After promotion to supervisor, wanted to return to old job
After becoming disenchanted with a move to a supervisory position, a mechanic’s request to return to his old job was denied by his employer.
Dwayne Hawkins had worked at Toromont CAT in St. John’s since 1995 as a journeyman mechanic when a position as field service supervisor was posted in June 2014.
Hawkins applied but decided to turn down an offer from the employer due to family and marriage issues.
Another candidate was hired for the position on Jan. 1, 2015, but he resigned on May 23. Hawkins was asked by the company to temporarily fill in which he did until Aug. 24, when he decided to accept the promotion and became a full-time supervisor.
But the position proved too much for Hawkins and on Aug. 23, 2016, he sent an email to Toromont CAT manager Ed O’Keefe and union steward Eddy Farrell expressing his desire to quit: “Ed, after much deliberation, I am going to return to the shop floor. I have checked on it and it is in the CBA (collective bargaining agreement) under section 6.05 section D. I have one year and my last day will be tomorrow.”
Later that evening, O’Keefe responded: “As previously discussed, the section of the CBA you refer to (6.05 D) relates to seniority retention while outside the bargaining unit. It does not secure your previous role within the bargaining unit.”
On Sept. 26, the union, International Union of Operating Engineers, Local 904, grieved the decision and argued the collective agreement allowed for workers to retain seniority if promoted outside the bargaining unit for one year and be allowed to return if the supervisory position was unsuitable for the worker.
But Toromont CAT disagreed and said the collective agreement did not contain an express right for a worker to return to the bargaining unit unilaterally after leaving it voluntarily. There was no provision for that to happen, said the company, unless the employer exercised its management rights and allowed the transfer.
And, it said, there were no open spots so the employee should not be allowed to force the employer to create a new position to accommodate Hawkins’ request to return to the bargaining unit.
Arbitrator James Oakley denied the grievance. “There is no reference in article 6.05 D to any requirement that the employer retain a position in the bargaining unit for the employee in the event the employee desires to return to the bargaining unit. There is no express right to return to the bargaining unit in Article 6.05 D or any other article of the collective agreement.”
The agreement allowed for a senior union member to bump a junior worker in the event of a layoff, said Oakley, or when more than one member applied for an open position.
But, in this case, Hawkins’ seniority rights’ retention of 12 months did not mandate a return back to the unit, only that his seniority remained intact, according to Oakley.
Union and management might have avoided the arbitration hearing had both sides written a movement clause into the collective agreement, according to the arbitrator.
"The parties could have inserted language stating that an employee promoted outside the bargaining unit had the right to return to a bargaining unit position within a certain period of time following the promotion," said Oakley.
“It is unlikely that the parties would have intended to confer a right for employees outside the bargaining unit to return to a former position, when employees within the bargaining unit do not have such a right.
"Therefore, when the collective agreement is considered as a whole, there is no implied right for Hawkins to unilaterally return to the bargaining unit,” said Oakley.
Reference: Toromont CAT and International Union of Operating Engineers, Local 904. James Oakley — arbitrator. Gregory Anthony for the employer. Johnathan McDonald for the employee. Jan. 12, 2017.
