The company’s procedure for recalling from layoff was both long-standing and contrary to the collective agreement. One driver who did not want to be called back for temporary work was caught by the system.
A seasonal worker was fired for being absent without leave after he failed to heed messages to call his employer following a seven-month layoff. The union grieved, arguing that the employer had not observed the recall provisions laid out in the collective agreement.
Hired in June 2007, B.G. worked seasonally as a truck driver for a paving and aggregate company. While he worked the winter months for another haulage company, B.G. preferred working for the paving company, which paid more.
However, as he needed steady, full-time work, B.G. advised the paving company that he could not sacrifice his alternate, full-time job for a day’s work here and there. Therefore he asked the foreman at the paving company to only call him when the company had steady work for him. The foreman informed B.G. that it was permissible for him to refuse short-term work, but that B.G. would be called regardless when his name came up according to his place on the seniority list.
Laid off in December 2007, B.G. was recalled to full-time work in April 2008.
Laid off again in November 2008, B.G. again spoke about his preference to be called only for full-time work.
Business was slow in 2009 and B.G. was not called until the middle of May. The calls were for short-term work, which B.G. refused. B.G. was told it was uncertain when full-time work would become available.
A couple of weeks later, full-time work did become available.
Did not return calls
On Friday, May 29 a voicemail message was left for B.G. telling him that there was some work for him the following Monday and to call in. B.G. did not return the call.
Similar messages were left for B.G. on Monday and Tuesday. Again he did not respond.
Called again on Wednesday, B.G. showed up in person at the employer’s yard at 5:15 p.m. The foreman was not onsite. Neither was the manager of operations.
Informed of the visit, the foreman left B.G. another voicemail message the next day. The manager also called, but did not leave a message.
Friday the manager told the union steward to contact B.G. and inform him that if he did not report for work by Monday at 7:00 am, he would be fired.
While B.G. received that message on Sunday night, he was unable to attend at the paving company as he was committed to making a delivery for his other job.
B.G. was fired.
The letter of termination said that his absence for three successive days without notifying a supervisor was in violation of the collective agreement provisions on attendance.
The union said the termination was not justified according to the collective agreement provisions on seniority and recall.
The Arbitrator agreed.
First the Arbitrator rejected the union’s charge that the employer was attempting to change the grounds of termination. The Arbitrator acknowledged that the employer had incorrectly imported the Absent Without Leave provisions of the collective agreement into section 6.7(c) governing seniority, lay-off and recall. In this case though, how cause was stated was not critical. As the grievance revealed, both parties knew what the issue was and the employer was not attempting to change the cause, the Arbitrator said.
With respect to the substantive issue of the employer’s compliance with the collective agreement, the union said that the employer had failed to follow section 6.7(c), which requires the employer to notify a worker of recall by registered letter and to provide seven days to report to work.
Formal requirements not followed
The employer acknowledged that it sent no letter. In fact, the employer said, it had never sent such a letter, relying on the telephone instead. Under the circumstances, the union’s acquiescence meant that the union was estopped from relying on that requirement, the employer said.
The Arbitrator said there was insufficient evidence to support the employer’s argument for estoppel.
However, both parties were obligated to act reasonably. While the employer argued that it had acted reasonably, the Arbitrator said it had not.
“[T]o act reasonably, the Company at a minimum must convey expressly in sufficiently clear terms that are reasonably understood by the affected employee that he or she is being recalled, and that the layoff is over. While there is no precise formula the Company must use, the foregoing cannot be considered as a particularly onerous requirement. Turning to the present circumstances, it is evident that the situation unfolded as it did, through a series of mistaken assumptions, and through miscommunication.”
B.G. believed he was being called only for a day of work and that he was entitled to refuse. He acted accordingly.
The company ought to have done more than it did to convey to B.G. that he was being recalled, the Arbitrator said. “This would be consistent with the purpose of a formal written notice of recall that article 6.7(c) contemplates, and would eliminate any possible ambiguity that an employee might otherwise have about being recalled to work.”
The company could have left B.G. a voicemail explaining that he was being recalled and explaining the consequences of not calling in. That didn’t happen the Arbitrator said. In effect, B.G. was ultimately given less than 24 hours’ notice to return to work. That was not reasonable.
The grievance was accepted. B.G. was ordered reinstated.
Reference: King Paving and Materials Company and Teamsters Local Union No. 879. Randy L. Levinson — Sole Arbitrator. Herbert H. Law for the Employer and Joanne L. McMahon for the Union. May 27, 2011. 22 pp.
