HomeMy WebLinkAbout1998-0329.Group Grievance.00-04-03 Decision R
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L "()NTARW
GRIEVANCE COMMISSION DE
. . SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396
GSB # 329/98
OLBEU # OLB306A-I
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees Uillon
(Group Gnevance, HamIlton et a1)
GIievor
- and -
The Crown m RIght of Ontano
(LIquor Control Board of Ontano )
Employer
BEFORE Daniel A. Hams Vice ChaIr
FOR THE Ursula Bo, Ian
GRIEVOR Counsel
KoskIe & Minsk"
Bamsters & SolICItors
FOR THE Micheal McFadden
EMPLOYER Counsel
Ogil", Renault
Bamsters & SolICItors
HEARING March 20 2000
2
ThIS IS a group gnevance regardmg the allocatIon of overtIme at the
Durham Warehouse The employer, The LIqUor Control Board of OntarIO, says
that It IS not arbItrable because It IS out of tIme, gIven the eIghteen-month delay m
dealmg wIth the gnevance after stage 2 The umon, the Ontano LIqUor Board
Employees' Umon, says that there IS no prejUdICe to the employer m extendmg the
tIme for advancmg the gnevance to the thIrd step of the gnevance procedure and
heanng It on the ments To expedIte matters, the partIes made theIr submIssIOns
on the trrnelmess Issue at the close of the case
In my VIew thIS IS not a sItuatIon where the trrne lImIts ought to be
extended. Accordmgly, only the eVIdence relatmg to the Issue of tImelmess IS
reproduced below
THE FACTS.
On Fnday, October 4, 1996 Dan Anderson and others worked the day ShIft.
In Mr Anderson's VIew It was clear that there was such a backlog m shIppmg that
employees would certamly be reqUIred to work overtIme on Saturday October 5,
1996 m order to load the trucks for shIpment the followmg Monday However,
when hIS ShIft ended no one was asked to work overtIme the next day
3
At that tIme there was no permanent manager assIgned to the afternoon
ShIft. Accordmgly, the day ShIft managers were assIgned to the afternoon ShIft m
rotatIOn. That day It was the shIppmg manager, Harry PIwerka, who was assIgned
to the afternoon ShIft. Mr PIwerka dId not have any specIfic recollectIOn of
the day m questIOn or the events leadmg up to the gnevance However, he said
that If hIS usual practIces were followed on that day, he would have arrIved at
work between 3 15 and 3 45 P m. He would have gone to the office to check hIS
mail and then gone to warehouse secunty to obtam the lIst of employees who were
scheduled but absent for the ShIft. In turn, he would then meet wIth the order-
processmg manager to reVIew the workload for the evemng ShIft and touch base
wIth the receIVmg department. He would also have hIS regular dutIes to attend to
as shIppmg manager He said that by the tIme he would have determmed that
overtIme was reqUIred on Saturday October 5, 1996, the day ShIft would certamly
have left the warehouse He belIeved that he would not have made such a decIsIOn
pnor to 6 00 p.m. He said he asked the employees on the mght ShIft If they would
be willmg to work overtIme the next day To allocate the overtIme he asked the
employees m order of semonty, and usmg the overtIme book, started wIth the
employee next mime to be asked. He dId not telephone any of the employees
who had Just fimshed the day ShIft.
4
Many on the day ShIft felt that they ought to have been contacted by
telephone Accordmgly, the mstant grIevance was filed on October 22, 1996 at
stage 2 Mr PIwerka's reply IS dated November 13, 1996 and reads as follows
After reVIeWIng all the InfOrmatIOn avaIlable to me regardIng thIS gnevance, I
have concluded that we are not In vIOlatIOn of ArtIcle 6 6 (b) of the CollectIve
Agreement.
As I explaIned to you dunng the first stage heanng, due to call InS for absenteeIsm
I dId not have the staff to complete the loadIng for the next day and It was too late
to begIn SOlICItIng from the dayshIft personnel Therefore I had no chOIce other
than SOlICItIng the PM ShIft for the Saturday October 5 1996 OvertIme
Based on these facts, your gnevance IS demed.
ArtIcle 27 of the collectIve agreement sets out the grIevance procedure
Under that procedure the umon had five days followmg Mr PIwerka's reply to
lodge the grIevance at step 3 At that trrne, Fred Kemp was the deSIgnated umon
official responsible for filmg stage 3 grIevances Seemmgly, he was m a car
accIdent m 1996, whIch resulted m hIS bemg absent from the workplace from
August 12, 1996 to January 1997 He dId not resume hIS umon responsibilItIes
untIl February or March 1997 Noone was assIgned to carry out hIS umon dutIes
whIle he was absent. Accordmgly, thIS grIevance dId not get submItted at stage 3
The Board was told that the grIevance "resurfaced" m May 1998 and was
referred to the Board for arbItratIOn on May 28, 1996 The employer raised ItS
tImelmess ObjectIOn m correspondence dated June 24, 1998
5
The umon submItted that thIS IS an appropnate case for the Board to
exerCIse ItS dIscretIOn under s 48 (16) of the Labour Relations Act (1995), S 0
1995, c 1, Sch. A to extend the tIme for the fi1mg of the gnevance at stage 3
SectIon 48 (16) reads as follows
Except where a collectIve agreement states that thIS subsectIOn does not apply an
arbItrator or arbItratIOn board may extend the tIme for the takIng of any step In the
gnevance procedure under a collectIve agreement, despIte the expIratIOn of the
tIme, where the arbItrator or arbItratIOn board IS satIsfied there are reasonable
grounds for the extensIOn and that the OpposIte party wIll not be substantIally
prejudIced by the extenSIOn. RS 0 1990 c L 2, s 45 (6)
The Umon acknowledged that It had made a mIstake m not fi1mg the
gnevance at stage 3, but submItted that the fi1mg of the gnevance at stage 2 put
the employer on suffiCIent notIce of the dIspute to prevent any prejUdICe from the
subsequent delay Further, It was submItted that the gnevors were blameless, yet
would be the ones to suffer If the tIme lImIts were not extended. Fmally, smce the
gnevance mvo1ved the mterpretatIon of the collectIve agreement, It Said that It was
Important to get a determmatIOn on the ments
The employer submItted that the trrne lImIts set out m Antc1e 27 are
mandatory and the employer IS properly entItled to assume the gnevance IS
abandoned when the tIme for fi1mg at stage 3 expIres The employer also
6
submItted that the filmg of the gnevance at stage 2 was not sufficIent to prevent
the natural prejUdICe that anses when the matter IS abandoned for almost 19
months
REASONS FOR DECISION.
The gUIdelmes set out m Re Becker Milk Company Ltd. And Teamsters
Union, Local 647 (1978), 19 L.A C (2d) 217 regardmg the exerCIse of dIscretIOn
to extend a tIme lImIt has been adopted by the Gnevance Settlement Board.
OLBEU (Aleong) and Liquor Control Board of Ontario, GSB#13l9/96
(umeported, 97-03-10, Gray)
Re Becker Milk pOSItS three consIderatIons m determmmg that there are
reasonable grounds for the extenSIOn of a tIme lImIt, bemg the reason for the
delay, the length of the delay and the nature of the gnevance In addItIon, the
statute reqUIres that there be no substantIal prejUdICe to the OpposIte party
In thIS case, although Mr Kemp could not file the stage 3 gnevance before
February 1997, there IS no reason advanced as to why the unIon dId not file the
stage 3 m that tIme penod or otherwIse deal wIth the gnevance untIl It was
7
umlaterally referred to the Board on May 28, 1998 The umon's delay m dealmg
wIth the grIevance IS unexplamed.
The delay for whIch relIef IS sought IS over eIghteen months m length. In
OLBEU (Gamble) and LCBO, GSB# 1635/96, (umeported, 98-09-01, Gray) an
extensIOn of trrne to file a dIscharge grIevance was not granted m the face of a 24
month delay So too was a 16 lIz month delay found to be too long m OLBEU
(Wicken) and LCBO GSB#22l6/97 (umeported, 98-06-12, Knopf), another
dIscharge grIevance The delay m thIS case IS sImilarly very long
InAleong, supra, vIce-chair Gray extended the trrne for filmg a dIscharge
grIevance notwIthstandmg a four-month delay There he relIed heavIly on the fact
that It was a dIscharge case Here we are not dealmg wIth a dIscharge or like
matter that CrIes out for eqUItable relIef ThIS matter mvolves a claim for an
overtrrne ShIft worked more than three years ago The nature of thIS grIevance
does not overcome the lack of explanatIOn for an extremely lengthy delay In my
VIew there are no reasonable grounds for the extensIOn of tIme requested.
Fmally, there IS ObVIOUS prejUdICe to the employer, although I do not need
to determme whether or not It IS substantIal Mr PIwerka cannot be faulted for
hIS mabIlIty to remember details of the events m questIOn. HIS reasonable mabIlIty
to remember the details of the evemng of October 4, 1996 leaves the employer m
8
the untenable posItIOn of relymg on hIS general behavIOur m such CIrcumstances
That IS real prejUdICe to the employer
DECISION.
The gnevance IS marbItrable because of the delay m advancmg It through
the gnevance procedure and there are no reasonable grounds for extendmg any
tIme lImIt m the gnevance procedure
Dated at Toronto thIS 3rd day of Apnl, 2000
Damel A HarrIs, V Ice Chair