 1.03 (A),” said Oakley.
“The evidence does not establish that VitalAire and Air Liquide are one and the same employer for the purpose of employment of the person doing the work formerly performed by Gus Hickey,” said Oakley.
Reference: Air Liquide Canada and United Steelworkers, Local 7144. James Oakley — arbitrator. Malcolm Boyle for the employer. Boyd Bussey for the employee. July 23, 2018.
Gus Hickey worked as a customer installation technician (CIT) at Air Liquide Canada, but he retired on June 1, 2017. His duties included installation of liquid carbon dioxide, nitrogen, oxygen and argon tanks for various locations around Newfoundland and Labrador.
Hickey’s job entailed being on call on a 24-hour, seven-days-per-week basis. But when he was not working, Bruce Foss, who was also the local union president of the United Steelworkers (USW), Local 7144 or Jason Foss would replace him.
On June 21, 2017, Foss sent an email to Sylvain Dagenais of Air Liquide and requested information about Hickey’s soon-to-be departed position. “Who is or will be performing work regularly done by the CIT in Mount Pearl (a union position)?”
The questions were not immediately answered by Air Liquide, but Jeff Schiissler, Atlantic provinces regional operations manager, testified that he recommended to John Craig, Newfoundland and Labrador manager, that the CIT position not be refilled after Hickey’s retirement.
Most of the work done by Hickey had been performed at one refinery, but the contract had not been renewed. As well, another part of Hickey’s former job was deemed to not be profitable, after Schiissler performed an analysis of the work.
VitalAire, a sister company of Air Liquide’s, had decided not to use Air Liquide’s CIT but to instead hire its own contractor, according to Yves Thériault, national manager, technical services.
After hearing this, Schiissler estimated the work for a new CIT to replace Hickey would average about 200 hours per year.
The USW grieved the decision and argued the company violated article 1.03 (A), which read: “Personnel excluded from the bargaining unit shall not assume such duties as are normally performed by employees in the plant bargaining unit.”
Because Hickey was the highest-paid person in the bargaining unit, allowing VitalAire to replace the CIT position externally undermined the remaining employees, argued the USW.
Both companies should also be considered as the same employer, said the union, and they cannot eliminate a position in the bargaining unit without consulting with the USW.
Air Liquide countered and said both companies were separate and operated separately, and because no layoffs were triggered, the collective agreement was not breached, according to article 1.04: “The union shall be informed in advance, where the company intends to contract-out to other employers work normally performed by members of the bargaining unit, which shall result in the layoff of any employee.”
Arbitrator James Oakley agreed and dismissed the grievance.
“There was no layoff of any employee in the bargaining unit. Therefore, it is not established that the company was required by article 1.04 (A) to meet with the union to discuss performance of the work in advance of any contracting out.”
The company did not violate article 1.03 because “there was no evidence that other employees in the position of supervisory personnel or personnel excluded from the bargaining unit were doing the work,” said Oakley.
Even though the two companies shared work at times, “the evidence presented does not establish that the work formerly done by Hickey was done by an employee of Air Liquide outside the bargaining unit within the meaning of article 1.03 (A),” said Oakley.
“The evidence does not establish that VitalAire and Air Liquide are one and the same employer for the purpose of employment of the person doing the work formerly performed by Gus Hickey,” said Oakley.
Reference: Air Liquide Canada and United Steelworkers, Local 7144. James Oakley — arbitrator. Malcolm Boyle for the employer. Boyd Bussey for the employee. July 23, 2018.
