HomeMy WebLinkAboutUnion 98-03-10
IN THE lVIA TTER OF AN ARBITRATION
BETWEEN
THE CANADIAN RED CROSS BLOOD SERVICE CE~TRES
AND
ONTARIO PUBLIC SERVICE ElVIPLOYEES UIYlpj)[
-
AGENCY STAFF GRIEVANCE
Board of Arbitration:
Richard Brown, Chair
Ron Cochrane, Union Nominee
Sydney Baxter, Employer Nominee
For the Union:
Scott Little - G S-H
For the Employer:
Stephen Bird
Hearing:
Ottawa, Ontario
December 1, 1997
161Ic2(/
L OCL-{ 4--77
This policy grievance arises from the performance of clerical work, at the
Ottawa Blood Centre, by persons working under the auspices of a staffing
agency. Contending the collective agreement prohibits contracting out, the
union claims the employer has contravened this prohibition by entering into
contracts with two agencies. In the alternative, if contracting out is not
prohibited, the union submits the individuals concerned are employees of the
employer rather than an agency.
I
Does the collective agreement prohibit contracting out? The union ~ontends
this practice is implicitly prohibited by the job posting provisions found in
article 16.01, paragraphs (a) and (g):
(a) \^/hen the Employer determines that a vacancy is to be filled, or a
new position is created within the bargaining LUllt, it shall be posted on
the union bulletin board for a period of seven (7) working days.
(g) The Employer shall fill vacant positions with persons who are not
members of the bargaining unit in the event that there are no applicants
for the positions who are members of the bargaining unit possessing the
skills and abilities required for the positions.
The employer contends its right to contract out work is confinned by
article 6 entitled job security. According to article 6.0 I, employees shall be
retrained at the employer's expense when technological change occurs.
Article 6.02 states:
In the event that an employee is unable to acquire the required new or
greater skills or if an employee's position becomes redlmdant as a
result of teclmological change, reorganization, reassignment of
bargaining unit work or contracting out she shall be given advance
notice oflayoff or pay-in-Iieu of notice in accordance with Aliicle 6.03.
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2
The law relating to contracting out is well settled. Since the decision
three decades ago in Russelsteel Ltd. and United Steelworkers of America
(1966), 17 L.A.C. 253, arbitrators have consistently held that an employer is
entitled to contract out work unless this practice is proscribed by specific
language in a collective agreement. The many awards endorsing this
conclusion are collected in Brown and Beatty, Canadian Labour Arbitration,
at 5:1300.
The agreement at hand contains no specific prohibition against
contracting out. The argument advanced by union cOlmsel, concerning the job
posting provision, is inconsistent with thirty years of arbitral jurispnldence. A
similar provision is found in almost every collective agreement, including the
contract in all or most of the Russelsteelline of cases. If a requirement to post
jobs amounted to a prohibition against contracting out, these cases would not
have been decided as they were.
Not only does this collective agreement contain no specific prohibition
against contracting out, article 6.02 implicitly confinns the right of the Red
Cross to engage contractors. This article requires management to provide
notice, or pay in lieu, to employees rendered redtmdant when work is
contracted out. As this requirement would be entirely superfluous if
contracting out was prohibited, article 6.02 indicates the parties intended to
allow work to be contracted out.
Ajob posting article like article 6.01 has no application to work which
is contracted out. The posting requirement in this article applies only when
work is assigned to the workforce of the Red Cross. Work performed by an
outside contractor need not be posted.
3
Having decided management is entitled to contract out work, we need
not address the employer's alternative argument that the union is estopped
from objecting to this practice.
II
There is little dispute as to the facts as to whether the true employer of the
clerical workers addressed by this grievance is the Red Cross or an agency.
DoclUIlentary evidence submitted by the employer indicates that at
various times since 1989 two agencies have supplied at least ten individuals
to do the same sort of clerical duties as are carried out by employe~s in the .
bargaining tUllt. The agencies concerned are Bradson and Pollock. Margot
Levy, Sian Pennington and Jacqueline Walsh worked in 1989. One Bradson
invoice relating to each of them, for homs ranging between 27.25 and 37.5,
was entered as an exhibit, but there is no evidence as to whether additional
invoices exist for these individuals,
Testimony as to the term worked by other people was given by Cheryl
Hubert, the clerical shop steward and past president of the Iocallmion.
According to her, Donna May Neilson worked for 3 months in 1992, and
Carol Smmders worked for approximately eighteen months in 1993-94. Ms.
Hubert testified Diane Spur worked for about eighteen months commencing
in 1995. The employer's documentary evidence indicates Ms. Spur worked in
1996 from January to October, but it does not indicate whether she also
worked in 1995. As Ms. Hubert's testimony as to the duration of Ms. Spur's
engagement was not contradicted, we accept this evidence,
4
The docmnents also record: (1) Debra Cadelli worked from July 19,
1996 lmtil January 31, 1997; (2) Isabelle Deschene worked from July 25,
1996 until October 4, 1996; (3) Paula Pierra worked from October 16, 1996
lmtil November 16, 1996; and (4) Wendy Morris worked from November 18,
1996 lmtil January 17, 1997.
The grievance was filed on November 21, 1996, a date falling within
the term of Cadelli and Morris. It was filed within six weeks or less of the
cessation of work under the auspices of an agency by Pierra, Deschene and
Spur. There is no contractual time limit for the filing of policy grievances and
the only remedy sought is a declaration. In these circumstances, this policy
grievance serves as a timely objection to treating as agency employees not
only Cadelli and Morris but also Pierra, Deschene and Spur. The term
worked by these five people ranges from a low of one month in the case of
Pierra to a high of eighteen months in the case of Spur.
Like bargaining lU1it employees, individuals provided by an agency
receive their "marching orders" from Red Cross supervisors, have a schedule
determined by the Red Cross in consultation with the individual, work on
premises occupied by the Red Cross and use equipment and supplies
provided by the Red Cross.
People engaged through an agency are hired, paid and assigned to the
Red Cross by the agency. While having no say as to who is initially assigned,
the Red Cross can ask the agency to remove a person and replace her, if she
proves not to be satisfactory.
The evidence relating to discipline and time off is less clear-cut. Chelyl
Ifubert testified workers provided by an agency are granted time-off and
5
disciplined by Red Cross supervisors. Mary Mainella, the co-ordinator of
administration who is responsible for dealing with agencies, testified time off
and discipline are handled by the agency.
III
On the issue of who is the employer of agency staff, counsel for the lUlion
relies upon Maple Leaf Mills and Brotherhood of Railway, Airline &
Steamship Clerks, Freight Handlers, Express & Station Employees (1986),
24 L.A.C. (3d) 16 (Devlin). The mill operator in that case claimed to have
ceased employing watchmen within the bargaining unit and to have...
contracted out the work to Bums International Security Services. In assessing
this claim, Arbitrator Devlin utilized a modified version of the four-fold test
developed by the Privy Council in lvfontreal v. lvfontreal Locomotive rVorks
Ltd., [194 7} 1 D .L.R. 161 to distinguish between an employee and an
independent contractor. The elements of this test are (1) control; (2)
ownership of tools; (3) change of profit; and (4) risk of loss. In lvfaple Leaf
lvfills, the security guards themselves clearly were employees, not
independent contractors, and the only question concerned the identity of their
employer. With the precise nature of this issue in mind, Ms. Devlin stated the
appropriate legal test as follows:
In such circumstances, the factors of chance of profit and risk of loss
have not been considered particularly meaningful and boards of
arbitration have focused predominantly on the factor of control, with
some consideration being given to ownership of tools. (page 26)
Applying this test to the facts at hand, Ms. Devlin concluded the guards were
employees of the mill operator rather than the security agency:
6
On the basis of the evidence introduced in this case, I find that the
company has retained effective control in all significant facets of its
relationship with the security guards supplied by Bums. The company
specifies the hours of work, controls the method and marmer in which
work is performed and has retained the right to determine the personnel
assigned to its operation. While the company does not compensate the
guards directly, Mr. Bums' evidence makes it clear that the company is
even in a position to dictate the amount the security guards are paid. In
my view, the company has not effected any real change in its
organization since it purported to eliminate the position of watchman...
(page 32)
COlillsel for the employer relies upon Metro-Calgary & Rural General
Hospital and United Nurses of Alberta (1988), 3 L.A,C. (3d) 265 CBeattie),
where agency nurses were engaged to replace an employee absent on short
notice for reasons such as illness, whenever no regular employee was
available and willing to serve as a replacement. While the award did not say
so, it seems safe to assume the agency nurses also worked at other hospitals
on the same basis. Mr. Beattie rejected the approach taken by arbitrators who
had focused almost exclusively upon the element of control:
In our view, the principal cases on which the lUuon relies, Riverdale
and Waterloo
(which adopts the approach taken in Riverdale) dealt only with the
"control" (of the employee while she is at work) test to the virtual
exclusion of all other tests or criteria. The paramount objective in
arbitration must be to achieve an objective which makes labour
relations sense. The predisposition to concentrate on the control aspect
(as was the approach also in the Ontario Royal Museum award) has
the potential in our view, of doing a disservice to the process and to the
interest of both parties.
In the present case, the union contends that because employees
were, for one day, under the control o.lthe employer (which is
indisputable), that alone must be the determiningfacto/', ~Ve disagree,
(page 273; emphasis added)
'l
I
Having decided control was not the only important factor, Mr. Beattie
adopted the seven criteria utilized by the Ontario Labour Relations Board in
Labourers International Union of North America and York Condominium
Corp. [1977] O.L.R.B. Rep. 645 to determine which of two entities was the
true employer of the employees concerned, These criteria are:
(1) the party exercising control over the employees performing work;
(2) the party bearing the burden of remuneration; (3) the party
imposing discipline; (4) the party hiring the employees; (5) the party
with the authority to dismiss the employees; (6) the party which is
perceived to be the employer of the employees; and (7)the existence of
an intention to create the relationship of employer/employee.
-
With these factors in mind, Mr. Beatty concluded the agency nurses were not
employees of the hospital.
In Canadian Labour Arbitration at 5: 1300, Brown and Beatty suggest
that the type of approach taken in Maple Leaf Mills is the one traditionally
adopted by most arbitrators, that the type of approach in Metro-Calgary &
Rural General Hospital is part of a recently developed school of thought
embraced by some arbitrators, and that these two approaches may produce
conflicting results based upon indistinguishable factual situations:
In assessing whether an employer has effected a valid contracting out,
many arbitrators have applied the four-fold test delived from the
common law which focuses upon the criteria of control over work
performance, ownership of tools, chance of profit and risk of loss... In
some awards, the inquiry has concentrated almost exclusively on the
characteristics of control... Although the control test has found favour
with a number of arbitrators, it has also been criticized on the ground
that some control and direction is inevitable in every case where work
is carried out on an employer's premises or side by side with its
employees. Indeed, recently some arbitrators have pointedly dechned
to regard the control test as governing) and have prefelTed to consider a
wider range of factors, including which employer actually pavs the
8
wages and where the decision to transfer work originated. That these
two approaches may well result in differing conclusions is aptly
illustrated by several awards in which the status of certain plant
guards was in issue.
Variations of these tests have emerged, including the use of
criteria developed by labour relations boards to detennine which legal
entity is the employer for certification and collective bargaining
purposes. However, at least one arbitrator has questioned the
applicability of such jurisprudence to grievance arbitration, on the basis
that it does not put sufficient emphasis on the day-to-day control of
employees. (emphasis added)
We think there is less of a division within the arbitral community than
this passage from Canadian Labour Arbitration might be understoQd to
suggest. The conflicting holdings in some cases may defy reconciliation, but
the different outcomes in other cases can be reconciled by paying careful
attention to important factual distinctions. For example, the awards in Maple
Leaf Mills and NJetro-Calgary & Rural General Hospital reach opposite
conclusions, but these differing outcomes are accompanied by a significant
difference in the facts. The most obvious and important distinction concerns
the length of tenure of the individuals in dispute. The security guards in
Maple Leaf NJills, who were fOlmd to be employees of the milling operation,
worked there on a pennanent basis. In sharp contrast, the agency nurses in
Metro-Calgwy & Rural General Hospital, who were held not be employees
of the hospital, worked at one health care facility one day and at another the
next, whereas they had a continuing attachment to the agency which referred
them to work and paid them.
In Metro-Calgmy & Rural General Hospital, Mr. Beattie explicitly
statcd that a hospital's OlHhe-job control over a lllu'se, for a single day, was
not enough to render that nH'ilily her employer An agency nurse's (lttachmcnt
9
to any hospital was much shorter in duration than her association with the
agency itself. By focusing upon the relative brevity of a nurse's engagement
at a hospital, Arbitrator Beattie implied he would have found the agency
nurses to be employees of the hospital if they had worked there pennanently.
Indeed, Mr. Beattie cited with approval an award holding that a nursing home
was the employer of health care aides working at the home on a permanent
basis, even though they were hired, scheduled to work, paid and formally
disciplined by an agency: Don Mills Foundation for Senior Citizens and
Service Employees International Union (1984), 14 L.A.C. (3d) 385 (p.
Picher),
In Don lvIills Foundation, Arbitrator Picher concluded the health care
aides were employees of the home, regardless of whether the board of
arbitration applied the "on-the-job" control test, as to who detennined the
manner and method of carrying out an employee's duties, or the seven criteria
frOlll the Ontario Labour Relations Board's decision ill York Condominium.
Ms. Picher noted with approval another Labour Relations Board decision,
Hotel & Club Employees) Union and Dennis Management Co. [1980]
O.L.R.B. Rep. 1538, holding that a particularly pertinent question arising out
of the seven criteria in York Condominium is "who exercises fundamental
control over the employees" (page 1552). On the facts before her, Ms. Picher
concluded the home for the aged exercised both "on-the-job" and
"fundamental" control. The role of the agency was treated as "somewhat
analogous to that of a personnel department" (page 419). Fundamental control
was held to reside with the nursing home:
It is the entity which (1) establishes and continually regulates the need
for lhe health care aides~ (2) supplies the place of work, equipment to
10
be used and clients (residents) for whom the work is perlormed; (3)
sets the over-all work schedule into which [the agency] can slot
individuals; (4) orients/trains health care aides for their work... ; (5)
exerts full and continuing control over the nature of the work
perlormed and the work standards to be met, as well as how, where
and when the work is carried out; (6) determines what incidents if any
should be referred for corrective action; and (7) holds veto power over
who will work on the premises. (page 419)
Distinguishing these facts from those in another case, United
Brotherhood of Carpenters & Joiners of America and Templet Services,
[1974] O.L.R.B. Rep. 606, Ms. Picher wrote:
[I]n Templet Services the evidence established that the individuals in
question had been referred to Templet by Manpower on a one-shot
occasion to install library shelving. Moreover, there was no evidence
of a contract between Manpower and Templet as there is in this case
between [the home] and [the agency] regulating the fine details of the
ongoing relationship. (page 419; emphasis added)
By focusing upon the <<one-shot" nature of the work in Templet Services, Ms.
Picher tmderscored the importance to her ruling of the permanent engagement
of the health care aides by the home, and she implied they might have been
found not to be employees of the home if their tenure there had been much
shorter and their attachment to the agency continued to be permanent.
In both Atfetro-Calgmy & Rural Hospital and Don Atfills Foundation,
the duration of a person's engagement was an important factor in
determining which of those entities was the true employer. In our view, this is
a sOlmd approach for arbitrators to take. An employee can have only one
employer at a time in any particular work setting. When an individual has a
continuing relationship with an agency which pays her wages and refers her
to a succession of clients, each of whom cxereise oll.the.Job control, thIS
11
person either has a single and permanent employment relationship with the
agency or a number of casual employment relationships with clients. When
the term of work with each client is brief, the individual) s attachment to the
agency is much more significant than her attachment to any client. In this
context, the agency is better characterized as the employer than is a client).
As the duration of the assignment with a client increases, the bond between
the individual and the client strengthens, and the case for recognizing an
employment relationship between them takes on added force.
This is not to suggest the duration of an engagement is the only
important factor in determining whether an employment relationship exists.
The exercise of on-the-job control is a necessary condition of employment.
The other factors identified by the Ontario Labour Relations Board in York
Condominium Corp. may also be significant. The identification of the true
employer must be based upon a weighing of all of the relevant considerations.
The term worked by the individuals addressed by this grievance ranges
between one month and eighteen months. Bearfng in mind all of the evidence
in this case, we conclude a person engaged by the Red Cross for one month
or less remains an employee of the agency. However, someone who works
for eighteen months under the supervision of the Red Cross, and subject to
being removed at its instance, is an employee of the Red Cross.
Rather than litigating on case-by-case basis whether a person referred
by an agency has worked long enough to become an employee of the Red
Cross, the parties would be well advised to negotiate a time limit on the
employment of agency staff. We urge them to do so.
12
The union expressed some concern about agency staff applying for
jobs posted by the Red Cross. As the employer conceded, a person from an
agency) who has not become an employee of the Red Cross, must be treated
as an external candidate and, according to article 16.0 I (g), should not be
considered unless there is not a qualified internal applicant. Of course) a
person referred by an agency who has become an employee of the Red Cross,
as set out above, should be treated as an internal candidate.
The grievance is allowed in part.
p-
Richard M. Brown) Chair
"Ron Cochrane"
I dissent in part.
Ron Cochrane, Union Nominee
"Syd Baxter"
I concur.
Syd Baxter, Employer Nominee
Ottawa, Ontario
March 10, 1998
13
DISSENT
I have read the majority award and with the greatest respect, the concern
I have with the conclusion is that it moves the possibility of the
establishment of the employment relationship between the Red Cross
and the employee hired via an agency to a minimum of one month.
In my view, personnel agencies are not unlike Union hiring halls; aside
from the administrative staff necessary to run the agency or hiring hall,
there is really no employment link between the agency and tile persons
registered who are looking for work. To go a step further, it would be
tantamount to suggesting that a person who is registered with the
Federal Employment Agency for a time is considered an employee of the
federal govemment. In my view, employees who register with a company
for the sole purpose of looking for work, could not be considered as an
employee of that company. Whether the company is a private entity, a
Union hiring hall or the federal government.
In my view, these persons do not consider themselves employed by these
agencies rather they see themselves as registered with these agencies
looking for work.
Ronald A, Cochrane
Union Nominee