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HomeMy WebLinkAbout1998-0329.Group Grievance.00-04-03 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 329/98 OLBEU # OLB306A-I IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees Union (Group Grievance, Hamilton et al) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Daniel A. HarrisVice Chair FOR THE Ursula Boylan GRIEVORCounsel Koskie & Minsky Barristers & Solicitors FOR THEMicheal McFadden EMPLOYERCounsel Ogilvy Renault Barristers & Solicitors HEARINGMarch 20, 2000 2 This is a group grievance regarding the allocation of overtime at the Durham Warehouse. The employer, The Liquor Control Board of Ontario, says that it is not arbitrable because it is out of time, given the eighteen-month delay in dealing with the grievance after stage 2. The union, the Ontario Liquor Board Employees' Union, says that there is no prejudice to the employer in extending the time for advancing the grievance to the third step of the grievance procedure and hearing it on the merits. To expedite matters, the parties made their submissions on the timeliness issue at the close of the case. In my view this is not a situation where the time limits ought to be extended. Accordingly, only the evidence relating to the issue of timeliness is reproduced below: THE FACTS: On Friday, October 4, 1996 Dan Anderson and others worked the day shift. In Mr. Anderson’s view it was clear that there was such a backlog in shipping that employees would certainly be required to work overtime on Saturday October 5, 1996 in order to load the trucks for shipment the following Monday. However, when his shift ended no one was asked to work overtime the next day. 3 At that time there was no permanent manager assigned to the afternoon shift. Accordingly, the day shift managers were assigned to the afternoon shift in rotation. That day it was the shipping manager, Harry Piwerka, who was assigned to the afternoon shift.Mr. Piwerka did not have any specific recollection of the day in question or the events leading up to the grievance. However, he said that if his usual practices were followed on that day, he would have arrived at work between 3:15 and 3:45 p.m. He would have gone to the office to check his mail and then gone to warehouse security to obtain the list of employees who were scheduled but absent for the shift. In turn, he would then meet with the order- processing manager to review the workload for the evening shift and touch base with the receiving department. He would also have his regular duties to attend to as shipping manager. He said that by the time he would have determined that overtime was required on Saturday October 5, 1996, the day shift would certainly have left the warehouse. He believed that he would not have made such a decision prior to 6:00 p.m. He said he asked the employees on the night shift if they would be willing to work overtime the next day. To allocate the overtime he asked the employees in order of seniority, and using the overtime book, started with the employee next in line to be asked. He did not telephone any of the employees who had just finished the dayshift. 4 Many on the day shift felt that they ought to have been contacted by telephone. Accordingly, the instant grievance was filed on October 22, 1996 at stage 2. Mr. Piwerka’s reply is dated November 13, 1996 and reads as follows: After reviewing all the information available to me regarding this grievance, I have concluded that we are not in violation of Article 6.6 (b) of the Collective Agreement. As I explained to you during the first stage hearing, due to call ins for absenteeism I did not have the staff to complete the loading for the next day and it was too late to begin soliciting from the dayshift personnel. Therefore I had no choice other than soliciting the PM shift for the Saturday October 5, 1996 Overtime. Based on these facts, your grievance is denied. Article 27 of the collective agreement sets out the grievance procedure. Under that procedure the union had five days following Mr. Piwerka’s reply to lodge the grievance at step 3. At that time, Fred Kemp was the designated union official responsible for filing stage 3 grievances. Seemingly, he was in a car accident in 1996, which resulted in his being absent from the workplace from August 12, 1996 to January 1997. He did not resume his union responsibilities until February or March 1997. No one was assigned to carry out his union duties while he was absent. Accordingly, this grievance did not get submitted at stage 3. The Board was told that the grievance “resurfaced” in May 1998 and was referred to the Board for arbitration on May 28, 1996. The employer raised its timeliness objection in correspondence dated June 24, 1998. 5 The union submitted that this is an appropriate case for the Board to exercise its discretion under s.48 (16) of the Labour Relations Act (1995), S.O. 1995, c.l, Sch. A. to extend the time for the filing of the grievance at stage 3. Section 48 (16) reads as follows. Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. R.S.O. 1990, c. L.2, s. 45 (6). The Union acknowledged that it had made a mistake in not filing the grievance at stage 3, but submitted that the filing of the grievance at stage 2 put the employer on sufficient notice of the dispute to prevent any prejudice from the subsequent delay. Further, it was submitted that the grievors were blameless, yet would be the ones to suffer if the time limits were not extended. Finally, since the grievance involved the interpretation of the collective agreement, it said that it was important to get a determination on the merits. The employer submitted that the time limits set out in Aritcle 27 are mandatory and the employer is properly entitled to assume the grievance is abandoned when the time for filing at stage 3 expires. The employer also 6 submitted that the filing of the grievance at stage 2 was not sufficient to prevent the natural prejudice that arises when the matter is abandoned for almost 19 months. REASONS FOR DECISION: The guidelines set out in Re Becker Milk Company Ltd. And Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217 regarding the exercise of discretion to extend a time limit has been adopted by the Grievance Settlement Board: OLBEU (Aleong) and Liquor Control Board of Ontario, GSB#1319/96 (unreported, 97-03-10, Gray) Re Becker Milk posits three considerations in determining that there are reasonable grounds for the extension of a time limit, being the reason for the delay, the length of the delay and the nature of the grievance. In addition, the statute requires that there be no substantial prejudice to the opposite party. In this case, although Mr. Kemp could not file the stage 3 grievance before February 1997, there is no reason advanced as to why the union did not file the stage 3 in that time period or otherwise deal with the grievance until it was 7 unilaterally referred to the Board on May 28, 1998. The union’s delay in dealing with the grievance is unexplained. The delay for which relief is sought is over eighteen months in length. In OLBEU (Gamble) and LCBO, GSB# 1635/96, (unreported, 98-09-01, Gray) an extension of time to file a discharge grievance was not granted in the face of a 24 month delay. So too was a 16 ½ month delay found to be too long in OLBEU (Wicken) and LCBO GSB#2216/97 (unreported, 98-06-12, Knopf), another discharge grievance. The delay in this case is similarly very long. In Aleong, supra, vice-chair Gray extended the time for filing a discharge grievance notwithstanding a four-month delay. There he relied heavily on the fact that it was a discharge case. Here we are not dealing with a discharge or like matter that cries out for equitable relief. This matter involves a claim for an overtime shift worked more than three years ago. The nature of this grievance does not overcome the lack of explanation for an extremely lengthy delay. In my view there are no reasonable grounds for the extension of time requested. Finally, there is obvious prejudice to the employer, although I do not need to determine whether or not it is substantial. Mr. Piwerka cannot be faulted for his inability to remember details of the events in question. His reasonable inability to remember the details of the evening of October 4, 1996 leaves the employer in 8 the untenable position of relying on his general behaviour in such circumstances. That is real prejudice to the employer. DECISION: The grievance is inarbitrable because of the delay in advancing it through the grievance procedure and there are no reasonable grounds for extending any time limit in the grievance procedure. Dated at Toronto this 3rd day of April, 2000. Daniel A. Harris, Vice Chair.