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HomeMy WebLinkAbout1993-1359.Kruczaj.96-03-25: ‘. ~ ‘, . ,I /. A- ‘43 -. ONTARIO . CROWN EMPLPYEES GRIEVANCES SETLEME’NT BOARD .. _ .: _’ ,,. ..-. ‘\. ,-. . : EMPiOYftS DE L+ COURONNE DE L’ONTARIO . :’ I COhiiMl~SlON DE 1 ‘: -‘I REGLEMENT _’ . . DES GRIEFS ‘. : .’ ” I .. ‘. : . . . “_ 780 DUNDASSTREET WEST SUITE 2700, TORONTO. ON, M5d.iZ8 _ ‘, ’ . 180, RUE DUNDAS OUES’I; BUREAU 2100,. TORONTO. (ON) M5G 128 TELEPHO+ElTriLkPtiONE : (&) 321% 138s : FAC~lMlLNT~LLiCOPIE : _ (416) 32th 1396 . ‘. I ..‘. .GS-B #' 135,9/93. - .” : _’ P OLBlk-# '6LBli3/92, I .~IN.THE.MA*TER OF Ali ARBITRATION ,' ; / , -. :, -Under- . : ., _' ._ _ THE.dROWN EMPLOYEEiCOLLEChVE bARGAININ+! ACT- -' ..:. -' -Before _ . < -' '-'- TEE GRIEVANCE -SETTLEMENT-'BOARD ,. '. BETWEEN ', : . . . .: .' bLBEU '(Krucz~j) ,' . Griivor, _- -, _.-_ ._ .'i. and -.-: 1. : . . "'C 1 , .~. .-.iu, . '. :. . . _:. The Crpwn in Right of Ontario : :, . ..+' . . .'I :. (Liquor.Control Board of Ontario) .. Employer. .. -. .' .- BEFORE: F. BriSgsy ;. J. .Ckrruthers:. .. Vic&Chairperson ,,:.. Member. + __ M. Oi?oole i * '. Member . . . .- . :' ., / FOR THE J. koble .: .' "- : GRIEVOR- .' Counsel. ': : -.- ._ ,. Ontarip-L&@or Bodrds-Employees' Union" ,' '. * .: . .I FOR TEE '_ D.. Momborqquette ' _. .; _. EMPLOYER' Counsel _- .._-. ' i '. Liquor..Co&kol Board bf Ontario,' : :,' .: i. : :- ,. 1 . . . ,. 'February ‘3, 1995 ; HEARING May 29, 1935 : June 1, 1995 July 31,. 1995 t / .I‘ The grievor, Mr. Crest Kruczaj, is a casual’clerk in store number 528 for the Liquor Control Board. He grieves that he was being harassed for ,exercising his rights under the Collective Agreement. The harassment took the form of other employees with less seniority being * scheduled to work. He asks that he be scheduled to work the hours that he is available and that he be compensated for all hours lost due to the violation of the Collective Agreement. . . The LCBO has three types of employees, full time, permanent part time and casual . - .: - employees. ~Casual, employees do not have core hours of work. However, the hours are relatively consistent and are posted on a schedule one week in advance; The grievor, like other casual employees, works both on the cash registers and at stocking the- shelves with product. .’ : According to the Employer, in early 1993, it was decided to introduce anew shift in Store ;;. :. 528 which:.$ould be -more cost efficient. ‘The grievor was offered the newly established. shifts and he did not accept the work. Accordingly, the shifts were then given to employees ‘: 1 -.: with less seniority. Prior to that time, there was a shift which began at 2:00 p.m. and -’ continued until 9:00 p.m. The newly established shift beganat 12:00 noon continuing until 8:00 p;m. It was the position of the Employer that it has the right to determine the hours of work and that right is not generally fettered and is specifically not rest&ted by the availability of any casual’ worker. Indeed, it was asserted that the Board- is without jurisdiction to. determine the.hours of any shift at any store. It was further arguedthat the Employer did not discriminate against the grievor for any reason including for his having. _ exercised rights under the Collective Agreement. . Itwas the position of the Union that Articles 2.1 and 37.1 of the Collective Agreement were violated. Those state as follows: :: 2.1(a) The Employers and the Union- agree that there will bk no -intimidaation, Won, interference, restraint or coercion exercised or practised by either of ’ . l- ( -i : ‘. ,. . . -. .: ~ . . -_ _’ _ . . ._. , --. . . -. : i _. ,. ( :. -.. -. .-& : .,. . . : :‘. : . . . .‘.‘- “I : ,) :’ ‘_ ..- “, :. \* . . : - *- : 2 them or their representatives or members because of an kmployee’s membership or. non-membership in the Union, or because of the exercise by an employee-of ” right ‘. un$er this Agreement or under the Crown Employees Collective Bargaining Act.. ’ _, .. \ : : , 31.7 Casual hours of work shall ,be &located accord& to ‘seti,ority .of the Casual employees assi&ed to the applicable work unit or department. ‘- . ~ ! Ms. Noble, for the Union;took the position t&at both provisions, had been.vioJated in this : I matter. It was suggested. that there is.no qualification to the brqadly staT&d rights .&der -. Article 3-I:7 and.in these cticumstances, it must be interpreted to meti that if the grievor is . . airailable tb work certain hours, those partictiar hours will be assigned to h+ subject only .to seniority prdvisic+s. 1 .” / c’ . . .‘I* .- :. I y . .‘_ :: T&e grievor began: working. as ,a &&al clerk for the Employer in late. 1988 ., Prior to that. he I had workedoccasionally oh ari on-call basis for a few.yeais.’ He bega.n.tk work at store 528 i’ , in 1990 an&it was inthiS Store t&t *e ins&t gtievanie has its genesis.. Amongst the casual .. .-’ .’ ..‘. employees he is the secorid most $$iior. .’ . - i . . ., .. ,. -. .:. : A : .. :’ -, i 7 . ,_ . - _’ ,.. ,’ : Casti& workers..fill out availabil& sheets ,to..let the Empioye? know when they are free: to . .. . . .- j work.’ In -August of 1.992, the. grievor -indic&ed that he was n& available to work on Mondays. Howeve?, on Tuesdays he was available @oin 4:30 p.m.. t<. 1O:OO p.m., on. ., Wednesdays fioin 4:30 p;m. to .9:30 p.m.; Thursdays 4:iO p.m. td 10:00 p.m. and Fridays / . . : I .. his availability was from i:3b p.&]tg 9:Oo’p.m. On Saturdays, he could work from 9:OO a.m. I I ,until 6100 .p.m. &ring the yetis fro&. 1988 .tci t.h{ ,filing of .fhe. grieva&e, Mr- Kruczaj .- I worked an average df three evenings per week and Saturdays. .His availability was somewhat I .’ I .._ restricted becautie he-also had a full time position with the Wdrker’s Coi-npensation Board: ~ . Since the schedule change in approximately May of 1993, the grievor has been scheduled to wori, on average, one evening% week and full days on Saturdays. \ : _. ._. : . .._ -. : Fen the schedule changed, &e @eyor spoke to the person he @ought .wqs responsible for .; .J .’ ,... ‘- ‘. -. ,* a.- ., .: .. k ‘. : -’ ~_.. : -1 --. _;-< I... -_I ..;. ,_. -,.>_.- ,..,I .( . . ., --.A L _ .:: . . T -._ _ : ‘, : .: :. ._, _ ,” :, .-. _-_ ‘>I ., _; -. 1 : ;,;.. -’ ; --..; . ,_ . . .~.’ . ..‘.. . -._ : -. ., :’ j. :_ - _.. ; L,. i _/’ , :.-.. ,: ^! ‘._ .-. . ‘? ’ ~ ,_ -.-. : : r-s Ji i : ., i. ,._. : .“. --, ., : ..,.. .-.,-. _.. _,_ _ : : -... y .- ; - .j ,. ‘. ._ ,. : ,’ . . . .., s 3 . the scheduling, Joe Goldenberg, Assistant Store Manager. He told Mr. Goldenberg that he was concerned about the schedule change and Mr. Goldenberg explained to him that a new . shift was established which began at 1200 noon and continued until 8:001p.m. Mr. Krnczaj , was told that because of his limited availability, he was not being scheduled to work as often. _., \ According to the grievor, it was during that discussion, that Mr. Goldenberg told him that the ’ effect of what he wanted was for a shift to be split and that was expressly forbidden under’ : the terms and provisions‘of the Collective Agreement. .II 1, .. I ._ : The grievor testified that he thought the scheduling change was a deliberate attempt to harass him because of two grievances he had f%ed in December of 1992. Those grievances alleged - that he was being “verbally harassed” .by Mr. Goldenberg. By allaccounts; Mr. Kruczaj and- Mr. Goldenberg did not get along. There is no need to list the specifics of much of their conflicts which were thor&ghly:canvassed in the’evidence. It is sufficient to’ say that each __: made ungenerous comments regarding the other and the’ Board, is satisfied .that neither man .- : made a real-effort to establish a smooth working relationship. Indeed, it appeared that each and any opportunity was taken by each man to annoy the other. Neither was bla$;eless. The filing of the 1992 grievances was a potentially difficult situation. because Mr. Goldenberg was a member. of the bargaining unit and, co-incidentally, was the zone representative for the Union. In an effort to resolve the matter, both men met with John Begley, Store Manager, and a temporary truce was worked out which included an apology from Mr. Goldenberg. It was the grievor’s evidence that he and Mr. Gold&berg continued / to have disputes and although no further grievances.were filed regarding the matter, he occasionally spoke to Mr. Bkgley “offthe record” about the situation: \‘ , . Sometime after the resolution of his harassment grievance, the schedule was changed and it was the grievor’s testimony that the change tias made to ensure that he was not allowed -’ \ - . ‘, .’ : 1 . . . . . _’ , . _.-.I ., +r _. -_ : :. -. 4 : ; . to’ work’& f?eq~ently as he had’been. Co-workers. with less seniority than the grievor were _I _. -. . sched;lled to work hours that the grievor believed he ought to be assigned. The new shift : i begins at noon and; d&to his comrdment to his Ml time job, it. is impossible for him to ’ begin work on weekdays at that time. The grievor thought that one of the:main’reasons that Mr. Goldenberg disapproved of himwas because of his “moo&hting”. : _. - ,The grievor reviewed.the nature of the work of the clerks. There was a-conflict in the evidence as .between him and others about the length of time required for the opening and . . . I , clo&of the cash’at the beginning and end of each shift. The Board is of the view that the discrepancy between the witnesses, in this regard could result from the various abilities of the . employees .who are preparing to. take over. the casmer’position of readying to leave for the day* ‘. -i :- .‘;’ : :,;> ,. :: i : : :i -‘. _’ . . ., _-~ .” ‘_ _ ,; : ._ : : . .: Mr. Patri&kouch’ivas a permanent part time employee at.Store 528 at the time of the filing -’ ‘. -- .: -. of the grievance. He was also the ‘secretary-Treasurer of the Local &ion. ,He returned from’ ’ a compensabie.injury at the beginning of 1993 and, upon his ret&n, he was askediby Mr... Begley to take over ‘the responsibility for drafting the schedule. Prior to this occurring, Mr. ‘Goldenberg had been prepariug the f&t dr+-of the schedule. Both Mr. Goldenberg and-Mr. .’ bouch testified,mat..Mr. Beg&y had the &&l approval.of all schedules. According to-Mr. ... . . Couch, he was the first to r+setheissue of ,the establishment of a n&shift. He stated that ‘. : , the Employer was- concerned.about being in excess’of the number of hours allowed in the .’ budget and he.was.of the view that he could realize savings with the new schedule because . ., . four hours-less per day would be used. The:new schedule would .a.llow for relief over all :. ._ ., ‘hinch and break .periods and yet’not have all employees checking in or out of their cash at -. the busiest timesof the day,. that is over the hrnch period and between 4:00 p.m. and 6:00 p.m.. : . . ., ,. ‘. :. :. ~, I 5 Mr. Kruczaj spoke.with Mr. Couch about his concerns over the change in schedules. Mr.. Couch explained that he did the schedules and that the schedule was changed because of the ~ : needs of the store and its budget. h;lr. Kruczaj also had a similar discussion with Mr. Begley who gave him a similar response.. Mr. Couch was concerned about the grievor’s complaint and, accordingly, he contacted John Coones, l?resident’ of the Ontario Liquor Board Employees Union via his electronic rnair system (hereinafter referred to as “E-Mail”). That computerized discussion was provided - ‘- for the Board, at least in part and it was as followS:. From John Coones m Patrick Couch , Let me correct myself a bit here Patrick.. One point that I must have missed when I read the message is that this is a “shift”. (2-9:30 pm). .If youhave a scheduled shift available, “2:OO - 9:30”, it must.first be offered to the senior PPT &o is available and not working at that time. If you do not have a PPT, then you must offer. it to the most senior casual. If the most senior casual is not available (for the need shift) then you can offer it to the %exp most senior. I- From Patrick Couch .Ok. So then if the 2-9:30 shift CANNOT be ftied to complition (sic) by the most senior ,casual (our,PPT shifts are no problem) then He (or,She) can’t fde a grievance for only part of that shift, right? The reason I am asking’ is that we have a\senior casual who is complaining that because.he can only work 5-10 pm every night (he works days at another job) he should get those hours, even if he can’t complete the full “2-9:30” shift. Which means that the store would have to find another casual to work “2-5pm” to ‘give him those hours., In his defence he has been working 5-9:30 for.about 2 years now and this 2-9;30 shift has onIy come about in the past 6 months or so, they did manage to work around it before but we have since had a.PPT (me) rem from compensation. From John Coones ,I .._ dbsolutely correct! Ifythe shift” is available you MUST offer it to the most senior PPT. If the PPT is not available, or is already working, or there is no PPT in that store then “the -shift’ MUST be-off&red to the most senior Casual. If the,senior casual is not able to do “the shift”, (i.e. start at 2:00 and work till 9:30), then you can offer it to the next most senior casual who is available to work that “shift”. No grounds for a grievance if he is NOT available to ‘work the “shift” that is available. . . . . ,. I. ._ _ .’ . _’ - . . ; _. -. . :_.. . . ..- ..’ .T,’ , _‘, ..- _‘. .’ ’ ,a -I ,,: . . . . : . .. .’ L,.’ ; .- 1 .-: ,I ~ 345 : ,.: _ ._ . . . . ._ . ., : .- . .: - . ‘_ . . 3 ‘. I’ i ,- : _~ _. -. ; ..- -‘i, z . . . 1 . . :. -. ‘. . . ._ . . 1. 6 1 . . .’ .i: ; T.. :, - - I.‘-. After.this electromc correspondence, Mr. Co&discussed with Joe Gdldenbeig whether, he could reveal the.above computerized communication to John Begley: After being‘advised .. that it wasappropriare to do so, he gave a hard copy to Mr. Begley and&ey discussed the .. * matter. Mr. Begley testified that, as the result of seeing.the E-Mail he thought that the newly established shift had the “seal of approval”. : 1. .I I . Mr. John @ones testified, that he set, up the ‘bulletin ‘board .for members .to have an opportunity to communicate~tiith each other in a lforum wmch was not. available to .the ’ _’ Employer. @bough he was not sure if he ever’made it expressly known that he did not want . any electronic correspondence given to the Employer, he thought that ah users knew or ought to have known that the information was not to be shared. He testified that it never occurred , to him that Mr. Couch would rely on his answer or show. it to Mr. Begley., * , ,” _’ _ _ ., ‘r. . ‘.C ._ . . . . .’ Ms.. Noble, for the &ion, suggested .that.this Board is faced with’two confkting rights. The : fist are seniority rights for.members ,of the bargaining unit. The other rights are those of .- management to manage the workplace; The Union is clearly of the view that seniority rights (_ ought, to prevail. m this case, management made a decision which adversely affects the -.., _ . . grievor’s seniority rights. _I ._ .I I ’ ... I. : . b c : The Union contended that it must be remembered that seniority rightsare.a cornerstone to ,the collective rights of employees. It is oftenthe prime motivation for.empl’oyees to organize , and bargain collectively. The arbitial jurisprudence ‘establishes that the standard of review for the abrogating of seniority rights is high. The Union relied upon Re The Crown in. Right of Ontario (Liquor-Control Board of i F f \ ,. 7 - , Ontario) and OLBEU (Gordon) (January 10, 1991), unreported (TXssanayake). In that I \ case, the grievor, a casual part time employee, was transferred from a store in Niagara Falls to Mount Forest. Upon accepting the transfer she was asked if she was prepared to share hours with another casual. The grievor agreed .but it was her evidence that she agreed thinking that the arrangement would be soon after changed by the issuance of an arbitration :’ award. Shortly after arriving at the new store the grievor rqticed that the other employee was : receiving more work than she was and she complained without satisfaction to her m’anager. She later applied for a full time position and when she did not get that job she found out-that I the arbitration award she had anticipated had been issued and that as a result she was no longer the most senior casual because her store failed to implement the arbitration award. t In finding for the grievor, the Board stated at page 18: . . . .We see no merit in this argument. The words “according to-seriiority”‘are significant.’ It is an x indication of priority to the senior employee in allocation of hours. While the’ language used is not as specific or precise as may be desirable, its intent cannot be in doubt. If there is an ambiguity, the * Picher award clarifies that. Moreover, the evidence clearly indicates what ‘the LCBO management understood its obligation under. article. 32.7 to be. The directive dated December 8, 1988 from the District Manager to the Store Managers clearly states that “If there are. still hours available they must . then be offered to your most senior casual n. The evidence indicates that this directive was followed by.the Employer at other stores. There can be no doubt that the Employer at Store 302 failed to apply 32.7 to the grievor. - \ .- The Union suggested that this case stands for the-proposition that Mr. Kruczaj ought to have been offered any hours that he tias available to work. -Generally speaking, the grievor was -’ , available to work between 4:30 p.m. to 8:00 p.m. The Employer has taken the position that .it wants’s casual employee during the hours 12100 noon to 5:00 p.m. The Board should , order the Employer to allow the grievor to,work the hours needed that he is available and the .. Employer can ffl the other hours with the next most senior casual part time employee. It was conceded by the Union that the Collective Agreement does not allow the’Employer to schedule any employee to work fewer than two consecutive hours but this would not be offended in the instam case. . , . . ,: I ’ ..- ., ;. . .’ . . -. : - I 8 .’ . . I ’ Jn Re Tung-Sol of Canada Ltd. (1964), 15’ L.A.C. 16 1 (Reville), it was stated’:. r’: , I Seniority is one of the most important and far-reaching benefits which the trade union movement has . .I <been able to secure for its ,members by virtue of the collective bargaining process. An employee’s i available must first be.offered to the most senior casuals. Lt was suggested that the Employer .._” ,. -- ; . . . ..- . j :- :--; ._ I.’ . .. ‘. :. ,’ ._ ,- :. : : ..’ _. . : .__ -:. : _. -.: 1. ._ , ‘ >.. .i i .* . . ‘.- ‘,. _ :-. .,- ( :‘_ 1. _’ ‘,’ ‘.. . ;I. i, I .. -_ r _. ;.; :.. ; _ .:: ._’ ; . . .-i’ i ,. (_ ..: . . , ; -‘. . . 1 ). .. ‘_ -’ _._- -.’ A_ : ,. ” ._ . seniority under the terms of a-collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a -few. -It follows, therefore, that an employee’s seniority should only be affected by .very clear language in the collective agreement concerned and that arbitrators should construe the collective ‘. agreements with the utmost strictness wherever it is contended that an employee’s seniority has been . : . : forfeited, truncated or abridged under the relevant sections of the collective agreement. I, .Ms. ‘Noble also provided the-Board with Re Government of NQ~& Scotia and Nova Scotia ,~ ,. GoVernmeht EmployeesUnioti (i990),113 L.A.C. (4th) 322 (Cromwell). In that case, four account regulation officers .grieved ,that their modified work schedule which had been in - : place for a year was discontinued without agreement and in contravention of the collective agreement. In assessing the matter the arbitrator stated that he was of the view that there are .‘- four principles to be taken into account: the wording of the relevant collective agreement; the, extent to which the decision-is within the-,scope.of the employer’s express or implied . : “authority to.‘manage; me more seriously arr employees rights are affected &higher the ._ -. . standard of review; and the express provisions, or ‘lack thereof found; in the collective , ‘agreement must be, carefully weighed m deciding the standard of review. ,The Union in the ._ instant .matter asserts that it isnot sufficient that the Employer.has need, for an ‘einployee _ -’ : from noon until g:OO p.m. te disqualify the grievor’s right to’ hours of work over less j&or .’ _ : employees.. Neither is it sticient for-the Employer to say ‘that’it could not reasonably have . ‘. scheduled otherwise; ‘The .evidence-regarding this issue from Mr. Couch was that it was I .’ awkward to break up the shift and the. Union takes the position that awkwardness is not a _. -’ sufficiently high standard. .. ’ .’ . . -: -. ., ~ ’ , .’ -’ .i The Union conceded that it is within’the purview of the Employer to reduce&e total number _.. of hours of work ifrequimd. However, the allocation of.available hours is circumscribed by , - <.._the terms and provisions of the, collective agreement. ‘Specifically, the hours that are simply could not be bothered to inquire as to whether another employee would split the shift _ with the grievor and that lack of effort must be to their detriment. / In the alternative, the Union argued that the ‘grievor was discriminated against in a fashion because of his having exercised his rights under the collective agreement by the filing of a. .. harassment grievance prior to the schedule being changed. Such treatment is a violation of article 2.1 of the. collective agreement. (. ‘. ’ It was suggested that the, evidence was clear that Joe Goldenberg had considerable influence over the new shift and that his motivation was to hurt the grievor because of their past associations. Management cvot.exercise its authority in i a fashion which is arbitrary, discriminatory or in bad faith. Mr. Goldenberg was acting as an agent of management at the relevant times or, in the alternative, he was doing the work . . of management and the ,.Employer is vicariously liable for him. i7 -. .’ ) i EMPLO~BiRSUBMISSIdNS ., _ ; . _. . Mr. Mom~ourque.tte, for the Employer, first addressed the, allegation that .the grievor ’ experienced reprisals due to his exercising his collective agreement rights. It was asserted : that a review of the evidence does not substantiate the claim: The grievor filed a grievance , . i and a meeting was held and the matters were discussed and minutes of settlement .were . signed. Mr. Gtildenberg apolo&zed to the grievor and no further grievances were fried. Although the grievor’s evidence was that the harassment continued, neither Mr. Goldenberg _ nor Mr. Begley agreed with that testimony. The grievor testified that many of his comments. . ., to Mr. Begley were made “off the record”. That being the case, the grievor cannot later .’ .t complain if comments made are not vigilantly followed uj’by the manager. Further, the Board &as ‘asked to recall that &4r. Goldenberg had virtually nothing to do with the .. scheduling of the new shift. The evidence was clear and uncontradicted that the idea arose ,with Mr: Couch. . _ I .-. ’ . . ‘._, ^ ( : : .’ _. -, -<- ._ -_ i ,. : . . .._ -> . . . . : ‘. ._. :. .. . .- ’ . . . . .., .-. z-- : - ’ .: :. . . . :.. -_ I.. ,: .,. .. 7.. -:’ . 1: ‘.. . . . : . . : . : -, . . -. 10 ._‘. .* : * .’ . . . I@garding the core issue of the interpretation of article. 3 1.7;the Bmployer &se&d that some, _’ \. .‘. : of the evidence is quite relevant and of as&&e to the Board.‘L-ti. Begley irist$ted the ’ shift at the suggestion of Mr. Couch. It was changed for a number of legitimate business ,, reasons mcluding the reduction of person hours as the store was over budget. Having.,one ., , person York a 12 noon to 8:00 p.m. shift, &owed for the relieving of other staff for hmches . .i ,, and the .transition period at the end of the day when the evening workers arrived. .&though there was. a disparity amongst witnesses ~regarding the amount of time required for this .’ . : . transitjonal period, the preponderance of evidence revealed mat this was more-than a mere : matter of’convenience. as suggested by the Union. ‘The evidence of Mr.‘Couch was that if two employees split the shift it tior+ld take an’e~tra hour per day for the signing on and off that would be required. : That is ‘a sign&cant period. of .work time’ and not ‘a mere .. .‘.- inconvenien& -. -‘. _.: .! , -1-” . ._ ‘7 .- : . . ..- . .: *, . : . . .. The Employer submittqd that the evidence of Mr.’ Coon& regarding the EiMail was not ., . _ . believable and should not be taken into account by the Board. Specifically, it was suggested . that he knew or ought to have known that members would seek his view regarding matters as the President .of the Union not simpty as a co-member. :-. ., Mr. Coones knew that ,his opinion .:- i _. _, .. .’ carried mugh more weight than other members and so’he is’ obliged to take,responsibilityfor * ~sco~espondence. ‘-’ .. I.. ’ : \‘ c -. ..‘. ‘. ‘- -, , , .-. _. : . _- Mr.. Mombourquette argued that, at the time the grievance was. filed;~article 18. I of the j. Cr&vn Employees Collecti<e’%r&aining Act was in effect and included in that is. a right for the Employer to manage the Work ‘force. ,’ .. _ _ - .,’ In the alternative, if this Board finds a latent or patent ambiguity in the collective agreement, /- : it was submitted by. the Employer that the evidence was clear that even.the president, of the union agreed with the-position that the Employer. now takes. -In Re The Crown iq Right of .’ . ..__ ., ,,. : : . . .. .’ . . : _. ): . “: . .I ..‘.<. .;: . _ : ,, :. _.- -. I ) ‘. ,‘.. j :’ . : : ‘,. .‘Y .c , i ‘.., ..,( .’ . /. ..; ” .,, : .:- ,, .’ . _’ <’ , ,. ;. ;;. L’ .-‘__c ,. ,.-;- ..F, ,, ,( ” 1.. ^ . (’ I. _. ~..;: .“: .’ ‘I,.. .‘. .I . . . . :, : _’ ., - ,:’ .. :- .‘. ‘. ; _<. -’ ~1 _ i, - - . . : ; :. .. _: .-+,.‘ 1 _~’ cI ,.;::. :-” -. _-,_- “. ,_ ‘: : ._. -. j : : : ‘ ;:,’ -_ : I, -. - ,‘.,L -: .:-.. .- j -. . . . . . , i . --- , _ ___. ” ’ . 11 . I’ Ontario (Ministry for the Sdlkitor General) and Ohtario Public Service Employees Union (July 3 1, 1985) unreported (Knopf), it,is clear that this Board has the jurisdiction to take e&in& evidence into ac&mt if necessary for the determination of a latent ambiguity. 1 The Employer contended that if the Union view were to prevail, it would lead to an absurd result. If the grievance is upheld, the entire workplace would be in chaos. All casual , employees with the most senioriw in each worksite would be. able to dictate what their hours of work will be.- The only ~limitation would be that they 6ould not be scheduled to work for less than two hours. If all employees could self schedule like the Union suggests, it is possible that there would be gaps in the schedule of one hour which the Employer would be unable to schedule. . _ \ .-- In the further alternative, it was submitted that the Union is estopped from asserting this : position give the representations made.by Mr. Coones. He agreed with the’ Employer’s position and the Employer acted according to its detriment. ” The Employer -suggested that.it is essential for this Board to make a finding of credibility and the only appropriate finding is that the grievor and Mr. Coones are not to be relied upon. .’ ‘ In reply the Union disagreed that any representation was made to the B,mployer by anyone .. ‘: in the Union and therefore ‘it is not estopped. D , DECISION- .’ ;.‘. -. ,I The Union argued that the language of this Collective Agreement is cle’ar and unambiguous and it provides that casual employees, unlike others; are scheduled hours of work, as opposed to shifts, based on their availability. The Employer, on the other hand took the position that I . . . ~ - . . : . 4 1 ,.. : .: _” it had the right to schedule shifts in accordance .with its, operational needs and those ‘. established shifts are offered to the casual employees on the basis of their seniority. In the alternative, the language is ambiguous and the past practice. should ‘providel assistance in . . ‘.. ,determining the appropriate interpretation of .the Collective Agreement: . ‘_ ; ‘_. _ I It is appropriate to fnst,con’sider whether,the alteration.ofthe hours of work was motivated by an attempt by- the. Emfiloyer to’ disc&ninate against the grievor for having previo&ly ,exercised his rights under the Collective Agreement., we are of the view that the evidence : . . does not support such an allegation. It is true that the grievor and Mr. Goldenberg did not i . get along. Indeed, they. were incapable of maintaining .civility with each other as’ mentioned ! previously. However, the~uircontradicted evidence, was that the idea for the new shift arose t with Mr. Couch:and there was no suggestion that Mr. Couch was interested in discriminating .;. -’ . : against t&grievor. Mr. Gold&berg was not directly involved in t.he.change of the hours to ;. t ., ‘. a. new shift,- He was ‘asked his opinion.btit it was clear that he was not part of the decision making process in’this regard. .F&ther, the grievor conceded that Mr. Begley consistently : listened’to his corn&&its and rectified the situation when he felt it was appropriate to, do so. ‘,‘. There. simply was no evidence. t.hat.Mr. Begley;participated in any manner mat could be .- .described as a cons&racy to discriminate-,agamst ,the &evor. I.t$eed, the uncontradicted .’ evidence of Mr; Begley and Mr. Couch was that me new shift’was initiated for bona fide operational retions. Thestore was overbudget’regarding the number of “matr hours” utilized per day: .This. situation. was not acceptable and the new, schedule was developed to, in’part, : _’ ‘.. allow for the reduction of four ~~orking hours per day. ..I Therefore,.we reject the allegation. of’discrimination against the grievor for having exercised hi; rights under me Collective _ ,. y&e;me& ‘Y :.-. 1 . . : ,, .,. : ; ., .‘. , .I ‘. ’ ‘,The Union strongly urged this Board to find that seniority is a matter &-rich is sacrosanct in a Collective ‘Agreemerit; very possibly ,me most important benefit for Umon members. We 13 agree. The arbitral ju.risprudence.over many years stands for this proposition. We do not disagree with that line of cases. However, that does not take US, in and of itself, to the result urged upon us by the Union in this matter. We must look at he specific language oi the Collective Agreement &.h that general principle & mind. ) . ‘I It is helpful to review some. of the provisions of .the Collective Agreement. Article 6 establishes the hours of work for full time employees. At A&cle 6.2;. “normal hours of work” are defined&to five various “shifts”. Article 37 provides for hours of work and ^_ overtime prbvisi,ons for permanent part time employees. Article 37.2 states, in pait: (4 Regularly scheduled hours of work shall be posted at least ‘two (2) weeksin advance for each establishment and shti consist of at least two (2) hours on a day. Split shifts may be scheduled provided the minimum work period for any part of a shift is two (2) cdnsecutive , hours. -> (B) .‘\- Hours of work may be changed without any premiums of penalty if agieed upon betwee? the L gmployee and manageme& -- , :: . There is no-definition of shifts in articlti 37 .as there is in Article 6. Neither $ there such a definition in Article 3 1 which provides for the hours of work fof casual employees. In ) Article 3 1.1, casual empltiyees have their “hours of work” posted at least a week in advance. It is further set out that “there shall be no q&t &ifts”. Artitile 37.1, vjhich is the provision upon which the Union relies, states that “c?sual hotis of work: shqll be, allocated according. to ‘the sqiority of the casual’employees assigned to ‘the applicable work unit or department”. t. .*‘: The Collective Agreement cl&?ly states that casual e&$loyee$ are.-+& en&led td the provisi&s of Article 3 1. It is the Uniori’s view that because the Collective Agreement proviG0n.s for casual einpldyees refers to the a&cation of “ho&s of work” a&d not “shifts”, -_ . -. this grievance must succked. We are not convinced;. There is ,a reference to “shifts” in Article 3 1. f.. We also note that, despite the lack Qf any definition of shifts in Article 3 7, the . ../ parties make reference to the’ “second &if& for permanent @art time employees. The term “second shift” appears to be a term that is only defined in Article 6 of the Collective I .- : -, 1 ._ ;- ..- ; : : 3 . . . . . / . 1,. ‘. We-are of the .view -that if the Union were cdrrect in its interpretation it would lead to an” .- - absurdresult. It would require, in every store-within me LCBO, the manager, scheduling the . most, senior casual employees for-every houroftheir availability so long as that period of - ._ I I, .~ time is not less than two hours. We are of’the view that this is not the intended result of Article 3 1.7. Given the documentary and viva vote evidence that the Board heard regarding the: practice of schedulmg hours of, work to casual employees, .we fmd,that the. Collective Agreement cannot be interpreted as suggested-by the Union. : . .‘s -. :,- : . . _’ r. ‘: Given our decision in this regard, it is unnecessary to, consider the Employer’s argument ‘. ,-. ! regarding estoppel. For. all of those reasons, the,grievance is dismissed. -’ - : . Dated m-Toror qo, this 2.8 Day Of; &+c’h, l996. . . . _c _. .\ .: A ‘. "I mssent”‘~~ (diisent. zittichid)-, ‘( _ Jim Carruthers- -’ Union Nominee ..,,. ‘. ‘. : _ :’ .: __ .’ _ :’ .. . . : -Mike O’Toole -‘Employer Nominee . .d- I ‘. ?’ . . : O-3/13/96 11:3? f& 416 39b 4978 LOCAL 113' ;----T ~cloa I : ,/-'; G., -_2- . I do not a&e with the majority of the panel that the language in Article~31 of the col!ective agreemeni is ambiguous and unclear, Article 31 .I (b) provides that “Casuals, when scheduled to work on any day, shall not be employed foriess than two (2) hours ” Article 31.7 provides that “Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or .department. ” Taken as a whole, Article 31 cfeqfy provides that - __ hours of-w&must be al!ocated to casuaf employees based on. their serjority, the only limitation being a protection for employees against being scheduled for fewer than 2 hours at a time. +- The Grievor, who was available to work from 4:3Q p.m. to 8100 p.m., should have been allocated hours of work during his available period when the Empltiyer h&d a requirement for staff. Instead the Employer scheduled an~emplsyee junior to the Grievor to work from 12:OO noon to 8:OO p.m. - a period which overlapped with the Grievor’s availability - and did not.aliocate any of these hours to the Grievor, although ,. he was available. This is contrary to the collective agreement. .~ -. In their rsasons,,the m&jor@ of the panel make reference to Articles 6 and 37 of the collective agr&ment. These Mcles do not apply to casual employees, nor should they be used as a basis for a deiermination that the language in Article 31 is ambiguous and ’ unclear. The language of Article 31 stands alone, and is not ambiguous. In my view if the implementaticn cf the.dear collective agreement language’of Article 31 leads to sche&ling problems for the Employer,.it lies within the Employer’s power to attempt to negotiate%vkh the Union for more beneficial language. St is not the role of this arbitration panel to smooth the way for 8Xp8dient scheduling for the Employer, regardless of the wording of th8 collective agreement. _. r _;. .- .__ _ . ) .- .Y. ;. ,_ _--.