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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39149
Experience:  Retired (mostly)
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I am currently disputing three issues with my employer where

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I am currently disputing three issues with my employer where I believe they are in breech of contract. On July 13, 2012 there was a layoff of eight employees, all from the Swing Shift. The company moved the three least senior people from the Order Filler classification from Day to Swing Shift to compensate, myself being one of the three. Shortly thereafter they posted a job opening for a CTL Operator since it was one of the positions left open from the layoff, expecting one of the transferred employees to take it, and one did. We were told by our Chief Steward that the movement was justified under Article 6 Section 3: Temporary Transfers, which are limited to sixty calender days with a job posting being posted on the sixtieth day, unless extended by the Chief Steward. On September 11, 2012 the company complied with this and posted one job opening for the other transferred employee, but not posting the second because they knew I wouldn't take it, and the Chief Steward extended my transfer.
Also on this day is when I filed my first grievance, Article 12 Section 7C: "Union Stewards during their tenure in office, will have "Super-Seniority" rights on their respective shift in event of a layoff. This privilege is limited to one (1) Chief, one (1) Day and one (1) Night Shift steward. A Steward employed "out of" seniority must be capable of performing a job that is being retained even if it should require the displacement of an employee other than the junior employee on the shift involved." Me being the Day Shift Steward I felt this was part of their discrimination towards me, being unjustly moved to another shift.
On November 9, 2012 I met with the Operations Manager again to discuss my returning to Day Shift with the expiration of my extended temporary transfer. He told me Article 6 Section 3 did not apply to me and that I was not transferred temporarily (opposite what we were told prior), that my position on Day Shift was abolished and I was permanently placed in this position on Swing shift. I proceeded to file two more grievances, Article 6 Section 3: "The Company shall not make unnecessary or arbitrary temporary job transfers. When temporary job transfers are required the will be made to serve the efficient performance of the work and made in such a manner as to adversely affect the least number of employees." They have violated this from day one, having a Slitter Operator Trainee doing my work since they moved us. Also Article 12 Section 3A: "When a permanent vacancy in any job classification in the bargaining unit may occur, it shall be filled in accordance with the provisions of Section 2 within fifteen (15) days." Section 2 basically just says they award bids by seniority.
As of today the company has posted the vacancy they wanted me to take on Swing Shift, I did not take it and it was awarded to another employee. They will not send me back to Day Shift to do my work employees out of bid are doing on a daily basis, and I have missed out on hours of overtime. I don't see any reason not to return to my shift and do my work, other than the Company doesn't want me there. Is there any legal reason why I can't just show up and start working Day Shift tomorrow since I was arbitrarily displaced and still don't hold a bid job on Swing Shift?

Based on your allegations, it seems to me that the breach of contract occurred at the moment when you were transferred temporarily, because it apparently was a permanent transfer, and the employer intended to hide this fact from you.

That would be a breach of the implied covenant of good faith, which exists in every contract and which prevents a party from enjoying the benefit of a contractual bargain. Your bargain was to be temporarily transferred and the reinstated. Instead, you were permanently transferred, based upon a misrepresentation, which is the breach of covenant and which prevents you from obtaining the benefit of the temporary transfer.

Assuming this is the correct legal interpretation, then if you appear for your day shift based upon the expiration of your temporary transfer, and you are not permitted to work, then would provide evidence that the original breach of covenant occurred (assuming further that you can prove what you were originally told concerning your temporary transfer).

And, that would give you damages for any lost wages, as well as the right to specific performance, i.e., the right to reinstatement to your original job position and shift.

Hope this helps.

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