Oct 24, 2017 / by Jason Albright.
Court Throws Out Challenge to ‘Successor’ Finding in Trash-Collection Case.
What are the makings of a “perfectly clear successor” in the sanitation services sector?
The question matters under NLRB case law because a “perfectly clear successor” must bargain with its employees’ union before changing terms and conditions of employment to which the prior employer agreed.
Declining to tidy up after the NLRB in one recent case, the Fifth Circuit suggested the key issue is whether the new employer gave employees enough timely notice of any intended changes to clarify that it was just an ordinary successor not bound by a duty to bargain. Creative Vision Res., LLC v. NLRB, 2017 BL 338791 (5th Cir. 2017).
Hoppin’ business in the Big Easy
The employer in the case, Creative Vision Resources, L.L.C., succeeded another contractor as the staffing provider for garbage trucks in New Orleans. Formed by the local trash-collection company, the employer distributed new employment applications and tax forms to about 20 garbage truck “hoppers” who had been employed by the prior contractor.
A little more than two weeks later, the union demanded that the employer recognize it as the hoppers’ exclusive bargaining representative, but the employer didn’t reply.
A garbage defense?
The union filed an unfair-labor-practice charge, and the NLRB found that the employer, as a perfectly clear successor to the contractor, violated the National Labor Relations Act by unilaterally imposing new terms and conditions of employment, including changing hoppers’ pay rate from $103 per day with no overtime to $11 per hour with overtime.
The company argued that it wasn’t a perfectly clear successor because its hiring process was “in flux” until it the moment it became clear how many hoppers would accept its new terms.
Perfectly clearly not enough
On this point, the Fifth Circuit held its nose. Finding that the company made no effort to hire employees from other sources and announced its new terms on the same day its operations began, the court concluded that the company’s prior communications to employees—which included the tax forms attached to its new employment applications—didn’t give the majority of the hoppers enough notice of the changing employment terms to clarify that it was an ordinary successor.
The upshot for employers stepping into existing bargaining relationships is that it really matters what, and how quickly, the new employer communicates to its predecessor’s employees about the terms they’ll be accepting if they choose to hop back on board.
5 Years And Counting: Suncor Wins Another Round in its Fight to Introduce Random Testing
Stikeman Elliott LLP – Gary T. Clarke and Kristopher Noonan Canada October 24 2017
Background
On October 15, 2012, Suncor Energy Inc. (“Suncor”) introduced a drug and alcohol policy that permitted it to engage in random drug and alcohol testing for workers occupying safety sensitive positions. Unifor Local 707A (“Unifor”), the designated bargaining agent for certain Suncor employees, filed a grievance on the basis that the policy infringed individual privacy rights. The matter proceeded to arbitration where, following a 23 day arbitration hearing, the majority concluded that Suncor failed to demonstrate that it had a general problem with substance abuse at its workplace, and that the policy imposed by Suncor was not proportionate to the concern it hoped to address. While Suncor led extensive evidence about employee substance abuse problems at its Fort McMurray operations (over 2,000 drug or alcohol related incidents), much of Suncor’s evidence related to the workplace as a whole, and did not distinguish between unionized employees, non-unionized employees, and contractors’ employees. The arbitration panel concluded that Suncor’s evidence was “unparticularized” and “unrefined”, and therefore could not form the basis for a finding that Suncor’s workplace had a substance abuse problem. A majority of the arbitration panel allowed the grievance and ruled in favour of Unifor. Suncor applied for judicial review of the decision, and the reviewing justice held that the majority decision was unreasonable and sent the matter back for reconsideration by a new arbitration panel. Unifor then appealed the decision to the Alberta Court of Appeal.
Decision
The Alberta Court of Appeal dismissed the appeal, finding that the arbitration panel’s decision in allowing the grievance was unreasonable as it failed to consider (or misunderstood) Suncor’s evidence about substance abuse problems at its workplace. Instead of considering the evidence as a whole, the arbitration panel inappropriately discounted the entirety of Suncor’s substance abuse evidence as it was not specific to the bargaining unit. In doing so, the Alberta Court of Appeal was of the view that the arbitration panel conflated the concepts of jurisdiction and evidence, and held that it committed a reviewable error in the process. Specifically:
The first issue is the tribunal’s jurisdiction to decide only those matters arising under the collective agreement. The second issue is what evidence is relevant to whether there is a general problem of substance abuse in the workplace. These two questions are distinct. Simply because the tribunal lacked jurisdiction to impose or endorse drug and alcohol testing of non-unionized employees does not mean that Suncor’s overall experience with substance abuse in its Fort McMurray operations had no bearing on the question before the tribunal. As the reviewing justice correctly noted, “[w]hile it is true that the arbitration decision is binding only upon members of the bargaining unit, it does not follow that the Board could take account only of evidence tied directly to that bargaining unit”: para 78. It was reasonable for the tribunal to conclude that Suncor’s desire to expand random drug and alcohol testing to contractor employees should not influence how the tribunal balances unionized employees’ privacy against worksite safety. But the majority went further, and unreasonably concluded that these “jurisdictional” considerations required the tribunal to blind itself to logically relevant evidence.
The Alberta Court of Appeal dismissed Unifor’s appeal and affirmed the reviewing justice’s decision to remit the matter to a new arbitration.
Our Views
While the question before the Alberta Court of Appeal was whether the reviewing court chose and applied the appropriate standard of review, this decision represents some progress for unionized employers seeking to implement random drug and alcohol testing for workers occupying safety-sensitive positions. This decision is one of several recent decisions that appear to be prioritizing the health and safety of the workplace over the individual rights of employees (see TTC, Elk Valley Coal). While the matter is being remitted to a new arbitration panel for reconsideration, we are hopeful that Suncor will succeed in upholding its random drug and alcohol policy given the evidence that it presented before the original panel; in particular, 2,276 documented on-site drug and alcohol incidents. Once the entirety of Suncor’s substance abuse evidence is considered (including evidence outside the bargaining unit), it seems likely that it will be able to satisfy the high bar set by the Supreme Court of Canada in Irving thereby permitting random drug testing of workers in safety sensitive positions (i.e. a “pervasive problem” or “out-of-control drug culture”). That said, Unifor has signalled that it intends to appeal, recently stating that it will: “take all available action to fight this abusive policy, including a potential motion to seek leave to appeal to the Supreme Court of Canada.” We will keep our subscribers up-to-date on any future developments.