HomeMy WebLinkAbout1991-2618.Parker & Union.92-10-27 ~4, ONTARIO EMPLOYEs DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARiO
GRIEVANCE C,OMMISSlON DE
:., SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS ST,qEET WEST, SUITE 2100, TOF~ONTO, ONTARIO. MSG
~80, BUE DUNDAS OUEST, BUREAU 2 [00, TOFiONTO (ONTARIO,I. M5G ~Z8 FACS~,41LE,'T~L~.COPiE .. ~ ~SJ 226-:396
2,6:].8/91, 2,619/9].
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (Parker/Union Grievance)
Gr~evor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
.Employer
BEFORE: A. Barrett Vice-Chairperson
E. Seymour Member
D. Clark Member
FOR THE S. Philpott
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE R. Drmaj
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING July 14, 1992
DECISION
The union and Mr. Parker grieve that the employer has scheduled a
new shift at the Terminal I and Terminal 2 Duty Free Stores contrary to
Article 6.2 of the collective agreement, the relevant portions of which
are set out below:
"6.2 (a) The Employers shall prescribe the number of hours
in each working day not exceeding eight (8) hours
for the various departments or establishments of the
Employers. Normal hours of work will be as follows:
(i) Stores ...
(ii) Warehouses ...
(iii) LCBO/LDBO Head Office and Warehouse ...
(iv) Toronto Airport Stores:
6:00 a.m. to 1:00 p.m.
8:00 a.m. to 4:30 p.m.
1:00 p,m. to 8:00 p.m.
2:00 p.m. to 9:00 p.m.
4:00 p,m. to 11:00 p.m.
(b) Normal hours of work may be subject to change by
the Employers depending on local conditions."
In December 1991r in accordance with a decision taken in June
1991, management changed the 6:00 a.m. to 1:00 p.m. shift to 5:00 a.m.
to 12 noon. The change was in response to changing airline schedules
which often require the stores to be opened at 5:00 a.m. The need for
a 5:00 a.m. opening had been in existence for some time, particularly
at Terminal 1 because of increasing numbers of charters departing from
that terminal as a result of a transfer of most business flights to the
new Terminal 3. Especially in the fall, winter and spring, there are
a great number of early departures, although not so many in the summer.
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Up until December 1991, the employer was handling these early flights
by calling the 6:00 a.m. to 1:00 p.m. shift in 'one hour early and either
paying them one hour overtime or letting them Go one and a half hours
early.
The union concedes that the employer is entitled to change the
normal hours of work but says that if the hours are at variance with the
ones set out in the collective aGreement~ then overtime must be paid for
any hours outside the "normal hours". The union argues that Article
6.2(b) allowing the employer to change the hours of work depending upon
local conditions must be Given a restrictive reading in order to avoid
rendering Article 6.2(a)'nuGatory. The union says that Article 6.2(b)
only allows management to alter hours on a temporary basis, and with
payment of overtime. The exigency~dictatinG the change of normal hours
must be an abnormal condition. The clause cannot be used to "normalize"
a shift that is not listed in article 6.2(a). The union says that any
new normal shift must be negotiated between the parties. Union counsel
points to Article 6.4(a) (ii) which states that "hours oX work may be
changed without any premium or penalty if agreed upon between the
employee and management" as further evidence that changes must be
negotiated. Union counsel cites Re St. Clair Chemical Ltd. a'nd Oil~
Chemical and Atomic Workers, Local 9 - 1{ (1973), 5 L.A.C.(2d) 50 (H.D.
Brown); Re Miramichi Pulp & Paper Inc. and Canadian PaDerworkers Union.
Local 869 (1987), 29 L.A.C.(3d) 48 (Stanley); Re Parking Authority of
Toronto and Canadian Union of Public Employees. Local 43 (1974), 5
L.A.C.(2d) 150 (Adell) for the proposition that where normal hours of
work are specified in a collective agreement, manaGement-can only change
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tl]ose normal hours by negotiation or by paying overtime for hours
outside the listed hours.
Employer counsel argues that Article 6.2 of the collective
agreement was definitively interpreted by another panel of this Board
in 1978, and that interpretation governs the present situation,
{HerrinQton et al. G.S.B. 32/77 and 16/78 (Adams)). The wording of
Article 6.2 (then 5.2) has not changed in any material respect since
1978. In that decision, the Board was asked to determine the legality
of a number of changed shifts in various stores, warehouses, head office
and Duty Free Shops which the employer alleged it was entitled to do
pursuant to the "local conditions" exception in Article 5.2(b) (now
6.2(b)). In that case, there was a history of the union and management
agreeing to change shifts by memoranda of understanding, but it was
found on the evidence that all of those shift changes were made at the
instance of the employees and not due to local condition changes. Those
agreements made from time to time were not found to bind the employer
to negotiate shift changes in the normal hours of work where local
conditions dictated the changes, not employee requests.
That panel of the Board reviewed the St. Clair Chemical Ltd. case
cited above and several others in the same vein but distinguished them
from the instant collective agreement because in none of those cases was
there a clause permitting the employer to change the normal hours of
work depending on local conditions. The Board said at page 17: "Thus
if Article 5.2 of this collective agreement only provided for the
'normal hours of work' as specified and nothing mor~, the lists of
4
variations outlined above would violate the article and all hours worked
outside of the normal work hours would attract overtime pay
under Article 5.7 .., However Article 5.2 goes on to provide that the
'normal hours of work may be subject to change by Boards depending upon
local conditions.'",
In that case, the union argued that Article 5.2(b) only permitted
changes where service to the public required deviation f. rom the
schedules provided for in 'the collective agreement, a~d cited the
example of the Duty Free Stores at Toronto International Airport. In
result, the Board gave the words "local conditions" a broader
interpretation largely because the variations in work schedules had been
in effect for many many years. The Board found that the employer was
entitled to change shift schedules to accommodate such local conditions
as store delivery schedules, the need to take inventory, customer
patterns, store volume and staffing effectiveness, The Duty Free Stores
were then operating a late night shift not specified in the collective
agreement to accommodate late night departures which were becoming more
frequent. The Board harmonized the operation of Article 5.2(a) and
5.2(b) in the followinG explication at page 19, as follows:
"We wish to emphasise that management cannot exercise its
discretion under the local conditions exception in such away.
as to render its earlier agreement to the normal hours of work
nugatory. Were the employer able to effect any change it
wanted under this exception the totality of Article 5.~2 would
make little sense. For this reason then we are of the view
that some local conditions must reasonably justify variations
from the normal hours provided for in the agreement. For
example this would appear to be the case with respect to the
variations that. exist in the large stores in that the size of
the store~ customer service, or truck delivery schedules are
the stated reasons for such variations. But mere employee or
employer preference for some other worR schedule, unsupported
~y a bona fides local problem, would not support a change in
the normal hours of work under this exception. Indeed we
believe that the parties have themselves recognized this fact
by executing memoranda of understandings where changes in
hours have been introduced at either the Head Office or
warehouse locations at the request of the affected employees.
These changes have not been in response to any particular
local conditon as far as we understand and thus required the
consent of the Association in order to modify the
contractually a~re~d upon normal work hours contained in the
collective agreement."
We believe the instant case is on all fours'with the Herrington
case. ChanGingftight schedules are a legitimate local condition Giving
rise to the employer's right to unilaterally change the normal hours of
work, The previous practice of paying" one hour overtime to people who
came in at 5:00 a.m. is not evidence that the employer knew it could not
change the scheduled shiZt without the consent of the union or the
payment of overtime. The need for early openings simply increased over
t±me, The manager of the Terminal i Store testified that she came to
the conclusion that it would be fairer to schedule a regular 5:00 a.m.
shift than to frequently require the 6:00 a.m. shift to work overtime,
often on short notice. The manager also testified that frequently their
most lucrative business is done between 5:00 a,m. and 6:00 a.m. This
is a clear example of a local condition ~ivinG rise to the ~mployer's
right to change t~e normal hours of work.
With respect to the union argument that Article 6.4(a)(:[i) relating
to aGreed-upon changes in hours of work, Governs this case, we do not
think it has any relevance. Article 6.4 relates to the posting of shift
schedules and overtime pay in lieu of proper notice. It is in that
6
context that paragraph (ii) provides an exception for mutual agreement
to short notice changes for individual employees.
In result, the grievances are dismissed.
Dated at Toronto this2?th day of October, 1992.
E. Seymour Member
D. Clark Member