Worker found asleep on the job reinstated

Union representative not present during questioning

Steve Pegoretti lost his manufacturing job after he was found asleep on duty, but an arbitrator has ruled that excessive.

Pegoretti, who worked at Crosby Canada in Brampton, Ont., (a manufacturer of assembled steel products) filed a grievance through Unifor’s local 1285 chapter, arguing he was wrongfully terminated and in fact was not asleep at all.

Further complicating the matter is that the union was not there to represent Pegoretti during the termination, which was his right as per the collective agreement. As such, Unifor said the discharge is void.

Schedules at Crosby Canada are such that Pegoretti was able to work almost exclusively on the midnight shift, with considerable amount of work on weekends, as well as overtime.

However, in the summer of 2014, a supervisor said he caught Pegoretti asleep in the middle of his shift, and was startled when he was tapped awake.

The worker explained he was simply sitting askew, with his back turned. Video evidence shows this as a possibility, but arbitrator Daniel Harris noted it seemed like an uncomfortable position in which to be sitting.

But because a union representative was not with the worker when he was being questioned about his behaviour, the employer violated the collective agreement, Unifor argued.

On the other hand, the company explained that the initial conversation in question, between supervisor and worker, was not disciplinary, and therefore rendered the union’s defence moot. Every process followed the collective agreement, management went on to say, including a complete investigation for which the grievor lost no pay.

Should the "brief interaction" be considered disciplinary, the employer added that the fair and reasonable result would be to carve out that part of the suspension from the ultimate discharge.

In making his decision, Harris said there was no doubt the grievor had been found sleeping, offering previous discipline for the same matter as evidence.

However, the collective agreement had indeed been violated, he added, as no union representatives work the midnight shift.

"(Pegoretti) was sent home indefinitely, contrary to the collective agreement. Further, the response of the employer was to immediately launch into a disciplinary investigation," Harris said. "Mere inconvenience does not justify the denial of providing the union representation that is required by the collective agreement."

Harris upheld the grievance and ordered Pegoretti be reinstated with full compensation.

Reference: Crosby Canada and Unifor Local 1285. Daniel A. Harris arbitrator. Greg McGinnis for the employer, Keith Osbourne for the union. Feb. 20, 2015.

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