Employer's Challenge to Group 2 Seniority Rights Rejected at Arbitration

The right for a member to use seniority is a central issue for most Unions’ negotiation efforts. CUPW is no exception. In fact, when it comes to virtually all transfers, promotions, demotions and issues relating to choice of shift or assignments, the Collective Agreement covering CUPW's Urban Bargaining Unit provides postal workers with rights based on an individual member's seniority status.

And CUPW believed that the Collective Agreement also provided for essentially the same rule to members holding Group 2 positions in instances where the employer was resorting to the use of overtime to cover routes whose incumbents were absent. For CUPW, this meant that there was no distinction to be made by the employer as to whether a letter carrier was to work compulsory overtime or volunteered to work overtime when it came to the selection process as to who was going to deliver what portion of a given route.

However on March 20, 2008, the employer issued a directive that distinguished the two forms of selecting the portion of a route they would deliver, those letter carriers who had volunteered to work overtime and those that had been forced to work overtime, by seniority.

In reply, CUPW filed a national grievance, which was heard by Arbitrator Dulude on November 2 and December 2, 2008.

Use of seniority an overriding right in overtime assignment selection says arbitrator

In his decision dated March 2, 2009, Arbitrator Dulude sustains CUPW's grievance. In doing so, the Arbitrator rejected the employer's argument that the reference in clause 15.14 that deals with compulsory overtime was a 'stand-alone' clause that did not offer any choice of route portion to the letter carrier involved.

The Arbitrator states that his view of the Collective Agreement is just the opposite of the employer's. He goes on to say:

"... to cover routes whose incumbent is absent, clause 17.04 establishes the rules of assignment and clause 15.14 on compulsory overtime just states one of the methods pursuant to (the use of other means to back fill for absences).”

“The argument that there is no reference in clause 15.14 to Article 11 of the Collective Agreement that enshrines the principle that ‘seniority shall be used to accommodate employees’ preferences ...., which is contrary to paragraph 17.04 (e) (that emphasizes the priority rights of seniority for selecting portions of a route despite the sequential order that part-time letter carriers enjoy), cannot prevail here since, as I expressed earlier, clause 15.14 quite simply become incorporated in the staffing process of routes whose incumbents are absent, all as established in clause 17.04 and following.”

"In fact, the various clauses that follow (17.05, 17.06, 17.07 and 17.08) establish an overall system for covering routes whose incumbents are absent, whether it be on a daily basis and established portions of routes (clauses 17.04 and 17.05), replacements for extended periods of absences on a full-time basis (clause 17.07) or on a part-time basis (clause 17.07) or finally to determine the end of a replacement (clause 17.08).”

"Moreover, from all the provisions of the Collective Agreement, primarily clause 13.09 and 13.18 for staffing of vacant positions as well as vacant assignments, from all of Article 47 on the restructuring of routes, from clause 52.02 for the selection and determination of (relief) letter carrier assignments and as well as many others, one constant fact is clearly evident: seniority is observed in all circumstances, except where expressed to the contrary."

Outcome not a surprise

Frankly the Arbitrator's decision is not a surprise to the Union. It has articulated its view regarding seniority rights in respect of the various provisions cited in the Arbitrator's award on innumerable occasions during the decades that these clauses have been included in the Collective Agreement in some form or other.

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Bulletin no. 147 Page 2

And it was likely not a surprise to the employer either. That it took management until March 20, 2008 to decide to publish as its position that letter carriers forced to work overtime would be excluded from the right to use seniority to select overtime assignments is indirect evidence of the weakness of the argument they presented at the hearing.

And in general labour relations terms, the employer's decision to oblige this case to proceed is likely also evidence of bad faith bargaining.