IN THE MATTER OF AN INVESTIGATION PURSUANT

ARTICLE 12.01 OF THE COLLECTIVE AGREEMENT

BETWEEN:

CITY OF QUESNEL

(the “Employer”)

AND:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1050

(the “Union”)

(South Hills Boundary Expansion Contracting Out Grievance)

INVESTIGATOR:Vincent L. Ready

COUNSEL:Caroline MacEachern for

the Employer

John L. Hurren for

the Union

HEARING:August 18, 2004

Quesnel, BC

PUBLISHED:September 16, 2004

2918

This dispute arises as a result of a boundary expansion whereby the City of Quesnel took over responsibility for summer and winter road maintenance in the “South Hills” area from the province of British Columbia.

The Union has grieved the awarding of the “South Quesnel Road Maintenance Contract” to Argo Road Maintenance Inc. (“Argo”), alleging violation of a number of provisions of the Collective Agreement.

I have been appointed under Article 12.01 of the parties’ Collective Agreement as an Investigator in this matter.  Article 12.01 reads:

ARTICLE 12 – ARBITRATION

12.01

If a difference arises between the parties relating to the dismissal, discipline or suspension of an employee, or to the interpretation, application, operation or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, during the term of the Collective Agreement, Vince Ready, or a substitute agreed to by the parties, shall at the request of either party:

(a)investigate the difference;

(b)define the issue in the difference; and

(c)make written recommendations to resolve the difference

within thirty (30) days of the date of receipt of the request and, for those thirty (30) days from the date, time does not run in respect of the grievance procedure.

BACKGROUND

In the fall of 2003, the Employer took over responsibility for road maintenance for 25 kilometers of road (50 lane kilometers) in the South Hills area.  The maintenance in the area had previously been performed by Argo on behalf of the province and included snow removal, sanding operations, pothole patching, road reconstruction, crack sealing, road grading, road sweeping, ditch maintenance, signage, road side mowing and culvert installation.

Prior to the boundary expansion, the Employer was responsible for summer and winter maintenance for approximately 186 lane kilometers within the City of Quesnel.  Bargaining unit employees working both regular and overtime hours perform this work.  During periods of heavy snowfall, contractors are also employed to provide snow removal services to the city.

The regular hours of work for bargaining unit employees are 8 hours per day (7:00 a.m. to 5:00 p.m.), Monday to Friday.  The only exceptions are two Sweeper/Sander operators who are scheduled to start at 4:00 a.m. and 6:00 a.m., respectively.  Evening and weekend snow removal is performed either by employees working overtime or contractors.

On September 29, 2003, the Employer notified the Union of the boundary expansion to take effect November 29, 2003 by way of letter, which reads in part:

Under Letter of Understanding #8, the City and Union agreed to enter into discussions on new services.  I would therefore like us to meet as soon as possible to discuss how we will be proceeding in respect of this matter.  Please note that time is of the essence, as we believed that we had another year remaining on the Province’s agreement to provide these services on behalf of the City.  It was only on Friday, September 26 that we discovered otherwise.

Letter of Understanding (LOU) No. 8 in the Collective Agreement reads as follows:

Re:  Job Security and Operational Flexibility

It is the City’s intention with the various boundary expansions and growth of the City, to provide operations which are cost effective, and of value to the taxpayer.  As a result, certain operations will provide services that are twenty-four (24) hours a day, seven (7) days a week.  Specifically, to implement a rotational shift pattern which includes evenings, and weekends for certain areas of the operation.

It is the Union’s intention to provide job security for their members to continue to perform the work that is being provided by the City today.  Also, to be a successor to any new services which the City may consider providing.

The Union and the City agree to enter into a joint partnership to discuss any services that may result from the boundary expansions, or upon expiry of any existing contracts or reductions or provincial grants or any new services which the City may consider providing.

Both parties acknowledge that in order for the City to consider providing services to these new areas, or add to any existing services, the Union and the City will need to discuss and amend the collective agreement.  The principles of the discussions would be to maximize operational flexibility so that any additional services which are being considered by the City, could be implemented in the most cost effective manner while maintaining the job security concerns of the Union.

Either party can activate discussions relating to this Letter of Understanding through Labour Management meetings.  Amendments to the collective agreement that are mutually agreed to by the parties would be implemented and administered through a Letter of Understanding.

The Employer commissioned a study to evaluate the road maintenance requirements in the South Hills area.  Urban Systems provided this report to the City and based on its contents, the Employer budgeted $175,000 per year for maintenance costs.  The Urban Systems report looked at three models, including contracting with a single contractor, using only bargaining unit employees, and a combination of City employees and contractors.

The Employer and Union met on October 1, 2003 and again on October 22, 2003 to discuss the South Hills boundary expansion.  The Employer proposed Collective Agreement amendments that included a new afternoon shift from Monday to Friday during the winter season.  The Employer would be entitled to assign up to four employees to this shift.  The Employer also proposed implementing a year-round “utility shift” that would work Wednesday to Friday from 8:00 a.m. to 4:00 p.m., and Saturday and Sunday 6:00 a.m. to 2:30 p.m.  Under the Employer’s proposal it could assign up to two employees to this shift from the regular City crew.

The Union was not prepared to agree to the Employer’s proposal; however, it expressed an interest in doing the work and stated it was prepared to discuss flexible hours of work if seasonal/casual employees were converted to regular employees.  Dan Welman, the local president put the Union’s position into writing in a letter to Mr. Charles Hamilton, City Manager dated October 27, 2003:

As discussed at our meeting on Oct 22, 2003 CUPE 1050 is very interested in performing this work in house.  We believe that we are the most affordable option for servicing this area and will provide superior service.

Currently the City equipment, including graders, loaders and sand trucks, sit idle in the works yard from 12 to 16 hours per day during the week and up to 24 hours per day on weekends.  We feel that by using current equipment at nighttime and on weekends, we could easily look after all areas within the expansion boundaries.

We are prepared to make changes in our hours of work provisions, in our collective agreement to accommodate this new work.  These new hours of work will make it possible for the City to take in this work and at the same time save a fair amount of money on overtime costs currently paid out for things such as snow removal beyond the regular 8 hour shift, sanding at night and on weekends, watering of flowers on weekends in the summer, and possibly even on daytime standby payments for weekend days and winter evenings.  We see this opportunity as a win win situation for the Union and the City.

In order to get these hours of work amendments passed by our Union membership, the Union would be looking to turn 3 seasonal full time positions into 3 regular full time jobs.  As well the Union will want a posting of all afternoon and weekend shift positions, and if by chance an existing full time worker bid to these shifts, we would want their current position backfilled.

These 3 positions will fill the needs expressed by Management at the Oct. 22, 2003 meeting including 2 workers for afternoon shifts during the winter months and a year round utility worker who would work weekends as part of their regular work schedule.  Upon agreement of these terms by management and council, the Union Executive will present these terms to our membership for final approval.

The Director of Public Works and Engineering provided a report to City Council on November 3, 2003, which recommended acceptance of the Argo contract “to provide road maintenance services in the south Quesnel area for a one year period for the sum of $175,183.00, Goods and Services Tax included”.  The Director’s report canvassed the other options and noted, with respect to providing the service with City employees:

Taking into account that the City would have better control over maintenance standards, level of service and flexibility in providing the service.  I would not hesitate to recommend that City forces do the work with Model No. 3, even though the cost is slightly higher, but concession from the Union would be needed to accomplish this.

Having these cost figures in hand, the City met with the local Union to discuss the takeover of the road maintenance in South Quesnel and Letter of Understanding No. 8…

In order for the City to do the maintenance work in the South Quesnel area and be cost effective, the City needed to have the Union agree to allow for a 2 person afternoon shift (4:00 pm to 12:30 am) and a Wednesday to Sunday shift to cover weekend work.  The shifts would be for 5 months from November 1 to March 31.  These positions would be filled by the existing 39 man winter work force through realignment.  The City also asked that the City be allowed the use of contract equipment with operators (1 grader and 1 sand truck) to assist in snow clearing and sanding in the area.  This equipment would be hired on a standby basis with a guaranteed amount of hours per month.  This equipment would only work when all existing City equipment was in use.  This method would save the cost of leasing a sand truck and grader and supplying the operator.  The Union would not agree to this arrangement…

The Union could agree with the shifts that would be implemented but stated that these must be filled with seasonal employees.  The Union also did not agree with the option of the use of contract equipment and operators but wanted the City to either lease or purchase equipment that would be operated by Union employees…

Without the changes to our Union Collective Agreement, the cost to do the work is not practical and therefore, a recommendation is put forth to contract out the South Quesnel road maintenance to a private contractor.

City Council accepted the recommendation and the Employer entered into a contract with Argo dated November 27, 2003 at $131,506.72 for approximately 10 months of work.  The Union filed the present grievance on November 4, 2003.

In addition to Letter of Understanding No. 8, the following provisions of the Collective Agreement are relevant to the dispute:

ARTICLE 25 – JOB SECURITY

25.01Job Security

The City has the right, subject to the other provisions of this Agreement, to decide how and by whom any work is to be performed.  However, in the exercise of this right, the City will not contract work out that results directly in the layoff of any employee from the bargaining unit.

LETTER OF UNDERSTANDING No. 6

BETWEEN

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1050

AND

CITY OF QUESNEL

Re:Contracting Out, Public – Private Partnerships

The parties agree with the principle that wherever possible and practical, work and services currently being performed by bargaining unit employees shall continue to be performed by bargaining unit employees, and that where the relative cost of providing such service is demonstrated to be the same or less than an outside contractor, such work required shall be done by bargaining unit personnel.

The parties agree to the following guidelines in the contracting out of services:

(1)No employee shall be laid off from employment as a result of work being contracted out by the City of Quesnel.

(2)It is understood that contracting out can take place to provide services to the community where the Employer has utilized City-owned equipment and operators to the fullest extent possible.  Private equipment will not be hired when the regular employees (including employees on layoff) and the City equipment are available to perform the work required by the Employer.

(3)“Definition of Available”: If an employee is offered the work, and accepts, whether it is considered as regular time, or overtime they shall be deemed to be considered “available” for the purposes of this Letter of Understanding.

The parties held subsequent discussions about the work in question in early 2004.  Specifically, the Employer formally requested that the Union provide its position on the matter by way of letter dated February 13, 2004.  The Union did so in a “Without Prejudice” proposal dated “Feb. 2004”.  This proposal states, in part:

The Union believes that we have put forward proposals, that would allow us to do the work at a fair price, comparable or cheaper than using a contractor.

We have agreed that the Union workers can perform the summer maintenance services for exactly the same amount as the contractor.

The Union would also like to note that the City charges an equipment reserve charge against every piece of equipment used at the rate of $20 per hour.  As this money is actually put aside to invest in future City equipment purchases, we feel it is unfair to bill this amount against our bids without understanding that this money is actually remaining in City bank accounts.

The Union put forward three proposals, as follows:

Union Proposal #1

All winter work required on afternoon and weekend shifts be performed (sic) by CASUALS ON CALL.  These jobs would be posted, with the understanding that workers will be required to work when called.  All work will be preformed (sic) using equipment the City already owns…

Contract equipment could be used alongside the City equipment as long as all City Equipment and Employees are working, following the same rules that are used in the current Downtown snow removal.

Union Proposal #2

That the City post one fulltime afternoon shift for the winter season, which will turn one current seasonal full time position to a regular full time position…This shift would run 5 days a week, with the days and times during the winter shift being decided on prior to posting of the position by the City.  If a 2nd afternoon shift worker is required, it could be posted as an on call position, allowing it only to be filled when needed.  The weekend position asked for by the City could also be posted as a part time or casual on call position…

Union Proposal #3

Instead of hiring a 2nd contract grader, and a contract sand truck at a minimum cost of $32,000 per year, the City invest this money on a third dump truck equipped for sanding and plowing…

The Union’s proposal concluded as follows:

We believe that these proposals show that the Union is willing to allow flexible shifts for winter snow removal and the Union would prefer to reach a negotiated settlement to the Southills grievance, rather than an arbitrated agreement.

The Employer considered this proposal in comparison to other alternatives and responded to the Union by letter dated May 10, 2004, which was revised on May 17, 2004.  Essentially, the Employer did not feel that the Union’s proposals met its operational requirements.  The Union made a further, more comprehensive proposal that encompassed other outstanding issues between the parties by email dated May 6, 2004.  The key elements of this proposal are:

1.A utility person (Bob Leclerc) for a 10-hour weekend shift (Friday to Monday) all year, in the summer at Public Works and in the winter at the airport.

2.Gardeners changing to a 4-day, 10-hour work shift, with one gardener working on Saturday and one gardener working on Sunday during the summer months.

3.Voluntary reduction to a 4-day workweek in City Hall for a one year period

4.Defining full-time for janitorial services at 35 hours per week at all locations.

In return for these changes, the Union sought the contracting in of the South Hills work, including at least one seasonal job becoming a full-time job; having the clerical job at the fire hall returned to full time from a .8 position; and the same with respect to the Bylaw enforcement position.

The matter of the South Hills contract remained outstanding and on June 18, 2004, the Union advised the Employer as follows:

Please be advised that CUPE 1050 will grieve the awarding of any of the remaining Argo Road Maintenance contract to any new contractor.  It is our view that we are competitive with pricing in the range of the contract and the work should be kept in house pending the forthcoming arbitration hearing.

Mr. Grant Erickson, former Operations Manager for Argo, provided evidence regarding his knowledge of the South Hills maintenance contract and requirements.  Mr. Erickson gave evidence that the contractor operated two, 7½ hour shifts per day and was responsible for South Hills and some other areas in Quesnel.  It is his evidence that Argo had 16 regular employees and, perhaps, seven casuals on call.

He stated that generally, in cases of a small snowfall, Argo would use one plough truck, ploughing and sanding simultaneously.  This would involve one, 8 hour shift for a small snowfall.  In a larger snowfall, the South Hills area would require a grader and would take about 12 to 16 hours.  He said that in some cases they would do driveways and that would require two pieces of equipment.  In between snowfalls, Mr. Erickson said they would sand once or twice a day.  He stated that Argo used employees on-call to augment its crews during heavy snowfalls.

He indicated that the time frame for response under Argo’s contract was one hour.  With respect to on-call employees, he stated that they had to maintain seniority and had to be available for work.  If casuals declined three times they would be removed from the list.

Finally, Mr. Erickson provided his opinion that, had Argo not obtained the South Hills contract from the City, it would have had to lay employees off, likely some of the casuals.

POSITIONS OF THE PARTIES

The Union takes the position that there is no dispute that the summer road maintenance work should have and could have been performed by bargaining unit employees using City equipment at no additional cost.

Counsel argues that the proposals put forward by the Union for the winter road maintenance were competitive with the contractor, but the Employer made excessive demands and was, in essence, trying to utilize Letter of Understanding No. 8 to get concessions from the Union.  Mr. Hurren also contends that the Employer was seeking to get concessions from the Union it could not achieve in previous collective bargaining.  It is the position of the Union that the intent of the letter is to bring work in-house and that any amendments to the Collective Agreement are confined to the new work being discussed.

The Union submits that Article 25.01, Letter of Understanding No. 6 and Letter of Understanding No. 8 together restrict contracting out and require that the Employer operate in good faith with respect to providing work opportunities for the bargaining unit employees.  Counsel submits that the Employer did not act in good faith by leaving it to late September to approach the Union for discussions about work beginning in November, 2003.

The Union also contends that the Employer did not fairly assess its proposals, costed them out too high and made misrepresentations of the Union position to City Council.  As a result, the bargaining unit employees did not receive the opportunity to do the work and the contract was awarded to Argo.

The Union submits that its Proposal #2 of February, 2004 meets the Employer’s needs and is consistent and cost competitive with the contractor for winter work.  This is supported by Mr. Erickson’s uncontested evidence, in the submission of Mr. Hurren.  The Union rejects the notion that calling in casual employees on afternoons and weekends as needed poses a safety risk and states that there is equipment sitting idle and an existing truck could be equipped to do additional snow removal at minimal cost.

The Union says the Employer’s demand for three operators plus casuals to do the South Hills road maintenance work is excessive and well beyond its operational needs.  The process is not intended to allow the Employer to get what it couldn’t get out of the Union in collective bargaining, in the submission of Counsel.

The Union seeks that all future road maintenance work in the South Hills area be done in-house and that the Employer pay the Union $10,000.00 in damages for work that its members did not perform.

The Employer takes the position that it has complied with the Collective Agreement in respect to the South Hills contract.  The Employer argues that Article 25.01 does not apply because no bargaining unit employees have been laid-off or remained on lay off as a result of the contracting of that work.  Counsel for the Employer also submits that Letter of Understanding No. 6 is not applicable because the work in question has never been performed by bargaining unit employees.

Alternately, should Letter of Understanding No. 6 be found to apply, Ms. MacEachern argues that the South Hills contracting out is in compliance with its terms.  First, Counsel contends that the relative cost of providing the services with bargaining unit employees is higher than with the contractor.  Second, no regular employee was laid off or remained on the recall list as a result of the South Hills contract with Argo.  Counsel notes that “regular employees” are defined in the Collective Agreement and do not include “seasonal employees”.

The Employer agrees that Letter of Understanding No. 8 is applicable to the case at hand and submits that it has complied with this Letter.  Counsel argues that the letter is clearly applicable and intended to cover boundary expansions, that either party can activate discussions, and provides some guidance to the substance of the discussions.  However, she contends that there is no guarantee that bargaining unit employees have the right to perform work created by a boundary expansion.

The Employer asserts that LOU No. 8 contemplates the need for a “rotational shift pattern”, including evenings and weekends, and involves amendments to the Collective Agreement.  Counsel submits that in October, 2003, prior to the City Council meeting, the Union was not prepared to move from its initial position that included the creation of three new regular positions and the use of City equipment only.  The Employer’s position is that the Union’s position was not cost effective and far more expensive than contracting out the work.

The Employer submits that it acted in good faith and would have accepted a Union offer that was more costly than the contractor had the Union been willing to change the hours of work for current City employees.  The Employer contends that no new employees are required and the City could perform the South Hills maintenance work with its existing crews.  Employees on an afternoon shift will provide savings on overtime for heavy snowfall events and a faster response time than having to call employees in, in the submission of the Employer.  Further, the Employer argues that the Union’s proposals to use casual employees on call-in are not acceptable for safety reasons, stating that casuals may not be available and there could be a slow response.

The Employer asserts that the Union’s proposals for winter maintenance appear to be cost competitive, but have not included employees and equipment that are needed to provide services safely and properly.  Once these costs are taken into account, as the Employer did, the cost of the Union’s proposal is much higher than contracting out the work.  The Employer states that the cost of purchasing additional equipment is outside the City’s budget and therefore during heavy snowfalls the use of additional contract equipment makes the Union’s proposal cost prohibitive.

Finally, the Employer notes that it made the decision to contract to Argo in November, 2003 and at that time it only had the Union’s October proposal, which did not raise the issue of splitting the winter and summer maintenance and suggested restrictions such as only utilizing City-owned equipment.  Counsel argues that the October proposal from the Union was clearly not cost competitive.  She states the later proposals are not relevant to whether the Employer had good faith discussions with the Union under LOU No. 8.

In conclusion, Counsel submits that the Union is not required to accept or agree to any changes in the Collective Agreement by virtue of Letter of Understanding No. 8.  Similarly, however, Ms. MacEachern notes that the Union has no proprietary right to the work that results from boundary expansions.  The only obligation on the Employer, in its submission, is that it sit down and discuss the matter with the Union in good faith, which it did.  The Employer rejects the Union’s claim for damages citing the fact that the entire crew was working and there have been no layoffs as a result of the awarding of the Argo contract.

In reply to the Employer’s position, the Union submits that Letter of Understanding No. 8 only applies to the additional services that are to be performed and it goes “hand-in-hand” with Letter of Understanding No. 6.  The Union further asserts that the Employer has simply rejected all of its proposals trying to hold the Union up for ransom unless they achieved the hours of work the City wanted.  For that reason, the Union reiterates its call for damages in this matter.

DECISION

This is a complicated matter, which is even more difficult given what seems to have been ongoing misunderstandings on both sides with respect to the other party’s position.

At the outset, it is important to consider the contracting out and job security provisions of the Collective Agreement as a whole.  First, the various categories of bargaining unit employees are laid out in Article 14 as follows:

14.03Definition of Employees

(a)Regular Full-Time Employee

Regular full-time employee shall be defined as a person who satisfactorily completes the probationary period with the City and who is employed on a regular full-time basis.  Regular full-time employees shall enjoy all provisions of the Collective Agreement, with their seniority date being recognized as the date of hire.

(b)Regular Part-Time Employees

Regular part-time employee shall be defined as a person who satisfactorily completes the probationary period with the City and who is employed on a regular basis less than thirty-five (35) hours per week for employees at City Hall and forty (40) hours per week for all other employees of the City.

Regular part-time employees shall enjoy all provisions of the Collective Agreement, with seniority date being recognized at the date of hire.

Regular part-time employees working less than twenty-six (26) hours per week shall accumulate seniority on an hourly basis.

Regular part-time employees working less than twenty-six (26) hours per week shall receive eighty-five cent ($.85) per hour in lieu of health and welfare benefits.

(c)Seasonal Employees

Seasonal employee shall be defined as a person who satisfactorily completes the probationary period with the City and who is employed on a seasonal basis in the summer or winter months.  Seasonal employees can be working on a regular full-time or regular part-time basis.  Seasonal employees shall enjoy all provisions of the Collective Agreement, with the seniority date being recognized as the date of hire.  Seasonal employees shall be paid out their vacation entitlement as per Article 21.03.

(d)Casual Employees

Casual employee shall be defined as a person who is employed on a day to day basis, or on call.  Casual employees shall be hired as temporarily replacement necessitated by illness, injury, leave of absence, vacation, or temporary filling of a vacancy.

In all cases, duration of casual employment shall not exceed sixty (60) continuous working days, unless the period is extended by mutual agreement.

Casual employees shall accumulate seniority on an hourly basis.

Casual employees shall receive eighty-five cents ($.85) per hour in lieu of all benefits, and shall receive compensation for benefits (vacation, statutory pay) as per the applicable Employment Standards Act.

(e)Probationary Employees

Regular employees shall be on a probationary period of ninety (90) calendar days from the date of hiring.  The probationary period may be extended by mutual agreement.

Regular employees working less than twenty-six (26) hours per week and casual employees shall be on probation for the first three hundred and sixty (360) hours of work, or until six (6) months expire from the date of hire, whichever comes first.  In no case shall the probationary period be less than three (3) months.

During the probationary period, the employee shall be entitled to all rights and benefits of this Agreement except Superannuation and as provided in Article 26.03.  After completion of the probationary period, seniority shall be effective from the original date of employment.  This shall not apply to employees on special projects agreed to by the Union.

Article 25.01 permits the Employer to assign and distribute bargaining unit work and prohibits the contracting out of work that “results directly in the layoff of any employee from the bargaining unit.”

Letter of Understanding No. 6 reiterates that contracting out shall not result in the laying off of bargaining unit employees and further defines that contracting out “can take place to provide services to the community where the Employer has utilized City-owned equipment and operators to the fullest extent possible” and that equipment “will not be hired when the regular employees (including employees on layoff) and the City equipment are available to perform the work required by the Employer”.  The Letter goes further, stating in its preamble that the purpose is to protect bargaining unit work and that where the “relative cost” of providing services is “the same or less” the work will be done with bargaining unit employees.

Letter of Understanding No. 8 deals with boundary expansion and/or new services and commits the parties to “a joint partnership…to discuss and amend the collective agreement (to be initiated by either party)”. The principles of the discussion are “to maximize operational flexibility so that any additional services which are being considered by the City, could be implemented in the most cost effective manner while maintaining the job security concerns of the Union”.

The case at hand falls clearly under the provisions of Letter of Understanding No. 8.  While Article 25.01 and Letter of Understanding No. 6 are useful in understanding the overall bargain between the parties on the issue of job security and contracting out, ultimately they are not applicable to the specifics of this dispute.

The Union has alleged that, by its actions in this process, the Employer has engaged LOU No. 8 in bad faith.  I do not agree.  It is unfortunate that the Employer did not come to the realization that it faced a decision about how to go about performing road maintenance in the South Hills area prior to September 26, 2003; however, there is no evidence that this delay was intentional or in bad faith.  Similarly, I do not believe that the Employer’s rejection of the various Union offers is a demonstration of bad faith per se.

I do note, however, that the presentation to City Council on this issue in November, 2003 was not a fair portrayal of the Union’s position.  Clearly, the Union has indicated a willingness to obtain the South Hills work for its members and, in doing so, is prepared to make concessions with respect to hours of work and scheduling.  This was stated by Union President Weiman in his letter to the City Manager dated October 27, 2003.  Given more time for meaningful discussions to develop between the parties, the Union position, as expressed in later proposals, could have been more accurately and more clearly presented to City Council.

The question is whether or not these proposals are sufficient to bring the bargaining unit employees within the parameters of “cost effective” delivery.  I should also note that there are additional benefits, accepted by the Employer, in having City employees perform the work, including “better control over maintenance standards, level of service and flexibility in providing the service”.

The crux of the dispute between the parties is the extent to which hours of work must be altered.  Put another way, how many employees will be placed on non-standard schedules and whom will those employees be?

The Employer says that it needs a minimum of three employees (two on afternoons and one on a weekend shift) to perform the additional maintenance efficiently and cost-effectively.  The Union asserts that only one employee on an afternoon shift is required and any additional service can be provided through the call-in of casual employees.  The Union also states that the changes need not be broader than the South Hills work.  The Employer disagrees.

From the evidence, there appears to be no dispute that bargaining unit employees can perform the additional summer road maintenance in a cost effective manner.  The issue centers on winter road maintenance and, in my view, snow removal, and sanding in the South Hills area.  The cost effectiveness and shift scheduling for the summer maintenance and the existing winter and summer maintenance performed by the City are not in dispute.

The evidence of Mr. Erickson is that, with the exception of heavy snowfalls, the snow removal and sanding in the South Hills area can be performed by one operator.  In the case of a heavy snowfall, a grader is also employed.  I accept this evidence and, in my view, the Union has proposed such a shift arrangement with an afternoon shift during the weekdays (Monday to Friday) and a year-round utility weekend shift.  The afternoon shift would only be required during the “winter” months (November 1–March 31), with additional work being performed by casuals on call-in and, in circumstances consistent with LOU No. 6, by contractors.

The Employer has expressed concern about the use of casual employees, but I do not accept that relying on casual employees on call, per se, is either unsafe or will result in unacceptable delays.  The evidence of Mr. Erickson is that Argo utilized employees on call to augment its regular crews and was able to meet the terms of its contract with the province for winter maintenance in the South Hills area.

In sum, it is my recommendation that the parties implement a winter afternoon shift and a year-round utility weekend shift to accommodate the performance of the additional road maintenance in the South Hills area.

The Union seeks to restrict which employees will be assigned to these shifts.  I understand this concern; however, it is within the realm of management rights, as stated in Article 25.01, “to decide how and by whom any work is to be performed”.  In other words, these positions should be posted and filled by the Employer as per the regular provisions and procedures employed under the parties’ Collective Agreement.  The parties should; however, be cognizant that one of the purposes of LOU No. 8 is so secure job security for Union members and, where it makes operational sense, the opportunity should be taken to create “regular employees”.

I will retain jurisdiction of this matter to aid the parties should there be any dispute as to the application or interpretation of these recommendations.

It is so recommended.

Dated at the City of Vancouver in the Province of British Columbia this 16th day of September, 2004.

Vincent L. Ready

_____________________________

Vincent L. Ready