If collective agreement doesn’t address seniority, consult past practice: HR expert
After Air Canada acquired Canadian Airlines in 2000, integration of the seniority rights of the two groups of unionized pilots was settled by arbitration. The former Canadian Airlines pilots complained they lost an average of nine years of seniority each, leaving them lower on the list than Air Canada pilots who had fewer years of service.
Seniority determines which planes the pilots fly, the amount they’re paid, vacation entitlement and pensions. The bitterness of the 1,200 former Canadian Airlines pilots who joined Air Canada lasted for years.
If, within a single company, workers from a non-unionized workplace were transferred into a unionized one and the seniority issue had to be addressed, what would happen?
It’s incumbent on management to consult the collective agreement as soon as it knows it wants to transfer an employee to the bargaining unit, as many collective agreements contain language that addresses the issue of transfers, according to one HR consultant. The contract may say the employee’s years with the company will be recognized for purposes of pension and weeks of vacation, but not for scheduling of vacation time or for layoffs or recall.
If the collective agreement doesn’t address the question, management should look to past practice for guidance, says Cissy Pau, principal consultant at Clear HR Consulting in Vancouver.
“Has this situation happened in the past, and how was it resolved? Have any grievances or arbitrations related to this issue?”
If, however, there is no history to provide guidance, then the company needs to decide on what it wants as an outcome, she adds.
“What precedent do you want to set? Do you want it to be a one-off situation or do you want transfers to be able to occur on an ongoing basis with multiple people?”
If it’s an isolated event, involving only one employee, “it will be an easier discussion to have with the union,” she says.
“But you want to have that conversation with the union rep as soon as the job vacancy is advertised internally, because it could take days, weeks or months to resolve.”
This can be done without reopening the collective agreement, but should be documented for future reference, she says.
The outcome of such a negotiation is likely to be “all or nothing” — recognition of all the employee’s years of service or recognition of none, Pau says.
Regardless of the outcome, it’s essential that before the employee transfers in, everyone — the employee, management and the union — knows what policy will apply, in order to prevent confusion, tension or hostility, Pau says.
“You want everyone on the same page.”
She cites the example of a global manufacturing company, which she declined to identify, that transferred workers from an overseas affiliate to its unionized workplace in British Columbia without first having settled the issue with the union.
“Discussions have been going on since the first employees came over last summer,” she says. “It’s in a grievance situation between the company and the union now. It has wreaked havoc.”
The unresolved seniority question can create tension, according to Pau. The local workers may feel employees who are less familiar with the local operation are suddenly more senior than they are, and the foreign workers feel like second-class citizens in the bargaining unit they’ve joined.
Buzz Hargrove, external director of Ryerson University’s Centre for Labour Management Relations in Toronto, and former president of the Canadian Auto Workers (CAW) union, says he has never encountered the issue of non-unionized employees being transferred into a bargaining unit, but he was involved in a somewhat similar issue in 1969 while at the Chrysler plant in Windsor, Ont.
Chrysler shut down production of the Dodge Dart at its California plant, Hargrove says, and shifted production to its Windsor plant — along with 13 employees who had Canadian citizenship, something allowed under the collective agreement.
“There was a heated debate among our members in the Windsor plant and, in a close vote, we agreed to give the repatriated workers full seniority,” recalls Hargrove.
The same process would apply with non-unionized workers transferring in, if the collective agreement didn’t address seniority.
“It would be up to the members of the receiving plant as to whether or not they’d be willing to give (the newcomers) seniority,” says Hargrove. “Remember, seniority doesn’t belong to the individual or to the company: it belongs to the union.”
Union members would likely view non-unionized workers being transferred into their bargaining unit as unworthy of retaining their full seniority, he says, especially since they have been paying union dues to earn their seniority. “It would be a tough issue for everyone concerned.”
“It’s different when you have two bargaining units that come together,” he adds. “At least those people have paid dues to the union for all their years of service. But non-union people would not have paid any dues or participated in a union. Why should they walk in with seniority that other people paid monthly dues for?”
