Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2020 CANADIAN LABOUR REPORTER ARBITRATION AWARDS about a light-rail project. As a re- sult, OC Transpo had the work- er's predecessor in the SBO role — who had transferred to a tem- porary assignment as superin- tendent of maintenance services — retain all the responsibilities for the fall 2018 booking process — including preparing and cir- culating the booking sheets that were part of the SBO's core duties until the week before the Oct. 1 deadline. As a result, the predecessor worked most of the overtime nec- essary during the booking pro- cess. The union filed a grievance claiming that the worker was denied 30 hours of pay at over- time rates because OC Transpo allowed a non-bargaining unit member — the former SBO whose new role was in manage- ment — to perform work that should have been performed by a member of the bargaining unit, contrary to the collective agree- ment. OC Transpo countered that the worker's predecessor didn't perform bargaining unit work, but if he did, it was such a small portion of his total duties it didn't compromise the collective agreement. It argued that editing booking sheets wasn't the exclu- sive domain of the SBO as man- agement was heavily involved in the process. The employer acknowledged that it was an anomaly for a su- perintendent to distribute the booking sheets, but other mem- bers of management sometimes did. The arbitrator noted that the SBO job description included co-ordination of the booking process as part of the "key duties" and past practice had established that the SBO usually was the one who circulated changes sug- gested by management. However, it was the worker's predecessor who did most of this in the fall of 2018, though he had become a su- perintendent and was no longer a union member. As a result, the arbitrator found that bargaining unit work was performed by a non-bargaining unit member. However, the arbitrator also found that there was no clear pro- hibition in the collective agree- ment that prevented OC Transpo from assigning bargaining unit work to employees who weren't members. The agreement specified po- sitions that weren't part of the bargaining unit but there was no express provision restricting the assignment of work, said the arbi- trator. The union also argued that there is an implied restriction upon employers "to protect the integrity of the bargaining unit and the collective agreement by not assigning work that is usually performed by bargaining unit members to those outside of the bargaining unit." The arbitrator acknowledged that this implied restriction is meant to protect bargaining unit jobs and avoid bringing a non-bargaining unit member into the bargaining unit, but in this case the worker's pre- decessor didn't perform the work on an ongoing basis and he still performed his superintendent duties while helping with the booking process. The arbitrator found that the former SBO performed some of the position's tasks "on a tempo- rary and sporadic basis" in the fall of 2018 but didn't perform them after the process was finished. In addition, the SBO duties weren't "held exclusively" by bar- gaining unit members as man- agement shared in the work. The grievance was dismissed. Reference: Ottawa (City) and ATU, Local 1760 (Crabtree). Kim Bernhardt — arbitrator. Natalie Schwarz for employer. John McLuckie for employee. Sept. 2, 2019. 2019 CarswellOnt 14430 the wearing of personal protec- tive equipment (PPE) and safety procedures, all outlined in a safe practice guide and the collec- tive agreement. The worker re- ceived safety training and reviews throughout his employment. On Dec. 21, 2016, Hydro Ot- tawa scheduled a holiday lunch at a restaurant because it was the last regular workday before the Christmas break. The worker was scheduled to be on-call in the af- ternoon. The worker drank two mixed drinks with rye whiskey during the lunch, over a period of about 30 minutes. Later that afternoon, around 4:15 p.m., the on-call su- pervisor contacted the worker and a colleague about an assign- ment and told them to go to an office where they would receive further instructions. The two employees left the res- taurant in their personal vehicles and they decided to stop by the worksite first. After checking the site and determining that a dam- aged piece of equipment needed to be replaced, they asked two field operators already there to guard the wires since they didn't have any equipment to block off the site from the public. They retrieved the necessary equipment but didn't pick up their full PPE or their Hydro Ot- tawa vehicles, nor did they call the supervisor. They didn't conduct a tailboard safety discussion, en- sure a hold-off — a restriction of the equipment's operation — had been obtained for the site or put on full PPE, but proceeded to re- place the damaged equipment with rubber gloves borrowed from the field operators. In addi- tion, the worker was wearing his work boots with the laces untied and the tongues hanging out. An area supervisor arrived and chastised the worker and his col- league for not wearing PPE or fol- lowing other safety procedures, especially in front of the field op- erators. They agreed they hadn't done the job properly as they wanted to get back to the restau- rant for dinner. Another emergency came up later, but the area supervisor told the on-call supervisor he didn't want the worker or his colleague to assist based on how they did the last job. He called the worker three times before he was able to reach him and told him he was suspend- ed pending an investigation. The worker initially denied that he had consumed alcohol at the lunch before performing the on-call work but then later admit- ted it. He eventually acknowledged that he hadn't brought a Hydro One vehicle with all the appro- priate equipment, manuals and forms to the worksite, hadn't worn appropriate PPE, didn't ob- tain a hold-off, borrowed gloves to do the job, and didn't prop- erly protect the public from the worksite. He also admitted to not telling the whole truth initially because he was "stupid" and "in Christmas mode." The arbitrator noted Hydro Ottawa's work environment was safety sensitive and the worker was responsible for the safety of his co-workers, the public and himself. However, on Dec. 21, 2016, the worker "lacked focus, attention to detail, all of his safety training and displayed terrible judgment" in committing "a series of serious safety infractions, any one of which could have resulted in an injury or property damage." Since the infractions all occurred together in the same day, things snowballed to a point where the circumstances were dangerous, said the arbitrator. The arbitrator also found the worker's failure to be forthright in the investigation compounded his misconduct, so dismissal was ap- propriate. Reference: Hydro Ottawa Ltd. And IBEW, Local 636 (Beach). Judith Allen — arbitrator. Jennifer Birrell, Larissa Volinets for employer. Katherine Ferreira for employee. Aug. 14, 2019. 2019 CarswellOnt 14441 Employee wanted to get back to company Christmas party < Violations pg. 1 < Ottawa pg. 1 Nature of work not prohibited by agreement: Arbitrator

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