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HomeMy WebLinkAbout1993-1359.Kruczaj.96-03-25 ~~~ ~- ~ ~"'" ~~:~~~~~J' ONTARIO EMPLOYES DE LACOURONNE -r~ - c_ _---~=__~ ~~~~ - CROWN EMPL()YEES DE L'ONTARIO II-II GRIEVANCE C9MMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS-STREET WEST; SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE ,,(416) 326-1396 GSB # 1359/93 OLBEU # OLB113/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN .1 OLBEU (Kruczaj) Grievor' I J - and - The Crown in Right of Ontario (Liquor Control Board of ontario) Employer BEFORE. F Briggs Vice-Chairperson J. Carruthers Member M. O'~oole Member FOR THE J. Noble GRIEVOR, 'Counsel. ontario Liquor Boards Employees' Union FOR THE D .,Mombourquette EMPLOYER Counsel Liquor Control Board of ontario ,~ HEARING February 3, 1995 May 29, 1995 June 1, 1995 July 31, 1995 , i >t. .~ " The gnevor, Mr Orest KruczaJ, IS a casual clerk m store number 528 for the LIquor Control Board. He gneves that he was bemg harassed for exercIsmg hIs nghts under the CollectIve Agreement. The harassment took the form of other employees With less semonty bemg 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. L The LCBO has three types of employees, full tune, permanent part tnne 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 m advance The gnevor, like other casual employees, works both on the cash registers and at stockIng the shelves wIth product. Accordmg to the Employer, m early 1993, It was decided to mtroduce a new slnft m Store 528 whIch would be more cost effiCIent. The gnevor was offered the newly estabhshed .- shtfts and he lid not accept the work. Accordmgly, the slufts were then given to employees WIth less semonty Pnor to that tnne, there was a shIft whIch began at 2 00 p.m. and continued until 9'00 p.m. The newly estabhshed slnft began,at 12 00 noon contmumg until 8 '00 p;m. It was the pOSItIon of the Employer that It has the nght to determme the hours of work and that nght IS not generally fettered and IS specrfically not restncted by the availability of any casual worker Indeed, It was asserted that the Board IS WithOut JunslictIon to determme the hours of any slnft at any store It was further argued that the Employer dId not dtscnmmate agamstthe gnevor for any reason mcludmg for hIs havmg exerCIsed nghts upder the CollectIve Agreement. It'was the posIllon of the Umon 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 be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of 1 < __ _--.J - .~.,\, \~ 2 them or their representatives or members because of an employee's membership or non-membership in the Union, or because of the exercise by an employee of a right under this Agreement or under the Crown Employees Collective Bargaining Act. "- 31 7 Casual hours of work shall be allocated accordiI;1g to seniority of the casual employees assigned to the applicable work unit or department. Ms Noble; for the Dmon, took theposlnon that both prOVIsIOns had been VIOlated m tIns matter It was suggested that there IS no quahficatton to the broadly stared nghtsuilder ArtIcle 31 7 and, m these clfcumstances, It must be mterpreted to mean that If the gnevor IS available to work certam hours, those particular hours will be .asslgned to hun subject only to semonty proVISIons The gnevor began workIng as a casual clerk for the Employer m late 1988 Pnor to that he had worked occasIonally on an on-call baSIS for a few years. He began to work at store 528 m 1990 and'!t was m thts Store that the mstant gnevance has ItS geneSIS Amongst the casual employees !Ie IS the second most sernor Casuai workers fill Qut availabilIty sheets tOe let the Employer know when they are free to work. In August of 1992, the gnevor mmcated that he was not available to work on Mondays. However, on Tuesdays he was available from 4.30 p.m. to 1000 p.m., on I I Wednesdays from 430 p.m. to 9 30 p.m., Thursdays 4.30 p.m. to 1000 p.m. and Fndays lus availability was from 4.30 p.m. to 9'00 p.m. On Saturdays, he could work from 9 00 a.m. , until 6 00 p.m. Dunng the years from 1988 to the filmg of the gneva;nce, Mr KruczaJ wor~ed an average of three~vemngs per week and Saturdays. His availabihty was somewhat restncted because he also had a full tune posltton WIth the Worker's COIIlpensanon Board. Smce the schedule change m approX1J1lately May of 1993, the gnevor has been scheduled to work, on average, one evenmga week and full days on Saturdays , When the schedule changed, the gnevor spoke to the person he thought was responsible for ---- t { t 3 . " the schedulmg, Joe Goldenberg, AssIstant Store Manager He told Mr Goldenberg that he was concerned about the schedule change and Mr Goldenberg explamed to bun that a new shrftwas establIshed wInch began at 12'00 noon and contmued until 8 00 p.m. Mr KruczaJ was told that because oflus lnmted availability, he was not being scheduled to work as often. Accordmg to the gnevor, It was dunng that dJ.scUSSlOn, that Mr Goldenberg told bun that the ' effect of what he wanted was for a shrft to be splIt and that was expressly forbIdden under the terms and proVIsIons of the CollectIve Agreement. The gnevor testrfied that he thought the schedulmg change was a deliberate attempt to harass hun because of two gnevances he had filed m December of 1992 Those gnevances alleged that he was bemg "verbally harassed" by Mr Goldenberg. By all acc6unts~ Mr Krucza] and Mr Goldenberg lid not get along. There IS no need to bst the specIfics of much of therr - . / ( confhcts wInch were thoroughly canvassed m the eVIdence. It IS sufficIent to say that each made ungenerous comments regardIng the other and the Bo~d' IS satisfied that 'neIther man - made a real effort to establIsh a smooth workmg relatIonslnp Indeed, It appeared that each and any opportunIty was taken by each man to annoy the other NeIther was blameless , The filmg of the 1992 gnevances was a potentIally dJ.fficult SItuatIon because Mr Goldenberg was a member of the bargammg urnt and, co-mcIdenta1ly, was the zone representatIve for the Umon. In an effort to resolve the matter, both meri met WIth John Begley, Store Manager, and a temporary truce was worked out winch Included an apology from Mr Goldenberg. It was the gnevor's eVIdence that he aJid Mr Goldenberg contmued to have dIsputes and although no further gnevances were filed regardIng the matter, he occaSIOnally spoke to Mr Begley "off the record" about the SItuatIon. SometIme after the resolutIon of Ins harassment gnevance, the schedule was changed and It was the gnevor's testImony that the change was made to ensure that he was not allowed j .~ ~1; 4 to work as frequently as he had been. Co-workers WIth less semonty than the gnevor were scheduled to work hours that the gnevor beheved he ought to be assIgned. The new sluft begms at noon and, due to lus comrm1ment to lus full tune Job, It IS oopossible for lum to begm work on weekdays at that tune The gnevor thought that one of the~ mam reasons that Mr Goldenberg dIsapproved of hnn was because of lus "moOIlhghtmg" The gnevor reVIewed the nature of the work of the clerks. There was, a COnflIct ill the eVIdence as between lnm and others about the length of tune requrred for the opemng and closmg of the cash at the begmmng and end of each sluft. The Board IS of the VIew that the mscrepancy between the WItnesses m tlns regard could result from the vanous abihtIes of the ,/ employees who are preparm~ to'take over the casluer pOSItIon of readymg to leave for the day Mr Patnck Couch was ~ permanent part tune employee at Store 528 at the time of the filmg - of the gnevance. He was also the SecretaIy-Treasurerofthe Local Umon. He returned from a compensable mJury at the begmmng of 1993 and, upon Ins return, he was asked_by Mr Begley to take over the responsibility for draftmg the schedule Pnot to tins occurnng, Mr Goldenberg had been prepanng the first draft of the schedule. Both Mr Goldenberg and Mr Couch testIfied that Mr Begley had the final approval of all schedules. Accordmg to Mr Couc~ he was the firstto ralse the Issue of the estabhshment of a new shUt. He stated that the Employer was concerned about bemg m excess of the number of holp's allowed m the budget and he was of the VIew that he could reahze savmgs wIth the new schedule because four hours less per day would be used. The new schedule would allow f'or rehef ,Over all lunch and breakpen'odsand yet n,Ot have all employees checkmg m or out of therr cash at the bUSIest tunes of the day, that IS over the IUllch penod and between 400 p.m. and 600 - p.m. fi ! 5 Mr Kruczaj spoke With Mr Couch about Ins concerns over the change m schedules Mr Couch explamed that he illd the schedules and that the schedule was changed because of the , needs of the store and Its budget. Mr Kruczaj also had a sunilar mscusslOn With Mr Begley who gave lnm a smnlar response Mr Couch was concerned about the gnevor's complaInt and, accordmgly, he contacted John Coones, PreSident of the Ontano Liquor Board Employees Urnon Vla Ins electrornc mail system (heremafter referred to as "E-Mail") Thatcomputenzed dIscussion was proVlded for the Board, at least m part and It was as follows From John Coones to 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 you have a scheduled shift available, "2'00 - 9:30", it must firstbe offered to the senior PPT who 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 "next" most senior From Patrick Couch .ok. So then if the 2-9:30 shift CANNQT be filled to complition (sic) by the most senior casual (our PPT shifts are no problem) theQ He (or She) can't fIle 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 fmdanother 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 only come about in the past 6months or so, they did manage to work around it before but we have since had a PPT (me) return from compensation. From John Coones Absolutely correct! If "the shift" is available you MUST offer it to the most senior PPT If the PPT IS not available, or is already workmg, or there is no PPT in that store then "the shift' MUST be offered to the most senior Casual. If the senior casual is not able to do "the shift", (Le 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 NQT available to work the "shift" that is available. '~\ I I ~ ; 6 ~. . i After thIS electrornc correspondence, Mr Couch dIscussed WIth Joe Goldenberg whether he could reveal the above computenzed commumcallon to John Begley After bemg adVIsed that It was appropnate to do so, he gave a hard copy to Mr Begley and they dIscussed the matter Mr Begley test1fied that, as the result of seemg, the E-Mail he thought that the newly estabhshed shrft had the "seal of approval" Mr John Coones test1fied that he set up the bulletl11 board .for members to have an opportunitY to commumcate WIth each other m a forum. whtch was not available to the Employer Although he was not sure tfhe ever made It expressly known that he ilid not want any electrornc correspondence given to the Employer, he thought that all users knew or ought to have known that the mformatIon was not to be shared. He test1fied that It never occurred to lmn that Mr Couch would rely on hts answer or show It to Mr Begley UNION SUBMISSION Ms. Noble, for the Drnon, suggested that thts Board IS faced WIth two COnflICtIng nghts The ftrst are semonty nghts for members of the bargammg urnt. The other nghts are those of management to manage the workplace. The Drnon IS clearly of the VIew that sernonty nghts ought to prevall. In thts case, management made a deCISIon whtch adversely affects the gnevor's sernonty nghts The Drnon contended that It must be remembered that sernonty nghts are a cornerstone to the collectIve nghts of employees. It IS often the pnme motIvatIon for employees to orgarnze and bargam collecllvely The arbItral Junsprudence estabbshes that the standard of reVIew for the abrogatl11g of sernonty nghts IS htgh. The Drnon rehed upon Re The Crown in Right of Ontario (Liquor Control Board of --- -- - -- ---. - r t 7 Ontario) and OLBEU (Gordon) (January 10, 1991), unreported (DIssanayake) In that \ case, the gnevor, a casual part tune employee, was transferred from a store m Niagara Falls - to Mount Forest. Upon acceptIng the transfer she was asked 1f she was prepared to share hours WIth another casual The gnevor agreed but It was her eVIdence that she agreed thmkmg that the arrangement would be soon after changed by the Issuance of an arbItratIOn award. Shortly after amvmg at the new store the gnevor nqticed that the other employee was receIVIng more work than she was and she complamed WIthout satIsfactIOn to her manager She later apphed for a full tIme pOSItIon and when she lid not get that Job she found out that the arbItratIon award she had antIcIpated had been Issued and that as a result she was no longer the most sernor casual because her store failed to nnplement the arbItratIon award. '1 In findmg for the gnevor, the Board stated at page 18 We see no merit in this argument. The words "accordmg to-seniority" are significant. It is an "- 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 LeBO 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" 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 T4e Umon suggested that tlus case stands for the-prOpOSItIon that Mr Krucza] ought to have \ been offered any hours that he was available to work. Generally speakmg, the gnevor was available to work between 4.30 p.m. to 8.00 p.m. The Employer has taken the pOSItIon that "- It wants a casual employee dunng the hours 1200 noon to 5.00 p.m. The Board should order the Employer to allow the gnevor to work the houts needed that he IS available and the \ Employer can fill the other hours WIth the next most semor casual part tIme employee. It was conceded by the Umon that the Collective Agreement does not allow the Employer to , schedule any employee to work fewer than two consecutIve hours but tlns would not be ( offended m the mstant case I 1'7'~ C,;"'j- , . .\ $. , , .~ 8 In Re Tung-Sol of Canada Ltd. (1964), 15;L.A.C 161 (Reville), It was stated. Seniority is one of the most important and far-reaching benefits which the trade union movement has -:been able to secure for its members by virtue of the collectiye bargaining process An employee's 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 witl1 the utmost strictness wherever it is contended that an employee's seniority has been forfeited, trtmcated or abridged under the relevant sections of the collective agreement. Ms. Noble also proVided the Board WIth Re Government of Nova Scotia and Nova Scotia Government Employees Union (i990), 13 L.A.C (4th) 322 (Cromwell) ill that case, four account regulanon officers 'gneved that theft modIfied work schedule winch had been m place for a year was dIscontmued WIthout agreement and m contravennon of the collecnve agreement ill assessmgthe matter the arbItrator stated that he was of the View that there are four pnncIples to be taken mto account)he wordmg of the relevant collecnve agreement; I the extent to winch the decIsIon IS WIt!nn the scope of the employer's express or rmphed I authonty to manage, the more senously an employees rights are affected the Ingher the standard of reVIew; and the express proVIsIOns,or lack thereof found m the collective agreeIJlent must be carefully weIghed m decl(bng the standard of reVIew The Dmon m the Instant matter asserts that It IS. not suffiCIent that the Employer has need for an employee from noon Wltil 8 00 p.m. to msquahfy the gnevor's nght to hours of work over less JUJilor employees. NeIther IS It suffiCIent forthe Employer to say that It could not reasonably have scheduled otherwIse The eVIdence regardmg tlus Issue from Mr Couch was that It was awkward to break up the sfuft and the Dmon takes the posInon that awkwardness IS not a sufficIently fugh standard. The Drnon conceded that It IS WIthIn the purvIew of the Employer to reduce the total number of hours of work nrequrred. However, the allocanon of available hours IS CIrcumscribed by ~the terms and proVISIOns of the collectIve agreement SpecIfically, the hours that are available mlist first be offered to 1;he most sernor casuals. It was suggested that the Employer ----- I ~ ~ 1, 9 i sunply could not be bothered to mqurre as to whether another employee would split the sluft With thegnevor and that lack of effort must be to theIr detnment. In the altemanve, the Umon argu~d that the gnevor was discnmmated agamst m a fasluon because of IDS havmg exercised lus nghts under the collec1:1ve agreement by the filmg of a harassment gnevance pnor to the schedule bemg changed. Such treatment IS a vlOlanon of ( artIcle 2.1 of the. collecnve agreement. It was suggested that the eVidence was clear that Joe Goldenberg had considerable mfluence over the new shrft and that lus monvanon was to hurt the gnevor because of theIr .past aSSOCianons. Management cannot exercise Its authonty m ( a fasluon wluch IS arbitrary, discnmmatOlY Of m bad f31th. Mr Goldenberg was actmg as an agent of management at the relevant tunes Of, m the altemanve, he was domg the work of management and the Employer IS VIcanously hable for hun. 1 EMPLOYER SUBMISSIONS Mr Mompourquette, for .the Employer, first addressed the allegation that the gnevor expenenced repnsals due to lus exerclsmg lus collecnve agrtement nghts It was asserted' that a reVIew of the eVidence does not substannate the c1aun. The gnevor filed a gnevance and a meetIng was held and the matters were discussed and mmutes of settlement were SIgned. Mr Goldenberg apologIZed to the gnevor and no further gnevances were fued. Although the gnevor's eVidence was that the harassment contmued, neither Mr Goldenberg nor Mr Begley agreed WIth that testunony The gnevor tesnfied that many of lus comments to Mr Begley were made "off the record" That bemg the case, the gnevor cannot later complam If comments made are not Vigilantly followed up by the mana~er Further, the Board was asked to recall that ~ Goldenberg had VIrtually nothmg to do, With the schedu)mg of the new sluft. The eVldence was clear and uncontradIcted that the Idea arose With Mr Couch. ( ii ,'.' 10 RegardIng the core Issue of the mterpretation of artIcle 31 7, the Employer .(!sserted that some of the eVidence IS qwte relevant and of assIstance to the Board. Mr Begley mshtuted the SIDft at the suggeshon of Mr Couch. It was changed for a number of legItimate busmess reasons mcludmg the reduchon of person hours as the store was over budget. Havmg'one person work a 12 noon to 8 00 p.m. slnft, allowed for the rehevmg of other staff for looches and the transIhon penCld at the end of the day when the evenmg workers amved. Although there was a wspanty amongst Witnesses regardIng the amount of tIme reqUITed for dus tranSItional penod, the preponderance of eVidence revealed that dus was more -than a mere matter of"convemence as suggested by the Dmon. The eVidence of Mr Couch was that If two employees spht the shIft It would take an extra hour per day for the SIgnmg on and off that would be reqUITed. That IS a sIgmficant penod of 'work tIme and not a mere mconvemence The Employer subrmtted that the eVIdence of Mr Coones regardmg the E-Mail was not behevable and should not be taken mto accooot by the Board. SpecIfically, It was suggested that he knew or ought to have known that members would seek hIs View regardmg matters as the PresIdent of the Dmon not sunply as a co-member Mr Coones knew that hIs opmIon carned much more weIght than other members and so'he IS obhged to take responsioihty for IDS correspondence ) Mr Mombourquette argued that, at the tIme the gnevance was filed, artIcle 18 1 of the f CrQwn Employees Collective Bargaining Act was m effect and mcluded m that IS. a nght for the Employer to manage the work force In the alternative, IT thIs Board finds a late,nt or patent ambIguIty m the collectIve agreement, It was subrmtted by the Employer that the eVidence was clear that even the preSIdent of the umon agreed With the, positIon that the Employer now takes. In Re The Crown in Right of ~ ---- -- __u __ ~ , 'f . 11 Ontario (Ministry for the Solicitor General) and Ontario Public Service Employees Union (July 31, 1985) unreported (Knopf), It IS clear that tlns Board has the JunschctIon to J take extnnslC eVIdence mto account IT necessary for the detenmnatIon of a latent ambIgmty The Employer contended that rf the Dmon VIew were to prevail, It would lead to an absurd result. If the gnevance IS upheld, the entlre workplace would be m chaos. All casual ) employees With the most semonty m each worksIte would be able to chctate what theIr hours of work will be. The only lumtatIon would be that they could not be scheduled to work for less than two hours. If all employees could self schedule like the Dmon suggests, It IS possible that there would be gaps m the schedule of one hour whtch the Employer would. be unable to schedule \ In the further alternatIve, It was subrmtted that the Dmon IS estopped from assertmg thts pOSItIon gtve the representatIons made 'by Mr Coones. He agreed WIth the Employer's pOSItIon and the Employer acted accordmg to ItS detnment The Employer suggested that It IS essentIal for thts Board to make a fmdmg of credibihty and the only appropnate findmg IS that the gnevor and Mr Coones are not to be rehed upon. In reply the Dmon dtsagreed that any representatIon was made to the Employer by anyone m the Dmon and therefore It IS not estopped. DECISION The Dmon argued that the language of tln's CollectIve Agreement IS clear and unambIguous and It proVIdes that casual employees, unlike others, are scheduled hours of work, as opposed to shtfts, based on theIr availability The E~ployer, on the other hand took the pOSItIon that I 'je '1~ " 12 It had the nght to schedule smfts maccordance WIth Its operattonal needs and those esta,bhshed smfts are offered to the casual employees on the baSIS of theIr s~monty In the alternatIve, the language IS ambIguous and the past practtce should proVide aSSIstance ill detemunmg the appropnate illterpretatton of the Collective Agreement. It IS appropnate to fIrst consIder whether the alteratIOn of the hours of work was motivated \ by an attempt by the Employer to d1scnmmate agamst thegnevor for havmg preViously exercIsed ms nghts under the Collective Agreement. Weare of the View that tbe eVidence does not support such an allegation. It IS true that the gnevor and Mr Goldenberg dId not get along. Indeed, they were mcapable of mamtammg 9Ivihty WIth each other as mentIOned previously However, theuncontrad1cted eVidence was that the Idea for the new smft arose With Mr Couch ,and there was no suggestIon that Mr Couch was mterested m dIscnmmatIng agamstthe gnevor Mr Goldenberg was n,otchrectly illvolved ill the change of the hours to a new sIuft.- He was asked Ius oprmon but It was clear that he was not part of the deCISIOn makmg process m thIs regard. Further, the gnevor conceded that Mr Begley consIstently hstened to IDS complaInts and rectIfied the SItuatIon when he felt It was appropnate to do so There SImply was no eVidence that Mr Begley'partlCIpated m any manner that could be descnbed as a 'conspIracy to d1scnmmate agamst the gnevor Indeed, the uncontradIcted I eVIdence of Mr Begley and Mr Couch was that the new sluft was lll10ated for bona fIde operational reasons. The'store was overbudgef regardIng the number of "man hours" uttlIzed per day ThIs SItuatIon was not acceptable and the new schedule was developed to, ill part, allow for the reducoon of four workIng hours per day Therefore, we reject the allegation of dlscnmmaoon agamst the gnevOl: for havmg exercIsed lus nghts under the Collective Agreement. The Dmon strongly urged thIs Board to find that semonty IS a matter wluc4 IS sacrosanct m a CollectIve Agreement, vety possibly the most Important benefIt for Dinon members We ,!'; ~ 1~ 13 agree The arbItral Junsprudence over many years stands for dus propOSItIon. We do not disagree WIth that lme of cases. However, that does not take us, m and of Itself, to the result urged upon us by the Umon m dus matter We must look at the specIfic language of the CollectIve Agreement WIth that general pnnclple m mmd. } It IS helpful to reView some of the proVisIons of the CollectIve Agreement. ArtIcle 6 establIshes the hours of work for full tune employees At ArtIcle 6.2, "normal hours of work" are defined mto five vanous "sInfts" ArtIcle 3 7 proVides for hours of work and - overtune proViSIons for permanent part tune employees. ArtIcle 37.2 states, m part: (A) Regularly scheduled hours of work shall be posted at least two (2) weeks in advance for each establishment and shall 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) consecutive hours. (B) Hours of work may be changed without any premiums of penalty if agreed upon betweeJ,1 the employee and management. There IS no-def1ll1tIon of slufts m artIcle 37 as there IS m ArtIcle 6 NeIther IS there such a defimnon m ArtIcle 3 1 wmch prOVIdes for the hours of work fot casual employees. In ~ ) Art:1cle 31 1, casual employees have therr "hours of work" posted at least a week ill advance It IS further set out that "there shall be no splIt slufts" ArtIcle 37 1, wInch IS the prOVisIon upon wInch the Umon rehes, states that "casual hours of work sh~ be allocated accordIng ~ to the semonty of the casual employees assIgned to the apphcable work urnt or department" "- "- The CollectIve Agreement clearly ~tates that casual employees are. not entItled to the prOVisIons of ArtIcle 31 It IS the UmoIi's View that because the Collective Agreement proViSIOns for casual employees refers to the allocatIon of "hours of work" and not "slufts", tlns gnevance must succeed. Weare not convmced. There IS a reference to "slufts" m Art:1cle 31 1 We also note that, despIte the lack pf any defimtIon of slufts ill ArtIcle 37, the j J partIes make reference to the "second sluff' for permanent part tune employees. The term "second sluft" appears to be a term that IS only defined m ArtIple 6 of the Collecnve I ~ ~ . " 16 Weare of the View that IT the Umon were correct m Its mterpretatJ.on It would lead to an absurd result. It would reqwre, m eveI)' store WIthm the LCBO, the manager, schedulmg the most semor casual employees for eveI)' hour of therr availabihty so long as that penod of tIme IS not less than two hours Weare of the View that tlus IS not the mtended result of ArtIcle 317 GIven the docwnentary and Viva voce eVidence that the Board heard regardmg the, practIce of schedulmg hours of work to casual employees, we fmd that the CollectIve Agreement cannot be mterpreted as suggested by the Umon. GIven our deCISIOn m tlus regard, It IS unhecessary to conSIder the Employer's argument regardmg estoppel. ,For all of those reasonS, the gnevance IS mSmlSsed. Dated m Toronto, tlus 25 Dayof March. 1996 . , ~ ~ FelicIty D Bn s - Vice C "I Dissent" (dissent ~ttached) Jim Carruthers' -. UmonNommee ;J;t~F ..~.. (~y!-~-=~ ~ -... -~~'''- ,-~+=---,-~ ~'-'~ " Mike O'Toole - Employer NotiUnee '\ 03/13/96 11.37 ftl 416 398 4978 LOCAL 113 ------ :41005 ~ \).j ~ DISSENT r I do not agree with the majority of the panel that the language in Article 31 of the caUeative agreement is ambiguous and unclear Article 31 1 (b) provides that "Casuals, when scheduled to work on any day, shan not be employed for.less 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 clearly provides that - ,hours of work must be anocated to casual employees based on their seoJority, 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 wort< from 4 30 p,m. to 8'00 p.m., should have been allocated hours of work during his available period when the Employer had a requirement for staff Instead the Employer scheduled an employee junior to the Grievor to work Trom 12:00 noon to 8'00 pm.. a period which overlapped with the Grievors availability. and did not allocate any of these hours to the Grievor, although he was available. This is contrary to the collective agreement. In their reasons, the majority of the panel make reference to Articles 6 and 37 of the collective agreement. These Articles do not apply to casual employees, nor should they be used asa basis for a determination 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 implementation of the clear coUective agreement language (ot'ArticJe 31 leads to scheduling problems for the Employer,. it lies within the Employer's power to attempt to negotiate with the Union for more beneficial language. It is not the role of this arbitration panel to smooth the way for expedient scheduling for the Employer, regard\ess of the wording of the collective agreement -:-"''''r .~.. ~_............ ~ -, ~---- ',.-., .-.. I would have allowed the grievance. I ,_. --_. " I ! 1m Carruthers Union Nominee I .