HomeMy WebLinkAbout1998-0236.Union Grievance.01-05-09 Decision
o NTARW EMPU) YES DE L4 COURONNE
CROW"!EMPU)YEES DE L 'ONTARW
GRIEVANCE COMMISSION DE
SETllEMENT REGLEMENT
BOARD DES GRI EFS
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GSB#0236/98
UNION#98U041
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Emplovees Umon
(Umon Gnevance)
Gnevor
- and -
The Crown m RIght of Ontano
(Mimstn of CorrectIOnal ServIces)
Employer
BEFORE Gern Lee Vice-Chair
FOR THE DavId Wnght, Counsel
GRIEVOR Rvder Wnght, Blair & Dovle
Bamsters and SohcItors
FOR THE Len HatzIs, Counsel
EMPLOYER Legal ServIces Branch
Management Board Secretanat
HEARING January 30th 2001 and Apnl 30th 2001
2
IntroductIOn
ThIS case concerns a polIcy gnevance dated Apnl 1 1998 allegmg that the employer
was vIOlatmg artIcle Cor 802 of the collectIve agreement at the Guelph CorrectIOnal
Centre (GCC) In a medlarb seSSIOn that took place on January 30th 2001 a sIgmficant
number of Issues were resolved wIth respect to the local overtIme agreement for
ClasSIfied CorrectIOnal Officers However the partIes could not reach agreement on the
questlOn of an appropnate remedy where a CorrectIOnal Officer (CO) had been demed an
overtIme opportumty to whIch she was entItled. In thIS regard, the partIes agreed to
submIt a Statement of Facts and Issues, whIch would contam certam hypothetIcal
scenanos for thIS Board to address By proceedmg m thIS manner the partIes were
hopeful that my decIsIOn would enable them to resolve approxImately 75 outstandmg
overtIme gnevances at GCC The matter resumed on Apnl 9 2001 where counsel for the
umon and the employer made submISSIOns based on the Statement of Facts and Issues
(below)
Statement of Facts and Issues
Back2:round.
1 The partIes have agreed to spht the Issue of habIhn and remed, wIth respect to
the group and pohc, gnevances before the Gnevance Settlement Board. The
partIes are seekmg a generahzed deCISIOn from the arbItrator on the Issue of
remed, onh m the context of certam fact SItuatIOns mentIOned below The fact
SItuatIOns are mereh hypothetIcal and are deSIgned to reflect SItuatIOns where
habIht, IS not contested.
2. The sole purpose for thIS referral to the Gnevance Settlement Board at thIS tIme
IS to aSSIst the partIes m dealmg WIth the numerous mdIvIdual gnevances filed m
relatIOn to the local overtIme agreement and also aSSIst WIth resolvmg an, future
gnevances and dIsputes m the context of the local agreement at Guelph.
3 The employer dIsputes an, allegatIOn that It has VIOlated an, of ItS obhgatIOns
under the current collectIve agreement or the relevant local agreement m relatIOn
to the subject matter of these gnevances
Facts.
4 OPSEU and the Mimstn entered mto an OvertIme DIstributIOn Agreement for
CorrectIOnal Officers at the Guelph CorrectIOnal Centre dated June 5 1998 The
Agreement states that the partIes agree that the overtIme pohc, IS to ensure a fair
3
and eqmtable dIstributIOn of overtIme at the Guelph CorrectIOnal Centre and IS
m keepmg wIth ArtIcle Cor 8 of the CorrectIOnal Bargammg Umt CollectIve
Agreement.
5 There have been tempo ran exceptIOns to the local agreement dunng the hohda,
season, whIch have been agreed to b, the partIes
ScenariOs.
1 The computer system whIch tracks overtIme hour s malfunctIOns and
consequenth an maccurate accountmg of hours for overtIme hmng purposes
results A classIfied correctIOnal officer (CO A) WIth actuallesser hours relatIve
to another classIfied correctIOnal officer (CO B) IS not contacted for overtIme
consIderatIOn for a da, ShIft on Januan 12 per the local agreement and accepted
procedures CO B works the overtIme ShIft mstead. CO A has a hIston of
requestmg numerous overtIme ShIftS m an, gIven week and further has requested
overtIme ShIftS subsequent to Januan 12 On Januan 13 the employer offers
CO A the opportumt, to work another overtIme ShIft of her chOIce m hght of the
computer malfunctIOn.
What effect, If an, do the followmg alteratIOns have on the Issue of remed,
(I) the employer offers CO A the opportumn to work another overtIme ShIft of her
chOIce but thIS offer IS made 2 weeks later on Januan 26
(11) the employer offers CO A the opportumn to work another overtIme ShIft of her
chOIce but thIS offer IS made three months later on Apri112
(111) the employer offers CO A a speCIal opportumt, for overtIme consIstmg of the
same number of hours mIssed. The speCial opportumt, to work overtIme IS to be
utihzed at CO A S dIscretIOn. The understandmg IS that thIS opportumt, would
be m addItIOn to an, overtIme that the employer would otherwIse find It
necessan to schedule and whether or not the employer would otherwIse have
reqmred anyone to work overtIme
(iv) the employer offers CO A a speCial opportumt, for overtIme tIed to trammg
SpecIficalh CO A stIll needs to complete vanous components of her mandaton
trammg, whIch m thIS example IS restramt trammg The restramt trammg course
IS scheduled to occur on a da, when CO A IS alread, scheduled to work at the
mstItutIOn. Under normal CIrcumstances, CO A would be paid her eIght hours
pa, to complete the trammg In hght of the overtIme Issue noted above the
employer offers to pa, CO A twelve hours pa, for the upcommg eIght-hour
trammg da,
(v) the employer does not offer CO A another overtIme ShIft m hght of the fact that
CO A worked an overtIme ShIft the ven next da,
(VI) CO A generalh requests onh one overtIme ShIft per month, whIch m thIS
example was Januan 12
4
(vu) the employer and the umon learn that CO A S request was deliberateh
overlooked b, the scheduhng person m charge of assIgmng overtIme
( V111 ) there IS eVIdence to suggest that a vast number of requests filed b, correctIOnal
officers m the precedmg months have been mnocenth overlooked b, the
employer These omISSIOns reflect a SIzeable amount of hours m relatIOn to the
actual overtIme hours assIgned.
2 Usmg the same fact scenano as number one CO A s overtIme ShIft IS lost to CO
C an unclassIfied correctIOnal officer
3 CO D alleges that on Februan 9 he requested to work an overtIme ShIft on
Februan 10 per the accepted procedures The requested overtIme ShIft IS
proVIded to another CO who has more hours of overtIme accrued than CO D
Although the employer dIsputes that CO D made the request for the speCIfic ShIft
m questIOn, the employer ultImateh accepts that CO D made the request and
offers hIm another overtIme opportumn for the ven next da, Februan 11
What effect, If an, do the followmg alteratIOns have on the Issue of remed, ?
(I) the employer offers CO D the opportumn to work another overtIme ShIft of hIS
chOIce to be taken wIthm the next thIrt, days
(u) the employer and the umon learn that CO D s request was deliberateh
overlooked b, the scheduhng person m charge of assIgmng overtIme
(111) there IS eVIdence to suggest that a vast number of requests filed b, correctIOnal
officers m the precedmg months have been mnocenth overlooked b, the
employer These omISSIOns reflect a SIzeable amount of hours m relatIOn to the
actual overtIme hours assIgned.
(IV) the employer offers CO D the opportumn to work another overtIme ShIft of hIS
chOIce but thIS offer IS made 2 weeks later on Februan 26
(v) the employer offers CO D the opportumn to work another overtIme ShIft of hIS
chOIce but thIS offer IS made three months later on Ma, 12
(VI) the employer offers CO D a speCial opportumt, for overtIme consIstmg of the
same number of hours mIssed. The speCial opportumt, to work overtIme IS to be
utihzed at CO D S dIscretIOn. The understandmg IS that thIS opportumt, would
be m addItIOn to an, overtIme that the employer would otherwIse find It
necessan to schedule and whether or not the employer would otherwIse have
reqmred anyone to work overtIme
(vu) the employer offers CO D a speCial opportumt, for overtIme tIed to trammg
SpecIficalh CO D stIll needs to complete vanous components of her mandaton
trammg, whIch m thIS example IS restramt trammg The restramt trammg course
IS scheduled to occur on a da, when CO D IS alread, scheduled to work at the
mstItutIOn. Under normal CIrcumstances, CO D would be paid her eIght hours
pa, to complete the trammg In hght of the overtIme Issue noted above the
5
employer offers to pa, CO D twelve hours pa, for the upcommg eIght-hour
trammg da,
( V111 ) the employer does not offer CO D another overtIme ShIft m hght of the fact that
CO D worked an overtIme ShIft the ven next da,
(IX) CO D generalh requests onh one overtIme ShIft per month, whIch m thIS
example was Februan 10
4 On April 25 a manager hIres CO E for an overtIme ShIft. It IS revealed that the
overtIme ShIft was not reqUIred b, the employer on Apnl 25 and that the manager
made a mIstake m assIgmng overtIme on that da, CO F learns of the Apn125th
aSSIgnment and alerts the employer to the fact that he had requested the same
overtIme ShIft and that he had pnont, over CO E m terms of aSSIgnment of
overtIme CO F mSIsts that he should be compensated regardless If an error was
made or whether overtIme was actualh reqUIred b, the employer CO F works
overtIme on Apnl 26th
What effect, If an, do the followmg alteratIOns have on the Issue of remed,
(I) the employer offers CO F another overtIme ShIft of hIS chOIce to be taken wIthm
the next thnn days
(11) the employer offers CO F another overtIme ShIft of hIS chOIce to be taken wIthm
the next nmen days as CO F IS leavmg on hohdays for the next month.
The Statement of Pacts and Issues makes reference to the OvertIme DIstnbutIOn
Agreement (the Local Agreement) and artIcle Cor 8.2 1 of the CorrectIOnal Bargammg
Umt CollectIve Agreement. The relevant sectIOns of the local agreement and artIcle 8 2 1
are reproduced below'
COR 8.2 1 In the aSSIgnment of overtIme the Employer agrees to develop methods
of dIstributmg overtIme at the local workplace that are fair and eqUItable after havmg
ensured that all ItS operatIOnal reqUIrements are met.
Local Agreement
Preamble
The partIes agree that the overtIme pohc, IS to ensure a fair and eqUItable
dIstributIOn of overtIme at the Guelph CorrectIOnal Centre and IS m keepmg WIth
ArtIcle Cor 8 of the CorrectIOnal Bargammg Umt CollectIve Agreement.
6 The Scheduhng Officer/ShIft Manager wIll ensure the Officer WIth the least
amount of accumulated overtIme hours IS called first m order to equahze
overtIme dIstributIOn. Hours wIll accumulate over a Two Calendar Month
penod after whIch the prevIOUS months totals wIll be ehmmated. For
example June and the ongomg month (Juh) Entenng August, June totals
wIll be dropped and accumulatIOn will be based on Juh/August and so on.
6
13 Should an mdIvIdual have a concern m regards to the hmng of a specIfic
overtIme ShIft, the, should contact the Schedulmg Manager dIrecth WIth
theIr concerns at the earhest tIme The Schedulmg Manager will reVIew the
mdIvIdual s concern and, If necessan demonstrate the reason for the
overtIme hIre whIch IS reflected on the overtIme computer screen, m keepmg
WIth thIS agreement. Where possible when an error IS dIscovered, the
Scheduhng manager shall attempt to rectIf, the SItuatIOn WIth the affected
mdIvIdual
UNION ARGUMENT
Counsel for the umon takes the pOSItIOn that the employer has entered mto an
agreement WIth the local umon regardmg the dIstnbutIOn of overtIme and IS bound by
that agreement. Counsel stated that both the collectIve agreement and the local agreement
are sIlent WIth respect to remedy The umon contends that If a CO was Improperly demed
an overtIme aSSIgnment, the only appropnate remedy would be monetary compensatIOn
and not an "m-kmd" remedy I e a future opportumty to work at overtIme rates
The umon argues that the agreed upon system for dIstnbutmg overtIme at GCC IS
neIther a semonty-based system, nor IS It a rotatIOnal system Accordmg to the umon, the
system IS "umque" and may m some form, resemble an equalIzatIOn system
The umon acknowledged that the arbItral Junsprudence, m general, establIshes
that there IS a presumptlOn that a remedy m kmd may be appropnate m certam mstances
where there has been a lost overtIme opportumty Counsel argued that It IS also well
establIshed that an m-kmd remedy wIll not be granted m SItuatIOns where It would SImply
create further VIOlatIOns of the collectIve agreement. For that reason, the umon stated that
the system m place at the GCC was SImply not amenable to m-kmd remedIes
The umon descnbed the system at GCC as a voluntary system whereby cas
mterested m overtIme aSSIgnments mdIcate theIr mterest and avaIlabIlIty on a dally baSIS
On any gIven day a CO can select from a WIde range of dIfferent ShIft optIOns If an
overtIme opportumty anses, the schedulIng officer checks the overtIme lIst to see whIch
cas have SIgned up for the ShIft m questIOn. The schedulIng officer then attempts to fill
7
the ShIft by contactmg employees m the "pool" begmmng WIth the CO WIth the least
amount of accumulated overtIme hours, untIl the ShIft IS filled. The umon argues that thIS
IS the extent to whIch overtIme equalIzatIOn applIes
Counsel for the umon stated that the pool of COs mterested m overtIme changes
on a dally baSIS Some employees mIght SIgn up for one or two ShIftS per month, others
may SIgn up on a more frequent baSIS Consequently as the pool of avaIlable COs
changes on a dally baSIS, the employee IdentIfied as havmg the least amount of
accumulated overtIme hours would also m most mstances, change
Counsel stated that when an error IS dIscovered at GCC the actual remedy
proposed by the employer IS to award the aggneved CO a replacement overtIme shIft.
ThIS IS achIeved by placmg the CO's name to the top of the lIst for the next avaIlable
overtIme opportumty Counsel submItted that as a result of thIS approach, the pool
becomes dIstorted when an otherwIse elIgible CO IS bumped from the top of the lIst m
order to accommodate the CO who mIssed the overtIme aSSIgnment. Umon counsel
submIts that thIS approach merely leads to addItIOnal problems or gnevances from other
COs
With respect to the "specIal" overtIme opportumtIes, umon counsel argues that the
"supernumerary" aSSIgnment IS stIll work that belongs to the CO overtIme group and by
assIgmng the work to CO A It would be "lost" to the rest of the group Further the
proposed aSSIgnment would proVIde no economIC value to the employer that IS, the
employer would be paymg for a task that was not really necessary Umon counsel added
that both the supernumerary and trammg aSSIgnments are a reCIpe for dIsagreement
between the partIes and would be dIfficult to Implement. Counsel stated that both
proposals would create further problems m that they would adversely affect the nghts of
other COs Counsel added that the trammg aSSIgnment does not fully compensate the
gnevor as It only results m four hours extra pay when the gnevor had m fact lost 12
hours pay (8 hours pay at tIme and one half)
8
In summary the uruon submItted that If the Board has any doubt whether a
proposed remedy m kmd wIll effectIvely redress the loss caused by an overtIme breach,
wIthout Itself causmg another breach, a monetary remedy should be ordered.
Umon counsel made reference to the followmg authontIes m support of hIS case
Re Dominion Colour COlp and Teamsters Chemical, Energy and Allied lJ, orkers Loc
1880 (1997) 64 L.A.C (/11)(0 Neil) Re Cambridge (City) andA.T U Loc 1608
(1997) 65 L.A.C (/11) (Tims) Re OLBEU and Liquor Control Board of Ontario (Sousa)
datedApril13 2000 GSB File No 1492 98 (BrolJ,n) Re OLBEU and Liquor Control
Board of Ontario (De Petrillo et al) dated August 2 1989 GSB File No 117 -119 89
(Gorsky) and Re OPSEU and Ministry of Correctional Services (Chard) dated January
21 1994 GSBNo 139893(Kaplan)
EMPLOYER ARGUMENT
FIrstly the employer submIts that as a startmg pomt, one must look to artIcle 8 2 1
of the collectIve agreement and the preamble of the local agreement m order to determme
the appropnate remedy Counsel stated that artIcle 8.2 1 reqUIres the employer m the
aSSIgnment of overtIme to be " fair and eqUItable after havmg ensured that all ItS
operatIOnal reqUIrements are met." The preamble of the local agreement reIterates thIS
proVISIOn when It descnbes that the purpose of the local agreement IS to " ensure a
fair and eqUItable dIstnbutIOn of overtIme at Guelph CorrectIOnal Centre, and IS m
keepmg WIth Cor 8 of the CorrectIOnal Bargammg Umt CollectIve Agreement."
The employer acknowledged that there IS no speCIfic mentIOn of remedy eIther m
the collectIve agreement or the local agreement. Employer counsel noted that artIcle 13
of the local agreement comes closest to dIscussmg a remedy when It refers COs WIth
"concerns" to the SchedulIng Officer to" attempt to rectIfy the SItuatIOn WIth the
affected mdIvIdual" Employer counsel submItted that as there IS no speCIfic mentIOn of
remedy m eIther agreement, and based on overtIme dIstnbutIOn bemg subJect to
9
" operatIOnal reqUIrements" the employer IS entItled to enJoy "fleXIbIlIty" wIth respect to
remedy and overtIme dIstnbutIOn.
Secondly counsel submIts that ArtIcle 6 of the Local Agreement reqUIres the
employer to "equalIze" overtIme opportumtIes wIthm a rollIng two month tIme penod.
Employer counsel descnbed the overtIme dIstnbutIOn system m place at GCC as an
equalIzatIOn system and that bUIlt m to such a system IS an "automatIC correctIOn factor"
That IS, If a CO was Improperly demed an overtIme opportumty she would not be
credIted wIth the overtIme hours mIssed. The error therefore, IS automatIcally corrected
because the CO would establIsh her nght to subsequent overtIme assIgnments wIthm the
tIme frame for equalIzatIOn. As a result, the affected CO would not be dIsadvantaged m
relatIOn to other COs m the overtIme group Counsel submItted that because of thIS
factor the Board must find that If a breach occurs, the equalIzatIOn system Itself
automatIcally proVIdes a bUIlt-m remedy
ThIrdly counsel asks me to carefully conSIder the employer's proposal regardmg
"speCIal" overtIme opportumtIes and to conclude that thIS approach reconcIles the
mterests of both the employer and the employee In each case, the remedIes proposed do
not reqUIre the employer to pay for tIme that IS not worked. Furthermore, both scenanos
confirm that there was no delIberate breach of the overtIme protocol by the employer nor
was there any mdIcatlOn of a perSIstent pattern of mIstakes Counsel contended that both
proposals would not adversely affect the nghts of other COs, nor would they lead to a
breach of the local agreement.
Employer counsel referred to the followmg authontIes m support of hIS case Re
Canadian Johns-Manville Co and International Chemical Workers Union, Local 346
(1971) 22 L.A.C 396 (Weiler) Re Canadian Johns-Manville Co Ltd and International
Chemical Workers Union, Local 346 (1974) 12 L.A.C (2d) (Burkett) Re PLH Aviation
Services Inc and I C T U Local] (1994) 45 L.A. C (lh) (Hicking) Re Cabot Carbon of
Canada, Ltd and Oil, Chemical and Atomic Workers Local 9-]4 (1980) 28 L.A.C (2n(~
(Palmer) Counsel also submItted an artIcle from Marguente Jackson tItled. Lost
10
Overtime Opportunities Cash or In Kind Remedies (The ongm of thIS artIcle was not
provIded)
DECISION
The sole purpose of thIS polIcy gnevance referral to the Board IS to provIde a
generalIzed decIsIOn on the Issue of remedy only m the context of certam fact sItuatIOns
described m the Statement of Pacts and Issues Hopefully thIS decIslOn on the Issue of
remedy wIll also assIst the partIes at GCC to deal wIth the outstandmg gnevances and
any pOSSIble future dIsputes regardmg the local overtIme agreement. With respect to the
outstandmg gnevances, the employer currently dIsputes any allegatIOn that It has VIOlated
ItS oblIgatIOns under the collectIve agreement or the relevant local agreement.
I preface my comments therefore by notmg that whIle I hope the findmgs set out
herem wIll be of assIstance to the partIes at GCC the mdIvIdual CIrcumstances of any
partIcular case must be conSIdered m assessmg the appropnate result.
At common law the ordmary remedy for breach of contract IS an award of
damages In calculatmg the amount, the obJect of a court IS not to pumsh the party m
breach for the wrong mflIcted, but to compensate the mJured party for the loss suffered.
The obJ ect of an award of damages IS to place the plamtIff m the same posItIOn as If the
contract had been performed, m so far as a monetary award can accomplIsh that goal
There IS, however a range of remedIes avaIlable to an arbItratIOn board m
addItIOn to monetary compensatIOn. In some cases, from the pomt of VIew of both the
gnevor and the employer an award of damages can be somewhat defectIve m fulfillIng
the obJectIves of contract remedIes The more appropnate remedy may be to compensate
the gnevor m "kmd" rather than provIdmg monetary compensatIOn.
In SItuatIOns where there has been an Improper allocatIOn of overtIme, the
aggneved employee has been depnved of an opportumty to work overtIme In certam
CIrcumstances, thIS can be restored to the employee dIrectly by provIdmg a future
11
overtIme opportumty rather than mdIrectly through a monetary award. These general
proposItIOns find expreSSIOn m Canadian Johns- Manville Co at pp 397-8 and 401 a
case mcluded m the employer's bnef of authontIes and cIted m a number of the
authontIes drawn to my attentIOn by counsel for the umon. In OLBEU and Liquor
Control Board of Ontario at pp 8 ArbItrator Brown makes the same pomt about the
general obJectIve of remedIes for breach of a collectIve agreement
The purpose of contract remedIes IS to place the part, harmed b, a breach
m a posItIOn as close as possible to the one whIch would have been
occupIed If no breach had occurred. Damages m the full amount of the
overtIme pa, lost always ensure the part, aggneved IS no worse off than If
the agreement had not been VIOlated. Indeed, such monetan compensatIOn
necessanh entails an element of over compensatIOn for the gnevor as an
mdIvIdual, because thIS person IS paid for overtIme not worked, whereas he
or she would have worked for overtIme pa, If the mfractIOn had not
happened. In kmd rehef aVOIds over compensatIOn b, requmng the gnevor
to work m exchange for the mone, receIved. However an m kmd remed,
sometImes cannot adequatel, repair the harm suffered eIther b, the gnevor
as an mdIvIdual or b, members of the bargammg umt as a group To aVOId
over compensatIOn, arbItrators generalh have awarded m kmd rehef so
long as It redresses the loss caused b, a VIOlatIOn. Monetan where
compensatIOn has been awarded, even though It over compensates, another
overtIme aSSIgnment would not redress the SItuatIOn. In choosmg between
these two types of remed, the central questIOn IS whether m kmd rehef
would adequateh repair the harm caused b, a breach.
There has been a long-standmg debate amongst arbItrators as to whether an m-
kmd remedy IS more appropnate than an award of damages for lost overtIme
opportumtIes In general, arbItrators appear to subscnbe to the VIew that an m kmd
remedy IS the preferred approach, provIdmg It IS practIcal to Implement such a remedy
In the PLH Aviation Services case Professor HicklIng when faced WIth the chOIce
of the appropnate remedy stated
the content of the collectIve agreement ma, eIther ImphcIth rule out
the possibIht, of remedIes m-kmd or Impose such practIcal ImpedIments to
theIr use as senoush to curtaIl theIr practIcahn m man, SItuatIOns The
examples contamed m the cases CIted tend to fall mto one of two broad
categones In one the nght to overtIme IS dependent upon semonn In
the other the agreement contemplates the eqmtable dIstributIOn of
overtIme over a penod of tIme That penod ma, be the duratIOn of the
collectIve agreement or a more hmIted term.
12
An, remed, proposed must be consIstent WIth the terms of the collectIve
agreement. Where the nght IS geared to semonn It ma, be dIfficult (If not
Impossible) to fashIOn a remed, m-kmd that does not adverse!, affect the
nghts of other employees who ma, have a better claim when some future
opportumt, anses Grantmg a remed, m-kmd would not be appropnate
where It would sImph create a new breach b, takmg overtIme from the
next person entItled. see Re Doman Forest Products Ltd. Ladvsmith
Division and Pulp & Paper Workers of Canada, Loc 8 Mav 29 1986
(Kelleher) at pp 6-7 and Re Canadian Pac~fic Forest Products and Pulp &
Paper Workers of Canada, Loc 11 supra, at pp 374-5 (cItmg Pac~fic
Bre>t ers Distributors March 8 1984 (AlbertIm) and Green River Log
Sales Ltd. and 1. WA. Locl-367 Januan 10 1990 (KmzIe)
The employer enJoys much more flexibIht, where the agreement proVIdes
for equahzatIOn of overtIme over a penod. As arbItrator Kelleher observed
m the Doman Forest Products Ltd case supra at p 6 m such a case It IS
usualh a relatIveh SImple matter to dIrect that the gnevor receIve an extra
opportumt, to make up for the one mIssed and no one loses However
dIfficultIes ma, stIll anse when overtIme has been mIstakenh dIstributed
to persons outsIde the pool of persons among whom overtIme IS to be
dIstributed. see also Re Canadian Pacific Forest Products supra at
pp.374-5
Drawmg upon the cases CIted above the maJont, m the latter case
IdentIfied, at pp 375-6 three recogmzable SItuatIOns
If overtIme IS based on semont, the rem ed, IS cash, because the next
opportumt, must go b, semonn not b, an mterference whIch creates a
new problem m solvmg the last one If overtIme IS based on an equahzmg
system, and the mIstake IS mternal wIthm the group a next opportumt,
wIll be a qmck wa, back to equaht, and IS appropnate If overtIme IS
equahzed, and the mIstake IS an aSSIgnment of work outsIde the
equahzatIOn umt, then cash IS preferable smce a remedial mternal
aSSIgnment mterferes WIth the group calculatIOns and entItlements
A remed, m-kmd ma, be eaSIer to apph m dealmg WIth equahzatIOn
clauses ho>tever even in such situations the board must still be satisfied
that such a remedv will be consistent with the agreement. If it is not
reasonable or practicable to equalize overtime over the relevant period,
the appropriate remedv is damages (emphaSIS added)
What then are the factors governIng the chOIce of remedIes In cases such as thIS?
In my VIew there are four factors to be conSIdered on a sequentIal baSIS In order to deCIde
thIS matter
1 The first factor to examIne IS the collectIve agreement Itself Both partIes
13
agree that that there are no specIfic provISIOns m eIther artIcle 8.2 1 or the local
agreement that deal wIth the Issue of remedy for the Improper allocatIOn of overtIme In
revIewmg artIcle 8 2 1 the employer IS reqUIred to" develop methods of dIstnbutmg
overtIme at the local workplace that are fair and eqUItable after havmg ensured that all ItS
operatIOnal reqUIrements are met" ThIS language suggests that the partIes realIzed that
the dIstnbutIOn of overtIme can be an mtncate and complex task and that It would be
more practIcal to develop speCIfic overtIme procedures at the local workplace ThIS IS
espeCIally so gIven the vast number of employees and operatIOns that thIS employer has
throughout the Provmce In thIS respect, the partIes at GCC entered mto an overtIme
dIstnbutIOn agreement on June 5 1998
On ItS own, artIcle 8 2 1 may have provIded the employer WIth some degree of
"flexIbIlIty" regardmg overtIme dIstnbutIOn and remedy However the generalIty of thIS
artIcle IS now subJect to the speCIfic proVISIOns outlIned m the local agreement. Nothmg
m the language of artIcle 8.2 1 or the local agreement eIther expressly prescnbes or
speCIfically restncts the range of remedIes avaIlable NeIther agreement dIctates a
remedy m kmd, nor do they restnct an award of damages
SubJect to future arguments regardmg the pOSSIble meanIng of "operatIOnal
reqUIrements" whIch counsel for the employer agreed to set aSIde at thIS tIme I am not
persuaded that the language contamed m the collectIve agreement or the local agreement
provIde the employer WIth any degree of "flexIbIlIty" WIth respect to an appropnate
remedy for an overtIme VIOlatIOn.
2 The second factor to be determmed m thIS matter IS whether or not the system m
place at GCC for dIstnbutmg overtIme IS a true equalIzatIOn system.
I agree WIth employer counsel's contentIOn that m a SItuatIOn where an employer
has faIled to dIstnbute overtIme eqUItably the Imbalance can, m certam cases, be
redressed by ensunng that those who have mIssed out wIll have first call for future
14
overtIme opporturutIes ProvIdmg, of course, that the employer has acted m good faith
and that there IS a true equalIzatIOn system m place
A true equalIzatIOn system tYPIcally proVIdes a formula that attempts to equalize
the opportunity for overtime assignments over a specified period of time The goal IS to
establIsh fairness amongst employees m the overtIme dIstnbutIOn group It does not
ensure that all employees actually work equal amounts of overtIme
An Important charactenstIc of a true equalIzatIOn system IS that the group to
whIch overtIme IS offered must be statIC, that IS, there is no opportunity to opt out.
Furthermore, as opportumtIes anse, everyone m the group IS credIted wIth the hours
offered, whether they accept or declIne the overtIme aSSIgnment. Employees transfernng
from other departments, or employees who are off work for extended pen ods of tIme, are
normally credIted WIth the average overtIme hours accumulated by the group when they
Jom, or re-Jom, the group New hIres eIther receIve the group average or are awarded the
hIghest accumulated hours plus one when they Jom the group
The system m place at GCC does not mclude the charactenstIcs outlIned above
Due to the voluntary nature of the equalIzatIOn system at GCC the overtIme pool IS not
statIC As a result, COs are free to opt m and out of the overtIme pool as they see fit. In
fact, given that there are up to eleven different shifts that a CO can sign-up for on any
given day there can be as much as eleven different overtime pools each day As a result
of thIS complex process, the task of equalIzmg overtIme over the speCIfied tIme penod IS
VIrtually ImpOSSIble to achIeve Accordmgly I agree WIth the umon that the system for
dIstnbutmg overtIme at GCC IS not a true equalIzatIOn system Consequently It IS not
feasible for the system Itself to automatIcally correct mIstakes m the allocatlOn of
overtIme
3 Can a remedy m-kmd stIll be offered gIven that the overtIme dIstnbutIOn system
at GCC IS not a true equalIzatIOn system?
15
FIrstly because of the voluntary nature of the system at GCC the CO to whom an
m kmd remedy IS offered may be unavaIlable for the entire balance of the equalization
period ThIS IS espeCIally true gIven the relatIvely short tIme penod for equalIzatIOn as
outlIned m the local agreement.
Secondly even If the affected CO IS avaIlable, other COs m the vanous pools, on
any gIven day and for any gIven shIft, may have accumulated fewer overtIme hours
ArtIcle 6 of the local agreement Imposes a mandatory oblIgatIOn on the employer to
select the CO WIth the least amount of accumulated overtIme hours when an overtIme
aSSIgnment occurs The language does not proVIde for any exceptIOns In certain
respects the system in place at Gee is actually analogous to a seniority system insofar
as it clearly identifies the individual entitled to overtime on any given occasion The
language contamed m artIcle 6 would be rendered meamngless If the employer was
allowed to place an aggneved CO to the top of the overtIme lIst whenever an error
occurred. For the aforementIOned reasons, I am not convmced that an m-kmd remedy
would be conSIstent WIth the local agreement or IS practIcal to Implement gIven the nature
of the overtIme dIstnbutIOn system at GCC
4 Can a remedy m kmd m the form of a "speCIal" overtIme opportumty be used
where there has been a lost overtIme opportumty?
In scenano number 1 a computer malfunctlOn results m an error that leads to an
Improper allocatIOn of overtIme In scenano number 3 a dIspute anses as to whether or
not an mdIvIdual was entItled to work an overtIme shIft. (Both the employer and umon
counsel acknowledge that the sub-set of questIOns for scenanos 1 and 3 are essentIally the
same e g. scenanos l(ill) and 3 (VI) are IdentIcal For ease, I wIll only refer to CO A when
dealIng WIth both examples)
16
The first proposal IS a future overtIme opportumty In the form of a "specIal" or
"supernumermy" assIgnment that
. Offers the same number of hours lost to CO A,
. Allows CO A to work the overtIme assIgnment at her dIscretIOn,
. Is based on the fact that the work In questIOn would be m addItIOn to any overtIme the
employer would otherwIse find necessary to schedule and
. Is based on the fact that the employer would not otherwIse reqUIre anyone to perform
the overtIme assIgnment.
In the second proposal, the employer agam offers a "speCIal" opportumty only In
thIS Instance the work assIgnment Involves traInIng and not regular dutIes In thIS case,
CO A would be offered an eIght hour mandatory traInIng assIgnment that would occur on
a day when CO A would otherwIse be scheduled to work at the InstItutIOn. The employer
proposes to pay CO A 12 hours pay as opposed to 8 hours pay that she otherwIse would
have been entItled to earn for her regularly scheduled shIft.
I agree wIth employer counsel that scenanos one and three, on theIr face, do not
IndIcate that there was a delIberate breach of the overtIme protocol by the employer nor
do they IndIcate that there has been a perSIstent pattern of mIstakes The questIOn remaInS
however could the "speCIal" overtIme assIgnments adversely affect the nghts of other
COs and would the assIgnments be conSIstent WIth the collectIve agreement?
ArbItrator O'NeIl In the Dominion Colour COlp case at page 376 reVIews the
condItIOns set out by ArbItrator Gray for a SubstItute work opportumty In Re Labatt s
Ontario Breyt,eries and Breyt,ery Malt and Soft Drink Workers, Loc 304(1993) 36
L.A.C
Whether It IS or not turns m an, gIven case on whether operatmg wIthm
the constramts of the apphcable collectIve agreement, the employer can
both create and aSSIgn a substItute work opportumn m such a wa, that
those aggneved b, the breach m questIOn are restored to a pOSItIOn
substantIalh SImIlar to the one m whIch the, would have been had the
breach not occurred. To accomphsh that result, the nature of the work
opportumn must be SImilar to that lost (or at least, the dIfferences must
be unobJectIOnable) The mtended aSSIgnment of the opportumn as
17
overtIme work must be conSIstent WIth an, apphcable provISIOn of the
collectIve agreement: Implementmg It must not amount to a breach of
the agreement. And the mtended assIgnment must restore both the group
and the member(s) of the group who would have performed the lost
opportumt, to the same pOSItIOn, m terms of total overtIme worked, as
the, would have been m had the lost opportumt, been performed wIthm
the group b, the member(s) ThIS last cntenon wIll not be satIsfied b,
reallocatmg among the members of the group those other work
opportumtIes whIch the group would have had m an, event. An
artIfiCIal opportumn must be mJected - one whIch no one m the group
would have enjoyed but for the employer s remedIal effort. ThIS ma, be
Impossible It ma, be as It was m Re Gu!f Oil supra, that the onh
overtIme work the group would not have enjoyed m the ordman course
IS work that the collectIve agreement reqUIres the employer to aSSIgn to
another group If the opportumn to perform It on overtIme anses
The CIrcumstances ma, make It dIfficult to dIstmgUIsh, or to be confident
of dIstmgUIshmg, an artIfiCIal opportumt, from a natural one
Where an arbItrator IS left m genume doubt whether Implementmg a
proposed remed, m kmd wIll effectIveh redress the breach caused b, a
breach of the collectIve agreement WIthOut Itself constItutmg another
breach, that remed, should not be employed.
DealIng first WIth the supernumerary Issue as outlIned In scenano l(ill) the
scenano does not IdentIfy the exact nature of the proposed aSSIgnment thereby makIng
my deCISIOn In thIS matter somewhat more dIfficult. In my VIew there may be a number
of compleXItIes assocIated WIth thIS form of remedy
FIrstly aSsumIng that the work In questIOn IS CO work, the aSSIgnment may be
one that CO A, or someone else In the CO overtIme pool, would otherwIse be entItled to
claim If Indeed that was the case, then ArtIcle 6 of the local agreement stIpulates that
overtIme be aSSIgned to the CO m the overtIme pool WIth the least amount of
accumulated overtIme hours Consequently the supernumerary aSSIgnment would be
InCOnSIstent WIth the local agreement.
Secondly gIven that CO A has a hIStOry of requestIng numerous overtIme ShIfts,
CO A may be entItled to a regular overtIme shIft on the day that she deCIdes to work her
supernumerary aSSIgnment. ObVIOusly there would be no advantage to CO A In that type
of SItuatIOn.
18
ThIrdly If CO A was brought m to do non-CO work, It would lIkely lead to
further problems For example, If CO A performed mamtenance, kitchen or
admmIstratIve dutIes, It would adversely affect the nghts of employees m those posItIOns
Fourthly If the proposed assIgnment does fall squarely wIthm the scope ofa CO's
dutIes and responsIbIlItIes, or IS entIrely dIfferent from the work normally performed, the
employee may be forced to accept an assIgnment that was substantIally dIfferent from the
one that was ongmally mIssed.
Fmally I agree wIth umon counsel that there would lIkely be constant
dIsagreement between the partIes as to whether a CO IS actually performmg
supernumerary work and not "regular" work wIthm the CO classIficatIOn. The fact that
the employer at the tIme of the mfractIOn would not normally reqUIre the work to be done
on an overtIme basIs, does not answer the questIOn whether or not the COs could stIll be
entItled to the work If offered as an overtIme aSSIgnment at some pomt m the future
Indeed, the proposed aSSIgnment may be one m whIch the employer has m the past
reqUIred a CO to do on an overtIme baSIS
GIven the umque and complex nature of the overtIme dIstnbutIOn system at GCC
and for the reasons outlIned above, I am not convmced that the proposed supernumerary
aSSIgnment IS conSIstent WIth the local agreement or IS practIcal to Implement.
NotwIthstandmg the foregomg, gIven a dIfferent fact sItuatIOn where the
employer could demonstrate beyond a doubt that the "specIal" aSSIgnment was a genume
extraordmary opportumty that could be reasonably achIeved m CIrcumstances that do not
adversely affect the nghts of other employees, thIS form of remedy could be appropnate
Turnmg to the speCIal trammg opportumty outlIned m scenano l(iv) the
employer proposes an aSSIgnment that would proVIde CO A the opportumty to undergo
trammg mstead of performmg her regular dutIes The employer proposes to pay CO A
twelve hours pay for the speCIal aSSIgnment, as opposed to eIght hours pay that she would
19
normally receIve for performmg her regularly scheduled shIft. As stated above, the
purpose of contract remedIes IS to place the party harmed m a posItIOn as close as
pOSSIble to the one that would have been occupIed If no breach had occurred. ThIS
proposed remedy proVIdes CO A wIth an extra four hours pay whereas had there been no
breach, she would have receIved twelve hours pay In addItIOn, thIS proposal also
mvolves work of a substantIally dIfferent nature from the work that was mIssed.
GIven thIS partIcular fact sItuatIOn, the remedy proposed IS not acceptable because
It would not restore CO A to the same posItIOn she would have been m pnor to the error
m the overtIme allocatIOn.
Accordmgly after havmg carefully conSIdered the submISSIOns of the partIes, the
speCIal assIgnments proposed m scenanos l(iu), (iv) and 3(VI) (vu) are not appropnate
for the reasons stated herem.
SUMMARY
GIven my findmgs m the above matters, It IS not necessary to address mdIvIdually
all of the scenanos contamed m the Statement of Facts and Issues Based on the
submISSIOns of the partIes and the fact SItuatIOns presented, and for all of the reasons set
out herem, I find that, subJ ect to my comments regardmg supernumerary assIgnments, a
monetary award IS reqUIred for all of the vanous scenanos contamed m the Statement of
Facts and Issues
I wIll retam JunsdIctIOn to resolve any dIfficultIes encountered m the
ImplementatIOn of thIS award.
Dated at Toronto thIS 8th day of May 2001
(" <FJ~O
Gerry Lee, Vice-Chair