Case Name:
Cascadia Terminal v. Grain Workers' Union, Local 333

IN THE MATTER OF an Interest Arbitration
Between
Cascadia Terminal (the "employer"), and
Grain Workers' Union, Local 333 (the "union")
(Time Keeping System)

[2004] C.L.A.D. No. 43

Canada
Labour Arbitration
V.L. Ready, Arbitrator

Heard: December 16 and 23, 2003.
Decision: January 30, 2004.
(36 paras.)

Appearances:

Chris Leenheer, for the employer.
David Davis, for the union.

INTRODUCTION

 1      This issue arose out of an Interest Arbitration Award I published on January 8, 2003. The Award established a renewed Collective Agreement between the B.C. Terminal Elevator Operators' Association and the Grain Workers' Union, Local 333. This Employer, Cascadia Terminal, is a member of the Association and is signatory to the Collective Agreement.

 2      At the time of the issuance of the Interest Arbitration Award there were a number of outstanding issues regarding past practices and Letters of Understanding. In the January Award I urged the parties to resolve these outstanding issues, but failing such resolution, the parties could return to me for a binding decision. At pages 33-35 of the January Award I outlined the procedure as follows:

These issues were canvassed in the Conciliation Commission Report. Briefly stated they deal with a number of past practices and Letters of Understanding. Some are more contentious than others.

The Employers continue to aggressively pursue these matters in the context that some of them should be resolved as part of this award.

I am of the view that these matters have some historical significance and should be properly discussed and resolved away from the heat of collective bargaining.

Therefore, I award that the parties meet and attempt to agree upon changes in the Letters of Understanding and past practices, upon receipt of this award.

In the event any matters are not resolved within three months after the publication of this award, or a period of time otherwise agreed between the parties, such matters shall be referred to me by written submission for a final and binding decision on an expedited basis. The terms of reference for the procedure will take into consideration: the purpose of the practice or Letters of Understanding; the impact of removing or continuing the practice or Letters of Understanding; the continued need for such practice or Letters of Understanding, the day-to-day efficiency of the operation, and the impact on employees.

I make a final observation on these matters. That is, some of these issues have been a bone of contention between the parties for a period of time covering several Collective Agreements. Therefore, I strongly urge the parties to make a real and concerted effort to resolve these outstanding practices and Letters of Understanding issues.

In my view it would be beneficial to the parties' relationship if they were able to resolve these issues themselves.

 3      The issue which the parties have referred to me under the preceding process is that of a new time keeping system which the Employer wants to implement. In order to fully understand this issue, it is necessary to offer some background.

BACKGROUND

 4      The Employer has had a number of time keeping systems. Until 1991 the Employer used a variety of time clock systems in which the employees at the terminal would manually punch in and out for their time at work. In 1991 the time clock system was abolished and a manual timesheet system was implemented. The General Manager at the time distributed a letter to all employees when the timesheet system was implemented. Excerpts from the letter read as follows:

As a result of a meeting held on July 15th at AWP Terminal between the Terminal Manager, his assistant, the Chief Shop Steward and his entourage, Don Leatherdale and myself, it has been agreed that a study will take place to achieve an objective of a complete removal of our time clock punching system.

The reason for this is to place more emphasis upon the honesty and integrity of our employees, and generally place the responsibility of time recording where it belongs - with the individual employee. (Subject of course to Supervisory review).

As this is a bold, new step for our union environment, it is anticipated that such a change will meet with a lot of skepticism and reluctance to change. It is our belief of this group, however, that it is just such a change which will assist with our goal of "humanizing" the working environment for our employees, and to protect and better the overall morale of the terminal employees.

 5      In 1996 the Employer advised the Union that it wanted to implement an electronic time keeping system. The Union opposed its implementation. In February of 1997, the Employer approached the Union with its desire to implement a direct deposit banking system for employee pay cheques. The Employer wanted the Union's cooperation. The Union saw this as a way to eliminate the notion of an electronic time keeping system - i.e., the Union would provide its cooperation on direct deposit in exchange for the elimination of the concept of an electronic time keeping system. On February 13, 1997, the parties met to discuss these issues. The next day, the Employer issued a memo to all employees. The second to last paragraph of the memorandum reads as follows:

The rest of the system will appear as before. Employees will continue to fill in their timesheets as they currently do. There will be no punch/swipe clock instituted now or in the future as a result of the new system.

 6      This paragraph later became quite controversial since the Union felt that it had received a commitment that the Employer would never implement an electronic time keeping system.

 7      The Employer did not share the same view of the February, 1997 meeting, nor its resultant memorandum. In late April of 1998, the Employer approached the Union with its intention to implement a phone time keeping system. The Union grieved, arguing that this was a breach of the February, 1997 commitment not to implement an electronic time keeping system.

 8      The grievance went to arbitration in 1999 before Arbitrator Marguerite Jackson. Arbitrator Jackson found that the memorandum did not commit the Employer to never instituting an electronic time keeping system, nor did the memorandum represent a legally binding agreement. Further, Arbitrator Jackson found that although the Employer had the right to implement the new system, it was estopped from doing so because the Union had been led to believe that the Employer would not do so. At paragraph 82 of her award, Arbitrator Jackson states:

In this case the union was reasonably led to believe that the company would never institute a time clock. However, the very nature of labour relations in the organized sector and the collective agreements that form its centre, is that everything is up for grabs when a new agreement is negotiated. The only other forum in which the union would have the opportunity to negotiate with respect to a time clock, coupled with any "clout", would be when collective bargaining commences for a new collective agreement. In my opinion the estoppel should endure until the union has that ability to bargain. With this in mind, it is my conclusion that the estoppel in this case should operate until the expiry of the current collective agreement.

 9      The Jackson Award was issued on January 24, 2000. The Collective Agreement between the parties expired on December 31, 2000. On February 9, 2000 the Employer wrote to the Union with its intention to discontinue the manual time sheet system and implement "a form of punch clock time keeping system". The Union responded by letter dated March 14, 2000, objecting to the implementation of the new system until collective bargaining was complete:

As discussed at the meeting of March 8/00, the intent of estoppel is to allow either party to effectively address the issue in bargaining. Therefore, any changes should not take place until bargaining is completed.

 10      On July 9, 2001, the Employer again wrote to the Union with its plans to implement a "better system of time keeping for the union staff". That letter reads as follows:

This is to inform you that Cascadia Terminal management is planning to move ahead with a better system of time keeping for the union staff.

We continue to see people making errors with the existing system, which causes far too much extra work to manage.

There are several systems available to us that will make it convenient for the employee and more efficient for us to manage people's time and attendance. There is no set timeframe for this to happen but I thought it only fair to advise you that we plan to move forward with this.

 11      On July 12, 2002, the Union responded to the Employer objecting again to the implementation of the new time keeping system until after the conclusion of negotiations. The first paragraph of the Union's letter reads as follows:

I am sure you realize that new time management system cannot be implemented until negotiations have been completed, that is, unless we are successful in obtaining language that will guarantee no time clocks at Cascadia.

 12      On July 17, 2001, the Employer wrote to the Union disagreeing with the Union's interpretation of when the new system could be implemented and describing the current system as "cumbersome" and "inaccurate".

 13      The implementation of a new time keeping system continued to be a bone of contention between the parties at bargaining. Negotiations broke down and resulted in a lockout in 2002. I was initially appointed to the dispute as a Conciliation Commissioner by the federal Minister of Labour. As a result of this appointment I issued a report on June 30, 2002. However, the ultimate resolution to the dispute came on January 8, 2003 when I issued my Interest Arbitration Award concluding the parties' Collective Agreement.

 14      Following the publication of the Interest Arbitration Award, the parties met on January 24, 2003 to discuss a list of "letters of estoppel" regarding past practice and Letters of Understanding. These letters of estoppel had been issued by the Employer in 2000 and were the letters I referred to initially in my 2002 Conciliation Report:

One of the somewhat unusual features of this collective bargaining dispute is that the Employers sent out a set of letters to the Union prior to the expiry of the Collective Agreement. This letter gave notice, to the Union, of the Employer's intention to cancel previous Letters of Understanding and Past Practices. The Employers have taken a somewhat aggressive position by reiterating that the resolution of these past practices are an integral part of the resolution of the overall dispute. They also assert that the funding which they have suggested be made available under a new Collective Agreement is, in part, justified by savings and efficiencies which will arise from changing the understandings and past practices involved.

 15      Following the January 24, 2003 meeting in which the parties discussed the issues addressed in the letters of estoppel, the Employer issued a letter to the Union outlining these issues. The time keeping system issue was described as follows. The letter outlined the Employer's intent to again proceed with implementation:

Time clock issue: the company is following the directive of Marguerite Jackson who said that we must write an estoppel letter to take effect at the end of the past agreement in order for us to proceed with the new time keeping system. We have done this and are moving ahead now. The union has been offered a chance to input to the perimeters of the system.

 16      On February 18, 2003, the Union sent an electronic message to the Employer stating that the Employer should not unilaterally implement the new system, but wait for the process established in my January Interest Arbitration Award (outlined in the introduction to this Award). Part of the electronic message from the Union reads as follows:

I have just received information that the Company is going ahead with the Time Attendance Hand Recognition system tomorrow, Wednesday February 19th 2003. In a previous email I had mentioned that all letters of estoppel according to the Ready Award must be negotiated, and if unsuccessful, then Ready would make a binding decision on them. The time system was one of those letters of estoppel that arose out of the Arbitration decision of M. Jackson in 1999 where the Company gave notice of estoppel that they intended to go to a different time attendance system. The Union had put a proposal in that asked that the Cascadia time attendance system remain the same. The parties agreed at negotiations that all letters of estoppel would be set aside and after the Collective Agreement had been settled that the parties would then negotiate within three months, and if unable to resolve, then V. Ready would make a binding decision.

 17      The parties met to discuss the issue but were unable to resolve it. Hence it has been referred to me for a binding decision.

POSITION OF THE EMPLOYER

 18      The Employer's position is that it has the management right to institute any form of time keeping system. The present time keeping system is a manual system via timesheets filled out by the employees. In the Employer's view, the current system is fraught with problems and inaccuracies. The Employer is proposing a new hand punch system. It is an electronic device that records an individual's hand by taking measurements of same. The device then identifies the individual by recognizing the hand size and shape. The information recorded in the system will include "punch in" and "punch out" times. In this way not only will time be accurately recorded, but the employee's presence in the plant will also be recorded. According to the Employer, this will allow it to accurately determine who is in the plant at any given time - an important safety factor in the event of an emergency.

 19      The automatic system will also drastically reduce the need for an administrative assistant to input and verify data. Hence, the new system will be more efficient and accurate, in the Employer's view, and reduce costs associated with payroll keeping.

 20      In summary, the Employer submits that it followed the Jackson Award by not implementing a new time keeping system until the expiry of the Collective Agreement on December 31, 2000. The Employer then followed my January, 2003 Award by meeting with the Union to discuss the issue, but was unable to agree.

 21      Notwithstanding both the awards, it is the Employer's position that it does not need the Union's agreement to implement the new system. It requests a declaration from me that the Employer is within its management rights to move forward with the hand punch time keeping system.

POSITION OF THE UNION

 22      The Union maintains that it was only made aware of the biometric Hand Recognition System when it met with the Employer after the January, 2003 Award. It objects to such a system as a result of concerns about privacy and safety, as well as the fact that such a system would defeat some of the initial reasons why the Employer moved away from a time clock system in 1991. When the timesheet system was implemented in 1991, the intent was to "humanize the workplace by trusting and giving responsibility to employees". The Hand Recognition System, in the Union's view, defeats that principle and introduces mistrust back into the work environment.

 23      The Union describes the proposed Hand Recognition System as one with potential invasion of privacy issues. Since it is a biometrics device measuring individuals' characteristics and storing them in a database, the Union states that individuals should have the right, not the Employer, to voluntarily control what information about themselves they will give to others. This is not a voluntary system but a mandatory one, and the issue of privacy is an immediate concern to the Union. On the privacy issue, the Union relies on the following authorities: Personal Identification in Networked Society by Anvil Jain (1999); Ross vs. Rosedale Transport Ltd., 2003, C.L.A.D. no237; St. Peter's Health System and CUPE 778, reported in 106 L.A.C. (4th).

 24      From a health and safety point of view, the Union opposes the Hand Recognition System since some biometric systems dry the users' hands, but more importantly, diseases may be transmitted from the machines where the employees have to place their hands. In this regard the Union cites an article in the Journal of Emerging Infectious Diseases, Vol. 7, no2 entitled: "Hygiene of the Skin: When Clean Too Clean" by Elaine Larson from the Columbia School of Nursing; and the Canada Labour Code Part II - Occupational Health and Safety, Sections 124 and 125.

 25      Finally, the Union asserts that electronic monitoring may cause stress amongst the employees.

 26      In sum, the Union submits that the Employer has proposed a new Time Attendance System which is different than the one which was being considered during negotiations. Since the new system identifies new concerns such as the privacy issues for example, the Union requests that I take that into consideration.

 27      Finally, the Union submits that the Employer has moved steadily from a swipe system to a phone system and now to a biometric system. The Union argues that the Employer's movement to more sophisticated systems and invading employees' privacy is not the making of good labour relations.

DECISION

 28      First of all, let me begin my analysis by incorporating the reply submissions of the parties since both parties seem to have a clear understanding as to what the issue really is, although they describe it somewhat differently. In the Employer's reply submission, it reiterates that my task is not to decide whether the Employer can institute a biometric Hand Recognition System, but a time keeping system that differs from the current one. In its final submission, the Union submits that the Employer does not have the unfettered unilateral right to implement any form of time keeping system, but is restricted by the type of system based on my January, 2003 Award in which I outline the factors against which the current practice is going to continue, be amended, or removed. The proposed system is also fettered by issues of privacy and health and safety concerns, according to the Union.

 29      Both parties, in my view, are correct in identifying the issue and my task in this decision. The basic issue in this case is not what kind of time keeping system can management implement, but can the Employer change the current system and implement a new one. I believe the Employer has that basic right.

 30      A review of the parties' Collective Agreement reveals no fettering of that right. The Jackson Award emphasized that the Employer had the legal right to implement the system, but because of the events which took place in February of 1997, the Employer was estopped from immediate implementation of the new system until the expiry of the Collective Agreement in December of 2000. When the Union objected to the Employer implementing a new system in 2000 because it would defeat the purpose of the estoppel order (i.e., so that the Union would have a chance to address the issue during collective bargaining), the issue became merged into the collective bargaining process and bargaining events overtook the time keeping issue. As we know, the collective bargaining process began in 2001, ended in a lockout in 2002, and concluded in my subsequent Award in January of 2003. However, at that time, the issue was being described as a past practice and got rolled into the process outlined in the introduction to this Award. Consequently, the factors upon which I am to review such practice are worth repeating: purpose of the practice, the impact of removing or continuing the practice, the day-to-day efficiency of the operation, and the impact on employees. It is based on these factors that I have reviewed the time keeping system and the parties' positions on same.

 31      Any time keeping system's purpose is to accurately record time so that employees are paid properly. The Employer stressed that there are inaccuracies with the current manual system and gave examples of these problems. The Union did not refute these problems, but concentrated, instead, on the impact on employees of the removal of the manual system and implementation of an electronic system. Such impact is characterized by the Union as dehumanizing the workplace and making the employees feel that they are not trusted. Moreover, the system being proposed could be characterized as an invasion of privacy because of its data collection and the potential uses of such data.

 32      Although I am not discounting these concerns, the Union failed to substantiate them. Many of its concerns related to the very issue upon which the Employer moved away from the time clock in 1991. But a lot has happened since 1991. When technology was first being introduced into the workplace and into our personal lives, individual's privacy appeared to constantly be invaded - whether that took the form of the computer on one's desk(s), the deposit of one's cheques directly into one's bank account, the withdrawal of one's funds via an encoded card such as the debit card, etc. Society was constantly being bombarded with such concerns and the workplace was no exception. However, times have changed. Now, on average, every home has at least one computer with internet links around the world and our personal data being exchanged on international circuits. Individuals now use their debit cards in any country while travelling, and if they lose the card they feel very inconvenienced.

 33      By making these statements, I am not invalidating the Union's concerns. I think they are valid and it is incumbent upon the Union to bring them to the Employer's attention. However, the Employer has been faced with varying concerns since 1998 when the Union first raised the grievance. It is now six years later and time to move forward.

 34      Regarding the health and safety factors raised by the Union, again I find that the Union failed to substantiate them. I accept that diseases can often be transmitted via one's hands. However, any hand held device (such as a phone, a lever on a time clock, a pen utilized by many, a tap on a washroom sink, a lever on a paper towel machine, etc.) could potentially produce the same results.

 35      However, I am not a medical expert, and my task is a labour relations task. Therefore, from a legal point of view and having considered the factors outlined in my January, 2003 Award, I find that the Employer has the right to move from its manual system of timesheets into a new time keeping system - whatever that system might be, subject only to the raising of valid concerns by the Union and the Employer being willing to listen to those concerns. Like any system, such benefits and/or deficiencies will often only become known once the system is implemented and utilized.

 36      It is so awarded.

QL UPDATE:  20040329
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