Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 October 6, 2014 ArbitrAtion AwArds 43 (for which he was president) called unwarranted and a viola- tion of the collective agreement. Being a technician requires a specific skill set for installa- tion and repair work in the area. In St. Catharines, Bell also hired a variety of part-time and full- time subcontractors. None of the teams had explicit provisions de- fining scheduling hours and days of work. Instead, the collective agreement dictated that when "the team is unable to come to an agreement, seniority shall apply according to the requirements of the job." On the day in question, in Au- gust 2013, Cowan noticed he had been scheduled to work two non- consecutive Saturdays. The first was doable, but the second he had planned an excursion with his family to the U.S. When he approached his managers and requested a junior employee take the shift, he was at first assured, but then denied. That's because no other junior employees were both qualified or available to cover Cowan's shift, the company said. Of the 27 in the pool of employees that would be suitable for the shift, 11 were ab- sent due to scheduled vacation, nine had already worked the pre- vious Saturday (thereby invoking the clause stating no two consecu- tive Saturdays would be worked), two had already worked the maximum 40 hours per week, one was on sick leave, two were away for religious leave and two were granted leave to attend a wedding — leaving no one but Cowan to fill the gap. He ended up working eight hours plus overtime. Seniority, Unifor argued, trumped any other provision. "The grievor's seniority trumped the company's ability to give discretionary time off to less senior employees," the union said. "The concept of 'seniority' and the exercise of the company's 'discre- tion' in granting time off were not linked, but rather, under the col- lective agreement must be consid- ered separate routes to granting an employee his or her desired day off, with seniority taking prece- dence over the company's exercise of its discretion." But Bell disagreed, saying that, if what the union argued was true, this would mean that every senior employee would demand to have the day off, even in the case that a junior employee requested time off for an important personal event that cannot be rescheduled. Moreover, the agreement only stipulates that seniority is applied "according to the requirements of the job." In this case, the job required Cowan to work. This latter point solidified ar- bitrator Gordon Luborsky's deci- sion to dismiss the grievance. By using the phrase "senior- ity shall apply according to the re- quirements of the job" in the col- lective agreement, the parties are similarly qualifying the employ- ee's right to specific job assign- ments by the requirement that he or she have the necessary skill set, security clearances and other unique characteristics associated with the job, he said. "The company is not obliged to assign that work to the employee on a strict seniority basis." As such, the grievance was dis- missed. Reference: Bell Technical Solutions and Unifor Local 43. Gordon F. Luborsky — arbitrator. Evan VanDyk for the employer, Micheil Russell for the union. Sept. 16, 2014. employees refuse new duties after cost-cutting UniFOR lOCAl 2000 filed a grievance against British Colum- bia's Nanaimo Daily News, a divi- sion of Postmedia Network, after it clawed back overtime pay. The employer, however, argued it had every right to do so because the overtime pay was incurred by employees' refusal to follow man- agement's direction. On April 29, 2014, the press- room night shift worked two hours overtime to meet the af- ternoon deadline for printing an electronics retailer's monthly flyer. Employees were paid the straight time hourly rate for the two hours. But that pay was subtracted from the employee's subsequent paycheck after management dis- covered the circumstances sur- rounding the overtime work. Recent cost-cutting initiatives had reduced the number of press- men assistants working each shift from two to one. Because press- men assistants are responsible for flying the press, this would have reduced the number of folders running on the printing press dur- ing production from two to one. Management decided pressmen would be responsible for flying the second folder. After being informed of this change, the pressmen decided they would not fill in to take the missing pressmen assistant's place, as flying the press was not part of a pressman's duties. When printing of the electron- ics retailer flyer was scheduled to begin on April 25 the press was run with only one folder manned by a pressman assistant. The job was not completed as a result, and additional print runs were re- quired on April 28 and April 29. When the employer was made aware of the overtime hours, man- agement concluded the initial run on April 25 had not used two fold- ers because there was only one pressmen assistant on shift and no pressman was willing to fly the press. The employer instructed the payroll department to correct this "clerical error" by deducting the overtime premium from the employee's subsequent pay. No discipline was awarded for the in- cident. On June 16 the employer ap- plied to the Labour Relations Board for an order, which the board issued on June 19. The board declared the pressmen's re- fusal to fly the press constituted an illegal strike and ordered them to follow the employer's direction with regards to production. Unifor Local 2000 filed a griev- ance on the employees' behalf, ar- guing they are entitled to be paid the overtime premium under the collective agreement. The employer has no right un- der the collective agreement to pay the premium and later claw it back. The union further argued the manner in which the opera- tional change was communicated to the pressmen contributed to the incident. The employer, however, ar- gued the pressmen's refusal to fly the press is what set in motion the chain of events that led to the overtime requirement on April 29. Their refusal to follow direc- tion was the direct cause of the overtime and employees should not profit from their collective failure to work now and grieve later. "Regardless of the attraction of seeking to achieve fairness by denying a benefit to those whose actions create their claim to en- titlement of the benefit, the facts of this situation are not compa- rable to a situation where there has been a concerted slowdown in production by all bargaining unit employees," said arbitrator James E. Dorsey. "The pressmen and press- men assistants who worked the overtime on April 29 are entitled under the collective agreement to the overtime premium for the hours they worked." The grievance was allowed and the employer ordered to repay the overtime premium pay it deduct- ed from the employees' pay. Reference: Nanaimo Daily News, a division of Postmedia Network Inc. and Unifor Local 2000. James E. Dorsey — arbitra- tor. Israel Chafetz or the employer, Stu Shields for the union. Aug. 19, 2014. < from pg. 1

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