Employer allowed to temporarily recall junior employees first
A collective agreement provision suspending seniority rights after a breakdown included both bumping privileges and recall entitlements.
Rockshield Engineered Wood Products operated a plywood overlay mill in Cochrane, Ont. Its collective agreement formally recognized the seniority of its employees as the primary factor in layoffs and recalls after layoffs, as long as an employee had “the necessary qualifications of knowledge, skill and ability to perform the work required.”
There was an exception to the seniority clause, as the agreement stipulated that “in cases of layoff due to breakdown” employees affected by the breakdown would be “not permitted to exercise their seniority rights to another job the same day and for the following day on their scheduled shifts.” Employees in such circumstances would be permitted to exercise their seniority rights to obtain another job if the breakdown lasted more than 48 hours.
On Friday, July 12, 2019, there was a fire at Rockshield’s mill that forced the company to temporarily lay off employees. The following Monday, July 15, Rockshield recalled several employees who didn’t have the most seniority. The next day, the mill returned to full operation and all remaining workers on layoff were recalled.
The union filed a grievance on the behalf of employees who had more seniority than those who were recalled on July 15, claiming they had been overlooked for work on that day contrary to the collective agreement’s seniority clause. The union demanded compensation for the full day of work those employees missed.
The union argued that the employees in question were entitled to exercise their seniority in order to get called into work when the mill resumed operations on July 15. In this case, employees were being recalled to do similar work in the plant when operations resumed, and some of the employees who weren’t initially recalled on July 15 were qualified to perform much of the work that was done by junior employees.
The union interpreted the exception clause as a restriction on the right of employees to bump into other jobs if their layoff was because of a breakdown, as such a layoff was short-term and could cause undue hardship for Rockshield if a “chain of bumping” was started by a breakdown. The seniority exception was “meant to address that possible hardship but was not meant to restrict an employee’s right to be recalled before junior employees,” said the union.
Rockshield countered that the exception article was triggered by a breakdown and, once it was triggered, all seniority rights were suspended for up to 48 hours. Seniority rights were still protected, as they were restored if the breakdown-related layoff exceeded 48 hours.
The arbitrator agreed with Rockshield that a breakdown automatically triggered the clause suspending seniority rights and that clause remained in effect for the first 48 hours of the breakdown. In this case, the breakdown happened on a Friday, so the breakdown provision remained in effect on Monday, July 15 since the mill didn’t operate on weekends.
The arbitrator also found that collective agreement’s language was clear in that both parties intended to suspend seniority rights in in a specific circumstance — a breakdown — for a specific period of time — 48 hours. In addition, the exception clause describes both a suspension of “seniority rights to another job the same day” as well as “for the following day” — encompassing both the process of bumping to another job to avoid a layoff as well as being recalled after a layoff, said the arbitrator.
“I am persuaded that the interpretation most in keeping with the provisions of this collective agreement is that the parties intended to suspend an employee right to both bumping and recall for the first 48 hours of a breakdown,” the arbitrator said in dismissing the grievance.
Reference: Rockshield Engineered Wood Products and United Steelworkers, Local 1-2010. Diane Brownlee — arbitrator. J. Paul Cassan for employer. James Fyshe for employee. March 5, 2020. 2020 CarswellOnt 3759
