|
|
MARCH 2011
GRIEVANCE COMMITTEE REPORT
CONTENTS
1) Policy Grievances
– New Policy Grievances 2010/2011
2) Arbitration
– CHQ-09-33 – E.I Top-Up
3) Update on Recent Arbitration
– YVR-09-73 – Sick Leave Substantiation
– CHQ-09-35 Layover Hotels Selection- Safety, Security and Standards
4) Update on Grievance Reviews: Policy, Discipline and Non-Block Rules Individual Grievances
5) Update on Grievance Reviews: Individual Block Rules Grievances
6) Meal Allowance Grievances
– Special Meals
– Pay Claims for Meal Allowances, Pay Issues, Crew Cycle Expenses and Ground Duty
– Supporting Documents
7) Grievance Status Communication
8) Withdrawn Grievances
9) Grievance Files
– Supporting Documents
– Level I Responses
– Individual/Group Grievances
10) Grievance Time Limits and Check List
– Grievance Time Limits Review
– Grievance Check List
11) Closing Remarks
POLICY GRIEVANCES
New Policy Grievances 2010/2011
CHQ-10-16 Sick Book Off Improper Procedure
Air Canada violated the Collective Agreement by including the requirement of cabin crew to report unavailable for work in a manner not consistent with the terms of the Collective Agreement, and in a manner that is unreasonable, including a requirement by an individual to be available for a phone call from the employer after he/she has “booked off” sick (with a threat of loss of pay credits if not available). Arbitrator Kaplan heard this case on November 10th, 2010 and rendered a decision which was in our view beneficial to our members. Our members are not required to remain at home when they are booked off and do not need to be available for a telephone call under threat of pay loss. They also are not required to decide whether or not they will be able to operate their next flight. They should return phone calls that were made to them by Air Canada but do not need to remain at home to wait for them.
CHQ-10-25 Crew Rest (Between Flight Sequences)
Air Canada has violated the Collective Agreement by not providing crew rest facilities for crew between flight sequences and/or by providing inadequate crew rest facilities. Currently we have addressed this with Air Canada and they have promised to provide single accommodation however we have not received a written confirmation of that. They seem to be applying it and we have not had any complaints. If you are aware of Air Canada not providing single accommodation please let us know immediately.
CHQ-10-32 Bid Packages – Reduction in Number of Packages Printed
This matter went before Arbitrator Martin Teplitsky on August 10th, 2010. Mr. Teplitsky encouraged the parties to work it out. In the interim he ordered the status quo. If the parties were not able to work it out, he suggested that they come back to him in 30 days and he would listen to the parties. He stated that the legitimate interests of both parties must be respected and that there should be sufficient printing for computer illiterates like himself. We are now considering our options. A proposal was drawn up, however there has been a change in direction and we are not certain that this proposal will be acceptable. ACCEX will be discussing this. In the meantime we have asked the local offices to keep track of how many bid packages are being printed. This may be valuable evidence for the union and we appreciate their assistance.
CHQ-10-46 Mandatory Retirement
Air Canada has violated the Collective Agreement by including the maintenance of a policy that requires an individual to retire at sixty-five years of age. This grievance was heard at Level II and a decision was given by Air Canada. This decision requested that the parties discuss the Mandatory Retirement issue after a decision had been rendered in the Vilven and Kelly case. We are now strategizing to determine our next steps as there was a recent decision in the Vilven and Kelly case. This decision is being carefully studied and we will establish our position for the go forward once we have done our evaluations of the jurisprudence.
CHQ-10-53 Improper Introduction of eLearning
Air Canada has improperly, arbitrarily and unreasonably introduced a change in the method of training. This includes but is not limited to the introduction of eLearning. We have issues with the eLearning and are gathering information and evidence with the help of our members. Please continue to provide to Ivana Jovic with any and all documentation which comes to you that concerns the eLearning program.
CHQ-10-55 Introduction and Improper Implementation of the Consent for the Release of Medical Information form
Air Canada has implemented a form entitled “Release of Medical Information”. We feel that this form is not in keeping with best practices in regards to the privacy of medical information and is much too broad in scope. There was a Level II hearing held on this matter and we await Air Canada’s decision.
CHQ-10-64 Jetz – LOU 45
Air Canada was not complying with L.O.U. 45 by providing CUPE with all flights contracted within 5 business days of the signing of a contract or an amendment thereof between AC Jetz and its customers.
CHQ-10-65 Introduction and Implementation of Non-Revenue Fitness for Air Travel Medical Information Form for Employees
Air Canada introduced and implemented the Non-Revenue Fitness for Air Travel Medical Information Form for Employees. We feel that this form is asking for too much information and is not in keeping with best practices when requiring medical information from its employees. There was a Level II hearing held on this matter and we await Air Canada’s decision.
CHQ-11-01 Denied Union Release
Air Canada denied the release of a Health and Safety Committee member. This is not acceptable and the Union has filed a grievance to address this.
CHQ-11-10 Health and Safety – YYC Parking Lot
The parking lot accommodations in Calgary are unacceptable. They are not promoting/providing safe practices and safe working conditions to ensure the safety and health of employees. We have filed a grievance to address this and also to ensure that this does not happen at other bases.
ARBITRATION
CHQ-09-33 – E.I. Top Up
Air Canada violated the Collective Agreement and has failed to submit an amendment to Service Canada when there was a change to the list of Work Share program participants. We have prepared our case and have sent out correspondence to all of the affected individuals. We have received the documentation for the most part. This issue is returning to be heard before Arbitrator Keller on April 29th, 2011. To be arbitrated on this day as well, is the issue of some of the deductions that Air Canada has made to the commuter fund. We object to these deductions.
UPDATE ON RECENT ARBITRATION
YVR-09-73 – Sick Leave Substantiation
We recently received a beneficial ruling from Arbitrator Kaplan, which will assist us when Air Canada is acting unreasonably in regards to sick leave substantiation. Megan Reid provided a short explanation below which you may find useful.
The Company cannot issue blanket requests for substantiation for a particular time period (e.g. winter holidays, March break) or off a particular flight (e.g. all Sydney pairings). Arbitrator Kaplan has ordered Air Canada to cease and desist issuing these types of blanket requests. Air Canada can ask for medical substantiation based on the individual circumstances of the Member.
From the award:
“In my view, the grievance should be allowed. To be sure, the employer advanced a reason for the request, but that reason, given the decided cases, and arbitral principles considered more generally, is insufficient to support the request that it made. The cases make clear that requests of this kind must indicate why the employer is asking for medical substantiation. Accordingly, a generalized concern about high levels of sick leave during a particular time period is not sufficient. The same, by analogy, can be concluded with respect to high levels of book offs on particular flights. What is required is a reason why medical substantiation is being requested based on the circumstances of the individual employee.”
CHQ-09-35 Layover Hotels Selection- Safety, Security and Standards
We have taken issue with the preferential treatment of the pilots in Tel Aviv at the Crowne Plaza. Mr. Kaplan mediated this issue at a monthly review hearing. He felt that there should not be preferential treatment and that we should all be treated as equals. We will move forward with this issue. ACPA has indicated that they will be asking for intervener status should we go to arbitration. We hope to have some resolution on this matter as it has a large effect on our working conditions.
UPDATE ON GRIEVANCE REVIEWS:
Policy, Discipline and Non-Block Rules Individual Grievances
The next Grievance Review with Arbitrator Kaplan will take place on March 9th, 2011.
UPDATE ON GRIEVANCE REVIEWS: Individual Block Rules Grievances
CUPE and Air Canada hold block rule hearings at regular intervals.
Any settlements reached are on a without prejudice, without precedence basis and only involve grievances based on case-specific circumstances.
We depend on the local offices to provide all appropriate and relevant documentation which allows us to go forward with confidence in our position.
When preparing supporting documentation for block rule or move up grievances it is crucial to provide the following:
1. Grievor’s original PBS block
2. Grievor’s final duty plan from Netline
3. Grievor’s final hours printout from Netline
4. Grievor’s scheduled pairing details
5. Grievor’s subsequent pairing details a, b, c, etc….
6. Grievor’s duty plan history (showing timestamps)
7. Crew lists
8. Original block holder individual duty plan
9. Original block holder duty plan history (showing timestamps)
10. Request appropriate list from central site, or retrieve from Netline, i.e. detailed summary report, open flying list (initial, final), vol. ext. list, draft list, reserve list, etc……..
11. Final flight manifests when appropriate
12. Grievor statement as soon as possible
13. Copies of pay claims
14. Company denial letter
15. Basic fact sheet outlining events
MEAL ALLOWANCE GRIEVANCES
Special Meals
CHQ-06-30 Special Meals
The Union presented this policy grievance at the January 6th, 2009 monthly review.
Arbitrator Teplitsky issued an order which specifically stated:
“The employer is to supply special meals or pay expenses as per the Collective Agreement.”
At this hearing on January 6th, 2009, the individual grievances were discussed as well as the fact that they were still outstanding and needed to be resolved.
The company asked that the Union send them the information on all the individual grievances with the understanding that they would be paid out. The Union did so and while attempting to get an update on the status of payments, was told that the company was not interested in settling the outstanding grievances and would only be paying production costs.
On March 30th, 2009 Arbitrator Teplitsky gave the following ruling:
“In general, going forward, Air Canada must accommodate bona fide religious or dietary meal requirements or provide a reason why it cannot accommodate. If Air Canada simply does not supply an appropriate meal, then the employee is entitled to be paid as per the Collective Agreement. All outstanding grievances must either be settled or a date fixed for a hearing”.
On May 7th, 2009 Air Canada had stated that it had been confirmed by OHS that all the employees on the production cost list could have been accommodated with a meal type. The Union asked when outstanding payments would be processed for these members, in order to clear up all outstanding claims.
Air Canada subsequently sent letters out to all members and referred to a special form that can be filled out entitled “Religious Special Meal Validation Form”. This would identify their specific meal requirements and allow Air Canada the opportunity to accommodate them. The bottom line is now this:
If an F/A cannot eat regular meals, and provides medical/religious substantiation, Air Canada has a duty to accommodate them by providing a special meal. If there is no special meal that meets a F/A’s needs, only then would the F/A be entitled to another form of compensation, which we argue, should be full expenses.
NOTE: The flight attendant may be required to provide medical documentation to support their claim. e.g. A member states that they cannot eat any meals offered by Air Canada because they can only eat organic food and Air Canada is unable to provide them with organic meals. We would need medical evidence supporting the member’s assertion that he/she is unable to eat inorganic food. Their treating physician would have to provide evidence on this issue and be cross-examined. We would be required to show this is a recognized disability that needs to be accommodated.
CUPE is still following through in an attempt to resolve all outstanding previous meal grievances that are remaining from the Special Meal/Production Costs program.
Air Canada has withdrawn an offer that was made to settle outstanding Special Meal grievances. We must now return before Arbitrator Teplitsky to have this resolved once and for all. Mr. Teplitsky’s next available date is June 2nd, 2011.
Pay Claims for Meal Allowances, Pay Issues, Crew Cycle Expenses and Ground Duty
Pay claims are now available on aeronet. It is entitled eClaim. Members will be able to submit these on line and obtain a proof of submission for following items:
- Pay Adjustment
- Ground Duty
- Meals not Boarded (to be used also for flight attendants who do not get their special meal required for medical/religious reasons and for reserves who cannot order their special meals for medical/religious reasons only)
- Crew Cycle Expenses (Form A’s do not need to be submitted when a claim is sent electronically for a meal not boarded, however the grievor should retain a copy signed by the Service Director in case it is required in the future)
Supporting Documents
In order to accurately apply the provisions of the MOA to the claims in question, it is necessary that all the information is included. Although the differences between scheduled flights and actual flights may seem insignificant at first glance, it is crucial in determining the applicable meal entitlements and essential when making our case to the arbitrator.
GRIEVANCE STATUS COMMUNICATION
Policy grievances are sent via email to all Locals and are posted on the website. Please note that CHQ’s that include names of members such as Discharges are not posted on the website for privacy reasons. A copy is sent to the local offices.
Orders and awards will continue to be immediately sent to all Locals as soon as we receive them. Please keep in mind that in some cases it can take up to several days or weeks to receive the signed orders from the arbitrators. Nonetheless, if the issue is of an urgent nature, we will advise the grievor of the decision pertaining to his/her grievance following the hearing.
Please continue to send confirmation of grievances which are resolved at Level I via email. In order to avoid closing grievances when they should continue forward, we always wait for confirmation from the Locals prior to removing them from the monthly reviews.
Ivana Jovic @ i.jovic@accomponent.ca is the person responsible for keeping the grievance database up to date. Please make sure that you always send a copy of the grievances that you have filed so that we can keep track of them. Ivana does an excellent job; however we definitely depend on the locals to keep us informed. This way we can ensure that the database is accurate. We have many members calling to check the status of their grievance and it is helpful to be current with the information. Ivana is also our resident expert on Labourware and we recommend that if you have any inquiries to please direct them to her.
Withdrawn Grievances
When a grievance is withdrawn, after the Component has sent a letter to the member advising him/her that his/her grievance will be heard by one of the Arbitrators, a letter is sent to the grievor (and copied to the Local) detailing the reasons for the decision.
A letter should also be sent to members by the locals when grievances are withdrawn at Level I or denied by component for movement to Level II. The letter should outline the reasons for withdrawal in order to ensure members do not perceive this as a lack of due process.
Grievance Files
Supporting Documents
Many grievances result in being withdrawn or dismissed by the arbitrators due to lack of proof. As you know, except in discharge and discipline cases, the onus of proof rests on the Union. It is therefore essential that w
e obtain the information necessary to support the claim.
Furthermore, when we present a weak case, the arbitrator is more likely to push for a settlement whereas a strong case will produce better results for the grievor.
We also have received various grievances that have a pay issue attached to a 517. We are in a better position to file the grievance as a pay loss issue rather than disputing the 517. We have agreed through the grievance protocols to have 517’s remain on the files of the grievors for two years. The 517 is to be considered an administrative code rather than discipline. We would like to focus on getting money recouped for individuals who lost it due to a 517 code.
In summary it is better to file the grievance based on loss of pay, not on the basis of the grievor having received a 517.
A check list of all required items has been provided in an effort to ensure no documents are missing from the files. We continue to receive incomplete grievance files which creates a problem when drafting briefs and preparing grievances for the hearings. Please ensure all information is in the files.
Now that we have Labourware we ask that any and all supporting documents be attached to the grievance in Labourware.
In regards to block rule grievances we require that the local office compile all required paperwork prior to sending the grievances to us. Also, any requests for tape reviews should be done at the local. Phone logs (billing statements) can also be requested from the company to make your case. For example, 100 hour lists, reserve lists and draft lists are only kept for 12 months from the current month. All information gets sent to archives and has not been retrievable to date. At the Component Level, we sometimes get the grievance, but by the time that we receive it, some very important information becomes unavailable to us due to time lapses. Please ensure that the actual and scheduled pairing details are included, histories, book off times, open flying lists, etc…….. All this information is required prior to sending the file to Level II, as some of this information may not be retrievable after a year.
We really depend on you to assist us in presenting a strong case. It may also be useful to the Local offices because some grievances hinge on one piece of information. When that piece of information is added to the puzzle it strengthens our case or in the alternative it may cause us to realize that there is no grievance.
The check list attached at the end of this document, must be included in all the grievance files forwarded to the Component as the first page of the file. We have added a new line to the check list. This information will be useful for some award sequence grievances. Grievances sent without all the required documentation will be sent back to the Locals to be completed. Now that Labourware has been implemented we ask that you include the checklist in your attachments. This way we will know what information has been provided.
Level I Responses
Level I responses can be a very useful part of the grievance process. It is possible that there was evidence not available to us at Level I and the response that the Company gives us could lead to a clearer understanding of the situation from their perspective. We can use the Level I response and do further investigation/ evidence gathering with the new information provided by the Company. (i.e. for block rule grievances – if the grievance is denied because AC says the crew member isn’t legal then you should investigate this. If it is indeed true then there would be no basis upon which to proceed. If it is not true you can use this as an opportunity and gather the required documentation to show Anthony Bursey that he is incorrect in his response. When this has been done, you can then see if a settlement can be reached. If no settlement is reached, then the file can be sent to Level II with all supporting documentation and the reasons why it is being sent to Level II. Grievances should not be sent to Level II until all attempts at Level I have been exhausted.)
(i.e. for meal grievances – if the denial letter says member has to claim under “meal not boarded”, then local must write the grievor to ask them to eClaim under this. Only if denied again, would the file be sent to Level II. Once again, all Level I responses must be investigated and if found to be inaccurate, documentation should be resent in an effort to resolve at Level I before sending file to Level II.)
Individual/Group Grievances
Supporting documents must include a statement from the grievor and/or the Union officer regarding the nature of the incident. This is especially important in disciplinary cases.
The grievor should be requested to provide the Union with their own response to the discipline imposed by the Company. In addition, discipline grievances should contain the service date of the employee and all documents relied upon by the Company.
Once a grievance has been filed, you should request all documents as per Article 13.08 “Upon request, either party shall provide the other party with copies of all documents relative to the grievance”. You should have these documents prior to your Level I hearing.
We know that this has been problematic in some cases and we are working on solving this problem.
It is also recommended that you request the grievor’s personal file.
For this purpose the member will need to sign a form authorizing the release of the documents. This can take a lengthy period of time as the files are kept at Hewitt and are transferred to management at the employee’s or the Union’s request.
Any letters of commendation and/or other discipline that are in the employee’s personal file should be included in the grievance file.
Grievance Time Limits AND CHECK LIST
Grievance Time Limits Review
The issue of time limits has hindered the outcome of many grievances. The Company constantly challenges our cases on timeliness. In addition, they use time limits to argue that they cannot recreate the award sequence or review open flight bid months after the fact. Furthermore, the arbitrators have demonstrated their discontent with our failure to do things in more timely fashion.
Thus, it is crucial that time limits are adhered to.
Following is a review of time limits for discipline and non-block rule grievances, block rule grievances and meal grievances.
Time Limits for Discipline Grievances
10 days of receipt of the Company decision exclusive of Saturdays, Sundays and statutory holidays.
Time Limits for Non-Block Rule Grievances
60 days after the grievor would reasonably have knowledge of the issue, exclusive of Saturdays, Sundays and statutory holidays.
Time Limits for Block Rule Grievances
Pay claims must be filed within 14 days of the scheduled departure.
If the employee files a pay claim, the 60 days start from the date the employee receives a response to his/her claim.
If the employee does not file a pay claim, the 60 days start from the date the employee becomes aware of the error/violation.
The 60 days are exclusive of Saturdays, Sundays and statutory holidays.
Time Limits for Meal Grievances
Paragraph 13 of the Meal Entitlement – MOA states that either party can file a pay claim for an alleged underpayment or overpayment. The member or the Company has 12 months from the date of the alleged underpayment or overpayment. This would be the 17th day of each month when the employee receives payment from the employer.
The Company must respond within 30 days of receiving the claim. If the claim is denied and/or the member does not receive a response within 30 days, a grievance should be filed.
In the event that the Company fails to board a meal, the time commences on the date of the flight as the employee would have knowledge that the meal was missing during the flight. This includes meals for members who are deadheading and do not receive a meal on board.
When submitting meal grievances please continue to provide us with a copy of the following (if applicable):
- eClaim copies and company responses
- Form A – if the meal was to be boarded while operating or deadheading (with Service Director’s signature).
- Form A and the teletype confirmation – for a special meal ordered and not boarded.
- Form B – If there has been an underpayment
- Pay Summaries, Pairing Details and Master Schedules.
All of the pertinent documentation is very important to a successful outcome for us and we appreciate your attention to detail and all of the detective work that you do.
Grievance Check List
|
Grievance Form |
|
|
Level I Company Response |
|
|
Notes from Level I Hearing |
|
|
Letter of Discipline (if applicable) |
|
|
Union Officer Statement (who dealt with the case) |
|
|
Grievor’s Statement |
|
|
Reports (witness statements, complaint letters, etc.) |
|
|
Pay Claim (if applicable) |
|
|
Form A / B (ML grievances) |
|
|
Company Response to Pay Claim |
|
|
From employee their Scheduled Block(s) from the Block package / PBS |
|
|
Master Schedule(s) |
|
|
Scheduled Pairing(s) from the Block package / PBS |
|
|
Actual Pairing + all changes |
|
|
Crew List (if applicable) |
|
|
Planned Absence |
|
|
Flight Attendant History |
|
|
Flight Attendant History of Original Crewmember |
|
|
Other Documents _________________________ |
|
Closing Remarks
The Grievance Committee is grateful to be working together with the local offices and it has been our pleasure to work collaboratively to settle cases and to help our members.
We have new leadership and we are pleased to say that education is on their agenda. We would like to establish some new approaches to education and to utilize the resources available to us. As you can imagine this undertaking will require great planning and we have our work cut out for us in working out the details. We do however truly believe that knowledge is power.
We will work together and learn together and this alone will be a powerful team building exercise.
“Teamwork is the ability to work together toward a common vision. It is the fuel that allows common people to attain uncommon results”.
~Andrew Carnegie
We certainly hope that with the upcoming bargaining and the many challenges ahead of us that we will be able to work together and achieve uncommon results.
In solidarity,
Theresa Mitchell
Chairperson, Component Grievance Committee
Carmela Iermieri
Member, Component Grievance Committee