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HomeMy WebLinkAbout1999-1684.Policy Grievance.04-09-14 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 1999-1684 UNION# OLB455/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Policy Grievance) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Rhonda H. Shirreff Heenan Blaikie LLP Barristers and Solicitors HEARING July 22 & 23, 2004. 2 Decision I was seized with three related grievances Re Sousa 2003-0119; Re Theodoropolous et al, 2003-2070; and Re Hackett et al, 2002- 2833. The parties agreed to obtain a ruling from the Board on the appropriate interpretation of the relevant provisions of the collective agreement through the instant policy grievance before proceeding with those grievances. The instant grievance was argued on the basis of the following Agreed Statement of Facts and Issues, supplemented by the vivo voce evidence of Mr. Fred Kemp called by the union. I. FACTS AGREED UPON In connection with the above-noted arbitration, the parties agree on the following facts. The parties agree that they may call additional evidence which does not contradict these facts. The parties also reserve their respective positions with respect to the relevance of these facts: Canvassing for volunteers to Work Overtime 1. Because the Christmas and Boxing Day holidays fell on a weekend in 1999, Monday December 27th and Tuesday, December 28th were not normally working days for the Operations employees at the LCBO’s Durham warehouse facility (“Durham”). Any work on either of these days would be considered overtime for the purposes of Article 6.1(a)(ii). 2. On November 29, 1999 Mr. Bill Hicks, then Director at Durham, issued a memorandum to all staff stating that there was a 3 possibility of overtime on December 27th and 28th (“Memorandum A”). 3. Memorandum A requested that employees indicate their interest in working overtime on December 27th and 28th by signing a posted list (“Sign Up List”) before 3:00 p.m. on Thursday, December 2nd. 4. Prior to this instance, Durham management canvassed FT employees’ interest in working overtime by approaching each FT employee in the overtime rotation one-by- one to determine whether he or she wanted to volunteer to work on a designated date. The LCBO had never previously used a sign up sheet for the purpose of canvassing. 5. The Sign Up List was posted on November 29th and remained posted until December 7th. During this period of time, it was signed by numerous full-time (“FT”) and casual employees (Casuals”), who indicated an interest in working overtime on December 27th and/or 28th. One FT employee, Ms. Mary-Lou Shepperdson put her name on the Sign Up List but did not check off either date. Instead, she wrote the statement, “Please ask me when you know for sure”. 4 Confirming Overtime 6. On December 8, 1999, Mr. Bruce Pizzolato, then General Manager Operations at Durham, issued a memorandum to all staff confirming that all FT employees who signed up for possible overtime on December 27th and/or 28th would be scheduled to work on these days (“Memorandum B”). Memorandum B also stated that Casuals who signed up would not be required to work overtime. 7. All FT employees who volunteered to work overtime on the Sign Up List were scheduled to work on December 27th and/or 28th as per their requests. Ms. Shepperdson was also scheduled to work overtime on both December 27th and 28th. 8. Mr. Randy Merrill, who signed up to work on December 28th, but was not subsequently scheduled to work overtime on that day, was a Casual employee at all material times. Overtime Canvassing Guidelines 9. From July 16, 1999 to January 3, 2004, guidelines in respect of overtime canvassing were in effect at Durham (“1999 Overtime Guidelines”). 5 10. Effective January 4, 2004, revised overtime canvassing guidelines (2000 Overtime Guidelines”) came into effect at Durham. The Grievance 11. On December 7, 1999 the Union filed a third stage policy grievance (“Policy Grievance”) alleging that the LCBO’s actions violated Article 6.6(a) and any other applicable articles in the collective agreement and the 1999 Overtime Guidelines. 12. The LCBO responded to the Policy Grievance in a letter to the union dated February 28, 2000 (“LCBO Response”), denying any violation of the collective agreement. II. ISSUES IN DISPUTE The parties state that the following legal issues are in dispute and remain to be resolved: 1. Did the manner in which the LCBO canvassed FT employees at Durham for overtime on December 27 and 28, 1999 violate Article 6.6 or any other provision of the collective agreement? 2. Were the 1999 Overtime Guidelines part of the collective agreement? 6 3. If Question 2 is answered in the affirmative, did the manner in which the LCBO canvassed FT employees at Durham for overtime on December 27 and 28, 1999 violate the 1999 overtime Guidelines? 4. Even if Question 2 is answered in the negative, was the LCBO estopped from using a sign up sheet to canvass the FT rotation for volunteers to work overtime on December 27 and 28, 1999? Items 2 and 3 of the agreed issues in dispute are now moot since the union conceded at the hearing that Overtime Guidelines were not part of the collective agreement. Nevertheless, the union continued to rely on the guidelines as an aid to interpretation on the grounds that the collective agreement was ambiguous, and in support of its estoppel argument. The dispute centres around article 6.6(b) of the collective agreement which reads: Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee. 7 The union’s primary position is that the manner of offering overtime on December 27 and 28, 1999 by the employer, i.e. the use of sign-up sheets, contravened article 6.6(b). In the alternative, the union submits that the phrase “shall first be offered to full-time employees on a rotational basis” is ambiguous. Counsel relied on evidence of the employer’s long standing practice with regard to the manner of offering overtime. The union also relied on the Overtime Guidelines as written confirmation of the employer’s past practice. In the further alternative, the union submitted that as a result of the employer’s consistent past practice, confirmed by the Overtime Guidelines, the employer was estopped from changing the way it offered overtime pursuant to article 6.6(b). The employer in essence submitted that none of the positions put forward by the union had any merit. Was the sign-up procedure a violation of article 6.6(b) This dispute is restricted to the Operations Dept. (NO. 967) of the Durham facility. The evidence is that each department at Durham has its own Overtime Guidelines. The sign- up procedure for the overtime being challenged by the union was announced by the following memorandum, dated November 29, 1999 to all staff: 8 Re: December 27 & 28, 1999 - Possible Overtime Based on present volumes and the anticipated Store buildup of inventory in December for the Y2K contingency plan, we have been requested by Retail to be available to service their needs on Monday, December 27 and Tuesday, December 28. As such, I would like to know who would be interested in working overtime on these two days, being paid at double time. There will be a form posted on the cork board situated besides the glass enclosed notice board indicating the positions we would need to fill and anyone who would like to work overtime on these two dates are requested to sign up before 3:00 p.m. on Thursday, December 2nd. Please bear in mind that we will only select the number of employees required from each department for each day from the “Sign Up List” as noted on the sign up sheet. The entitlement to overtime and selection of employees for each day will be subject to the overtime rotation rules and guidelines that apply to each department. We will confirm this request for overtime by Monday, December 6th and would remind employees who sign up that it will be imperative that they work on these days to ensure we can provide the services requested by our retail customers. Thank for your co-operation. 9 The sign-up sheets posted pursuant to the memorandum was titled “Possible overtime Required”. It contained the following columns. NAME; Dept; Monday Dec. 27/99 Indicate Y(yes); and Tuesday Dec. 28/99 Indicate Y(yes). The actual sheets filled in were in evidence. They show that the vast majority of employees who signed up, affixed a “y” or “yes” or a check mark under both days to indicate their interest in working on both days. Nine employees indicated that they were willing to work only one of the days. They either wrote a “x”, or the word “no”, or left the other day blank. One simply wrote a note: “Please ask me when you know for sure. Thanks”. It is also in evidence that even though the sign-up closed on December 2nd, two full-time employees were allowed to sign up late - on December 6th and 7th and they worked on both days. Mr. Kemp was a union Zone Representative at the time. He testified that he read the sign up sheet as requiring that employees work on both days if they were to get any overtime at all. In other words, there was no option to work only one of the two days. He also was concerned that the sheets indicated a “yes” option but not a “no” option. This, together with the reference to “these two days” in the memorandum led him to believe that the employer was not giving employees an option to work just one of the two days. Based on this evidence, the union submitted that the employer was in contravention of the 10 collective agreement, because it requires the employer to offer each “day” of overtime in accordance with article 6.6(b). [See, article 6.1(a)]. The union further argued that the collective agreement mandated that the employer offer overtime on a rotational basis “where there is a requirement for overtime to be worked”. Here what was offered was not required overtime, but only possible overtime. It was submitted that an offer of “possible” overtime was not an offer of required overtime and therefore a contravention. Thirdly, the union submits that article 6.6(b) states “shall be offered” by the employer. The employer must therefore first offer the overtime, and the employee then decides whether he is interested or not. Through the sign-up process the employer did it in reverse. The employees were thus expected to take the initiative to ask for the overtime, before the employer made any offer. This was not consistent with the language in article 6.6(b). Fourthly, the union submits that an offer of overtime “on a rotational basis” envisages a sequential offer of overtime going down the full-time rotation and then the casual rotation. It is submitted that the sign-up sheets offered the overtime 11 simultaneously to all full-time and casual employees. That, according to the union, was not an offer on a “rotational basis”. Fifthly, on the same theme, the union argues that article 6.6(b) requires that overtime be offered in sequence, first to full-time employees, secondly to permanent employees, and finally to casuals. The employer in effect offered the overtime to all three groups of employees at the same time. The evidence is that the overtime on December 27 and 28, 1999 was unique in two ways. First, the need for overtime on these two days was identified by the employer approximately one month in advance. Mr. Kemp testified that he was not aware of any other prior occasion where the employer had more than two days of notice of the need for overtime. Secondly, the amount of overtime required on these two days was extremely large. The evidence is that due to these unique circumstances of this particular overtime, the employer determined that a departure from the normal practice by resorting to a sign up process would be beneficial to both its interests as well as that of the employees. The parties referred me to many decisions dealing with collective agreement language requiring that overtime be 12 distributed “as equitably as possible” or similar language. Those are not helpful here because these parties have not used such vague language. They have stipulated in mandatory language (“shall”) that overtime is to be offered on a rotational basis, first to full-time employees. If sufficient full-time employees do not volunteer, and only then, the overtime may be offered to the other groups of employees. There is nothing ambiguous about what the parties meant by “rotational basis” either. I recognize that these were unique circumstances. The employer’s good intentions are not in doubt when it decided that in this particular case a sign-up procedure would benefit both the employer and the employees. However, that does not permit an arbitrator to sanction a departure from the obligations under the collective agreement. The employer must still be in compliance. In Re Prestolite Co:, (197) Vol. 22 L.A.C. 145 (Hinnegan) the agreement provided as follows: ... In case of overtime work, it shall be worked by employees with the highest seniority in the department where such overt-time work is performed provided they are able to do the work. Any exceptions to the above must be agreed upon between the Company and Executive Shop Committee. At p. 147, the Board held: This clause clearly is mandatory using the words “shall” and “must”. Any exception to the highest 13 seniority employee working the overtime has been expressly provided for in unambiguous terms. Exception to the rule must be “agreed upon between the Company and Executive Shop Committee.” The parties, when agreeing upon this clause, did not add “unless the Company can show that it acted reasonably under the circumstances in acting without such agreement” and it is not the function of an arbitrator to add it now. Where, as in the present case, the parties to the collective agreement have provided a clause which expressly covers the situation, an arbitrator may not abridge it or amend it, or add to it in order to avoid a seemingly harsh decision in a difficult fact situation, or to provide the necessary flexibility to take into account an unusual fact situation which may not have been contemplated by the parties when the clause was drafted, but nevertheless is clearly within the express language as written. An arbitrator’s function is to interpret and apply the collective agreement existing between the parties, not make a new one for them. Here, regardless of how prudently or reasonably the foreman acted under the extenuating circumstances in which he found himself, the exception to the rule that overtime shall be worked by employees with the highest seniority in the department where such overtime work is performed was not agreed upon between the company and executive shop committee. Accordingly, the company was clearly in breach of 14 the express terms of art. 77 of the collective agreement. I agree with the foregoing reasoning. Therefore, the issue for me is not whether the sign-up process was prudent or reasonable in the particular circumstances faced by the employer. I do not have the luxury of such equitable jurisdiction. I must still determine whether or not the process used by the employer met the requirements of article 6.6(b). While the drafting of the memorandum of November 29, 1999 and the sign-up sheets certainly could have been clearer, I do not agree that a reasonable reading of the same suggests a “both days or nothing” option. If that was the case it would not make sense to have separate columns for each of the days, requiring employees to indicate their interest separately for each day. The fact that some nine employees signed up for only one day and did in fact work only that day confirms that. According to article 6.6(b) the offer on a rotational basis shall be made “where there is a requirement for overtime to be worked”. Thus what must be offered is required overtime. The “Re-Line” on the employer’s memorandum dated November 29, 1999 stated “December 27 and 28, 1999 - Possible overtime”. The sign-up sheets are titled “Possible Overtime Required”. The 15 union submits that the offer was not of definite or required overtime, but only of a possibility of overtime. The employer contends that the use of the word “possible” in the documents is misleading because it was “possible” overtime, only in the sense that employees signing up had no guarantee that they will get the overtime. Counsel submitted that the offer was of definite and required overtime. The language mandating that the offer be made “when there is a requirement for overtime to be worked”, I find is deliberate and is of significance. When accepting an offer of a particular overtime opportunity, the employee has to make a commitment. He has to decide whether he will sacrifice his personal plans, in order to work and obtain a financial benefit. The choice for him is clear and definite. When an employee accepts only a possibility of overtime his life is uncertain. He cannot make definite personal plans in case the overtime becomes confirmed later. In the facts before me, I find that at the time employees signed up they could not have known whether the overtime would ever materialize. One employee clearly expressed that when she wrote on the sign-up sheet “Please ask me when you know for sure. Thanks”. Any doubt that what was offered during the sign-up process was only a possibility of overtime, is removed by the employer’s memorandum dated December 8, 1999 issued after the posting period had closed. In contrast to the previous memorandum which referred to “possible overtime” in the “Re-line”, this “Re-line” read 16 December 27 and 28 1999 - Overtime confirmed”. The memorandum begins with the sentence “It has now been confirmed we will be working overtime on December 27 and 28, 1999.” This clearly shows that the requirement of overtime was confirmed only after it has been offered and accepted by the employees. This is not consistent with the language of article 6.6(b). I also find that the employees were put in a position that they had to first say “yes” to a mere possibility of overtime. If they did not do that they were not considered for overtime. This is not consistent with the requirement that the employer shall offer the overtime on a rotational basis, i.e. offer to the next full-time employee highest ranked on the rotational list. Higher ranked employees would thus be overlooked only because they did not say “yes” to a tentative offer. Under the language of article 6.6(b) an employee at the top of the full time rotation list can expect to be offered overtime without any action or initiative on his part. The sign up process, in contrast places certain obligations on that employee. He must be vigilant enough to pay attention to the notice on the Board. He is required to commit to working, at a time when it is still uncertain whether the work will materialize. Only if he does all that will he be offered overtime. This is not consistent with his rights under article 6.6(b). 17 Similarly, article 6.6(b) explicitly envisages that part- time and casual employees will be offered overtime, only where sufficient full-time employees do not volunteer (meaning “accept”) the overtime first offered to them. This language is inconsistent with a simultaneous offer of the overtime for all groups of employees. While the overtime was in fact actually assigned to full-time employees before the other groups, that does not satisfy article 6.6(b) since it envisages that the offer of overtime be made in a particular order of priority. For the foregoing reasons I find that the sign-up process utilized by the employer was contrary to article 6.6(b) and I so declare. In so doing, I recognize that all of the full-time employees who signed-up got exactly what they signed-up for. None of the casuals were utilized. However, this is a policy grievance, in which the union is grieving not the result, but the manner in which the overtime was offered. On the evidence I find that the manner in which the particular overtime was offered did not meet the requirements of article 6.6(b). Given the foregoing, it is unnecessary to rule upon the alternate submissions of the union. 18 I remain seized of the grievances listed at the commencement of this decision, in the event the parties wish to proceed with the same. Dated this 14th day of September, 2004 at Toronto, Ontario Nimal V. Dissanayake vice-Chairperson