Ontario arbitrator looks at communication between owner, union, secretary-treasurer
An overtime grievance filed by a union has been dismissed after the arbitrator agreed with the employer.
Teamsters Local Union 230 argued that Toronto Redi-Mix had agreed to pay daily overtime after nine hours in a day and weekly overtime after 44 hours in a week.
However, the employer said the deal was daily overtime only up to 44 hours, then weekly overtime kicked in.
2021 agreement on overtime
Under the prior agreement, which expired Nov. 30, 2021, the normal work week was 44 hours from Monday to Friday, overtime was paid after 43 hours in a week, and there was no daily overtime. Bargaining for the renewal ran from November 2021 into early February 2022, with overtime emerging as one of two contentious issues. The union proposed daily overtime after eight hours in a day.
The employer's Feb. 11, 2022 final offer dropped its earlier push to expand the workweek to six days, offered weekly overtime after 42 hours, and contained no daily overtime.
But members rejected the offer on Feb. 13, 2022.
Union president Ken Hall wanted to avoid a strike, citing COVID restrictions still in place. He asked secretary-treasurer Domenic Colangelo, who had a better relationship with owner Robert Zanetti, to seek improvements. That morning, Colangelo received a call informing him his father had passed away from COVID, after pandemic restrictions kept him from visiting the hospital. He attended the ratification meeting anyway.
Collective bargaining on overtime
Colangelo phoned Zanetti, resolved a separate "wheel system" dispute, and returned with an overtime offer. He testified Zanetti offered to pay daily overtime "to 44 hours" per week, and that he then relayed to Hall that Zanetti was offering daily overtime "up to 44 hours per week."
The amended proposal was put to the membership and approved by a margin of one vote. Colangelo then drafted Article 9.03 to provide overtime "for hours worked in excess of (9) nine hours per day or forty-four (44) hours Monday to Friday commencing Dec. 1, 2021."
Hall told the hearing he spoke directly with Zanetti before the second vote and understood employees would receive daily and weekly overtime, even after 44 hours. His handwritten note read, "42 to 44 – 9 HRS Daily." In cross-examination, it was put to Hall that he did not speak to Zanetti before the second vote and that Zanetti never explained the proposal to him; Hall maintained his evidence but conceded he made no notes of the conversation.
Zanetti testified he did not speak to Hall before the second vote and agreed to daily overtime, but not if employees reached 44 hours in a week. He explained the proposal would benefit employees who worked daily overtime in a short week - when they worked less than 44 hours in a week.
The union asked the arbitrator to read "or" inclusively. Counsel conceded the word "or" is generally disjunctive unless the context suggests otherwise.
Grievance dismissed
Arbitrator Norm Jesin found the evidence pointed one way. He wrote that "Mr. Colangelo accepted that the proposal made by Mr. Zanetti was for daily 'or' weekly overtime, but not both."
He added that "the note made by Mr. Hall after does not confirm, in my view, that Mr. Zanetti offered daily and weekly overtime rather than daily or weekly overtime."
The arbitrator concluded: "It is my determination that the grievance must be dismissed."
