Double-dipping appointment can’t prevent worker’s layoff

An Ontario company could lay off a union steward who wasn’t properly appointed under the collective agreement rules, an arbitrator has ruled.

Quality Sterling Group (QSG) is a flooring contractor for residential construction projects in Ontario. It had a collective agreement with a provision recognizing a union steward appointed by the union. The steward had to have “a regular employment/subcontracting relationship with the company” and the union could appoint one for the carpet division and one for the hardwood division if there were employees or piecework/subcontractors working in each. The agreement stipulated that the piecework crew upon which the steward was a member would be one of the last two crews employed in the event of layoffs.

In April 2017, QSG concluded a share purchase of Weston Hardwood Design Centre, a supplier and installer of flooring, which had the same union as QSG. QSG entered into a single collective agreement covering employees of both companies and the Ontario Labour Board confirmed that an intermingling of employees due to the sale of a business had occurred.

Just prior to the sale, the union had appointed Herbert Diaz as a steward for Weston’s hardwood division. The appointment carried over to QSG.

In October 2017, the union informed QSG by letter that it was appointing Jose Hernandez as steward under the collective agreement. Like Diaz, Hernandez worked as a pieceworker in the hardwood division. QSG didn’t respond to the letter and didn’t make any inquiries about Diaz’s status.

On Nov. 25, 2019, QSG laid off Hernandez. At the time, more than two other pieceworkers and their crews were still working for the company, including Diaz.

The union filed a grievance, arguing that Hernandez was a steward who had been appointed without dispute from the company and, under the collective agreement, he could not be laid off while there were more than two piecework crews still performing work for QSG.

QSG disagreed, pointing out that the collective agreement allowed for a single steward unless there were employees or subcontractors working in both the hardwood and carpet divisions. At the time of Hernandez’s layoff, there were no employees working in the carpet division.

The arbitrator found that both Diaz and Hernandez worked in the hardwood division and Diaz was appointed as a steward with Weston. When the workforce merged, Diaz became the steward for the merged hardwood workforce, as there was no existing steward in QSG’s hardwood division at the time, said the arbitrator.

The arbitrator found that Diaz’s appointment was never revoked and the collective agreement didn’t permit the union to appoint two stewards for the hardwood division. As a result, Hernandez could not be a steward as long as Diaz was still in the role.

The arbitrator pointed out that the union was only entitled to appoint a second steward when there were employees or subcontractors working in the carpet division as well as the hardwood division, which was not the case at the time of Hernandez’s appointment. Even if there were workers in the carpet division when Hernandez was appointed, as soon as there were none, his status as a steward would end, said the arbitrator.

“[Hernandez] therefore was not properly appointed as a steward in the hardwood division and there is no support for the proposition that [his] appointment revokes the prior appointment of Diaz as steward,” said the arbitrator, adding that it didn’t matter that QSG didn’t object to Hernandez’s appointment when informed by the union since the collective agreement didn’t require the company to respond.

The arbitrator noted that since Diaz continued to be a steward after Hernandez’s layoff, there was no detrimental effect from the layoff and the union still had its interests represented.

The arbitrator determined that QSG didn’t breach the collective agreement when it laid off Hernandez.