Battle of the bump

Server denied request to 'bump' part-time employee's schedule

Marie Osbourne filed a grievance against City Hotels Limited in her battle for the right to bump.

Osbourne — a server with more than 30 years seniority at Ramada St. John’s in Newfoundland and Labrador — was denied her request to "bump" a part-time employee. On the weekly schedule for Sunday, Dec. 8 to Saturday, Dec. 14, 2013, Osbourne was scheduled to be off work on Monday and Friday and to work the night shift on Saturday.

Osbourne attempted to bump a part-time employee from a shift on Friday, marking herself down for that shift on the schedule. The request was denied. Osbourne then requested to bump a part-time employee from the day-time shift on Saturday, and was denied a second time.

Manager Amy Tulk testified Osbourne’s requests were denied because Osbourne was not allowed to bump in an effort to change her days off. Tulk believed Osbourne was attempting to bump to have preference of shifts, which she said was not permitted under the collective agreement.

Tulk said employees seeking preference of shifts have the option to switch shifts at any time and can request a floating holiday up to three days in advance.

General manager Greg Fleming testified that, during the 2009 round of collective bargaining, bumping was discussed as a method for regular employees to guarantee 40 hours of work each week. Fleming said regular employees scheduled for less than 40 hours are permitted to bump part-time employees to make up a full 40-hour week.

Osbourne, however, testified she had bumped part-time employees to have preference of shifts several times since discussions surrounding the practice were held in 2009.

She argued the denial of her request to bump in December 2013 was a violation of management rights. Osbourne said it was inconsistent and unfair to not allow her to do something she had practiced for years.

The Fish, Food and Allied Workers’ union filed a grievance on Osbourne’s behalf. The union submitted the employer had denied the collective agreement right that allows regular employees to bump the shifts of part-time employees. Bargaining history and past practice allowed for the right to bump, it argued.

Furthermore, the union argued the collective agreement did not set any preconditions regarding when bumping was allowed. Regardless of whether or not a discussion about limiting bumping took place in 2009, the company did not approach the union to add language to the collective agreement stating that bumping would be limited to employees who needed additional hours to fulfill a 40-hour week.

The effect of dismissing the grievance, according to the union, would be to render the agreement meaningless.

The employer disagreed, arguing the evidence did not establish a longstanding practice to bump in order to have preference of shifts.

Allowing the grievance would allow regular employees to bump any time they did not like their schedule. The employer requested the grievance be denied.

Arbitrator James C. Oakley found the employer’s interpretation of the collective agreement would deny regular employees the right to bump, effectively adding language to the agreement. This change is unreasonable, Oakley ruled, as the evidence did not establish any clear communication between the union and employer regarding limitations on bumping.

"On the facts of this case, the employer violated the collective agreement when it denied the grievor’s request to bump a shift of a part-time employee," Oakley said.

The grievance was allowed and Oakley ordered the employer to cease and desist from the practice. Because the parties did not make submissions on the issue of entitlement to compensation, Oakley reserved jurisdiction to decide any issue of compensation.

Reference: City Hotels Limited (Ramada St. John’s) and the Fish, Food and Allied Workers union. James C. Oakley —
Arbitrator. Darren Stratton for the employer, Greg Pretty for the union. May 8, 2014.

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