Arbitrator Rules that Union Steward Taking Scuba Diving Lessons During Workday Was “Union Business”, Not Time Theft
Collective agreements between employers and unions often require employers to pay their employees who serve as union stewards for time spent on “union business”, but what counts as union business? Although the answer to this question varies depending on the circumstance of each case, the answer can be quite surprising, as illustrated by one recent Ontario grievance arbitration decision.
In Ontario Power Generation v. Power Workers’ Union [Ontario Power], the arbitrator found that an employer did not have just cause to impose a 20-day suspension on a chief union steward for alleged time theft in relation to him recording his time spent taking scuba diving lessons during a workday as “union business”. In particular, the arbitrator found that the diving lessons did constitute “union business” because they included diving-related health and safety training which would assist the steward in representing a team of divers in grievances, such that he was entitled to be paid by the employer for this time.
Ontario Power serves as a good reminder that context is important in determining what can reasonably constitute “union business”, and that unionized employers should exercise caution before disciplining a union steward for alleged time theft in relation to them conducting union business, even in questionable circumstances.
Background
Mr. Azavedo has been continuously employed by Ontario Power Generation (“OPG”) since 2016, and since 2020 he has been serving as the Chief Steward representing members of the Power Workers’ Union (“PWU”) in OPG’s Advanced Inspection and Maintenance (“AIM”) Division. Notably, the bargaining unit that Mr. Azavedo represents includes the AIM Dive Team, a team of specialized scuba divers that perform inspection and maintenance work for OPG. As Chief Steward, Mr. Azavedo is entitled to be paid for conducting 40 hours of “union business” per week under the terms of the collective agreement between OPG and PWU.
In July 2022, Mr. Azavedo requested that OPG cover 75% of the cost of him taking an introductory scuba diving course, which was a prerequisite for taking the more intensive and specialized diving courses required to become the type of commercial diver on the AIM Dive Team. In doing so, Mr. Azavedo also indicated that he would try to take the course “on non-working days”, that OPG was not required to pay for his time spent attending the course, and that he would otherwise arrange to take time off if the course was during regular workdays.
Without approving Mr. Azavedo’s request, OPG management suggested that the diving course would not be reimbursable based on their interpretation of the collective agreement. On the other hand, Mr. Azavedo argued that the taking the course would also improve his ability to serve as the PWU Chief Steward, in that it would provide him with knowledge required to understand diving operations and represent the AIM divers properly, and that it would assist him in becoming an AIM Dive Team member.
Ultimately, Mr. Azavedo took the 3-day diving course, which took place Friday through Sunday in August 2022, and he recorded on his timesheet that he performed 8 hours of “union business” for that Friday. This later came to the attention of OPG management in November 2022 when Mr. Azavedo was being investigated for other alleged misconduct. However, OPG did not advise PWU that it was alleging that Mr. Azavedo engaged in time theft until March 2023, and it did not investigate these allegations until September 2023.
This investigation found, among other things, that Mr. Azavedo lied about speaking with his supervisor about arranging to make up the hours he spent taking the diving class, and that he did not make up the 8 hours he spent taking the diving class on a workday which he recorded as “union business” on his timesheet. As a result, OPG imposed a 20-day suspension against Mr. Azavedo for time theft, PWU grieved this discipline, and the grievance proceeded to arbitration.
The Arbitrator’s Decision
Arbitrator John Stout ultimately upheld the grievance, ruling that OPG did not have just cause to impose the 20-day suspension on Mr. Azavedo, because he found that Mr. Azavedo taking the diving course reasonably constituted “union business”.
In reaching this conclusion, the arbitrator found that Mr. Azavedo’s purpose in taking the diving course was to assist in making him capable of performing other jobs at OPG and to improve his ability to represent the AIM Dive Team members in grievances. Further, the arbitrator took administrative notice that there had been significant labour relations difficulties involving the AIM Dive Team members, and he found that the technical and safety training included in the diving course that Mr. Azavedo took would assist him in representing these employees in grievances. Consequently, the arbitrator ruled that there was a “sufficient nexus” between the diving course and Mr. Azavedo’s Chief Steward position for it to be reasonably characterized as “union business”.
In the result, the Arbitrator ruled that OPG did not have just cause for disciplining Mr. Azavedo and ordered OPG to remove the suspension from his record and compensate him for any losses he suffered because of it.
Additionally, the arbitrator ruled that OPG unreasonably delayed investigating the allegations against Mr. Azavedo and disciplining him in relation to the same, contrary to employers’ obligation to be reasonably expeditious in investigating and imposing discipline in unionized workplaces. Consequently, the arbitrator found that Mr. Azavedo would be severely disadvantaged by OPG’s delay, which would mitigate the level of discipline that should have been imposed even if there were cause for disciplining Mr. Azavedo.
The Bottom Line
As noted above, Ontario Power demonstrates that context is important in determining what can reasonably constitute “union business”, and there are significant risks associated with alleging that a union steward has engaged in time theft in relation to conducting union business. For this reason, as Arbitrator Stout concisely stated in his decision, “when an employer seeks to discipline a union representative, they ought to be cautious and carefully investigate the matter within a reasonable period and contain clear and cogent evidence if alleging any fraudulent behaviour.”
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