Grievance N00-06-R0007

The dispute:

On May 30, 2008, the Employer notified the Union of its intent to implement an “Employee Recommendation Program,” which applies to both bargaining unit employees.

The purpose of this program, launched as a pilot in British Columbia and Alberta, was to staff on‑call relief employee positions in the RSMC bargaining unit.

Employees who had recommended someone for a position would receive $500.00 once the recruit had completed 90 days of continuous service. To qualify for this payment, the employee who recommended the recruit had to still be working for Canada Post at that time. 

The Union responded that the employer could not implement its program on July 1^st, 2008 because of clause 3.01 of both the RSMC and the urban operations collective agreement, which stipulates that the Union is the exclusive bargaining agent for these two units.

On July 1^st, the Employer sent its employees in Alberta and British Columbia a letter and documentation explaining the terms of this program, without first obtaining the Union’s consent.

As a result, the Union filed a grievance on July 8, 2008 against the unilateral implementation of the Employee Recommendation Program.

 

The Union’s position:

At the arbitration hearing on October 1^st, 2009, the Union emphasized basic elements of the RSMC collective agreement, i.e.:

• Clause 3.01 – exclusive bargaining agent;
• Clause 7.01 – need for consultation;
• Clause 33.01 - wages.
• The Union argued that this program was null and void because it formed part of those matters that should have been negotiated and because the Union is the exclusive bargaining agent.
• The Union stated that the amount promised clearly was in the nature of compensation, which had not been discussed as part of negotiations, as were all the other forms of compensation.
• The Union argued that the Employer was prohibited from reaching individual agreements with employees covering working conditions.
• The Union maintained that the fact the Employer had suspended its program at the end of December 2008 did not prevent it from being invalidated, since it had been implemented and had paid out benefits.

 

The Employer’s position:

• The Employer claimed that, under the circumstances, it did not have to seek the Union’s consent to implement a program to promote recruiting.
• It maintained that the program did not involve conditions of employment, since the employer was not paying compensation in consideration of work.
• The Employer also noted that the program entailed a random aspect since participation was voluntary.
• The Employer ultimately argued that its management rights authorized it to develop working conditions not covered by the RSMC collective agreement.

 

Decision:

The arbitrator began by stating that the issue of certification grants the association in question an exclusive representation right for all workers in the bargaining unit.

He referred to authors Gagnon, Lebel and Verge, who, in 1987, analyzed the approach taken by the Supreme Court of Canada, which holds that the collective agreement, during its term, constitutes the sole source of rights for the employees as well as for the parties to the collective agreement.

In addition, in relation to all employees who have chosen a bargaining agent, individual agreements may prove seriously prejudicial by undermining the union’s power of representation.

He continued by stating that this power gives the Union a monopoly over negotiating working conditions for the benefit of all its members.

The national arbitrator went on to discuss management rights in respect of implementing working conditions in a unionized environment.

The arbitrator stated: “Where [the Employer] is engaged in collective relations, however, it must negotiate with its union working conditions for its employees for the ultimate purpose of entering into a collective agreement, which then compels it to yield and/or modulate part of its management rights.”

He continued by stating that an analysis of the case requires that we define the nature of the initiative introduced by the Employer and that we then examine whether it can be associated with one or more elements of the content of the collective agreement.

The aspects of the program to consider were that:

• there was a recruiting problem;
• the program was open only to employees;
• an amount of $500.00 was being paid;
• this amount was taxable;
• participation was voluntary.

The Employer created the impression that it was at least relying on the employees’ knowledge of their responsibilities to provide recommendations accordingly, which establishes an inevitable link with their job.

Under clause 7.01, the parties accepted the principle that “any issue of mutual interest covered in this collective agreement” had to be subject to consultation, even if it did not entail the need to enter into an agreement.

A link can be established with the job of these employees since this amount:

• could be obtained only by employees in the urban and rural units;
• was taxable income;
• fell within the definition of compensation as applied by the parties under clause 33.01.

In conclusion, the arbitrator stated that the reason for this program and its implementation should have been subject to negotiation by the parties, which would have allowed the Union to fully exercise its power of representation and would have resulted in either a proper amendment to the collective agreement or the signing of a special agreement.

For all these reasons, the arbitrator sustained the grievance and quashed the Employee Recommendation Program on the grounds that this matter should have been negotiated by the parties as compensation.