However, many agreements that do not exclude the allocation of work units to excluded workers include provisions for seniority, notice of vacancy, dismissal, recall, job classification and union recognition. In some cases, arbitrators have found that the combined effect of these provisions has the effect of „implicitly restricting” management`s right to assign work outside the unit if it jeopardizes the integrity of the bargaining unit. This tacit restriction can only be imposed by the union as a „shield” to protect the rights of members of the labour market collective agreement unit. This was the problem in the City of Ottawa Electricity Electricity Commission v. IBEW, Local 636 (July 11, 2000), where the union stated that a foreman, Brian Sullivan, was giving up more than fifty per cent of his work time to clean up construction sites and transport equipment, both tasks normally performed by members of the bargaining unit. , but are not explicitly identified in the collective agreement as a bargaining unit. The work in question was part of a specific project to replace Hydropol, for which the union had agreed on a more flexible regulation of working time in order to ensure the success of the employer in the tender. To remedy this situation, the union requested that the employer pay union rights for Sullivan. The use of uns negotiated workers to implement bargaining units is a frequent controversy. While the collective agreement expressly prohibits assigning the work of collective agreement units to non-unitary workers, the question is relatively simple: such an allocation cannot take place and such a provision is a „sword” in the hands of the union to attack any attempt to do so. In the absence of such an explicit restriction under the agreement, management has the right to assign work according to its type it. If, for example.B. the work done is sufficient for part-time work, but that work is defined in the agreement as belonging exclusively to a full-time classification, the implied restriction cannot be triggered, even if a qualified employee of the collective agreements unit is dismissed.
This is because there is still not enough work to call the employee back to a full-time job. If the collective agreement does not contain a provision expressly excluding assignment and the assignment does not result in a loss of job security for members of the collective agreement unit, an employer may assign workers normally excluded from bargaining units. As the arbitrator noted in this case, it is important to consider the definitions of professional classification in the collective agreement in deciding the allocation of the unit`s work. The arbitrator agreed with the employer and found that Sullivan`s activities posed no danger to the safety of the bargaining unit. The restriction of management`s right to assign bargaining units is „implicit in remedying a genuine violation of the conventional protection of a worker`s job security in the event of dismissal or dismissal.” While it is not easy to know how much the implied restriction is triggered, according to the arbitrator, the evidence must be examined in light of the job rate definitions in terms of classifications and hours and whether the assignment of work to the foreman deprives a member of the unit of a job. This was not the case here: union members stated that Sullivan would perform daily site clean-up and physical transportation operations, tasks normally performed by line judges in the bargaining unit. One of them testified that Sullivan told him that he spent 50% of his time doing this work.