Loading...
HomeMy WebLinkAbout1992-3030.O'Flynn.93-12-14 /' 0; ONTARIO ( EMPL0 YEStJE LA COURONNE ( L .~ CROWN EMPLOY~ES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS r ,180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 2700. TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELI:COPIE (416) 326-1396 3030/92 IN THE MATTER OF AN ARBITRATION under THE CROWN E,MPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMEN~ BOARD BETWEEN OLBEU (O'Flynn) Grievor - and - The Crown in Right of Ontario (Liquor Control Board -of ontario) Employer BEFORE: w. Kaplan Vice-Chairperson M. Khalid Member F. Collict Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Mombourquetbe EMPLOYER Legal Counsel Liquor Control Board of Ontario HEARING October 25, 199i3 ) r (~, 2 ( t. c, Introduction Bya grievance dated November 26, 1992, Peter- Q'Flynn grieves a violation of Article 7 6 of the Collective Agreement. The parties were generally agreed as to the facts, and after they were set out, the parties proceeded directly to argument. The Facts I The grievor is employed at the LCBO's Durham Warehouse as a Warehouse Worker On November 10, 1992, the grievor was approached by a member of management and was asked whether he was willing to work on November 11,1992 November 11, Remembrance Day, is recognized in the Collective Agreement as a paid holiday According to the union, the grievor was asked around 11 30 a m. if he wished to work the following day, and was advised around 2 30 p m that the employer had made a mistake and' that his services were no longer required. According to the employer, the grievor was asked around 2 15 p.m. if he wished to work the following day, and- was advised around 2 30 p.m. that his services were no longer required There is no dispute between the parties that whatever time the grievor was asked, he agreed to work the following day There is also no dispute that the grievor was asked in error whether he wished this overtime assignment. Overtime is distributed, as required by the COllective Agreement,in rotation, and the grievor was asked out of turn When the mistake was discovered the request was rescinded The relevant portion of article 7 6 of the Collective Agreement provides Where an employee is required to report for any period of work on a paid holiday, he/she shall be entitled to a ~ ~ _. - - -- - --. - -. - -- ( C G,,, 3 '~.)'" ( credit of a minimum of four (4) hours at two (2) times his/her regular hourly rate of pay Union Argument In brief, the union argued that the exact matter in dispute had already been decided in an earlier case, and that the Board's decision in that case, Araujo 1 012/86, should apply with equal force in the instant case In Araujo the Board was asked to interpret the predece,ssor provision to Article 7 6 That provision read. Where an employee is required to report for any period of work on a paid holiday (as defined in Article 7) or other day that is not a regular working day, or on his scheduled day off, he shall be entitled to a credit of a minimum of four (4) hours pay at overtime rates, but where an employee performs work for more than four (4) hours after being so required to report for work, he shall be entitled to a minimum of eight (8) hours of pay at the overtime rate Union counsel pointed out that Article 7 6 is, in all material respects, identical to this predecessor provision. In Araujo. the grievor was asked if he wished to work on a day off two days hence He agreed to that request. The next day the employer determined that it no longer required the grievor's services, and so cancelled the overtime A grievance was filed and proceeded to a hearing at the Board The Board held There is a sound basis in in good industrial relations policy for crystallizing certain obligations on the part of management at the same time that the employee becomes obligated to report for overtime work, whether through (' ( \ 4 . compulsory provisions or through a voluntary arrangement. However, these policy considerations cannot determine the issue in this case The question for consideration is whether, by its words, in the context of the collective agreement, article 6 1 O(a) do~s, in fact, reflect such a policy Counsel for the Grievor submits that the words "required to report" must be given their plain meaning As soon as the employee agreed to work overtime on the Saturday in question, he was "required, to report" .and, therefore, entitled to four hours of overtime pay This could not be altered by a cancellation on the part of management the following day If the parties had intended that the / entitlement to four hours of overtime pay was to be triggered by actually reporting for work, the phrase "required to report" would have been replaced by the word "reports" To interpret article 6 10(a) otherwise would be to read into the phrase, IIrequired to report", the additional words "and in fact does report", it is contended In contrast, counsel for the employer submits that article 6 1 O(a) must be read in the context of the other provisions in article 6 Article 6 1 (b) defines "overtime" as a period of "work" which is "performed" All of this suggests that the parties only contemplated the payment of overtime for work which was actually performed These contextual considerations are helpful, just as the policy considerations are helpful However, in the end, we are driven to provide an interpretation of the words contained in article 6 10(a) There is no question that this provision does contemplate the payment of overtime for hours not actually worked If only one hour of work is performed under this provision, the 'employee is still entitled to pay for overtime rates for four hours. The only issue is whether that entitlement comes into play when the employee actually reports for work or when the employee becomes obligated to report for work. ( ( 5 ,,- The wording of article 6 10(a) is not ambiguous. in this F respect. It becomes operative when "an employee is required to report" When Mr Araujo agreed to work overtime on the Saturday in question, he became obligated to do so In other words, he was "required to report" and, therefore he is entitled to receive the minimum of four hours of pay at overtime rates. A subsequent cancellation by the employer cannot operate to extinguish this entitlement (at 4-5) In counsel's submission, the facts of this case were almost identical to those in the instant case, and given that the material parts of the Collective Agreement provision were also the same, then so too, she argued, \ should be the final result. Counsel pointed out that the employer is responsible for the correct distribution of overtime, and the fact that it improperly offered an overtime opportunity to the grievor was not dispositive of any of the issues in this case In counsel's submission, the employer offered the grievor an overtime opportunity, that opportunity was accepted, and when It was, the grievor was obligated to report and would have been subject to discipline had he failed to do so. Having offered the opportunity, and that opportl,mity having been accepted, the employer was, notwithstanding its apparent mistake, required, given the Arauio award, to compensate the grievor regardless of the reasons for the cancellation of the overtime opportunity Finally, counsel noted that Arauio had not been judicially reviewed and indeed, that the parties entered into a subsequent Collective Agreement without changing the language of the provision in any material respect. Employer Argument Employer counsel did not take issue with the Arauio award but sought ~ - (" C', 6 . instead to distinguish it from the instant case Counsel suggested that one distinguishing feature was that in Arauio Cl group of employees had been asked to work overtime, and when the overtime was cancelled it resulted in a loss of the overtime to the entire bargaining unit. Counsel contrasted that situation to the instant one where there was no loss of a bargaining unit overtime opportunity; rather all that had taken place was that another member of the bargaining unit perf0rmed the overtime work. Counsel also noted that thegrievor was not entitled to the overtime work, and suggested, that being the case, that the grievor was not obligated to report to work as agreed. In counsel's submission, if the grievor had failed to report he could have defended himself successfully against discipline by establishing that he should never have received the assignment in the first place Counsel pointed out that if the grievor had in this case performed the overtime, that would have resulted in another violation of the Collective Agreement as other empl'oyees were ahead of thegrievor on the rotation list but not called in for this particular overtime work. In counsel's submission, management should not be penalized for realizing its mistake and correcting it in accordance with the Collective Agreement. Counsel concluded his submissions by arguing that the Arauio decision was not binding. That being the case, and the ~nion having failed, in the employer's view, at establishing a Collective Agreement breach, counsel asked that the grievance be dismissed / Union Reply In reply, union counsel took issue with the employer's assertion that the grievor could have failed to show up for work and used, as his defence to ( 7 ( ~ discipline, the argument that the overtime assignment was improper This assertion, counsel argued, was ridiculous. As soon as the grievor agreed to accept the assignment, he was bound to honour his agreement, and he could have been disciplined for failing to do so In counsel's submission, the fact that the employer was required to correct its mistake had nothing to do with the grievor's entitlement under the Collective Agreement. Counsel argued' that that entitlement was clear, and she again asked the Board to uphold the grievance and direct the employer to compensate. the grievor Decision Having carefully considered the submissions of the parties, we find that the instant case is virtually on all fours with the Board's earlier decision in Araujo. In Blake 1276/87 (Shime), the Board held: Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate to the private sector is not appropriate for the Grievance Settlement Board The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently adminIstered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load We are mindful, however, that there is no provision for appeal and there are limits to judicial review While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined ~-- _..- ( (- \ 8 on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances (at 8-9) The "manifest error" and "exceptional circumstances" tests have been considered by the Divisional Court. There is no need, however, for the purposes of this award, to review the judicial interpretation of the Board's award in Blake. for we are satisfied that whatever the appropriate test might be, there was no "manifest error" in Arauio, nor are there any "exceptional circumstances" that would cause us to depart from the finding in that case Indeed, in our view the decision in Araujo is completely correct. In that we have found that that case, and the one before us, are, in all material respects, identical, we have no choice' but to find, as did the panel in Araujo, that there has been a violation of the Collective Agreement. { In reaching this decision, we should also point out that we were influenced by the fact that the Araujo award was not judicially reviewed and, more importantly, that subsequent to the rendering of that decision, the parties renegotiated their Collective Agreement, but did not make -any material changes to the provision at issue. Employer counsel argued that there were , important distinguishing features between Araujo and the instant case 'With respect, we cannot agree Moreover, we cannot accept employer counsel's assertion that had the grievor failed to appear for his assigned shift on November 11 th, he could have defended himself successfully from discipline by establishing that his initial overtime assignment was incorrect. The employer is responsible for ensuring the appropriate rotation of overtime, and once the grievor agreed to an overtime assignment he was responsible to report to work. The fact that there was apparently a very short time delt,ly between the offer and acceptance of the overtime --- ( 9 ( \ ., opportunity is, in our view, neither here nor there The fact of the matter is that the only way this scheme can work is for both parties to be bound to their agreement as soon as that agreement is reached It is true that gomg through with the grievor's overtime assignment in this case would have resulted, on the agreed facts, in another Collective Agreement breach However, that is not the issue to be determined in this case, and the employer could have avoiped any subsequent breach by accepting the consequences of its mistake and compensating the grievor We note in passing that there was no evidence in this case of any damages incurred by the gnevor Article 7 6 directs a very specific result, and a finding of a damages is not the prerequisite to that result. Accordingly, and for the foregoing fieasons, the grievance is upheld, and the employer is ordered to compensate the grievor as set out above We remain < seized with respect to the implementation of this award DATED at Toronto this 14th day 0f December, 1993 /1/ / -----' ----------------- William Kaplan Vice-Chairperson ~I) ~~__ M Khalid Member I dissent (attached) , ---------------- F Collict Member \ \ - -,----- - ---- -- ~~ ( 10 { Chairperson's Addendum I have read Mr Collict's dissent, and wish to offer the following observations with respect to it. Management does have the statutory right to determine assignments, and it exercised that right in this case However, in assigning the overtime to the grievor and requiring him to report to work, it assumed certain obligations under Article 7 6 of the Collective Agreement. That provision does not abrogate any of management's statutory rights All that it does is set out a scheme for the compensation of employees who are required to report for work. The grievor in this case was assigned work and was required to report for that work. The fact that the grievor was subsequently advised that his overtime assignment had been rescinded, and that he was no longer required to report for work, does not alter the fact tmat the assignment and acceptance of the overtime work crystallized certain reciprocal obligations on both the part of the employer and the employee The employer cannot, as the dissenting member indicates, rescind its assignment and then hide behind its statutory rights with respect to assignment to avoid the Collective Agreement consequences of its mistake, particularly in a case such as this one where this particular employer was well aware of the arbitral interpretation of the exact Collective Agreement provision in issue. It should also be pointed out that the dissenting member's position would completely undermine the Collective Agreement provisions agreed to by the parties in successive negotiations by enabling the employer to rescind assignments any time and under any circumstances it wished without any Collective Agreement consequences based on an extremely broad, and, in my view, totally unsupportable, interpretation of the Crown Employees ColI~ctive Bargaining Act. Very simply, the grievor, in this case, on the uncontradicted evidence, was asked to work overtime He agreed to do so. He was required to report for work, and as soon as he was, he was entitled to the benefits of Article 7 6 This is so notwithstanding the fact that the grievor does not appear to have suffered any damages as a result of the employer's mista"ke, which for its part, it sought to quickly correct. It must do so, however, in accordance with the Collective Agreement. /' I _ .......,. i' ( \ 11 There are no manifest errors or exceptional circumstances in this case I The Arauio case was correctly decided, and even in its absence, the majority in the instant case would have reached exactly the same result. I RE G.S.B #3030/92 O'FLYNN & L.C.BO This Member is not in agreement with the majority in this award In brief summary, the reasons for thIs position are as foJlows 1 The ISSUE in this case is one of ASSIGNMENT, and not ENTITLEMENT 2 The position set out below was not argued by either of the parties In addition, it was not presented to the Board in ARAUJO However, it flows from the Collective Agreement (C.A.) and, more specifically, from section 18 of the Crown Emplovees Collective Baroainino Act which is a deemed provision of the C.A. between the parties. 3 Aside from the fact that the C.A. is'a matter of record, it was presented to this Board as Exhibit 3 4 The position set out below is in conformity with BLAKE (G.S.B. #1276/87) and, indeed, meets the test of an "exceptional circumstance" as set out in BLAKE It therefore provides for this Board to deviate from the ARAUJO decision which the majority declined to do in this case 5 With reference to the test of "manifest error" as related to ARAUJO, it is sufficient to note that the following position and argument was not put to that Board. 6 Very briefly, the "exceptional circumstance" which warrants this Board to deviate from ARAUJO is that, - _._.._~-- ~- - - --- _. - .-.-- - - ~ - ----- -- -- 2 i) the Board, in ARAUJO, abrogated the Employer's exclusive function to ASSIGN, and thereby altered the C A. (which is a violation of Article 27 10(a) of the C.A.}; and, ii) the Board exceeded its jurisdiction by deciding a matter which does not " come within the jurisdiction of a board;" (s.18(1), CECBA), and iii} whether the interpretation of Article 7 6 of the C.A. in ARAUJO is ! patently reasonable or not, the resrictio~ placed upon the Employer by the ARAUJO award impacts the exclusive function of the Employer to assign (or reassign), and, as stated in s. 18(1) of CECBA, " .such matters will not be the subject of collective baroaining " (underscoring added) Hence, the statute provides that the parties cannot engage in collective bargaining associated with this exclusive employer prerogative of assignment and, therefore, cannot negotiate the abrogation of the Employer's right to determine assignment as found in ARAUJO relative to the interpretation of Article 7 6 7 iFinally, jurisprudence relative to the above position may be found in the Divisional Court ruling~concerning G.S.B. #2499/86 (Court File No. 66/91. O'Leary. Hartt and Smith. JJ - Nov. 2. 1992). which dealt with the Employer's exclusive function to manage 8 Accordingly, this Member would have dismissed this subject grievance ~--- '> 3 The position of this Member on this case is as follows 1 The Collective. Agreement between the parties flows from the Crown Employees Collective Barqaininq Act (C.E.C.B.A.) 2 C.E.C.B.A. provides the following "18(1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage; which function, without limiting the generality of the foregoing, includes the tight to determine, a} employment, appointment, complement, organization, assiqnment, discipline b) and such matters will not be the subiect of collective barqaininq nor come within the iurisdiction of a board." . (underscoring added) 3. In this case Mr O'Flynn, the grievor, was assianed to work overtime on November 11, 1992. The Employer recognized that Mr Q'Flynn had been assiqned to work.this overtime out of rotation, contrary to the provisions of the , collective agreement. This mistake was 'determined within a short period of time (approxirnately 15 minutes as per the Employer, several hours as per the Union) However, this time interval was not an issue between the, parties and the possible prejudice to Mr O'Flynn also was not an issue. The Employer, on finding that it had failed to follow the provisions of the collective agreement, informed the grievor that he was not assianed to report to work on the statutory holiday of N0vember 11, 1992. - ._. . -- .'---". .- - .. . ---- -~ --~-_. --- -- .,. 4 4 In the view of this Member, !nasmuch as grievor O'Flynn was not assioned to report for overtime work on the statutory holiday of November 11, 1992, he therefore had no entitlement to the four hours at double time as provided for under Article 76 of the collective agreement, as he has claimed. 5 To put this more clearly, Article 76 of the CA. provides Mr O'Flynn with a credit of a minimum of four hours of double time - ONL Y if he " ,is required to report for any period of work on a paid holiday " (underscoring added) It was common ground between the parties that when it was found that an error had been made in assigning Mr O'Flynn to report to work, that he was then instructed that the was not required to work. Clearly, this was an assionment or instruction to the effect that Mr O'Flynn was not required to report for any period of work on November 11, 1992. 6 To state this position more generally and even more simply, i) As per ARAUJO, one has an "entitlement" if one is "required to work" (Art. 7 6) ii) One is "required to work" only if one is so "assigned" iii) Assignment to work is the exclusive function of the Employer, And conversely, if one is not assioned to work, one is not required to work, and hence, one has no entitlement. ~ 5 7 The Union bases its case upon G.S.B #1012/86 (ARAUJO) The Union argued both estoppel and res adjudicata, utilizing this case as its support. However,in the view of this Member, the ARAUJO case must not be followed for the following reasons a) the Board in G.S.B. #1012/86 (ARAUJO) seized jurisdiction associated with the matter of "assianment" which is an exclusive function of the employer as set out in s.18(1 )(a) of C.E.C.B.A., above, and b) the Board in G.S.B. #1012/86 (ARAUJO) made a finding of an "entitlement" on behalf of ARAUJO when, in fact, this was not a matter of - "entitlement", - but a simple matter of "assionment" - which the employer changed by re-assionment - a matter which was, and is an exclusive right of the employer; and, c) the Board in G.S.8. #1012/86 (ARAUJO) exceeded its jurisdiction by reading into the collective agreement a restriction upon the Employer which the language of article 7 16 of the C.A. could not reasonably provide. That is, in G.S.B #1012/86, the Board stated, at page 5, "A subsequent cancellation (of an assionment) by the Employer cannot operate to extinguish this entitlement." (brackets and underscoring, added) In the view of this Member. the Board in ARAUJO. i) exceeded its jurisdiction by interpreting an assionment to overtime, as an entitlement and concluding that the Employer could not re- assion That is, as per article 27 10{a) of the collective ( - ~ '; 6 - agreement, the board shall not alter, modify or amend the collective agreement, and ii} exceeded its jurisdiction by seizing jurisdiction of a matter of assionment, which was an exclusive function of the employer as set out in s. 18(1 )(a) of C.E.C.B.A. --- 8. In addition to the above, however. even if the interpretation QY the [?oard of Article 76 of the C.A. in ARAUJO was patently reasonable, it is nevertheless in conflict with the statute (CEGBA), for the parties are precluded from collective baroainina (relative to matters (s~ch as the right of assignment), which are the exclusive function of the Employer As stated in s. 18(1) of CECBA, J ) " such matters will not be the subject of collective baroainino II (underscoring added) Clearly therefore, although in the private sector the parties may collectively bargain modifications to claimed prerogatives of management, by statute this cannot be done by the parties- to this I subject G.A. which has a deemed provision (s. 18) which flows from the statute (CECBA). and which expressly states that there are specific and exclusive functions reserved to the Employer which shall not be the subject of collective bargaining The right to determine assionment is one of these exclusive functions. 9 In the opinion of this Member. the above constitutes an "exceptional circumstance"\as contemplated in BLAKE, and as a result, ARAUJO must not be followed. - - - - - - -- - - , , ., 7 " 10 Further with respect to the above, this Member would cite the Divisional Court ruling as related to an appeal to the G S.B. award in G S B #2499/86, as follows "In our view it was patently unreasonable for the majority to conclude as they did that the use by an employee of his or her own car may at times not be a "work method" and so be subject to bargaining In our view Sec. 18(1} is clear and "work method" cannot be subject to collective bargaining" {Court File No 66/91, before O'Leary, Hartt & Smith. JJ - Nov 2, 1992} ( Just as "work method" cannot be subject to collective bargaining as per s. 18(1) of CECBA, so also the matter of "assignment" in s. 18(1) of OECBA is an exclusive function of the Employer, - and it shall not "come within the iurisdiction of a board", and, "such matters will not be the subiect of collective barqainino" between the parties. 11 At page;8 of this majority award the following was stated, "In reaching this decision we should also point out that we were influenced by the fact that the ARAUJO award was not judicially reviewed and. more importantly , that subsequent to the rendering of that decision, the parties renegotiated their Collective Agreement, but did not make any material changes to the provision at issue." This Member agrees that the above did occur Notwithstanding the absence of action in this respect by the Employer, neither the ARAUJO award nor this subject O'FL YNN award can be allowed to stand because these cases are in . ~ -- ! ~ .] 8 conflict with the statute (CECBA) ARAUJO introduces the concept of "entitlement" which is in conflict with Article 27 10(a) of the C.A , arid both awards have denied the right of assignment by the Employer which is an exclusive function of the Employer 12 It may be somewhat superfluous to add the following with reference to the significance of the statute, (in this case, CECBA) However, Brown and Beatty at paqe 39, (1 :5400) may be cited as follows - "Although at one time it was assumed that an arbitrator would be acting in excess of his jurisdiction if he applied the terms of an otherwise applicable statute, it is now established that he is under a duty to construe and apply any relevant statute law" (underscoring added) Counsel for the Employer in the O'Flynn case advised the Board that Article 7 6 of the C.A. had to be read in context with other relevant provisions of the C.A. Section 18(1) of GECBA is not only a part of the CECBA statute. It also is a deerned provision of the C.A. The Board, therefore, clearly had an obligation to review the matters raised in the O'FL YNN case against the backdrop of both the C.A. and the statute Such a review gives rise to the "exceptional circumstance" contemplated in BLAKE and is the context in which this dissent is written. 13. The Employer had the right and "exclusive function" to re-schedule or re-assiqn Mr O'Flynn to not work overtime 0n November 11, 1992. The subject grievance of Mr O'Flynn should be dismissed. 9c)'~- ~ /rcJA3 DATE / FT CO