Sheet Metal Workers' International Association, Local 30 v. Chicago Blower, division of Earlscourt Metal, 1994 CanLII 9949

Sheet Metal Workers' International Association, Local 30 v. Chicago Blower, division of Earlscourt Metal

[1994] OLRB Rep. June 645

0147-94-G Sheet Metal Workers' International Association, Local 30, Applicant v. Chicago Blower, division of Earlscourt Metal, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: J.Raso, A. Smith, J. Neilsen, and J. Ma gee for the applicant; R. Goulart and P. Sklar for the responding party.

DECISION OF THE BOARD; June 13, 1994

1The name of the responding party is amended to read: "Chicago Blower, division of Earlscourt Metal".

2This is a referral of a grievance pursuant to section 126 of the Labour Relations Act.

3The grievance in question relates to the lay-off of Mr. Jim Magee from his position as a welder at Chicago Blower. The applicant alleged that Mr. Magee (hereinafter also referred to as the "grievor") was laid off out of his seniority order on December 2, 1993. On May 3, 1994, five months later, the union amended its grievance to add that Mr. Magee had been terminated without just cause.

4Over the course of three days of hearing, the responding party called three witnesses; the applicant called no witnesses. The parties requested an oral decision from the Board, with rea­sons to follow. The following is the text of the oral decision which we rendered on June 2, 1994:

Having considered the agreed statement of facts, the evidence of the witnesses, the exhibits filed, and the collective agreement, the panel finds that the responding party has violated Arti­cle 11:05(c) and (d) of the collective agreement. The panel concludes that when the responding party failed to give the grievor written notice to return to work, sent by registered mail, it failed to meet the precondition for stripping Mr. Magee of his accumulated seniority rights. Mr. Magee's seniority date, prior to June 23, 1993, was March 2, 1987. The result of the responding party's decision to remove Mr. Magee's seniority as of June 23, 1993, was that the grievor was laid off from his employment on December 2, 1993. Mr. Bhagwatee Boodram, another welder in the employ of Chicago Blower, whose seniority date was January 19, 1989, was kept on. Having found that Mr. Magee should not have had his seniority removed, it follows that Mr. Magee was incorrectly laid off from his employment on December 2, 1993.

Having determined the case on the issue of seniority, the panel declines to address the appli­cant's argument on discharge for just cause. We are, however, concerned with the lengthy delay on the filing of the amendment to the grievance to add the discharge allegation, and, since we heard no evidence of the reasons for the delay, would have had some difficulty in exercising our discretion to deal with the question of discharge for just cause.

The Board directs that Mr. Magee be reinstated to his employment as a welder forthwith with an effective seniority date of March 2, 1987, and that he be compensated for any lost income incurred as a result of his improper lay-off. Written reasons for our decision will follow.

The panel will remain seized of this matter as the parties have indicated they wish the Board to assist them in the determination of the amount of compensation owing to the grievor.

5The following are our written reasons for the above oral decision. The parties indicated at the outset of the hearing that Mr. Bhagwatee Boodram, an employee whose employment may be affected by the decision reached by this Board, had been notified of these proceedings and had not indicated any interest in participating in the hearing.

6Chicago Blower is a small company employing fourteen employees in its factory where small and large fans are produced for custom orders or through normal production.

7The relevant Articles of the collective agreement are as follows:

ARTICLE 6- MANAGEMENT RIGHT

6:01 The Union acknowledges that it is the exclusive function of the Company, subject always to the provisions of this Agreement, to hire, promote, demote, transfer, sus­pend, discharge or otherwise discipline any employee for cause, provided that a claim by any employee that he has been discharged or disciplined without reasonable cause may be the subject of a grievance and dealt with as herein provided.

ARTICLE 8- GRIEVANCE PROCEDURE

8:01 It is the mutual desire of the parties hereto that complaints of any employee, of the Union, or of the Company, the alleged circumstances of which occurred not more than 10 working days prior to this presentation, shall be adjusted as quickly as possible in the following manner:

ARTICLE 11- SENIORITY AND PROBATIONARY EMPLOYEES

11:04 In all cases of increase or reduction of the working force the principle of seniority will apply so long as the application of this principle does not prevent the Company from maintaining a working force of employees who are qualified and willing to do the work which is available.

11.05 Seniority rights of an employee shall cease if:

(c) An employee is laid off and within three (3) days after receipt of a written notice to return to work sent to him by registered mail, fails to notify the Company of his intention to return to work.

(d) An employee fails to report for work within seven (7) calendar days after the notice to return to work has been mailed by registered mail to his last known address on the Company records.

[emphasis added]

8The agreed statement of facts tendered to the Board by the parties stated that Jim Magee, the grievor, was hired by the responding party on March 2, 1987, as a welder. He was laid off on March 18, 1993. The responding party did not send Mr. Magee written notice to return to work, which notice is, pursuant to the collective agreement, to be sent by registered mail. Although the panel heard no evidence of Mr. Magee having been recalled by telephone, there was some suggestion in the agreed statement of facts that he had been recalled by telephone in the past. Mr. Magee returned to work on June 23, 1993.

9Mr. Peter Sklar, the Operations Manager for Chicago Blower, gave extensive evidence, all of which it is unnecessary to recite since the panel reached its decision on the limited issue of the loss of seniority. It was his evidence that for some time since 1989 the company has been recall­ing employees from lay-off by telephoning them and asking them to return to work. The applicant union admitted it had acquiesced to this practice. However, the parties have agreed that except for Mr. Magee, the responding party has never reduced seniority as a result of an employee's failure to respond to a telephone recall. The issue of loss of seniority has therefore never arisen or been addressed by the parties.

10The responding party maintained that the union was estopped from arguing that the employer had incorrectly stripped Mr. Magee of his seniority because it had acquiesced to the practice of telephone call recalls from lay-off. For the following reasons we cannot accept the responding party's argument of there being an estoppel in this case. Firstly, there is no evidence before us of a phone call recalling Mr. Magee. Secondly, and notwithstanding whether there was a call or not, the responding party has never stripped any other employee of his or her seniority on the basis of a failure to return from lay-off after a telephone call. To rely on an estoppel, there would need to be unambiguous consent by the union, by words or actions, that the employer could strip employees of their seniority when they failed to return to work in circumstances similar to those in this case, and the employer would have to show it had relied on the acquiescence or agree­ment to its detriment. On the facts before us, the union cannot be taken to have agreed to or acquiesced to this result of failure to return to work after a telephone recall, and there is no evi­dence of detrimental reliance. The estoppel argument therefore fails.

11Seniority rights are an important part of a collective agreement as they may define an employee's access to vacation, scheduling, transfers and promotions, lay-off and recall. In Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161, Arbitrator Reville wrote the following:

Seniority is one of the most important and far-reaching benefits which the trade union move­ment has been able to secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pen­sion rights, to name only a few. It follows, therefore, that an employee's seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee's seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.

Since this early decision, there have been numerous cases which have accepted and applied the principles outlined in Tung-Sol.

12This panel is of the view that the language of the collective agreement between the applicant and the responding party is clear and unequivocal about the circumstances in which an employee within the bargaining unit shall lose his or her seniority rights. Article 11:05(c), outlined above, indicates that an employee can lose all accumulated seniority if within three days of receipt of written notice, sent by registered mail, informing an employee that he or she is being recalled to work, the employee does not return to work. Mr. Magee did not receive written notice of his recall. Article 11:05(d), also outlined above, indicates that if an employee, upon receipt of written notice of recall, sent by registered mail, fails to return to work within seven days of the recall notice, he will lose all accumulated seniority. Since it is unclear when Mr. Magee was recalled, and in any event Mr. Magee did not receive any written notice, this provision has no application to his situation. On the clear language of the collective agreement, we find that the responding party breached the provisions of the collective agreement when it removed Mr. Magee's accumulated seniority up to June 23, 1993.

13Mr. Bhagwatee Boodram, the other welder whose services were retained after the grievor's lay-off in December 1993, had a seniority date of January 19, 1989. The Board has found that Mr. Magee's seniority date should have been March 2, 1987. The responding party's evidence was that the grievor was a very good worker who had superior welding skills to Mr. Boodram and had done work in all areas of production at Chicago Blower. Having regard to Article 11:04 of the collective agreement, therefore, the grievor should not have been laid off in December 1993 as he was both the more senior welder and was qualified and willing to do the work available at that time.

14Having decided this case on the basis of the language of the collective agreement, it is unnecessary for the panel to consider the applicant's argument that Mr. Magee was discharged without just cause, contrary to Article 6 of the collective agreement. However, as noted in our oral decision, we are concerned that the union did not allege discharge without just cause until some five months after Mr. Magee's initial lay-off. Article 8:01 of the collective agreement contemplates issues being grieved within ten days of their initial occurrence. While the Labour Relations Act gives boards of arbitration the power to, in their discretion, waive time limits in appropriate cir­cumstances, it is unnecessary for this panel to do so in this case.

15Having regard to the evidence and representations before the Board, and the Board's findings as stated above, the Board therefore:

(a) declares that the responding party has violated the collective agree­ment, and in particular, Articles 11:04 and 11:05(c) and (d);

(b) directs that Mr. Magee be reinstated to his employment as a welder forthwith, with an effective seniority date of March 2, 1987; and

(c) directs that Mr. Magee be compensated for any lost income incurred as a result of his lay-off on December 2, 1993, and until the date of his reinstatement, subject to the normal principles of mitigation.

16In the event that the parties cannot agree on the quantum of damages owed to Mr. Magee, this panel will remain seized of this matter.