Legal News

Flexible work practices overcome seniority
January 5, 2001

Another in a series of arbitration awards has confirmed a broad, purposive reading of a flexible work practices Letter of Understanding. In Cariboo Pulp and Paper -and CEP, Local 1115, the arbitrator upheld the employer’s right to make job assignments out of order of seniority when necessary

for efficient operation. The case was heard by Arbitrator Colin Taylor and concerns the application of the flexibility language to an assignment of a Chip Tester in Materials Handling to the position of Counter Attendant in Mill Stores during a five day shutdown.

The grievor was an experienced Counter Attendant prior to posting into the Chip Tester position. The Mill Stores operation was vital during the shutdown to ensure efficiency. Any “hold ups” would result in significant costs to the employer. Due to employee absences and leaves, the employer was significantly understaffed in Mill Stores during the shutdown. Training other employees was not feasible in the time frame available before the shutdown. The employer stated that assigning the grievor was necessary to avoid costly hold ups and delays during the shutdown. A junior employee was assigned the grievor’s duties as Chip Tester for the duration of the shutdown.

The union argued that the assignment was a violation of the grievor’s seniority rights as the collective agreement provides for positions to be filled by seniority. The union took the position that the grievor had been “bumped” from her position by a junior employee. The employer maintained that the Letter of Understanding on Flexible Work Practices gave it the ability to make the assignment, given the circumstances it was faced with during the shutdown.

Arbitrator Taylor took a purposive approach and stressed a common sense application of the flexibility language. The Arbitrator considered the parties’ “Notes of Understanding” on the language and concluded that the language clearly allowed the employer to make assignments, within an employee’s skill set, when necessary for the efficient operation of the mill.

In this case, the employer established that there was a need to assign the grievor to Mill Stores and that she was skilled in the work which needed to be performed. The assignment was driven by business needs and promoted efficiency. In addition, the union could not establish that the work assignment was made in bad faith.

Further, the assignment was not permanent. The flexibility language clearly contemplates temporary assignments outside an employee’s primary responsibilities where required. In this case, the 5 day assignment was well within that restriction.

Finally, Arbitrator Taylor found that there was no suggestion in either the Letter of Understanding or the parties’ Notes of Understanding that “seniority would govern the utilization of skills in their application to flexible work practices”. The application of seniority to restrict flexibility would frustrate the plain purpose of the flexibility language (to provide “full flex”), and would render meaningless the Letter of Understanding. The grievance was therefore dismissed.