Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 February 2, 2015 ArbitrAtion AwArds agreement. A memorandum of agreement between the union and employer creates a possible bridge, the union argued, that qualifies Melville for full-time employment. When she was hired in 2006 Melville worked as a registration clerk in the recreational unit. With- in months of her hiring, however, she was reassigned as a support as- sistant. The position — which falls within the full-time bargaining unit — is covered by the full-time collec- tive agreement. While Melville performed the full-time duties of a support as- sistant — and received the wage rate — for a number of years, her official base position continued to be that of a registration clerk. As a result she remained a member of the recreational workers part-time bargaining unit. In order for an employee to be qualified for the jump to the full- time bargaining unit, the employee must have worked full-time and must continue to be scheduled for full-time work. The union submitted Melville had more than met the require- ments. She had worked in one clas- sification — support assistant — at a minimum of 35 to 40 hours per week, 52 weeks per year inclusive of sick time, vacation and statutory holidays as well as any other leaves of absence. Melville is entitled to the benefits of the full-time status that corre- sponds with the work she has been doing, the union argued, asking ar- bitrator Russell Goodfellow to rule Melville is entitled to a review in or- der to determine her eligibility for full-time employment. The employer argued Melville does not fall within the scope of the memorandum. The memorandum of agreement applies to three spe- cific part-time units, clearly chosen by the parties. The bridge to full- time employment is only extended to employees who have been work- ing continuously in a single clas- sification covered by one of those units. Because Melville falls outside of this requirement, the employer said, she is not eligible and there is therefore no point in granting her a review. Melville has, however, had the good fortune to work full- time hours and receive full-time pay shortly after being hired as a part-time employee. The employer asked the grievance be dismissed. "While it is certainly true, as the City points out, that Ms. Melville was fortunate to enjoy the benefits of full-time hours and increased pay shortly after being hired as a part-time employee, she has yet to enjoy the full benefits of that status," Goodfellow said. "Unfortunately, however, the memorandum upon which the union relies to attempt to secure a review of Ms. Melville's status towards possible placement in the full-time unit simply does not apply." While Melville's situation meets many of the memorandum's crite- ria — including full-time hours, in a single position, for a period greater than 12 consecutive months — it does not meet the final require- ment of hours worked in one of the three eligible part-time units. The many hours worked by Melville were in the full-time unit as a sup- port assistant. "Thus, while I fully appreciate the equitable and purposive argu- ments advanced by union counsel, I regret that I am unable to give effect to them," Goodfellow said. The grievance was dismissed. Reference: City of Toronto and the Canadian Union of Public Employees Local 79. Russell Goodfellow — arbitrator. Kerri Kitchura for the employer, Douglas J. Wray for the union. Jan. 12, 2015. A complicated merger at Essar Steel AS pART oF its ongoing reorga- nization, Essar Steel in Sault Ste. Marie, Ont., eliminated and rec- reated a number of positions — a move well within their rights, an arbitrator has decided. But the United Steelwork- ers (USW) local 2251 disagreed, launching a grievance in which they claimed the company violated the collective agreement. The case began when Essar Steel decentralized a certain number of fitter/welder positions by posting a number of department-specific fit- ter/welder jobs and eliminating the original positions. The relationship between Essar and USW is a complicated one, in- volving a number of union mergers and the company's bankruptcy. In 1995, employees signed a col- lective agreement which included them as partial owners of the com- pany as well as a new management rights clause dictating the plant's operations would be "jointly ad- ministered." That came to an end in 2004, and the most recent collective agree- ment reflects the fact that employ- ees are no longer involved in own- ership over Essar. If nothing else, arbitrator John Stout noted, previous collective agreements serve as a testament to the unique and mature bargain- ing relationship. However, when Essar Steel decentralized the 87 jobs, it was to put accountabil- ity along with required resources in the hands of the operating de- partments. As well, the company indicated the new structure would improve health and safety. The 87 fitter/welder positions were posted, but qualifications were listed as "nil" and each of the 87 workers successfully applied for the jobs, but not without adding they signed "under duress." According to the USW, the com- pany did not create new jobs, but instead reassigned the same em- ployees to perform the same work they had always done, just within a different department. The move had an adverse affect on employees' seniority rights. Though the USW agreed management had the right to assign and reassign workers as they please, it did not have the right to circumvent seniority lists per- taining to vacations, days off and preferred schedules. But Essar Steel maintained the management rights provision gave it the power to create new depart- ment-specific jobs. As it currently stands, the col- lective agreement outlines job swapping. When an existing job is changed or a new job established affecting job seniority lists, the company and union will develop a new seniority list together. In his decision, Stout sided with Essar Steel, saying the company was within its rights when it cre- ated the new jobs. The main focus of the decentralization was to put accountability and resources with- in operating departments, which eliminated inefficiencies and prob- lems under the old structure. "Language cannot be examined in isolation. Rather, language must be interpreted in light of other provisions in the collective agree- ment," Stout said, adding that while this particular management rights clause was broadly worded, the col- lective agreement had additional provisions pertaining to new jobs and seniority lists. "In this case, the reorganization did not involve layoffs or eliminat- ing any positions. Rather, the com- pany chose to redeploy employees to specific departments perform- ing more specialized jobs," Stout continued. Although the 87 workers were permitted to exercise seniority rights from the master or intermin- gled lists, the situation was not as dire as the union claimed. "There is no doubt that some employees may lose some opportu- nities based on seniority. However, they are not left without recourse as the collective agreement spe- cifically contemplates situations where reorganization may affect job seniority lists for existing jobs. Scheduling, including vacation and overtime, will be affected by the re- organization. However, that is not much different than the affect of any reorganization upon affected employees who may have to exer- cise their seniority rights to bump to different positions," he said. While both parties have histori- cally demonstrated an unparalleled ability to negotiate at the bargain- ing table, that does not mean man- agement is forever bound to seek union approval in the future, Stout concluded. He ruled management did not violate the collective agree- ment. Reference: Essar Steel Algoma and the United Steelworkers Local 2251. John Stout – arbitrator. Michael Hines for the em- ployer, Michael Da Prat for the union. Jan. 3, 2014. < from pg. 1

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