Q: What is a Final Offer Selection (“FOS”) and how did it affect me?
A: Final Offer Selection (FOS) is the legal process that was written into the Collective Agreement after the last round of negotiations. The language in the Collective Agreement was agreed to by the Union and the Company and was ultimately ratified by employees in 2020.
The FOS language in the Collective Agreement states that if the Company and the Union are unable to come to an agreement regarding top-rate and overscale wages for the 2023 and 2024 wage reopener, an Arbitration will occur. The Arbitrator essentially acts as the ‘judge and jury’ and must choose between the Union’s wage position or the Company’s wage position.
The Final Offer Selection Decision came out on November 20, 2023.
Q: What is a Judicial Review and why did the Company pursue it?
A: A Judicial Review is an application to the Court to have an arbitration award overturned. We challenged this award because the FOS decision put significant financial pressure on our business and if left unaddressed, would have continued to impact the competitiveness and long-term viability of Safeway.
The Judge overturned the FOS decision in part because of inaccurate and irrelevant information submitted by your Union. The court recognized that the Arbitrator’s wage decision was “based on facts not supported by the evidence.” Further, the Judge recognized that the Arbitrator’s decision was “unreasonably” based on market comparators of which “none are part of Sobeys’ competitive climate.”
We had no choice but to take action on the FOS decision to protect the Safeway business.
Q: What did the Court order?
A: The Court overturned the FOS decision and ordered the FOS be reheard. In the Judge’s ruling, he specifically noted that the Arbitrator unreasonably based the decision on market comparators which were not part of our competitive climate. In addition, the Arbitrator based her decision on inaccurate information provided by the Union with respect to one of our competitors.
Q: If the Company reverts wages back to pre FOS rates, can they legally collect the over payment and for what period of time?
A: Yes. With the overturn of the FOS decision, it means the decision is no longer in place and the Company can revert wages to what they were prior to the award. In addition, the Company can collect the over payment from August 2023 up to the date of the Judicial Review (October 18, 2024).
Q: The Union has stated they are appealing the Judge’s decision, what does this mean?
A: The Union has made an application to the Court of Appeal. This means that another hearing will take place. The Union is asking that the Court of Appeal reinstate the Arbitrator’s ruling or, in the alternative, have the FOS go back to the same Arbitrator.
Q: How long can the Appeal process take?
A: Hearing dates for matters such as these typically take a long time to get booked. Our best guess is that we will be booking dates into the fall/winter of 2025. This is yet another reason why we believe it is in the best interest of all teammates for the Company and the Union to meet to discuss a resolution that could benefit all parties involved.
Q: Who are the relevant competitors for Safeway in Alberta?
A: There are many competitors in Alberta in the grocery industry. In the full-service grocery segment, the major competitors are Sobeys, Safeway, Walmart, Real Canadian Superstore, Co-Op and Save On, amongst others.
Q: Why isn’t Metro in Ontario a relevant comparator?
A: Metro operates grocery stores in Ontario and Quebec. They do not compete in the Alberta grocery market.
Q: When is the earliest that bargaining for a new Collective Agreement could commence?
A: The parties can voluntarily agree to commence bargaining for a new Collective Agreement at any time. But the only way one party can force the other to the table is by serving a notice to commence collective bargaining. The Collective Agreement provides that the earliest either party can serve notice to commence collective bargaining is 120 days prior to the expiry of the Agreement (August 9, 2025), which would be April 11, 2025.
Q: When is the earliest a strike could occur?
A: A legal strike can only take place after a legal strike vote has occurred. A legal strike vote can only take place after all of the following has occurred: a notice to commence bargaining has been provided, the Collective Agreement has expired (August 9, 2025) and bargaining has occurred.
Q: Will the Company revert wage rates and take back overpayments?
A: We need to act quickly to address this challenging situation. We have advised UFCW 401 that we will hold off on taking any action on wages until January 26, 2025 in order to provide time for the parties to find a solution. If one cannot be found, the wages would revert on January 26, 2025 and the Company will seek to collect the overpayments.
Q: How will the collection of the overpayments work?
A: The Company will follow its normal process of sending individual letters to employees, outlining the overpayment and providing various options for repayment.
Q: I don’t want my wage rate to change or an overpayment to be collected, what can I do?
A: It is very important you speak with your Union representative and encourage them to negotiate with the Company.
We urge you to fill out the Union survey; encouraging the Union to meet with the Company.
Q: Can the Company and the Union agree to extend the Collective Agreement before it expires in August?
A: Yes, we can extend the Collective Agreement now, provided both parties agree to negotiate.
Q: Can the parties finalize the 2023/2024 wage rates for top rated and overscale employees as part of those negotiations?
A: Yes. The parties can finalize those wage rates as part of their negotiations instead of continuing with the Court proceedings and potentially having to do another Final Offer Selection (FOS) arbitration.
Q: The Union keeps asking if I am prepared to go on strike and implying that the strike can occur after the Company rolls back wages on January 26, 2025. Does this mean a strike will happen on January 27, 2025?
A: No. Regardless of whether an agreement to extend the contract is achieved or not, you are unable to legally go on strike on January 27, 2025. As a reminder, the Collective Agreement does not expire until August 9, 2025. Any strike before then would be illegal and the consequences of participating in this type of illegal strike activity would be discipline (up to and including the possibility of termination) and potential damages against the Union.
Q: Can the Union call a strike after the Collective Agreement expires in August to restore the 2023/2024 wage increases that were overturned by the Judge?
A: No. The Union cannot call a strike to restore the 2023/2024 wage increases. The Union can only call a strike to determine what will be included in the new Collective Agreement (i.e., the wages rates for 2025 and going forward). If the parties cannot agree on the 2023/2024 wage increases, they will have to continue with their Court proceedings and potentially conduct a new FOS arbitration.
Q: Can the Union call a strike before the Collective Agreements expires if the Company starts to collect the overpayments from the top rated and overscale employees?
A: No, even if the Union believes the Company’s collection activities are illegal, it cannot call a strike. The Labour Relations Code does not permit a union to strike whenever it thinks an employer has done something wrong. There are legal procedures for raising objections that must be followed. That’s why our Collective Agreements have a grievance procedure.
Q: The Union has advised that they are appealing the Judge’s decision to the Court of Appeal. What is the Court of Appeal?
A: The Court of Appeal is the highest level of Court in Alberta. It hears appeals from decisions made in the lower Courts, such as the Judge’s decision on the Company’s Judicial Review application.
Q: How long could it take for the Union’s appeal to be heard and decided by the Court of Appeal?
A: There is no set timeline, but it could take up to a year for the appeal to be heard and even longer for it to be decided.
Q: Is the Court of Appeal the last step in this process?
A: Unfortunately, no. If either party is unhappy with the decision of the Court of Appeal, they could seek leave to appeal to the Supreme Court of Canada. The Supreme Court of Canada would then have to decide whether it would hear the matter. This would likely take many more months.
