USW not ‘unsophisticated bargaining partner’: Arbitrator
When he decided to leave Canada to spend recovery time with his daughter in the United States, a long-time worker was denied weekly indemnity payments.
Denis Porter had 32 years’ service with Ryam Lumber at its Cochrane, Ont., processing facility but on July 20, 2018, his summer travel plans were interrupted by sudden hernia surgery.
Porter had intended to drive to Pittsburgh to visit his daughter and granddaughter for a vacation but on July 25, he spoke with HR employee Brett Demers. He said he wanted to cancel his vacation plans and instead would seek to be paid weekly indemnity and employment insurance (EI).
His return-to-work date after his recovery from surgery was set for Aug. 6.
Porter’s new plan was to recover at his daughter’s house, instead of remaining home.
He expected to receive EI payments and a company-paid top-up of $610 a week.
Porter understood that the collective agreement provided the payment regardless of whether he also received EI payments.
However, Porter’s EI claim was denied because he was physically outside of Canada from July 2 until July 18.
Ryam Lumber denied the indemnity payment so Porter and the union, United Steelworkers (USW), Local 1 - 2010, grieved it and requested $1,588, plus interest, for the two weeks and two days he didn’t receive the top-up.
The USW argued that the collective agreement promised employees would receive the supplementary unemployment benefit (SUB) plan payment even if the employee was not eligible for EI payments.
During the 2006 collective bargaining talks, the previous owner, Tembec, provided weekly indemnity benefits for short-term disability leave.
The new employer wanted to change that plan and supplement it with EI payments, to help it reduce costs.
An addition was added and agreed to that read: “Should the employee not be eligible for EI, the insurance carrier will also be responsible to cover the employees.”
The union argued there was nothing in the collective agreement that said an employee must qualify for EI benefits, only that the injury is supported by medical evidence, which Porter had already provided.
As well, the union said it never did review the SUB plan and didn’t agree to any of its terms.
However, Ryam said the under the SUB plan, an employee must qualify for EI benefits to receive payments and since Porter absented himself, he didn’t quality.
Arbitrator weighs in
Arbitrator Elaine Newman agreed and dismissed the grievance.
“(Porter) was ‘eligible’ for employment insurance benefits because he was medically certified as unfit to work. However, he was ‘disentitled’ to receive those benefits because he left the country. The language chosen by the parties does not cover his circumstances. The plain meaning of the words chosen does not support a different interpretation.”
USW’s contention that the only requirement called for was to provide documentation of the injury was rejected by Newman.
“The union argues that the language only requires that an employee prove disability and does not go so far as to say that the employee must also meet the conditions of the statutory regime that entitles one to employment insurance benefits. To add that concept to the interpretation of the provision would be for the arbitrator to wrongly amend that language. I am persuaded to disagree with this argument based on the clear and consistent approach of the jurisprudence,” said Newman.
And the argument by the USW that it should have been shown the SUB was rejected. “The union was not an unsophisticated bargaining partner.
“It is true to say that the company might have provided the SUB plan, but it is also true to say that the union was at liberty to request it. The union committee had, the evidence discloses, dealt with SUB plans in the past. It might well have deferred conclusion of the agreement until a request to review the plan in detail was satisfied.”
Reference: Ryam Lumber and United Steelworkers, Local 1 - 2010. Elaine Newman — arbitrator. Michelle Henry for the employer. James Fyshe for the employee. March 25, 2019.
Denis Porter had 32 years’ service with Ryam Lumber at its Cochrane, Ont., processing facility but on July 20, 2018, his summer travel plans were interrupted by sudden hernia surgery.
Porter had intended to drive to Pittsburgh to visit his daughter and granddaughter for a vacation but on July 25, he spoke with HR employee Brett Demers. He said he wanted to cancel his vacation plans and instead would seek to be paid weekly indemnity and employment insurance (EI).
His return-to-work date after his recovery from surgery was set for Aug. 6.
Porter’s new plan was to recover at his daughter’s house, instead of remaining home.
He expected to receive EI payments and a company-paid top-up of $610 a week.
Porter understood that the collective agreement provided the payment regardless of whether he also received EI payments.
However, Porter’s EI claim was denied because he was physically outside of Canada from July 2 until July 18.
Ryam Lumber denied the indemnity payment so Porter and the union, United Steelworkers (USW), Local 1 - 2010, grieved it and requested $1,588, plus interest, for the two weeks and two days he didn’t receive the top-up.
The USW argued that the collective agreement promised employees would receive the supplementary unemployment benefit (SUB) plan payment even if the employee was not eligible for EI payments.
During the 2006 collective bargaining talks, the previous owner, Tembec, provided weekly indemnity benefits for short-term disability leave.
The new employer wanted to change that plan and supplement it with EI payments, to help it reduce costs.
An addition was added and agreed to that read: “Should the employee not be eligible for EI, the insurance carrier will also be responsible to cover the employees.”
The union argued there was nothing in the collective agreement that said an employee must qualify for EI benefits, only that the injury is supported by medical evidence, which Porter had already provided.
As well, the union said it never did review the SUB plan and didn’t agree to any of its terms.
However, Ryam said the under the SUB plan, an employee must qualify for EI benefits to receive payments and since Porter absented himself, he didn’t quality.
Arbitrator weighs in
Arbitrator Elaine Newman agreed and dismissed the grievance.
“(Porter) was ‘eligible’ for employment insurance benefits because he was medically certified as unfit to work. However, he was ‘disentitled’ to receive those benefits because he left the country. The language chosen by the parties does not cover his circumstances. The plain meaning of the words chosen does not support a different interpretation.”
USW’s contention that the only requirement called for was to provide documentation of the injury was rejected by Newman.
“The union argues that the language only requires that an employee prove disability and does not go so far as to say that the employee must also meet the conditions of the statutory regime that entitles one to employment insurance benefits. To add that concept to the interpretation of the provision would be for the arbitrator to wrongly amend that language. I am persuaded to disagree with this argument based on the clear and consistent approach of the jurisprudence,” said Newman.
And the argument by the USW that it should have been shown the SUB was rejected. “The union was not an unsophisticated bargaining partner.
“It is true to say that the company might have provided the SUB plan, but it is also true to say that the union was at liberty to request it. The union committee had, the evidence discloses, dealt with SUB plans in the past. It might well have deferred conclusion of the agreement until a request to review the plan in detail was satisfied.”
Reference: Ryam Lumber and United Steelworkers, Local 1 - 2010. Elaine Newman — arbitrator. Michelle Henry for the employer. James Fyshe for the employee. March 25, 2019.
