But seniority should have been observed: Arbitrator
During a period of layoffs at Universal Industries in Lloydminster, Alta., welder Angus MacLellan was judged to be too slow completing his work and he was dismissed despite being the second-most senior welder.
Over a 22-year career, MacLellan was only ever given one non-conformance report, indicating sub-standard work on one piece. In his most recent reviews — in 2012 and 2015 — he was judged to have average and above-average skills, with no negative remarks given.
But in August 2015, management decided it needed to lay off some workers. MacLellan was one of the welders tapped to be laid off, while 10 less-senior welders retained their positions.
He was recalled to work in November, but he testified he would have switched to other work that was available, if it had been offered.
Fabrication foreman Shane Smith and production superintendent Trevor Falcon collectively made the decision to lay off MacLellan based on the time he took to complete a D-doors assignment in June 2015.
As well, the overall work ability and suitability for jobs were assessed and MacLellan was judged to be lacking, leading to his eventual layoff.
“(MacLellan) had a high rate of repairs, defect rate, on the work he was qualified to do.... (and) just put more time into fixing it than other individuals,” said Falcon.
MacLellan was observed as needing 158.5 hours to attach two D-doors to a frame, which was the longest of all welders who were recorded during the period.
By comparison, two other less-senior welders were recorded as 41.5 hours and 23.75 hours to complete the same assignment.
Photographs were also produced as evidence that MacLellan’s quality of work was not acceptable because they indicated his work needed to be polished to get up to standard.
MacLellan said that this was a common practice whereby the quality control inspector would mark up photos with a grease pencil and return them to the journeyman welders, who would then fix any deficiencies.
The employer testified that in previous rounds of layoffs, seniority was the overriding factor in determining who would be let go, but because the Lloydminster shop was down to 26 workers, it needed to become more judicious in its decisions.
The union, International Brotherhood of Boilermakers, grieved the layoff arguing the employer should have given the more senior worker more consideration because his skills were comparable to the others and he was never given any counselling or guidance to address his perceived poor work skills.
Arbitrator Tom Jolliffe upheld the grievance and ordered the company to compensate MacLellan for the time he was laid off.
“There was no considered or suitable analysis of the grievor’s ability on any comparable basis with all the other less senior employees who were not laid off, and who presumably had the same tradesman qualifications and certification as MacLellan, who admittedly had worked on a wide variety of welding projects during his 22-year employment as a journeyman welder, whatever his immediate assignments leading up to the layoff,” said Jolliffe.
He dismissed the photographs of his poor work as not being relevant to this case.
“The photographs of some corrective welds were taken more than a year after the fact and can have little weight in any layoff determination made in August 2015,” said Jolliffe.
As well, another less-senior welder continued to work while MacLellan was laid off, but was subsequently laid off himself before MacLellan was recalled indicating his skill level was not greater than MacLellan, as the employer argued.
“It more likely raises the prospect that it was more convenient to allow him to finish the project on which he was working,” said Jolliffe.
“In my view, the evidence falls far short of showing on a substantial and demonstrable basis that the griever — with his considerable experience and longstanding certification — was less able than all the other journeyman welders who were not laid off, which would be the accepted test for showing a person not to have relative equality with his coworkers by reference to such language as contained in Article 8.03 (of the collective agreement), albeit more usually applied to promotion cases.”
Reference: Universal Industries and International Brotherhood of Boilermakers. Tom Jolliffe — arbitrator. Ronald Robinson for the employer. David Mercer for the employee. Jan. 23, 2017.
