Grievance upheld despite employer's good intentions
An employee at Toronto-based vaccination supplier Sanofi Pasteur was promoted to a non-bargaining unit position, but was required to perform the duties of his previous job, for which an arbitrator ruled he be paid.
The employee, who was unnamed at the hearing, was promoted from within the bargaining unit to a non-bargaining unit position. However, immediately following the promotion, he was required to perform the duties of his former job for three or four days a week for a period of five weeks — without being under the jurisdiction of the collective agreement.
The local Unifor chapter filed a grievance, arguing that legally an employer is not permitted to have a non-bargaining unit employee perform bargaining unit work to such an extent. As a result, Sanofi’s actions triggered "implied prohibition" on an employer’s ability to have bargaining unit work performed by those outside of the membership.
Unifor cited a clause in the collective agreement that prohibited doing as such. The union sought compensation for the dues it would have been paid — which totalled $79 — had the worker been a regular dues-paying employee for those five weeks.
"The employee performed all of the duties of his former bargaining unit position, not just some, for the majority of the days of each week for five successive weeks," Unifor said.
On the other hand, Sanofi argued that no good deed goes unpunished.
The employer argued it had the employee start in his new position five weeks before his former department could fully bear the full operational needs. While the amount of work is not up for dispute, Sanofi said the proportion and context of the work warranted its actions.
"(We are) in the business of manufacturing life-saving vaccines, (we) do not operate a paint line…Errors can be extremely costly and expertise in the performance of the work is of the utmost importance," the employer said, adding that training takes time and the employer was coping with a shortage of trained personnel.
In his decision, arbitrator Russell Goodfellow agreed with Unifor.
First, the period of time was more than incidental — it was substantial.
"The driving force behind this seemingly unusual arrangement was not, as the employer’s contextual arguments appear to have been intended to suggest, the production needs of the employee’s former department but a desire on the part of the employer to enhance the employee’s income earning opportunities for the coming year," Goodfellow said.
In this case, the collective agreement did not permit the employer to place its seemingly well-intentioned desire to enhance the employee’s earning opportunities and have him begin his new position earlier than needed.
Reference: Sanofi Pasteur and Unifor Local 1701. Russell Goodfellow — arbitrator. John Mastoras and Naomi Shawn for the employer, Jesse Kugler for the union. Sept. 3, 2014.