Newspaper employees denied commission on certain sales
Unifor Local 87-M filed a grievance against the Waterloo Region Record, claiming the Ontario-based company failed to compensate employees as required by the collective agreement.
The Waterloo Region Record produces a newspaper that frequently includes advertising known as a "vendor support feature."
Vendor support feature advertising features a client who is showcased by the employer and then supported by other clients who place advertising in support of the featured client.
While telesales employees may be involved in securing such clients or in selling the supporting advertising, more often it is the account executives at the company who are responsible for this work.
The compensation of both account executives and telesales employees includes payments of commission.
According to the collective agreement, telesales employees are entitled to eight per cent commission on all sales.
This commission, however, is reduced when an account executive is credited with securing the vendor support feature.
According to the employer, the practice of deducting commission dates back approximately 10 years.
Both parties agreed the practice of deducting commssion from telesales employees in order to subsidize the commission of account executives was "exceptionally" long-standing.
The union, however, argued the longstanding nature of the practice did not make it right.
The collective agreement is not ambiguous, the union argued, asserting telesales employees are entitled to "eight per cent on all sales."
Telesales employees "should not have to pay for other employees," the union said.
The union asserted the employer, and not telesales employees, should be responsible for the commissions of other employees and so requested the employer cease and desist.
The union further requested compensation for the affected telesales employees.
The employer countered it would be absurd to conclude the parties agreed the same percentage of sales revenue would be attributed both to account executives and telesales employees where telesales personnel had nothing to do with securing a vendor support feature.
The employer further argued the phrase "all sales" is latently ambiguous and past practice should be used as a guide to interpretation.
Even to accept the union’s argument, the employer said, it would be necessary to understand "all sales" as "all their sales" as no one would suggest telesales employee are entitled to eight per cent commission on sales they had nothing to do with.
Finally, the employer argued that if the union believed the company should no longer be entitled to deduct the allocation to account executives, it had an obligation to raise the issue during collective bargaining.
It failed to do so for the past ten years, the employer argued, and the employer so requested the grievance be denied.
Arbitrator James Hayes found the employer’s interpretation is to be preferred.
Hayes said the documentary evidence defining the past practice relied upon by the employer was precise and unchallenged.
"The practice was long standing, transparent, understood and accepted," Hayes said.
"I might note in passing that the parties have also continued a previous practice of compensating account executive at a higher 25 per cent credit level than the plain language in the [collective agreement] provision requires," Hayes said, noting past practice had been accepted as legitimizing this aspect of the agreement by both parties.
As a result, the grievance was dismissed.
Reference: Waterloo Region Record and Unifor Local 87-M. James Hayes — arbitrator. Martin J. Addario for the employer, Chris Donovan for the union. Oct. 14, 2014.