A New Brunswick arbitrator has rejected a claim by Unifor that management at a forest products company were manipulating timesheets to minimize the amount of overtime paid to workers.
Unifor filed a grievance against Arbec Forest Products on Nov. 3, 2020, over the alleged manipulation. The company rejected the grievance. It said when the timesheets in question were submitted, it corrected them to reflect the proper shift coverage.
A second grievance was filed on July 13, 2021 — also related to timesheet manipulation. This time, Unifor said a “company representative altered the griever’s timesheet to only pay overtime after accumulating 42 hours a week.”
The union acknowledged the company has the right to change schedules, but that did not supersede the worker’s right to be paid overtime for hours that exceed their normal shift.
“Since the griever is normally scheduled on the day shift and began that week working on day shift, any hours worked that week in excess of 8.5 hours per day (in accordance with Articles 10.3 and 11.1) must be paid as overtime,” it said.
Arbec rejected the position as well.
Background
Arbec operates a mill in Miramichi, M.B. where it makes oriented strand board panels. The mill runs seven days a week, 24 hours per day.
The normal schedule for shift workers is two 12-hour shifts per day, followed by two 12-hour night shifts, followed by four days off. Hours are from 7 p.m. to 7 a.m. and 7 a.m. to 7 p.m.
Both the grievances in this case arose from situations where day shift electricians and/or industrial mechanics were assigned to replace absent shift electricians or shift industrial mechanics.
Arbec’s practice is to ensure each of the four rotating shifts operate with one electrician and two industrial mechanics. That means when an electrician or mechanic is absent, whether planned or unplanned, it had to replace them with another qualified employee.
The collective agreement states that, when an employee’s schedule is changed and the company can’t provide 48 hours’ notice, the first shift on the new schedule will be overtime. It also states that the normal schedule for day workers is a 42.5 hour straight time week consisting of five 8.5 hour days.
Both the grievances in this case arose from situations where day shift electricians and/or industrial mechanics were assigned to replace absent electricians and mechanics.
Analysis
The issues in these grievances was whether a day worker, assigned to relieve an employee on a rotating shift, should be paid overtime for hours worked in excess of the hours they would have worked on the day shift.
“In other words, should the employee be paid overtime for the three and one-half (3.5) hours worked in excess of the eight and one-half (8.5) hours that he was scheduled to work on the ‘day shift?'” the arbitrator said.
The arbitrator concluded the employer’s position was the correct one in this case. It pointed to the agreed statement of fact noting that when a “day worker” is assigned to relieve an employee on a “rotating shift,” this is considered to be a shift change.
“Since it is a ‘shift change,’ then the ‘rotating shift’ becomes this employee’s ‘normal schedule of work,'” the arbitrator said. “Therefore, there is no obligation on the Employer to pay overtime for the three and one-half (3.5) extra hours that this employee is required to work beyond what he would he have worked had he remained on the “day shift” schedule, unless, of course, the employee has not received the (48-hour) notice.”
The arbitrator was not “unsympathetic” to the union’s argument that the day workers were accommodating the employer’s operational requirements through temporary shift change. It also understood Unifor’s argument regarding the employee’s expectation that “he should be receiving some benefits if he accepts to replace an absent ‘shift employee.'”
But that’s not what the collective agreement states, it said.
“If the Union believes that this interpretation is unfair to its members, the matter will have to be addressed at the negotiation table,” it said.
The union’s grievances were denied.
For more information, see Unifor, Local 181 v Arbec Forest Products Inc., 2023 CanLII 12592 (NB LA).
