A shield or a sword? Union loses grievance against supervisor doing bargaining unit work

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The use of non-bargaining unit employees to perform bargaining unit work is a frequent source of contention. Where the collective agreement explicitly forbids assigning bargaining unit work to non-unit employees, the issue is relatively simple: no such assignment may take place, and such a provision is a “sword” in the union’s hand to attack any attempt to do so. In the absence of such an explicit restriction within the agreement, management has the right to assign work as it sees fit.

“IMPLIED RESTRICTION” ON MANAGEMENT RIGHTS

However, many agreements that do not bar the assignment of bargaining unit work to excluded employees do contain seniority, job posting, layoff, recall, job classification and union recognition provisions. In some instances, arbitrators have held that the combined effect of these provisions gives rise to an “implied restriction” on management’s right to assign work outside the unit, where doing so threatens the integrity of the bargaining unit. This implied restriction can only be raised by the union as a “shield”, to protect the job security rights of bargaining unit members.

When the union, based on the implied restriction, challenges the assignment of bargaining unit work to an excluded employee, the question is whether the excluded employee is performing bargaining unit work to such an extent as to bring that employee within the unit, thereby threatening the seniority system and the security of the unit.

This was the issue in Hydro Electric Commission of the City of Ottawa v. IBEW, Local 636 (July 11, 2000), where the union alleged that a foreman, Brian Sullivan, was spending more than fifty percent of his working hours performing site cleanup and material transportation, both tasks normally done by bargaining unit members but not specifically identified in the collective agreement as bargaining unit work. The work in question was part of a special hydro pole replacement project, for which the union had agreed to a more flexible arrangement on work hours to ensure the employer’s success in bidding on the project. As a remedy, the union demanded that the employer remit union dues for Sullivan.

Union members testified that Sullivan would, on a daily basis, perform site cleanup and material transport duties, both tasks normally performed by linemen in the bargaining unit. One testified that Sullivan had told him that he spent fifty percent of his time doing this work. The union member conceded that, while the bargaining unit had lost some 25 members over a period of five to six years, this had been achieved through attrition, and no losses had occurred since the pole replacement project had started. More to the point, he confirmed that no bargaining unit members were on layoff during the relevant period, and none had been denied work on the project.

The union argued that, on the evidence, Sullivan was making substantial inroads on bargaining unit work over a four-month period, to the extent that the “implied restriction” was triggered. Employer counsel responded that, at most, the evidence showed that Sullivan spent fifty percent of his time on some days on bargaining unit work, not enough to bring him within the unit. Further, the duties in question did not form anyone’s exclusive job function; no one was on layoff; and no one had been denied work on the project because of Sullivan’s work.

NO REAL INFRINGEMENT ON UNIT’S SECURITY

The arbitrator agreed with the Employer, holding that Sullivan’s activities had posed no threat to the security of the bargaining unit. The restriction on management’s right to assign bargaining unit work, he stated, “is implied in order to remedy a real infringement on the collective agreement job security protection of an employee on layoff or subject to layoff”.

While it is not easy to know at what point the implied restriction is triggered, the arbitrator noted, one must look at the evidence, in light of the collective agreement’s definitions of jobs in terms of classifications and hours, and ask whether the assignment of work to the foreman is depriving a unit member of a job. This was not the case here:

“Here the union is seeking to use the implied restriction as a sword to prevent the assignment of an incidental amount of unit work to Sullivan. … Even if you were to combine the clean up [work] and the driving you cannot come up with a full time job. …

No one is on layoff and there does not appear to ever have been any intent to layoff an employee as a result of Sullivan doing the work he is doing. … The bargaining unit has shrunk by attrition but there is no basis for finding that the assignment of this work to Sullivan has facilitated that.”

As a result, the grievance was dismissed.

In Our View

When there is no provision in the collective agreement explicitly barring the assignment, and the assignment does not result in the loss of job security for bargaining unit members, an employer may assign work normally performed by bargaining unit members to excluded employees. It is important, as the arbitrator in this case noted, to bear in mind the job classification definitions contained in the collective agreement when making a decision about assigning work out of the unit.

For example, if the work being performed makes up enough for a part-time job, but that work is defined in the agreement as belonging to an exclusively full-time job classification, the implied restriction may not be triggered even if a qualified bargaining unit employee is on layoff. This is because there is still insufficient work to recall the employee to a full-time position.

For further information, please contact Jacques A. Emond at (613) 563-7660, Extension 224.