Construction company breached recall from layoff requirement

A Newfoundland and Labrador construction company’s claim that a shop steward wasn’t qualified to be recalled after a layoff has been dismissed by an arbitrator.

The collective agreement between the Construction Labour Relations Association of Newfoundland and Labrador (CLRA) — an association of construction contractors across the province — and its union protected union stewards from discrimination and stipulated that they had to be the last carpenter laid off as long as they were qualified to perform any work still remaining. In addition, in the event of a layoff or work stoppage, stewards were to be the first carpenter hired back when work resumed.

The collective agreement also allowed a company to request specific people for a job from a union database of members with qualifications and safety training.

In October and November 2019, a company that was part of the CLRA requested and hired a number of journeymen to work on a construction site, all needing WHIMIS and fall-protection safety certificates. The union appointed Darren Targett, a journeyman carpenter with the necessary safety requirements, as shop steward.

In early March 2020, there was an accident at the worksite involving a scissor-lift operated by Targett. An OHS inspection officer determined that Targett didn’t have a valid scissor-lift safety certificate and ordered that he not operate such a lift without the required training. However, he was still able to work in an assistant role with the lift because of his fall protection certificate.

In mid-March the province issued medical directives to shut down construction projects due to the COVID-19 pandemic.

A few weeks later, the company requested eight journeyman carpenters and two apprentices to start work again. The safety requirements included a scissor-lift certificate in addition to the WHIMIS and fall protection ones from before. The original crew also returned to work, meaning there was a surplus of carpenters.

After a couple of weeks, the company temporarily shut down the area where Targett was working. A short time later, the company recalled a total of 10 carpenters to do both scissor-lift and ground-level work but Targett wasn’t notified to return to work.

The union inquired as to why Targett wasn’t recalled and the company said that he “is not our best worker” and suggested the union name another carpenter onsite to be the shop steward. The company had not informed the union of any issues it was having with Targett, so the union filed a grievance claiming the company violated the collective agreement requiring the steward to be the first carpenter brought back after a layoff.

The company countered that Targett wasn’t qualified to do the work because he didn’t have a valid scissor-lift certificate and the OHS order prevented him from using a lift. It also argued that Targett wasn’t as productive a worker as it needed and his shop steward role interfered with his focus on the job.

The arbitrator found that there were between two and four scissor-lift positions on the worksite, meaning there were six to eight carpenter positions that didn’t require a scissor-lift certificate, despite the company’s indicated requirements. Since the evidence indicated there was work at the site that didn’t require the scissor-lift certificate — including the fact that Targett continued to work after the OHS order — the arbitrator found that Targett was qualified to work on the site.

As a result, the arbitrator determined that the company failed to follow the collective agreement when it didn’t lay off Targett last, didn’t recall him first when he was qualified to work on the site, and removed him from the worksite without consultation or explanation to the union. The company was ordered to reinstate Targett with compensation for lost wages and benefits.