SHP 576
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BC RAIL LTD.
(the “Employer”)
AND:
THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES OF AMERICA, LOCAL 170, METAL TRADES DIVISION
(the “Union”)
(First Aid Attendant Arbitration)
_______________________________________________
Dates and Places of Hearing September 11, 2001; February 25, 26, 27 and 28, 2002; March 1, 2002; April 2, 3 and 4, 2002; Vancouver, B.C.
Board of Arbitration Robert Diebolt, Q.C.
Counsel for the Employer Duncan MacPhail
Counsel for the Union Rick Coleman
Date of Award April 20, 2002
This arbitration is a consolidation of three grievances. They were filed by the Union following a number of actions taken by the Employer at its Squamish mechanical complex. It was agreed at the outset that I was properly constituted as a board of arbitration with jurisdiction to hear and determine the matters in issue.
On April 26, 2000 the Employer gave notice to the Union that it was abolishing the position of a full time afternoon shift first aid attendant at the Squamish mechanical complex. The notice, given pursuant to Article 8 of the Job Security Fund Supplemental Agreement between the parties, stated that the abolition of the position would take effect August 26, 2000, unless the incumbent should elect to leave the position at an earlier date. The incumbent was Mr. Ray Lacoursiere. The first aid duties Lacoursiere had been performing were assigned to security guards who are non-union employees of the Employer. The Union filed a grievance dated May 2, 2000 alleging a breach of the Collective Agreement.
Sometime in the fall of 2000 the Employer stopped using on-call part time first aid attendants to supply relief first aid attendants at the Squamish mechanical complex. In place of that practice, it began to assign these duties to security guards. This action gave rise to a grievance dated October 6, 2000, alleging a violation of the Collective Agreement.
On November 15, 2000 the Employer gave notice to the Union that it was abolishing the position of a full time day shift first aid attendant at the Squamish mechanical complex. This notice, also given pursuant to Article 8 of the Job Security Fund Supplemental Agreement, stated the abolition of the position would take effect March 16, 2001. The incumbent was Ms. Loleeta Turner. This action gave rise to a grievance dated November 22, 2000.
The parties’ respective positions are addressed later in this Award, but it will assist to present the substance of their positions at the outset. The Union advanced two positions. First, it asserted that the language of the Collective Agreement obliged the Employer to continue to employ full time first aid attendants at the Squamish mechanical complex. Second, it asserted that the Employer had wrongfully assigned bargaining unit work to non-bargaining unit employees. Those assignments, it was submitted, violated an implied term of the Collective Agreement. In proceeding as it did, the Union submitted that the Employer impaired the integrity of the bargaining unit.
The Employer’s essential position was that its actions were a legitimate exercise of its management rights. In reply to the Union’s first position, the Employer submitted that the contractual language relied on by the Union did not oblige the Employer to employ full time first aid attendants at Squamish or anywhere else in its system. In reply to the Union’s second position, the Employer’s first response was that the disputed work is not bargaining unit work. The Employer also advanced an alternative position in the event it should be decided that the disputed work is bargaining unit work. In that event, the Employer submitted, the Collective Agreement contained no express prohibition against assignment of the work to excluded employees. Further, it submitted there was no implied breach of the Collective Agreement, because the extent of the disputed work performed by the security guards was not sufficient to bring them within the bargaining unit.
The Union raised a separate allegation which related to the third grievance only. In its opening, the Union alleged that the Employer had acted in bad faith with respect to Turner. A very large body of evidence, both oral and documentary, was adduced in relation to this allegation. Ultimately, however, the Union abandoned its allegation of bad faith at the close of the evidence and before argument began. Submissions were accordingly confined to the positions set out above.
The circumstances immediately surrounding the Employer’s decisions to issue the Article 8 notices are reviewed below. Before turning to those circumstances, however, it is necessary to outline briefly the general legal and factual context in which those decisions were taken.
The Employer is a provincial crown corporation operating throughout British Columbia. It operates on more than 2300 kilometers of mainline trackage within the province extending between North Vancouver and Fort Nelson, with branch lines to Fort St. James, MacKenzie, Dawson Creek and Tumbler Ridge. Squamish is not the only location with a mechanical complex. Others exist in North Vancouver and Prince George. The head office is situate in North Vancouver.
The Employer has approximately 1600 unionized and non-union employees. The unionized employees are represented by seven Constituent Unions, one of which is Local 170. The Constituent Unions together comprise an entity named the Council of Trade Unions on B.C. Rail Ltd. The Council is the certified bargaining agent for all unionized employees who are members of the Constituent Unions. As the Certification states in part, the Council is certified “as the bargaining agent for the employees in a unit composed of all unionized employees on BC Rail Ltd.” For convenience, separate collective agreement booklets are printed for each of the Constituent Unions. But legally there is only one Collective Agreement, made between the Employer and the Council, which applies throughout the Employer’s system.
The Squamish mechanical complex has experienced consolidations and employment reductions over the last decade. A variety of factors, including improved equipment, revised maintenance practices, and financial constraints contributed to the changes. Over the decade a number of shops were closed or consolidated. To illustrate the magnitude of the changes, the complex was reduced from 7 major shops and 9 ancillary buildings comprising 294,000 square feet to 3 shops and 6 ancillary buildings occupying 108,500 square feet. Employment also declined significantly. In 1990, there were 277 unionized employees and 67 excluded employees in the Squamish mechanical work force. Today there are 72 unionized employees and 19 excluded employees.
Focusing on the decision to abolish the afternoon shift first aid attendant position, Mr. Gord Younger testified about the reasons for the decision. Younger is the manager of motive power at Squamish, with system wide responsibility for fleet facilities and human resources. He was the person who made the decision to abolish the position.
Younger said that he was approached by Lacoursiere, the incumbent. He said Lacoursiere indicated that he had very little to do as a first aid attendant on the afternoon shift and expressed interest in a financial severance. Younger discussed the matter with Lacoursiere’s supervisor. He also discussed the matter with the manager of corporate safety, Mr. Robert Nicholls, who was prepared to provide first aid coverage with security guards, who fell under his supervision. In addition, Younger said he checked with other supervisors who confirmed the lack of work reported by Lacoursiere. In all of these circumstances, Younger testified that he was comfortable with the abolition of the first aid position and the assignment of its functions to security guards.
The April 26, 2000 Article 8 notice recited the Employer’s view that “there is no longer sufficient first aid work to justify the employment of a full-time first aid attendant on the afternoon shift”. The notice also contained the following sentences. “After the position is abolished the Railway will meet the need for first aid services by having existing security guards trained to perform first aid on a as required basis as required by the Industrial Health & Safety regulations. Such duties will be incidental to their other duties as security guards.” Lacoursiere subsequently resigned from his employment on August 25, 2000, electing to take paid severance under the Job Security Fund Agreement.
Moving to the day shift first aid position, Younger testified that he considered abolishing this position at the time he decided to abolish the afternoon shift. However, he did not do so. He testified that the day shift position was also under utilized, but he knew that abolition would be controversial with the Union and he was not prepared to deal with the matter at that time.
The eventual abolition of the day shift position was not an isolated act. It was part of a major reorganization, rationalization and consolidation of the Squamish mechanical complex. Younger testified that the Employer faced a multi million dollar financial problem in the fall of 2000 which created a pressing need for a reduction in fixed costs. In response, Younger and other senior staff developed two business cases. One case contemplated consolidation of two motive power buildings, closure of three fabrication and maintenance shops, and reduction of certain repair and rebuild processes. A second case contemplated vacating Squamish altogether on the locomotive side and relocating in Prince George. Ultimately the former case was chosen and implemented.
As part of the consolidation the Employer gave an Article 8 notice to the Union on November 15, 2000. That notice abolished 14 positions, including the day shift first aid position. The notice also provided for the transfer of 4 other positions to the North Vancouver locomotive repair facility, because the majority of the Squamish locomotive servicing was being transferred to that location. In addition, the notice provided for the transfer of 2 other positions to Prince George in conjunction with the transfer of locomotive air brake work to the Prince George mechanical complex.
I turn now to the first aid and safety tasks performed at Squamish and elsewhere in the Employer’s system. Turner, who became a day shift first aid attendant at Squamish in 1989, gave extensive evidence about the duties she performed. For ease of reference, her direct evidence describing these duties is summarized in the following numbered paragraphs.
1. Providing general first aid services. These services could range from minor matters to very serious matters, such as heart attacks or major arterial bleeding. She testified that she received from 30 to 40 first aid visits a month.
2. Ordering first aid and safety supplies as required, and checking deliveries against purchase orders to ensure accuracy.
3. Handing out safety gear, such as hard hats and glasses.
4. Replenishing first aid kits on locomotives, in shops, and from line points.
5. Inspecting eyewash stations monthly to inspect solutions, ensure cleanliness and freedom of access.
6. Maintaining and distributing Materials Safety Data Sheets provided by material suppliers.
7. Inspecting fire extinguishers.
8. Preparing monthly foreman’s reports aggregating injuries occurring to persons under the supervision of each foreman.
9. Preparing monthly injury report by shop within the mechanical complex.
10. Maintaining record treatment books.
11. Dispensing, fitting and fit testing respirators.
12. Cleaning and repairing respirators and Racal helmets.
13. Member of Occupational Health and Safety Committee.
14. Audiometric testing.
15. Monitoring weather by observing wind directions and listening to radio.
16. Cleaning industrial ambulance.
17. Cleaning first aid instruments.
18. Assisting employees in completing WCB forms.
Turner gave frequency estimates in relation to some of the duties in her direct examination. Some duties were performed daily, she said, and others periodically. Time estimates were also offered, but there was no generalized attempt to aggregate times on a daily or longer basis. Turner did, however, comment generally about the time taken to perform her duties. In response to a question from counsel for the Union as to whether she was busy all day until she left the job, she replied “Pretty much”.
Counsel for the Employer explored Turner’s duties on cross-examination. As one might expect, the general object of the cross-examination was to limit the frequency and complexity of the duties described in the 18 numbered paragraphs. What follows is not an exhaustive review this evidence. The following summary is limited to illustrative examples.
In relation to paragraph 1, Turner was questioned about the frequency of major first aid medical occurrences she had experienced. It emerged that major occurrences have been infrequent over the course of her service as a first aid attendant. For example, based on symptoms she observed and subsequent treatment, Turner suspected about five heart attacks had occurred, the most recent being approximately four years ago. Similarly, the last major occurrence of arterial bleeding occurred about four years ago. Segments of treatment record books examined in the course of the cross-examination confirmed that major first aid occurrences are very rare in recent years. First aid treatments in recent years have generally addressed relatively minor matters.
Moving to paragraph 2, Turner indicated that she would keep a running list of needed supplies. Every 10 days she submitted her list to the person responsible for placing purchase orders with the various product suppliers. With respect to paragraph 6, Turner acknowledged that she was unaware that it is presently unnecessary for a first aid person to maintain Safety Data Sheets, because this function is now performed electronically via a website.
In connection with paragraph 7, Turner disagreed with the suggestion that it was only necessary to inspect fire extinguishers annually. Her position was that inspections are required twice per year. Turning to paragraph 14, Turner agreed that she did not perform audiometric testing on all employees. That service was limited to those employees requesting tests. As to the weather observation function identified in paragraph 15, Turner acknowledged that this task essentially amounted to being aware of the weather, based on observation of the wind sock and radio reports.
Finally, it emerged that the industrial ambulance described in paragraph 16 has been discontinued. There continues to be a van available to the security guards who have replaced the first aid attendants, but the vehicle is not equipped as an ambulance.
The Union also called a security guard, Mr. Keith Griffin, to testify about first aid and safety duties at Squamish. He appeared pursuant to a summons. In his direct examination Griffin described a typical day as a security guard with first aid and safety responsibilities. He was also taken through the list of duties Turner had performed and which are recorded in the 18 numbered paragraphs appearing earlier in this Award. Cross-examination on these and other matters followed.
Griffin’s evidence disclosed that he performed some of the tasks identified by Turner in substantially the same way she had described them. For example, he renders first aid, requests supplies, and maintains treatment record books. Griffin also inspects eyewash stations and fire extinguishers. According to his evidence, however, these tasks require less time and frequency than Turner estimated. With respect to fire extinguishers, for example, he noted that they are tag dated, making frequent inspection unnecessary. Moreover, he performed these inspections as part of his security patrols.
Griffin was familiar with the procedures for cleaning, repairing and fit testing respirators, but he said he has never had to clean or repair a respirator. He also acknowledged responsibility for repair and cleaning of Racal helmets. However, he testified that he has only had to clean and repair one Racal helmet since assuming first aid duties. He does not do audiometric testing, because that function is now contracted out. As to the weather, Griffin said he only monitors the wind. Finally, with respect to dispensing safety equipment, he noted that two shops now have dispensing machines for safety glasses.
Focusing more generally on time allocations, in cross-examination Griffin agreed with the suggestion that the majority of time on his shift consists of performing security and mail distribution functions. As I understood his evidence on cross-examination, during the day shift he spends no more than 1.5 to 2 hours per week on first aid and related safety duties. He also agreed with the suggestion that these duties take even less time on the afternoon shift.
I turn now to the responsibility for first aid and safety functions at other locations within the Employer’s system. Squamish was the only location at which first aid and related safety functions were provided by full time Local 170 first aid attendants. At other locations a variety of means are, and have been, employed to discharge these duties. Some, but not all, of those methods are set out below.
At the North Vancouver terminal first aid is provided by a pool of on-call first aid attendants. These persons include management employees and members of a number of Constituent Unions, including Teamster, CAW and Local 170 members. Security guards have also been used when on-call employees are absent. Finally, independent contract providers have also been retained to provide first aid services. In Prince George, first aid services are provided by an independent contractor which provides janitorial services to the Employer. Before this arrangement was made, first aid was provided in a manner similar to the way it is provided in North Vancouver. At the North Vancouver head office, the Employer at one time provided first aid through a pool of on-call employees. More recently, the first aid function has been incorporated into the duties of security guards.
Returning to Squamish, it should be noted that Local 170 did not always provide full time first aid coverage at that location. The classification did not enter the Collective Agreement until the late 1970’s. Previously, first aid was provided by excluded employees. Further, when Local 170 did begin to provide first aid coverage on a full time basis, there was a period when it was not the exclusive provider of first aid. Both Turner and Nicholls testified that there was a period during which a CAW member provided first aid coverage in the Squamish car shop. That coverage ceased in the latter part of the 1990’s.
The foregoing is not an exhaustive account of the factual background, and further references to the evidence appear below. For the moment, however, enough of the background has been reviewed to permit me to begin to consider the issues to be determined in this dispute.
It will be convenient to begin with Rules 28 and 56.1 of the Collective Agreement. Rule 28 simply sets out a list of job classifications and their rates of pay. Included in that list are full time first aid attendants. Rule 56.1 appears in Rule 56 which bears the heading, “FULL-TIME FIRST AID ATTENDANTS’ SPECIAL RULES. Rule 56.1, which occupied a central place in the Union’s submissions, reads as follows:
“Full time first aid attendants’ work shall consist of first aid work commensurate with the Workers’ Compensation Board First Aid Regulations. Full-time first aid attendants shall perform all clerical duties necessary to complete accident and first-aid reports and maintain the required records. Fulltime first aid attendants are required to do all other work generally recognized as full time first aid attendants’ work, including duties related to safety.”
The Union asserted that the Employer had impaired the integrity of the bargaining unit in two ways. First, it asserted that Rule 56.1 of the Collective Agreement obliged the Employer to continue to employ full time first aid attendants at the Squamish mechanical complex. Second, it asserted that the Employer had wrongfully assigned bargaining unit work to non-bargaining unit employees. Those assignments, it was submitted, violated an implied term of the Collective Agreement.
As previously indicated, the Employer disputed the Union’s positions. To repeat, the Employer’s essential position was that its actions were a legitimate exercise of its management rights. In specific reply to the Union’s first position, the Employer’s response was that Rule 56.1 does not contractually oblige the Employer to employ full time first aid attendants at Squamish or elsewhere. In response to the Union’s second position, the Employer submitted that the disputed work is not bargaining unit work. The Employer also advanced an alternative position in the event it should be decided that the disputed work is bargaining unit work. In that event, the Employer submitted, the Collective Agreement contained no express prohibition against assignment of the work to excluded employees. Further, it submitted there was no implied breach of the Collective Agreement, because the extent of the disputed work performed by the security guards was not sufficient to bring them within the bargaining unit.
I begin with the Union’s first position. Does Rule 56.1 contractually oblige the Employer to employ full time first aid attendants? I am unable to conclude that it does so for the following reasons. On the face of the contract language, I am unable to discern an intention, or a promise, that the Employer will provide first aid coverage through the vehicle of a full time first aid attendant. Rule 56.1, as I read it free of extrinsic evidence, is simply a job description for the classification of full time first aid attendant. Moreover, Rule 56.1 cannot be interpreted in isolation from the remainder of the Collective Agreement. Article 8 of the Supplemental Agreement is cogent evidence against the proposition that the existence of a job classification and description carries with it a promise that the position will be filled.
It must also be borne in mind that there is only one Collective Agreement which applies throughout the Employer’s system. There is nothing on the face of Rule 56.1 limiting its application to Squamish. If the Union’s interpretation were correct it, would mean that a similar result should follow elsewhere in the system, at least in those locations where Local 170 is represented. But that is not the practice elsewhere. As previously noted, Squamish is the only location at which first aid was provided through the vehicle of a Local 170 full time first aid attendant. Elsewhere a variety of methods are employed, including independent contractors, excluded employees and members of other Constituent Unions.
Finally, other classifications in the Collective Agreement have special rules describing the content of the jobs. The Employer adduced evidence that some of these job classes have been eliminated. In some cases the work is no longer performed. In other cases, the work was assigned to other job classifications. I make no comment here respecting jurisdictional entitlements between and among the Constituent Unions. There is a special process to resolve such jurisdictional disputes. For present purposes the important point is that this history is inconsistent with the suggestion that a classification having a special rule describing the job content creates an obligation to fill that job.
In sum, I am unable to find support for the Union’s interpretation on the face of the Collective Agreement. Further, the extrinsic evidence of past practice appears to be inconsistent with the Union position. Accordingly, I must reject the submission that the Union obtained a contractual right to a full time first aid attendant at Squamish, or elsewhere.
I therefore turn to the second position advanced by the Union. Did the Employer breach an implied term of the Collective Agreement? More specifically, is the disputed work bargaining unit work, and if so is the assignment of the work to non-union security guards sufficient in quantity and quality to bring those employees within the bargaining unit?
I begin with the question of whether the disputed work is bargaining unit work. The Employer submitted it is not bargaining unit work, because it is not performed exclusively by Local 170 members. In making this submission, the Employer relied on a number of arbitral authorities, including: B.C. Hydro and Power Authority and International Brotherhood of Electrical Workers, Local 213, unreported, January 31, 1986 (Hope); Loomis Courier Service and CAW-TCA Canada, Local 4100, unreported, February 6, 1995 (Kelleher); Vancouver Shipyards Co. and Marine Shipbuilders Union, [1996] B.C.C.A.A.A., Award No. A-372/96 (Hope); and Re Dickson’s Food Services Co. (Division of General Foods Inc.) and United Food & Commercial Workers, Local 2000 (1989), 7 L.A.C. (4th) 241 (McColl).
In B.C. Hydro, supra, Arbitrator Hope expressed himself as follows at p. 21:
“The reasoning in Re Orenda is based upon the presumption that a collective agreement contains an implied term that bargaining unit work will not be assigned to non-bargaining unit employees to such an extent as to have that work dominate the duties of the non-bargaining unit employee. The term used in the arbitral authorities is that bargaining unit duties should not be assigned to a non-bargaining unit employee to such an extent as to bring that employee within the bargaining unit. However, in order for that reasoning to apply, it must first be established that the subject work is bargaining unit work in the sense of being work that is performed exclusively by the bargaining unit. In short, work that is performed by both bargaining unit and non-bargaining unit employees cannot be seen as bargaining unit work in the jurisdictional sense. That is, it is a contradiction in terms to imply an intention in the parties to give to the union exclusive jurisdiction over work which has been traditionally been performed by non-bargaining unit employees.”
In Loomis Courier Service, supra, arbitrator Kelleher quoted the last two sentences in the above quotation and agreed with them. Similar approaches were taken in the other authorities cited by the Employer.
In support of its submission, the Employer relied on the various ways in which first aid work is assigned in locations other than Squamish. That evidence has been described earlier in this Award. In my view, some, but not all, of the practices at the other locations support the Employer’s position. First, I do not believe the fact that Prince George first aid work is contracted out advances the Employer’s argument. The Collective Agreement restrictions on contracting out contain an exception in the case of first aid work. Accordingly, the only significance to be attached to the situation in Prince George is that permissible contracting out has occurred.
I also have some difficulty with the Employer’s reliance on the fact that members of Constituent Unions provide first aid on an on-call basis at the North Vancouver terminal. It will be recalled that the Council is certified as the bargaining agent for “the employees in a unit composed of all unionized employees on B.C. Rail Ltd.” The fact that first aid work is shared among a number of Constituent Unions may entail jurisdictional consequences between and among those entities. But I have difficulty understanding how this fact advances the Employer’s submission that the work is not bargaining unit work. At most, it might indicate that the work is not the exclusive preserve of Local 170 as against other Constituent Unions.
On the other hand, the fact that first aid and safety duties are performed by non-union employees of the Employer does tend to support the Employer’s assertion that the work is not bargaining unit work. As previously noted, at the North Vancouver terminal some first aid is provided by management personnel and by non-union security guards. At the North Vancouver head office, the work is presently performed by non-union security guards. It may be that these facts are sufficient to establish that the disputed work is not bargaining unit work. Such a finding would end the analysis, and the Union’s argument would fail.
I have considered this issue because it was addressed at the hearing, but I do not propose make any ruling on the question. Because of my conclusions below, the disposition of this dispute does not require a determination as to whether the disputed work is bargaining unit work. Accordingly, I proceed on the assumption, without deciding, that the work is bargaining unit work. I therefore move to an examination of the following question. Is first aid and related safety work at Squamish assigned to security guards to such an extent as to bring them within the bargaining unit?
The Union relied on the following authorities in support of its position: Re United Steelworkers of America, Local 1817 and Fittings Ltd., [1969] 249 (Weatherill); Re Sparton of Canada Ltd. And United Automobile Workers, Local 27 (1982), 6 L.A.C. (3d) 205 (McLaren); Re School District No. 57 (Prince George) and United Brotherhood of Carpenters & Joiners, Local 2106 (1990), 15 L.A.C. (4th) 105 (Larson); Re Department of Transportation & Communications and Canadian Union of Public Employees, Local 1867 (1991), 19 L.A.C. (4th) 23 (Veniot), and Re North West Company Inc. and Retail, Wholesale & Department Store Union, Local 468 (1996), 57 L.A.C. (4th) 158 (Freedman).
The Employer cited the following authorities in support of its position: Re Irwin Toy and United Steelworkers (1982), 6 L.A.C. (3d) 328 (Burkett); Canadian Pacific Airlines, Limited and International Association of Machinists and Aerospace Workers, Lodge 764, unreported, December 18, 1984 (Hope); Re McLaren Forest Products Inc., Babine Division and United Steelworkers, Local 898 (1983), 11 L.A.C. (3d) 21 (Hope); Re Cabral Foods Inc. (Swiss Chalet Restaurant) and Hotel & Restaurant Employees Union, Local 88 (1990), 11 L.A.C. (4th) 370 (Blair), and Re Lafarge Construction Materials Ltd. and I.WA.-Canada, Local 2693 (1998), 74 L.A.C. (4th) 185 (Sara).
A review of these authorities discloses an arbitral reluctance to apply any precise numerical formula to the question of whether work has been assigned to a non-union employee to such an extent as to bring the person within the bargaining unit. Arbitrators repeatedly say that each case must ultimately depend on its own facts. That said, it appears to be generally accepted that the amount of work in issue must be substantial. Some arbitrators go further. In Re Irwin Toy, supra, for example, the arbitration board required that the disputed work amount to a full job, or very close thereto.
I turn now to the facts in Squamish relevant to this issue, commencing with facts of a general nature. As previously described, there has been a significant downsizing of the Squamish mechanical complex over a period of years. In terms of employment, the work force consisted of 277 unionized employees and 67 excluded employees in 1990. Today the numbers are 72 and 19 respectively. These facts alone suggest a decline in the demand for first aid services. Further, the record treatment books tendered at the hearing confirm that there has been only a modest demand for first aid treatments in the last few years.
The contraction of the physical plant is also significant. As previously outlined, a number of buildings were closed or consolidated. Today the total square footage of the buildings is only about one third of the space occupied in 1990. This decline also diminishes the amount of work devoted to tasks such as the inspection of fire extinguishers and eyewash stations.
Focusing on the first aid positions, I begin with the evidence surrounding the afternoon shift. As previously noted, Lacoursiere advised Younger that he had very little to do as a first aid attendant on the afternoon shift. The Union suggested Lacoursiere’s comments were unreliable, because he was seeking early retirement and financial severance. But Younger’s decision to abolish the afternoon shift did not rest solely on Lacoursiere’s remarks. Younger confirmed the lack of work with other supervisors.
A similar picture emerged from the evidence of the security guard, Griffin. He works both day and afternoon shifts on a rotational basis. As previously noted, his evidence was that first aid and related safety duties occupy little time on the day shift. He testified that there is even less such work on the afternoon shift. The record treatment books corroborate his testimony. They disclose very few first aid treatments on the afternoon shift.
On all of the evidence, I am satisfied that the Union has not met the burden resting on it to establish that first aid and related safety duties assigned to security guards on the afternoon shift was, or is, sufficient in amount or quality to bring them within the bargaining unit. The central fact is that the volume of such work is very modest indeed. I have not applied an arithmetic formula in reaching my decision, but in my view the amount of disputed work does not even begin to approach 50% of the total job of the afternoon shift security guards. Accordingly, the Union’s asserted violation of an implied term of the Collective Agreement must fail in relation to the afternoon shift grievance.
Turning to the second grievance, there was virtually no evidence respecting the amount of work done by the on-call first aid attendants. Nor was there evidence respecting the amount of such work assumed by security guards. Accordingly, because of the lack of evidentiary support, the Union’s asserted breach of an implied term must also fail in relation to the second grievance.
That leaves the day shift position formerly occupied by Turner. Turner’s evidence respecting her various tasks has been outlined. I do not propose to repeat that evidence here, except for her general view about the amount of work she performed on the day shift. Asked whether she was busy as of the time of her lay-off, she replied with the words “Pretty much”. Taken by itself, that evidence would suggest that she had a full job’s worth of work to do, or close thereto. It would also suggest that first aid and related safety duties performed by day shift security guards is substantial when compared to their total duties. On all of the evidence, however, I am unable to conclude that first aid and related safety duties constitute a substantial portion of the job of day shift security guards.
Griffin’s evidence respecting the day shift is important, and I refer to it below. But there is other evidence bearing on the issue. As previously noted, the significant decline in employment has reduced the demand for first aid treatments. Moreover, the contraction of the Squamish physical plant has reduced the number of fire extinguisher and eyewash station inspections.
Other duties performed by Turner no longer exist. Audiometric testing is now performed by an independent contractor, as it is at other locations in the Employer’s system. Squamish no longer maintains an industrial ambulance. Accordingly, security guards have only to clean the current van on a periodic basis. Finally, locomotive first aid kits no longer require replenishment because of arrangements with the product provider.
Griffin’s evidence has been outlined previously. He testified it is unnecessary to inspect fire extinguishers frequently, because many are date tagged. He has had to repair only one Racal helmet. He has never had to clean a respirator. Griffin does dispense some safety equipment, but he and other witnesses noted that safety glasses are now dispensed from machines in the shop complex. Commenting more generally, he testified that the majority of his time on the day shift consists of performing security tasks and mail distribution and collection functions. First aid and related safety duties, he said, take no more that 1.5 to 2 hours per week. The treatment record books confirm there is a very limited demand for first aid treatments.
On all of the evidence, including that recited above, I have reached the following conclusions. The quantity of first aid and related safety duties performed by the day shift security guards is not trivial. But neither does it constitute a substantial portion of their total work load. Using the language of the jurisprudence, I am unable to conclude that first aid and related safety duties are performed to such and extent as to bring the security guards within the bargaining unit. In the result, therefore, the Union’s asserted violation of an implied term of the Collective Agreement must fail in relation to the third grievance.
As in the case of the afternoon shift, I have reached the foregoing conclusion on all of the facts, not through the rigid application of a numerical formula. But again, as I assess the evidence, the amount of first aid and related safety duties falls far short of 50 percent of the total quantity of work performed by the day shift security guards.
Before closing, I wish to comment about a body of evidence adduced at the hearing which has not yet been mentioned in this Award. At one time, provincial government regulations classified the Squamish mechanical complex as a Hazard “A” rating requiring level III first aid attendants. Both Lacoursiere and Turner held level III certificates. Discussions between the Employer and provincial government officials later resulted in a downgraded classification requiring only level II first aid attendants. Squamish security guards have level II certificates. The Union also adduced evidence about the quality of first aid service at Squamish.
In my view, the evidence related to the change in certification levels and quality of service is not directly relevant to the issues in this arbitration. It might perhaps raise issues in another forum, but I do not believe it does so here. Accordingly, I have not reviewed this evidence in detail, or incorporated it into my analysis and determinations.
In summary, I have concluded that the language of Rule 56.1 of the Collective Agreement does not contractually oblige the Employer to establish and maintain full time first aid attendant positions at the Squamish mechanical complex. I have also concluded there was no violation of an implied term of the Collective Agreement by assigning first aid and related safety duties to non-union security guards hired by the Employer. Assuming without deciding that the disputed work is bargaining unit work, the work is not assigned to the security guards to such an extent as to bring them within the bargaining unit. Accordingly, all three grievances must be dismissed. IT IS SO AWARDED.
__________________________
Bob Diebolt, Q.C.