Arbitration Decision Confirms that Seniority Rights are Contractual, not Inherent

A recent arbitration award confirms that seniority ‘rights’ are not inherent, but rather must be found in a collective agreement in order to be enforceable, will be of interest to all employers who operate unionized workplaces.

Background

CIPA Lumber Co. Ltd. v. USW, Local 2009 (Michael Lang Mill Utility Seniority Grievance), January 5, 2021 concerned the assignment of relief tasks to mill utility workers (“MUW”) working at the Employer’s mill on Annacis Island, in Delta, B.C.

The key background facts can be summarized as follows:

• MUWs are assigned to relieve production employees at various workstations when they go on breaks, which allows plant production to continue seamlessly;
• when performing relief work, MUEs are paid the rate for the work they are relieving, provided that the work is paid more than the base MUW rate;
• decisions as to which MUW performs which relief tasks are based on such considerations as efficiency and qualification; and
• the Employer did not consider itself obligated to take seniority into consideration when making assignments.

Dispute

On February 25, 2020, the grievor (who was the senior MUW on his shift) was assigned to lower-paid relief tasks, while MUWs junior to him were assigned to higher-paid relief work.  He and the Union objected to this assignment and filed a grievance, in which they alleged that the grievor’s seniority entitled him to perform higher-paid relief work if that was what he wanted to do.

The Employer took the position the grievor had no entitlement under the collective agreement to use his seniority to choose which relief tasks to perform.  Because the collective agreement was silent on the assignment of tasks to employees, the Employer argued that it had the unfettered management right to assign relief work as it wished, subject only to the requirements to exercise that right in a manner that was not arbitrary, discriminatory or bad-faith.

Decision

Arbitrator Randy Noonan agreed with the Employer’s submissions, and dismissed the grievance.

In coming to this conclusion, he affirmed the longstanding principle that seniority is a concept entirely contractual in nature, and held that in the absence of collective agreement language dictating that seniority could be exercised in the picking-and-choosing of relief tasks (as was the case here) there was no merit to the grievance:

70        In a colloquial way, the principle of seniority may be understandable.  That is, benefits accrue with length of service.  Discussing seniority as a principle, in a legal sense, however, is troublesome.  That is because the principle of seniority, in the legal sense, is not really a principle at all but rather a set of very specific provisions set out in collective agreements that define how seniority is earned and retained, and its value.  In short, the principle of seniority is not a theoretical concept but is instead defined contractual benefits that differ significantly in different collective agreements.

…

79        … The specificity of language does not exist in this collective agreement to allow for the selection of relief assignments and, subject to the requirements of good faith and valid business reasons, the assignment of relief shifts remains a management right.

…

88        It may indeed be a very good business practice for the Employer to allow MUWs to choose relief work.  It is likely that senior MUWs will feel unfairly treated if they are consistently relegated to lower paying relief jobs while junior MUWs are making more money by relieving higher paying jobs.  That does not, however, elevate the choice of relief assignments to a seniority right.

[Emphasis added]

Takeaways

This is a helpful decision for employers, in that it provides a valuable and recent reminder that unlike management rights, seniority ‘rights’ are not inherent and must be bargained for.  While there can often be a perception among unionized employees that seniority provides them with a much broader set of rights and entitlements than those expressly set out in a collective agreement, this decision reaffirms that this is not the case.

Employers would be well-served to keep this principle in mind when dealing with any seniority disputes and to carefully review their collective agreements (as well as any past practices that they may have implemented) before conceding to claims of seniority-based entitlements.

Greg Heywood and Brandon Hillis were co-counsel for CIPA Lumber Co. Ltd. in CIPA Lumber Co. Ltd. v. USW, Local 2009 (Michael Lang Mill Utility Seniority Grievance), January 5, 2021.  They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.