IN TIIE MATTER OF AN ARBITRATION
PURSUANT TO TT#, LABOUR RELATIONS CODE OF BRITISH COLUMBIA
R.S.B.C. 1996, c.244
BETWEEN:
UNIVERSITY OF BRITISH COLUMBIA
(the "Employer")
AND:
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL
116
("cuPE 116")
AND:
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 882
("IUOE gg2")
(Monthly Emergency Generator Tests)
ARBITRATOR:
Christopher Sullivan
COUNSEL:
Michael Korbin for
the Employer
V/illiam Clements for
CUPE 116
Rick Edgar for
IUOE 882
DATES AND PLACE OF
PUBLISFIED:
3515
FIEARING:
July 3 and4,2008 and
December 77,18 and 19,2008
Vancouver, BC
March 24,2009
2
The parties agree my jurisdiction to hear and determine the matter in dispute is
governed by a Protocol Agreement to resolve a tri-partite dispute. The Protocol
Agreement provides as follows:
7.
The matter shall be adjudicated under the provisions of both the
CUPE and IUOE Collective Agreements. Neither agreement will
have precedence over the other, and the arbitrator will have the
normal power to interpret and apply those Collective Agreements,
but shall not have the power to alter, modify, or amend either
Collective Agreement.
')
The arbitrator will determine the dispute based on the same
principles and considerations as the Labour Relations Board would
determine the dispute if they were adjudicating it pursuant to an
application under the Labour Relations Code.
J.
The arbitrator will apply Part 8 of the Code to this proceeding, in
such a way as is necessary to reflect the Tri-Party nature of the
dispute.
4.
Chris Sullivan shall be appointed the arbitrator of this dispute.
5.
The expenses and compensation of the arbitrator shall be shared
equally between the parties to the arbitration.
6.
CUPE shall withdraw its application filed with the Labour Relations
Board on September 24,2001.
The case involves a gnevancelcomplaint filed by CUPE Local 116 essentially
alleging the University has violated
Aticle
3.02 of the Collective Agreement in relation
to the assignment of certain work having to do with scheduled monthly testing of the
University's forty-three or so emergency generators. The work was transferred from
CUPE 116 electricians to IUOE 882 mech2loperating engineers.
J
Article 3.02 of the CUPE 116 Collective Agreement reads
as
follows:
Work of The BargaÍning Unit
Persons whose jobs are not in the bargaining unit shall not work on any
jobs which are included in the bargaining unit, except in cases mutually
agreed upon between the University and Union 116. Special consideration
will be given to bona fide students enrolled at the University of British
Columbia.
During the course of these proceedings
a
procedural issue arose with regards to
IUOE 882's right to cross-examine witnesses. CUPE 116 took the position IUOE 882's
interests were aligned with that of the Employer and, therefore, were being represented at
these proceedings.
After hearing the parties' respective submissions on this point I exercised my
discretion and ruled IUOE 882 had a right to call evidence, and examine the witnesses of
the other two parties, except it could not cross-examine its own members called as
witnesses by the University. The interests of the University and IUOE 882 are not
necessarily the same. IUOE 882 seeks only to protect work its members have performed
in the past, and it takes no position on the specific tasks CUPE 116 is claiming.
The grievance/complaint giving rise to these proceedings arose after the
University changed the way it staffs monthly tests of its forty-three or so emergency
generators and associated
fifty transfer switches. The generators serve to provide
electrical power to emergency systems, and certain critical systems such as refrigerators
andfreezers for some research facilities, in the event of an outage of the normal power
service.
Most of the emergency generators are powered by large diesel engines, although
some are powered by nafural gas. The generators are subject to inspection and testing
4
requirements pursuant to the British Columbia Fire Code, as well as other rules and
regulations.
Since at least the early 1980's, a CUPE 116 electrician has always been assigned
with an ruOE 882 mech 2loperuting engineer to perform the monthly testing, and each
employee performed tasks to ensure the generators were in operational condition and
would work in the event of
a
power outage. The monthly testing occurred during the first
three weeks of each month. The two full-time employees performed three tests a day.
In May 2005 the University proposed, and in November 2005 it implemented, a
change to the staffing of the monthly testing. From this time forward, the Employer has
deployed only one employee, an IUOE operating engineer, to conduct the monthly tests.
The IUOE operating engineer now performs all of his previous duties, together with those
previously performed by the CUPE electrician. The employee continues to perform three
tests per day for the
first three weeks of each month, although the running time for each
generator test is now thirty minutes rather than sixty.
During the course of these proceedings the parties called extensive evidence
relating to the emergency generator inspection/testing/maintenance/servicing program,
and the nature and substance of functions performed by employees during the monthly
tests before and after November 2005. The
following individuals testified: Electricians
Brian Templeton and Rob Wright, Head Electrician Mike Frizell, Associate Director
Building Operations and Maintenance Dan Leslie, and Operating Engineers Prem
Greywal, Tino Muscato and Lance Lane.
Since 2002 the University's Fire Life Safety Depafment has been responsible for
the emergency generators, and other equipment such as fire alarms and sprinklers,
emergency lighting on battery packs, and clocks. The Head of the Fire Life Safety
5
Department is Head Electrician Mike Frizell, a member of the CUPE 116 bargaining
unit.
Prior to 2005 it had been identified that some of the emergency generators were in
poor condition and occasionally failed to work when required. To address this problem
the University implemented its new program that included an annual inspection and
servicing of each emergency generator and transfer switch, and a five-year inspection and
service, to be conducted in addition to the monthly tests.
The Employer's Policy and Procedures Manual with an issue date of November
2007 sets out the particulars of the new program as follows:
3.0
PROCEDURES:
A.
Inspection, Testing and Maintenance of Emergency Generators
To meet the regulations, emergency generators are inspected, tested and
serviced on a daily, monthly, annual and five-year scheduled as detailed
below.
Ð
Daily
Inspectionr
All generators
,
are inspected on a daily basis as part of Boiler and Pressure
Vessel regulation compliance inspections. This is a visual check for
obvious problems such as leaking fluids. All inspections are recorded and
filed for due diligence.
ii)
Monthly Inspections/Testing
All generators
are inspected and tested monthly. The following specific
performed:
tasks are
Check fluid and fuel
Check starter system
Check batteries and charging system
Check air control louver settings
6
Test the entire system. Operate the system at307o of rated
load for 60 min. (now 30 minutes) Operate transfer switch
under load.
Record all instrument readings
Make necessary repairs
iii)
Annual Inspections/Servicing
Once ayeaÍ, in addition to the tasks performed monthly, the following tasks
are performed:
Check battery cranking capacity
Service all control panels
Service engine
Service generator
Service transfer switch
Test entire system. Operate for 2 hours at full load. Operate
transfer switch under load.
Clean/refresh fuel supply
Record all instrument readings
Make necessary repairs
iv)
Five-Year Inspection and Service
Every 5 years the following tasks are performed:
Inspect insulation of generator windings. Conduct Megger
test.
Drain and flush the engine cooling system....
Over the past few years duties performed by both CUPE 116 electricians and
ruOE operating engineers during the monthly tests were itemized.in "Inspection V/ork
Order" forms that outlined specific tasks. At these proceedings the parties all referred to
a
list of tasks contained in correspondence sent by CUPE 116 to the Labour Relations
Board on September 24,2007 outlining what took place during the monthly test. This list
contained the following:
1
-
Visual inspection;
-
Checking air-handling units for correct damper operation and filter
replacement, if required;
-
Checking fuel, oil, and fluid levels;
-
Taking battery readings, including checking the specific gravity;
-
Checking all connections;
-
Checking and then performing a by-pass of alarm panels, including
fire alarm panels;
-
Starting the generator to ensure motor operation;
-
Engaging the transfer switch to place the generator under load;
-
Running and monitoring the generator for a required period
(formerly t hour - now changed to 30 minutes);
-
Checking the amperage, voltage, frequency, temperature and
pressure readings;
-
Checking pumps on the fuel transfer system;
-
Recording applicable performance data;
-
Re-starting fans;
-
Documenting repair and service requirements;
-
Carrying out repairs; and
-
Organizing associated other trades as required.
Evidence led at these proceedings indicates that prior to November 2005 CUPE
116 electricians and
ruOE 882 operating engineers both performed
a number
of the same
functions in relation to the monthly emergency generator tests. Specifically, both
employees performed a visual inspection, including checking connections; both
8
monitored the running generator for a required period; both checked the amperage,
voltage, frequency, temperafure and pressure readings; both recorded applicable
performance data; and both documented repair and service requirements.
The evidence indicates the CUPE electricians used their own meters to check
voltage and amperage, whereas the IUOE operating engineers took their readings from
the gauges on the generators.
The evidence discloses IUOE operating engineers performed certain tasks not
performed by CUPE electricians. Specifically, the IUOE operating engineers checked
the air handling units for correct damper operation and filter replacement; they checked
fuel, oil and fluid levels; they checked the pumps on the fuel transfer system; and they restarted the fans.
Prior to November 2005 CUPE electricians exclusively performed the following
functions: they took battery readings, including checking the specific gravity; they
checked and then performed a by-pass of fire alarm panels; and they started the generator
by engaging the transfer switch to place the generator under load. The evidence indicates
these tasks took between about ten and fifteen minutes per generator.
It was these
functions that were transferred to the IUOE operating engineer, who now performs the
monthly tests on his own. It bears noting that as at the time of these proceedings the
University was in the process of changing the emergency generator batteries to
maintenance-free batteries, which do not require specific gravity testing. Further, the
evidence indicates that
if
an operating engineer sees any problem
with
a
battery during
the monthly testing, including excess corrosion, a CUPE garage mechanic is called in to
deal with it.
There has been no change in the way repairs are carried out in regards to the
monthly tests. Fire Life Safety Department Head Electrician Mr. Frizell continues to
9
assign electricians to perform required repair work to the electrical components of the
emergency generators, and coordinate with other trades when needed.
There has also been no change to the record keeping in regards to the monthly
emergency generator tests. There are regulatory requirements to maintain logs and other
records, and these have been kept in the Electrical Shop for decades. Data is transcribed
daily into individual log books that exist for each generator. The evidence indicates that
other records were maintained by IUOE operating engineers at the site of each generator,
but not recently.
As noted, up until November 2005 it has been the consistent practice since at least
the early 1980's to have an electrician present for every monthly emergency generator
test. It was an anomaly if the electrician was not in attendance. The evidence indicates
that the operating engineer carried a pager and would, on occasion, leave the monthly
testing to deal with some other matter. The frequency of these departures was disputed in
the evidence. The electricians testified the operating engineers left the monthly test
relatively often. The operating engineers denied this, adding the electrician would also
leave the test on occasion.
At these proceedings the parties made reference to the job descriptions for the
CUPE electrician and IUOE mech 2loperating engineer positions. The electrician job
description reads, in part, as follows:
JOB DESCRIPTION
Under the supervision of the Head Electrician, engages in maintenance and
installation of electrical fixtures, apparatus, control equipment and wire
used in light, power, public address and alarm systems of buildings.
10
TYPICAL JOB DUTIES
2.
Maintenance and installation of electrically operated apparatus such
as fire alarm systems, clocks, programme bells, elevators, public address
equipment, electrical cranes and generators in buildings.
The operating engineer job description provides, in part:
JOB DESCRIPTION
Under the direction of Head Maintenance Engineer... or designate performs
routine checking, and running maintenance in the servicing and operation
of mechanical equipment and related duties.
TYPICAL JOB DUTIES
1.
Performs checking, routine maintenance, and operation of pumps,
fans, compressors, steam expansion joints, high pressure steam traps and
associated equipment and systems....
Evidence was led at these proceedings regarding how the University initially
raised the implementation of the new program with CUPE 116. The University entered
into dialogue with CUPE 116 and sought its agreement. After this was not obtained, the
University took unilateral action.
'When
the new program was implemented it was necessary for the IUOE operating
engineers to be "trained" on how to by-pass the alarm by telephoning the alarm company
and conveying the appropriate
information. This training was ultimately provided by Mr.
Frizell under protest, on the basis the work belonged to an electrician.
i
SUMMARY OF PARTIES' POSITIONS
On behalf of CUPE 116, Mr. Clements argues the electricians have held a distinct
area of responsibility over the monthly tests of emergency generators
for a period of
11
many years. He points to the evidence of Mr. Templeton who started in 1983, and at that
time learned from the electrician before him who had performed the work. Counsel
states the only suggestion that this was not so was from Employer witness
Mr. Leslie,
who was not involved in the area at that time as is therefore not credible on this point.
:
Mr. Clements refers to the record keeping for the monthly tests, which have been
consistently maintained over time in the Electrical Shop. Even prior to the development
of the Employer's Fire Life Safety Depaftment, the "locus of responsibility" for
emergency generators is the Electrical Shop. It makes operational sense to have
electricians involved in the monthly testing of the emergency generators as they are
involved in the testing of the other emergency systems under the responsibility of the
FLS Department. Having the mechanical maintenance employees now perform this work
without the involvement of a CUPE electrician is an operational anomaly.
Mr. Clements points to the job description of the CUPE electrician, and its specific
reference to "maintenance" and "generators". This can be contrasted with the relevant
IUOE job description, which includes no specific reference to generators. Counsel adds
the term "maintenance" in the CUPE job description has been generally interpreted over
the years to include all aspects of preventative maintenance, of which the monthly test is
an important part.
CUPE 116 takes the position that the rationale for the monthly generator testing is
to ensure electricity is being produced. The tests for regulatory and other purposes are
electrical in nature as they involve, at their core, the transfer of electrical power. From a
safety standpoint an electrician should be on hand in case the transfer switch, used to start
and stop the test, does not
work. Counsel
suggests there was good reason as to why
CUPE electricians would never leave the monthly test, while IUOE operating engineers,
who carried pagers, would at times leave the tests to attend to other work-related matters.
t2
Mr. Clements emphasized the work in question constituted
a complete
full-time
position for many years for a trained electrician dedicated to the single initiative.
Qualitatively, the work at issue constitutes an electrician's 'Job" at the University
pursuant to Article 3.02 of the CUPE Collective Agreement. The Employer has
acknowledged as much in seeking CUPE 116's agreement to deal with the
implementation of the new program, which it did not obtain. On this point, Counsel
refers to LOU #2 andLOU #16, relating to the Bookstore Food Services, as examples of
where the parties have mutually agreed on language that expressly allows for
encroachment on bargaining unit work in certain specified situations. Counsel cites this
as an example
of mutual agreement contemplated in Article 3.02, which was not obtained
in the present case.
CUPE 116 seeks a declaration that the University has violated Article 3.02 of the
Collective Agreement, together with an order for the University to comply with that
provision and reassign work relating to the monthly generator testing back to CUPE 116
electricians. CUPE 116 also seeks monetary damages.
In support of its position, CUPE 116 cites the following authorities: City of
Kamloops and Canadian Union of Public Employees, Local 900, Í19961 B.C.C.A.A.A.
No. 611 (Germaine); Slocan Forest Products Ltd. ønd Industrial Wood and Allied
Workers of Canada, Local I-4,l2001lB.C.C.A.A.A. No. 326 (Blasin a): Re Rid.eaucrest
Home
for
the Aged and Ontario Nurses' Assocíation, (1995) 48
L.A.C. (4th)
I G.D.
Brown); Town of Truro and c.u.P.E., Local734, (799r) 19 L.A.c. (4'h) 123 (Maclellan);
Carling O'Keefe Breweries of Canada Ltd. and Western Union of Brewery, Beverage,
Winery and Distillery Workers, Local287, (1987) 31 L.A.C. (3'd) 68 (Beattie); Canadian
Forest Products Ltd. and United Steelworkers of America, Local I-2171 (Miller
Grievance), [2005] B.C.C.A.A.A. No. 160 (Peketes); and IMASCO Minerals Inc. and
Cement, Lime and Gypsum Workers, Local D-486 (Sosniak Grievance),
B.C.C.A.A.A. No.
27
5 (Longpre).
[1999]
13
On behalf of the Employer, Mr. Korbin argues this is not a case where the
Employer has reassigned a CUPE electrician job to an IUOE operating engineer. Rather,
the IUOE operating engineer continues to perform the same job he has always performed
in relation to the monthly tests, and all that has changed is a few incidental tasks
previously performed by the CUPE electrician have been added to his
job.
Counsel
estimates these tasks "take a few minutes" per monthly test of each emergency generator,
and submits the Employer has a right to eliminate such an obvious redundancy.
Given the introduction of the new program that now includes comprehensive
annual servicing involving CUPE electricians, CUPE mechanics, IUOE mech 2s, and
contractors, there is no need for a second employee to spend time getting to the monthly
test, performing a visual inspection, conducting passive monitoring of the running of the
generator, and returning to the shop, or the coffee shop, after the test.
The Employer takes the position it possesses a fundamental right to organize its
workforce for bona fide business reasons, subject to express restriction in the collective
agreement, which does not exist in the present case. The University relies on the
management rights provision of the Collective Agreement, contained in Article 2.01,
which reads as follows:
Management Rights
The management and the direction of the working force is vested in the
University, except as in this Agreement is otherwise specified.
Mr. Korbin states the monthly emergency generator testing does not constitute
maintenance in the sense contemplated by the CUPE electrician job description, and the
work does not otherwise involve the installation of electrically operated fixtures,
apparatus, or equipment as referred to in that document. Counsel relates the monthly
74
testing to "starting and running one's 1960's convertible for thirty minutes once a month
during the winter". Any maintenance to the emergency generator, or its components, is
now performed during the annual servicing part of the new program when the generator
is operated for a two-hour period under full load, and components such as the transfer
switch are actually serviced.
The University takes the position Article 3.02 does not provide the protection
sought by CUPE 116. Mr. Korbin points to the distinction in the arbitral jurisprudence
between language that protects bargaining unit "work", as opposed to 'Jobs", adding:
"the authorities establish that a significantly narrower protection is afforded by collective
agreement provisions that protect bargaining unit jobs".
Mr. Korbin asserts CUPE 116 can make no serious claim for work that its
members did not perform exclusively. He adds the tasks that CUPE electricians solely
performed prior to November 2005 were few and took little time. They are captured by
the de minimus principle, which essentially provides the law does not care for, or take
notice of trifling matters.
In support of its position the University cites the following authorities: FortisBC
and International Brotherhood of Electrical Workers,
Local2l3 (Inspector Position
Grievance), [2008] B.C.C.A.A.A. No. 29 (Hickling); Weyerhaeuser Co. and Industrial
Wood and Allied Workers of Canada, Local217l;120021B.C.C.A.A.A. No. 181
(Kinzie); University of British Columbia and Canadian Union of Public Employees,
Local 116,120021 B.C.C.A.A.A. No. 82 (Taylor); Community Care Access Centre and
C.U.P.E., Local 1287, [2001] O.L.A.A. No. 51 (Rose); Town of Lincoln and C.U.P.E.,
Local 1287 (Switchboard Grievance), (2000) 85 L.A.C.
(4'\ U4 (Verity);
Mead,ow Park
Nursing Home and Service Employees' International Union, Local2I0 (Matun
Grievance), U9991O.L.A.A. No. 672 (Williamson); Memorial University
of
Newfoundland and Newfoundland Association of Public Employees, (7998) 52 C.L.A.S.
15
273 (Oakley); Placentia and Area Health Care Complex and N.A.P.E., (1996) 42
C.L.A.S. 447 (Oak<ley); Haley Industries Ltd. and United Steelworkers of America, Local
4820, (1995) 38 C.L.A.S.476 (Adell); Fairhaven Home for Senior Citizens and Ontario
Nurses' Association (Reorganization Grievance), (1992) 28L.A.C. (4'h) 399 (Thorne);
Carling O'Keefe Breweries of Canada Ltd. and Western Union of Brewery, Beverage
,Winery & Distillery Workers, Local287, supra;Wire Rope Industries Ltd. and United
Steelworkers, Local 3910, (1952) 4L.A.C.
(3'\
323 (Chertkow); Windsor Pubtic Utilities
Commission and International Brotherhood of Electrical Workers, Local 9I
I,
(1974) 7
L.A.C. (2"d) 380 (Adams); Electric Reduction Co. of Canada Ltd. and Office &
Professional Employees International Union, (1973) 3 L.A.C.
(2"\ 87 (HartÐ; British
Columbia Hydro and Power Authority and International Brotherhood of Electrical
Workers,
Local2l3 (Mechanical Foreman Grievance), January 37,1986 (Hope); City of
Port Alberni and C.U.P.E., Local I18 (Vacancy Posting Grievance), [2008]
B.C.C.A.A.A. No. 78 (Sullivan); and MIC's Group of Health Services (Lady Minto
Hospital) and Service Employees International Union, Local204, (2005) 146L.A.C.
(4t\ 84 (Stephens).
On behalf of IUOE 882, Mr. Edgar expressed the position rhar ruOE 882's
interest is to protect what it views as its exclusive bargaining unit work, and it is
indifferent to the assignment of certain tasks previously performed solely by CUPE 116
electricians. Counsel points to Article 3.01 of the IUOE 882 Collective Agreement,
which sets out this Union's bargaining unit work jurisdiction in the following terms:
3.01
V/ork of the members of the Union shall comprise all work regularly
performed by them and such other work as is usual for the engineers
employed in a similar capacity elsewhere and such other work as is
set out in the Job Descriptions attached to this Agreement as
Appendix "8"....
16
Mr. Edgar relied on the testimony of Mr. Lane to the effect that the type of work
performed by IUOE 882 members during the monthly emergency generator testing is the
type of work that operating engineers perform at other institutions, and the work is
captured in the ruOE operating engineer/mech2job description. Counsel states IUOE
operating engineers have always been involved in the testing of emergency generators as
operators of the mechanical system to ensure building systems are maintained.
Mr. Edgar also made reference to
a grievance
filed by IUOE 882 on September 9,
1999, alleging bargaining unit work relating to the monthly generator testing on
September 8, 1999 was "being performed by others", contrary to Article 3.01 of the
IUOE 882 Collective Agreement. The resolution to the grievance at stage 3 included "an
investigation will be conducted to determine what happened on 8 Sept 99." Further, the
written statement of settlement also provided: "It is agreed that
a
Mech 2 is to be
assigned along with an Electrician to test all emergency generators."
DECISION
Having carefully considered the facts surrounding the grievance, together with the
submissions of the respective parties I determine the grievance cannot succeed. The
transfer of what really amounts to only a handful of duties previously performed by
CUPE 116 electricians is not protected by Article 3.02, which for ease of reference, is
reproduced again:
3.02 Work
of The Bargaining Unit
Persons whose jobs are not in the bargaining unit shall not work on any
jobs which are included in the bargaining unit, except in cases mutually
agreed upon between the University and Union 116....
The narrow question arising out of the present grievance is whether the IUOE
operating engineers are performing "work on any jobs which are included in the (CUPE)
77
bargaining unit", contrary to Article 3.02. Did the Employer violate this provision when
it removed the CUPE 116 electrician from the monthly emergency generator test and
assigned functions
it performed to the IUOE operating engineer?
The negotiated job protection contained in Article 3.02 cannot be extended to
prohibit the transfer of work that has occurred in the present case. The University's
rcorganization of work in November 2005 was a bona fide business decision to address a
costly redundancy relating to the deployment of human resources. The work transferred
outside the CUPE bargaining unit did not constifute a substantive part of a'Job", nor did
the reassignment otherwise damage the integrity of the bargaining unit
in away that
would violate the negotiated language.
It is well established management has a presumptive right to manage its
operations, which includes reorganizing or restructuring work assignments subject to
express restrictions contained in the collective agreement. In FortisBC and International
Brotherhood of Electrical Workers, Local 213, supra, Arbitrator Tony Hickling
summarized the prevailing law as follows:
60
Arbitral jurisprudence reflects general acceptance of the view that
management has the presumptive right to run the enterprise. It may
organize and restructure operations; create or eliminate jobs or
classifications, assign or reassign duties and responsibilities. See generally,
Brown & Beatty, Chapter 5, on Organization and Direction of the
V/orþlace. That management right is subject to the terms of the particular
collective agreement which may expressly or implicitly fetter
management's discretion. . ..
In FortisBC the board also had opportunity to comment on the right a bargaining
unit employee possesses in regards to the performance of particular functions or tasks.
Arbitrator Hickling stated:
l8
72
While in the past PLTs have performed the inspection function, no
sufficient basis has been provided for concluding that the inspection of civil
contractor work as such falls within their exclusive bailiwick under the
collective agreement. The authorities are clear and of long standing. No
one has a proprietary right in the specific job functions he or she has been
performing, unless that is apparent from the language of the agreement.
Provided that it is in good faith and for purposes of business efficiency
rather than to undermine the provisions of the agreement, management has
the presumptive right to reorganize its work force and to reassign job
function....
A review of the relevant legal authorities discloses arbitrators have generally paid
heed to a distinction in bargaining unit protection language relating to 'Jobs" as opposed
to "tasks", "duties", or "work". In Electric Reduction Co. of Canada Ltd., supra,the
arbitration board had opportunity to consider collective agreement language that provided
for protection at article 1.03, which stated, in part: "Employees of the Company not
included in the Bargaining Unit will not work on any job covered by this agreement,
except. . .."
The arbitrator in Electric Reduction outlined the issue before him as follows:
The issue here is whether there is some a priori job content which
appertains to a givenjob classification as a natural consequence ofthejob
title or from practices followed in the past, or whether work assignments
remain a function of management unless limited or conditioned by the
collective agreement.
The arbitrator made the following comments about the meaning of the language
used by the parties in
limiting an employer's right to manage and direct the work force:
Inasmuch as the Union did not contest either of the company's contentions
namely, the relatively small amount of working time lost to the unit as the
result of the performance of the tests in question by plant employees, or the
historical shifts in work assignments as between laboratory and plant, but
T9
relied on the accrued right deriving from the performance of the subject
tests by salaried unit personnel and on the protection afforded by s. 1.03,
the board must regard this dispute as falling within the parameters of the
cases reported above. In other words, admitting that in the absence of a
prohibitive clause in the agreement, the company would retain the right to
assign functions or tasks as it saw fit (subject always to a prohibition not to
do so to the extent that it interfered with seniority rights or required outside
employees to be brought within the ambit of the unit), the question resolves
itself simply to this: Does s. 1.03 prohibit the assignment here in question?
In the opinion of the majority of this board, it does not. The board might
think differently if art. 1.03 had read, "Employees of the Company not
included in the bargaining unit will not perform any work normally
performed by employees covered by this Agreement, except...". Vy'e think
there is a significant difference between "work on any job" and "perform
any work normally performed". For us to conclude that the two phrases
meant the same thing, that is to say, to conclude that to "work on any job"
including performing any task, no matter how inconsequential, ever in the
past performed by a member of the unit, would be for us to espouse the
watertight compartment theory of job classifications. For how else could
one contend that another was working "on his job" merely by performing
one or more tasks previously performed by him unless these tasks which no
one could thereafter take from him. If one is to be consistent with the cases
reported above, one must conclude that no one can work "on the job" of an
employee unless and until he performs substantially the whole job....
The board ín Electric Redu,ct¡onarrived at the following conclusion about the
language used by the parties:
'We
find, thus, that the phrase, "will not work on any job" must be taken to
have been used in the sense of the established jurisprudence, namely, that
no non-unit personnel will perform so great a part of the tasks properly
assigned to a unit member as to constitute performing substantially the
whole of any job falling within the unit. We find that, as a question of fact,
this was not the case in the matter at hand.
In Haley Industries Ltd. and U.S.W.A., Local 4820, supra, the arbitrator had
opportunity to comment on collective agreement language protecting "any
job".
The
20
bargaining unit protection language at case was contained in article 5.02, and it read
as
follows:
5.02
An employee, whose job is not in the bargaining unit, shall not work
on any job which is included in the bargaining unit except for the purpose
of instructing, training, experimentation or during emergencies or when
qualified bargaining unit employees are not available.
The grievance in Haley Industries was filed after an estimator had been laid off
and all that employees' work continued to be performed. Half of it was moved to a
salesman inside the bargaining unit,
with the effect that
a
significant portion of the
salesman's work was transferred outside the unit. The other half was directly moved
outside of the bargaining unit to engineering personnel.
The arbitrator in Haley Industries reviewed the functions previously performed
within the bargaining unit by the estimator, and the tasks now accomplished by the
engineering personnel. The board stated:
On balance, I think the evidence supports the company's position. Mr.
Joe's testimony about the sharp decline in business prior to the
reorganization in question was not impugned, nor was his evidence on the
duplication at that time between the estimator's work and the Engineers'
work or on the impact of electronically transmitted data on the estimator's
functions. It is true, as noted above, that a small portion of the work
previously done by the estimator is now being done by the Engineers - the
7Vo or so which consisted of weight calculations from paper drawings, and
the minor task of writing out the assessments. However, the evidence as a
whole leads me to conclude that the company did away with the rest of the
'oA" half of the estimator's job, and that it did so for reasons expressly
allowed y afi. 9.02 of the collective agreement - that is, in response to...
changing conditions or circumstances or the (demands of) the more
effective operation of the business....
21
Aficle 9.02 of the collective agreement referred to in Haley Industries provides:
9.02
It is recognizedthat during the term of this agreement, changing
conditions or circumstances or the more effective operation of the business
may from time to time cause the Company to add new jobs, eliminate
existing jobs, or adjust, modify, combine or consolidate existing jobs.
The board in Haley Industries had opportunity to comment on the decision of the
board in Electric Reduction to the effect that language protecting'Jobs" only served to
protect the bargaining unit where substantially the whole of the job was transferred
outside the bargaining unit. The board stated:
I am not willing to go that far (as the board in Electric Reduction). I think
it would be too loose an interpretation of article 5.02, which says that nonunit employees "shall not work on any job which is included in the
bargaining unit", to hold that it is not violated unless almost the whole job
is being done by non-unit employees. In some fact situations, such an
interpretation would fail to do what the award in Electric Reduction
recognizes that an arbitrator must try to do - that is, "protect ...the union in
its legitimate concern against an abusive erosion of the unit...". However,
where as in the case of the "'W" half of the estimator's job in the case at
hand, a package of duties performed by a bargaining unit employee has
been largely eliminated, and eliminated for proper reasons of the sort
envisaged by art. 9.02, it would be too restrictive to find that art. 5.02
invalidates the reorganization merely because a small fraction of those
duties are subsequently carried on by someone outside the unit.
I
agree
with the arbitrator in Haley Industries in his conclusion that the board in
Electric Reduction understated the protection in the language protecting'Jobs" to the
extent that it failed to also include the implied restriction at law of protecting the integrity
of the bargaining unit.
In Placentia ønd Area Health Care Complex and Newfoundland Association of
Public Employees, st¿pra, the arbitration board considered a grievance involving the
22
transfer of certain bargaining unit work outside the bargaining
case was a clerical employee, who had
unit. The grievor in that
previously spent fifteen percent or about five and
one-quarter hours per week performing clerical work for Complex employees, and her
hours were reduced when this work was transferred outside of the bargaining unit to a
clerical employee hired by the Public Health Unit for the program.
The relevant collective agreement provision in Placentiawas article 3.02, which
read in part as follows:
V/ork of the Bargaining Unit
(a)
Persons whose jobs are not in the bargaining unit shall not
work on any jobs which are included in the bargaining unit except for the
purpose of instruction, experimenting, emergencies....
3.02
Atparagraph 30 the board in Placentiø quoted from an earlier Newfoundland
arbitration award, Her Majesty the Queen in Right of Newfoundland and Newfoundland
Association of Public Employees (Titford), February 29,7988 (Dicks), which considered
similar collective agreement language. Arbitrator Dicks stated:
The language of Clause 3.03(a) is meant to protect the jobs not the duties or
tasks of a position. Management and excluded personnel may therefore
perform certain of the tasks so long as the Bargaining unit jobs are not
endangered or the number of positions lessened. Were this to happen
whether by a substantial performance of the central core of duties of a job
or position or otherwise, there would be an improper encroachment upon
the Bargaining Unit....
In regards to the matter of whether the fifteen percent now worked by an employee
outside of the bargaining unit was protected by article 3.02(a), the board in Placentia
made the following comments:
23
3l
The test to apply when determining whether or not a person
performed the central core of duties of a 'Job" was considered in the Bay St.
George Senior Citizens Home case. In that case a supervisor who had
already performed the duties on previous occasions and who performed
bargaining unit duties of a Registered Nursing Assistant who was on
vacation, was found not to be performing an amount of work to such an
extent that would impair the integrity of the bargaining unit or endanger
jobs within the bargaining unit. The arbitrator in that case was considering
language similar to the present Article 3.02(a). Applying this analysis to
the fact of the present case, it is noted that the amount of time spent by
Edna Mullins (the non-unit clerical employee) performing work for
employees of the Complex was about 5.25 hours per week. The percentage
of her time spent performing bargaining unit work was not such as to bring
her within the bargaining unit or to impair the integrity of the bargaining
unit. Therefore Edna Mullins would not be working on a "job" within the
bargaining unit and for this reason, as well, there is no violation of Article
3.02(a).
It is worth noting that in
the
Placentia case the board dismissed the grievance with
regards to article 3.02(a), but upheld it on the basis of article 3.02(b) of the same
collective agreement, which provided the following:
(b)
3.02
Notwithstanding Clause 3.02(a), the parties agree thar no
employee shall suffer a reduction in the hours of work, pay, or benefits as a
result of work performed by individuals working as: (1) volunteers; (2)
working under the scope of Provincial or Federal funded grants or
projects. . ..
In Memorial University of Newfoundlønd and Newfoundland Association of Public
Employees, supra, the grievance related to the assignment of bargaining unit work to
support staff outside of the
unit. Specifically, the work
assigned was operation of the
full
mission bridge simulator at the Centre for Marine Simulation for a client.
The relevant collective agreement prouirion was article 3.04, which provided
follows:
as
24
3.04
Management and excluded personnel shall not work on any jobs
which are included in the bargaining unit except:
(a)
(b)
when regular employees are not available;
when performing developmental or experimental work.
On the evidence the board in Memorial Universlf found the support staff had
performed a few tasks usually performed by bargaining unit members, and it was in this
context that the arbitrator commented on the protection of 'Jobs", as contained in article
3.04. The board stated:
Did the performance of work of the instructors bargaining unit amount to a
violation of the Collective Agreement? Article 3.04 states that "excluded
personnel shall not work on any jobs which are included in the bargaining
unit". Arbitrators have placed a different interpretation on language of
collective agreements that prohibits excluded personnel from working on
'Jobs" within the bargaining unit and language that prohibits excluded
personnel from performing any "work" within the bargaining unit. The
language used in this Collective Agreement that restricts work on 'Jobs"
many be distinguished from language iri other collective agreements that
restrict excluded personnel from performing bargaining unit work. For
example, in Re Rideaucrest Home for the Aged and Ontario Nurses'
Association, (1995) 48 L.A.C. (4'n) I (H.D. Brown), the collective
agreement language stated "no one outside the bargaining unit shall
perform work normally performed by members of the bargaining unit".
When applying such language the arbitrator concluded that, even where
there were overlapping duties, the employer could not reduce the
Registered Nurses bargaining unit worldorce and increase another
workforce when the work was normally performed by Registered Nurses.
However, in this case the parties have not chosen to use collective
agreement language that refers to protection of bargaining unit "work", but
have chosen to use collective agreement language which refers to
protection of bargaining unit 'Jobs".
I pause to note that CUPE 116 in these proceedings cited
position.
R¿ Rideaucresl
in support of its
25
The board in Memorial University rcviewed the authorities, including the decision
in Placentia, and concluded the protection of 'Jobs" did not extend to the particular tasks
assigned outside of the unit in relation to the circumstances giving rise to the grievance.
The arbitrator stated:
When considering collective agreement language that protects bargaining
unit'Jobs", arbitrators have examined whether excluded personnel have
performed bargaining unit work to such a degree as to deprive a bargaining
unit employee of a substantial portion of his or her job or to bring the
excluded person within the bargaining unit.
The amount of bargaining unit work performed in this case was not a
substantial amount. Spencer Barnes operated the simulator on two days in
March, 1996. The extent of the bargaining unit work performed was not to
such a degree as to deprive a bargaining unit employee of a substantial
portion of his or her job. There was not a substantial performance of the
central core of duties of the job of an instructor. The percentage of time
spend doing bargaining unit work was not to such an extent as to bring the
support staff within the bargaining unit. Therefore the support staff were
not doing work on any'Jobs" within the bargaining unit.
The above-cited authorities have application to the present circumstances and
support a conclusion that Article 3.02 does not protect the work in question for CUPE
116 electricians. There is no basis upon which to find that a substantial portion of the
CUPE electrician job has been assigned to the IUOE operating engineer, or that the
operating engineer is now performing a significant amount of CUPE bargaining unit
work such that he is effectively brought inside the bargaining unit. The assignment of the
particular tasks in dispute to an IUOE operating engineer has in no way impaired the
integrity of the CUPE bargaining unit. No CUPE electrician has been laid off or has
otherwise lost work as a result of the new monthly testing regime. As at November 2005
when the new program was implemented FLS employed twelve electricians. In 2007 and
2008 there have been fourteen.
26
There can be no serious argument that functions previously performed by both the
CUPE electrician and the IUOE operating engineer cannot now be performed solely by
the IUOE operating engineer. It has generally been held that where there is an overlap of
job functions one unit cannot claim the work
as its
own. ln British Columbia Hydro and
Power Authoríty and I.B.E.W. Local2l3, supra, arbitrator H. Allan Hope Q.C. observed:
...work that is performed by both bargaining unit and non-bargaining unit
employees cannot be seen as bargaining unit work in the jurisdictional
sense. That is, it is a contradiction in terms to imply an intention in the
parties to give the union exclusive jurisdiction over work which has
traditionally been performed by non-bargaining unit employees.
ln Meadow Park Nursing Home and Service Employees' International (Jnion,
Local2I0 (Matun Grievance), supra, the grievance alleged the employer violated the
collective agreement by having Registered Nurses give treatment to patients, and the
union maintained the work was bargaining unit work that belonged to Registered
Practical Nurses. The relevant collective agreement provision read, in part, as follows:
2.03
Supervisors whose jobs are not in the bargaining unit shall not work
on any jobs which are included in the bargaining unit.. ..
The board ín Meadow Parkfound both Registered Nurses and Registered Practical
Nurses performed the tasks in question over the life of the present and previous collective
agreements, in which the bargaining unit work restriction language remained unchanged.
The arbitrator stated:
The foregoing arbitral jurisprudence demonstrates that where the job duties
overlap and have been performed by members of two groups of employees
under unchanged collective agreement language, neither group can
rightfully claim that these duties are exclusively their own. On the
evidence, it is clear that the duties of treatments have never been
28
The grievance must therefore be denied. It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 24th d,ay
of March,2009.
W
Christopher Sullivan