GRIEVANCE NEWS - May 16, 2017

NO REQUIREMENT TO EXHAUST PERSONAL DAYS BEFORE APPLYING FOR LEAVE WITHOUT PAY

Following the introduction of Personal Days in the Collective Agreement signed in 2012, Canada Post has routinely taken the position that employees must exhaust all Personal Days before other forms of leave could be granted. The Union has maintained that this position is not supported by the negotiated terms of the Collective Agreement, and arbitrator Vince Ready has reached the same conclusion.

At arbitration, the Union argued that requests for leave under Article 27.09 (leave without pay for group 2) cannot be refused on the availability of personal days. Only Article 21.03 (special leave) specifically states that personal days must be exhausted first. Article 27.09 does not contain this specification. The Union submitted that if the parties had intended to require employees to first exhaust personal days before taking other forms of leave, they would have negotiated similar language to the language found in Article 21.03. Furthermore, the Union argued that leave requests cannot be refused on the basis of availability of personal days, only on the criteria specified in the Article. Arbitrator Ready found that “Article 27.09 does not contain language requiring an employee to use all of their personal days prior to accessing leave without pay.” He stated that “there are conditions outlined in Article 27.09 that must be met in order to be granted such leave. One requirement that is not included in that language is the requirement for the employee to first exhaust personal days before unpaid leave.” Arbitrator Ready concluded that “the plain wording of Article 27.09 establishes the right to leave without pay.” and noted that “in other Articles, such as Article 21.03, the parties have clearly stated that leave will only be granted once personal days are exhausted. The language of Article 27.09 does not contain that requirement and therefore, it is not reasonable to impose it unilaterally”. If you are being denied leave afforded to you through the terms of the Collective Agreement on the basis of the availability of Personal Days, speak to your Shop Steward and together bring it to the attention of the uninformed supervisor denying the leave. Should the ignorance persist, sit down with your Steward and a grievance form and put it to paper!

SENIORITY RULES!

Prior to the Easter long weekend in 2016, Canada Post management put their minds together and attempted to reinvent the wheel in an endeavour to understand the language of Collective Agreement when canvassing for overtime opportunities for Mail Service Couriers (MSCs). Instead of soliciting volunteers for overtime, and then allowing seniority to determine assignments amongst the volunteers, Canada Post allowed for selection of assignments at the same time volunteers were solicited. The outcome was that the overtime solicitation began at the middle of the equal opportunity list, and Canada Post went so far as offering the selection of assignment in addition to the opportunity regardless of seniority. Put another way, members with higher seniority were offered an opportunity after their lower seniority counterparts and were not given a choice of assignment. The Union argued in front of Arbitrator McPhillips that this was a clear violation of multiple articles of the Collective Agreement, the most serious of which being a violation of bargaining unit members fundamental and contractual seniority rights. The Union defended the seniority rights of these members, and asserted that Canada Post is unable to simply disregard seniority rights; Canada Post must allow for the selection of assignments by way of seniority. Arbitrator McPhillips agreed with the position of the Union stating “There is a difference between ensuring that employees are granted opportunities pursuant to the Equal Opportunity List and the necessity of ensuring particular assignments are made pursuant to seniority.” The grievance was upheld, and Arbitrator McPhillips declared that “specific overtime assignments are to be selected based on seniority once the equal opportunity requirements are satisfied.” Canada Post may attempt to reinvent the wheel, but it must be remembered that the axle is a constant, and that constant is seniority. When in doubt, consider seniority!

LETTERS OF EXPECTATION TO BE REMOVED FROM PERSONAL FILE

In an attempt to permanently litter employees’ personal files with unwarranted reports, Canada Post has clumsily devised a plan to disguise unfavourable reports as “letters of expectation” which it wrongly insists remain on an employee’s personal file indefinitely. Consequently, the Union has had to proceed to arbitration to determine the disposition of these reports. At a recent arbitration, the Union argued a case that related to a Grievor receiving a “letter of expectation” which the Corporation refused to remove from his personal file at the expiration of the 12 months, and then relied upon to impose discipline in a subsequent letter which followed beyond 12 months. The Union asserted that “letters of expectation” constitute unfavourable reports as addressed in Article 10.02 c) of the Collective Agreement, and as such are subject to the “sunset clause” twelve (12) month limitation. Furthermore, the Union stressed that if these reports were used to justify discipline, they are unquestionably unfavourable and most certainly subject to 10.02 c). Arbitrator McPhillips concluded “In [his] view, in these circumstances this letter must be characterized as an “unfavourable report” as it was subsequently used as part of the Grievor’s record to justify further discipline…As such, it was used in the manner of being prior discipline and constituted an “unfavourable report”. If you notice a “letter of expectation” on you personal file beyond 12 months and the Corporation refuses to remove it, file a grievance!

“CARRYOVER” NOT AN OPTION!

Subsequent to Postal Transformation rearing its ugly head in Vancouver, Canada Post seems to have coined a new term that many of you have likely heard before….”carryover” mail. What is “carryover” mail you ask? The term “carryover” mail is used by Canada Post to reference mail on an uncovered letter carrier route which is scheduled for delivery on a particular day that Canada Post erroneously decides does not require delivery and is left in the station, undelivered. The following day, Canada Post then refers to this mail as “carryover” mail. Put another way, it is mail that Canada Post chooses not to deliver on Monday if the route incumbent has taken leave, which is left for delivery the following day. This may sound to you like a delay of mail, which a letter carrier would surely be disciplined for if he or she had made the decision to simply leave mail undelivered. Apparently, when Canada Post makes this decision, it’s “carryover”, not a delay.

In February and March of 2016, management at the North Burnaby Delivery Centre made the decision to leave portions of a number of letter carrier routes uncovered, and a grievance was filed. The grievance proceeded to arbitration where the Union argued that the preamble of Article 17.04 (Coverage of Uncovered Letter Carrier Routes or Mail Service Courier Assignments) specifies the rules for coverage of letter carrier routes which are substantive, and mandatory, with the general rule that routes shall be covered by a 5-step process outlined in the Article. The Union asserted that the only exceptions are those indicated in the preamble which must be factually established by the Corporation at the time. In the Union’s view, absent that exception, Article 17.04 indicates that no route will remain uncovered on any day. The Union sought the remedy that the grievance be upheld and a declaration be issued that the preamble of 17.04 was mandatory and placed a burden on the Corporation to cover all uncovered portions of routes each day. In support of its position, the Union relied on a formal grievance decision rendered by Arbitrator Goldenberg in 1983. In this decision, the arbitrator found that:

“My answer to the question posed by the Corporation – “When the absences exceed the number of unassigned letter carriers and the available supervisory letter carriers or unassigned mail service couriers or available mail service couriers (relief), does the employer have the right not to cover a resulting unmanned position by not assigning the duties thereof under article 19.03?” – is in the negative.”

The Corporation argued that there were unanticipated absences on the days in question which placed the depot in a position of exceptional circumstances, and therefore no violation had occurred.

In her decision on the matter, Arbitrator Judi Korbin stated the following:

“I am satisfied that in the particular circumstances of this case, no evidence was submitted to establish that the unanticipated absences qualified as an exceptional circumstance, nullifying the requirement for the implementation of steps (a) (i) to (v) of clause 17.04. Nor am I persuaded that in these particular circumstances, having proceeded through steps (i) to (iv) of section (a) of Article 17.04, the Corporation was in a position to reasonably conclude not to deliver certain mail on the specified dates. That is, because it had other options available under 17.04 (a) step (v) to deliver such mail – i.e., supervisors and/or temporary employees.

In the result, in the particular circumstances, with respect to the dates specified in this grievance at the Burnaby Depot, the Employer was in breach of the collective agreement by not assigning the Letter Carrier routes “by any other means” under Article 17.04 (a) (i) to (v) of the collective agreement.”

Following this decision, the Union proceeded to arbitration in front of Arbitrator Korbin with another grievance surrounding similar circumstances. The circumstances were that in January 2016, management at the Capilano Delivery Centre made the decision to leave a route uncovered while the incumbent was away on approved leave. Upon his return, the Grievor was instructed to deliver the uncovered portions, or “carryover” mail along with the mail he received that morning which was scheduled for delivery that day. The Union submitted the same argument which was previously presented in front of Arbitrator Korbin, and further asserted that there is a consequence to violating 17.04 which is the requirement to compensate the Grievor for delivering the uncovered portions from the previous day in accordance with 17.05. The Corporation argued that this should not be the case. In the end, Arbitrator Korbin was able to render assistance in an agreement that the Grievor be compensated for some of the uncovered portions he delivered upon his return to work, at overtime rates.

It is clear that Canada Post management is incapable of comprehending that refusing to cover uncovered portions of letter carrier routes violates the Collective Agreement, and those violations come with consequence. Fortunately, arbitrators are capable of this comprehension. If Canada Post management continues to ignore its obligations, it will proceed at its own peril.

Erin Collins
Grievance Officer


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