January 14, 2022 - After almost two years of waiting, Arbitrator Sims has delivered his much-anticipated decision on Shaw’s use of the Automation clause rather than the Lay-Off clause of the collective agreement when laying off the 54 Technical Field Representatives.
The arbitrator dismissed our grievance on the issue. To say that we are beyond disappointed in this decision is a gross understatement. We are having our legal team evaluate if an appeal, known as a Judicial Review in arbitral terms, is appropriate. In addition, we are now having to look at how this decision impacts several other grievances pertaining to the same articles.
The Union had a witness give sworn testimony, based on having been a former TFR that had transitioned into an installer role., His testimony was that “TFR’s have substantial expertise and skills, and could quite easily have been transitioned into the new roles with some training had seniority correctly been recognized”. The Employer, unfortunately, was able to convince the arbitrator that the TFR workgroup “overlooked some important skills which could be learned, but were not at the time possessed by TFR’s.”
Substantial case law was reviewed during the hearing, much of which related to the principles of Collective Agreement Interpretation, but the piece that seemed to sway the arbitrator the most was by Palmer and Snyder, Collective Agreement Arbitration in Canada, Fourth Edition, say at page 30:
“It is a general rule of interpretation that a specific provision takes precedence over a general one.”
He went on to articulate which part of the employer’s argument swayed him with the following statements:
“… we must conclude (a) that the laid off TFR’s were “redundant” and that the redundancy was due to “automation, or the introduction of new methods, equipment and organization.” The Employer says that its decision to eliminate TFR’s constituted to “a new organization””.
“Specifically here the “new organization” is said to be the move to a “single visit” residential service and install. That change is closely related to the technological changes that allow it to happen. This included, for example, the ability to control access and channels from a central office. This also includes, on a forward-looking basis at least, the growing trend to “install it yourself” home equipment.”
“Overall, the evidence persuades us that these changes were an integral part of a National Reorganization rather than a single decision, under this collective agreement, to eliminate the TFR category, its piece work system and its jurisdictional and service work restrictions. Those changes no doubt contributed to the Company’s motivation, but it was but one aspect of the commercial competition pressures it faced and the opportunities the developing technology offered. We are persuaded that the competition it faced was real and the potential “two visits per installation” situation was contributing significantly to its declining position.”
He goes on to say:
“We accept that the changes here were due to an organizational change within the meaning of Article 10. … Article 6 deals with a generalized reduction in work, whereas Article 10 addresses a very specific set of circumstances which, by their nature, do not fit within the concept of layoffs due to a reduction in work.”
“Thus, our finding is that Article 10, as a specific provision, must be given effect over the more general provisions of Article 6. Our view on this basic conclusion is not altered by the evidence of past practice or negotiations, or by the changes just described to the two Articles.”
The Union would like to sincerely thank all of the impacted members for their patience throughout this hearing and while we all waited for this decision. As the sting of this loss impacts us all, we are reminded of our former International President’s Leo Gerard’s mantra “We cannot promise that we will win every fight, but we can promise that by not fighting, we will lose.” We will take those words to heart as we continue to evaluate this decision and as we begin to prepare for the next round of bargaining.
In Solidarity,
USW Local 1944
