Past redress for missing overtime not relevant: Arbitrator
Two employees at a Milford, N.S., mine signed up for Saturday overtime but their names were not called when the extra work was assigned.
James Grono, loader operator, and Peter Eisnor, RC shunter, separately signed up on a Wednesday to work at National Gypsum the coming Saturday, but were passed over inadvertently.
Grono put his name on a list on July 5, 2017, for a shift on July 8, but on July 7 he was told that his services would not be required that Saturday because the loader would not be in operation. However, Grono stopped by the workplace that day and noticed that a loader was in service.
He spoke with Zak McCready, supervisor, about the missed opportunity. He was told that he could work further overtime hours to make up for the oversight, but they would be offered in chunks of two hours spread out over four days.
Grono refused the work and said his preference was to work the full day Saturday and not to work extra hours after his regular workday.
On July 12, Grono and the International Union of Operating Engineers, Local 721, grieved the employer for a “failure to follow overtime list, people working out of classification,” and he sought “full redress” and eight hours’ pay at time-and-a-half.
Eisnor wanted to work on Feb. 4, but his name was inexplicably overlooked by the supervisor as someone else did a maintenance labourer shift that day. He was told he could make up the time by working 10 hours over two days.
Eisnor also refused the offer and he grieved it on Feb. 8.
National Gypsum admitted that it breached the collective agreement in both cases, specifically article 10(f)2 which said: “All overtime work at the quarry (Milford) will be assigned by the volunteer overtime list as per seniority, shift, classification and then by seniority, shift and skill.”
The employer argued that although it did make a mistake by offering extra hours to the workers, this should have been accepted as other employees in similar cases had done so and worked the extra overtime hours at a different time to make up for the oversight.
The union argued that by doing this, other employees might miss out on overtime hours while the missed workers made up the time and this wasn’t fair to the other workers.
Arbitrator Augustus Richardson upheld the grievances and ordered National Gypsum to pay the workers for the missed time.
“The parties agreed that Grono lost the opportunity to work eight hours of overtime at time and-half at the loader operator’s rate; and that Eisnor lost the opportunity to work 10 hours at time-and-a-half at the RC shunter’s rate.
The employer shall pay compensation calculated on that basis to the grievors,” said Richardson.
The previous cases where the employees accepted makeup overtime was dismissed by the arbitrator.
“Nor was I persuaded that the three other occasions when employees had accepted in-kind replacement overtime established anything other than that they happened. In one case (that of Pineo), the employee accepted the extra work contrary to his union’s express injunction. The other (Derrick Isenor) was settled on a without-prejudice-without-precedent basis. And the third (that of MacLelland) was at a site to which article 10(f)2 was not applicable,” said Richardson.
“Neither grievor had volunteered for overtime during the week. Nor had they volunteered to work overtime for one or two hours spread over several week days to be worked in addition to their regular shifts. In short, what the employer offered them did not replace what they had lost. It would have required them to work days they had not agreed to work; and to work extended rather than regular shifts on those days,” said Richardson.
Reference: National Gypsum (Canada) and International Union of Operating Engineers, Local 721. Augustus Richardson — arbitrator. James Green for the employer. Edward Crockett for the employee. Nov. 13, 2017.
