Mercer Celgar Limited Partnership v. Public and Private Woodworkers of Canada Local No 1 (Contracting Out Grievance), [2024] B.C.C.A.A.A. No. 70
Nazeer Mitha, KC and Erin White represented the employer, Mercer Celgar Limited Partnership, in a labour arbitration concerning the contracting out language in the pulp and paper industry.
In the proceeding, the union claimed that:
pending contracting out notices could only be discussed at formal Joint Contracting Committee meetings;
every notice of contracting out must attach a scope of work form;
two instances of contracting out did not fall within the definition of an emergency; and
notices of contracting out should be submitted for all consultants regardless of whether the consultant is engaged in an area that involves bargaining unit work.
The arbitrator found for the employer on the majority of issues, with the exception of one allegation about an “emergency”.
Background
The employer operates a mill in Castlegar, BC. It employs approximately 400 employees, 300 of whom are in the bargaining unit. The mill issues 500-1000 contracting out notices per year.
The collective agreement requires the employer to notify the union of its intention to contract out work, and provide the union with an opportunity to review the contracting out notice prior to a final decision being made. Emergencies are excepted from this requirement.
In 2017, the parties agreed to a letter of understanding which stated, among other things, that contracting out committee meetings would be held every two weeks.
Despite the language of the collective agreement, the employer provided notice to the union of contracting out in the case of an emergency.
Award
The arbitrator decided as follows with respect to the four issues raised in the proceeding.
Issue #1: Does the collective agreement require that pending contracting out notices only be reviewed at bi-weekly Joint Contracting Committee (“JCC”) meetings?
The arbitrator found that the collective agreement language is ambiguous and therefore considered extrinsic evidence and past practice.
In the result, the arbitrator agreed with the employer that the collective agreement language does not dictate that pending notices of contracting out must only be reviewed at formal bi-weekly JCC meetings.
Issue #2: Is the employer required to attach a “scope of work” document to every pending contracting out notice?
The arbitrator concluded that the employer is not required to attach a scope of work document to every pending notice of contracting out.
Instead, the arbitrator clarified that the JCC must be provided with adequate information but the level of information required will depend on the circumstances.
Issue #3: What constitutes an emergency under Article XXIV of the collective agreement?
The arbitrator confirmed that whether a particular circumstance is an “emergency” is determined on a case-by-case basis.
The arbitrator concluded that contracted out work related to an “Eo reactor” did constitute an emergency as it was related to the necessity of ensuring a timely start up of the mill.
However, the arbitrator found that a situation relating to the removal of logs in the face of a snow warning did not constitute an emergency as the work did not call for immediate action.
Issue #4: Is the employer required to provide notice of consultants at the mill; or, is the union estopped from insisting that the employer provide notice of consultants?
The union had argued that the employer was required to give notice of the use of all consultants at the mill, regardless of whether they do bargaining unit work.
The arbitrator concluded, however, that if a consultant is being used for issues not involving the work of the bargaining unit, there is no need for the employer to issue a notice of contracting out.