HomeMy WebLinkAboutUnion 13-12-04IN THE MATTER OF AN ARBITRATION
BETWEEN:
C*71 k -. �llr��1
(the "Employer ")
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 200
(the "Union ")
AND IN THE MATTER OF A GRIEVANCE REGARDING STAT AND ASAP
DELIVERIES (OPSEU # 2012- 0200 -0001)
Louisa M. Davie Sole Arbitrator
Appearances
For the Union: Richard Blair, Counsel
For the Employer: Sarah Eves, Counsel
Award
In this grievance the Ontario Public Service Employees Union ( "the Union ") asserts that
the use of "agency employees to perform bargaining unit work" by Canadian Blood
Services ( "the Employer" or "CBS ") violates the collective agreement. Specifically, the
Union alleges that the Employer's "failure to offer the available hours of work to
bargaining unit employees; and /or its failure to post and fill the vacant positions that are
being filled with agency employees" violates articles 1, 2, 3, 12 and 16.01 of the
collective agreement.
The "bargaining unit work" referenced in the grievance is the "STAT" and "ASAP"
delivery of blood and blood products to hospitals. The "agency employees" referenced
in the grievance are employees of All Canadian Delivery Management Systems ( "All
Canadian "), All Canadian and the Employer are parties to a Services Agreement
pursuant to which All Canadian provides the services of 5 courier vehicles and drivers to
CBS. The drivers are scheduled for eight (8) hour shifts, five (5) days a week, by All
Canadian. The shifts commence at various times of the day. During their shifts the All
Canadian drivers are on standby to make STAT and ASAP deliveries as required.
The Employer maintains that it has not violated the collective agreement. It submits that
the Union is attempting to preclude it from contracting out although this collective
agreement does not contain a prohibition against contracting out. The Employer notes
also that this collective agreement does not contain a Union security provision which
prohibits non - bargaining unit employees from performing bargaining unit work.
The parties proceeded by way of an Agreed Statement of Facts and exhibits and oral
submissions.
Re: Canadian Blood Services and Ontario Public Service Employees' Union Local
200 (Policy Grievance dated 2012/08/07 — Use of All Canadian Delivery
Management Systems)
AGREED STATEMENT OF FACTS
The parties agree that Arbitrator Louisa Davie has jurisdiction to hear and decide
this matter.
2. Canadian Blood Services (the "Employer ") is a not - far - profit, charitable
organization whose sole mission is to manage the blood and blood products
supply for Canadians. To this end, the Employer:
• Collects approximately 850,000 units of blood annually and processes it
into the components and products that are administered to thousands of
patients each year;
• Manages the OneMatch Stem Cell and Marrow Network whose mission is
to secure, in an expeditious way, donors for Canadian bone marrow
transplant patients and for patients abroad;
• Screens every donor and tests each unit of blood or blood product
collected for a variety of transmissible diseases; and
+ Ensures that Canadian transfusion medicine research and development
remains at the cutting edge.
3. The Employer and Ontario Public Service Employees' Union (OPSEU) are
parties to a collective agreement (expiry March 31, 2013) covering support
employees working at and out of locations in Brampton, Ottawa, Toronto,
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Hamilton and Ottawa. (see Tabs 1 and 2). Employees under this collective
agreement are represented by OPSEU Locals 160, 210, 477, 5103, and 200.
4. The parties are currently preparing for negotiations for a renewal collective
agreement.
5. The Union filed a Grievance dated August 7, 2012 (see Tab 3) regarding the
Employers' use of a courier company for certain deliveries of blood and blood
products from its newly- opened production and distribution site in Brampton,
Ontario. The Union alleges in the Grievance violations of articles 1, 2, 3, 12, and
16.01 of the collective agreement.
6. Prior to 2012, the Employer operated production and distribution sites for blood
and blood products in London, Toronto, and Hamilton. These production and
distribution facilities were consolidated at the new site in Brampton in early 2012.
7. At the time of the announcement of the Brampton site, the Union did not have
bargaining rights for Employer employees in the City of Brampton. Employees
who worked at the donor clinics in Brampton were considered to be employees
working out of the Employer's Toronto site.
8. As part of a Provincial Labour Adjustment Plan, the Employer voluntarily
recognized the Union for the employees who would be moving to the Brampton
site (see Tab 5, Appendix C, paragraph 1.1).
9. Under the Brampton reorganization, all "Driver" bargaining unit positions in
Toronto, Hamilton and London were moved to the Brampton site.
10. The job description for the Drivers is found at p. 79 of the collective agreement
(see Tab 1). Drivers at the Brampton site are scheduled for regular assignments
for each shift. This can include, among other things, the delivery of staff and
equipment to donor clinics, the delivery of whole blood collected from the
Employer's permanent and mobile blood donor clinics to the Brampton site, and
the routine delivery of blood and blood products (inventory replenishment) to 99
hospitals across Central and Southwestern Ontario.
11. In addition to the regularly scheduled inventory replenishment deliveries to the
hospitals, the Employer has "STAT and "ASAP" deliveries to hospitals throughout
each day.
12. STAT deliveries are made in high risk situations where, for example, a hospital
has a bleeding patient in a life threatening situation but insufficient blood
inventory to meet the emergency needs. The fastest mode of transport is
required for these deliveries. Depending on the circumstances and the location of
the hospital, these deliveries are made by air, the Ontario Provincial Police, bus,
commercial or Employer vehicle, or taxi.
13. ASAP deliveries are made in circumstances where a hospital's inventory is low
and the replenishment cannot wait until the next routine delivery from the
Employer. Again, depending on the circumstances and the location of the
Hospital, these deliveries are. made by air, bus, commercial or Employer vehicle,
or taxi.
14. Prior to the move to Brampton, if there were no bargaining unit drivers available
on shift for STAT/ASAP deliveries, the Employer would use taxis (Royal or Beck)
for those deliveries in Toronto. This had been done for many years prior to 2012.
Taxis and couriers also were used for many years for this purpose in London and
Hamilton.
15. Also prior to the move to Brampton, and continuing today, the Employer used a
courier company, Dynamex, to deliver testing samples from London and
Hamilton to the Donor Testing Laboratory in Toronto, and from Sudbury to the
Donor Testing Laboratory in Ottawa.
16. The Employer uses various transport and expedited delivery companies across it
many Canadian operations, including for transport to the Brampton site.
17. With the impending move to Brampton, the Employer undertook a review for the
STAT and ASAP deliveries for the Brampton Site (see Tab 6). The Brampton
production site would be further away from many of the blood donor clinics and
hospitals than the Toronto, Hamilton and London sites. The Employer needed to
ensure that the blood system was not compromised on these ad hoc deliveries.
18. Pursuant to this review, it was recommended and subsequently approved that
the Taxi and Expedited Delivery Services would be the primary modes of STAT
and ASAP deliveries (see p. 13 at Tab 6).
19. For the first month after the Brampton site opened, the courier company, Health
Trans, was used for most STAT and ASAP deliveries.
20. In November, 2011, the Employer had issued an Request for Proposal for STAT
and ASAP deliveries for Brampton to London coverage and Central Ontario
coverage. The RFP was awarded to All Canadian Delivery Management
Systems ( "All Canadian ").
21. Pursuant to the Services Agreement entered into between All Canadian and the
Employer (see Tab 7), All Canadian commenced providing delivery services on
February 20, 2012. The Services Agreement expires on January 31, 2015.
22. All Canadian has five courier vehicles and its staff is on standby at various times
each day (see attached schedule at Tab 8), All Canadian's drivers and vehicles
wait on standby at the Brampton site or on standby offsite. All Canadian's drivers
who are waiting at the Brampton site receive instructions on deliveries from the
Brampton site Shipping Office. The Shipper /Receiver is a bargaining unit
employee. If there is no All Canadian driver onsite in Brampton, and a STAT or
ASAP delivery must be made, the Shipper /Receiver will contact All Canadian to
dispatch a driver to the Brampton site.
23. The All Canadian Drivers have their own cubicle set up, with dividers, in the
Brampton site Shipping Office. They also use the same bar code scanning
devices (supplied by the Employer) in support of the Employer's Shipping
System.
24. The total number of drivers for the bargaining unit remained the same with the
opening of the Brampton site. The Drivers still continue to do some STAT and
ASAP deliveries during their shifts, in addition to the deliveries made by All
Canadian.
25. The Employer has not laid off or reduced the hours of any Drivers in Brampton
since the commencement of the Services Agreement with All Canadian.
26. The STAT and ASAP deliveries are given to All Canadian staff and vehicles
without canvassing whether part -time bargaining unit Drivers who are not
scheduled to work would be available to perform the deliveries.
27. For the 2008 -2011 collective agreement, the Employer and the Union agreed
upon a Letter of Intent (see p. 107 at Tab 1) that committed the Employer to
review its use of couriers in Eastern Ontario in connection with deliveries out of
the Ottawa site.
This Letter of Intent was not renewed for the 2011 -2013 collective
Before turning to the oral submissions of the parties it is convenient to set out the
relevant collective agreement provisions upon which the parties relied.
ARTICLE 2 - RECOGNITION
2.01 The Employer recognizes the Union as the exclusive bargaining agent of
all nonprofessional employees (support staff) of the Canadian Blood
Services working at or out of the Toronto, London, Hamilton and Ottawa
Blood Services Centres, together with all employees hired to work in or
out of specific locations outside the boundaries of the aforementioned
Blood Services Centres... save and except...
4.01 The parties hereto agree that the operations of the Employer entail
working methods, hours and processes which are peculiar to it.
4.02 The parties further acknowledge that it is the exclusive function of the
Employer, subject to the provisions of this Agreement, to manage and
control its operations, and without limiting the generality of the foregoing,
to:
a) maintain order, discipline, and efficiency;
b) hire, transfer, promote, classify, demote, layoff, assign work, and
suspend or discharge employees for just cause, and introduce new
or improved methods or facilities;
c) manage, control, continue, discontinue in whole or in part the
Employer's operations, and without restricting the generality of the
foregoing, to determine the number of employees, schedule of
activities, kinds and locations of machines and processes to be
used in the scheduling and conducting of clinics and deliveries and
the determination of their locations, in accordance with the function
of the Employer.
4.04 These management rights shall not be exercised in a manner inconsistent
with the provisions of this Agreement.
ARTICLE 6 - JOB SECURITY/LAYOFF
6.02 In the event that an employee is unable to acquire the required new or
greater skills or if an employee's position becomes redundant as a result
of technological change, reorganization, reassignment of bargaining unit
work or contracting out she shall be given advance notice of layoff or pay
in lieu of notice in accordance with article 6.05.
6.03 a) For the purposes of this agreement a layoff shall mean a reduction
of staff complement either at a Blood Centre, Region or at other
permanent clinic sites where employees are employed by the Blood
Centre. Layoffs will occur separately at each location.
C) In case of layoff, casual, temporary /term and agency employees
shall be term inatedlreleased first by classification, provided that
those employees who remain on the job have the qualifications and
ability to perform the work
ARTICLE 12 -HOURS OF WORK
12.08 b)
Work Schedules Part -Time
i) Work schedules for part -time employee shall be dated and posted
four (4) weeks in advance and include the total of the estimated
hours, excluding unpaid meal periods, per pay period per
employee. The parties understand that changes may be made in
the case of an emergency, a significant staff shortage or where
unusual or unforeseen circumstances exist.
iii) The Employer shall endeavour to schedule available work per pay
period within classification on an equitable basis, separately at
each Blood Centre, Region and permanent clinic.
V) In the event that hours become available following the posting of
the schedule, the Employer will endeavour to assign them on the
basis of seniority within the Blood Centre, Region or permanent
location. Where there is insufficient staff at the affected location the
extra hours will be offered to the most senior available employee in
the classification at the next closest location. However, it is
understood that the scheduling of additional hours shall not result in
overtime costs to the Employer where operationally possible.
d) In January of each year, the Employer will review the hours worked
by all regular part -time employee(s). Where an employee(s) has
worked in excess of 1800 hours in the previous calendar year, the
Employer shall meet with the Union to discuss the creation of a full -
time position(s.)
12.09 Split Shifts
There shall be no splitting of shifts in any given day. If there should be any
waiting time between the cessation of work and the recommencement of work in
any single day, such waiting time, exclusive of any meal period, shall be credited
at straight time for purposes of calculating hours of work performed within the
averaging period. This article shall include all employees who are scheduled to
attend mandatory in-service/educational training sessions and staff meetings.
The Hours of Work article was amended by a Memorandum of Understanding executed
by the parties on December 20, 2012. Article 12.XX of that Memorandum of
Understanding states:
12.XX Regular part -time employees, except those employed at the Sarnia Site
and drivers employed at Kingston and Windsor Sites, shall be assigned a
defined Full Time Equivalent (FTE) at the time of hire under the following
conditions:
a) The defined FTE shall be averaged over a six (6) week period. The
Employer shall endeavour to minimize the variation in posted
scheduled hours over a bi- weekly period.
b) The number of regular part -time positions and the defined FTE's
shall be determined by the Employer.
c) All leaves of absences with or without pay shall count towards the
defined FTE
d) The defined FTE for regular part -time employees shall be noted in
such employees' employment offer letters.
e) Regular part -time employees must commit to be available to work
as scheduled by the Employer except as provided by any other
provision of the collective agreement.
f) After all regular part -time employees have been scheduled to their
defined FTE, the Employer shall schedule remaining available work
on an equitable basis amongst regular part -time employees by
classification and department/section separately at each Blood
Centre, Region or permanent clinic
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ARTICLE 16 - VACANCIES, PROMOTIONS AND TRANSFERS
16.01 Vacancies
a) When the Employer determines that a vacancy is to be filled, or a new
position is created within the bargaining unit, it shall be posted on the
Union bulletin board for period of seven (7) working days. When a full -time
position becomes vacant and where operationally feasible, the Employer
shall post the vacancy as a full -time position
ARTICLE 30 - POSITION DESCRIPTION
30.01 All employees are entitled to have in their possession, a copy of their
current Position Description. It is understood that Position Descriptions as
appended to this contract are current as of the date of signing of this
agreement.
30.02 The Position Descriptions shall accurately reflect only those duties which
are applicable to all members of that position.
30.03 Any employee who is not required by her Centre's administration to
perform all of the standard duties of her Position Description shall receive
no reduction in her weekly rate of pay.
30.05 Supervisors will not customarily perform the duties of a bargaining unit
employee.
The Position Description of Drivers appended to the collective agreement states under
"duties and responsibilities" that an "incumbent may be assigned to do some or all of
the following responsibilities ". Amongst a wide array of other duties and responsibilities
the duties listed include also the transport and delivery of blood and blood products.
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The following provisions of the Services Agreement between All Canadian and the
Employer are also relevant to the submissions of the parties.
4.0 ACCESS TO PREMISES
4.01 CBS may provide access to the Premises, including entry to and exit from
the Premises for the purpose of providing the Services, to the Service
Provider's employees and agents who are necessary for the provision of
the Services (collectively, the "Service Provider's Representatives ").
Service Provider will identify in writing the names of the Service Provider's
Representatives who will require access to the premises.
4.2 The Service Provider may not substitute, replace, or have the Services
performed by any other person except with the prior written Agreement of
CBS. If CBS reasonably determines that any of the Service Provider's
Representatives involved with this Agreement should be replaced, CBS
may provide the Service Provider written notice of that determination.
Upon receiving such a notice, the Service Provider shall replace the
individual in question with another who is acceptable to CBS within a
reasonable time period, at no additional cost to CBS.
4.4 The Service Provider will perform the Services in coordination with CBS's
operating schedules and ensure at all times that the Services cause the
least possible disruption to CBS's operations.
4.5 The Service Provider shall ensure that the Service Provider's
Representatives: (a) conduct themselves in a careful and professional
manner; (b) are suitably trained and experienced in providing the
Services; and (c) if applicable, are properly licensed as such under
relevant legislation to provide the Services.
4.6 The Service Provider's Representatives involved in providing the Services
may be required to meet CBS security clearance criteria...
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During the term of this Agreement and subject to the terms and conditions of this
Agreement the Service Provider will provide to CBS the Services as described in
this Schedule A
TRANSPORTATION OF BLOOD PRODUCTS IN SUPPORT OF ASAP AND
STAT DELIVERIES FOR THE CBS BRAMPTON AND LONDON SITES
1.0 The CBS Brampton site is responsible for supplying over 100 hospitals in
the Central and Southern Ontario region. The CBS London site acts as a
secondary hub in order to forward delivery of blood and blood products to
the 27 hospitals in the South Western Ontario region. The distances from
the CBS Brampton site to Central Ontario hospitals range from 5 km to
350km. The distances from the CBS London site to South Western
Ontario hospitals range from 2km to 187kn.
2.0 Each hospital maintains an inventory of blood and blood products, which
is replenished on a regular basis via CBS resources using a pre -set
delivery schedule. Hospitals also require blood and blood products outside
of their normal delivery schedules due to unforeseen circumstances (e.g.
emergencies, car accidents, unplanned surgeries, etc.). These "non-
scheduled" hospital orders are received by CBS at any time of the day or
night and are fulfilled by using either third party carriers or CBS resources
based on the following 3 hospital priority levels: [STAT, ASAP and routine
deliveries are described and prioritized]
3.0 Routine deliveries are carried out by CBS resources only. The majority of
ASAP orders are placed during peak hours from 10:00 a.m. to 6:00 p.m.
and STAT orders are placed around the clock.
4.0 The Service Provider shall provide both Dedicated and On Demand
delivery services for the majority of the STAT and ASAP transportation of
time and temperature sensitive blood and/or blood products to hospitals or
other CBS sites within Central and South Western Ontario. The majority of
the shipments will originate from either the CBS Brampton or CBS London
Sites....
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5.0 The Services are broken down into the following types of third -party carrier
services:
5.1 Dedicated Carrier Service (Peak Hour Coverage)
The Service Provider shall provide five (5) dedicated drivers of vehicles
operating out of the CBS Brampton Production and Distribution Centre in
support of ASAP and STAT deliveries Monday to Friday, including
statutory holidays. The Service Provider's drivers and vehicles will report
to the CBS Brampton site at the start of their shifts and will be dispatched
by the CBS shipping office. They must immediately return to the CBS
Brampton site upon completion of their initial assigned deliveries, where
they will remain until dispatched by CBS for subsequent deliveries. The
Service Provider's drivers and vehicles are dedicated to CBS for this
service and are not to transport passengers or cargo for any other
organization or purpose.
The shifts will be eight (8) hours in length and may occasionally be
extended due to operational requirements. The specific start time will be
determined at a later date.
(a) Brampton to London Coverage (1 Driver and Vehicle)
This driver and vehicle will mainly be responsible for an initial run
each morning from the CBS Brampton Site to the CBS London Site
(and return) and may include deliveries to various hospitals along
the way in either direction. The remainder of the driver's shift wil be
used to support ASAP and STAT deliveries...
(B) Central Ontario Coverage (4 Drivers and 4 Vehicles)
The four (4) drivers and vehicles will be assigned to cover four
specific regions in Central Ontario....
Coverage will be required for peak hours from mid - morning until
early evening (e.g. 10 a.m. to 6 p.m.) with staggered start times....
5.1.1 CBS Shipping System
The drivers will use bar code scanning devices (supplied by CBS) in support of
the CBS Shipping System. This system includes a shipping database which
records and stores shipping information and prepares and prints transportation
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documents (way bills, proof of delivery information, etc.). The devices will have
voice communication, but will not have GPS functionality....
5.2 On Demand Carrier Service
(a) Brampton Site "On Demand" Service (Off Peak Hour Coverage)
The Service Provider shall provide an "On Demand" pickup and delivery
service mainly during off -peak hours (6 p.m. to 10 a.m.) Monday to Friday
and 2417 on Saturdays and Sundays in support of ASAP and STAT
deliveries picked up from the CBS Brampton Site.
(b) London Site "On Demand" Service (2417 Coverage)
The Service Provider shall provide an "On Demand" pickup and delivery
service 2417 mainly in support of ASAP and STAT deliveries to be picked
up from the CBS London Site in support of 27 hospitals in the South
Western Ontario region. This Service must be available 24 hours per day,
7 days per week, including holidays.
10. QUALITY OF SERVICE
101 It is critical that the products arrive at the hospitals on time so that patient
care is not delayed.
10.2 Service Provider's drivers must at all times demonstrate professionalism
and provide good customer service as follows:
• appear neat and well groomed with appropriate attire;
• be courteous and polite to CBS and hospital staff;
• demonstrate good driving habits be courteous to all other road
users;
• drive vehicle according to the rules and conditions of the road with
safety of others and the CBS blood and blood products uppermost
in mind.
Appended to the Services Agreement is an appendix which indicates All Canadian has
5 couriers (and vehicles) on standby Monday to Friday for 8 hour shifts commencing at
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various times of the day, starting as early as 3:00 a.m. and ending at 11:00 p.m.. This
schedule is set by All Canadian. All Canadian assigns and schedules the drivers to
these various 8 hour shifts. It was not disputed that 25 of 108 All Canadian drivers have
been trained on the CBS shipping system and are able to be scheduled for CBS work.
The Union's Submissions
The Union asserted that the STAT and ASAP deliveries of blood and blood products to
hospitals represents a core part of the Employer's business. The facts here indicate that
this work is integrated into the Employer's operations as employees of All Canadian are
scheduled to be available and on call, either on or off the Employer's premises, for
dedicated 8 hour shifts, 5 days a week. It violates the collective agreement provisions
relating to hours of work, the consideration of the creation of full -time positions and the
requirement to post vacancies to have that work performed by employees of a third
party while part -time drivers are at home and are not called in or scheduled to perform
this work.
Union counsel emphasized that the work performed by All Canadian drivers was the
same as the work performed by the Employer's drivers. To perform the work the All
Canadian drivers use the same shipping system and the same scanning devices as
bargaining unit employees. The scanning devices are supplied by the Employer for
purposes of tracking the product in order to ensure the integrity of the blood supply
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system. Again it was noted that the integrity of the shipping system utilized to distribute
blood and blood products is a core part of the Employer's operations as it is
fundamentally important to the health and welfare of the public. It was also significant
that, pursuant to the Services Agreement, CBS had the right to determine that an All
Canadian driver should be replaced and that the replacement driver was "acceptable" to
CBS. In addition, All Canadian drivers were subject to the same requirement for a
criminal records check as the Employer's own employees. Thus, in the same manner as
drivers in the bargaining unit, the All Canadian drivers perform their duties at the behest
of, and with the approval of, CBS using the same bar code scanning equipment as CBS
drivers. CBS also trains the All Canadian drivers on that equipment and its shipping
and delivery system.
Union counsel submitted that the present circumstances were analogous to the
"contracting in" cases. The Employer has assigned available bargaining unit work to All
Canadian. That work was clearly identifiable and was capable of being scheduled as
shown by the All Canadian schedule appended to the Services Agreement. The work
itself was carefully controlled by the Employer, and was a core part of its enterprise. The
Union did not argue that the All Canadian drivers were in fact CBS employees or should
be brought into the bargaining unit. It argued instead that the collective agreement had
built into it implicit protections which precluded the Employer from using employees
supplied by a third party in these circumstances and in this manner.
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It was the Union's position that the contracting out of the STAT and ASAP deliveries to
All Canadian in the present circumstances violated the collective agreement. Although
the collective agreement recognized that contracting out exists, and notwithstanding the
fact that the Employer has a history of using third -party couriers and taxis to provide this
type of service, the present circumstances were significantly different.
With the opening of the Brampton facilities and the consolidation of this work there is
now identifiable work "available" to be performed by bargaining unit employees. That
the work is available is apparent from the fact that All Canadian schedules 5 dedicated
drivers to 8 hour shifts throughout the day to do the work. The collective agreement
makes it clear that available bargaining unit work with the type of regularity which
permits it to be scheduled in this manner should be distributed equitably to part -time
employees or posted as a vacancy.
That the scheduled work had to be distributed to part -time employees arose from the
Hours of Work provisions of the collective agreement. Under this collective agreement
part -time employees have a minimum guarantee to a defined FTE amount of work. That
FTE is established at the time of hire. (Currently all part -time drivers have a 0.5 FTE).
Part -time employees also have the right to the equitable distribution of available work
(Article 12.08 () (iii) and (v) and 12.XX (f) of the collective agreement). The importance
of the equitable distribution of available work, taken together with article 12.08 (d) under
which the accumulation of hours triggers the Employer's obligation to consider and
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discuss with the Union the creation of full -time positions, expresses the intent of the
parties that full -time positions are important. That expression of the importance of full -
time work is further enhanced by article 12.09 which specifies that waiting time is
credited for purposes of calculating hours of work performed. It was the Union's position
that in the face of these articles the Employer did not have the unilateral right to
determine that available work, which obviously needed to be performed, and which
could be scheduled with this type of regularity, should not be distributed to part -time
employees but should instead be provided to a third party contractor. That would defeat
and undermine article 12.08 (d) which implies a preference for full -time positions when
part -time employees work in excess of 1800 hours a year.
The Union also relied upon the vacancy and job posting articles of the collective
agreement. It argued that the present circumstances indicate that there was a body of
regularly scheduled work available. Article 16.01 expresses a preference that "where
operationally feasible" a full -time position should be posted in these circumstances.
Again the Union pointed to the fact that the work was clearly identifiable and was being
regularly scheduled by All Canadian as 8 hour shifts. It could therefore be posted as a
full -time vacancy. In these circumstances the Employer does not have the unilateral
right to subjectively decide that a vacancy does not exist and need not be posted. It was
submitted that the Employer can't on the one hand require All Canadian to do the work
on this type of regularly scheduled basis and on the other hand say that there is not a
sufficient amount of identifiable work available to be posted as a vacancy. In making
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these submissions the Union relied on Workers Health and Safety Centre and Office
and Professional Employees International Union, Local 343 [2000]) O.L.A.A. No.
578 (Sarra), Drug Trading Co. and Communications, Energy and Paperworkers
Union of Canada, Local 99 -0 (9994) 49 L.A.C. (41h) 940 (Haefling), Provincial Health
Services Authority and C.U.P.E. Local 805 (2003) 925 L.A.C. (4th) (Christie).
The Employer's Submissions
The Employer maintained that the collective agreement has not been violated. The
collective agreement permits the Employer to contract out work. The only limitations on
contracting out are found in articles 6.02 and 6.03 which address training and notice of
layoff in the event work is contracted out, and which require "agency employees" to be
laid off first before bargaining unit employees. Neither of those provisions apply in this
instance as the Employer has not laid off or reduced the hours of drivers in the
bargaining unit. The presence of these 2 articles in the collective agreement indicate
that the parties recognize that the Employer can /does contract out.
The Employer noted that with the consolidation of the operations and the opening of the
Brampton site drivers must go further afield to make ASAP and STAT deliveries. To
ensure coverage and not have employees sit around (and be paid during waiting time
as required by article 12.09) the Employer in good faith, for sound business reasons,
and after a careful review of various options (see Exhibit 1, tab 6) entered into the
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Services Agreement with All Canadian. The management's rights provisions of the
collective agreement entitled CBS to enter into this agreement and decide that the
ASAP and STAT delivery work was to be performed in this way.
Counsel acknowledged that bargaining unit employees continue to perform some STAT
and ASAP deliveries. However these ad hoc deliveries are not regularly scheduled and
do not form part of the core duties of drivers. Neither the Position Description nor any
other provision of the collective agreement supports the notion that bargaining unit
drivers "own" this work or have exclusive right to make STAT or ASAP deliveries.
Instead, both article 30.03 and the reference in the Position Description duties and
responsibilities that drivers may be assigned "some or all" of the delivery work indicates
that the Employer has the right to assign this work to others.
The Employer made several submissions in response to the Union's position that the
hours of work article (article 12) and the vacancy article (article 16) should be
interpreted and applied in a manner which precluded the Employer from contracting out
this work. First it was emphasized that the work performed by All Canadian has never
been performed exclusively by bargaining unit members. Indeed the opposite is true.
ASAP and STAT deliveries have always been performed predominantly by third parties
such as taxis and couriers, Therefore, article 12.08 which speaks to the Employer
scheduling "available work" or hours that "become available" does not apply. The work
performed by All Canadian is not "available" work and has never been scheduled as
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available work of bargaining unit drivers. It was argued that it is within management's
rights to determine if work is available and to decide that the work at issue in these
proceedings will not be made available to bargaining unit drivers. In order for the
provisions of article 12 to apply to "available work" it must be work that would be
regularly scheduled by the Employer. To hold otherwise would preclude the Employer
from contracting out even though this collective agreement does not contain a
prohibition against contracting out.
Secondly, counsel argued that there is nothing to suggest the consolidation of work at
the Brampton location increased the amount of ASAP or STAT deliveries. Whereas
previously the work was dispersed amongst 3 geographic locations (London, Toronto
and Hamilton) it is now concentrated at one location. As the work of making ASAP and
STAT deliveries is not exclusive to the bargaining unit and has always been performed
by third parties there was nothing in the collective agreement which obliged the
Employer to create new full -time positions simply because its operations have been
consolidated at one location. Neither article 12.08 (d) nor article 12.XX of the
Memorandum of Settlement require the Employer to create full -time positions or
guarantee part -time employees that they will be scheduled in a manner which enhances
the likelihood of reaching 1800 hours. In this regard it was submitted that the Employer's
obligation as set out in 12.08 (d) was not a requirement to create full -time positions but
was merely an obligation to meet with the Union to discuss the matter.
22
As to the Union's reliance on article 16, the Employer maintained that article also does
not require the Employer to create new positions or add to staff complement. The
Employer's obligation is to "determine" if a "vacancy [is] to be filled or new position is
created." The Employer need only post a vacancy which has "become" vacant and if it
is operationally feasible to do so. That is consistent with the Employer's rights under
article 4.02 to determine the number of employees and control its operations. This
language should not be used to restrict contracting out. The Union's position that a
vacancy has been created because CBS has contracted with All Canadian to render
services which All Canadian can schedule for its employees with a degree of regularity
would effectively preclude contracting out even though the language of this collective
agreement does not contain such a prohibition.
In its submissions the Employer relied upon Canadian Blood Services and Ontario
Public Service Employees Union (Volunteer Drivers Grievance), (2001) O. L. A. A.
No. 26 (Chapman), United Steelworkers of America and Russellsteel Limited,
(1966) 17 L. A. C. 253 (Arthurs), Re Multi Fittings and 1. M. A. W. Region 8 et al,
[1989] 70 O. R. (2nd) 328 (Steele), Shell Canada Products Limited and C. E. P.
Local 848 (1999) 80 L. A. C. (4th) 396 (Brandt), Kenora Forest products Limited
and C.E.P. Local 324 (2005) 80 3C. L. A. C. 91 (Davie), Union Gas Limited and U. S.
W. A., Local 2020, (2004) 79 C. L. A. S. 310 (Davie), Atlantic Packaging Products
Limited and C. E. P. Local 333, (2006) 80 7C. L. A. S. 363 (McDowell).
23
Decision
I have determined that this grievance must be dismissed. It is clear from the
circumstances of this case that the Employer has simply contracted out work, namely
STAT and ASAP deliveries. That work has never been performed exclusively by
bargaining unit members. The Employer has a long history of using third parties to
perform this work. Although that work may now be consolidated at one location, so that
it is more easily identifiable and capable of being scheduled with greater regularity, the
fact remains that the STAT and ASAP delivery work has always been shared and the
collective agreement does not contain an explicit provision which prohibits the Employer
from contracting out this work.
As noted in the cases relied upon by the Employer it is now well - established in labour
law that without a specific provision in the collective agreement which precludes it from
doing so, an Employer may contract out work which might otherwise be performed by
bargaining unit members.
In this collective agreement there is no prohibition against contracting out. Indeed,
articles 6.02 and 6.03 indicate that these parties are aware that the Employer can
contract out work. They have negotiated specific provisions which apply to layoffs which
may occur as a result of contracting out. These articles do not apply to the
circumstances of this case where the work has been contracted out, in good faith, for
24
purposes of business efficiency and costs, and where there is no evidence that the
contracting out has undermined the collective agreement or the Union's bargaining
rights. As noted in paragraph 26 of the Agreed Statement of Fact in the circumstances
of this case there has not been any bargaining unit erosion. The Employer has not laid
off drivers nor reduced the hours of any drivers in Brampton since it entered into the
Services Agreement with All Canadian.
The Union argues that the totality of the collective agreement demonstrates an implied
fetter on the Employer's right to have this work performed by All Canadian. In the
"Hours of Work" article of the collective agreement the parties have expressed a
preference for full -time work and full-time positions. In the "Vacancy" article the
Employer has implicitly agreed to post and fill positions when objective facts indicate a
position exists and has been created. The Union asserted that the objective facts here
indicate that an identifiable body of work has been consolidated, at one location, and is
regularly scheduled to be performed during 8 hour shifts. The work is available, can be
scheduled and assigned by the Employer and is therefore capable of being posted.
I do not accept that position. I do not consider it appropriate to imply a fetter to
management's rights to contract out from the hours of work or job posting provisions of
this collective agreement in the face of articles 6.02 and 6.03 which indicate that there
may be contracting out, and where no other provisions of the collective agreement
expressly prohibits it. The cases relied upon by the Union in support of its submissions
25
all involve different circumstances and different collective agreement language. In
Provincial Health Services Authority supra an employee had resigned her full -time
position and the Employer failed to post that vacancy and instead posted 3 part -time
positions. In those circumstances the board of arbitration found that the collective
agreement which obliged the Employer to post "when any vacancy occurs... within the
bargaining unit" required the Employer to post the vacancy which arose as a result of
the resignation. Similarly Workers Health and Safety Center supra involved the
retirement of 2 employees. There the board of arbitration determined that, viewed
objectively, following the retirement of these 2 employees there remained "a job of work
to be done" so that the Employer was required to post by reason of collective
agreement language which stated "when a vacancy occurs..."
The factual circumstances before me and the job posting and vacancy language of this
collective agreement are much different. The language of 16.01 suggests that it is within
the Employer's discretion to "determine that a vacancy is to be filled." More significantly,
the use of the word "becomes vacant" indicate that the position must have existed, was
filled and has become vacant through the resignation, retirement or termination of an
incumbent employee. Even then the posting of that vacancy is subject to the caveat
"and where operationally feasible."
This language can't be interpreted to require the Employer to post a vacancy or create
additional positions within the bargaining unit simply because a "body of work" can be
26
identified and could be performed by bargaining unit members. In this case a position
has not "become" vacant. There was no position of ASAP or STAT driver which has
been vacated by an incumbent. In fact the work of ASAP and STAT deliveries is not
exclusive to bargaining unit drivers but has always been shared by bargaining unit
drivers and those outside of the bargaining unit. In my view article 16 has no application
to these facts and is not an implied fetter on management's right to contract out.
I also do not view the hours of work article as an implicit restraint on management's right
to contract out the STAT and ASAP deliveries. I do not accept that article 12.08 (d),
either standing alone or in conjunction with article 12.09, expresses the mutual
preference of the parties for the creation of full -time positions. The language of 12.08 (d)
itself does not say that a full -time position will be created when part -time employees
work in excess of 1800 hours. Article 92.8 merely obliges the Employer to meet and
discuss that with the Union. In circumstances where there is no obligation on the
Employer to schedule employees up to 1800 hours and where there is no guarantee of
hours for part -time employees (beyond the assigned 1=TE at the time of hire) it is
inappropriate to conclude article 12.8 demonstrates a mutual intent to create full -time
positions or implicitly prohibits work from being contracted out.
That the hours of work article does not compel the Employer to create new positions or
provide additional hours to existing part time employees is also evident from the fact
that there are no restrictions placed on the Employer's ability to dilute the hours of work
27
available to part -time employees. For example the collective agreement does not
contain a ratio of full -time to part-time employees, or a cap on the number of part -time
employees. Indeed article 12.XX specifically states "the number of regular part -time
positions and the defined FTEs shall be determined by the Employer." In these
circumstances therefore, even if the collective agreement precluded the Employer from
contracting out, it would still be possible for the Employer to simply hire more part -time
employees and assign the STAT and ASAP deliveries to those newly hired part -time
employees without either creating a full-time position or increasing the hours of the part-
time employees currently employed.
The Union has placed some emphasis on the Employer's obligation in article 12 to
schedule park -time employees to "available work" on an equitable basis. I have
concluded that this obligation does not extend to the ASAP and STAT delivery work
performed by All Canadian. The collective agreement does not preclude the Employer
from contracting out. Here the Employer has contracted out a portion of the work it
needs performed to All Canadian. That work therefore is not work which is "available" to
be scheduled by this Employer.
As noted by arbitrator McDowell in Atlantic Packaging Products Limited supra
"parties who bargain collective agreements, do so against a background of arbitral
jurisprudence - which is to say: against a background of cases in which arbitrators have
ruled on what particular contract language means." The collective agreement articles
28
which require equitable distribution of available work have not been interpreted to be a
fetter on an Employer's right to contract out where there is no specific provision in the
collective agreement which precludes the Employer from contracting out. Instead these
types of clauses are generally interpreted to apply to work or hours which "become
available" after the Employer has scheduled Its employees. Hours or work become
"available" either because someone scheduled to work those hours is no longer
available (i.e. an employee may be sick) or because extra work or hours become
available due to unanticipated or unforeseen circumstances.
The Union also relies on the Position Description of drivers. However the agreed -upon
facts indicate that the ASAP and STAT delivery work is not exclusively the work of the
bargaining unit and does not fall exclusively within the duties of the bargaining unit
driver. Deliveries of ASAP and STAT orders has always been "shared" with third -party
contractors and the bargaining unit members who may do this work on an "as needed"
basis. As noted by arbitrator Chapman in Canadian Blood Services supra "it is
interesting that the job descriptions all contain the following introductory language:
"incumbent MAY be assigned to do SOME or ALL of the following responsibilities:
(emphasis added). This general statement seems to mitigate against a claim that all of
the duties listed are necessarily the exclusive responsibility of the drivers."
As was the case before arbitrator Chapman the Position Description language here
does not point to a clear restriction on the assignment of this work to others. Moreover,
29
article 30.03 contemplates that employees may not be required to perform all of the
duties as set out in the Position Description. Although the collective agreement
specifically deals with the fact that bargaining unit employees can't be required to
perform duties not contained in their Position Description, the collective agreement says
little about the circumstances at issue here where driving and delivery duties are not
assigned to bargaining unit employees. Indeed, the only specific limitation on the
assignment of bargaining unit work outside the unit is found in article 30.05 which
references only "supervisors" and does not address third -party contractors.
Finally I turn to address the fact that All Canadian drivers use the same shipping system
and scanning devices and essentially perform the work of ASAP and STAT deliveries in
the same manner as bargaining unit drivers. It is also apparent from the Services
Agreement that if CBS is dissatisfied with any of the All Canadian drivers it can request
that they be replaced. I've concluded that these circumstances do not alter the fact that
at issue here is a true contracting out situation. Union counsel did not argue that this
was a case of "contracting in" but merely argued that the circumstances were akin to
"contracting in" insofar as work is being performed by drivers of an outside agency in
the same manner as employees in the bargaining unit at a time when bargaining unit
employees are available to do that work and can be scheduled to do that work.
The Union relied on arbitrator Haefling's award in Drug Trading Company supra which
dealt with the layoff and recall rights of employees on layoff while agency drivers not in
30
the bargaining unit were performing bargaining unit work. I have carefully reviewed
arbitrator Haefling's award and find that it does not apply to the present circumstances.
This is not a case of contracting in. The All Canadian drivers performing the STAT and
ASAP deliveries do so as All Canadian employees, using All Canadian trucks and
vehicles, having been scheduled to do the work by All Canadian. All Canadian has
contracted with CBS to provide delivery services. To that extent therefore CBS will
direct All Canadian what to deliver and where it must be delivered. CBS does not direct
the work in any other manner. It is true that as part and parcel of the delivery service the
same scanning devices are used to ensure the integrity of the blood being delivered to
the facility and to facilitate tracking of the package. That fact however does not
transform this "contracting out" situation into a "contracting in" situation as that term is
generally understood and labour relations.
For all of these reasons this grievance is dismissed. This collective agreement does not
prohibit contracting out. The hours of work, vacancy and job posting, and position
description provisions of this collective agreement do not explicitly or implicitly fetter the
Employer's right to contract out or limit its right to manage the operations by having
STAT and ASAP deliveries made by All Canadian employees.
Dated at Mississauga this 4th day of December, 2013.
Louisa Davie
Louisa M. Davie