IN THE MATTER OF THE ARBITRATION OF THE OCTOBER 1, 2010 GRIEVANCE, PURSUANT TO THE COLLECTIVE AGREEMENT, BETWEEN: AGRIUM VANSCOY POTASH OPERATIONS. (the “Employer) AND: UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (UNITED STEELWORKERS), LOCAL 7552 BEFORE: William F.J, Hood, Q.C., Sole Arbitrator APPEARING FOR THE UNION: Gary L. Bainbri APPEARING FOR THE EMPLOYER: Gordon D. Hamilton HEARING DATES: April 24 and 25, 2014 Saskatoon, Saskatchewan AWARD I, INTRODUCTION: 1, The Union brings this grievance on behalf of the hoist operators at the Employer's potash operation in Vanscoy, Saskatchewan 2. The Union claims that certain work, formerly performed by the hoist operators, is now being performed by dispatchers. The hoist operators are employees in the bargaining unit and the dispatchers are employees who are out-of-scope. 3. The Union alleges the Employer violated the Collective Agreement by transferring this work from the bargaining unit to non-bargaining unit employees. 4. Article 3.03 of the Collective Agreement states:‘The Company recognizes that it is not the function of forepersons, acting forepersons, supervisors and other persons employed by the Company but not employees as defined in this Agreement to repetitively perform work which is currently being performed by an employee in the bargaining unit where qualified employees are reasonably available to do such work, except for the purpose of training, giving instruction, experimentation, protecting the safety ‘of employees or equipment or in emergencies, 5. The Employer acknowledges that certain work was transferred to the dispatcher position. ‘The dispatcher position was initially filled by supervisors and is now filled by out-of-scope employees dedicated to this position. 6. The Employer argues that performance of this work by the dispatcher position does not violate the Collective Agreement. The Employer submits that it falls within the exceptions in Article 3.03 of the Collective Agreement and does not restrict management's right to operate the business, 7. Furthermore, the Employer argues the core duties of the hoist operator remain intact. The work transferred was merely incidental to this core work. 8. The Employer submits the realignment of this work does not undermine the integrity of the bargaining unit, No bargaining unit positions have been eliminated as a result of the transfer of this work. 9. This award involves the interpretation of the relevant provisions of the Collective Agreement and the application of those provisions to the facts. 10. The Union also objects to the arbitrability of this grievance. The Employer alleges excessive delay on the part of the Union in moving this grievance to arbitration, The Employer takes the position that the grievance was abandoned by the Union. I. THE FACTS: A. The Hoist Operator Position 11. The position of hoist operator is a ticketed journeyman position,12, The mine has two hoists, One hoist moves potash from underground to surface, and the second hoist moves people and materials. Hoist operator is an in-scope position. There are always two hoist operators on a shift. They work on surface out of an area known as the head frame located in the hoist room. The hoist operators monitor and control the elevators’ movement up and down, the shafts 13. Ron Lavoie is a journeyman hoist operator; he commenced work with the Employer in 1976, and received his provincial hoist operator ticket in 1994, Mr. Lavoie testified for the Union. 14, The Union contends the following work was performed by hoist operators and that these duties have been transferred to and are now performed by the dispatchers who are out-of-scope: (1) Being the first point of contact for persons seeking to make contact with those working underground and, vice versa, being the first contact for those working underground seeking to make contact with the surface. (2) Monitoring and managing the mine emergency alarm system. (3) Controlling the operation of the underground conveyor belts. (4) Controlling the operation of the ventilation fans. 16. Ron Lavoie testified that all of the above duties and responsibilities were performed by hoist operators from the hoist room, Mr. Lavoie was first trained on the hoist in 1993, From the outset, the hoist operator was the first point of contact, a duty they performed repetitively each and every day. The hoist operator would log the calls where information was relayed from surface to underground and vice versa. Mr. Lavoie testified that, in his view, there were approximately 70 to 90 calls per day shift and less on a night shift. The hoist operator would make contact with underground by way of a paging system consisting of coloured lights signaling certain underground personnel to contact the surface and speak to the hoist operator. The paging system also used a phone system whereby the hoist operator would contact underground directly by phone. Mr, Lavoie also testified that in the event of an emergency, the hoist operator was responsible for setting off the underground alarms to warn workers of an emergency. The hoist operator decided which alarms to set off. The alarms involved one or a combination of sirens, stench gas, belt, hornsystems and lights. Communications were maintained with workers calling the hoist operator for directions. 17, Mr. Lavoie further testified that the hoist operator controlled the underground conveyor system, which moved the ore. The hoist operator could see every belt on monitors when maintenance was performed. 18. Mr. Lavoie testified that there were four surface vent fans (two for exhaust and two for fresh air), which the hoist operator monitored and controlled the amperage for surface exhaust. 19, Jeff Dormuth, an 18 year employee, and currently the shift and hoist supervisor, testified on behalf of the Employer. He received his hoist operator ticket in 2008 and spent four months as a hoist operator on shift. In eross-examination, Mr. Dormuth acknowledged the hoist operator was the first point of contact and was responsible for the ventilation fans (both on surface and underground), operating the paging systems, operating the emergency alarm system, and controlling and monitoring the belt system. B. 2009 20, Things began to change in 2009, at first innocently and with not much challenge from the Union. 21. At that time, management provided notice of a new dispatcher position, which was to be filled by a staff production supervisor. On September 14, 2009, an e-mail was sent on behalf of Jack Hendrickx, the underground mine operation superintendent, who testified on behalf of the Employer. The e-mail stated as follows “The Dispatch role began Monday Sept. 14/09 (p.m) The Dispatcher will be a staff production supervisor Dispatch phone number is 1261 (available 24/7) Located in the Underground Shifters Office on surface Please note that in the event of an emergency, workers will still contact the Hoist ‘Operator (if and when changes are made, you will be notified) ‘© This position will deal mostly with the operation of the mine Attached are the duties and protocol of the Dispatcher (they are located in AgNet). Please take the time to review these with your crews.22. Documents entitled “Dispatcher Duties” and “Dispatcher Protocol” were attached to this e-mail. The relevant portions state as follows: DISCUSSION DISPATCHER DUTIES DISPATCHER DUTIES The Dispatcher has an important role in the everyday workings of the underground mine operation ‘The base concept of the Dispatcher role is 0 improve overall ‘communications and efficiency by having a distinct point of contact, at all times for all mine workers ‘The Mine Operations Dispatcher is a rotating role among the three ‘operations Supervisors on each crew. The three Supervisors make up three distinct roles. Mine Operations Dispatcher Mine Operations Field Supervisor South ‘Mine Operations Field Supervisor North 4. Operations and Maintenance Interactions and Communications © The Dispatcher would be responsible for communicating maintenance progress and re-directing maintenance activities if necessary in conjunction with the Maintenance Supervisor. # The Dispatcher is responsible for equipment handover to maintenance through the Operations Field Supervisor. (© Any equipment that is required by maintenance must first have the approval of the Dispatcher. © The Dispatcher would be immediately informed of any cain being held loge than ong (chee by maintenance personnel. ‘© The Dispatcher will fill out and post the Critical Defeat forms, contacting the necessary personnel for approvals, 7. Mine Communications ©The Dispatcher, residing in an office environment, is the first point of communications for all mine operations.© Mining machine outages would immediately be ‘communicated to the Dispatcher, © Mining machine maintenance requirements would be immediately communicated to the Dispatcher. [Emphasis in Original] DISPATCHER PROTOCOL DISCUSSION ‘The Dispatcher is appointed by the Mine Superintendent, General Mine Operations and has a very important role in the everyday ‘workings of the underground mine operation, The base concepts of the Dispatcher role are to improve overall communications and efficiency by having a distinet point of contact, at all times for all mine workers. U/G EMERGENCY PROTOCOL ‘© In the event of an underground emergency the Dispatcher will remain in the Dispatch office and assist the Hoist Operator. © The Dispatcher is located on surface and will assist the Director of Operations and Mine Rescue Coordinator as the Dispatcher Jog contains valuable information, © Inthe event of an emergency the Dispatcher will supply: © The Dispatch log, and © Location information for: + Workers, * Ventilation and + Equipment. ‘© In the event of an underground emergency the workers will continue to contact the Hoist Operator. 23. Gord Bedient has worked for the Employer for 28 years at the potash mine. He is a journeyman electrician who received his ticket in 1978 and was president of the Union from 2000 to 2007 and again from 2009 to 2012. Mr. Bedient is presently the Chair of the Grievance Committee. 24. Mr. Bedient testified that the Union was concerned that work, which had been done and ‘was the responsibility of the hoist operator, was now in jeopardy. In particular, he referred to thecommunications in paragraph 4 of the “Dispatcher Duties.” One of the main duties of hoist operators was to be responsible for this commu ation, Also, he referred to paragraph 7: the first point of communications for all mine operations was the hoist operator, but the statement indicated this would change and it would be the dispatcher. At this point in time the dispatcher was a staff production supervisor. 25. Mr. Bedient, on behalf of the Union, pursued this concern Mike Dirham, General Manager of the Employer. Mr. Dirham is still employed with the Employer, but was not called to testify in this hearing. 26. On October 7, 2009, Mr. Bedient sent the following e-mail to Mr. Dirham: It has come to the [union’s] attention that Agrium is going to have the dispatcher perform duties that are now presently performed by the bargaining unit employees, We have been told the dispatchers will be handling the underground paging system, belt control and loading pocket control. These duties have always belonged to members of USW local 7552. I am bringing this to your attention in hope that you will correct what we see as problem that will, ‘cause both the Union and Agrium headaches, 27. Mr. Bedient testified that he met with Mr. Dirham and Mr. Hendrickx on October 13, 2009 to discuss the Employer's intentions for the dispatcher position. Mr. Bedient test ied that he was assured in this meeting that the hoist operator was to maintain all present duties and that the dispatcher position was created not to interfere with such duties. 28. Mr. Bedient followed up the meeting with an e-mail of October 20, 2009 to Mr. Hendrickx and Mr. Dirham. The e-mail stated: ‘This email is just a follow up to our discussion on Oct. 13, 2009 7:30 am concerning the role of the dispatcher. If I understood you correctly you stated that it is not your intention to have the dispatcher do any of the duties currently being done by the hoistmen. You may in the future if the position of dispatcher works out have them handle the call in duties in a case of an emergency. This would only happen after all employees were trained properly in the new procedure. I said there was some merit to that because if the dispatch position is working properly they should know where the majority of employees are underground. This is a summary] and I believe I captured most of the conversation that took place that morning. 29. By way of an e-mail dated October 23, 2009, Mr. Hendrickx agreed with Mr. Bedient’s view of the meeting, save and except that it was the Employer's intent to have employees call the dispatcher in the event of an emergency. Mr. Hendrickx’s e-mail of October 23, 2009 stated:With respect to our meeting on Oct 13, 2009 7:30 am, your recollection of the meeting is fairly accurate, however, I had said that the intent is to have employees call the dispatcher in the event of an emergency. This will occur after the procedure is updated and the employees are notified of the change. The communication for this change will be accomplished through safety meetings. I also understood that you agreed to this change because of the inherent role of the dispatcher, Functions like stopping and starting belts or vent fans etc that are currently [being] done by the hoistmen will continue but under the direction of the dispatcher. Employees will be contacting the dispatcher and the dispatcher will in turn provide direction to the hoistman. Thanks, 30. Mr, Bedient testified that the Union did not take issue with management's proposal to have ‘employees call the dispatcher in the event of the emergency. Mr. Bedient acknowledged that Article 3.03 of the Collective Agreement allows supervisors to perform members’ duties in the event of an emergency. For ease of reference, Article 3.03 is repeated here: ‘The Company recognizes that it is not the function of forepersons, acting forepersons, supervisors and other persons employed by the Company but not employees as defined in this ‘Agreement to repetitively perform work which is currently being performed by an employee in the bargaining unit where qualified employees are reasonably available to do such work, except for the purpose of training, giving instruction, experimentation, protecting the safety of employees or equipment or in emergencies. 2010 and Later 31. Mr, Bedient testified that at first things proceeded according to plan. The Employer limited the involvement of dispatchers to emergency situations. 32. However, ings changed. First, Mr. Bedient testified that the Employer rewired the dispatch office and installed paging lights in a move to take over the paging system with underground, In the result, the hoist operator, who had been the first point of contact, no longer was. The dispatcher (a position at that time performed by a supervisor) took over this responsibility, emergency or not. 33. On October 1, 2010, the Union filed the followii ig grievance on behalf the hoist operators: Nature of Grievance: Agrium [personnel] who are not employees as defined in the CB.A. (dispatches) repetitively performing work that was being performed by employees in the bargaining unitViolation: ‘The C.B.A. as a whole and in particular Article 3.03. Any Acts, Laws, Statutes, Regulations that may apply. Settlement Requested: Fall redress 34. On August 14, 2013, the Employer revised the dispatcher duties. Mr. Bedient testified that certain of these duties were traditionally within the purview of the hoist operator and were now assigned to the dispatcher. The Union takes issue with this transfer of work, in particular, with the following duties now identified as “dispatcher duties” in the August 14, 2013 document: DISPATCHER DUTIES 16, 17. Dispatcher Duties Dispatcher’s Log, Keep a running log for all calls that come in to the Dispatch office, These are critical in case of an emergency or injury U/G. Mine Communications ‘The Dispatcher is the first point of communications for all mine operations. Dispatchers are responsible for recording all mining machine ‘outages and maintenance requires. Sound the Underground Paging Siren At 10:00 am. and 10:00 p.m. the Dispatcher will sound the Underground paging siren. Personnel will listen for the alarm in the mine and report ifthe paging station they are working near is operating properly. If not the dispatcher will put in work requests to have the paging station repaired. Responsibilities in the Event of an Emergency ‘Use mine emergency folder and call out list. In the event of a mine emergency follow the expectations of the mine emergency procedure as laid out in the emergency response manual eg. Document employee's names as they enter10 refuge stations. Refer to the Emergency Response Manual VPO-EM-070-002 A, B or C. in the Related Document Section 35. Mr. Bedient testified that shortly thereafter he noticed a job posting by the Employer for the dispatcher positions. He testified that the job description in the posting “pretty much” described what a hoist operator did. The posting states as follows: Dispatcher, Mine Production Job Description Reporting to the Operations Supervisor, the Mine Dispatcher works with a team of 3 supervisors to effectively manage a production crew of 46 production operators, and a few maintenance workers in rapidly growing and expanding mine. Position involves shift work 2 days 2 nights 4 off. Specific responsibilities include: Adhere to all relevant corporate policies, procedures and Tenets of Operation Support OHC committee members and ensure completion of OHC action items Support supervisor in Performance Management Activities. Support Trainers who provide on-the-job training to the crew to help ensure effectiveness, Perform other duties as assigned '* Responsible for ensuring accurate and concise communications between workers and supervisors by managing the mine Paging System and phones Enter work orders/work requests into SAP Notify the lab when mine ore samples are ready for processing Manage monthly safety meeting minutes, Manage crew adherence to mine medical schedule Update daily OPIS report with required desis, including critical defeats, blocked travel ways, high safety alert room &¢ safe work plans and maintenance updates Enter incidents into Incidenter for operations supervisors Update OH&S action items for operations supervisors Inform supervisors of pertinent activities between the mill and mine Manage daily time card entry Provide and manage daily update of u/g equipment lst Fill out modified duty forms and submit to site nurse Focal point for initiating and communicating a mine emergency Qualifications of the position include: © Stcong Passion for safery * High School Diploma/Equivalent, © SAP experience would be an assetu © Excellent interpersonal, communication and problem solving skills. While we appreciate all applications we receive, we advise that only candidates under consideration will be contacted, Please apply online through the Career Opportunities section on Agrium’s internal webside ~ AgRoutes or at wwew.aprium com/carvers. ‘The deadline to apply is October 7, 2013 at 3:00 p.m. CST. 36. The dispatcher positions were filled by four external candidates who are out-of-scope of the bargaining unit. D. The Employer's Explanation for the Change 37. In cross-examination, Mr. Hendrickx was referred to his e-mail of October 23, 2009, ‘wherein he stated that the dispatcher was intended to be the point of contact with employees in the event of an emergency only. Mr. Hendrickx agreed this is not how things turned out. Over time, the dispatcher’s involvement was not limited to an event of an emergency. Mr. Hendrickx acknowledged that the paging system, consisting of lights, siren, phone, belt buzzer and stench gas, has been moved from the hoist operator to the responsibility and duty of the dispatch position. Mr. Hendrickx acknowledged that the first point of contact between underground and surface is now not with the hoist operator, but with the dispatcher. Mr. Hendrickx disagreed that the hoist operators have lost control over the vent fans, but agreed that the mot ring, verifying and locking out of the conveyor belt has been moved from the hoist operators to the dispatcher’s responsibility. The hoist operator, although no longer responsible for these duties, backs up the dispatcher. For example, when the dispatcher is sick the hoist operator assumes those duties temporarily. 38, Inhis testimony, Mr. Lavoie added that once the Employer duplicated the equipment in the dispatcher room, the dispatchers (who were supervisors at that time) took over running the lights and became the first point of contact for communications between underground and surface. Later, the dispatchers had an extra set of computers in the dispatch office and the supervisors who were in the dispatch position monitored and controlled the conveyor belt system. Mr. Lavoie was uncertai f the dispatchers completely usurped the hoist operators from operating the vent fans. He acknowledged that the hoist operators continue to have the equipment to operate the vent fans. 39. Mr. Hendricks provided some background as to why the duties and responsibilities previously performed by the hoist operators were transferred, first to the dispatcher position filled12 by the supervisor, and then to the newly created, out-of-scope dispatcher position which, in his view, was an extension of the supervisor's role. 40. Mr. Hendrickx testified that the geographic footprint of the mine has tripled over the last few years, The work erews are much larger today than in 2005. In 2005, work crews consisted of approximately 25 to 26 employees. Today there are four crews of 46 employees per crew. 41. The underground equipment has increased, What was once mined with four to five boring machines has increased significantly to 13 42. When asked why the duties and responsibilities in issue were moved from hoist operator to dispatcher, Mr. Hendrickx said it was because the mine and crews were bigger, there was a need to manage this on a day-to-day basis, and this should be a function of a third supervisor rather than being added to the function of the hoist operator. 43. Mr. Hendrickx provided the example that in the event of an emergency there are 150 to 200 underground employees who would be going to the phone and otherwise phoning the hoist manager instead of the dispatcher for instructions on refuge. In his view, it is more efficient for the dispatcher to perform these duties. In cross-examination, Mr. Hendrickx testified that in his view there were too many inefficiencies with the way the hoist operators were performing the duties in question, and that is why the position of dispatcher was developed. These responsibilities were more closely tied to a dispatcher role, which is essentially supervisory in nature. Mr. Hendrickx was asked in re-examination if the inefficiencies beforehand had any pact on safety, Mr. Hendrickx replied that any time there is an emergency, anything that adds time creates an impact on safety. 44, Inhis evidence, Mr. Hendrickx emphasized that notwithstanding the transfer of duties from hoist operator to dispatcher, no hoist operator has lost his job. From the Union’s perspective, this is not the point. As Mr. Bedient explained, the transfer of members’ work to out-of-scope employees will ultimately result in the erosion of members” duties.13, E, Emergency 45. Leanne Kenyon is one of the external hires to the dispatcher position. Ms. Kenyon has been in this position since May 2013 and is the most senior dispatcher. Ms. Kenyon testified that there was a serious fire at the mine in February 2014. She was the only dispatcher on duty at the time. 46. Ms. Kenyon received the emergency call from the guard and immediately set off the emergency alarm. She called the hoist operator on duty to assist her, and the hoist operator set off the belt buzzers and the stench gas to alert those working underground at the time. 47. When workers go underground there is a tag board located across the hallway from the dispatcher. All persons going underground are accounted for on the tag board and are tracked by a red tag to identify who is underground, At the time of the fire, there were sixty workers underground. When the emergency alarm is sounded the underground workers are to go to an underground refuge station, Once safe in the refuge station a communication is made to the dispatcher alerting the dispatcher they are safe, The dispatcher is given the names of all workers in the refuge station, and the dispatcher is responsible for turning the red tags over to white tags. This reveals if anyone is missing. In this emergency, all sixty were accounted for within twenty- two minutes from the time the alarm was set off. In Ms. Kenyon’s view, the emergency was handled very efficiently. 48. Ms, Kenyon testified in regard to the phone system. There are black phones, which are used for regular communication with underground, and a red phone, which is used only for emergencies. The red phone is tested each morning. 49. Ms. Kenyon testified that during the week there are hundreds of calls with underground on the black phones and the phone line can go continuously. In her examination-in-chief and cross- examination, Ms. Kenyon confirmed that communication underground all starts with the dispatcher. She is the focal point, She operates the paging system, activates underground lights, and relays messages. All communications with underground go through the dispatcher position. In an emergency situation like the serious fire in February, the dispatcher sets off the emergency alarm, the sirens and the belt buzzers. The dispatcher may, and during the February fire did, call upon the hoist operator to assist. Ms. Kenyon testified that even one minute saved is crucial in an emergency situation,14 50. Ms. Kenyon testified that the dispatcher position responsible for operating and monitoring the conveyor belts, as well as ensuring they are locked out during maintenance. Ms. Kenyon was not familiar with who was responsible for the operation of the ventilation fans. She testified that “1 guess” she could monitor these fans, but that no one has phoned her to shut off the fans, and she did not think she could control the amperage to the ventilation fans. 51. In re-examination, Mr. Bedient acknowledged that in true emergencies, not just an emergency drill, there is no real dispute with the dispatcher taking responsibility from the hoist operator. F. Safety of Equipment or Employees 52. The Employer relies upon the exception in Article 3.03 of the Collective Agreement that specifies employees who are not covered by the Collective Agreement and who are out-of-scope are permitted to do work for the purpose of “protecting the safety of employees or equipment.” In its argument, the Employer submits it is able to protect the safety of employees or equipment on a daily basis with the current arrangements, in a manner that hoist operators cannot, 53. As part of its submission, the Employer points to the evidence of Mr. Hendrickx, wherein he explained the Employer’s reasons for removing the impugned duties from the hoist operator and transferring them to the dispatcher position. 54, It was also the view of Mr. Hendrickx that knowing the whereabouts and operation of the underground mine equipment falls under the watch of the dispatcher rather than the hoist operator. Having the dispatcher responsible for the point of contact with underground employees and responsible for the underground equipment helped eliminate what, in Mr. Hendrickx’s view, were too many inefficiencies when the hoist operators were performing these non-specific hoist operation duties. 55, In its evidence, the Union did not take issue with the expansion of the equipment and the number of employees in recent years. In cross-examination, Mr. Lavoie agreed there was twice as much equipment today at the mine than there was before 2010. Crews that once consisted of twenty to twenty-five employees now consist of approximately forty-five.15 G Delay 56. ‘The Employer submits there was excessive delay on the part of the Union in bringing the grievance to arbitration, The Employer furthermore submits this grievance was abandoned by the Union, 57. The grievance was filed on October 1, 2010. 58. On January 28, 2011, at the end of Stage 3 in the grievance procedure, the Union served the Employer the arbitration notice. 59. Mr, Bedient testified the Union was trying to get a settlement of this grievance. 60. On December 16, 2011, the Union made the Employer an offer to settle. 61. On December 29, 2011, the Employer took the position and informed the Union the grievance had been abandoned by the Union. This was the response to the Union’s settlement proposal, 62, By letter of January 16, 2012, the Union advised the Employer the grievance was not abandoned. In support of its position, the Union referenced the Schlecter award, which speaks to the issue of abandonment, and which I will discuss later in this Award. The Union pursued its wish to settle this grievance, but was unable to do so. 63, It was not until July 24, 2013 that the parties contacted me to act as sole arbitrator to hear and adjudicate the grievance. 64. In cross-examination, Mr. Bedient was questioned concerning the delay in bringing the grievance to arbitration. Mr, Bedient testified there were other arbitrations the Union was trying to fit in and the Union had to “prioritize” what it did. 65. Inre-examination, Mr. Bedient testified the Union's actions throughout were an attempt to settle the issues raised by the grievance, not to abandon the grievance.16 II, ISSUES: 66. The substantive issue is whether the Employer violated Article 3.03 of the Collective Agreement, The issues subsumed in the substantive issue are: 1. Did out-of-scope employees repetitively perform work that was currently performed by bargaining unit employees who are qualified and reasonably available to do such work? 2. If so, does such work fall within the exceptions of work for the purpose of “protecting the safety of the employees or equipment or in emergencies"? 67. The Employer also raises the issue of its objection to the arbitrability of this grievance on the basis it was abandoned by the Union, Somewhat related to this issue is the Employer's position that any event the grievance should be dismissed for want of prosecution due to the unreasonable delay by the Union in bringing this grievance to arbitration, or that the grievance should be dismissed based on the doctrine of laches. IV. LAW AND ARBITRABLE JURISPRUDENCE: A. Interpretation of the Collective Agreement 68, The substantive issue involves the interpretation of Article 3.03 of the Collective Agreement and the application of this interpretation to the facts. 69. The objective in interpretation of a collective agreement is to ascertain the intention of the parties at the time the agreement was made. 70. InCommunication, Energy and Paperworkers Union, Local 777 v Imperial Oil Strathcona Refinery (Policy Grievance) (2004), 130 LAC (4) 239 at paras 39-47, Arbitrator El a detailed analysis of how to interpret collective agreements: provided 39, use as my approach to the interpretation of collective agreements the same principle that the Supreme Court of Canada has adopted for the interpretation of legislation, I refer to this approach as the modern principle of interpretation. In my view, the modern principle of interpretation is a superior statement, as a guide to interpretation, than the rule stated in Halsbury’s Laws of England to which Canadian texts refer, which relies heavily on the7 “intention of the parties”. The modern principle of interpretation is, I believe, particulary apt for interpreting collective agreements which, of course, are based upon legislation, 40. The modern Canadian approach to interpreting agreements (including collective agreements) and legislation, is encompassed by the modern principle of interpretation which, for collective agreements, is In the interpretation of collective agreements, theie words must be read in the entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object, and the intention of the patties. 41, Using this principle, interpreters look not only to the intention of the parties, when intention is fathomable, but also to the entire context of the collective agreement. This avoids creating a fictional intention of the parties where none existed, but recognizes their intention if an intention can be shown. The principle also looks into the entire context of the agreement to determine the meaning to be given to words in dispute. 42, Before applying the modern principle of interpretation to this grievance I will identify the components of the modern principle and what they encompass. The modern principle of interpretation is a method of interpretation rather than a rule, but still encompasses the many ‘well-recognized interpretation conventions. The modern principle directs interpreters: 1 toconsider the entire context of the collective agreement 2 to read the words of the collective agreement ~ in theit entire context in their grammatical and ordinary meaning. 3 to read the words of a collective agreement harmoniously with the scheme of the agreement ‘with the object of the agreement, and with the intention of the parties. 1 What is the “entire context of a collective agreement” 43, ‘The “entire content” includes = the collective agreement as a whole document. One provision of a collective agreement cannot be understood before the whole document has been read because what is said in one place will often be qualified, modified or excepted in some fashion, directly or indirectly, in another - reading one provision of the collective agreement keeping in mind what is contained in other provisions. In the first instance it must be assumed negotiators knew not only the provisions specifically bargained but all the ‘others contained in the collective agreement. An example is the use of words that have defined meanings. Those meanings must be applied whenever the defined word is used in the collective agreement18 = keeping in mind the legislative framework within which collective agreements ‘exist and keeping that framework in mind as part of the entire context. Reading the words 44. Words ina collective agreement are to be read (@ within their entire context in order to figure out the scheme and purpose of the agreement and the words in a particular article must be considered within that framework, (©)__in their grammatical and ordinary meaning. Typically this involves, taking the appropriate dictionary definition of a word and using it, unless the dictionary meaning is modified by a definition, by common usage of the parties or by the context in which the word is used, and (© harmoniously with = the scheme of the agreement (which could include the arrangement of provisions and the purpose of the agreement or 1 particular part of the agreement) ~ its object the intention of the parties, assuming an intention can be discerned. The intention is to be found in the words used, but evidence of intention from other sources may be appropriate in order to decide on what the words used by the parties actually 3 ‘The meaning of “contest” 45 The word “context” itself means the cizcumstances that form the setting. ..for [a] statement. .and in terms of ‘which it ean be fully understood Concise Oxford Dictionary (104) and the Merriam-Webster Dictionary includes in its definition of context: the weaving together of words; the parts of a discourse that surround a word oF passage and can throw light on its meaning; the interrelated conditions in which something exists oF occurs. 46 Ando, entice context in terms of a collective agreement and the interpretation of the words used in it includes considering - how the words have been weaved together how those words connect with other words = the discourse (other information) that can throw light on the text to uncover the meaning19 - any conditions that exist or may occur that might affect the meaning to be wen to the text Testing the interpretation 47 Once an interpretation is settled upon, it should be tested by asking these questions: is the interpretation plausible — is it reasonable? is the interpretation effective — does it answer the question within the bounds of the collective agreement? ~ is the interpretation acceptable in the sense that it is within the bounds of acceptability for the parties and legal values of fairness and reasonableness? 71. adopt this approach to the interpretation in this case. B. Abandonment 72. Generally, for a grievance to be abandoned there must be some unequivocal act or an omission to act, with the clear intention not to pursue the grievance. 73. Brown and Beatty discuss abandonment in the same context as withdrawal or settlement in their text Canadian Labour Arbitration, loose-leaf (Rel 41, December 2014) 4" ed, vol 1 (Toronto: Canada Law Book, 2014) at para 2:3230: Abandonment ofa grievance occurs when there has been total inaction in processing it with the intention of not proceeding further. Withdrawal, as well, is a unilateral act of discontinuance, which, like an abandonment, can give tse to issues as 10 whether it has infact occurred. A settlement on the other hand is an agreed-upon resolution of a dispute or a grievance. 74. Brown and Beatty go on to say at para 2:3233: However, withdrawal or abandonment of a grievance requires unequivocal evidence of intention to relinquish such tights. 75. — Counsel for the Union relies on an earlier decision between the same parties dealing with the issue of abandonment. In Re Agrium and United Steelworkers, Local 7552 (2010) (Unreported, October 4, 2010) (Hood) (“Schlecter”), the employer argued the union had abandoned the arbitration by failing to move the grievance to the next stage in the grievance procedure, or to arbitration, within the 14 days set out in article 13.06 of the collective agreement. Article 13.06 (which survives in the present Collective Agreement) provides that if the dispute is not advanced20 as required, then the dispute “shall be deemed to be abandoned, and all rights of recourse to the dispute procedure shall be at an end.” In Schlecter, as in this case, the union did give notice to advance the dispute to arbitration within required 14 days, but there was a delay in getting the dispute to arbitration after the notice. 76. The employer in Schlecter, as in this case, argued that this delay was abandonment. The board disagreed. The board noted there is no time limit in the collective agreement once the notice to proceed to arbitration had been given, stating at para 42-45: 42. In my view, the concept of deemed abandonment, as this expression is used in the Collective Agreement, does not apply because there was no deemed abandonment by passage of time. 43, “Deemed abandonment” occurs when a party does not advance the grievance to the next Stage and ultimately to arbitration within 14 calendar days as referred to in Section 13.06 of the Collective Agreement. In this case, the Union did advance the grievance to arbitration within this time period. The October 8, 2009 letter to the Employer pave notice to advance the grievance to arbitration within 14 calendar days of the September 29, 2009 response from the Employer confirming the Employer's decision, 44, The procedure that is followed after the referral to arbitration is not governed by time limits set out in the Collective Agreement. On November 30, 2009 the Employer sought to appoint an arbitrator pursuant (0 the arbitrator appointment provisions of the Collective Agreement. In my experience, it is not unusual for an arbitrator 10 become engaged by the parties before counsel or their presenters are appointed. Typically, dates for the hearing will not be set until counsel is engaged, but this is because of convenience, not necessity. Neither party to the arbitration can frustrate the arbitration process by refusing to engage in setting the hearing dates. While itis typical to grant some indulgences to the other side, a party is, fully within its rights to ask the chosen arbitrator to set the hearing dates, even in the absence of the counsel for the other party (or for that matter the other party itself) if there is clearly a refusal by the other party to engage in this process. 45, In this case, any stalling by the Union, or attempt to place this grievance in abeyance, is not abandonment. | accept that there never was any intention on the part of the Union t0 abandon the arbitration. Any stalling by the Union was an issue to be determined by motion of the Employer to the arbitrator to move this grievance forward for determination. Even if the Union refused to engage in the hearing, which it clearly has not, it is not necessarily abandonment in and of itself. Delay and Dismissal for Want of Prosecution 77. Inarecent award in Health Sciences Association of Saskatchewan and Medstar Ventures: Inc., [2014] SLAA No. 14 at paras 45-47 I had this to say about delay and the legal test for want of prosecution:2 45, With respect, the law has changed somewhat since then. In 2010 the Coust of Appeal decided Jnfernational Capital Corp, », Robinson Tagg e Ketison, 2010 SKCA 48 (“ICC”), which tweaked the legal test for want of prosecution. Whereas previously a defendant had to demonstrate he had suffered serious prejudice asa result ofthe plaintif?s inexcusably desultory prosecution, now he must show only that it would not be in the interests of justice for the action to proceed. The Court of Appeal stated at para. 42 of ICC 42 The best way to proceed is by adjusting the Cary». Toohig approach so that a finding to the effect a defendant will likely suffer serious prejudice is not a strict precondition to striking a claim. Rather, the question of prejudice should be a factor ~ an important one ~ considered when determining whether itis in the interests of justice that a claim proceed to trial notwithstanding inordinate and inexcusable delay. In other words, the approach for dealing with an application to strike for want of prosecution should involve the three steps described below. 46. Thus, the present test for dismissal for want of prosecution is: (8) Was there inordinate delay? (©) Was the delay excusable? (© Is it in the interests of justice that the ease proceed to trial notwithstanding the delay? 47. Recently, the Court of Appeal summarized the factors to consider under the third patt of the test, stating as follows in Harding ». Harding, 2014 SKCA 74 at para 8 In [ICC], Richards J.A also identified « non-exhaustive lst of factors forthe eourt to consider under the third leg ofthe approach, including (at para. 43) (@) the prejudice to the defendant ifthe matter were to go to tral, (b) the length of the inexcusable delays (6) the stage of the litigation; (@) the impact of the inexcusable delay on the defendant; (© the context in which the delay occurred (0 the reasons for the delay; (@) the role of counsel in causing the delay; and (h) the public interest. 78. In argument, the Employer's counsel identified that at the core of its argument for delay lies the doctrine of laches.22 79. In Health Sciences Association of Saskatchewan and Medstar Ventures Inc., supra, \ had this to say concerning the doctrine of laches at para 52: “The essential clement of /ases is that there has been an unreasonable delay in bringing the claim, It should be pointed out that this is not the present case. The claim was fairly raised in a timely manner in the month following the alleged termination. The Employer does not take issue with the delay in bringing the claim; rather only with the Union’s delay in the prosecution of the claim after it was made. D. The Legislation 80. Section 6-49(3)(f) of The Saskatchewan Employment Act, SS 2014, ¢ S-15.1 (equivalent yn 25(2)(1) of The Trade Union Act, RSS 1978 ¢ T-17, repealed) states that an arbitration board may grant relief against breaches of time limits: 10 se 6-493) An arbitrator or an arbitration board may: (9 telieve, on terms that in the arbitrator’s or arbitration board’s opinion are just and reasonable, against breaches of time limits set out in the collective agreement with respect to a grievance procedure or an arbitration procedure; 81. Thus in cases where the collective agreement imposes time limits on bringing the grievance to arbitration after the notice to arbitrate an arbitration board can grant relief on terms considered just and reasonable against the failure to comply with the time limits. This Collective Agreement imposes no such time limits. 82. Logically then, even in cases where there is no time limit in the collective agreement, it follows that the arbitration board should consider the legislative predisposition to have collective labour disputes determined by arbitration rather than defeating such determination because of a time limit or time argument, 83. At the root of what is just and reasonable, the issue of delay is whether there has been any real prejudice suffered by the employer and, sometimes to a lesser extent, the reasonableness of the union’s explanation for the delay.23 V. ANALYSIS: A, Abandonment 84. In my view, not only has the Employer failed to prove the Union abandoned the grievance and | am satisfied there was no such abandonment. The facts of the present case are much stronger for the Union than they were in the Schlecter case. 85. In Schlecter the union unequivocally stated that the grievances “will go into abeyance pending further legal advice.” 86, In the present case, the Union was not holding the grievance in abeyance but was trying to get a settlement of the issues in dispute with the Employer. When the Union’s offer to settle was rejected and the Employer asserted the grievance was abandoned, the Union denied it had abandoned the grievance and sought to pursue settlement. 87. Laccept the argument from the Union that attempting to settle a grievance is, in my view (at least in the present case), inconsistent with abandonment. B. Delay 88, I amalso of the view that any delay by the Union, excessive or not, in getting the grievance to arbitration after the notice to arbitrate, is excusable in the circumstances. 89. In this case the delay was two and one half years from the notice to arbitrate and one and cone half years from the correspondence between the parties in December 2011 and January 2012, when in response to the settlement offer the Employer maintained the grievance was abandoned and the Union said it was not. 90. There definitely was a delay but I am not prepared to find on the evidence before me that it was inordinate in the circumstances or that the Union should in the circumstances be solely responsible for the delay.24 91, In my experience some matters (especially terminations for obvious reasons) are moved ahead more quickly, while other matters where the clock is not running so to speak, although important, are deferred, 92. Sometimes for a multitude of reasons it just takes that long to get it to arbitration. 93. Inthis case the Union explained some of the reasons. First, it was trying to get a settlement. Second, there were other grievances that it was moving along and the Union was prioritizing what itdid, 94. If the Employer took issue with the grievance having been abandoned in December 2011, or required the dispute be resolved in a timelier manner, it could have pushed the matter. There is no evidence (or at minimum, insufficient evidence) that it took any such action. Rather the Employer appeared content to take a “wait and see” attitude and deal only with the issue when squarely in its face at arbitration. 95. Even if it was found that the delay was excessive | am of the view relief should be granted to the Union such that the substantive issues in dispute be determined. 96. ‘There was no evidence of prejudice and the Employer acknowledged it suffered no prejudice as a result of the delay. 7. «1 not a case where by passage of time the Employer lost the ability to marshal its witnesses or recover evidence to present its defence. To the contrary, many individuals who were involved from the Employer's side, in Human Resources and the like, were not called as witnesses, not because they were unavailable to the Employer, but by the Employer’s choice. 98. As pointed out above, the Union offered an explanation as to the reasons for the delay, which I am prepared to accept in the circumstances as a reasonable explanation, C. Work Performed by Hoist Operators 99. ‘The work allegedly taken away from the hoist operator position includes:25 (1) Being the first point of contact for persons making contact with those underground and for those underground making contact with those on the surface. Subsumed in this is operation of the paging system by phone and lights as well as maintaining the call log; (2) Monitoring and controlling the operation of the underground conveyor belts; (3) Monitoring and operating the Mine Emergency Alarm system. This involves the sirens, belt buzzers and stench gas set off to inform of the emergency, the tracking of underground workers to refuge positions, and the operation of the emergency red phone. (4) Controlling the operation of the surface and underground vent fans. 100. With respect to 1, 2 and 3 above, the evidence is these duties were at the relevant times the responsibility of and being performed by the hoist operator and that all of these duties were removed from the hoist operator position and transferred to the responsibility of and are now repetitively performed by the dispatcher position, 101. 1 am not satisfied from the evidence that anything has changed with respect to the vent fans, It appears to me that this is not work that is now being repetitively performed by out-of- scope employees 102. Nori there any real issue that hoist operators are not qualified or available to do this work. This is the work hoist operators were and had been doing for some time and hoist operators were available on shift to continue to perform this work. 103. The Company does not disagree with this. It acknowledges this work was transferred to the dispatcher. Its argument is that this work (a) is not part of the core duties of a hoist operator; and (b) falls within the exceptions in Article 3.0326 D. Core Duties 104. The Employer urges that a narrow interpretation should be placed on the work that is performed by a hoist operator and that the core of such work is the operation of the hoist, not the duties that were transferred. 105. I dis is currently being performed”. The first question is what work is currently being performed, In my gree, Article 3,03 does not say “perform the core work”, rather it says “work which view this language does not differentiate between core duties and duties that are not core duties. 106. In my view to interpret Article 3.03 in the manner suggested by the Employer is not consistent with the words used and defeats the intent of the parties reading the Collective Agreement and in particular Article 3 as a whole. 107. The other problem I have with the Employer's argument in this regard is that the impugned work even in the Employer's view is essential and very important work. Accordingly, the Employer's submission is internally inconsistent, Arguably it is not work the hoist operator needs a journeyman ticket to perform, but it was very much an integral part of what the hoist operator did and what from the outset the Employer required the hoist operator to do. The issue arises now only because the Employer has changed its mind and prefers this work to be performed by employees who are out-of-scope. 108, Article 3.03 is the result of bargaining between the Employer and the Union, wherein the Union gained the hard eared covenant of the Employer to protect work performed by Union members. In my view this is the thrust of Article 3.03 and it would be unreasonable to interpret this provision in any manner other than to prevent out-of-scope employees from taking over and performing repetitively the work currently performed by bargaining unit employees, subject to the exceptions. E, Emergency 109. There is no dispute that emergency situations are an exception carved out in Article 3.03. In an emergency the utmost concer is to protect the safety of employees and the physical assets, of the Employer.27 110, The Union understood from the Employer that it was this and only this that the dispatcher ‘was to take over from the hoist operator in 2009. All other duties being performed done by the hoist operator were to remain with the hoist operator. 111. Unfortunately for the Union, this turned out to be the thin edge of the wedge over time. The transfer of the remé 12 duties was not on the basis of on an emergency, but rather because the mine, its equipment and employee contingent grew significantly over time, The transfer of duties was business related. It was more efficient for the Employer to have these duties performed by the dispatcher. 112. The example the Employer put into evidence was how well the dispatcher performed in the underground fire in February 2014, This was an emergency and was not the genesis of the Union's grievance, Rather, the grievances arose as a result of the transfer of work regularly performed by bargaining unit employees to out-of-scope employees. 113. It is noteworthy that the dispatcher worked hand in hand with the hoist operator in this emergency. The dispatcher’s hands were filled accounting for the employees in refuge. The phones went crazy and the dispatcher sought and obtained the assistance of the hoist operator to set off underground alarm systems. F. Safety of Employees or Equipment 114. The Employer seeks to justify the transfer of the other non-emergency work to the dispatcher on the basis that it falls within the exception of “protecting the safety of employees or equipment.” 115. Ido not accept this. In my view there are several problems with this argument. 116. The words “protecting the safety of employees and equipment” as used in Article 3.03, should not be interpreted such that it defeats the meaning of what the parties have agreed to in Article 3 and in this case Article 3.03. If these words are interpreted as broadly as argued by the Employer, I suspect that little if any work performed by bargaining unit employees is protected. Most work, especially the work performed underground or with mining equipment, would always pose some risk to the safety of the employees. Also a case could be made that work performed28 with the mine equipment, underground or surface, directly or indirectly, involves the protection and safe operation of equipment to avoid damage to the equipment and injury to the employees. ‘Such an interpretation of these words would in one broad stroke neuter and render meaningless Article 3.03 from the Union’s perspective. The Employer could always transfer work that was performed by bargaining unit employees to out-of-scope workers if it could demonstrate it was protecting the safety of employees or equipment notwithstanding it was unable to demonstrate that such a transfer was necessary in order to protect the safety of employees or equipment. The dispatcher is protecting the safety of employees and equipment—but that is not to say that this was not being done by the hoist operator. Furthermore, the reason given by the Employer was not that the safety of employees or equipment was at risk but rather for efficiencies, The hoist operators not only had the responsibility to do and also were doing this work, | am satisfied from the evidence they were doing it without risk to safety. If the work demands increase because of growth, the answer is to increase the workforce presently doing the work, not transfer the work to out-of-scope employees. To do otherwise would be an unreasonable interpretation in light of a plain reading of the Collective Agreement as a whole, in particular Article 3. 117. In my view these words “protecting the safety of employees or equipment” should be narrowly interpreted and read in conjunction with the other exceptions. 118. These words read in conjunetion with the other exceptions permit the Employer to have supervisory and out-of-scope employees do the work if it is an emergency or if it is for the purpose of “training”, “giving instruction” or “experimentation”, but not to displace the workers. These words in issue should be narrowly construed in the same manner. 119. Furthermore in my view the exceptions for the most part do not create any right for the Employer to preform bargaining unit work repetitively, but rather such work ted to isolated circumstances. For example, the exception of emergencies best describes the intent behind the exceptions. An emergency by its implicit meaning is not that which occurs repetitively, but only unexpectedly. 120. Emergency is defined in Merriam-Webster dictionary [online: http://merriam- webster.comidictionary] as: “an unexpected and usually dangerous situation that calls for immediate action.”29 121. The Employer is obligated to make a safe work environment for its employees, but itis not permitted under this Collective Agreement to do that to the exclusion of bargaining unit employees who currently perform the work, In this case the Employer did not change the safe work environment but rather it chose out-of-scope employees to perform this work going forward and took this work away from qualified employees in the bargaining unit. 122, I make one further point. The Employer submits no hoist operator has been displaced as a result of this transfer of work. In my view this is irrelevant. While no hoist operator has been displaced, work that was and can be performed by bargaining unit employees was lost. It is the “work” that is protected by this Article, not an individual job, If the work has expanded over the years and is work that as a result of what the Employer agreed to in the Collective Agreement is bargaining unit work, then the work should have been assigned to members cither existing in or 123. Ifotherwise, the increase in the work resulting from the growth in the mine, facilities and people would over time result in out-of-scope employees displacing members for work that was originally and regularly performed by in-scope employees. In this Collective Agreement the Employer gave up the right to have out-of-scope employees do work performed by in-scope employees, except in certain specified circumstances. VI. CONCLUSION: 124, For the foregoing reasons, | find that the Employer violated Article 3.03 of the Collective Agreement when it transferred the work performed by the hoist operator to dispatcher, an out-of- scope position, The work referred to is: (1) The first point of contact for persons making contact with those underground and for those underground making contact with those on the surface. Subsumed in this is operation of the paging system by phone and lights as well as maintaining the call log; and (2) Monitoring and controlling the operation of the underground conveyor belts.30 I direct this work stop being performed repetitively by out-of-scope dispatchers as it presently is and that such work be performed by employees in the bargaining unit Dated the 10" day of February, 2015. William F. J.