'Differential treatment amounted to layoff,' rules arbitrator
A heavy equipment operator was temporarily laid off due to lack of work, but he later discovered a less-senior employee had worked his shifts instead.
Trent Bishop had worked at Pardy’s Waste Management in Newfoundland and Labrador since 2013, when on June 1, 2017, he began a 10-night shift rotation at the Muskrat Falls site, doing water delivery, garbage disposal and septic-vacuum-truck services for the employer.
The site was located about 30 kilometres away from his home in Happy Valley-Goose Bay.
Bishop worked the first 10-hour shift without incident, but the next evening, he was advised by Brett Landsberg, supervisor, that no further work was available due to a safety shutdown at the site.
Bishop was paid five hours for showing up, but he also didn’t work on June 3 and 4.
Later, Bishop found out Chad French had worked the two shifts. As shop steward, Bishop was the most senior employee in the Pardy’s bargaining unit and it was specified in the collective agreement that “the employer will follow the principle of last on — first off and, following a layoff, rehiring shall be executed on the principle of last off — first on.”
Bishop grieved the missing 10 hours of pay and requested to be paid the higher wage for the operating engineers’ wage schedule in the Muskrat Falls collective agreement, because he estimated he worked 75 per cent to 99 per cent of his shifts during that rotation under that wage schedule.
The union, International Union of Operating Engineers (IUOE), Local 904, argued Bishop was covered by the Pardy’s collective agreement and not the Muskrat Falls collective agreement, which it argued began to apply after the employee crossed the brass point and entered onto the job site.
Pardy’s also said that because the job was for a separate contractor Barnard/Pennecon, his rights under the Pardy’s collective agreement did not apply.
The employer said the contractor rented equipment hourly and it decided to cancel the shifts due to the shutdown.
Pardy’s argued Bishop’s shifts were cancelled, and therefore he was not laid off.
Arbitrator James Oakley disagreed and upheld the grievance.
“The employer shall pay compensation to (Bishop) for loss of income on June 3 and 4, 2017, in an amount calculated by reference to the amount paid to Chad French,” said Oakley.
“I find that the Pardy’s collective agreement applies to (Bishop’s) scheduled work,” said Oakley.
“The agreement applies to work performed in the Happy Valley-Goose Bay area such as garbage disposal and vacuum truck services.”
The argument that Bishop was not covered under the Pardy’s colllective agreement was firmly shot down by the arbitrator in his ruling.
“A reduction of work, with an unequal impact on employees, is a layoff. I find that the cancellation of (Bishop’s) shift on June 3 and 4 was a layoff within the meaning of article 6.05 of the Pardy’s collective agreement,” said Oakley.
"There was a reduction in the available work and (Bishop) was treated differently compared to the employee who continued to work” said Oakley.
"The differential treatment amounted to layoff. Under the principle of last on — first off, stated in article 6.05, (Bishop) should have continued to work on June 3rd and 4th,” said Oakley.
Reference: Pardy’s Waste Management and International Union of Operating Engineers (IUOE), Local 904. James Oakley — arbitrator. Tim Sullivan for the employer. Ronald Pink for the employee. Dec. 13, 2017.
