Plant chair had 'ostensible or apparent authority': Arbitrator
An engineer working as a lower-rated classification was paid less than he felt he should have been, so he grieved his treatment.
Cody Ketchum was offered the job of fireman in March 2016 at the Mackenzie, B.C., lumber-processing plant of Conifex Timber. The job required employees to burn excess wood-waste products which created power for the plant.
Ketchum was paid $33.92 per hour while working as a fireman. On June 14, he moved to a temporary position as engineer in the plant until Aug. 22. During that time, he was paid $40.34 per hour and he received his third-class engineer’s ticket.
Ketchum was returned to the fireman position and he was paid $35.20 per hour. The union, the United Steelworkers, Local 1-2017, grieved the pay rate and submitted Ketchum should have been paid as third-class engineer, due to his ticket status.
The union said a Nov. 2, 2012, memorandum of agreement (MOA) indicated a third-class engineer should be paid third-class wages no matter what job the employee is doing.
The agreement was negotiated when the sawmill owner decided to build the power plant. It said workers’ pay rates “will apply to the specified classifications.”
The MOA specified pay rates for engineers, but the position of fireman was not included. Conifex originally intended to use automation and contractors when needed to burn wood, and not hire dedicated staff.
However, the power plant did not start as planned and it suffered a catastrophic failure.
The power plant was eventually opened in March 2015 and the employer decided to hire full-time workers to burn the wood, despite what the MOA said.
A March 4, 2015, letter from Lorraine Ducharme, vice-president of human resources, to the union stated the company would hire fourth-class engineer-level workers and classify them as firemen, which was not previously codified in the collective agreement.
Conifex argued it paid Brant Lennard the lesser fireman rate, even though he held a third-class engineering ticket. The company said that because the union did not grieve that case, Ketchum’s case was similar and he did not deserve to be paid a third-class engineer’s rate.
Arbitrator Arne Peltz upheld the grievance, but said the current situation would stand. “I therefore find that the employer has established the basis for an estoppel precluding the union from enforcing the strict legal right to third-class engineer pay for a fireman such as (Ketchum). The estoppel will remain in effect until the expiry of the current collective agreement (June 30, 2018).”
A grievance meeting had been held in the spring of 2016 to discuss Lennard’s pay discrepancy. The employer said the letter that established a fireman’s rate held sway. The union eventually agreed, as then-plant chair Ken
Stock accepted the company’s position.
“Stock acted as plant chair in raising the matter of pay for a fireman who held a third class. He questioned Lennard’s fourth-class ticket rate and upon being shown the fireman letter, accepted that Lennard was not entitled to be paid as a third-class engineer. Thus, there is no issue here as to the union’s right to manage its grievance process. The question is whether Stock had authority to assure (Kevin McIntyre, the power plant manager) that there would be no demand for third-class pay on behalf of a fireman,” said Peltz.
Due to Stock’s continued actions being endorsed by the union when he accepted the rate for Lennard, it established a precedent, said the arbitrator.
“Whether or not Stock had actual authority, I find he had ostensible or apparent authority, as argued by the employer. McIntyre dealt with Stock on a regular basis to address both concerns and grievances in the plant. The union allowed Stock to perform his role as chair and deal with management in order to settle disputes,” said Peltz.
Reference: Conifex Power Limited Partnership and United Steelworkers, Local 1-2017. Arne Peltz — arbitrator. Michael Wagner for the employer. Craig Bavis for the employee. Oct. 19, 2017.
