HomeMy WebLinkAbout1992-3350.Henderson et al.94-06-27EMPLOY& DE LA COURONNE
CROWN EMPLOYEES DEL’ONTARIO
GRIEVANCE CgMMlsSlON DE
mm.BOARD
SETTLEMENT
DE-$GRlEFS ., ‘... I.’ ‘.. ’
REGLEMENT
:
180 DUNDAS STREET WEST, SUITE 2100, TOPONTO, ONTARTO. M5G 128 TEL~PHONE/TEL~PHONE: (4 161 326- 1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO j. [O&TAR/O,. MSG 128 FACSIMILE/TE’LkOPIE :
i
(4 16) X6- 1396
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December 14, 1994
M E M 0 RA,N D U M
RE: 3350/92, 3351/92, 3354/92, 2519/93 OLBEU (Henderson et-al)
and The 'Crown in Right of Ontario -(Liquor Control Board of
Ontario):
The above-noted decision was released.by the Board on June 27,
1994. Please be advised that a Notice of Application for Judicial i
Review dated December 6, 1994 has been filed,by Mr. D. Brown of
the Ministry of the Attorney General. ,
i
.Yourstruly,
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JS/ch
Encl.
ONTARIO EMPLOY& DE LA COURONNE
CROWN EMPLOYEES DEL’ONTARIO
GRIEVANCE COMMliSlON DE
SETTLEMENT RkGLEMENT
BOARD DES GRIEFS
780 DUNDAS STREET WEST, SUfTE 2100, TOROpTO, ONTARIO. M5G II8 TELEPH~NE/TEL.+H~NE: (4 76~ 326- 7388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 128 FACSlMlLE/Tt’L~COPlE : (4 161 326- 1396
3350/92,3351/92,3354/92,2519/93
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES CGLLECTIVE BARGAINING ACT
Before
\ THE GRIEVANCE SETTLEMENT'BOARD,,
BETWEEN OLBEU (Heuderson et al) Grievor.
- and - I
BEFORE:
The Crown in Right of,Ontario
(Liquor Control Board of Ontario)
1
Employer
W. Kaplan Vice-Chairperson
M. Lyons 'Member
D. Montrose Member
FOR THE,,
GRIEVOR
,S. Philpott
Counsel
Koskie & Minsky . .
Barristers & Solicitors
7
FOR THE
EMPLOYER
D. Mombourquette , Counsel Liquor Control.Board of Ontario
HEARING September 13, 1991
August 24, 1992
Introduction.
This case concerns the alleged vio&ion of Article 3 1.1 (a) 6f the Collective
. Agreement which provides: “Hours of work shall be posted at least one (1)
full week in advance for each ,establishment and there shall be. no split
shifts.” The Board was initially seized with the individual grievances of
Jeff Henderson, Ron Giesbrecht and Doug Thompson dated December 14,
1992. On January 31, 1994, the Union filed a policy grievance alleging a
violation of Article 3.1 .l (a), and it, along with a. number 6f other grievances,
all of which allege a violation of this provision, were consolidated in the
interests of expediency, .and in ‘order to conserve resources, with the
instant case.
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In brief, the different -grievances take issue with the employer’s scheduling
practices at the London and Durham Warehouses. For its part, the union
alleges that the employer has failed to comply with Article 31 .l (a) of the
Collective Agreement in the scheduling of casual employees. The employer ”
1 takes the position that there has been no breach. ~
The Union’s Case
Evidence of Jeff Henderson .’ -\ .
Mr. Henderson testified. He is a casual employee assigned to the London
Ware’house, one of a number of such facilities located around the province.
Mr. Henderson is second on the casual seniority list. He told ‘the Board that
Mr. Thompson was first and Mr. Giesbrecht was third; According to Mr.
Henderson, casual ‘employees usually work between April and December. In ’
general, casual employees are scheduled on the same list as pe.rmanent
employees, and the 1992 list was, in fact, introduced into evidence. This
list indicates that Messrs. Thompson, Henderson and Giesbrecht were first
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scheduled to work beginning on Monday, March 16, 1992. He testified that
he. was advised that he. had been ,scheduled the previous Thursday or Friday.
Be’tween March 16, 1992 and the middle of May 1992, Mr. Henderson’s name r
was penciled on to the list after it was posted. He testified that he did not
receive one week’s notice of his schedule during this -period. Beginning with
the schedule for the week ending May 15, 1992; Mr. Henderson’s name, and
that of Mr. Thompson,-appeared on the typed list which was posted one week
in advance. For whatever it is worth, Mr. Giesbrecht’s name appeared on
the typed list which was posted several weeks later. Over the course of the ’
summer other casual employees were asked to report to work. At first,
’ their names would be penciled in; later some of their names were typed on
the posted list. i i I
Mr. Henderson testified that he was properly scheduled until the middle of I r
December 1992. His name appears for the last time on the typed part of the -
list for the week ending December 11, 1992. Towards the end of that week;
he ,was approached by Mr. Bob Stafford, the General Foreperson. Mr. Stafford /
asked Mr. Henderson to come into work the following week. As it turned
out, Mr. Henderson and Mr. Giesbrecht each worke.d on December 14, 1992. ’
Mr. Thompson worked that entire week. On December 14, 1992, Messrs.
Henderson, Thompson. and Giesbrecht filed grievances alleging the violation
of Article 31 ,l (a). ’
Mr. Henderson described his experiences in, 1993, which ‘were essentially
similar to those of the previous year. He testified that in 1993 he was
properly scheduled to work until approximately one week before Christmas.
On the Thursday of his last scheduled week, he was approached by a member I
,
of management and asked whether he wished to work the following week.
He was not told how many days he would be assigned. if he accepted the
$offer. Because of the short notjce, Mr. Henderson could not arrange day care
and so could not work on the following Monday. He was, however, ableto
work on the Tuesday, and that was the only day that he worked that week.
In 1994, Mr. Henderson was called back. to work in January.’ He was not,
however, schedu1e.d. Instead, he was, offered work on a day-to-day basis,
and this work was generally’ offered several days in advance. On at least
one occasion; Mr. Henderson could not accept an offered shift because of a
previously arranged appointment. He testified that this would not have
occurred had he been scheduled one week in advance. Mr. Henderson was
scheduled in this manner for the first six weeks of 1994; after that, his
. name appeared on the typed schedule which was posted one. week .in advance.
According to Mr. Henderson, he was entitled to refuse work when it was
offered on short notice. He pointed out, however,, that he would do so at
-some peril given that ‘a refusal to accept work might affect his entitlement
to Unemployment Insurance. ,
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Cross-Examination of Mr. Henderson .
In cross-examination, Mr. Henderson testified that it was his position that
the Collective Agreement required that every hour of work be scheduled one
week in advance, and that if it was not so scheduled the overtime
provisions came into effect. Mr. Henderson agreed that he had made his
concerns about the scheduling known to management as early as 1991. Mr.
Henderson also agreed that by March 1992 he was aware that the LCBO had a
different view with respect to its obligations under the Collective ;
Agreement. He did not file a grievance at that time because he was of the
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view ‘that a previously .filed grievance on this same subject remained
outstanding.
Evidence of Doua Thompson
Mr. Thompson testified. He is also employed at the London Warehouse. Mr.
. Thompson’s evidence did not depart any in any material respect from that of
Mr. Henderson. In 1991, Mr. Thompson filed a grievance with respect to the
employer’s staffing practices. In the aftermath of filing this grievance, Mr.
/ Thompson had a conversation with ‘his supervisor, Mr. Stafford. According
to Mr.. Thompson, Mr. Stafford stated that he could not p’redict staffing
needs in advance, and,that he would do what he could to notify casual
employees of staffing requirements. Mr. Thompson testified that
scheduling improved following this conversation, and so he, thought that the
matter had been resolved. When Mr. Thompson realized that his concerns
ha-d not been resolved he filed one of the instant grievances. -
Cross-Examination of Mr. Thompson
!n cross-examination, Mr. Thompson testi.fied that he could not recall when
in 1991 he filed -his initia! grievance. He ‘agreed ‘that when he. returned, to
work in’ February and March ‘I 992 he was not initially given one week’s
notice, and also agreed that he did not file a .grievance until December. 1992.
He testified that while he may not have acted early in 1992, at the end of /_ 1
the year he realized that the problem had still not been addressed, and so he
took steps so as to ensure that it would be dealt with.
Evidence of Jean Chavkowskv.
Ms. Chaykowsky testified. She is the union’s Grievance Officer, and has held
that position for twelve years. She testified that she was not aware of any
grievances filed-in 1991 by either Mr. Henderson o’r Mr. Thompson.
I Cross-Examination of Ms. Chavkowsky
In cross-examination, Ms. Chaykowsky testified that while it was pos$ble
that another unionofficer would have knowledge of Mr. Henderson’s’ and Mr.
Thompson’s 1991 grievances, she was of the understanding that both of
those matters had- not gone beyond the complaint .stage. Ms. Chaykowsky
testified that according to her interpretation of the Collective Agreement,
the employer cannot call casual employees in for work ,without seven days
notice unless some emergency condition. is said to exist. Such an
emergency situation- would,. in her view, include the necessity of replacing a
classified employee who called in sick. It would, not, however, include
dealing with fluctuations in workload as, in her view, they can- be
anticipated and- scheduled. x
The Employer’s Case
Evidence of, Bob Stafford. . i
Mr. Stafford testified. He is the. General Foreperson at the London
Warehouse, and has held that position for approximately twelve years. He
began, his career with the LCBO twenty-two years ago as a casual employee.
Among his duties,. Mr. Stafford is responsible for coordinating work .,
schedules. Mr. ‘Stafford told the Board that the use’ of casual employees at
the London Warehouse varies. Typically they unload imported containers,
assemble product for shipment and assist with housekeeping functions.
Casuals are also employed for a variety of other reasons including replacing
classified employees who are away on vacation or off receiving
compensation.- They are also used if the system breaks down or because of
seasonal business. -.
;/
Mr. Stafford reviewed the London Warehouse 1992 schedule which was
earlier introduced into evidence. Mr. Stafford told the Board that the
schedule is posted each Monday for the week beginning the following
Monday. The names of all scheduled employees, both classified and casual,
are typed, while the names of casual employees called in with less than one
week’s notice are penciled in. The schedule for the week ending December
18, 1992 indicates that Messrs. Henderson, Thompson and Giesbrecht, were
not initially scheduled to work that week. As it turned out, ~Mr. Thompson
worked the full week, and Messrs. Henderson and Giesbrecht each worked
one day. .Mr. Stafford thought that Messrs. Thompson, Henderson and
Giesbrecht were probably asked to work at the end of the previous week.
According to Mr. Stafford, a need arose for casual employees, and this in ,
turn, led him to offer the work to Messrs. Thompson, Henderson and
Giesbrecht. Mr. Stafford described how product arrives at the London i
Warehouse, and the degree of notice that the Warehouse receives in respect,
of its arrival. To make a long story short, on some occasions, the
Warehouse would receive notification that a container of product was to
arrive on a specific day one or two days hence. Afterthe schedule of the
week ending December 1’8th. was posted, Mr; Stafford received notice that a
shipment of wine would be arriving, and this led him to call in the casual,
employees. Sometimes notification arrives that a product is to arrive on a
specific day but. does not, in fact, arrive as scheduled.~ The Warehouse also
receives orders for stock to be shipped to the stores. These orders arrive
on one day and are filled and sent.out on the next. The number and timing of
these orders varies.
Mr. Stafford told the Board that the current practices with respect to the
scheduling of casual employees have been followed for as long as he coujd
recall. He is of the view that if it was decided that the Warehouse had to
’ provide casual employees with one week’s notice, such a decision would
create significant operational difficulties including .late storage and
demurrage costs. He testified that he attempts to give-casual employees as
much notice as possible, and stated that as soon as he is made aware of the
need for additional employees he informs the employees of that need.
Cross-Examination of Mr. Stafford
In cross-examination, Mr. ‘Stafford agreed that if an employee’s name was -
penciled on to the schedule, that meant that he or she had not received one
week’s ‘notice of the work. He testified that he can predict how many ’
casuals are required during the summer when classified staff take i
vacations. Mr. Stafford can also schedule replacement cas<uals for .
classified employees away receiving Workers’ Compensation. While Mr. i
Stafford is aware that most employees are ,absent on sick leave -for 7-8
days a year, he cannot predict when this will take place and account for it
in his scheduling.
Mr. Stafford was asked’ a number of questions about the LCBO’s computer
ordering system. There is a computer system reporting store orders,
however, Mr. Stafford testified that sometimes those orders change.
Moreover, he indicated that the information about store orders is only
provided to him several days in advance. For example, he might find out
what a store had ordered on a Tuesday for pick-up the following Friday. On
other occasions, the individual stores are late in submitting their orders.
If the Warehouse was required to give seven days notice to casua!
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employees, Mr. Stafford testified that this requirement would likely result
‘! in late deliveries as well as the demurrage costs he earlier referred to.
Very simply, if he ‘is not able call in some casuals on short notice to deal
with unexpected events, the work will not get done. j
.Evidence of- V. Arauio
Mr. Araujo testified. He is the Acting Manager of the Receiving Department
‘of the Durha,m Warehouse. He has held that position for approximately
eighteen months. Mr:’ Araujo joined the LCBO eighteen years ago as a casual
employee and served for a number of years as a shop steward. Mr. Araujo
‘(, told the Board that casual staff are employed in two capacities at the i
Durham Warehouse: They unload product from trucks to be sent to the
Warehouse, and they load productfrom the Warehouse on to paliets to be
sent to the stores. Occasionally, casual employees will be’ used in the
manual assembly of product.. \
Mr. Araujo testified. that the use of casual employees depends on a number
of factors including the season, the arrival of containers from overseas, .the
number of employees on sick leave, the number of employees receiving
Workers’ Compensation, system problems and the holiday schedules of
classified employees. Up to fifty casual e.mployees have been used at one
time..
Portions of the 1993 and 1994 Durham Warehouse work schedule were
introduced into evidence. By and large the entire. year’s schedule is known
to ,classified employees at the beginning of the year. This schedule changes,
however, as a result of the factors just referred to. Mr. Araujo testified
that whenever he knows that a casual employee will be required, he notifies
that employee in. advance. Many times, however, he does not know, such as
when a container unexpectedly arrives and arrangements must be made to c
.unload it immediately. According to Mr. Araujo, he only receives
approximately twenty-four hours notice of a container’s arrival.
In the period January-March 1994, a number of casual employees at the
Durham Warehouse were called in on a daily basis. -Introduced into evidence
were several letters sent to these employees, the salient portion of which
reads: “henceforth work available will be assigned on a day to day basis.
! You shall be informed- before the completion of your shift if you are i
required to report for work the following day.“. Mr. Araujo ‘testified that he
could not give casual employees greater notice of the need for their
services in the period January 11994 through March 1994 because of
circumstances beyond his control. He told the Board that because of
weather conditions in the Atlantic Ocean, a number of container ships were
stranded making it difficult to predict casual employee complement. The
implications for scheduling were obvious. --.
Mr. Araujo also testified with respect to the notice he receives regarding
store orders. A number of documents were introduced into evidence, To
make another long story short, these documents establish that the Durham
Warehouse often receives less thaln one, week’s notice with respect to store
orders. Moreover, there is often a daily fluctuation with respect to the \,
number of cases to be shipped. One day the Durham Warehouse might be
required to ship 24,000 cases; another day half that amount. Some days, up
to thirty-five containers will arrive at the Warehouse; other days no
containers will appear. Mr. Araujo told the Board that if he was not able to *
call in casual employees on short notice a backlog might develop and
shipping and demurrage costs might be incurred.- In addition, a failure to
fill store orders might result ,in the retail outlets running out of product. If
the Warehouse had Io schedule casual’ employees one week in advance, it
might, if there was no real work to be performed, end up having to pay
‘. ,, them, or find other jobs for them to do such as, sweeping. Mr. Araujo 4
testified that in his ten years at the Durham Warehouse, casual employees
have always been scheduled in this manner, and that it has always been
understood that they might be offered work at the last minute.
Cross-Examination of Mr. Arauio -.
Mr. Araujo was asked a number of questions in cross-examination about. the
notice the Durham Warehouse receives with respect to container arrival and
store orders. While store orders should be constant, they are often /
unpredictable. Mr. Araujo was also asked why the casual employees were.
limited to two basic functions at the Durham Warehouse, and he testified
that these were the entry level functions. While some. classified employees I
are, for example, assigned to receive containers, if a vacancy arises ,
elsewhere in the Warehouse, those employees will .move up to that vacancy
creating an employment opportunity for a casual employee. Mr. Araujo
testified, that order processing’ was a priority. While it was true that
demurrage and other costs arose at the receiving end, costs could .also arise,
at the shippingi end. Moreover, in his view, it was easier to catch-up on
receiving -than on order processing. %\
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The evidence having been completed, the matter turned to argument. r
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Union Argument i
Union counsel began her submissions with the observation that the ’
Collective Agreement provides casual employees with very limited rights,
and the limitations on these rights are made clear when the provisions
applicable to causal staff are compared.with those relating to full-time
employees. One right, however, that the Collective Agreement does give to
causal employees is set out in Article 3 1.1 (a), and counsel argued that this
provision required the employer to schedule casual employees at least, one
week in advance. In the union’s submission, provisions of this kind are
negotiated in order to provide casual employees with some ability to
~ manage their affairs by giving them at least one week’s notice of scheduled
work. Counsel’argued that there was absolutely no doubt, on the. facts of the
instant case, that this provision had been breached.
Having established a breach, counsel turned to the matter of, remedy. In her -
view, the only remedy which made any sense was a. declaration of breach \
followed by an order requiring the employer to pay casual employees
overtime rates for all hours worked when an employee was scheduled ,less i
than seven days in advance. In the union‘s view, this remedy was consistent
with Article 31 .l (a) as the parties had, in that provision, agreed that no
employee should be, scheduled .less than one week in advance. ‘Accordingly, a
breach of that provision should result in a penalty to.. the employer. ,Put
another way, the employer should be given an incentive- to comply .with the
Collective Agreement, and the incentive in this case would be avoiding
having to pay overtime rates.
In support of this submission, counsel referred to.-Brown and Beattv for the
general proposition that arbitrators have held that employers may not
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unilaterally change ,scheduled hours without attracting a premium rate ’
consequence. Counsel also referred to two reported awards in further
support of her position: Re Printina Specialities & Paper Products Union,
Local 466 and lnterchem Canada Ltd. 21. L.A.C. 46 (Weatherill) and &
Newfoundland Farm Products Corp. Ltd. and Newfoundland Association of
Public Employees 4 L.A.C (4th) 343 (Easton).
In the Printinq Specialities case the Collective Agreement referred to
“normal hours of work” and “regular work week.” The employer unilaterally, ,
albeit for sound business reasons, changed the work schedule, and the, board
found that there were”consequences for doing so: “If, therefore, the work
now being scheduled on a regular basis .outside the hours ‘provided in’ the
agreement .is proper at all, it is proper only on the basis that such work is
overtime work, and must be paid for at’ overtime rates” (at 48). The
Collective Agreement at issue in that case provided for overtime. for all
hours ‘worked in excess of the “normal work day.” In the union’s view, the
principles .in the Printinq Specialities award could be extended to the
circumstances in the instant case.
Somewhat similarly, union counsel c,ounsel argued that the Newfoundland
Farm. Products award was also applicable. In that case?’ a group of
employees engaged in a wildcat strike on a regularly scheduled working day. i
To make up for the lost day, the employer scheduled those employees for
work on a week-end, and the employees were a,dvised,that they were to
work their regular hours for their regular rate. Employees were further
‘advised that the employer would consider any failure to attend as
insubordination and that disciplinary action would .be taken in the result.
The employees reported for work, but a grievance was filed alleging that s
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the overtime provisions of the Collective Agreement- had been breached.
After consjdering the positions of the parties, the arbitrator held that
notwithstanding his sympathy for the predicament faced by manage,ment,
the employer was required to abide by the terms of the Collective
Agreement. Accordingly, .overtime was awarded for the week-end work. In
the instant case, counsel argued that an award of overtime was the only
way in which to- ensure that the Collective Agreement did not continue to ‘be ’
breached.
In conclusion, therefore, union counsel asked that the Board issue a
declaration of violation and further order the! employer to discontinue
scheduling casual employees contrary to the requirements of Article
31.1(a)., In addition, counsel asked for an order directing the employer to
compensate the grievors, at overtime rates, for all hours worked for which
the grievors had not been given the requisite one week’s notice and to
further require the employer to credit the grievors with seniority for any
hours offered which could not be worked as a result of the employer’s
‘failure to comply with’ the Collective Agreement. Counsel asked the ‘Board
to remain seized with respect to the matter of remedy and the
implementation of any .award.
Employer Argument
Employer counsel began his submissions by observing that there were a
number of questions raised by this case, each of which had to be answered
in turn. The first question to be addressed was whether Article 31 .l (a)
required the employer to post casual hours seven days in’ advance.
Assuming this question was answered in the affirmative, the second
question’ to be considered was whether that” provision violated Section 18
of the Crown Emolovees Collective Barqaininq Act.’ If the Board concluded ,-
that the there was no statutory violation, it would only then be called upon
to consider whether’the provision had been breached, and to ,determine the
proper remedy for that breach.
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Turning to the evidence, employer counsel noted that there was absolutely
no evidence of any bad faith on the part of management in either the London ’
or Durham Warehouses in the scheduling of casual employees. The evidence
established that casual employees were given one week’s notice whenever
possible, and th’e only time they were given less than one week’s notice was
when some unexpected contingency arose requiring the immediate need for
casual labour. Counsel further noted that these scheduling practices were
long established.
Turning to the particular questions earlier identified, counsel argued that
Article 31 .l (a) only required the employer to schedule those hours. it could
reasonably anticipate seven days in advance. Work which could not beg
reasonably anticipated need not, counsel suggested, be scheduled one week, ,
in advance. In the .employer’s view, this is the only interpretation of, the A,’ /’
Collective Agreement which made any sense given that the provision at
: ‘.issue related to casual employees, and given that’ the whole, purpose of
casual labour was to ensure a readily available casual labour ‘workforce to
provide casual labour requirements and, in that way, allow the employer to
avoid overtime.
In support of these submissions, employer counsel made a number of
observations about possible conflicts in Article 31 considered generally,
not to mention a May 1, 1989 memorandum of agreement entered into by the
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parties with respect to the scheduling of certain employees working in
retail stores. The thrust of these submi’ssions was to the effect that there _.
was nothing, in Article 3,l .l (a) precluding the employer from offering casual
employees unscheduled hours less than one week- in advance. Put another
way, the employer was only required to give seven days notice of “scheduled
hours.” Hours which were not “scheduled” could; counsel argued, be offered
to employees with less than one week’s notice. In response to a question
from the Board, employer counsel argued that the purpose of the provision
would not be gutted by an interpretation of this kind because’the employer
_-
would still be required to schedule casual hours one week in advance
whenever those hours could be anticipated. Counsel also pointed out that _/
the employer’s interpretation was consistent with the long-established
past practice of the parties.
Assuming that the Board found that the employer was required by Article
31 .l (a) to schedule casual hours at least seven days in advance, employer
counsel argued{ that this provision should not be given effect because it was
contrary to section 18 of the Crown Employees Collective ,Baraainina Act
which reserved to management exclusive jurisdiction over work methods
and procedures. As Article 3 1 .l (a) was contrary to that provision it was in
breach of the statute and could not, therefore, be given effect. . ’
Finally, assuming’ that this second argument did not prevail and assuming :
further that-the Board found that the Collective Agreement had been (
breached, counsel argued that it was beyond our jurisdiction to,grant that ,
part of the remedy requested by the union which would effectively add an
overtime ‘provision to the Collective Agreement. Employer counsel pointed
out that the ,Board did not have the jurisdiction to alter, modify or amend
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the Collective Agreement, and suggested that ordering the payment of ‘\,
overtime for unscheduled hours worked would have exactly that effect. In
counsel’s submission,, the cases relied upon by the union could be
distinguished on their particular facts, ,as well as the’.highly specific
Collective Agreement language found in each of them. It was noteworthy
that in both cases specific overtime provisions were at issue. In the instant
case, the. union was attempting to convince the Board to read one in. In the
employer% view, the most that the Board could do in this case was issue a
dec!aration of. breach. r
In conclusion, counsel asked that the grievances be dismissed, but that, in
the alternative, that the Board issue a declaration of breach.land remain
seized with. respect to the determination of damages should the parties
prove unable to agree.
Union Reply
In reply, union .counsel argued that Article 3 1 .‘I (a) was not in conflict Smith
statute,, and pointed out that a work schedule was not a work method or I
procedure, but was instead an issue whkh was commonly the subject of
bargaining between Management Board and the OLBEU. Counsel also pointed.
out .that the Board regularly takes jurisdiction in cases-of this kind.
In counsel’s further submission, there was little practical point in relying
on the May 1, 1989 memorandum of agreement as that document was
specifically limited to the retail stores. Its applicability to the instant
. case was, accordingly, questionable to say the least. I’ \
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Finally, counsel argued that there was no evidence. before the Board
indicating that the employer could’ not change some of its operational
realities in order to comply with Article 31.1 (a). If supplies were not
delivered on time, the employer had, counsel suggested, the wherewithal to
change suppliers. If retail stores were not sending their orders in on time, /
this too, counsel submitted could be corrected. The, point was that the
employer could not unilaterally ignore a provision of the Collectrve
Agreement. Ithad done so in the instant case, and on this basis; and for the 1
reasons given earlier, counsel urged that the various grievances be upheld.
jl Decision t .I
\ Having carefully considered the evidence and arguments of, the parties, we
have come to ,the conclusion that these grievances should, be allowed. We
should note at the outset that we are not convinced that the result of this
award will .serve the onigoing needs of either party, and certainly, as tunion
! counsel conceded in her submissions in response to a question from the
Board, it is far from evident that our award in’ this matter will result in an
increase in work for casuals employed at LCBO warehouses. If anything, the
opposite might result.
These observations aside, we are left with little choice but to find, on the \
facts of this matter, that Article 31 ..l (a) of the Collective Agreement has
been breached. That provision clearly requires the employer to post hours
of work for casual employees one week in advance. The May 1, 1989
memorandum of, agreement contextualizes this provision, but does so only
for employees of the retail stores. Casual Warehouse employees are not
covered by this memorandum, and given that Article 31 .l (a) is absolutely
clear as to what it requires, we can only find on the facts of this matter
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In reaching this result ‘we have considered employer counsel’s argument,
that Article 31.1 (a) 4s in conflict with the Crown Employees Collective
Baraainina Act. and should not, therefore, be given effect. With :respect, we
cannot agree with this submission. It is true enough that Section 18 of the
Act reserves certain matters to the exclusive jurisdiction of management.
It is also true that section 7 of the Act entitles the union, upon recognition,
to bargain with the employer with respect to, among other things, hours of
work. Clearly, the parties were entitled to negotiate Article 31.1(a), and
we are required to give that provision effect
r .;
19 i ( .
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that it has been breached. __
In making this finding we wish to emphasize that there is absolutely no
evidence whatsoever that the employer made anything but good faith
efforts to schedule casual Warehouse .employees in compliance with this
provision whenever poss/ble. The evidence establishes that casual
employees were only, asked to work with less than one week’s notice as a.
result of truly unforeseen contingencies and events. The evidence further
establishes, as Mr. Henderson testified, that an employee could refuse work .’
on short notice, although he or she would .do so at some ‘risk given that ‘it’
might jeopardize subsequent entitlement to Unemployment Insurance. Given
that the language of the provision is clear, we do not find that the evidence
of past practice, is useful in the making of a determination in this case.
What matters is that the grievors’ and their union took issue with the
employer’s interpretation of the provision and filed a grievance with
respect to iti Despite our misgivings about the outcome of- this award, we ’
can only find that the Collective Agreement has been breached and we issue
a declaration to that effect.
..-
While we find that Article 31 .l (a) of the Collective Agreement has ,been
breached, we ca.nnot and do not find that the appropriate remedy for that
breach is an order requiring ‘the employer to pay overtime for all hours
worked in contravention of that provision. In our view, such an order would
constitute a violation of Article 27.10(a) of the Collective Agreement
which prohibits the Board from altering, amending or modifying any part of
the Collective Agreement. Had the parties wished to provide for the
payment .of overtime for a breach of this provision it was well within their”
power to do so by negotiating a provision in the Collective Agreement., It is
not within our power to impose this remedy, even if we’ were ‘so inclined. In _.
reaching this result we have carefully reviewed’the authorities relied on by
the union. Those cases can, be distinguished from the instant case. At the
very least,. in both of those cases, the parties had negotiated’set schedules
and had also provided for the payment of overtime. Neither factor is
present in the instant case. All that Article 3 1,. 1 (a) requires is that the
hours of casuals be posted at least seven days in advance. /
Accordingly, and for the foregoing. reasons, we find that Article 31 .l (a) has
been breached, and we issue a declaration to that effect as well as an order
requiring the employer to cease and desist. As agreed upon by the parties,
we remain seized with respect to the matter of remedy should the parties
prove unable to agree. _
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PATED at Toronto this ZTthday’Of June,
l<Y ;
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William’ Kadan
c ,:-
1994.
Vice-6hairbrecn
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D. Montrose
Me Nmber
.