Employer ordered to award posiion based on seniority
Tony Xu, represented by the Retail Wholesale Union, local 580, filed a grievance against Mountain Equipment Co-operative (MEC) when he was passed over for a lead hand promotion — a job that Xu, as a senior employee, was entitled to be duly considered for.
According to the collective agreement, length of service and bargaining unit membership will be contributing factors when MEC hires or promotes a new employee.
In this case, the union argued there were express provisions in the contract that deemed all vacancies be filled on the basis of seniority and, further, the company had hired lead hands via this process for the past 15 years — whether formally or informally.
On the other hand, the company said there is a lot more to the clause than just seniority — in fact, it also included provisions pertaining to traditional skill and ability.
Further complicating the matter was a new collective ratified in 2012 that included amendments to the promotion provision that now addressed other factors for promotion.
Bargaining occurred around the same time as Xu was looking to be hired as lead hand.
MEC argued the seniority clause was intended to play tie-breaker in cases where more than one candidate was worthy.
The clause must be taken as a whole, not cherry-picked to suit the union’s wants and needs, the employer said.
Arbitrator decides
In making his decision, arbitrator Ronald Keras determined the provisions of the first part of the clause did not conflict with any tertiary provisions — both were specific and unequivocal.
"In the current case, the conduct of the employer was to award positions based on seniority," Keras’s decision read.
"I find that the conduct of the employer was such that the union was correct in concluding that the employer had by its conduct allowed the union to rely, to its detriment in the case of the current grievor, that the employer would not exercise its strict rights pursuant to (the collective agreement)."
Therefore, MEC’s actions constituted an estoppel and the grievance was upheld.
Reference: Mountain Equipment Co-Operative and the Retail Wholesale Union Local 580. Ronald S. Keras — arbitrator. Gavin Marshall for the employer, Gavin Marshall for the union. March 3, 2015.
