Switch made for business reasons, not reprisal for worker’s union activities
AN ONTARIO employer’s shift change — which resulted in the loss of two days of the Christmas break for a union representative — was allowed under the collective agreement and not a reprisal for the worker’s union activities, the Ontario Labour Relations Board has ruled.
Andy Krykunenko was a pre-make ready employee for Rocktenn Company of Canada, a paper and packaging company in Mississauga, Ont. Krykunenko was also a union representative for his union, Unifor Local 252, and served on its bargaining committee. He was also one of three union representatives on the
company’s joint health and safety committee (JHSC).
Rocktenn’s operated a shift rotation that involved four shifts, which were divided into two pairs — one pair had the A and B shifts and the other had the C and D shifts. Each shift rotated between day and night with the other in its pair.
Following a JHSC meeting in the fall of 2014, the plant superintendent questioned why the three union members on the JHSC were all from the C shift. He suggested they should be spread out more among the shifts, so most of the shifts could have a committee member present.
At the next JHSC meeting in November 2014, the company raised the issue again and the union representatives didn’t object to spreading themselves out among the shifts.
Rocktenn was already planning to implement a shift change in early 2015 where certain employees would be switched from eight-hour to 12-hour shifts, so it went ahead with the plan and each of the three JHSC union representatives was placed on a different shift. The company implemented this plan under a collective agreement provision that stated it had the right to delete, change or amend shift schedules, start times and hours of work, with 30 days’ working notice.
The provision also stated Rocktenn agreed to only do so for legitimate business needs and not for discriminatory or punitive reasons.
Rocktenn gave formal notice of the change on Nov. 26, 2014, indicating it would be effective on Dec. 29. And Krykunenko was moved from the C shift to the A shift.
Rocktenn closed for several days over Christmas, and the last day of work for the C shift was Dec. 23. Had Krykunenko remained on the C shift, his first day back after the Christmas break would have been Jan. 5, 2015.
However, because he switched to the other shift pairing, he had to return to work on Dec. 29 and 30. Rocktenn paid him statutory holiday/floater pay for the two extra shifts.
About 18 employees were affected by the shift change, but Krykunenko was the only one who moved to a different pairing — all the others moved between the A and B shifts or the C and D shifts, including the other two union JHSC representatives.
Krykunenko challenged his shift reassignment, complaining that he was moved to a different shift pairing — resulting in a loss of Christmas break time — because Rocktenn was punishing him for his union activity.
He noted that in April 2014, he complained of ventilation problems, heat stress and chemical exposure, both in a JHSC meeting and emails to management later in the year.
He also tried to convince Unifor to pursue grievances regarding public holiday pay and bonuses in October 2014, and challenged Rocktenn’s attendance policies in an October email.
The Ontario Labour Relations Board found that Rocktenn had plans to implement the shift change before all of Krykunenko’s complaints, and it had been discussed at JHSC meetings that the union JHSC members should be moved to other shifts so they were spread out among the shifts.
Krykunenko’s switch came along with several other employees and the board was satisfied Rocktenn had legitimate business reasons to implement it.
The board noted that Unifor and its representatives offered no resistance to the shift change and Rocktenn complied with the collective agreement by providing the required advance notice.
In addition, Krykunenko made no objection to the changes until he realized he would lose two off-days during the Christmas break. Rocktenn argued that over time, Krykunenko would regain the lost off-days on the new A shift schedule.
Krykunenko argued that Rocktenn wasn’t strictly required to evenly distribute the union JHSC members and there would still be at least one shift without a member, so it didn’t need to move him to another shift pairing.
However, the board found this didn’t matter and Rocktenn had a legitimate interest in fixing the situation of uneven distribution of union JHSC members as much as it could.
The board found Krykunenko’s union activity was nothing out of the ordinary and there was no reason Rocktenn would use it as a basis for punitive measures or a reprisal. In addition, Krykunenko’s attempts to persuade Unifor to pursue the holiday pay and bonus pay grievances were private union business, of which Rocktenn would have no awareness.
“We are also satisfied that the employer used neutral factors in determining how to re-allocate the union members of the JHSC — namely by considering skill and ability as well as seniority,” said the board. “We are not convinced that the employer in any way targeted Mr. Krykunenko as claimed.”
The board agreed that Krykunenko felt “aggrieved” by how he was affected by the shift change, but Rocktenn didn’t do it to punish him for his union activities and the company properly exercised its rights under the collective agreement.
For more information see:
• Krykunenko v. Rocktenn Co. of Canada Inc., 2016 CarswellOnt 7899 (Ont. Lab. Rel. Bd.).
