Collective agreement does not limit the way new classification can be used.
When the employer called in designated weekend, part-time workers to fill in for a Facility Operator who was going to be absent for five days, the union grieved. The union argued that past practice compelled the employer to offer the shifts to other Facility Operators on an overtime basis.
Employed by a municipality, H.C. was one of three Facility Operators regularly scheduled to operate an arena. H.C. worked the day shift on January 19, 2009. Scheduled to work the following afternoon shift, his colleague B.B. — also a Facility Operator — called in sick. In fact, B.B. informed the employer that he would be unable to work all of his scheduled afternoon shifts that week.
As the most senior operator, H.C. was given the opportunity to work a double, and cover B.B.’s shift on January 19. He declined.
While the next most senior operator agreed to cover the January 19 shift, the employer then assigned the remaining shifts — January 20-23 — to part-time staff. The shifts were not offered to full-time staff as overtime.
H.C. grieved and claimed overtime for those shifts.
The union acknowledged that there was no express language in the collective agreement that set out an obligation on the employer to assign the shifts in question to H.C. as overtime.
However, the union said, it was the employer’s long-standing practice — prior to 2006 — to only assign such vacant shifts to full-time Facility Operators.
When the employer introduced the new classification of part-time Facility Operators in 2006, it was the union’s understanding that the new staff would be restricted to weekend work.
Part-time classification introduced
Indeed, the union said, at a meeting to discuss the restructuring, the employer pitched the creation of the new part-time classification as a benefit that would allow full-time operators to have more time with their families on the weekends. There was no suggestion, according to the union, that these workers would be used to deny overtime opportunities to full-time Facility Operators.
Consequently, after 2006, the union responded to every instance of the employer assigning part-timers to cover for full-timers by filing a grievance. The union had filed 41 such grievances between 2006 and 2008, when the parties concluded negotiations on their current collective agreement.
The union argued that the employer’s clear, past practice of only assigning full-time workers on an overtime basis to cover for absent full-time workers estopped the employer from staffing in this way because it failed to put the union on notice that it would be relying on a strict application of its legal rights in order to alter past practice.
Language in the collective agreement did not restrict its ability to assign work in that way, the employer said. Management rights outlined in the agreement gave it broad and expansive rights to direct, plan, control and schedule work. Moreover, the union’s estoppel argument with respect to the employer’s past practice was irrelevant, the employer said, because the position of part-time Facility Operators did not exist prior to 2006.
Union argument inconsistent
Fundamentally, the union’s argument was inconsistent, the employer said. If the union was prepared to accept that part-time workers could fill in for full-time workers who were on vacation, why then could part-time workers not fill in for full-timers in the case of a short-term illness? In any event, the employer said, at no time did it ever give any express representation that it would not use part-time operators to fill in for full-time operators absent due to illness.
The doctrine of estoppel did not apply in this case, the Arbitrator said. “The fact that the Union may have been under the impression that part-time Facility Operators would only be utilized as weekend relief does not in itself advance the Union’s estoppel argument.”
The Arbitrator agreed that employer’s manner of covering for absent Facility Operators before part-time operators were added to the workforce was irrelevant. “[T]he Union had to establish that the Employer by the manner it had utilized part-time Facility Operators created a representation that it would not assign a part-time Facility Operator to replace a full-time Facility Operator absent due to illness.”
The employer’s actions created no such representation, the Arbitrator said. “In fact, the practice of the Employer was to use part-time Facility Operators to perform that work.” There was no practice on the part of the employer to refrain from using part-time Facility Operators to fill in for full-time Facility Operators absent due to illness, the Arbitrator said.
Another key failing in the union’s estoppel argument was that it could not demonstrate that it had relied on the alleged employer practice to its detriment.
“In the case at hand, the Union unmistakably had notice prior to the close of collective bargaining of the current collective agreement that the employer would be assigning part-time Facility Operators to replace absent full-time Facility Operators in the case of absence due to illness. The Union, if it sought to restrict or curtail the manner in which the Employer was assigning part-time Facility Operators had the opportunity to address that issue during collective bargaining. Failing to do so, the Union cannon now assert that the Employer is estopped from continuing to exercise its right to assign the work in question to part-time Facility Operators.”
The grievance was dismissed.
Reference: The City of Hamilton and Canadian Union of Public Employees, Local 5167. Brian Sheehan — Sole Arbitrator. Mark Mason for the Employer and Gerry McDonnell for the Union. December 6, 2010. 11 pp.
