Lafarge Canada hired loader operator at cement plant
The union grieved when Lafarge Canada hired a loader operator (LOP) to work outside the bargaining unit at a cement plant.
The LOP job had been removed from the collective agreement in an earlier round of bargaining. The union argued management was precluded from hiring outside the bargaining unit.
The employer took the view that when the LOP classification was removed from the collective agreement, it was also removed from the bargaining unit. In the circumstances, the employer said it had the unfettered right to assign non-bargaining unit work to a non-bargaining unit employee.
The agreement that led to the dispute originated in the parties’ negotiations for their 1995-1998 collective agreement. In response to tough economic times and a lack of work, the union and the employer agreed to remove the LOP classification from the collective agreement.
However, the parties negotiated a letter of intent and attached it to the collective agreement. The letter of intent agreed to “red circle” work performed in the LOP job to establish that the rate of pay for LOP work would be tied to any future wage increases in the collective agreement.
Evidence showed LOP work continued to be performed by bargaining unit members on a part-time and as-needed basis after the classification was removed from the contract in 1995. On a few occasions, a management employee filled in at the LOP position. The LOP job was managed that way until the employer hired a full-time operator from outside the bargaining unit in 2010.
No longer listed in the contract
The employer said the collective agreement unambiguously identified the bargaining unit as being made up of the classifications Truck Driver and Mechanic as listed in Schedule A of the contract. The LOP position was no longer listed in the contract, therefore it was no longer part of the bargaining unit, the employer said.
The fact the work continued to be done predominantly by bargaining unit members did not necessarily make the work bargaining unit work. The employer said management’s rights under the contract gave it the unfettered right to assign non-bargaining unit work as it saw fit.
The union said the LOP classification was removed from the contract in 1995 because the employer said there was no longer enough work to support a full-time position. The union’s assent was not an agreement to remove the LOP classification from the bargaining unit — and the work continued to be performed by bargaining unit members. Moreover, the contract’s scope clause was not the only relevant factor, the union said. The employer was permitted to assign work to non-bargaining unit members as long as the amount of work did not put that worker into the bargaining unit.
The determination as to whether or not an employer could create a new job classification outside the bargaining unit turned on whether or not the job functions in the new classification were more in line with the work of other excluded people or more like the work performed by bargaining unit members. In this case, the union said, the LOP work was more closely aligned to bargaining unit work than to excluded work.
The arbitrator agreed. The arbitrator acknowledged the LOP classification had been removed from the schedule in 1995.
However, the letter of intent attached to the contract provided a clear mechanism to establish the pay rates for bargaining unit members doing LOP work, the arbitrator said. And, as the evidence showed, bargaining unit members continued to perform the bulk of the LOP work even after the classification was removed from the schedule.
The arbitrator ruled the LOP work continued to be bargaining unit work after it was removed from the schedule in 1995. There was no evidence the new employee did any managerial work at all. In fact, the arbitrator said, 100 per cent of the new employee’s work was bargaining unit work. This crossed the threshold and constituted a breach of the collective agreement.
“Normally the question of the percentage of bargaining unit work that an employee is doing is relevant in assessing whether the assignment triggers the implied fetter or prohibition against assigning work outside the unit, but in this case there is absolutely no evidence that the new employee is doing anything but bargaining unit work. Thus…the evidence here supports a finding that the assignment of this work is likely to adversely affect the integrity of the unit. By assigning bargaining unit work to a non bargaining unit employee the employer has resiled from the bargain it has made and has thus breached the collective agreement.”
The new employee was declared a member of the bargaining unit.
Reference: Lafarge Canada Inc. and United Steel Workers, Local 343-02. Deborah Leighton — Sole Arbitrator. Alex Mercer for the Employer. Peggy McComb for the Union. Oct. 29, 2012. 21pp.
The LOP job had been removed from the collective agreement in an earlier round of bargaining. The union argued management was precluded from hiring outside the bargaining unit.
The employer took the view that when the LOP classification was removed from the collective agreement, it was also removed from the bargaining unit. In the circumstances, the employer said it had the unfettered right to assign non-bargaining unit work to a non-bargaining unit employee.
The agreement that led to the dispute originated in the parties’ negotiations for their 1995-1998 collective agreement. In response to tough economic times and a lack of work, the union and the employer agreed to remove the LOP classification from the collective agreement.
However, the parties negotiated a letter of intent and attached it to the collective agreement. The letter of intent agreed to “red circle” work performed in the LOP job to establish that the rate of pay for LOP work would be tied to any future wage increases in the collective agreement.
Evidence showed LOP work continued to be performed by bargaining unit members on a part-time and as-needed basis after the classification was removed from the contract in 1995. On a few occasions, a management employee filled in at the LOP position. The LOP job was managed that way until the employer hired a full-time operator from outside the bargaining unit in 2010.
No longer listed in the contract
The employer said the collective agreement unambiguously identified the bargaining unit as being made up of the classifications Truck Driver and Mechanic as listed in Schedule A of the contract. The LOP position was no longer listed in the contract, therefore it was no longer part of the bargaining unit, the employer said.
The fact the work continued to be done predominantly by bargaining unit members did not necessarily make the work bargaining unit work. The employer said management’s rights under the contract gave it the unfettered right to assign non-bargaining unit work as it saw fit.
The union said the LOP classification was removed from the contract in 1995 because the employer said there was no longer enough work to support a full-time position. The union’s assent was not an agreement to remove the LOP classification from the bargaining unit — and the work continued to be performed by bargaining unit members. Moreover, the contract’s scope clause was not the only relevant factor, the union said. The employer was permitted to assign work to non-bargaining unit members as long as the amount of work did not put that worker into the bargaining unit.
The determination as to whether or not an employer could create a new job classification outside the bargaining unit turned on whether or not the job functions in the new classification were more in line with the work of other excluded people or more like the work performed by bargaining unit members. In this case, the union said, the LOP work was more closely aligned to bargaining unit work than to excluded work.
The arbitrator agreed. The arbitrator acknowledged the LOP classification had been removed from the schedule in 1995.
However, the letter of intent attached to the contract provided a clear mechanism to establish the pay rates for bargaining unit members doing LOP work, the arbitrator said. And, as the evidence showed, bargaining unit members continued to perform the bulk of the LOP work even after the classification was removed from the schedule.
The arbitrator ruled the LOP work continued to be bargaining unit work after it was removed from the schedule in 1995. There was no evidence the new employee did any managerial work at all. In fact, the arbitrator said, 100 per cent of the new employee’s work was bargaining unit work. This crossed the threshold and constituted a breach of the collective agreement.
“Normally the question of the percentage of bargaining unit work that an employee is doing is relevant in assessing whether the assignment triggers the implied fetter or prohibition against assigning work outside the unit, but in this case there is absolutely no evidence that the new employee is doing anything but bargaining unit work. Thus…the evidence here supports a finding that the assignment of this work is likely to adversely affect the integrity of the unit. By assigning bargaining unit work to a non bargaining unit employee the employer has resiled from the bargain it has made and has thus breached the collective agreement.”
The new employee was declared a member of the bargaining unit.
Reference: Lafarge Canada Inc. and United Steel Workers, Local 343-02. Deborah Leighton — Sole Arbitrator. Alex Mercer for the Employer. Peggy McComb for the Union. Oct. 29, 2012. 21pp.
