FPSLREB Decisions

I. Group grievances referred to adjudication

1 The Public Service Alliance of Canada (“the bargaining agent”) filed three separate grievances with the Department of Employment and Social Development (“the employer”) on behalf of a group of eight employees (“the grievors”).

2 The grievances allege a violation of clause 28.04(a) of the collective agreement concluded between the Treasury Board and the bargaining agent on behalf of the Program and Administrative Services Group, having an expiry date of June 20, 2011 (“the collective agreement”). Each of the grievances refers to a separate period in November and December 2010 during which the violations are alleged to have occurred. Clause 28.04(a) provides as follows:

Subject to operational requirements, the Employer shall make every reasonable effort to avoid excessive overtime and to offer overtime work on an equitable basis among readily available qualified employees.

3 The corrective measures requested were that the employer compensate the grievors for the overtime that was allegedly denied them and that they be offered future overtime opportunities on an equitable basis.

II. Summary of the evidence

A. For the bargaining agent

4 The bargaining agent’s representative advised that as the evidence was common to all the grievances, one of the grievors, Ryan Applin, would testify on behalf of the group.

5 At the relevant time, Mr. Applin was working in the employer’s London, Ontario, office as a universal agent, classified PM-02, in the Appeals Centre of Excellence (ACE). Before his ACE position, Mr. Applin had worked as an employment insurance (EI) claims adjudicator; his duties included analyzing and assessing applications and entitlements. As stated in the applicable job description (Exhibit G-1), the position title of which is Benefits Officer, the duties of the claims adjudicators also included the following: “Prepares appeals submissions filed by clients. Advises clients on the procedure and format for the presentation of appeals.” Mr. Applin stated that his job description after his assignment to the ACE remained the same as when he was adjudicating claims, the primary difference being that, in the ACE, more resources were focused on preparing appeal files.

6 Mr. Applin testified that the ACE arose out of a 2008 workload management initiative by the employer by the creation of two virtual units, one of which was to centralize appeals in a more manageable organization. Mr. Applin referred to a widely distributed email dated January 9, 2008, from Dave Duncalfe, the Regional Insurance Manager (Exhibit G-2), informing employees of the new initiative and seeking expressions of interest from employees for assignment to the units. That email stated in part as follows:

…

Recently your Manager or Team Leader discussed with you two of the key business transformation initiatives underway in EI Benefits Processing in Ontario Region – (a) creation of a virtual unit for the preparation of Appeals to the Boards of Referees, and (b) creation of a virtual unit for the adjudication of level 2 Post Audit claims.

…

(a) The Appeals project is meant to address the problem of not having sufficient Agents dedicated to writing Appeals to the Board by centralizing the management of Appeals to the Board of Referees in Ontario Region and creating a virtual unit of dedicated Appeal writers who will report to the Manager of this centralized unit. This unit will continue to be part of EIBP – Ontario Region’s organization for the foreseeable future.

7 Mr. Applin said that as employees contemplating whether to submit an expression of interest had raised questions, management issued a document setting out certain questions and answers (Exhibit G-3). In that document, question 5 addressed overtime as follows:

5. For Agents who receive assignments either to the virtual Appeals unit or the virtual post audit unit, will they have the opportunity to work overtime on the regular claims processing work?

Answer – Yes; Agents who join either the Virtual Appeals unit or the virtual Post Audit will be included in the canvassing for regular I&R [intake and review] overtime during the high intake/high backlog periods of the year when overtime is being worked in the Region (provided of course that the Agents are qualified to do the work).

Mr. Applin stated that while working in the ACE, he remained in the same substantive position with the same PM-02 classification.

8 Mr. Applin described the general practice for approval of overtime. Employees would be canvassed by email from the employer whether they desired to work overtime for a specified period and were required to respond by a stated deadline. Interested employees would indicate the dates on which and the number of hours they wished to work. Mr. Applin’s understanding was that if the employer approved the overtime, it was approved for all employees who had submitted their names. If denied, it was denied for all. Mr. Applin stated that he had experienced many overtime canvasses, both before and while he worked in the ACE, and that the described practice remained the same. He further stated that while at the ACE, employees in that unit had been canvassed for overtime for “Level 2” processing, namely, processing by PM-02 staff.

9 Mr. Applin referred to an email dated October 27, 2010, canvassing Level 2 processing overtime for Level 2 processing staff only (Exhibit G-4) for the following dates: October 27, 28, 29 and 30. Mr. Applin was made aware of this email when it was forwarded to him by another employee on November 3, 2010. As employees in the ACE unit had not been included in the canvass, Mr. Applin initially thought it had been an oversight. He then referred to an earlier email, dated October 14, 2009, received from the team leader for PM-02 staff in London, which set out how overtime was to be organized (Exhibit G-5). This email, which included ACE staff, reads in part as follows:

…

I have had a few questions with regards to the availability of overtime for London when you are working in other areas. You must always first check with your new Unit to see if they are offering overtime for a week you are interested in working. If there is no overtime being offered on your new workload, then we can authorize you to work for London. You would need to advise me of your availability by signing up on the normal Overtime sheet located in the Business Centre. It is necessary for your hours to be included in our request for budget as always.

…

10 Another canvass for overtime was issued on October 29, 2010, for the weeks of October 31 to November 6 and November 7 to 13, 2010. This email was forwarded to Mr. Applin on November 3, 2010, by another employee (Exhibit G-6). He concluded that since the ACE staff had now been excluded from two overtime canvasses, it denoted a trend. This was confirmed in an email from the employer dated November 1, 2010, stating that overtime had been approved for the period of November 1 to 6, 2010 for those doing Level 2 work. Mr. Applin became aware of this on November 4, 2010 (Exhibit G-7).

11 On November 1, 2010, Mr. Applin emailed a manager in the ACE, inquiring about the possibility of ACE staff working overtime for Level 2 processing. The manager responded that Level 2 processing was being restricted to processing unit staff and that ACE staff would be informed should overtime be made available to them (Exhibit G-8).

12 Mr. Applin then referred to an email dated November 5, 2010, from a team leader in the ACE, canvassing ACE staff for Level 2 processing overtime work for November 8 and 9, 2010 (Exhibit G-9), at three hours per day. The email specified that the overtime work would exclude appeals. Mr. Applin stated that this email confirmed that ACE staff were qualified to do Level 2 processing work.

13 In cross-examination, it was put to Mr. Applin that the ACE staff perform initial adjudication work. He replied that they first reassess the adjudication file but that there is a clear delineation of the work.

14 Referred to question 5 on Exhibit G-3, Mr. Applin expressed the view that the reason the employer offered overtime was that a backlog existed. When it was suggested to him that the high intake period was from December to March, he stated that it was from October to November.

15 Mr. Applin agreed that employees doing EI processing did not do appeals work, stating that they were not qualified.

16 Mr. Applin was shown the overtime records of three ACE employees among the grievors, indicating they had worked little overtime (Exhibit E-1).

B. For the employer

17 Kathy Garvey, a public servant of 24 years, assumed managerial positions of increasing responsibility since joining the employer in 2003. In 2009, she was appointed Executive Director, EI processing, for the employer’s Ontario Region.

18 Ms. Garvey explained that two virtual units were created because the employer transferred the delivery of its services to a regional network. Furthermore, while all agents previously performed most of the work set out in the job description, the employer believed it would be beneficial to have personnel dedicated to specific tasks. Concerning appeals, instead of having an agent work on appeals only on occasion, a specialized unit would have agents who were current on the applicable jurisprudence and therefore were more efficient. Ms. Garvey confirmed that the two virtual units fell within the benefits officer job description (Exhibit G-1).

19 Concerning the email of questions and answers (Exhibit G-3), Ms. Garvey said it had likely been sent by Mr. Duncalfe. The reason for including the issue of overtime is that some Level 2 staff had indicated they would not move to the new virtual units unless they were afforded the opportunity to work overtime. At the time, agents were initially assigned to one of the virtual units for six-month periods, and overtime was offered at the two historical peak periods, namely, June to the first week of September and December 1 to March 31. If an employee indicated interest in joining a virtual unit in January, he or she would have been concerned about being denied overtime during the summer. When the assignments were extended for a further six months, the overtime was monitored by management.

20 Ms. Garvey stated that the size of the ACE fluctuated, beginning with about 55 staff, peaking at 94 in 2010 and then decreasing to 35 employees currently. With an increased workload in late 2009 and 2010, the ACE was given its own overtime as a unit, while previously, it could have been handled by the regional overtime processing network. If management decided to offer overtime to the ACE unit, it was offered to all ACE staff equitably. Ms. Garvey pointed out that the number of appeals was trending downward in preparation for the launch of the Social Security Tribunal. Accordingly, to decrease the backlog, overtime was offered to ACE staff to perform ACE work.

21 Concerning EI processing, Ms. Garvey said overtime was offered to all EI processing levels. Management found that if there was increased pressure in EI processing and no overload in the ACE, then ACE staff would be canvassed to work overtime in EI processing. Normally, employees would be canvassed one week in advance.

22 In terms of general workload, Ms. Garvey stated that decisions were made daily at the regional level, i.e., all of Ontario, and not by a local office. Overtime was a tool used on a regional basis if there was a budget available. If there was a backlog of work at the clerical level requiring overtime, clerical staff would be canvassed across the region. If a canvass yielded more staff than needed, the overtime hours accorded to each person were reduced. Canvasses were usually done on Monday or Tuesday, and decisions were made at the latest on Thursday, and maximum hours were then set. The overtime budget was not fixed but was always taken into account.

23 When shown Exhibit G-4, Ms. Garvey said it was unusual, as the canvass affected only one unit and was not representative of canvassing across the region. Since 2007, overtime has been on an Ontario region basis. At the time of this canvass, Ms. Garvey said that the processing unit for Level 2 was approximately 380 employees. Another unusual feature of this email was that it did not specify overtime hours. Moreover, the dates of October 24 to 27, 2010, were before the winter peak period. The small amount of budget available was for limited targeted overtime on Level 2 work and was limited to two or three weeks.

24 Ms. Garvey stated that Exhibit G-6 was unusual in that a canvass usually   specified the dates, normally between one and three days, the maximum number of hours available and the type of work to be done. Concerning Exhibit G-7, she said that the approved overtime of six hours per person suggested three hours per night for two nights per employee. Generally, if overtime was on a weeknight, the employees would be assigned specific work which might be different than that worked on during the day. If the overtime was to be worked on a Saturday, that might have meant a blitz on a certain type of work. Ms. Garvey stated that this canvass did not involve much overtime. It had not been opened to the ACE staff or to any other specialized units as since so little work was involved, less work would have been given to more people. If ACE staff worked overtime in processing, administrative work was required, as the team leader would have to manually provide the ACE staff with the work done by processing staff.

25 As for Exhibit G-5, Ms. Garvey said that it pertained to a single office in a network of 300 to 400 people. Most of the time, when overtime was offered to Level 2 processing staff, it was also offered to specialized units. Subsequently, management instituted a policy that if ACE staff were offered overtime, it was for ACE work. The ACE staff could not choose the type of overtime to work. This change in policy was at the heart of the employer’s actions in this case and provided the trigger for the present grievances. Emails for broad canvasses were sent regionally from Ms. Garvey’s office in order to manage the workload. Ms. Garvey referred to an overtime canvass email she sent on November 17, 2010, which stipulated that ACE staff interested in working overtime would work on the appeals workload (Exhibit E-2). The overtime to be worked was for two consecutive Saturdays, November 20 and 27, 2010, with a specified maximum of six hours per person.

26 Ms. Garvey also referred to an email dated December 6, 2010, which canvassed employees in specialized units, including the ACE, for overtime work for Level 2 processing on December 8, 9 and 10, 2010, with a maximum of three hours of overtime per employee for each of those dates (Exhibit E-3). As stated in the email, this canvass was in addition to an initial canvass for Level 1 and Level 2 staff in non-specialized units for which overtime had already been approved. Ms. Garvey stated that the initial canvass had not attracted much interest from employees.

27 Ms. Garvey pointed out that of 94 staff in the ACE at the time, only the 8 grievors who worked in the same office felt aggrieved. Management used the “one workload” concept and would move work if required. She stated that in the 5 years or 260 weeks of the ACE’s existence, this matter concerned only about 18 hours. She maintained that overtime was distributed equitably over a year, as management viewed overtime distribution over an entire fiscal year.  

28 When asked in cross-examination whether the January 2008 email seeking employees’ interest in assignment to a virtual unit (Exhibit G-2) was to seek volunteers, Ms. Garvey replied that she believed it was, as the email referred to expressions of interest. When asked whether subsequent to the canvass, some employees were involuntarily assigned to the ACE, Ms. Garvey did not recall and added that her understanding was that there was sufficient expression of interest to start up the ACE and that perhaps some employees with appeals experience were asked to work in the ACE for a period.

29 Ms. Garvey stated that overtime is driven by the type of work to be done. The grievors were qualified to do Level 2 processing work, as benefits officers can perform the tasks of their generic job description and would have received the standard training for the position. Ms. Garvey stated that seniority is not a factor considered for overtime work. All employees on strength are eligible to be canvassed for overtime. Productivity standards apply to overtime work, but results have no correlation to whom overtime is offered at a later date.

30 When asked whether an employee who has never volunteered for overtime is eligible for it, Ms. Garvey replied that all employees are canvassed in a new opportunity every time. When employees sign up for overtime work, management expects that they will treat it as a commitment to being available, although management anticipates that some employees will fail to report for work.

31 Dennis Carroll has been with the employer for 33 years and at the relevant time was Director, Processing and Payment Services Branch (PPSB), for southwestern Ontario. He said that the benefits officer work description (Exhibit G-1) covered all like positions in EI processing. Mr. Carroll stated that not all benefits officers perform all the work set out in the work description but that their work is based on operational needs, workload, skill sets and type of work assigned.

32 Mr. Carroll said that the work assigned to the grievors in the ACE is appeals work. They work on cases that have been adjudicated by benefits officers assigned to the primary processing function. If a decision were challenged, it would be reviewed by the ACE staff.

III. Summary of the arguments

A. For the bargaining agent

33 In referring to clause 28.04(a) of the collective agreement, the bargaining agent stated that it was not disputed that the grievors were qualified to perform the Level 2 processing overtime work. As to the issue of their availability, the bargaining agent pointed to the testimony of Ms. Garvey that every canvass for overtime work was a fresh offer.

34 The bargaining agent referred to question 5 of Exhibit G-3, which stated that ACE staff would be offered regular intake and review overtime work during high intake and high backlog periods. The bargaining agent argued that the limitation of overtime to high intake and high backlog periods were not qualifiers and were not a requirement of clause 28.04(a) of the collective agreement.

35 The bargaining agent further argued that the employer’s evidence that operational requirements precluded canvassing the ACE staff was a change in the employer’s practice. Mr. Applin had testified that he had worked regular processing overtime while working in the ACE before the employer’s sudden decision not to offer overtime to ACE staff. Once overtime is offered, it must be offered equitably. The bargaining agent stated that the employer did not provide any evidence that it would be disadvantaged by assigning overtime work to the ACE employees.

36 In support of its arguments, the bargaining agent cited the following decisions: Bretzel v. Treasury Board (Employment and Immigration), PSSRB File Nos. 166-02-10385 to 10387 (19820218); Conrad v. Treasury Board (Environment Canada), PSSRB File No. 166-02-13056 (19821223); Johnston v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-17488 to 17490 (19880930); Lagacé v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-02-28007 (19990222); Bunyan et al. v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 85, at para 88; Foote v. Treasury Board (Department of Public Works and Government Services), 2009 PSLRB 142, at para 29; Weeks v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 132, at para 56; and Casper v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 27.

B. For the employer

37 The employer stated that the burden of proof was on the bargaining agent to demonstrate that overtime was not offered to the grievors on an equitable basis. It pointed out that concerning two of the grievances, overtime was offered to ACE staff during the specified periods, namely, November 28 to December 4 and December 5 to 11, 2010.

38 As concerns the management of overtime, the employer submitted that it was managed and funded on a daily and weekly basis, with decisions being made based on anticipated workload and budget, taking into account peak periods in the EI system.

39 The employer addressed the history of the ACE, stating that it had been created in 2008 on a voluntary assignment basis. The employer stated that while question 5 of Exhibit G-3 was its initial commitment, the work of the ACE had evolved since its creation. While ACE staff were sometimes offered Level 2 processing work and sometimes ACE work, by 2010 the ACE staff had its own overtime work based on the ACE workload. The employer stated that there was a significant amount of overtime work available to the grievors.

40 The employer pointed out that the bargaining agent did not present evidence of the amount of overtime offered by management over a defined period. The employer queried how equitability could be assessed over a short period, arguing that whether the grievors received their fair share of overtime work could be viewed only over the period of a year.

41 The employer referred to the peak periods of June 1 to September 1 and December 1 to March 31, stating that there was no evidence that the grievances concerned overtime work done during high intake periods. According to the employer, the evidence showed that the grievors were receiving overtime work, except during specific periods. The employer added that employees are not entitled to work overtime shifts.

42 Concerning operational requirements, the employer stated that the evidence was that very little overtime hours were being offered and that as stated by Ms. Garvey, it was counter productive to offer limited overtime to a large number of employees. For the employer, this was a legitimate operational consideration.

43 The employer submitted that in conformity with clause 28.04(a) of the collective agreement, the evidence demonstrated that it had made reasonable efforts to offer overtime on an equitable basis. It emphasized that the requirement for overtime was continuously monitored on a daily and weekly basis and offered through canvasses seeking expressions of interest from employees on a unit basis. The employer agreed that there was no dispute that the grievors were qualified.

44 The employer argued that the proper corrective measures in a case of a violation of a collective agreement should be limited to a declaration that the collective agreement was violated.

45 In support of its arguments, the employer cited the following decision: Attorney General of Canada v. Bucholtz et al., 2011 FC 1259.

IV. Reasons

46 The grievances allege that the employer failed to offer overtime equitably, pursuant to clause 28.04(a) of the collective agreement, which reads as follows:

Subject to operational requirements, the Employer shall make every reasonable effort to avoid excessive overtime and to offer overtime work on an equitable basis among readily available qualified employees.

47 The particular issue with respect to the above clause is the employer’s failure to include the grievors in its call for expressions of interest to perform overtime on specific occasions, rather than the employer having offered the overtime to employees with fewer hours of overtime than the grievors. Thus, the issue in this grievance is one of eligibility under the provisions of the collective agreement, rather than the issue of inequitable distribution.

48 The collective agreement provides that overtime must be equitably distributed amongst “readily available qualified employees”. There is no dispute concerning the grievors’ qualifications, as the employer agreed that they were qualified to perform the overtime work offered, which included Level 2 processing. Furthermore, as indicated by the emails dated November 5, 2010 (Exhibit G-9), and December 6, 2010 (Exhibit E-3), the employer had applied its commitment as stated in G-3 to offer overtime opportunities for Level 2 processing work to ACE staff, but had done so inconsistently. Moreover, Ms. Garvey testified that both the Level 2 processing and ACE employees had the same job description.

49 Concerning employees’ availability to work overtime, the employer’s practice was to seek volunteers for overtime work through its canvasses. As Ms. Garvey testified, all employees on strength were eligible to be canvassed for overtime work, and each canvass constituted a fresh opportunity to work overtime. By signing up to work overtime, an employee demonstrated that he or she was “readily available.” Once management approved the overtime, those employees who had expressed interest during the canvass were assigned overtime work, with the overtime hours offered in any given canvass being apportioned equally among the employees who had indicated their willingness to work the overtime. However, as the grievors were excluded by the employer from certain canvasses for Level 2 processing overtime work although they were qualified, they were precluded from indicating their availability for such work. Their interest in and availability for work could only therefore be indicated by them in the manner in which it was – by filing a grievance. I note that the employer did not adduce any evidence to the effect that the grievors were not readily available or had not really intended to work the overtime had it been offered.

50 The employer also never adduced evidence that convinced me that operational requirements prevented it from offering the overtime to the grievors. Expressions of interest were generally canvassed well in advance of the overtime opportunity and no issues or arguments were raised that would call into question the ability of the employer to offer the overtime to the grievors as a result of operational requirements. Concerning operational requirements, the employer referred to Ms. Garvey’s testimony that it would be counterproductive to offer limited overtime to a large number of employees. Thus, if ACE staff were included in canvassing for Level 2 processing overtime work, there would be fewer hours available to all those who indicated their availability.

51 This argument presumes that the employer must offer overtime to each and every employee who indicates their willingness to work the overtime offered, dividing the amount of overtime available by the number of those interested. I have found no support in the collective agreement or jurisprudence for this approach. Indeed, the jurisprudence indicates to me that typically, the employer in such cases offers the available overtime to the number of employees required to do the work available. In this case, the employer has pointed to its particular practice of equally distributing available overtime hours as a reason for excluding the grievors from the overtime list, which it is not entitled to do. The documentary evidence and the testimony of Ms. Garvey demonstrate that canvasses for overtime work should specify the dates the overtime is to be worked and the maximum number of hours available per employee. If canvassed employees do not think there are sufficient overtime hours available or find the dates inconvenient, they do not have to indicate their availability. As an example, Ms. Garvey testified that the canvass of December 6, 2010, addressed to employees in specialized units for Level 2 processing work, was issued because an initial canvass, addressed to Level 1 and 2 staff in non-specialized units for the same work, had not attracted sufficient interest. Ms. Garvey also testified that even among employees who had confirmed their availability during a canvass, management anticipated that some of them would not report for overtime work on the specified dates. 

52 The employer submitted that whether the grievors received their fair share of overtime could be only assessed over the period of a year. Yet, in the same breath, it also submitted that each overtime opportunity was a fresh opportunity. The longstanding jurisprudence of this Board and its predecessor indicates that indeed, overtime distribution must be calculated over time, and that generally speaking, the period of a year is the period over which such distribution should be measured. However, this case is not about an inequitable allocation of overtime. As previously mentioned, the employer’s procedure was that approved overtime hours were allocated equally among canvassed employees who had indicated their availability. Rather, the inequitableness in this matter resides in the fact that the employer denied the grievors the opportunity to work overtime by excluding them from certain canvasses for Level 2 processing overtime work. In the circumstances of this case, I consider that the failure of the employer to offer overtime work on an equitable basis constituted a violation of clause 28.04(a) of the collective agreement, as the employer failed to offer overtime to employees who were readily available and qualified, without operational requirements to justify its refusal or failure.

53 The evidence demonstrated that, on several occasions, the employer restricted Level 2 processing work to employees who normally performed such work. This is similar to the circumstances in Bretzel, Conrad and Johnston.In Bretzel, the adjudicator determined that in order to do so, the collective agreement would have to state that overtime was to be allocated among “… readily available qualified employees who are normally assigned work that necessitates the overtime …,” and rejected such an approach as a construction that the collective agreement would not bear. This determination was subsequently applied in Conrad and Johnston.

54 The employer, in its defence, also pointed to the fact that the grievors did have the opportunity to perform overtime as such opportunities were available and restricted to ACE employees. However, the fact that employees have overtime opportunities available to them within their particular work unit does not, under the terms of the collective agreement, disentitle them to other overtime opportunities on that basis alone.  In such cases, the awarding of overtime would be done in accordance with the principles of equitability, meaning that overtime should be offered to those who have the least amount of such accumulated hours, regardless of how or where they were accumulated.

55 The employer referred to question 5 in Exhibit G-3, which restricts overtime work by employees in specialized units such as the ACE to high intake/high backlog periods of the year and submitted that there was no evidence that the grievances concerned overtime work during such periods. Ms. Garvey stated that the peak periods were December 1 to March 31 and June 1 to September 1. This argument is not persuasive. Regardless of the content of the email, no such restriction is found in the language of clause 28.04(a) of the collective agreement. Moreover, in the email dated November 5, 2010, employees in the ACE unit were canvassed for Level 2 processing work.

56 Having found that the employer violated the collective agreement, I turn now to the appropriate remedy. The longstanding jurisprudence of this Board and of its predecessor in such matters indicates that normally, grievors are entitled to be compensated in kind rather than offered the next overtime opportunity. As for the employer’s request that I issue a declaration only, I find that such a remedy would not place the grievors in the position that they would have been in had the employer not violated the collective agreement.  However, in this case, the debate centered on the issue of whether or not the grievors should have been excluded from the offer of overtime and not on whether or not the hours that the grievors had acquired meant that the employer had been justified in offering it to others.

57 I find, therefore, that while the grievors are entitled to a declaration of violation, given the evidence before me, it would be most consistent with the terms of the collective agreement to require the parties to attempt to agree on the remedy to be accorded to them, based on my decision and their records. The grievors were entitled to be included in the offer of overtime and should have been offered the overtime opportunities in question unless the hours they had acquired at that time indicated that such an offer would violate the equitable distribution requirement of the collective agreement.  For all of the above reasons, I make the following order:

V. Order

59 The grievances are allowed and I declare that the employer violated clause 28.04(a) of the collective agreement. I leave it to the parties to determine whether the overtime hours should have been offered to the grievors and if so, the number of hours of overtime that the employer must pay the grievors, together with any other applicable compensation or benefits.

60 I will remain seized of the grievances for a period of 90 days should the parties require assistance in determining the number of hours of overtime to be compensated or with any other issue that arises from implementing this decision.

February 4, 2014.

Steven B. Katkin,
adjudicator