Refusal based on status of ongoing collective bargaining
Sheldon Yanoshewski’s decision to turn down voluntary overtime hours led to his dismissal.
Yanoshewski — a journeyman automotive mechanic with Mosaic Potash’s surface mill and underground mine in Colonsay, Sask. — was a shop steward and 17-year employee at the when he was fired on Oct. 9, 2012.
Initially Yanoshewski was suspended without pay pending an investigation, but he was subsequently terminated for alleged insubordination to a supervisor and for declining to work overtime.
While overtime work is voluntary under the company’s collective agreement with the United Steelworkers Local 7656, the employer submits Yanoshewski’s refusal to accept overtime work was because of the status of ongoing collective bargaining negotiations, something it categorized as gross misconduct.
The employer claimed Yanoshewski, along with his fellow employees, participated in an illegal strike by refusing overtime work in an effort to force the company to return to the bargaining table.
The union submitted Yanoshewski’s choice not to accept overtime was a personal one. There was no conspiracy among employees to refuse overtime and, in fact, no other employees faced discipline for their refusal to work overtime hours.
There was not sufficient evidence to issue even a warning letter. The employer investigated but could not prove its case against other employees. It was wrong, the union stated, to single out and discipline only one employee.
Yanoshewski testified the employer’s approach to bargaining with the union "bothered him a lot."
In early September he told supervisors he would not "sell his soul" by working overtime without a contract.
No one told Yanoshewski he could not refuse overtime given the circumstances surrounding negotiations.
In fact, when he told his supervisors he was refusing overtime in large part as a reaction to ongoing negotiations, he was told that was his right.
While Yanoshewski admitted there was talk on the work floor about a general reluctance among employees to take on overtime, he testified he was not enticed by anyone to refuse overtime and that he himself did not entice anyone to refuse overtime.
Human resources was asked to investigate the incident. Before management could meet for review, Yanoshewski displayed what the employer categorized as "insubordinate behavior."
On Sept. 24, 2012, Yanoshewski was returning to his underground work station when he came across an electrical supervisor operating a multipurpose tractor.
A provision in the collective agreement prohibits supervisors from performing work normally done by union members, and, being a shop steward, Yanoshewski took issue with the incident.
He told the supervisor he should know better, especially at "contract time." An exchange followed — involving course language from both parties — before Yanoshewski was told to go home.
The employer decided to suspend Yanoshewski immediately, without pay, for insubordination and for his conduct relating to the refusal of overtime.
He was not asked, nor permitted, to provide his version of events at the brief Sept. 26 meeting preceding his suspension.
At a meeting with union representatives on Oct. 9, 2012, Yanoshewski was fired.
The union grieved both the suspension and termination, requesting Yanoshewski be reinstated and "made whole in every way."
It argued the employer failed to prove an illegal strike took place and furthermore failed to prove Yanoshewski acted in concert with the union or with his fellow employees not to accept overtime.
The fact Yanoshewski was the only employee punished for refusing overtime proves he was not acting in concert, the union said.
The employer argued Yanoshewski, as a shop steward, should have led by example and that by refusing to work overtime he instigated a "strike, stoppage, slowdown" of work.
The employer further argued a reduced penalty should not be granted when there was no apology. It submitted Yanoshewski did not apologize, "let alone take any responsibility for his wrongful actions."
In his ruling, arbitrator William F.J. Hood made it clear Yanoshewski was rightfully within his role as a shop steward to challenge a supervisor’s operation of equipment.
"Any defiance of management’s authority was limited to challenging the supervisor’s right to operate the equipment contrary to the collective agreement," he said.
Hood went on to say that, in his opinion, the employer only pursued the alleged incident of insubordination to "bootstrap" its justification to terminate an employee who freely acknowledged he was refusing overtime because of contract negotiations.
While there may be circumstances where the refusal to work voluntary overtime constitutes an unlawful strike, Hood ruled the employer failed to prove this was the case.
"There is insufficient evidence, if any, to prove either the union or its members were acting in combination or in concert to decline overtime to bring pressure to bear on the employer in the bargaining of the collective agreement," Hood said. "There is evidence one employee, the grievor, who for personal reasons would not ‘sell his soul’ to work overtime without a contract. This does not a strike make."
He ruled the employer did not have just cause to discipline Yanoshewski and sustained both grievances.
Hood ruled Yanoshewski be made whole for the loss of pay, benefits and any seniority resulting from the suspension and termination and that the discipline be set aside.
Reference: Mosaic Potash Colonsay ULC and United Steelworkers Local 7656. William F.J. Hood – sole arbitrator. Steven Seiferling for the employer. Gary Bainbridge for the union. Aug. 21, 2013.
