WSIB failed to give proper notice of organizational changes
A trade union is entitled to be made aware that employer is contemplating significant changes to its workplace, GSB says
The Crown Employees’ Grievance Settlement Board (the “GSB”) has held that the Workplace Safety and Insurance Board (“WSIB”) violated its collective agreement with the Canadian Union of Public Employees, Local 1750 when it re-organized the workforce without giving appropriate notice to the Union of its intended organizational changes, or advance notice of specific redundancies. Moreover, the GSB found that the WSIB had improperly bumped employees before the employees’ notice period had expired.
In January, 2012, the WSIB announced that it intended to transform the WSIB into a smaller, more focused organization. Toward that goal, it would eliminate several positions and lay off a number of employees.
As part of these large-scale organizational changes, the WSIB also implemented a new system of “early bumps”—a new practice by which it issued notices of lay-off to employees, and then bumped these employees into the position of less senior employees before the displaced employees’ notice periods had expired. In some cases this had led to a “chain” of bumps in which three or four employees were issued notices of lay-off and bumped before the notice period of the first employee had expired.
Senior management for the WSIB testified that these changes reflected a new “more urgent” style of management at the WSIB, and were intended to achieve cost savings more quickly than would be possible if the employer waited until the end of the affected employees’ 130-day notice period before implementing a bump. Managers also testified that the Union had not been given notice of organizational change because there was a concern that the Union would use such notice as an opportunity to seek to negotiate additional protections for affected employees.
The Union grieved the WSIB’s conduct on a number of grounds, including that the employer had failed to give appropriate notice to the Union of the planned organizational changes. It also maintained that the “early bumps” were not permitted under the collective agreement.
The GSB’s decision
The GSB upheld the Union’s grievance on all counts. In particular, vice-chair Owen Gray held that when an employer is considering making significant changes to its workplace, “a trade union representing its employees has an evident interest in being aware of this and of the reason for it, particularly before the employer is committed to a particular way of achieving its underlying objectives, so it can propose reasons to alter those objectives or ways of achieving them that minimize adverse impact on employees.”
The GSB therefore rejected the WSIB’s contention that it was only required to advise the Union of its intended organizational changes once a concrete decision to make a specific change had been made. Rather the collective agreement obligated the WSIB to discuss its intentions with the Union once a general objective to implement organizational change had been identified by the employer:
Central to this view of the obligation created by Article 6.03(a) is that the employer initiates the discussion having adopted an objective for the planning in which it is engaged. This is consistent with the remarks of Arbitrator Stanley on which the employer relies, which do not seem to me to stand for the proposition that an employer is entitled to take its planning objective to a particular level of specificity before a provision on which it has agreed can require it to give notice of its being engaged in planning.
Article 6.03(a) requires that the employer initiate a discussion when it commences planning an Org/Tech change, even if it has not yet decided that it will implement any result of such planning. The obligation arises earlier in the planning process than the employer contended….
Therefore, the WSIB violated the collective agreement when it failed to notify the Union of its intention to implement organizational change in November, 2011, when it first identified the goal of making organizational changes. Instead, it waited over two months until mid-January 2012 to provide the Union with notice, at which time it had already determined to eliminate specific positions and had prepared notices of redundancy for over 150 employees.
The GSB held that the employer’s obligation under the collective agreement to meet and negotiate about provisions to ameliorate the effect of an organizational change on employees does not arise only after specific employees are given notice of layoff, as the WSIB contended. Rather, it arises “when the union asks, which it might very well do after it learns of the employer’s intention to engage in planning of a change”.
With respect to the more specific requirement under the collective agreement to give the Union notice of intended redundancies, the GSB held that while the collective agreement does not require the WSIB to give notice of lay-off to the Union of every single position it intends to lay-off, it could not justify giving the Union incomplete notice on the basis of having carried out “incomplete planning or decision making about what positions will be substantially changed”. Further, the GSB found that it was “incongruous” for the WSIB to give advanced notice of lay-off to the Union listing 144 employees when it only intended to issue notices of redundancy to 77 employees:
Any contention that “likely to be affected” is meant to accommodate incomplete planning or decision making about what positions will be substantially changed or eliminated, is inconsistent with the evident expectation that there could be meaningful discussions about the elimination or substantial change of positions on the 20 working day time frame on which the parties agreed. Unless the employer expects an astonishing rate of turnover in positions after it has decided to eliminate them, it would be incongruous for it to contend that the cohort of employees “likely” to be in those positions when notice is later given to their incumbents is twice (or more than twice) the number of positions.
Finally, the GSB found that the WSIB was estopped (prevented) from implementing its new practice of “early bumps”. Although the collective agreement gave the WSIB discretion to implement bumps at any time during the 130-day notice period, the GSB concluded that this had never previously been its practice and accepted the Union’s evidence that no discussion with respect to changing the practice had occurred in the most recent round of bargaining. Therefore, the WSIB could not unilaterally alter its bumping practices until the Union had an opportunity to address bumping provisions in the next round of collective bargaining.