Worker not interested in 'curtailing' CUPE role: Arbitrator
When a caretaker working for the Surrey, B.C., school district applied for a position as a trades helper on the filter crew, his application was denied because too much of his time was spent attending to union business.
Eric Jaworski had worked for the employer since 1989 and was a head caretaker. He heard about the open position and believed he would be qualified to become part of a two-person crew responsible for changing filters at 133 different sites across the district.
On Aug. 24, 2016, Neal Kinskofer, manager of mechanical maintenance, met briefly with Jaworski to talk about the position. After the meeting, he wrote: “Didn’t do formal interview as discussion led straight into absenteeism and not a fit for the district.”
Even though Jaworski was the most senior applicant, he wasn’t considered due to his attendance rate, which was just below 70 per cent.
Kinskofer said that because the crew was responsible for changing about 2,500 pieces of equipment on a regular basis — 1,125 of which required two persons to complete — he could not rely on Jaworski due to his union commitments.
Kinskofer said that at the time of the interview, he reviewed Jaworski’s attendance and found he had booked off 43 out of 140 days of work during the previous nine months and 35 days were for union business.
After the meeting, Kinskofer said to Jaworski: “If your union absenteeism will remain, we simply can’t take you into this department as it is not in the best interests of district and occupants’ health.”
He explained that because the crews work in cramped and dangerous areas inside some schools, there is a risk children might find their way into those places if there is not a second worker to help watch any open ducts.
With Jaworski’s poor attendance record, the district didn’t have enough spare board workers to replace him on a regular basis.
The union, Canadian Union of Public Employees (CUPE), Local 728, grieved the decision and argued the district should create a spare board of qualified filter-crew workers so Jaworski could continue his union duties and become a member of the crew.
CUPE said the district had a dusting crew spare board that was created after a 2011 letter of understanding. A similar one should be constituted for the filter crew, according to the union.
Jasbir Muker, a member of the filter crew, testified a spare board worker would have to undergo about a month of training to be sufficiently qualified for the position. He said the worker would have to memorize individual units in all of the 133 sites, as each has its own unique characteristics.
Kinskofer also testified that other options such as creating a part-time filter crew worker were considered in order to accommodate Jaworski’s union duties but because his commitments were often last-minute decisions, this would cause a difficulty in scheduling that worker to replace him.
Arbitrator Nicholas Glass dismissed the grievance. “If at some point Jaworski decides to reduce the level of his union responsibilities, and attendant absences, to a level well below 30 per cent or 50 per cent (current levels over the past two years), he will of course be eligible as senior applicant to be considered on any future postings for this position.”
Jaworski would have to choose whether he wanted to continue with his union work or the filter-crew position, according to the arbitrator,
“The central fact was Jaworski’s position as second vice-president of the union and his continuing intention to carry out the duties required for that position, without curtailing them in any way, whether he was awarded the position or not,” said Glass.
“His intentions were clear and in carrying out those intentions to date, he was at the time of his application unqualified for the position, and it was a reasonable conclusion on the part of the employer that he would continue to be unqualified for the position planning as he was, and frankly admitting he was, to carry on with his union responsibilities without curtailing them.”
Reference: School District #36 (Surrey) and Canadian Union of Public Employees, Local 728. Nicholas Glass — arbitrator. Peter Csiszar for the employer. Carmela Allevato for the employee. Aug. 25, 2017.
