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HomeMy WebLinkAbout1996-2698.JUNG97_04_21 O/llTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARKJ 1111 GRIEVANCE COMMISSION DE SETTLEMENT " REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2698/96 OLBEU # OLB321/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Jung) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE P Knopf Vice-Chairperson FOR THE J Noble GRIEVOR Counsel Ontario Liquor Board Employees Union FOR THE M Gage EMPLOYER Counsel Liquor Control Board of Ontario HEARING April 9, 1997 DECISION The partIes presented thIS case under theIr expedIted arbItratIon process It mvolves a gnevance allegmg the demal of an ,overtime opportumty on November 13, 1996 While the partIes were unable to reach an agreed statement of facts, there IS no dispute over the facts Because thiS was an expedIted proceedmg, the partIes presented the facts through statements given by counsel Each counsel listed the facts that the party mtended to rely upon to establish Its case It was apparent that some facts were agreed upon by both partIes It was also apparent that some facts were not dIsputed, but were not of a nature that the other party could have suffiCIent knowledge to endorse by way of consent. However, the presentatIon of facts III thIS matter enabled the partIes to aVOId the necessIty of calling eVIdence or embarkIng on a lengthy proceedIng. The Gnevor IS a Warehouseman 4 who works m Department 738 wluch IS a Vintages warehouse His regular sluft is the day sluft; 8 00 a.m. to 400 P m. In the normal course oflus work, orders or "bills" come mto Department 738 around 200 or 3 00 P m. The day ShIft workers fill the orders and process the bills. From tIme to tIme the bills amve late. The regular procedure III such CIrcumstances IS that the foreman and usually two employees from Department 738 are asked to stay after 4 00 P m. on an overtIme baSIS to process the bills. It IS the established practIce III Department 738 that where there IS an overtIme opportumty, It IS offered first to Department 738 employees on a rotatIOnal baSIS If there are not suffiCIent volunteers, then the overtIme opportumty IS offered to the employees In Department 739 If there are not suffiCIent volunteers from that department, then the work will be aSSIgned III Department 738 Up until October 1996, when the bills arnved late they usually amved approxImately one hour late. It then took 15 to 30 mInutes to process the bills Further, because of the method of dehvenng the bills up to the end of October 1996, there was a certam predictability about lateness The bills were generated from the InformatIOn Technology Department. EIther the InformatIOn Technology Department would adVIse Department 738 of when the expected tIme ofarnval would be, or there was an understandmg that the bills would arnve by about 5 00 P m - 2 - In October 1996, the computer system WhICh generated the bills was changed and a new maIn frame computer was Installed. In the InItial start up phase, there was a corporate lack of famihanty about the new system's "IdIOsyncrasIes" and there was no predlctabihty about how long It would take to dehver the bIlls once the 4 00 P mend of ShIft had passed. On the day In questIOn, November 13, 1996, the bIlls had not arnved by the end of the ShIft at 400 P m. The InformatIOn Technology Department was unable to predIct when the bills would be ready All the employees m Department 738 were sent home except for the foreman who stayed to Walt for the bills to arnve and was compensated for staYIng at the overtIme rate. The bills dId arnve at approXImately 5 30 At that time, the work Involved In processIng the bills was gIven to a day shIft employee from Department 739 who was In the vIcImty workIng on rus department's responsibilitIes on an overtIme basIs. AccordIng to the establIshed practIce and rotatIon In Department 738, If there was to be an overtIme opportumty available on November 13, It would have been offered to the gnevor Further, In hght of the fact that he worked overtIme on November 12, he would have been paId at double hIS regular rate of pay for haVIng worked two overtIme ShIfts on a consecutIve baSIS. AccordIngly, the Umon IS seekIng two hours of pay at double the rate by way of compensation for the lost overtIme opportumty The only "fuzzy area" of the undIsputed facts IS that the Umon asserts that the Employer knew or ought to have known what tIme the bills could be expected to amve on November 13 and, gIven the fact that the foreman stayed late, the Employer should have had a bargaInIng umt member stay and walt for at least two hours for the bills to arnve However, the Employer IndIcates that the InformatIOn Technology Branch adVIsed that It dId not know what the problem was that was causmg the delay of the pnntmg of the bIlls or when the bills could be expected to arnve The Position of the Parties The Umon argues that It should be Inferred that the Employer knew or ought to have known that the bills would arnve WIthIn a reasonable penod of tIme on November 13 It 15 asserted that the eVIdence to support that mference 15 the fact that - 3 - the foreman stayed and waIted for the bills As It turned out, the bills dId not arnve much later than normal and the work took only 30 mInutes to complete ThIs was saId to show that It would have been reasonable to ask an employee such as the gnevor to' stay for two hours on an overtIme baSIS to await the bills. Further, the fact that the foreman stayed and was paid overtIme was saId to be suffiCient to allow the Board to mfer that the Employer knew the bills would be commg m. In additIon, It was argued that great sIgruficance should be attached to the fact that an employee from another department was workmg on an overtime basIs and was available to be called to do the work of Department 738 It was suggested that the gnevor and hIS fellow employees would not have been sent home If the Employer had not antIcIpated beIng able to use the employee from the other department. The Uruon argued that "the reasonable course of actIon for the Employer" would have been to have employ,s from Department 738 WaIt on an overtIme basIs for the usual amount of tIme to see If the bills arnved. It was saId that It would then have been open to the Employer to send the gnevor home If there was no work to do after 1-1/2 or 2 hours. The reasonableness of thIs posItIon was SaId to be founded m the fact that the foreman dId precisely what the Uruon IS suggestIng. Tr Uruon relIes on the follOWIng three cases to support ItS posItIOn that the overtIme rotatIOn practIce should be enforced by the Board and that an overtime opporturuty arose m thIs situatIOn. DePetrillo and LCBO, GSB File 117-119/89 (Gorsky), Scarcello and LCBO, GSB File 1633/89 (Kaplan), Gwin and LCBO, GSB File 382/84 (Brandt) In the alternative, the Uruon argues that the gnevor should have been called back to do the work and paId a mIrumum of four hours pursuant to Article 16 1 O(b) whIch proVides that where an employee IS called back to work after leavmg the place of work and pnor to the start of hIs/her next schedule, that employee should be paId a mIrumum of four hours' pay at the overtime rate The Employer responds to the Uruon's allegatIon that the Employer knew or ought to have known that the bills would be COmIng m at a certam pomt, by saYIng that there was "absolutely no eVidence" as to why the foreman stayed or to support a findmg that the Employer knew or ought to have known when the bills would have been expected to arnve Counsel for the Employer suggested several reasons why the foreman may have stayed overtIme on that day However, counsel conceded that her suggestIons, gIven m argument, do not amount to eVIdence But It was stressed that the Board could not conclude, In the absence of eVidence, that the foreman stayed on an overtIme baSIS ~- - 4 - because the Employer knew when the bills would be COmIng. It was saId that the onus was on the Umon to prove the facts It was assertmg and not for the Employer to dIsprove anything. The Employer relied on the fact that the agreed eVIdence establIshes that Department 738 did not know what tIme the bills would be arnvmg. Further, It was stressed that there was no eVIdence that the Union can rely upon to suggest that It be mferred that the Employer sent the Department 738 employees home because It knew that It could call upon an employee from another department to fill the orders ThIS was saId to be an illogical Inference m lIght of the fact that the employee from Department 739 was workmg on an overtIme basIs on tasks whIch were completely unrelated to Department 738 The pOSItion of the Employer IS that It had no oblIgatIOn to keep an employee on an overtIme baSIS on the speculatIon that the bills could arnve and work would need to be done at some indefimte tIme m the future. It was saId that the Umon's pOSItiOn IS not supported by the collectIve agreement or the practIce. It was saId that the establIshed practice is SImply that If the Department knew or could predict when the bills would arnve, then employees were retamed on an overtIme baSIS to fill the orders. But the estabhshed practIce does not cover the SItuatIon when there IS no predIctabihty as to the arnval of the bills. It was str.essed that the mstallatIon of the new computer system took the predIctability away from the Employer Hence It was saId to be reasonable for the Employer not to keep someone there to WaIt for an mdefimte period of time Further, and m the alternative, It was argued that there IS no oblIgatIOn under the collective agreement to call back an employee m circumstances such as these By way of reply, counsel for the Umon argued that only the Employer has knowledge as to why the foreman was asked to stay It was SaId that It was appropnate for the Umon to ask that an mference be drawn as to why he stayed m relatIon to the late bills. However, It was also SaId that because the mformatIOn as to why the foreman stayed would be wlthm the knowledge of the Employer rather than the Umon, It would behove the Employer to have offered such an explanatIon. The Decision ThIS Award IS part of an expedIted process. The process serves the partIes well because It gIves the partIes the appropnate amount of tIme and resources for cases that fit WIthIn the cntena. Cases that are appropnate mclude those WIth few factual - - 5 - disputes. These parties are to be encouraged to agree upon facts and utilIze thIS process as much as possible. It would not benefit the partIes or labour relations If the parties were compelled to call lengthy evidence or find themselves disadvantaged at the end of the heanng by deCISions to hmIt the eVIdence. Much of the argument of both sIdes In thIS case focused on Inferences that could be drawn from the eVIdence This IS understandable given the Issues and few facts at hand We have a sItuatIOn where there IS no eVIdence as to what the foreman dId when he stayed on an overtIme baSIS on the evemng In questIon. ThIS Board could take a formalistIc approach and analyze the Issues of onus and determIne who has the responsibilIty to call eVIdence WIthIn one's control and In what CIrcumstances. But It would be detnmental to labour relatIons to deCIde a case such as thIs on the baSIS of onus. Onus IS a concept that IS Important only when there must be a weighIng of eVidence. Counsel for the parties took the appropriate and profeSSIOnal approach In thIs case of settIng forth their facts and agreeing to as many facts as IS possible They also indIcated WhICh facts could SImply not be challenged but need not be proven In a formal sense This aVOided the neceSSIty of wItnesses and saved the partIes much tIme and expense After having achieved thIs matunty In the parties' relationshIp, It would be contrary to good labour relatIons to deCide thIs case Simply on the question of onus or on Inferences. The case can and will be deCided solely on the baSIS of the agreed upon and/or unchallenged facts The facts are that there IS an estabhshed practice In Department 738 of offenng overtIme on a rotatIOnal baSIS. When the bills whIch generated work were late In the past, there was a predictability as to when they would amve Employees would be offered an overtime opportumty to Wait to fill the orders. ThIs usually meant approXimately two hours of overtIme for two employees and the foreman. On the date In questIOn, the bills had not arnved by the end of the day's shIft. A new computer system was In place and was not yet fully efficIent. There was no predIctabilIty about the arnval of the bills as there would have been In the past. All employees were sent home from Department 738 except for the foreman. He stayed to awaIt the bills and was paid on an overtIme baSIS The bIlls did arnve at approxImately 5 30 The work of filhng these orders was then aSSIgned to another employee from another department who was dOIng work for hIS own department - 6 - on an overtIme basIs. Offenng him this overtime was not consIstent WIth the polIcy of offenng Department 738 employees overtime before it was offered to other departments. Therefore, the question IS whether this assignment amounted to an overtime opportumty that should have triggered the use of the establIshed practIce of offenng overtIme wIthm Department 738 It may have been reasonable to have had a Department 738 employee stay on an overtIme baSIS and awaIt the arnval of the bIlls. He/she could have been sent home after two hours If the bills had not yet appeared. In fact the bills dId appear and the work was completed wIthm those two hours But the case cannot be decIded on the baSIS of reasonableness My functIon IS sImply to apply and mterpret the collectIve agreement and the parties' establIshed overtime practIce NeIther refers to the concept of reasonableness m tms context. The established practice applicable In tms situatIOn dictates that an overtime opporturuty In Department 738 should be offered first to Department 738 employees. But the SItuatIon on November 13 cannot be viewed as creating an overtime opporturuty As the Scarcella case, supra, pomts out, the Employer has the nght, subject to the provIsions In the collectIve agreement, to use its resources to aVOId overtIme It therefore follows that the Employer has the nght to chose not to aSSIgn overtIme work or schedule overtime where It can be aVOIded. The fact that an overtime work opportumty may potentIally eXIst does not dIctate that a worker mu -'~ be assIgned to do that work. The Employer can choose not to aSSIgn anyone to It UY~less there IS an actual overtIme opportumty In the case at hand, the Employer could have asked for a volunteer to stay on an overtIme baSIS and aWaIt the bIlls. The Employer chose not to do thIS. Its deCISion was legItImate given the unpredIctabihty of the bills arnval because of the new computer system. The deCISIon would have been suspect and contrary to practIce If there had been an estImated time of the arrIval because there was a practice of assIgmng overtIme when bills were expected WIthin a predIctable tIme But notmng 10 the collectIve agreement or the practIce requIres thIS employer to keep an employee waIt10g on an overtIme baSIS for a potentIal of work. Therefore It cannot be Said that eIther the collectIve agreement or the procedure was VIOlated. - 7 - The fact that the work dId matenahz.~ one and a half hours after the end of the regular shIft IS not determmative. At that pomt, an employee from another department was called away from other overtIme tasks and asked to fill these orders. The eVIdence does not establIsh that hIS presence was hnked to the late arnval of the bills. Indeed, hIS work was unrelated and he was called from other dutIes for one half hour to complete the work for Department 738 Under these cIrcumstances, the events of November 13 should not be vIewed as a demal of an overtIme opportumty to the gnevor Unusual facts came 111tO play on November 13 Further, while the collectIve agreement does contemplate a nummum payment If an employee IS called back to work pnor to the commencement of hIs next regular ShIft (ArtIcle 6 lO(b)), nothIng m the collectIve agreement obhgates an employer to call back an employee In the CIrcumstances at play In thIs case For all these reasons, the gnevance IS dIsnussed. DATED at Toronto, Ontano, thIs 21st day of April, 1997 0'~ Paula Knopf - Vice-ChaIrp~son -~ O/llTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/llTARKJ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE600, TORONTOONMSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2720/96 OPSEU # 97C093 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIo PublIc ServIce Employees Umon (Sharon Knapp) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE RandI Hammer Abramsky Vice ChaIr FOR THE Mary MackInnon GRIEVOR Counsel, Bode & Mackmnon Bamsters & SolIcItors FOR THE Lucy SIraco EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Apn126,1999 INTERIM ORDER Under the specIfic facts of thIS case, the Employer must elect whether or not to call eVIdence If It wIshes to proceed wIth Its motIon for non-sUIt. Issued thIS 3rd day of June, 1999, In Toronto ~UL H- #oY?fY7 ~I'y R::andl Hammer Abramsky, Vict.5?mr