Docket: CACV2006 United Food v. Commercial Workers, Local 1400, 2012 SKCA 21

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 21 Date: 20120229 Between: Docket: CACV2006 United Food and Commercial Workers, Local 1400 (Applicant) Appellant - and - Extra Foods, a division of Loblaws Inc. (Respondent) Respondent - and - William J. Campbell, Arbitrator (Respondent) Respondent Coram: Lane, Richards & Herauf JJ.A. Counsel: Drew S. Plaxton for the Appellant Lawrence F. Seiferling, Q.C. for the Respondent Extra Foods

Appeal: From: 2010 SKQB 363 Heard: October 24, 2011 Disposition: Appeal dismissed Written Reasons: February 29, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Herauf J.A. I. Introduction [ 1 ] United Food and Commercial Workers, Local 1400 (the “Union”) appeals a Queen’s Bench decision which refused to quash an arbitration award. The Arbitrator dismissed a Union grievance alleging that Extra Foods, a division of Loblaws Inc. (the “Employer”), breached

Article 15.7(

c) of the Collective Bargaining Agreement (the “CBA”) relating to scheduling part-time employees. The Union grievance was based upon an allegation that the Employer discriminated against an employee by manipulating a part-time work

schedule to avoid triggering the potential to create a full-time position. The Arbitrator found that the Employer was justified in scheduling part- time employees the way it did based upon its legitimate “business interests”. As a result, the Arbitrator dismissed the grievance. The chambers judge held that the decision of the Arbitrator was reasonable and dismissed the application for judicial review. [ 2 ] The Union contends that the Arbitrator failed to identify the business interests in his reasons.

As well, the Union submits that the Arbitrator referenced both the reasonableness and traditional tests relating to the standard of review he was to apply but did not make it clear which one he was using. [ 3 ] For the reasons that follow I would dismiss the appeal. There was no evidence from the Union to contest the finding of the Arbitrator that the Employer made its scheduling decision for anything other than legitimate business reasons.

As well, while there was some reference to both the reasonableness and traditional tests, the Arbitrator ultimately concludes that “The Employer did not act in a discriminatory manner or breach the CBA”. I cannot find error in this conclusion. II. Background [ 4 ] Karen Ironside (the “Employee”) is a member of the Union and was a part-time employee of the employer since 1994. The Employee worked full-time hours for 12 consecutive weeks from October 2007 to January 2008. In the 13 th week, she was scheduled by the Employer and actually worked fewer hours than full-time hours.

The evidence that the Employee did not work full-time hours in the 13 th week is uncontradicted. [ 5 ]

Article 15.7(

c) of the CBA between the parties provides that when a part-time employee works full-time hours for 13 consecutive weeks, a full-time position will be deemed to exist and will be filled pursuant to the CBA. [ 6 ]

Article 15.7(

c) reads as follows: When a part-time employee works the basic work week for thirteen (13) consecutive weeks (except for the period May 1 st to September 30 th ), a full-time position will be deemed to exist and will be filled in accordance with

Article 15, subsection 15.7(

b) of this Agreement. If no written application for full-time employment is on file, then the first opportunity to fill the position will be given to the above employee if he is desirous of full-time employment. The above shall not apply to part-time employees who are relieving due to maternity/parental/adoption leave, sick leave, WCB or Union leave.

[ 7 ] On February 4, 2008 the Employee filed a grievance which stated: STATEMENT OF GRIEVANCE The employer has discriminated against me by not abiding by the provisions of the Collective Bargaining Agreement and any applicable legislation. ADJUSTMENT REQUESTED Full redress. III. Proceedings Before the Arbitrator [ 8 ] The Arbitrator was requested to determine two issues. First, whether the Employee actually worked the thirteen consecutive weeks and fulfilled the requirements to deem the creation of a full-time position. Secondly, whether the Employer intentionally manipulated the work

schedule to prevent the Employee from meeting the thirteen consecutive week test. [ 9 ] With respect to the first question, the Arbitrator found that the undisputed facts clearly show that the Employee did not work the necessary thirteen consecutive weeks to trigger the deeming provision in

Article 15.7(

c) of the CBA. [ 10 ] With respect to the second question, the Arbitrator held that the Employer was entitled to

schedule so as to avoid creating another full-time position, provided that the Employer’s manner of doing so was in accord with the Employer’s best business interests. The Arbitrator came to this conclusion, in part, by relying upon a management rights clause contained in

Article 10 of the CBA. [ 11 ]

Article 10 is as follows: The Union agrees that the management of the Employer, including the right to plan, direct and control store operations, direction of the working force, discharge employees for just cause and those matters requiring judgment as to the competency of the employees, is the sole right and function of the Employer. The parties agree that the Employer shall be the sole judge of the merchandise it may handle, process, manufacture or package and of the manner in which these functions may be carried out and in which the merchandise may be handled, stored, shipped or sold.

The parties agree that the foregoing enumeration of Management rights shall not be deemed to exclude other recognized functions of Management not specifically covered by this Agreement. The Employer, therefore, retains all rights not otherwise specifically covered by this Agreement. The Arbitrator held that this

Article provided the authority to allow the Employer flexibility in scheduling part-time employees as there was uncontradicted evidence that the business operated more efficiently through the use of part-time employees rather than full-time employees. [ 12 ] In addition, the Arbitrator found that there were no other articles in the CBA that restricted or obligated the Employer to

schedule in a certain way. In this way, the Arbitrator was able to distinguish other arbitration decisions involving the same issue on the basis that the CBA in those cases contained a restriction on management rights that prohibited the Employer from scheduling part-time employees so as to prevent the hiring of full-time employees. IV. The Union’s Application to the Court of Queen’s Bench for Judicial Review [ 13 ] The chambers judge correctly applied the standard of reasonableness to the review of the Arbitrator’s decision.

Based upon the standard of reasonableness, the chambers judge determined that the Arbitrator’s conclusion that the CBA did not restrict the exercise of management rights was within the range of reasonable decisions and outcomes. [ 14 ] The chambers judge agreed that the Arbitrator’s

interpretation of

Article 15.7(

c) and the management rights clause in

Article 10 did

not undermine the intention of the Agreement. The chambers judge found that the CBA is “detailed and sophisticated” and “specifies many rights of the Union members and many obligations of the Employer, including the circumstances under which a full-time position is created”. [ 15 ] The chambers judge reasoned that

Article 15.7(

c) does nothing more than identify when a full-time position is created through the work experience of a part-time employee and does not create “an obligation on either party to cause or allow the consecutive 13 weeks to occur”. [ 16 ] The chambers judge found that the Arbitrator articulated his conclusions and his reasons for reaching those conclusions. He also found that the Arbitrator’s decision falls within the range of reasonable decisions and reasonable outcomes and concluded that there was no basis to interfere. As a result, he dismissed the application for judicial review with costs to the Employer. V.

Analysis [ 17 ] To reiterate, the two issues raised by the Union in its submissions were: (

i) the Arbitrator did not adequately identify the “business interests” that he found justified the Employer’s method of scheduling part-time employees; and, (ii) that the Arbitrator cited conflicting authorities concerning the standard of review but failed to make it clear which standard he adopted. I will address each issue in turn. A. Failure to identify the “business interests” that underpinned the Employer’s actions [ 18 ] The uncontradicted evidence was that the Employee did not meet the number of hours during the thirteenth week to trigger the deeming provision in

Article 15.7(c). In fact, the evidence indicated that the Employee received her usual guaranteed

schedule and there was no evidence to suggest that she would have obtained additional hours. [ 19 ] It is also apparent from the record that the Arbitrator accepted the evidence of the Employer that part-time employees were preferable to full-time ones for reasons of cost containment and flexibility. Once again, the Union did not point to any evidence to contradict this finding. [ 20 ] The Arbitrator looked at the evidence in light of the management rights clause in

Article 10 of the CBA and concluded that the Employer exercised its scheduling discretion for business reasons within its powers under the CBA. As a result, the Arbitrator found that the Employer did not act in a discriminatory method or breach the CBA. I can find no fault with the decision of the chambers judge to uphold this conclusion and would give no effect to this submission. B. Standard of Review [ 21 ] This issue does not appear to have been raised before the chambers judge. Admittedly, the Arbitrator did reference various approaches in his reasons.

The Arbitrator recognized the different approaches by referring to the decision of the Newfoundland and Labrador Court of Appeal in Western Avalon Roman Catholic School Board v. N.A.P.E. , 2000 NFCA 39, 190 D.L.R. (4 th ) 146 . The decision describes the task of an Arbitrator when examining an exercise of discretion as compared to when it is interpreting a CBA. At paragraph 39 the Court says: 39 … When interpreting an agreement, the object of the exercise is a declaration of the intention of the parties as expressed in the words used in the collective agreement. The arbitrator decides what

interpretation the parties must live with. In contrast, when examining the exercise of discretion by management, the object is not to have the arbitrator decide how the discretion should have been exercised but to determine whether management's exercise of its discretion is within the range of reasonable responses to the circumstances, if one accepts the reasonableness test, or simply whether the decision was made bona fide and without discrimination, if one follows the traditional test. Here, the arbitrator applied the correctness test.

She substituted her view of what was the best decision for that of management. There was no evidence to support a finding that management lacked bona fides or acted in a discriminatory fashion. … [ 22 ] The Arbitrator, having concluded that the CBA does not contain any restrictions on the Employer’s choice to

schedule part-time employees in a certain way went on to conclude that the Employer can

schedule in whatever manner it chooses, as long as it does so for business reasons. Accordingly, he found the Employer did not

schedule in a “discriminatory manner or breach the CBA” which was the essence of the grievance.

[ 23 ] As well, the Arbitrator, having found the Employer’s reasons to be bona fide business decisions, declined to substitute his own view. The Arbitrator, interpreted the relevant provisions of the CBA as he was required to do. In my view, he said, in effect, that the grievance should be dismissed regardless of whether the Employer’s decision was reviewed on the basis of a reasonableness or traditional test. Based upon the evidence before him, there is simply no reason to take issue with his conclusion. I would not give effect to this submission. VI. Conclusion [ 24 ] The appeal is dismissed.

The parties agreed that costs are not in issue, so there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 29 th day of February, A.D. 2012. “Herauf J.A.” Herauf J.A. I concur “Herauf J.A. as authorized by” Lane J.A. I concur “Richards J.A.” Richards J.A.