United Food and Commercial Workers, Local 1400 v Affinity Credit Union (28 MARCH 2019)

United Food and Commercial Workers, Local 1400,

Union

– and –

Affinity Credit Union,

Employer

Before: Anne M. Wallace, Q.C., Chair, Catherine Knox, Union Nominee, Laura Sommervill, Employer Nominee

Representing the Union: Dawn McBride

Representing the Employer: John R. Beckman, QC, Charles Reid

Heard at Saskatoon, Saskatchewan: June 13 14 and 15, 2018

Award

1. Introduction
2. On March 16, 2017, the United Food and Commercial Workers Union, Local 1400 (“UFCW” or the “Union”) filed a Policy/Group grievance (the “Grievance”) against Affinity Credit Union (“Affinity” or the “Employer”) claiming:

Statement

The employer has non union staff working at the unionized locations, in violation of the CBA and/or any other applicable legislation.

Adjustment

Full redress up to and including general, aggravating and punitive damages.

2. The Union filed the Grievance pursuant to a Collective Bargaining Agreement (the “CBA”) between the Employer and the Union in force from April 1, 2016 to March 31, 2017. The parties agree this is the relevant CBA.
3. The parties were unable to resolve the Grievance and the Union referred the Grievance to arbitration. I was appointed to chair the arbitration board (the “Board”). The Union appointed Catherine Knox and the Employer appointed Laura Sommervill.
4. At the outset, the parties acknowledged the Board has been properly constituted and that we have jurisdiction to hear and determine the Grievance. The parties also agreed to the usual order for exclusion of witnesses.
5. Dawn McBride represented the Union. John R. Beckman, QC, and Charles Reid represented the Employer.
6. Union witnesses included:
7. Lucy Figueredo
8. Shanon Frain
9. Brenda Hartley
10. Megan Smith
11. Marjorie Huard
12. Jaclyn Brears
13. 7.Jolene Tesky
14. 8.Maryann Mahdavifar
15. Employer witnesses included:
16. Lisa Taylor
17. Lolita Humm

 

1. The Evidence
2. Union Evidence

Lucy Figueredo

8. Lucy Figueredo testified that:
9. She is the Secretary Treasurer of Local 1400 and has been the Union’s bargaining representative for the unionized employees of Affinity Credit Union.
10. The CBA applies to all branches of Affinity Credit Union in Saskatoon except the City Centre and St. Mary’s branches. It also applies to Affinity’s rural branches in Warman, Langham, Borden, Waldheim, Martensville and Dalmeny. There are around 115 to 120 employees in the unit. The CBA also contains a long list of positions excluded from the bargaining unit.
11. Article 13 of the CBA includes a defined system for scheduling of employees.  Article 13.08 provides for two groupings for scheduling, a Saskatoon group and a rural group. Branches schedule the employees to work in accordance with the rules in Article 13.
12. Figueredo doesn’t think there is a difference in scheduling between full-time and part-time employees. Full-time are guaranteed hours, but “the scheduling applies the same in concept”. Part-time employees have very specific arrangements for scheduling in each branch and then outside the branch if needed to fill in gaps in the schedule. Article 13.08 defines the groups. Article 13.09 is the scheduling process. 13.09 (a), (b) and (c) covers general scheduling. It talks about claiming of hours. If hours are available, employees are allowed to claim those hours within each branch and each grouping. It allows for claiming within your own position first and then within other positions where you previously qualified. Claiming can’t occur before commencement of the schedule. Article 13.09 (f) puts a system in place for employees to claim hours or to be getting hours even outside their own grouping. In concept, city employees could claim work in rural branches and rural could claim for hours in the city.
13. Article 13.09 (g) deals with hours outside declared availability. They go through a step process. Failing all that, they will schedule within the grouping in reverse seniority and there is a premium attached to taking on those hours. Article 13.09 (h) contains a procedure if the schedule has already been made or commenced and includes another process where they offer work which employees are entitled to refuse. Failing that, they revert back to the four step process in Article 13.09 (g). Article 13.10 talks about a part-time pool. There is a premium if someone has to go to another branch. Article 13.14 includes $5 per day for working Saturday.
14.   There are a number of places in the CBA where the Union has accommodated the idea there will be a temporary placement. The definitions section defines term employees. Article 8 deals with leave of absence. There is provision for student term employees. Article 10.04 (e) allows for temporary placement for up to six weeks with a possible extension if the Union agrees. Article 10.03 (b) contemplates a temporary position that doesn’t allow for completion of the probationary period. Short term temporary positions have been contemplated in the CBA and allowed. The Appendix has a full list of classifications as they were at the time.
15. There was an employee named Sarah Clark at Affinity’s Stonebridge Branch. Figueredo doesn’t remember the position Clark held. Affinity terminated Clark’s employment. When that happened, a number of non-union people from other branches came to work at the Union branch. Records show that these employees came from St. Mary’s or City Centre branches or from a listed exclusion.
16. Figueredo is not aware of the Employer coming to the Union to ask to fill a temporary position or to say they were going to bring in non-union employees.
17.   There is an elaborate and long list of exclusions in the scope clause. There is a structure that has certified and not certified branches within one grouping as defined in the CBA. Jobs employees do at the non-certified branches are the same as at the certified branches. The classifications are the same. The Union is very conscious of work that either gets distributed out or distributed in. The CBA is full of references that scheduling if needed will be in reverse order of seniority.
18.   The parties have contemplated how to appropriately schedule without taking work from unionized employees. Article 4.04 talks about limiting what out-of-scope people can do. It talks about not replacing a member of the Union, replacing people who are not getting hours, positions not getting filled. It is a priority for the Union especially since there is a crossover of duties that potentially could be done by out-of-scope. It is important work be done by in-scope employees. The CBA reinforces that. There is a detailed process for scheduling and assigning hours and the ability to create temporary positions for up to six weeks.
19. Affinity terminated Sarah Clark in November 2016. The CBA allows them to reverse order and schedule assigned hours and they didn’t do that. Two out-of-scope employees were paid double time for work in unionized branches. The Employer could have offered the overtime to Union people.
20.   Figueredo has never been to the Stonebridge Branch.
21. In cross-examination:
22. Figueredo acknowledged that during bargaining the Union had sought to strike out the words “that will either replace a member of the Union or cause such member not to be recalled in the event of layoff” from Article 4.04. Figueredo acknowledged the Union’s intent was to create a full “no contracting out” clause, but that the Employer did not accept the Union’s proposal. The Union has made the same proposal again in the current round of bargaining.
23. Figueredo agreed that Article 13.09 deals with scheduling of part-time employees, but said from her perspective, even though the title of the article refers to part-time employees, Article 13.09 (g) includes some positions that are full-time.
24. Figueredo agreed she has never been to the Stonebridge branch and has no personal knowledge of what happens there.
25. Figueredo acknowledged she is aware of a position called mobile mortgage specialist but that it is not in the Appendix to the CBA and she does not know whether the position is in scope of the unit.
26. Figueredo said she was not aware that Lisa Taylor is the manager of the Stonebridge branch.
27. Figueredo said she was not aware whether Union members were offered overtime for the Saturdays at Stonebridge and refused:

I wouldn’t know that. My question is whether all of them were offered it. …I know that members I talked to said they did not get offered overtime. I don’t know of individuals who were offered.

 

Shannon Frain

10. Shannon Frain testified:
11. Frain works at Affinity’s Contact Centre as an Inbound Team Lead. She was a Financial Service Rep (“FSR”) at City Centre when she worked at Stonebridge.
12. An FSR opens accounts for members, both personal and business, completes term deposits for members but not mutual funds. She also helps with estate accounts. She interviews and sets up accounts. She also follows up with business accounts if they need cheques or anything like that. She answers customer questions and teaches them on-line banking. With respect to lending, the FSR can do a line of credit up to $2,500 and take MasterCard applications.
13. City Centre did not have an Associate position. They have a Member Service Rep (“MSR”) position. Frain doesn’t know the difference between the two positions.

I assumed we were similar. Joel and Eileen [Associates at Stonebridge] would ask me for help whenever they had to do a GIC or open an account. Their role was our MSR teller role combined with the FSR.

1. The MSR is a teller who takes cheques and assists at the ATM. They show people how to use the app. They give cash. They refer customers to FSRs or lenders if they need anything like that.
2. Frain was in her fourth year with Affinity. She started at River Heights as a pool teller for different branches and then became permanent in City Centre branch. She took an FSR positon 18 months later and then just recently moved to the management as team lead at the contact centre. She has Union and non-union employees under her. The contact centre is unionized but smaller locations are not certified.
3.   Frain was sent to Stonebridge a couple times in February 2017, specifically February 21 and 28. She also worked March 12 for the full day and March 28 from 9:00 a.m. to 12:00 noon. Frain believes she was scheduled because employees received an email asking if they were willing to help out because Joel and Eileen needed some time off. Frain said she would help out and then she was scheduled for when she didn’t have appointments. Frain thinks the email came from Denise Robert who was manager at City Centre. She doesn’t recall who were all in the group that received the email. She is not sure if it included just City Centre employees or other branches as well.
4. At the time Frain was scheduled to work at City Centre from 9 to 5 on Monday, Tuesday, Wednesday and Friday and from 9 to 6 on Thursday. She was not scheduled for Saturdays or Sundays. When she worked at Stonebridge, she did not receive any additional pay and did not receive any premium. She just worked there instead of at City Centre. She did some of her City Centre work when she was at Stonebridge.
5. The Stonebridge branch has machines for cash called a TCR. They don’t have cash drawers. They have super-ATMs and they can give you 20s, 50s or 100s. If a member wants to make a deposit, you assist them if they don’t know how to use the TCR. If they want to deposit and not have a hold, you could take the hold off because the machine does an automatic hold. You help people with the banking app. If someone needs to open account, you help them. You could replace an ATM card. The position is a teller and FSR combined. If someone wanted to borrow money they would do the same as if in any branch. You would refer them to a lender and set up an appointment for whichever branch is most convenient for them. If they had a relationship with a lender already, you could look up the schedule and put them in. If they needed something right away, you could put out a call to the reps and they could go to the SKYPE room and deal with it. Frain has opened accounts that way too. She could make bank drafts. If someone wanted an RRSP, that would have be done by SKYPE. If someone wanted mutual funds, that needs an investment specialist, so you set it up for the best time and location for what the customer wants.
6.   When she worked at Stonebridge, Frain did both FSR and MSR work. The regular employees who worked at Stonebridge, Joel and Eileen, were called Associates. Frain thinks that when she worked at Stonebridge, they were short because Joel was going on vacation. She didn’t work with Joel. She worked with Eileen.
7.   When they were short-staffed in her branch, the FSRs took turns and worked as tellers. It wasn’t working extra hours. It was just occupying a different seat. Sometimes when they were short-staffed, Affinity brought in people from other branches. Frain recalls people from Broadway branch coming.
8. Frain was not aware of how scheduling of part-time employees is done.
9. Frain never worked at other Union branches except those shifts at Stonebridge. She didn’t need training for Stonebridge.
10. 11.In cross-examination, Frain said she thought the Stonebridge branch was open from 9 to 6 on Saturdays. She also confirmed that she has seen Union members working at non-union branches.

Brenda Hartley       

12. Brenda Hartley testified:
13. Hartley has been with Affinity as a lender since 1997. She works at St. Mary’s branch. The position has had different names including Relationship Banking Officer and Personal Banker.  In her position she is responsible for consumer loans, mortgages, and small commercial loans up to a little over $100,000.
14. Hartley went to work at Stonebridge branch as a “fill-in” because they were short-staffed:

With me being a lender, it would kind of be nice if I went over there in case someone happened to walk in. Sometimes the reps would SKYPE into a lender to see if someone was available. There is a room there to do that. …but I was doing other things over there. At lunch and so on, if staff were on lunch, I would help with members that came in.

1. Hartley worked at Stonebridge on January 30, 2017 from 10 to 6 [actually February 6, 2017]. She was there because they were short-staffed. Eileen was off work that day. She came to work there because an email came to say Stonebridge was short staff and would someone like to volunteer to go there. Hartley told her supervisor if they couldn’t find anybody, she would go there and fill in. She does not remember who sent the email but it was to a group of people.
2. Hartley normally works Monday to Friday 9 to 5 and Thursday til 6. When she worked at Stonebridge, she brought work with her and also did work at Stonebridge. When there was a member in the branch, she helped them out and didn’t do her own work.
3. Hartley worked at Stonebridge part of the day on February 24, 2017. She assumes it was because Eileen was off work. She started work at 2 p.m.. She also worked on March 10 when Eileen was on vacation and March 17 when Eileen left early. She did not receive any different pay or premiums.
4.   Hartley has never worked at any Union branches other than Stonebridge. While at Stonebridge, she helped members if they had questions about their accounts or wanted to make bill payments. Sometimes they wanted a manager’s trust cheque. She helped people with deposits and withdrawals on the machines or if they needed a new ATM card. She did some lending work while she was there.
5. When they were short-staffed at St. Mary’s branch, what happened depended on the department.

We don’t have a teller pool anymore and they weren’t allowed to come to our branch.

Lauren Loehndorf

13. Lauren Loehndorf testified that:
14. Loehndorf is a Personal Banker (Relationship Banking Officer) at Affinity’s City Centre Branch. She had been there for three years. Before that, she worked at every Union branch in Saskatoon until she landed at City Centre.
15. She has worked at Stonebridge Branch, but has not worked at any other Union branch while at City Centre. Loehndorf’s manager, Lee Spencer, asked her if she would be willing to work at Stonebridge. She doesn’t recall if the call was to everyone. It was by email. Stonebridge was short and needed assistance in helping members.

I was going over to do the work for the person I was replacing which was also in my job description – other work as assigned.

15. While she was at Stonebridge, Loehndorf did some or her own home branch work as well. She assisted members as needed. She helped them with the ATMs, answered questions they had and provided any assistance they needed. She did not receive any extra pay or overtime. She worked February 8, 2017 replacing Eileen who was on training. She also worked on February 10 and February 15. She didn’t work any times other than those on the schedule. [Records also show she also worked January 5 and 6.]

Megan Smith

14. Megan Smith testified:
15. As of June 11, 2016, Smith was a Mobile Mortgage Specialist which is an out-of-scope position with Affinity. Her office was downtown but she worked at all locations when she did that job.
16. Smith worked at the Stonebridge branch in 2016, replacing a staff shortage, but while she was at Stonebridge, she did her own job there. She was helping out, but she had a laptop and a phone and she just set up to do her work there.
17. Smith doesn’t remember how she got scheduled. She assumes she volunteered. She doesn’t recall how she was told of the need, but thinks it came from the branch managers. Smith worked December 22 and December 23, 2016 when Joel was on vacation and December 28 and 29 when Chris was on vacation. Others took the lead on the work, and Smith just kind of helped. She was there so they could have the doors open. Smith has worked at Affinity for ten years and has done seven different roles. She didn’t need any additional training to help out at Stonebridge. She couldn’t have done all the duties Joel was doing, but she was there to help. She had been trained as an MSR and FSR but there were different processes and things changed quickly.
18. Smith is employed by Affinity to help members with mortgages. Her office is at City Centre but she goes where it is most convenient for the member. She also works out of regular business hours. Smith never provided coverage for absent employees at any branches other than at Stonebridge.

Marjorie Huard

15. Marjorie Huard testified:
16. Huard is an Investment Specialist with Affinity. She specializes in investments “on book”, both registered and non-registered, as well as mutual funds.  She has been with Affinity for 35 years. She started as a file clerk, was a teller for seven years, then an FSR seven years, an RBO for over ten years and now an Investment Specialist since 1997. She worked at the Main branch but when it closed, she moved to the Westview branch. She works Monday to Friday 9 to 5 and a late shift every second Thursday.
17. When they are short-staffed at Westview, they bring people from other branches. Huardf is not sure exactly how it works because she works in an office.
18. Before 2017, they would send out an email in the morning or contact Human Resources and let them know they were short-staffed. If part-time staff were available they would get them or see if another branch could spare people. Huard was not aware of Affinity bringing in any non-union staff. Since 2017, Huard has noticed that they have non-union staff in their branch whether for MSR or FSR coverage. She has also seen an Investment Specialist, Irwin, who worked at City Centre do appointments in Fairhaven.
19. Huard has not been offered shifts at other branches. She did not receive any requests to cover shifts from January to March 2017. She did not receive any email messages asking if she was available to work shifts or overtime at another branch.          That is something she might have considered doing. She would not have gone to take her own work to another branch. If you go to work at another branch, there is a premium for that. Huard is qualified to do MRS work. She has never been offered to cover any MSR shifts.
20. Huard never received any email message about availability to work shifts at Stonebridge. She is not aware of what process was followed because she was not included in the process.
21.   There are part-time MSRs the Westview branch. Huard is not aware of the names of those persons because they have changed due to a lot of new job postings and she doesn’t have a chance to keep up with them. She thinks there are two part-time MSRs. There are no part-time FSRs at Westview.
22. In cross-examination:
23. Huard said she was qualified as an FSR, but that she has been in the Investment Specialist position for a very long time. She thinks it has been at least seven years since she made an ATM card and probably three years since she did a bank draft. She does not have any limits to be able to do loans at this time. The last time she opened a personal account was about a year ago and a business account five or six years ago. She has printed cheques, but has not done a cheque order.
24. Huard acknowledged that she was a Union representative on the bargaining committee that negotiated the CBA. She acknowledged there was a proposal to change Article 4.04, but couldn’t say whether it was a Union or Employer proposal. Upon being shown the proposal document showing it was a Union proposal, Huard still said she did not recall.
25. Huard acknowledged that she was aware that certified staff go to non-certified branches to work from time to time. She does not know whether any Westview staff have gone to a non-certified location to help out. She said she was not aware of who makes the decision as to who is going to be available because she has never gotten any emails. She agreed she doesn’t know how the process works.
26. 17.In re-examination, Huard said that when a certified employee goes to a non-certified branch, there is a premium. She recalls that at one time Shane from Broadway branch went to City Centre Branch and Huard talked to him and made sure he got his premium.

Jaclyn Brears

18. Jaclyn Brears testified:
19. Brears is a Personal Banker at the Broadway branch. She has been an MSR, FSR and an RBO which is the new Personal Banker. She has also been an Investment Specialist. She has worked as an MSR at most of the unionised city branches as well as Warman and Martensville. She was an FSR at Dalmeny and Westview and an RBO at Westview. She has never worked at Stonebridge.
20. In 2017 Brears was a full-time RBO at Westview working Monday to Friday. She did not receive any emails about shifts available at Stonebridge or the opportunity to work overtime on Saturday. Her manager never came to her to ask about her availability. There were part-time MSRs and FSRs at Westview at the time as well.
21. Brears has covered at other branches when they have been short-staffed. She has filled overtime shifts at the 8^th Street Branch a couple of times when she was an MSR. When she was at a rural branch, she offered to fill in at a city branch, but the shifts were filled by more senior people.
22. Brears is aware of what staff do at Stonebridge and she feels she could do their job because the Associate is a grade 4 position in the pay structure and Brears is a grade 5.  They did account openings which FSRs do which Brears previously did. Grade 5 is primarily Investment Specialists and RBOs. They had only grade 4s at Stonebridge. Associates help members with ATMs. They open accounts which FSRs did at grade 3. They did some small lending, like line of credit and small consumer loans and credit cards. The FSR would have only been able to do a small line and credit card, but not consumer lending. They would assist if the member needed Investment Specialist help, and would set them up with SKYPE with someone at another branch. Brears knows how to open accounts and do small lending.
23. In cross-examination:
24. Asked if she had personal knowledge of the process for asking for assistance from other branches, Brears said her understanding is that when the manager needs a shift filled, a big email goes to the managers and then the manager fills it. Brears said that in the past when she saw shifts requested, they sent it to all MSRs regardless of whether they were available. It would be overtime shifts they were asking for.
25. When counsel suggested it was the manager’s decision whether to allow staff to take shifts at a different branch, Brears said:

I guess if they want to allow the staff their rights. If it was on the employee’s day off, that would be the employee’s choice. I think under the CBA it would be branch requests for help rather than offering additional requests for staff.

1. When counsel suggested it is the manager’s decision as to whether they have excess capacity, Brears said:

If it is the employee’s regular shift – and if it is overtime then they have to offer it. If it was a regular scheduled shift, the manager would choose. That’s their branch requirements.

Jolene Tesky

20. Jolene Tesky testified:
21. Tesky has, since 2014, worked at the Martensville branch of Affinity as an MSR. She works full-time Tuesday to Saturday. She is a front-line staff doing member deposits and withdrawals, day to day banking, wires, answering calls, and making calls. She is essentially a teller.
22. Tesky worked one shift at Stonebridge branch in February of 2017. She worked ten to six. She greeted members, showed them how to use ILTs, dealt with emails and made calls she needed to make. It is different at Stonebridge because they don’t have cash. There are no wickets or cash drawers. They have ILTs. You assist people on how to use those. If they have a question you help. Staff have computers from which they can make bill payments, but there is no cash between the member and the staff.
23. With respect to filling shifts:

We get emails sent to us that show unfilled shifts for all branches. You can request to fill the unfilled shifts and then you get an email back stating if you were the person successful in getting one of those shifts. You have been scheduled at whichever branch at which ever time. I put my name in, but city staff get first dibs.

2017. Tesky does not recall whether she put in for any of the shifts at Stonebridge in February of 2017. She thinks she was available to work.

I don’t recall if I put in for these – not every time, just sometimes, after Christmas sometimes it’s nice to work an extra shift, but I don’t remember if I did or not.

1. The Employer has never ordered Tesky to work in reverse seniority.
2. 21.In cross-examination, Tesky could not recall the specific dates on which she responded to any request for help at another branch. If she said she was available and someone more senior wanted the shift, then she didn’t get the shift. When she worked in the City Centre branch, when she put her name in, she always got a shift. In Martensville there were two issues. The shifts in the city were first offered to city employees and then the most senior person got the call.

Maryum Mahdavifar

22. Maryum Mahdavifar testified:
23. Mahdavifar has worked as an FSR at the Fairhaven, Westview and 8th Street branches of Affinity. She had set days at each of Westview and Fairhaven branches and sometimes went back and forth. She worked five days, but was considered part-time because she was part-time at each branch. She never worked at any other branches when she was scheduled to work at Fairhaven and Westview.
24. She started working with Affinity in February 2016 and got a 36 hour guarantee in September 2016. One month she was scheduled for 36 hours, but quite a few months she wasn’t scheduled 36 hours. She ended up getting a cheque for the lost hours.
25. Mahdavifar recalls getting an email about work at Stonebridge for March 2017. She didn’t find any for January or February, but she found an email dated February 21, 2017 from Denise Robert:

There are several shifts available for the March schedule. Please note that for Stonebridge shifts preference will be given to a FSR or RBO however if none volunteer a MSR may be scheduled.

OT/DT will be offered on all shifts below:

[shifts are listed]

If you are already scheduled to work 5 days in a week you will not be able to work on your day of rest, unless double-time is offered. Please let me know if you are able to work any of the above shifts by the end of the day Thursday, February 23^rd.

Thank you for your consideration.

1. Stonebridge had Saturdays and one Monday on the list. Mahdavifar didn’t ask to work any of the Saturday shifts because Saturday is already a regular day of work for her. Mahdavifar responded that she could work Monday March 27 but that it would be overtime. Mahdavifar did not get the overtime shift. If she had been offered it, she would have worked that shift.
2. Denise Robert used to be at City Centre, but now she is Mahdavifar’s manager at Fairhaven. She had team lead at Fairhaven. Sarah Kudeba was   Mahdavifar’s manager at Westview.
3.   Since March and April of 2017, Mahdavifar has not seen any offers of shifts at Stonebridge. She just filled in once in February or March 2018 for someone when they were short by moving over to Stonebridge on a regular day of work.

I usually signed up if I didn’t have any other plans going on. I am assuming more senior people got the shifts.

23. In cross-examination:
24. Mahdavifar confirmed that the cheque she received was to compensate her for her 36 hour minimum and that during the time in question she was working five days a week. She was fully booked in terms of days, but just hadn’t been assigned the full 36 hours.
25. Mahdavifar acknowledged that the email from Denise Robert was sent to managers and assistant managers, not to all employees. Mahdavifar’s manager, Sarah Kudeba, then forwarded the email to Mahdavifar and another employee to see if they were interested.
26. Mahdavifar acknowledged that as of March 27, 2017, she was working five days a week and getting appropriate hours. She was already booked to work on all the other days that were listed.

1. Employer Evidence

Lisa Taylor

24. Lisa Taylor testified:
25. Taylor has been employed with Affinity for 19 years. She started in the MSR role and worked her way through FSR, RBO, teller manager, contact centre manager, and lending manager to her current role of Advice Centre Manager which is Branch Manager. At the time of the events in question, Taylor was managing Broadway, Aberdeen and Stonebridge branches. Aberdeen is not certified. The other two are.
26. Around the end of November, 2016, Sarah Clark ceased employment with Affinity. Clark had been at the Stonebridge branch and this left the branch short an Associate position because Clark was no longer there to cover shifts. Affinity created a posting to fill the position Clark had left with close date December 7, 2016. Eileen Dureault was the successful candidate and she started in the position on January 11, 2017.
27. When Stonebridge was short-staffed:

How I did the scheduling at Stonebridge for Associates was first go to Joel who is an Associate and ask – this is for December — and ask if he wanted to work any of his days of rest for double time. Once I knew what he would be willing to work and not willing, I knew I needed an employee comparable to an Associate position which is an RBO. Then I sent an email to all managers within Saskatoon and rural to see if they had availability to help me fill the unfilled shifts at Stonebridge. Once that came back, if I didn’t have coverage, I would go to an FSR and then an MSR. …From the perspective of other branches, when they send staff over to help, they have to look at their staffing complement at the time before they can share their staff. …

I have to back up a sec. Prior to me going to the other branches, I knew Megan Smith the Mobile Mortgage Specialist. She had volunteered to come out to branches, so I would ask her to come to Stonebridge prior to sending to branches, knowing Megan at Stonebridge didn’t affect other branch complements or their growth – their targets. During the last two weeks in December, the branches would not have availability to send extra staff as this is prime vacation time.

2017. Chris Hoffo was the successful applicant for an MSR position at River Heights branch. He was an MSR trainee at Stonebridge.  He was new to the organization and they placed him at Stonebridge. When Hoffo left, Affinity posted for a part-time Associate position at Stonebridge with closing date March 15, 2017. They didn’t receive any applicants for that position. As far as Taylor knows, no one from the Union applied for the position.
2018. Affinity’s schedules show that:
2019. During the first week of January 2017, Eileen had not started the position yet, so Taylor needed help for a second person at Stonebridge. Hoffo was working in Aberdeen on January 5 and 6, 2017. He was a certified Union member working at a non-union site. On January 10 and January 13, Hoffo also worked at Aberdeen.
2020. Cammy Charles is a certified employee who came to Stonebridge to help on January 31, February 3 and February 7.

                              iii.   On February 8, a non-certified employee Lauren came in to cover because Eileen was doing lender training. Megan Smith covered for Joel because he left at 1:45. Smith covered the afternoon. On February 14, Smith came to cover in the morning because Eileen’s shift started at noon. Taylor does not recall why Lauren was there on February 15^th because it looks from the schedule that Eileen and Joel were both there. On February 17, Smith came in the afternoon because Joel’s shift ended. On February 21 and 24, Smith and Hartley covered.

1.  On March 4, non-certified employee Paige covered for Joel. Certified employee Cammy covered for some of the shifts. Kristie, a certified employee, covered on March 1. Joel would work one month Tuesday to Saturday and Eileen Monday to Friday. Taylor would ask if they wanted to pick the Friday or Saturday for double time. She only went to the managers or to Megan if Joel and Eileen declined to work. Eileen did not want the shifts on March 4 or 11. Taylor was looking for an RBO to cover and if not, then an FSR and then an MSR. If two RBOs said they wanted the shift, then the most senior person got it.
2.   If she received an email asking if she had staff to spare, she would look at her schedule and see if she had the capacity to send someone. She assumes when she sent the message, the managers looked at their situations to see whether they had any extra staff to spare. If so, they will then ask staff if they would like to volunteer.

25. In cross-examination:

1. Taylor confirmed that the schedule the Employer had provided was the schedule made up for Stonebridge for them to know who was going to be working. If there was a change in the middle of the month due a staff that might have been scheduled to come and needed to be elsewhere, it could be swapped out. Taylor was not sure whether the schedule provided was a master schedule.
2. Taylor said for Stonebridge, Taylor would start scheduling about the middle of the month prior, so for January she started to do schedule around December 15. The December schedule would be done in November.
3. Taylor confirmed that she scheduled Megan Smith for days in December without consulting the managers. She just asked Smith if she would be able to work. Smith worked four shifts in December 2016 and a certified employee named Terrance worked four shifts.
4. Taylor confirmed that she made the April 2017 schedule in March 2017. By this point, Dureault had filled the full-time position but the part-time position had not yet been filled. Asked why in April there was no-one scheduled who was from the non-union side and what process she followed for April, Taylor said:

If you look in January, February, March, …I was asking others so often for help. I knew we had to look at a different way to schedule where there wouldn’t be so much impact on other branches. I spoke to Eileen and Joel and I would ask them if they wanted double time on the times they were off and we spoke about instead of them working a seven hour day, they will work the entire day, so there was not someone leaving at noon where I would ask for help. Both Eileen and Joel are working from 8:45 or 9 to 6 with the exception of two Fridays. Then I went to Megan to see if she was available because of her position and her ability to work at any branch. If Megan was not able to work, I would send an email to all managers with shifts I needed help with. In April, they sent me who could work and that is who I scheduled.

Those scheduled during April included:

1. Elena, an FSR or MSR at that time from either Broadway or River Heights;
2. Julie, an RBO at 8^th Street;
3. Winnie, an FSR at 8^th Street
4.   Kim, an RBO at 8^th Street;
5. Kristie, an MSR Broadway;
6. Julie, an RBO at 8^th Street;
7. Lee, an RBO at 8^th Street;
8. Jenissa, an FSR at River Heights.

1.   Taylor confirmed that she was prepared to offer overtime to workers at Stonebridge. For Stonebridge, Taylor would send an email to branch managers and put in the shifts she was looking to fill. She doesn’t recall whether the email referred to overtime or double time. Nobody got paid overtime other than the Associates who actually worked at Stonebridge. Taylor understood no other employee received overtime whether certified or not certified.
2. When Taylor sent the requests to managers, she would schedule whoever was sent back to her. The managers sent who was available to work and she put them in the schedule. She was not made aware of all the people who would want any of the shifts.
3. At the suggestion she was told to schedule out-of-scope employees, Taylor said:

When I would send the email to the branch managers asking for help on a day, they would reply with who they are able to send. That’s how I put them in the schedule. If an in-scope person would put in for double time, I would schedule an in scope person first if I was aware.

1.   At the suggestion that her email appears to call for double and overtime for RBOs and FSRs only, Taylor said:

This does state at Stonebridge preference will be given to RBOs and FSRs.

1.   Asked why she would not extend the overtime to all Union employees who could do the work, Taylor said:

The reason I would ask for an RBO is because RBOs can do all the current duties of an Associate. The FSR could not do all the duties of an Associate. An Investment Specialist could not do all the duties of an Associate, or the MSR. I know for a fact that FSRs cannot do consumer lending, MSR’s cannot do consumer lending and investment specialists cannot do consumer lending.

1. Asked if she expects managers to communicate with employees, Taylor said she would expect that managers if they had capacity to help would give the email to their employees.

My process was I emailed the branch managers and told them shifts I needed help with. I can’t speak on their behalf. I would send to staff and see if they are available on days they are not working. On days they are already scheduled at my branch, it would be my decision on whether I could help out another branch.

1.   Taylor confirmed that in this instance, she sent an email to all managers and she got no reply offering a Union person in the RBO position. The next process would be to go to the FSR if the manager said an FSR was available. If there was a Union and non-union person available, Taylor would pick the Union person.
2. Taylor said she does not know whether the branch managers sent her request on to all employees.
3. Taylor confirmed that the Saturday shifts at Stonebridge would have been double time or overtime depending on the employee and the Monday shift could be overtime or double time as well. The Tuesday to Friday shifts would never be double time or overtime unless someone was currently working a full shift somewhere else and then came over to Stonebridge for an hour or something.
4. Taylor confirmed she offered the shifts to Joel and Eileen and then sent the email to all managers saying she needed help.
5. Asked why she sent Hoffo to Aberdeen, Taylor said:

I honestly was looking after Aberdeen Stonebridge and Broadway. I knew in Aberdeen I would need help and he was a trainee MSR who was willing to go out there and it was an MSR position in Aberdeen he was filling.

1. Taylor confirmed that she then filled Hoffo’s position with an out-of-scope employee Lauren who was an RBO. Her call for coverage at Stonebridge was for an RBO.
2.  Taylor confirmed that she prepared the schedules and that there is no process for approval of the schedules before they are finalized.
3. On questions from the panel, Taylor confirmed that her process was to first offer the shifts to Eileen and Joel, then ask Megan Smith if she was available and then go to the branch managers. She did not expect the Branch managers to create overtime situations in their own branches. The branch manager would decide who could come and for what dates. Taylor sent the email to the branch managers for all branches including certified and non-certified. If both certified and non-certified could help Taylor for the same day, she chose the certified employee to do the coverage. The RBOs were not offered any overtime because they are full-time employees.

It is the double time shifts on Monday or Saturday if they want to work double time. If somebody comes back and there isn’t someone who can work, I don’t go and talk to all the other employees to see if they were offered double or overtime. I leave that to the manager. The RBO is the first person I ask because they can do all the duties of the Associate.

Lolita Humm

27. Lolita Humm testified:
28. She has been with Affinity since 1989. She started work as a teller. She worked in the Contact Centre and in 1996 moved to management as a Personnel Manager responsible for scheduling, recruitment, payroll, and benefits. Her role then evolved to labour relations lead. Humm was on the negotiating committee for the CBA. When the testified, the parties were in negotiations again with no new agreement yet.
29. During the last round of  bargaining, the Union proposed to amend Article 4.04 to remove some of the words so the clause just said the “Employer shall not permit any person excluded from the scope of Agreement to do work.” The Employer did not agree to this proposal.
30. Article 13.01 of the CBA sets out that the basic work week is 36 hours and talks about employees not working more than five days in a week, with two consecutive days of rest. Article 13.02 deals with rest periods and 13.03 deals with lunch breaks. Article 13.04 deals with fixed schedules and guarantee hours positions. Six day branches can have a rotation. They can waive the two consecutive days off. Part-time employees can work a maximum of two Saturday/Monday combinations. This is different from full-time. It talks about branches that have a fixed schedule that includes Saturdays.
31. Article 13.07 is scheduling. Regular hours are posted seven calendar days before the new schedule. There are at least four weeks in a schedule. There are five weeks in the schedule four times a year.
32. Article 13.08 deals with part-time groupings. There were two groupings, one for Saskatoon and one for rural. Article 13.09 is specific to part-time employees. It talks about how they declare their availability once a year. They can change it once during the year. What that means is that they can say how many days they are available to work – two days, three days, four days.  Based on availability, they are scheduled in a branch first by position in accordance with seniority.
33.   Article 13.09(d) deals with the situation where they haven’t met availability. This is the process used to fill part-time availability. The senior part-time employee can claim days from the more junior. There is a process there for that where there is excess of availability. When they don’t have availability met, if someone is available for five days and their days haven’t been met, they only have three days at their branch, they can pick up a shift at another branch, by seniority by position first. If their availability hasn’t been met, Affinity can also “mandatory you in and say you have to go and work.” That is under 13.09(g) and is done in reverse seniority order. If someone has to go to another branch, they get the $10, but they don’t get it if it is in the schedule.
34. Article 13.09(h) talks about branch requests for part-time employees after commencement of the schedule. Article 13.10 was negotiated so Affinity is able to force employees to move to a different location. They go to the part-time pool schedule for requests looking for MSRs or FSRs. Management determines whether the request will be filled. They contact all branches within the grouping to see if they can assist. Then if the branch is able to provide assistance they ask for volunteers and if no one volunteers they can force someone to go to another location. In this case, they receive $8.
35. Overtime is covered in Article 13.11. This is when an employee is not advised prior to leaving and is called back. They get paid three hours. It also deals with staying after regular hours. Double rate applies if the employee works on a day of rest. Employees can refuse overtime and double time.
36.   Humm received the Stonebridge schedules for December 2016 to April 2017 from the manager and added colouring to show when certified and non-certified employees worked. In December, the employee Terrence was scheduled to work at the Broadway branch but he was moved to Stonebridge for the days shown in the schedule. Most of the employees were already scheduled to work and were just moved to a different location for the days shown in the schedule. The exception was some days in March when Affinity paid some double time. These included March 11, March 18, March 25 and April 1. Employees shown in the schedule as Brenda, Lisa, Megan, Shannon and Lauren did not receive overtime or double time. Union members Chris and Joel, who were Stonebridge staff, were paid overtime for the times they worked overtime. Humm is not sure whether the employee Janissa was paid double time because if she was scheduled at her own location for the Saturday that she worked, she would not get double time.
37.   No member of the Union was replaced in the scheduling process. No member of the Union was not recalled

28. In cross-examination:

27. Humm agreed that Article 13.09(g) deals with situations where part-time employees have not had their availability met. In these circumstances, Affinity goes through steps where they don’t ask the managers about availability, they ask the part-time employees if they want to volunteer. If the staffing requirements not met, then managers can reverse order mandatory the employees to work. The article says the Employer must do the reverse order scheduling for all part-time employees who have under 36 hours.

They would mandatory in your part-time for the shifts that were required, on the part-time schedule yes.

1. When counsel suggested this is not what Taylor did at Stonebridge, Humm said that Taylor wasn’t dealing with a situation occurring after the schedule had commenced. She was dealing with scheduling in the first instance.

She followed the process for after the schedule is created. When she was creating the schedule, she doesn’t ask employees if they want to work the extra hours. She doesn’t reverse order seniority anybody. …

I don’t agree that that is not the proper process. This scheduling language talks about part-time employees. She testified she knew there wouldn’t be anyone available to help. She didn’t take steps.

1. With respect to the person who hadn’t received the full 36 hours per week, Humm said that this person had been booked for five days a week, but she just wasn’t getting her hours in the week. The employee wasn’t able to volunteer for available shifts because she was already working five days a week. She would not have been able to just to go Stonebridge for one hour because she was missing one hour. She was a guaranteed hour employee. Payroll noticed that she had not been paid for 36 hours because she wasn’t consistently getting 36 hours a week, so they corrected that and paid the employee for the hours.
2. Humm confirmed that she did not approve the Stonebridge schedule.
3. With respect to positions at Stonebridge, Humm confirmed that Joel is an Associate, Eileen is an Associate, Chris was an MSR trainee, and Sarah Clark was an Associate. The Associate position was created for Stonebridge given the “small footprint that we had there and staffing needs”. The Associate, unlike the FSR, can do small lines of credit.
4.   Humm re-confirmed that if Janissa didn’t receive overtime for the Saturday she worked it was because she was already scheduled to work a regular day on the Saturday at her own branch.
5. Humm confirmed she was the chief negotiator for Affinity in the last bargaining. She believes Article 4.04 has been in the CBA since it first came into existence. Affinity has never agreed to change the language of Article 4.04. Asked if there were discussions at the negotiating table about what Article 4.04 means, Humm said there was no discussion or agreement at the table about the Union’s request for a change to the article and there was no discussion about the interpretation of Article 4.04.
6. Asked if she knows how many fixed schedule and guaranteed hour positions there are in the union branches, Humm said she doesn’t do the scheduling, but she would guess maybe ten to fifteen, although she doesn’t know if that is right.

III.           Positions of Parties

29. The Union submits:
30. This is a “contracting in” case where Affinity has contracted in non-bargaining unit members to work alongside union members. The starting point for the analysis is the CBA and whether or not its terms expressly speak to the issue at hand.
31. The Employer’s scheduling of bargaining unit work violated the CBA in several respects:
32. It violated the scheduling provisions in Article 13.09;
33. It violated Article 4.04 by having out-of-scope employees doing bargaining unit work; and

                              iii.   The scheduling procedure the Employer used violates the integrity of the                                                  bargaining unit.

4. Article 4.04 is explicit that no out-of-scope employee is to do work to any extent that would replace a member of the Union. Here bargaining unit work was given to out-of-scope employees. They replaced workers that were off work and they replaced workers that would have been available to do the work or who would, by the terms of the CBA, have been scheduled to do the work in reverse order of seniority. Article 4.04 contemplates a violation for work to “any extent” that replaces Union members.
5. The evidence establishes that proper procedures were not followed and the Union employees from branches other than Stonebridge were denied the opportunity to volunteer for additional work; and if no volunteers, bargaining unit employees would have done the work by forced reverse order scheduling. There is also evidence to establish that unionized employees were not scheduled according to their full availability.
6. The Employer failed to adduce any evidence of past practice that out-of-scope employees ever did this bargaining unit work. The Employer’s evidence was to the contrary, that the out-of-scope employees who replaced workers at Stonebridge had never done such bargaining unit work at a unionized branch before the timeframe in question.  At least one part-time unionized employee, Maryum Mahdavifar, was denied employment because she was not scheduled for her full availability and was never approached to pick up hours available at Stonebridge.
7.   The words in Article 4.04 are restrictive of management. The parties used the word “replace” which means, “to use in substitution for” rather than “displace” which means “to remove; to physically move out”.
8. The Employer therefore acted improperly by assigning bargaining unit work to out-of-scope employees.
9. If the board finds an ambiguity or absence of explicitness in the CBA, then the board must ask whether the Employer’s assignment of bargaining unit work to out-of-scope employees impaired or undermined the integrity of the bargaining unit. This is a contextual analysis and the board should look to several guiding principles in making its decision:
10. A purposive approach to interpretation is preferred;
11. Does the individual perform bargaining unit work to such an extent as to bring them within the bargaining unit?

                              iii.   When bargaining unit work is available, it should generally be assigned to a                                              member of the bargaining unit;

1.                              The quantity and duties of work assigned are relevant including the frequency, volume and regularity of the performance of the work over a reasonable period of time;
2.                                 The Employer must assign the work in good faith, and neither arbitrarily nor discriminatorily.
3.   The board must look at the CBA language around seniority, job posting, movement within the branches and, in particular, the scheduling language which shows that the Employer has violated the terms of the CBA and has acted arbitrarily and in a way that seriously impacts the bargaining unit.
4.   The Employer is obligated to fill the available shifts at Stonebridge at the time of scheduling as per Article 13.09 of the CBA. The Employer is obligated to fill the part-time employees whose availability has not been met, if all part-time people are scheduled fully according to their availability and there is still staff requirements, the Employer is obligated to go to the employees in the order set out in Article 13.09(g) and offer these employees the opportunity to work these additional hours if they are not otherwise scheduled. These steps require the Employer to reach out to the otherwise committed employees (fixed schedule and guaranteed hour) and to the rural group. The Employer did not take any of these steps.
5. The Employer decided to unilaterally totally ignore the scheduling procedures. The Employer’s resort, in the first instance (as Lisa Taylor did in December 2016), or any instance, to using out-of-scope employees is not allowed. The out-of-scope employees are not part of the scheduling process in Article 13. The Employer cannot ignore the mandatory process and simply choose to fill with out-of-scope employees.
6.   An aggravating factor is that the Employer goes so far as to move out-of-scope employees who are scheduled and working full-time from their positions – a process that is allowed in the CBA (although discretionary on the part of the Employer) for the unionized employees (i.e., full-time unionized employees who testified that they would have been willing to go over and work at Stonebridge – Marjorie Huard and Jaclyn Brears). The Employer did not offer this to unionized employees, but offered it to non-unionized employees.
7. There are several clauses in the CBA that would have allowed the Employer to move full-time unionized employees who were already scheduled in other branches to Stonebridge. Article 10.01(c) reserves the right to the Employer to move employees when it is beneficial to operations. Article 10.04(a) speaks to when an employee is temporarily appointed to fill a position of one full day or more. Article 10.04(b) specifically speaks to the Employer’s ability to send unionized employees temporarily to the non-certified branches and the requirement to pay the employee a premium when they do. There is no language for the reverse situation of sending a non-union employee to a union site.
8. There are two periods when staffing requirements are set: one when the schedule is being done and the other after the schedule has commenced and staff shortages come up. Article 13.10 contains the process to deal with immediate staff needs after the schedule has commenced. It requires the Employer to look first to the part-time pool and then to contact the branches within the groupings to see if employees can assist. Article 13.10 speaks to “employee volunteers”, not just part-time employees and again speaks to mandatory scheduling in reverse order of seniority. This is the process Lisa Taylor followed when she created the Stonebridge schedule and it is the wrong process. The second process only applies after the schedule has been commenced and it is meant to address staff shortages that occur after employees are scheduled, for instance when an employee is ill. The filling of these staffing needs does go to the branch managers unlike the earlier process that requires the individual employees be asked. The branch manager decides whether they can spare an employee and if they can but there are no volunteers, then the Employer is entitled to force an employee to do the work. A premium is paid as a result.
9. The relevant provision of the CBA is expressly and sufficiently clear so as to indicate that the Employer acted in contravention of its meaning and/or spirit. In the alternative, the Employer’s assignment of bargaining unit work to out-of-scope employees impaired and undermined the integrity of the collective bargaining unit.
10. The Union seeks:
11. A declaration that the Employer acted improperly in assigning bargaining unit work to out-of-scope employees in the manner alleged;
12. A cease and desist order that prevents the Employer from continuing to assign bargaining unit work to out-of-scope employees in the manner alleged; and

                              iii.   Compensation to be paid to the Union forthwith in the amount of the dues to which the Union would have been entitled should the Employer not have acted improperly in the manner alleged.

30. In support of its arguments, the Union relies on the following authorities:
31. Brown, D.J.M. & Beatty, D.M. (Eds.)(2006), Canadian Labour Arbitration, 4^th ed. Toronto: Canada Law Book, 5:1400;
32. Drug City – Orangeville (Kent Drugs Ltd.) v. R.W.D.S.U., Local 414, 1984 CarswellOnt 2415, 15 L.A.C. (3d) 368;
33. Electric Reduction Co. of Canada Ltd. v. O.P.E.I.U., 1973 CarswellQue 244, 3 L.A.C. (2d) 87;
34. Essar Steel Algoma Inc. v. U.S.W., Local 2251, 2012 CarswellOnt 1902, [2012] O.L.A.A. No. 59, 109 C.L.A.S. 239, 216 L.A.C. (4th) 14;
35. U.S.W.A., Local 1817 v. Fittings Ltd., 1960 CarswellOnt 228, [1960] O.L.A.A. No. 3, 10 L.A.C. 294
36. FortisBC Ltd. and IBEW, Local 213, Re, 2013 CarswellBC 3443, [2013] B.C.W.L.D. 9578;
37. Grande Prairie General & Auxiliary Nursing Home District No. 14 v. U.N.A., Local 37, 1996 CarswellAlta 1170, 45 C.L.A.S. 48, 57 L.A.C. (4th) 173;
38. Irwin Toy Ltd. v. U.S.W.A., 1982 CarswellOnt 2526, [1982] O.L.A.A. No. 2, 6 L.A.C. (3d) 328;
39. Ivaco Rolling Mills v. U.S.W.A., Local 8794, 1997 CarswellOnt 5651, 49 C.L.A.S. 385, 67 L.A.C. (4th) 66;
40. Mitchnick, M.G., Etherington, B., & Bohuslawsky, B. (2002), Leading Cases on Labour Arbitration, 2nd ed. Toronto: Lancaster House (loose leaf);
41. O.P.S.E.U. v. Municipal Property Assessment Corp., 2002 CarswellOnt 5474, 109 L.A.C. (4th) 385, 70 C.L.A.S. 155;
42. North West Co. v. R.W.D.S.U., Local 468, 1996 CarswellMan 632, [1996] M.G.A.D. No. 61, 44 C.L.A.S. 534, 57 L.A.C. (4th) 158;
43. F.F.A.W.-C.A.W. v. Ocean Choice International LP, 2011 CarswellNfld 403, 108 C.L.A.S. 234, 213 L.A.C. (4th) 58;
44. Snyder, R.M., ed. Palmer & Snyder, Collective Agreement Arbitration in Canada, 6^th ed., Markham, ON: LexisNexis Canada, 2013;
45. 15930 Fraser Highway Ltd. and UFCW, Local 1518 (Roastery), Re, 2014 CarswellBC 3393, 247 L.A.C. (4th) 175;
46. Merriam –Webster Dictionary – definition of “replace”.
47. Merriam –Webster Dictionary – definition of “displace”.
48. We will refer to these authorities to the extent necessary for this award.
49. The Employer submits:
50. The premise of placing non-certified employees into certified positions begins by drawing parallels to situations where an employer engages independent contractors in a unionized environment. Arbitrators have often treated the assignment of bargaining unit work to employees excluded from the scope of an agreement in the same way they treat subcontracting. In the absence of express language in a collective agreement to the contrary, employers are not fettered in their ability to assign work to employees who fall out-of-scope. That is not to say that an employer can schedule non-unionized employees into unionized positions arbitrarily. Such scheduling must be done in good faith, for valid business purposes, and in a manner that is not discriminatory or arbitrary. As part of management’s rights, an employer may contract out work to persons not in the bargaining unit unless the collective agreement specifically states otherwise.
51. The CBA in this case does not limit Affinity’s ability to fill positions with non-certified employees. Affinity made the scheduling in good faith and for sound business reasons.  Clear language in the CBA is required to prohibit “contracting out”. Affinity was not “contracting out” per se because employees who were scheduled to work at Stonebridge were Affinity employees. However, the principle is the same; that is, that Affinity is well within its rights under the CBA to enter into contracts. No non-certified employee replaced a member of the Union or caused a Union member not to be recalled.
52. The Union is bound by the Grievance which claims the Employer has non-Union staff working at the unionised locations. The Union’s case before the board claims issues with respect to scheduling. There is no evidence that anyone assigned to work at Stonebridge replaced a Union member or that Affinity failed to have someone recalled after layoff. Humm testified to this and she was not challenged. The CBA does not contain any provision that prohibits non-union staff from working in the bargaining unit. Article 13.09 is irrelevant to this case because Affinity was not scheduling part-time employees. There is also no evidence that the requirements for part-time employees exceeded their declared availability.
53. In support of its arguments, the Employer relies on the following authorities:
54. Cambrian College and OPSEU, Local 655 (Staffing Cambrian Programs), Re, 2015 CarswellOnt 15116, 124 C.L.A.S. 239, 262 L.A.C. (4th) 343;
55. Ottawa Citizen and Ottawa Newspaper Guild, Re, 2014 CarswellOnt 17340, 121 C.L.A.S. 95, 248 L.A.C. (4th) 91;
56. SKD Manufacturing Division v. C.A.W., Local 89, 1988 CarswellOnt 3852, 33 L.A.C. (3d) 381, 8 C.L.A.S. 67;
57. Canadian Labour Arbitration, supra, 5:1340; 5:1310.
58. We will refer to these authorities to the extent necessary for this award.

1. The Collective Agreement
2. Article 2 of the CBA defines the scope of the CBA. The CBA covers all Affinity’s employees (subject to a long list of exclusions) employed in Saskatoon, Warman, Langham, Borden, Waldheim, Martensville and Dalmeny except all employees at the St. Mary’s and City Centre Branches in Saskatoon. The parties refer to the St. Mary’s and City Branches as “non-union” or “non-certified” branches.
3. Article 4.01 says:

4.01

The Employer recognizes the Union as the sole collective bargaining agency for the employees covered by this Agreement, and hereby consents and agrees to negotiate with the Union, or its designated bargaining representatives, on all matters relating to rates of pay, hours of work and other working conditions.

37. Article 4.04 which is central to this dispute reads:

4.04	The Employer shall not permit any person excluded from the scope of this Agreement to do work to any extent that will either replace a member of the Union or cause such member not to be recalled in the event of layoff.

38. Article 5 deals with management rights:

5.01

Subject to the provisions of this Agreement, it is the exclusive right and function of the Employer to manage and direct its operations and affairs in all respects, and without limiting or restricting this right and function: (a)   To maintain order, discipline and efficiency, and to establish, set out and enforce reasonable rules and regulations to be observed by employees; (b)   To hire, direct, promote, demote, transfer, discipline, suspend, and discharge employees, and to increase and decrease working forces, provided that a claim of discriminatory action in respect to the foregoing may become the subject of a grievance and be dealt with as hereinbefore provided.

5.02

The Employer agrees, that in exercising its management rights, it shall act in good faith and shall not evade, alter or encroach upon any of the specific provisions of this Agreement. The Employer will not, in exercising its rights under this Article or under any other provision of the Agreement, discriminate against any employee because of such employee’s activity in or for the Union.

39. The CBA has provisions with respect to Union Security (Article 6), Dues Checkoff (Article 7) and Seniority (Article 9).
40. Article 10 deals with Promotions, Vacancies and Transfers, including the following:

10.01	(a)   All vacancies and new positions within the scope of this Agreement shall be posted electronically on the employer’s internal website, and all employees shall be allowed four (4) consecutive working days (excluding Saturdays) in which to make written application for such vacancies or new positions.  … (b)   … (c)   Further to the above, the Employer reserves the right to move its work force when such moves are beneficial to the operations of the Employer, and are not against the will of the employee(s). No employee shall be discriminated against as a result of a refusal to accept such a move, and such refusal will not be considered in respect to future job opportunities. (d)   …
10.04	(a)     When an employee is temporarily appointed by the Employer to fill a position, for one (1) full day or more, which is either in a classification paying a higher rate of pay, or in a classification similar to the employee’s present classification but at another branch, such employee shall receive the rate for the classification outlined in Appendix A of the job being filled, or an additional ten dollars ($10.00) per day, (whichever is greater). (b)     When an employee is temporarily appointed by the Employer to fill a position, for one (1) full day or more, which is either in a classification paying a higher rate of pay, or in a classification similar to the employee’s present classification but at a non-certified location, such employee shall receive the rate for the classification outlined in Appendix A of the job being filled, or an additional eleven dollars ($11.00) per day, (whichever is greater). (c)     If any employee is temporarily required to fill a position paying a lower rate of pay, the rate of pay shall not be reduced. (d)     … (e)     Positions can be filled temporarily for periods up to but not exceeding six (6) weeks, with up to one (1) additional month if the Union agrees. The Employer shall notify the Union of temporary appointments which exceed one (1) month.
10.08	(a)   The Employer will maintain as many full-time positions as possible; however, it is agreed that part-time employees will be required to supplement full-time staff. In no event shall a combination of part-time and/or casual employees fill a full-time position that can be filled by a full-time person, unless a full-time person is not available. No full-time employee shall be required to change to part-time employment status except through the exercise of seniority. (b)   It is agreed that the Employer will not recruit from outside for additional part-time employees, unless the availability of employees as per Article 13 is insufficient to handle the work to be performed.

41. Article 13 covers Hours of Work and Overtime. Relevant portions include:

13.01	Hours of Work (a)   The basic work week shall be thirty-six (36) hours per week, not to exceed eight (8) hours per day and may be accomplished as an average over a four (4) week period. The scheduling of the employee’s work day within these hours will be done by the Employer; this includes such things as lunch periods, rest periods and special work sessions. (b)   A week shall mean the period between midnight on a Saturday and midnight on the Saturday immediately following. (c)   Employees shall not be required to work more than five (5) days in any one (1) week. (d)   Employees shall be entitled to two (2) consecutive days of rest, one (1) of which shall be Sunday wherever possible. However, employees may waive their entitlement to two (2) consecutive days of rest by notifying the Employer of the waiver of entitlement or reinstatement of entitlement fifteen (15) days prior to January 1.  Employees may further notify the Employer of the waiver of entitlement or reinstatement of entitlement once per calendar year at their discretion. The employee must provide the Employer with fifteen (15) days notice of this change, prior to the next calendar month. (e)   …
13.04	Fixed Schedules and Guaranteed Hour Positions (a)   The Employer agrees that it may, through attrition or newly created positions, create up to twenty-eight (28) fixed schedule and guaranteed hour positions and up to eight (8) fixed Saturday and/or Saturday/Monday positions in the bargaining unit. Employees occupying these positions will not be able to claim days or have their days claimed in accordance with Article 13.09. (b)   Job share positions…
13.07	Scheduling (a)   Regular hours shall be scheduled and posted seven (7) calendar days prior to the new schedule starting. The Employer shall give an employee at least one (1) week’s notice of a change in the employee’s work schedule. (b)   The schedule will be no less than four (4) weeks and all hours worked in excess of the regular hours shall be considered as overtime and paid for at the rate of one and one-half (1 ½) times the regular rate for the first three (3) hours and double time thereafter for any one (1) day. It is further agreed that an employee’s regularly scheduled hours will not be changed for the purpose of avoiding payment of overtime. (c)   Part-time schedules may be amended not less than one (1) week in advance to include any additional hours required for branch operations, upon the approval of the employee involved. These additional hours will be interpreted to be regular hours provided they do not exceed the regular hours worked per day. (d)   Employees shall not be scheduled for less than four (4) hours in any one (1) day.
13.08	Part-time Groupings There will be two (2) groupings of part-time scheduling which will be separate and distinct for the purpose of scheduling hours, claiming and mandatory days. (a)   Saskatoon Group will refer to all locations in Saskatoon that are within the scope of this agreement. (b)   Rural Group will refer to Borden, Dalmeny, Martensville, Langham, Waldheim, and Warman. Part-time employees are required to refer to their own home branch grouping for scheduling requirements.
13.09	Scheduling of Part-time The scheduling of part-time employees will occur on the following basis: (a)   Employees will submit a written declaration of availability, specifying the number of days per week that they are available to work. This submission shall be made fifteen (15) working days prior to January 1. Employees may further change their availability once per calendar year at their discretion. The employee must provide the Employer fifteen (15) working days notice of this change, prior to the next schedule going into effect. The minimum declared availability shall be one (1) day per week. There shall be no six (6) or (7) day declared availability. (b)   For the purpose of part-time scheduling, Statutory Holidays(s) as listed in Article 14.01 shall not count as a day(s) towards the employee’s availability. (c)   Based upon their declaration of availability, employees will be scheduled, within their branch and position, in accordance with seniority and as per Article 13.07. (d)   Any unscheduled days of declared availability following the scheduling as per Article 13.09(c) shall be assigned to a central “pool” for each grouping as per Article 13.08. These “pool” days shall be scheduled, in accordance with seniority, at any branch within the respective grouping, when required for branch operations. Employees’ “pool” days shall be scheduled first within their own position. Remaining days of declared availability will be scheduled, as required by branch operations, by seniority, in other positions in which the employee has qualified in accordance with Article 10.03. (e)   Employees may not restrict their availability by named day or branch, except for bona fide medical reasons pertaining to themselves, their spouse or their dependent children under the age of eighteen (18).   (f)     Claiming For employees who have unscheduled day(s) of availability after Article 13.09(c) and Article 13.09(d) the employer will automatically claim the scheduled day(s) from the most junior employee(s) within their grouping in Article 13.08. This claiming shall occur within the employee’s position first, and second, within other positions in which the employee has previously qualified. Such claiming must occur prior to the commencement of the schedule. Claimed days may not exceed declared availability. Employees may volunteer for unscheduled day(s) of declared availability outside their grouping by advising their manager ten (10) working days prior to the next schedule going into effect. (g)   Branch requests(s) that exceed declared availability during the scheduling process Should Branch requirements for part-time employees exceed the declared availability of employees within the Branch and within central “pools” as per Article 13.09(d), employees shall be scheduled to satisfy these  requirements on the following basis: 1)     Ask employees from the branch requiring additional help in accordance with seniority, on a voluntary down basis within their position. Employees shall be entitled to refuse this additional work. 2)     Ask other part-time employees within their grouping as per Article 13.08, in accordance with seniority who are not scheduled, first within the position required, and second, within other positions in which the employee has previously qualified. Employees shall be entitled to refuse this additional work. 3)     Ask Student term employee(s), fixed schedule or guaranteed hour positions within their grouping as per Article 13.08, in accordance with seniority, first within the position required and second, within other positions in which the employee has previously qualified. Employees shall be entitled to refuse this additional work. 4)     Ask part-time employees outside their grouping as per Article 13.08, in accordance with seniority who are not scheduled, first within the position required and second, within other positions in which the employee has previously qualified. Employees shall be entitled to refuse this additional work. If Branch requirements have not been met following the scheduling as per Article 13.09(g), employees shall be required to accept the additional work scheduled within their grouping as per Article 13.08, in a reverse seniority order, first within their position and second, within other positions in which they have qualified. If the scheduling in accordance with Article 13.09(g) requires an employee to work in a Branch other than their own, the employee will receive a premium of ten dollars ($10.00) per day or mileage according to the mileage policy (whichever is greater). (h)   Branch request(s) after the commencement of the schedule Once scheduling has been completed and additional scheduling is required following the commencement of a scheduling period, part-time employees will be offered additional hours on the following basis and in the following order within their grouping in Article 13.08: (1)   Ask employees on the basis of seniority whose availability has not been met and is not already scheduled on the day the additional staffing is required, first within the position required and second, within other positions in which the employee has previously qualified. Employees shall be entitled to refuse this additional work. (2)   Ask employees as outlined in Article 13.09(g) (1) to (4). (i)     Employees shall receive the rate of pay for the position in which they are working.
13.10	Immediate Staff Coverage After The Commencement of The Schedule In the event that there is an immediate requirement for staff at a location on any particular day after the schedule is in place, the following procedure shall be followed: (1)   The Employer will review the part-time schedule for unscheduled staff within their grouping, in a similar position and from that grouping call in whomever is available by seniority. Management will determine whether or not to fill the request. (2)   Contact all branches within the grouping as per Article 13.08 to inquire as to whether or not they are able to assist the branch where the shortage occurred. (3)   If a branch or branches are able to accommodate the request, the staff in a similar position required to be filled will be asked and selected by seniority. If no employee(s) volunteer, then the most junior employee (within a similar position) working that day, who has passed their probationary period, shall be required to travel to the other branch within their grouping as per Article 13.08. (4)   The Employee who fulfills the request will receive a premium of eight dollars ($8.00) per day or mileage according to the mileage policy (whichever is greater).
13.11	Overtime (a)   An employee who is not advised prior to leaving work and is called back to work, or requested to perform work by management outside their scheduled hours and not continuous with regular working hours, either before or after, shall receive not less than three (3) hours work or three (3) hours pay at the applicable overtime rate. (b)   When overtime is scheduled to be worked consecutively with the regular hours of work, the employee shall be entitled to a twenty (20) minute rest period before commencing overtime, provided such overtime shall be scheduled to be at least two (2) hours in duration. If, however, the majority of employees who are working overtime so request, they shall be allowed a lunch period not to exceed one (1) hour before commending overtime provided the overtime scheduled to be worked is two (2) hours or longer. Such lunch period shall be without pay. Lunch shall be supplied by the Employer. (c)   Double the regular rate of pay shall be paid for all hours worked on an employee’s days or part days of rest. (d)   All overtime in excess of one-half (1/2) hour per day shall be voluntary, except in cases where work cannot logically be carried over to the next working day.

1. The Issues
2. The issues in this case are:
3.   Did the Employer assign non-union staff to work at unionized locations in violation of Article 4.04 of the CBA?
4.   If the Employer did violate Article 4.04, what is the appropriate remedy?

1. Analysis

Onus and Standard of Proof

43. The Union bears the onus of proving, on a balance or probabilities, that the Employer breached the Collective Agreement; however, this is only in terms of establishing the facts on which the breach is alleged. The standard of proof with respect to factual matters is balance of probabilities. Interpretation of the CBA is a matter of law.

Authorities  Cited by the Parties

44. Both parties referred the board to authorities dealing with “contracting out” and “contracting in”. The Union refers to Palmer, at para 14.118:

The Ontario Court of Appeal has recently differentiated between contracting out and contracting in [Ontario Hydro Ltd. [2007] OJ 1424, para 36]:

“Contracting out” is said to involve a situation where an “integral function or a whole operation of the business of the employer is assigned to an independent contractor”; the work is often done off site and, where done at the same location as the bargaining unit employees, usually involves work of a different nature even though it is bargaining unit work; the independent contractor controls the work, and the employer has “effectively abdicated” the work to the outside contractor. “Contracting in”, on the other hand, involves a situation where non-bargaining unit personnel are brought into the workplace to work alongside bargaining unit employees, performing the same work as those employees under the same supervision and utilizing the same materials and equipment provided by the employer; the way in which the bargaining unit and non-bargaining unit employees work is “virtually indistinguishable”. [citations omitted] These and otherarbitral decisions all emphasize that contracting in is “inherently destructive of the bargaining relationship” and generally contrary to the obligations undertaken by the employer in a collective agreement.

45. The Employer refers toCambrian College, supra, for the well-established principle of arbitral jurisprudence that as part of its management rights an employer may contract out work to persons not in the bargaining unit unless the collective agreement specifically states otherwise.
46. The Employer points us to Brown & Beatty at 5:1340:

Arbitrators have further circumscribed the employer’s right to contract out certain work by requiring that it be done in good faith and for sound business reasons. However, if the employer’s actions meet this implied requirement of good faith, in the absence of specific language in the agreement to the contrary, subcontracting or franchising will be upheld even to the extent of wholly displacing the bargaining unit. Indeed, even where the agreement expressly limits the ability of an employer to contract out, this may not apply to emergency situations where bargaining unit employees are unavailable to do the work. As well, where there is a change in the business arrangement as, for example, where a retailer has refused to continue purchasing products directly from an employer, this arrangement may not be viewed as an instance of contracting out, nor will it where the disputed practice involves a commercial agreement for the sale of an asset. [footnotes omitted]

47. And also at 5:1310:

A determination that certain tasks fall within the class of work normally performed by bargaining unit employees does not imply that the employees have a proprietary right to that work. To the contrary, in the absence of specific language in the collective agreement providing otherwise, it is now universally accepted that bargaining unit work may be subcontracted to non-employees, as long as the subcontracting is genuine and not done in bad faith. Whatever the view may have been in the earlier awards, it is now settled that to prohibit subcontracting, the agreement must expressly so provide. As one arbitrator has said:

The wide notoriety given to labour’s protests against this practice, the almost equally wide notoriety, especially amongst experienced labour and management representatives, of the overwhelming trend of decisions, must mean that there was known to these parties at the time they negotiated the collective agreement the strong probability that an arbitrator would not find any implicit limitation on management’s right to contract out. It was one thing to imply such a limitation in the early years of this controversy when one could not speak with any clear certainty about the expectations of the parties; then, one might impose upon them the objective implications of the language of the agreement. It is quite another thing to attribute intentions and undertakings to them today, when they are aware, as a practical matter, of the need to specifically prohibit contracting out if they are to persuade an arbitrator of their intention to do so.

Indeed, against that arbitral presumption, even a provision that “the company will not permit any person not covered by this agreement to do any tasks or duties covered under this agreement” has been held to be too ambiguous to restrict contracting out, in that it is generally assumed that the word “person” is intended to refer to non-bargaining unit employees such as forepersons. However, another arbitrator has held that a letter of understanding stipulating that it was the “policy” of the employer not to contract out was tantamount to a mutual agreement not to do so.

In any event, where the agreement limits the circumstances in which contracting out is permitted, questions can arise as to the meaning of such a provision including whether in fact there was contracting out or whether the requisite conditions to do so exist. Thus, for example, where the limit was expressed in terms of whether it was “practicable”, evidence was required of the differential cost advantages of contracting the work out. Where the agreement contained an exemption for “ad hoc use of agency or registered nurses for single shift coverage of vacancies due to illness, or leaves of absence”, such a provision has been held to bar the creation of a “parallel contingent workforce”. As well, an arbitrator may be required to determine if such contracting was “necessary”. Furthermore, it will be necessary to establish the causal connection where contracting is prohibited only when it would lead to a layoff. However, where there is an express prohibition against contracting out if layoffs would result, a massive change in the technology of performing bargaining unit work will not justify such layoffs. As well, even a two- to three-year delay in contracting out following an intra-corporate transfer of work may still be found to violate the collective agreement’s prohibition on contracting out of production work. [footnotes omitted]

48. These authorities are only helpful to the extent they outline general principles in cases where an employer has contracted out work or has used non-union employees in the workplace, described by Palmer as contracting in. The general principle is that every employer is entitled to manage its workforce as it sees fit subject only to any restrictions found in the collective agreement.
49. This case can be described as a contracting in case. We must therefore look to the CBA to see whether the CBA in some way prohibits the Employer from using non-union employees in the manner in which the Employer did so in this case.

 

Did the Employer assign non-union staff to work at unionized locations in violation of Article 4.04 of the CBA?

50. The Grievance claims that, in violation of the CBA and/or any other applicable legislation, the Employer has non-union staff working at unionized locations. The Employer did not seek particulars with respect to the Union’s claim. The Union’s overall claim in this hearing is that the Employer violated Articles 4.04 and 13.09 of the CBA when the Employer scheduled non-union employees to work at the unionized Stonebridge branch in December 2016 and January, February and March 2017.
51. Unless the CBA restricts the Employer in some way, the Employer has the right to manage and direct its operations in all respects. That includes the Employer’s right to decide how it will schedule its employees for work.
52. The Union witness Figueredo and the Employer witness Humm each gave their personal views about how Article 13 of the CBA works with respect to scheduling, but it is this board’s responsibility to interpret and apply the CBA based on the words the parties used in the CBA.
53. Article 13.07 requires the Employer to schedule and post regular hours seven days in advance of the start of each new schedule. The article sets out some requirements the Employer must follow which are largely irrelevant to this case. It also says employees shall not be scheduled for less than four hours in any one day. Article 10.01(c) reserves the right to the Employer to move its work force when such moves are beneficial to the operations of the Employer and are not against the will of the employee. Article 10.04 contemplates temporary transfers. These can be for more or less than one day, but if for one day or more, there are consequences under Article 10.04. There is nothing in the CBA that restricts the Employer from transferring employees, with their consent, to cover business needs in another branch. The Employer is entitled to transfer employees as it sees fit and must only notify the Union of temporary appointments that exceed one month (Article 10.04(e)).
54. Stonebridge is a small Affinity branch that is open six days a week, closed on Sundays. From the schedules provided, the Employer ordinarily schedules two people to work each day while during some short periods there is only one person working. The usual staff complement at Stonebridge appears to be two full-time staff plus one part-time staff guaranteed to work Mondays and Saturdays and two other days of the week.
55. Affinity terminated the employment of one of the full-time staff, Sarah Clark, on November 21, 2016, leaving a staff shortage at Stonebridge. Affinity advertised for this position and the successful candidate, Eileen Dureault, started work on January 11, 2017. The part-time employee, Chris Hoffo, an MSR trainee, left Stonebridge at the end of January 2017. Affinity advertised for this position, but had difficulty filling the position.
56. To deal with the staffing shortage at Stonebridge, Manager Lisa Taylor canvassed other branch managers to see if they were in a position to spare any employees to come to work shifts at Stonebridge. In any case where a branch manager could spare an employee and the employee was willing to fill in at Stonebridge, Taylor scheduled that employee to work a shift or shifts at Stonebridge. Some of the employees were from unionized branches and some were from non-union branches.
57. Leaving aside for the moment the question of whether the Employer ran afoul of the CBA by scheduling non-union employees to work at Stonebridge, we see nothing in the CBA to restrict the Employer, as part of the scheduling process, from in the first instance filling shifts at any of its branches with employees from other unionized branches. In effect, the Employer is temporarily transferring the employee from one branch to another with the employee’s consent. Moving employees around to meet business needs is something the Employer is entitled to do as part of the scheduling processbefore the Employer determines whether there are requests for employees that exceed the declared availability of part-time employees and Article 13.09(g) is triggered.
58. We have therefore concluded that the Employer’s general approach to scheduling by looking at possible transfers to cover required shifts before going to Article 13.09 does not violate Article 13 of the CBA.
59. The Union made other arguments suggesting violations of Article 13.09, but we decline to address those. Even if the way in which Lisa Taylor and Affinity management went about scheduling at Stonebridge violated Article 13 in other respects not related to the use of non-union employees, the Union did not grieve those alleged breaches. The only issue before us is whether the Employer breached the CBA by reaching out to and scheduling non-union employees to cover shifts at Stonebridge. That involves interpretation of Article 4.04 which we will repeat here for ease of reference:

4.04	The Employer shall not permit any person excluded from the scope of this Agreement to do work to any extent that will either replace a member of the Union or cause such member not to be recalled in the event of layoff.

60. There is no question the employees from the non-union branches who worked at Stonebridge branch during the four months in question are “persons excluded from the scope of” the CBA. The question is whether these persons were permitted to “do work to any extent” that replaced a member of the Union.
61. Without going into detail with respect to the Union’s arguments with respect to the integrity of the bargaining unit, the board is satisfied that, looking at the CBA as a whole, the parties intended Article 4.04 to ensure that the Employer would not assign bargaining unit work to out-of-scope employees in the two circumstances outlined in Article 4.04.
62. The Union points out that the words “to any extent” were considered inDrug City, supra, in the context of a contracting out case where the following appeared in the collective agreement:

The Company shall not contract out work normally performed by members of the bargaining unit to any extent where as a direct result of the performance of such work bargaining unit members are denied employment.

63. The board in that case found (at para 11) that by using the words “to any extent” the parties were concerned about any amount of sub-contracting, not just sub-contracting that would cause (in that case) part-time employees to become redundant.
64. The Union points out that the word “replace” is defined as “in substitution for” and that in its plain and ordinary meaning the Employer replaced a Union member’s shift with a non-union employee.
65. In the case at Stonebridge, the work to be done at Stonebridge was bargaining unit work that would normally have been done by bargaining unit employees. For some of the shifts, out-of-scope employees were used to staff those in-scope positions. If out-of-scope employees had not been used, then Affinity would have had to follow the processes in the CBA, and in particular Article 13.09, to schedule bargaining unit employees to work those shifts, ultimately requiring in scope employees to work those shifts in reverse order of seniority if necessary. In effect, then, the non-union employees replaced members of the Union when they were scheduled to work at Stonebridge.
66. The Employer suggests that since there was no incumbent in the position being staffed, there was no Union member to be replaced. Had the Employer not used the non-union employees, however, there would have been a Union member working those shifts. In that sense, there is no question the Union member was replaced. To suggest otherwise would mean that the Employer could avoid using Union employees by not filling bargaining unit positions and then filling the resulting vacant shifts with non-union employees. This cannot be what the parties intended.
67. We have concluded that unless the Employer exhausts all the steps in Article 13.09 and there was still no qualified bargaining unit employee available to work, the Employer cannot place an out-of-scope employee in a bargaining unit position. To do so the Employer will be replacing a member of the Union in violation of Article 4.04. To be clear, if during the scheduling process the Employer has shifts to fill in a unionized branch:
68. In the first instance, there is nothing in the CBA to prevent the Employer from first filling shifts at any of its branches with employees from other unionized branches. This can be done before the Employer determines whether there are requests for employees that exceed the declared availability of part-time employees;
69. If, after the Employer has exhausted possibilities to fill shifts with employees from other unionized branches, there are still shifts that need to be filled, the Employer must then follow the process under Article 13.09 to attempt to fill those shifts with qualified unionized employees.
70. If, after exhausting all the steps in Article 13.09, the Employer still has shifts to fill and there are no unionized employees available to fill those shifts, the Employer is entitled to fill those shifts with non-union employees.

If the Employer did violate Article 4.04, what is the appropriate remedy?

68. The Union seeks three things by way of remedy:
69. A declaration that the Employer acted improperly in assigning bargaining unit work to out-of-scope employees in the manner alleged;
70. A cease and desist order that prevents the Employer from continuing to assign bargaining unit work to out-of-scope employees in the manner alleged; and
71. Compensation to be paid to the Union forthwith in the amount of the dues to which the Union would have been entitled should the Employer not have acted improperly in the manner alleged.
72. The board is prepared to provide the parties with the following declaration:

The Employer breached Article 4.04 of the CBA when, in December 2016 and January, February and March of 2017, the Employer permitted persons excluded from the scope of the CBA to do work at its Stonebridge branch that replaced members of the Union.

70. Ordinarily a cease and desist order, if indeed this board would have the power to make one, would be reserved for situations where a party is engaging in a continuing breach of the collective agreement. There is no evidence before us that what occurred at Stonebridge branch is something the Employer had done previously or has done since. Indeed, the only evidence before us is that after the Union filed the Grievance in March of 2017, the Stonebridge schedule for April 2017 and following did not include any non-union employees. We are also satisfied that,  in filling the shifts at the Stonebridge branch the way they did, the Employer’s management personnel were not setting out to undermine the Union, but rather were somewhat struggling in their efforts to make sure they had the necessary coverage because of the staff shortages at that branch. Unfortunately in doing so, they ran afoul of the CBA. In these circumstances, it would not be appropriate for this board to order the Employer to cease and desist doing something the Employer is not doing.
71. With respect to Union dues to which the Union might have been entitled but for the breach, the Union has provided no evidence to establish this loss. The board does not know whether, had the Employer scheduled only Union employees at Stonebridge, those employees would nevertheless have been persons transferred from other branches.
72. The Union says there is evidence that at least one part-time Union employee was denied employment because of what the Employer did. Maryum Mahdavifar testified that she was guaranteed 36 hours a week which was made up of part-time jobs at each of two branches. For some reason, the Employer had not been scheduling Mahdavifar to work the full 36 hours she was guaranteed. As a result, the Employer paid Mahdavifar for the hours she wasn’t scheduled. Mahdavifar acknowledged that while she hadn’t been scheduled for the full 36 hours, she was scheduled to work five days each week and that the shortage of hours was quite small. In accordance with Article 13.07(d), the Employer cannot schedule anyone for less than four hours in a day. The Union has therefore not established that the Employer’s method of scheduling at Stonebridge denied Mahdavifar any shifts because she could not have taken any shifts in the first place.
73. Otherwise, without evidence of the specific number of shifts, the amount of the Union dues that would have been paid and the basis for them, it is not possible for us to determine what amounts, if any, the Union may have lost for Union dues. We therefore decline to make any order for payment of Union dues.

VII.  Conclusion

74. In conclusion the board allows the Grievance in part and we hereby declare that:

The Employer breached Article 4.04 of the CBA when, in December 2016 and January, February and March of 2017, the Employer permitted persons excluded from the scope of the CBA to do work at its Stonebridge branch that replaced members of the Union.

 

Dated March 28, 2019.