Whose job is it anyway?

Union alleges work taken away from bargaining unit

An allegation from the union representing city workers in Kitimat, B.C., charging that work was taken away from bargaining unit members, was thrown out by an arbitrator.

Jonathan Aiken, a plant maintenance and repair person specializing in the city’s water system, filed a grievance alongside Unifor Local 2300.

Back in March 2013, two non-bargaining unit supervisors performed the duties Aiken would have performed had he been available.

Whereas Unifor argued the work should have been given to Aiken, the District of Kitimat countered that these particular circumstances constituted an emergency, therefore making the exclusive clause in the collective agreement null and void.

According to the contract, except in the case of an emergency or for the purpose of providing training, no non-bargaining unit employee shall perform any work normally performed by a unionized worker.

The incident in question began when the alarm system at the water works sounded. As part of the system, an automated call goes out when a problem is identified. The call order at Kitimat goes: Aiken’s work phone, Aiken’s cellphone, Public Works (which can radio Aiken), Aiken’s home phone — and is then followed by non-bargaining unit supervisors and managers, Wayne Sussbauer and Charles Cale.

When the problem occurred, after-hours and after Aiken had already left work for the day, it had to make its way down to the first two non-bargaining unit members before anyone responded — that is, Aiken was not available or did not answer.

As such, Sussbauer and Cale (who were still on site) decided to check out the source of the alarm. They argued that, because he had already been automatically dialed by the system, they saw no need to call Aiken directly — plus, they were dealing with an emergency.

Both Sussbauer and Cale ended up having to shut off one of the water pumps to isolate a minor flood and stem the overflow of water in one of the pump houses. They put the alarm on silent.

The following Monday morning, Aiken arrived and worked on the pump in question — adjusting the valve, calibrating the pressure, and putting the valve back in service. But when he found out what had happened the night prior, he filed a grievance.

Unifor argued Aiken should be made whole for missing a call-out (a minimum of two hours’ pay at double time) and that two other bargaining unit repair workers should be put on the call list before management.

Because there was no dispute as to whether the job should be considered bargaining unit work, the question becomes whether the incident should be considered an emergency, and then, whether or not management took the job away from a union member.

The event should not be considered an emergency, said the union, because an emergency by definition would have been a sudden state of danger or conflict, requiring immediate action. Because the managers put the alarm on silent and left Aiken to fix the problem on Monday morning, it was not an emergency. On the other hand, as the employer saw it, isolating a valve and pump in order to prevent the magnitude of water loss did constitute an emergency.

"The two pieces of equipment were simply isolated from the rest of the system until bargaining unit members were able to diagnose and correct the problem," the district argued during the hearing. "Further, neither exempt manager took any corrective steps – no repairs or other maintenance was done."

As well, the union wanted more than one bargaining unit member on the automated call-in list. As it currently stands, there was one unionized employee (Aiken) and four non-union managers — in reality, it should be reversed.

But, as the employer said, the makeup of that list was not mentioned in the collective agreement.

In his decision, arbitrator David McPhillips determined that an "emergency" need not have imminent risk to life or bodily harm, but rather can include unusual or sudden happenings that are not anticipated.

As such, there was no basis to conclude this particular situation was predictable, and Sussbauer and Cale simply came upon a situation that required an immediate response. Moreover, the managers did not perform any extensive work — instead, they only addressed the immediate situation (turning off the valve) and left the real fixing to Aiken on Monday morning.

In light of these issues, he dismissed the union’s grievance.

Reference: District of Kitimat and Unifor Local 2300. David C. McPhillips — arbitrator. Adriana F. Wills for the employer, Rick Belmont for the union. May 9, 2014.

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