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CUPW 2011
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REGULAR ARBITRATION
IN THE MATTER OF AN ARBITRATON
BETWEEN
CANADA POST CORPORATION
(The Employer)
AND
CANADIAN UNION OF POSTAL WORKERS
(The Union)
AND IN THE MATTER OF GRIEVANCE 602‑03‑00438 ‑ Union ‑ Appendix "S"
Arbitrator: K. A. Hinnegan
Appearances: For the Employer - Lance Waine and others For the Union - Mike Duquette and Learie Charles
Hearing held at Scarborough, Ontario, on February 22, 2005 2
INTERIM AWARD This grievance by the Union, dated November 30, 2004, alleges that the Employer was in violation of Appendix "S" and any related articles of the collective agreement "by not contracting in all UEC work by Nov. 1, 2004". At the York Distribution Centre (YDC), the Urban Expedited Contractor (UEC) was Maritime-Ontario (MO). By agreement of the parties, the issue for my determination in this grievance is confined to the contracting out of regular parcel delivery to MO in November and December, 2004. The new Parcel Delivery Model (the Model) in Appendix "S" was implemented in stages at the YDC, and, by January 4, 2005, all of the UEC parcel delivery work was contracted in. Regular parcel delivery was essentially contracted in in early October of 2004; expedited was added in late October; and Xpresspost on January 4, 2005. The complaint of the Union here is that a trailer-load of parcels per day was contracted out again by the Employer during November and December of 2004 without consultation with the Union. The issue, therefore, is whether the Employer was in violation of Appendix "S" or any other provision of the collective agreement in so doing; and, if so, whether any monetary damages to any employee resulted therefrom. Upon a review of all of the documentation provided pertaining to the implementation of the new parcel delivery plan and reading the terms of Appendix "S" as a whole and not in isolation, it is clear that the implementation of the new Model was, firstly, a process begun in early fall, 2004, following several national and local committee meetings, and completed on January 4, 2005, with the contracting in of the final product, being Xpresspost. Secondly, it was clearly a major 3 and complex project involving inter-dependencies, such as structuring, sequencing and software development. In November and December, volumes were greater than the staff at YDC could handle, resulting in delivery failures daily, and one of the methods utilized by the Employer to address that problem was redirecting a trailer-load of parcels per day back to MO for delivery. As noted, the Union was not consulted in that regard and, according to Mr. Duquette, the Union was first made aware of the contracting out of that work to MO only on December 2, 2004, following a meeting of the local working committee. In that the grievance had already been filed on November 30, 2004, before the Union was made aware of this situation, it must be assumed that the issue for determination here of the contracting out of regular parcel delivery to MO in November and December, 2004, was a new issue that arose following the filing of the grievance. The Union expressly reserved the right to raise new issues in the "Corrective Action Requested" section of the grievance. While the facts in this case are, generally, not in dispute, the extent and complexities of the new Parcel Delivery Model, taken with the new language of Appendix "S" and the lack of specifics here, make this a most difficult issue to resolve. Upon a review of the terms of Appendix "S" in its entirety, I have concluded that the issue here may turn, at least in part, on the meaning to be given to the term, "the implementation" of the Model. As noted, the implementation of the new parcel delivery plan was a "staged" or "phased in" process occurring during the fall of 2004. Actual implementation of the plan commenced in early October of 2004 and was 4 completed on January 4, 2005. The ordinary meaning or dictionary definition of "implement" is to complete, accomplish, carry out (a plan). Accordingly, it must follow that, being done in stages, the Model at the YDC was not finally implemented until January 4, 2005. That is consistent with the language of Appendix "S", which expressly refers in Section 6 to a "Completion Date" for the Parcel Delivery Model Implementation Plan, and, further, expressly anticipates possible "unforeseen circumstances and reasonable delays" occurring "during implementation", which, again, indicates a process taking place over some period of time. Section 1.3 of Appendix "S" states that, at the same time as the Model is implemented in an area, the Employer will contract in all UEC work. At the YDC, the completion date of the implementation plan was January 4, 2005, by which date all UEC work was to be contracted in according to Appendix "S". January 4, 2005, was a couple of weeks beyond the fall of 2004, ending on December 20, 2004, but section 6.2 anticipates that possibility with such extensions being subject to consultation between the parties and the steering committee. However, only extensions beyond June 30, 2007 require agreement between the parties. In any event, the issue for determination here is not the extension of the completion of implementation to January 4, 2005. Rather, as noted, the issue is the contracting back out of product to MO during November and December of 2004. Section 6.3 requires the Employer to advise the Union of any changes to the implementation plan and to hold meaningful consultation on the plan through the Steering Committee. The Employer conceded its failure in that regard, but submitted that that was an oversight and not intentional. The Employer further submitted that 5 there is no provision in the collective agreement providing monetary damages for a failure to consult on a particular matter. After careful consideration of all of the information provided, I have concluded that it must be the Transition Provisions of section 8 of Appendix "S" which is controlling in the circumstances here. That seems logical, in my view, when one considers the purpose of transition provisions provided with respect to any new plan or model to be implemented in a workplace. In section 8.1, the parties expressly "acknowledge that a transition period will be required for the implementation of the Model". In other words, implementation of the Model at a particular site will take place over a period of time. After noting that implementation of the Model for a particular area will take place over a period of time, the parties then expressly agreed that "until the Model has been implemented in a site identified in Part VI, the existing MSC model and the associated MSCWSS manual will continue to apply, unless otherwise agreed to by the Steering Committee." As noted, according to the language of Appendix "S" as a whole, the Model is not considered to be implemented until implementation of the plan at a particular site is completed by the contracting in of all UEC parcel delivery work. In this case, that was January 4, 2005. Accordingly, until that date, the existing MSC model and the associated MSCWSS manual continued to apply. According to section 5.2 of Appendix "S", that is the November 2002 version of the Manual, along with the applicable Manpower Committee Arrangements. That transition provision was obviously included for a purpose, which was to maintain in place the existing MSC model until the new Model was implemented, meaning 6 completed, at a site. The purpose of transition provisions in a new plan such as this is to cover the transition period during which the new Model is being implemented. Once the Model is fully implemented at a site, the various other provisions of Appendix "S" would then apply. Again, a transition period for implementation of the Model was anticipated and transition provisions were provided, including continuing the pre-existing MSC model until implementation of the new Model. Otherwise, that particular transition provision would have no apparent purpose or meaning. In section 8.7 of the transition provisions, the parties also set out the order of priority for assigning additional parcel delivery hours when a delivery loop is over capacity in terms of parcels during the transition period. On the facts, that would have applied during November and December, 2004. The evidence was that, during those months, generally, a trailer a day of unspecified product was re-directed from BMF to MO for delivery without consultation with, or notice to, the Union until December 2, 2004. That was conceded by the Employer. As noted earlier, my determination of the issue here is confined to regular parcel delivery only. The Union position is that the Employer was in violation of section 8.7 of Appendix "S", and, possibly, as well, Articles 17 and 39 of the collective agreement on those days in November and December, 2004, when a trailer a day of parcels was contracted out to MO. The position of the Employer is that section 8.7 of Appendix "S" was properly applied on each occasion of the contracting out of regular parcel delivery, the only product in issue here, to MO during those months, so that there was no 7 violation of the transition provisions of the appendix (or any other provision of the agreement), save and except the requirement to consult. It was submitted that no damages flow from that in any event. If the trailer loads contracted back out to MO during November and December 2004 were regular parcels and the section 8.7 order of priority for over-capacity was not applied by the Employer on those occasions, then it would have been in violation of that section of Appendix "S". On the other hand, if section 8.7 was applied by the Employer on each such occasion down to sub-section (i) ‑ "by any other means" ‑ the Employer would not have been in violation of the collective agreement. The difficulty for me here is that the evidence provided by the parties in support of their respective positions was either too general or too vague, or non-existent, with respect to the product re-directed to MO during November and December, 2004; and, as well, the options considered and applied by management at the YDC pursuant to section 8.7 before reaching sub-section (i) and contracting the product out to MO. Also, I am uncertain as to what effect, if any, my finding that the existing MSC model and manual continued in effect for the transition period during the fall of 2004 while the new Model was being implemented in stages, might have on their positions. In the result, I consider it appropriate to permit the parties to re-visit this matter in the context of this interim award at a future hearing to be arranged should either wish to do so. 8 I will remain seised of this matter in that event. Dated at Toronto, Ontario, the 29th day of March, 2005.
<Original Signed>
K. A. Hinnegan |
