International Brotherhood of Electrical Workers, Local 636 v.
Power Stream Inc. (Bender Grievance)
This case involves employees at an electricity distribution company faced with a change in work hours which interfered with their family responsibilities. These employees had always been given the choice between two kinds of shifts (4 shifts of 10 hours a day (6:30-5:00 pm) or 5 shifts of 8 hours a day (7:30-4:00) and had always chosen the 5-shift option so that they could pick their kids up from daycare and attend sporting events. Most employees, however, opted to work 4 days a week. The issue that arose from the coexistence of two kinds of shifts was one of inefficiency; those who worked 4 days a week met every morning to discuss the day’s work and those who worked 5 days a week missed those meetings and had to be briefed when they got to work.
During collective bargaining, the union accepted the employer’s proposal to standardize hours for linemen. They canvased the employees, and ultimately chose the 4-day shift option preferred by the majority. The grievors requested that they be permitted to continue to work the 5-day shift in order to accommodate their family duties (attend extracurricular activities, sporting events, custodial arrangements). When the employer rejected their request, they filed a grievance.
- Is the Campbell approach more appropriate than the Johnstone approach?
- Are there factors that should be considered when determining a prima facie case of discrimination?
- Did the employer discriminate against the grievors?
- Yes and no
- Yes and no
- The arbitrator determined that both approaches were flawed: A) The Johnstone approach was too broad “I don’t think that every conflict between a work obligation and a parental obligation must be accommodated by the employer. More importantly, I do not think that every such conflict should give rise to a finding of discrimination such that an inquiry should be conducted over whether the employer should accommodate the conflict. As a simple illustration, where a collective agreement provides for mandatory overtime, I would not find and employer to violate s. 5 by requiring g an employee to perform such overtime on an evening in which the employee was scheduled to attend some activity with his/her child, although the activity may have been scheduled well in advance. To find discrimination in every such circumstance of adverse effect would freeze the employer’s ability to act to meet its economic needs as virtually every action could have some negative effect on the parental duties of one employee or another. On the other hand the requirement to perform such mandatory overtime would clearly have to give way if the employee were required to attend to some medical need of the child’s or if the employee’s caregiver was unexpectedly unable to attend to the child. (199-200) There are many examples of conflict that fall between these extremes. For example, again citing the mandatory overtime scenario, what if such overtime were required on an evening when the parent is scheduled to attend an important event in the child’s life such as a graduation, a championship game, or a school play? Should the conflict between such events and work requirements result in a finding of discrimination requiring the employer to accommodate them subject to undue hardship? (200)” B. The Campbell approach was too narrow. The arbitrator stated that “although I have expressed my reservations with the line of cases reflected by Hoyt and Johnstone, I am not entirely in agreement with the approach taken in Campbell River either.” He agreed with Johnstone that not all findings of discrimination stem from a change in employment (conditions or terms) but, in fact, often stem from a change in the characteristics of family status (201).
- The arbitrator disagreed, however, that the serious interference test was too restrictive. “I am not however in agreement with the criticism expressed over the restrictive nature of the test set out in Campbell River. Having regard to the above, in determining whether the new schedule has interfered with the grievor’s parental duties and therefore, violated the grievors’ protection set out in s. 5". [He] considered the following questions (or factors): (202): 1) What are the relevant characteristics establishing the grievor’s family status?2) What are the adverse effects complained of and is it reasonable to expect that the Code offers protection against the particular adverse effect of the Employer’s action on each grievor3) What prompted the adverse effect on the grievor – a change in the Employer’s rule or a change in the characteristics of the griever’s family status? 4) What efforts have been made to self-accommodate their conflict? 5) Have they rejected options at self-accommodation that they should reasonably be expected to have made?
- The Arbitrator asked himself the following question "In light of the answers to all these questions taken together, is it reasonable to make finding a discrimination necessitating an inquiry into whether the Employer is able to accommodate the adverse effects of the discrimination" (203) He found that three of the grievors did not experience prima facie discrimination, because the adverse effects (having to rearrange childcare duties with spouses, having to miss extracurricular/sporting events) were not serious enough to amount to prima facie discrimination. The fourth, however, faced a greater adverse effect (disruption of a “carefully crafted custodial arrangement”) and the employer’s suggestions that he “self-accommodate” by moving to a different town or hire a private nanny, were unreasonable.