HomeMy WebLinkAbout1998-1492.Sousa.00-04-26 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARW
.. GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 1492/98
OLBEU # OLB134/98
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Emplovees Umon
(Sousa)
Grievor
- and -
The Crown m RIght of Ontano
(LIqUor Control Board of Ontano)
Employer
BEFORE RIchard Brown Vice ChaIr
FOR THE ElIzabeth Mitchell
GRIEVOR Counsel
KoskIe & Minsk."
Bamsters & SolICItors
FOR THE DamhnaIt Monaghan
EMPLOYER Counsel
Heenan BlaikIe
Bamsters & SolICItors
HEARING April 13 2000
Joe Sousa, a warehouse worker 4 at the Durham warehouse, gneved because
he was not offered overtIme work on Sunday, April 5, 1998 There are two
Issues to be decIded. The partIes dIffer as to whether the employer vIOlated
the collectIVe agreement by not gIVmg overtIme to Mr Sousa and, If so, as to
whether the appropnate remedy IS damages or another overtIme opportumty
I
As the basIc facts upon WhICh the umon relIes are not m dIspute, It dId not
call any wItnesses VIC ArauJo testIfied on behalf of the employer He was
recently appomted actmg general manager of operatIOns at the Durham
warehouse and has held a number of other management posItIOns over the
last ten years Mr ArauJo also worked m the bargammg umt for twelve years.
F or some of thIS tIme, he served as a zone representatIve for the umon.
The assIgnment of overtIme to employees IS made by management
usmg a document lIstmg them by semonty number If employee number 13
was the last person offered overtIme on the prevIOus occaSIOn, for example,
the first offer on the next occaSIOn IS made to employee number 14 As
Sunday work attracts a double-tIme premIUm and Saturday work a premIUm
of tIme and one-half, there IS one lIst for Sunday and another for Saturday
Mr Sousa left hIS Job early on Thursday, April 2 on account of illness
While at work that day, he was offered overtIme work for Saturday, April 4
and he accepted. He dId not report for duty on Fnday due to illness
Management determmed on Fnday that an eIght-hour overtIme shIft for
approxImately seventy people would be scheduled for Sunday to pIck orders
m the warehouse ThIS overtIme was offered to those at work on Fnday
When Mr Sousa's name came up m the normal rotatIOn, he was passed over
and was not contacted at home Havmg determmed the number of volunteers
2
for Sunday work was msufficIent, the employer made arrangements on
Fnday for De Vere Temporary ServIces to provIde three addItIOnal people to
work on Sunday When Mr Sousa worked hIS overtIme sIuft on Saturday, he
asked to work on Sunday also He was told hIS servIces were not reqUIred.
Mr ArauJo testIfied the employer's practIce IS not to call a sIck
employee at home when seekmg volunteers for overtIme ThIS practIce IS
based upon the premIse that an employee m these CIrcumstances should not
be bothered. Mr ArauJo testIfied the same practIce IS followed for employees
on vacatIOn or "E-tIme"--1.e absent for reasons such as child care or medIcal
appomtments ThIS has been the practIce at the Durham warehouse for as
long as Mr ArauJo can recall.
When a zone representatIve for the umon, Mr ArauJo supported thIS
practIce because he felt very strongly a sIck employee should not be called at
home Mr ArauJo testIfied he dIscussed thIS matter wIth Ius fellow zone
representatIve, Cohn RIchards, and the then umon presIdent, John Miles As
Mr ArauJo dId not reveal what was said dunng thIS dIscussIOn, there IS no
eVIdence as to how Messrs RIchards and Miles felt about the matter The
partIes agreed that, If called as a wItness, Mr Miles would testIfY that he has
no recollectIOn of such a conversatIOn more than a decade ago
As to why Sunday overtIme was not assIgned to Mr Sousa when he
asked for It on Saturday, Mr ArauJo testIfied the employer had already made
arrangements for De Vere Temporary ServIces to supply the extra personnel
reqUIred for Sunday Mr ArauJo thought these arrangements could not be
canceled on Saturday, because he beheved De Vere's office was not open
that day If De Vere' s workers had been sent home when they reported for
duty on Sunday, the employer would have had to pay them for four hours of
work.
3
In cross-exammatIOn, Mr ArauJo conceded he does not know whether
management made any attempt to contact De Vere Temporary servIces on
Saturday He also conceded employees are sometImes called at home about
overtIme work.
One scenano where someone would be called at home IS illustrated by
the followmg example employee number 13 IS on the Fnday afternoon sluft;
employee number 14 IS on the Fnday day sluft; Saturday overtIme IS assIgned
on Fnday; and there IS enough overtIme work for only one of these people
Employee 13, who has first claim to the overtIme, does not report for duty
on Fnday until after employee 14 has left. In thIS sItuatIOn, the employer may
Wait to ask employee number 13 when he arrIves for the afternoon sluft. Ifhe
declInes, employee 14 would then be called at home AlternatIvely, the
employer may call employee 13 at home before employee 14 leaves work. In
eIther case, someone IS called at home However, Mr ArauJo testIfied no
such call would be made If management knew the employee concerned was
not well at the tIme
Mr ArauJo also gave another example of when an employee would be
called at home He testIfied that overtIme on Sunday, April 5 would have
been assIgned to Mr Sousa If he had called on Fnday to say he was available
m the event such overtIme arose Mr ArauJo testIfied Mr Sousa would have
been advIsed of hIS overtIme assIgnment eIther when he worked on Saturday
or by telephone If he dId not work that day
II
ArtIcle 6 6(b) of the collectIVe agreement states
Where there IS a reqUIrement for overtIme to be worked, It shall first
be offered to full-tlme employees on a rotatlOnal basls Where
4
sufficIent personnel do not volunteer, such overtIme shall then be
offered to permanent part-tIme employees and then casual employees
FailIng sufficIent volunteers, overtIme would be assIgned to the least
semor qualIfied employee (emphasIs added)
Accordmg to the umon, the employer contravened the first sentence of
tills artIcle by passmg over the gnevor on Fnday when assIgmng Sunday
overtIme Counsel contended the "unadorned" language of the collectIve
agreement oblIged the employer to call Mr Sousa at home on Fnday when
overtIme was assIgned for the followmg Sunday In the alternatIve, counsel
submItted the gnevor should have been assIgned Sunday overtIme when he
asked for It on Saturday
The employer relIed upon the decIsIOn m OLBEU and Llquor Control
Board ofOntarzo (Larmand, Shotlander and Thompson), dated Nov 29,
1996, GSB File No 1056/94 (Stewart) mterpretmg artIcle 6 6(b) In that case,
the gnevors were not offered overtIme because they had not been tramed
how to operate a new computer system. Ms Stewart ruled they were not
entItled to overtIme work WhICh reqUIred them to use thIS system. She wrote
As prevIOusly noted, one of the arguments advanced by the Umon was
that because the gnevors were not responsible for the delay m trammg
they should not be depnved of overtIme opportumtIes lost due to the
delay I am unable to accept thIS submIssIOn. Both counsel referred me
to a number of decIsIOns dealIng wIth the provIsIOns of artIcle 6 6(b)
The essence of those declslOns lS that thls prOVlSlOn lS to be glven
reasonable and practlcal znterpretatlOn. While delay m trammg was
unfortunate, It IS apparent It was due to operatIOnal CIrcumstances I
am unable to accept that a reasonable and practIcal mterpretatIOn of
thIS provIsIOn would reqUIre the Employer to pay damages for loss of
overtIme opportunItIes by vIrtue of the gnevors not receIVmg traImng at
an earlIer date (pages 7 and 8, emphasIs added)
Based upon thIS decIsIOn, employer counsel contended the collectIve
agreement IS not vIOlated on evety occaSIOn that an employee IS not offered
5
overtIme m rotatIOn. Counsel noted the contrary conclusIOn would mean a
breach occurred even where the employer made a determmed effort to
contact an employee by telephone but dId not succeed. Turnmg to the facts
at hand, counsel argued It would not have been reasonable eIther to call the
gnevor at home on Fnday, while he was ill, or to have granted hIS overtIme
request on Saturday, when management was already commItted to De Vere
Temporary ServIces Counsel cIted the employer's practIce of not callmg
sIck employees at home as proof that It was reasonable not to call Mr
Sousa.
In reply, umon counsel conceded not every mstance offaihng to offer
overtIme m rotatIOn contravenes the collectIVe agreement. Applymg the
standard of reasonableness, counsel suggested the employer IS not reqUIred
to contact an employee absent on dIsabihty leave who IS expected not to
return to work for SIX months However, counsel argued the employer's
conduct m thIS case was not reasonable
Was It reasonable for management not to call the gnevor at home?
ThIS questIOn should be answered by strikmg a reasonable balance between
employee and management mterests Mr ArauJo testIfied a call was not made
because managers dId not want to bother the gnevor when he was SICk. In
other words, the employer suggested not calhng an ill employee serves hIS or
her mterest m not bemg bothered. As the umon notes, thIS suggestIOn
overlooks a countervailmg employee mterest. Not makmg a call may cause an
mdIvIdual to mISS a valuable overtIme opportumty In the mstant case, an
eIght-hour ShIft at double the normal rate of pay was worth hundreds of
dollars The employer does not rely upon any mterest of ItS own. Makmg
phone calls does take tIme, but no concern was raIsed on thIS front, and
managers do take the tIme to call employees at home m some CIrcumstances
6
Management was not concerned that the gnevor would not be well enough to
work on Sunday Indeed, Mr ArauJo testIfied the gnevor would have been
assIgned overtIme for Sunday Ifhe called the employer on Fnday to request
Sunday overtIme
WeIghmg the competmg mterests raIsed before me, I conclude callIng
the gnevor at home would have been the reasonable tiling to do Based upon
thIS concluSIOn, I find the employer vIOlated artIcle 6 60(b) by not makmg any
attempt to contact the gnevor
I have not overlooked Mr ArauJo's testImony about the employer's
practIce In appropnate cIrcumstances, past practIce m the admmIstratIOn of
a collectIVe agreement IS a very useful aid m the mterpretatIOn of ambIguous
contract language For example, If semor umon officIalS acqUIesce m a long-
standmg management practIce based upon one readmg of the collectIve
agreement, these officers may be found to have ImplIcItly agreed wIth tilis
mterpretatIOn. The uses and lImIts of eVIdence of past practIce are dIscussed
mJohn Bertram & Sons Co and InternatlOnal Assoc of MachInists (1967),
18 L.A.C 158 (Weiler) In the case at hand, there IS eVIdence of the
employer's practIce at the Durham warehouse and eVIdence of the conduct
of at least one former umon officer However, the collectIve agreement
applIes to other facilItIes, and there IS no eVIdence relatmg to any of them. As
the collectIve agreement must mean the same tiling for all of the facilItIes
governed by It, the available eVIdence of past practIce IS of lIttle assIstance m
mterpretmg artIcle 6 6(b)
III
The umon seeks monetary compensatIOn m the amount of the overtIme pay
lost. Accordmg to the employer, m kmd relIef should be awarded m the form
of a SubstItute overtIme assIgnment. In partIcular, the employer proposes that
7
the gnevor be assIgned overtIme work re-packmg damaged product or
unloadmg contamers Like order pIckmg, these dutIes are normally performed
by members of the bargammg umt. Unlike order pIckmg, these dutIes are not
assIgned as overtIme m the normal course of events
The purpose of contract remedIes IS to place the party harmed by 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 pay lost always ensure the party aggneved IS no worse off than If
the agreement had not been vIOlated. Indeed, such monetary compensatIOn
necessarily entails an element of over compensatIOn for the grIevor as an
mdIvIdual, because thIS person IS paid for overtIme not worked, whereas he
or she would have worked for overtIme pay If the mfractIOn had not
happened. In kmd relIef aVOIds over compensatIOn by reqUInng the gnevor to
work m exchange for the money receIved. However, an m kmd remedy
sometImes cannot adequately repair the harm suffered eIther by the gnevor as
an mdIvIdual or by members of the bargammg umt as a group To aVOId over
compensatIOn, arbItrators generally have awarded m kmd relIef so long as It
redresses the loss caused by a vIOlatIOn. Monetary compensatIOn has been
awarded, even though It over compensates, where another overtIme
assIgnment would not redress the sItuatIOn. In choosmg between these two
types of remedy, the central questIOn IS whether m kmd relIef would
adequately repair the harm caused by a breach.
OvertIme mfractIOns may be dIvIded mto two broad categones The
first IS compnsed of vIOlatIOns mvolvmg an Improper dIstributIOn of work
among employees m the group entItled to It. Many collectIVe agreements call
for an eqUItable shanng of overtIme among some group of employees When
work WhICh should have been gIven to one employee IS mstead assIgned to
8
another wIthm the same group, thIS Imbalance can be corrected m some
cIrcumstances by gIVmg the aggrIeved mdIvIdual an overtIme assIgnment
WhIch otherwIse would have gone to a dIfferent member of the group In kmd
relIef cannot rectIfY the sItuatIOn If the overtIme work proposed by way of
remedy IS sIgmficantly mfenor to the work mIssed, or If the proposed
overtIme assIgnment IS not available wIthm any penod specIfied m the
contract for achIevmg an eqUItable dIstributIOn. Monetary compensatIOn has
been be awarded m CIrcumstances like these where m kmd relIef cannot
redress a vIOlatIOn. The leadmg decIsIOn on remedIes for an Improper
dIstributIOn of overtIme wIthm a group of employees entItled to It, IS
Professor Weiler's award m Canadzan Johns ManvIlle Co and
InternatlOnal ChemIcal Workers (1971), 22 L.A.C 396 The numerous
cases followmg hIS lead are collected m Brown and Beatty, Canadzan
Labour ArbltratlOn, at 2 1423
Where another overtIme assIgnment IS able to adequately rectIfY the
loss caused by an Improper dIstributIOn of overtIme wIthm the group entItled
to It, such a remedy has been granted because It neIther under compensates
nor over compensates the gnevor for the harm caused by the breach. Over
compensatIOn notwIthstandmg, monetary relIef has been awarded where no
other remedy IS capable of repaInng the harm caused by an mfractIOn. In tills
settmg, faced wIth a chOIce between damages WhICh would over compensate
and m kmd relIef WhICh would under compensate, arbItrators have opted for
over compensatIOn. In domg so, they have favoured the gnevor harmed by
an Improper allocatIOn of overtIme rather than the employer who caused the
harm.
The second category of overtIme vIOlatIOns mvolve an Improper
assIgnment of work to persons outsIde the group entItled to It, mcludmg
9
assIgnments fallIng outsIde the bargmmng umt. The performance of work by
someone outsIde the proper group reduces the total amount of work available
to thIS group The umon relIes upon three cases awardmg monetary
compensatIOn where work was performed outsIde the bargammg umt:
DomznlOn Stores Ltd and Retazl, Wholesale and Department Store UnlOn
(1978),20 L.A.C (2d) 359 (O'Shea), Sherman Mzne Cliffs of Canada and
Unzted Steelworkers (1980), 26 L.A.C (2d) 66 (Brunner) 67, Ivaco Rollzng
Mllls and Unzted Steelworkers (1984), 13 L.A.C (3d) 289 (Weatherill)
In each of these cases, the remedy proposed by the employer was to
gIVe the gnevor an overtIme assIgnment compnsed of work WhICh would
have been done wIthm the bargmmng umt even If no vIOlatIOn had occurred.
As thIS redress would not offset the umt's loss of work to outsIders,
monetary compensatIOn was awarded. In DomznlOn Stores, ArbItrator
O'Shea wrote
The work should have been performed by the gnevors as overtIme
work at overtIme rates Smce they were not gIven the opportumty to
perform the work and thereby mcrease theIr earnmgs dunng the week
m questIOn, and smce the work has been permanently lost to them and
mdeed to all members of the bargmmng umt, the only appropnate
remedy IS to dIrect that they be reImbursed for the wages they would
have earned had the company not contravened the provIsIOns of art.
33 05 of the collectIVe agreement. (page 364 and 365, emphasIs added)
In Ivaco Rollzng Mllls, Mr Weatherill wrote
It was the assIgnment of work to persons outsIde the bargammg umt
that was m vIOlatIOn of the collectIve agreement, and It was for that
reason that the overtIme opportumty must be smd to have been lost
Irrecoverably (page 292)
Sherman Mzne Cliffs appears to have been decIded on sImilar grounds For
present purposes, the Important pomt IS that the remedy proposed by the
10
employer m each of these cases failed to replace the work lost to the
bargaImng umt as a whole Rather than grantmg m kmd relIef WhICh would not
compensate the umt for Its collectIve loss, these arbItrators awarded damages
even though thIS remedy over compensated the gnevor
Counsel for the employer relIes upon two awards addressmg a
dIfferent sort of m kmd remedy for the assIgnment of work to someone
outsIde the group to whom It belongs Labatt '51 OntarlO Brewerzes and
Brewery, Malt & Soft Drznk Workers (1993), 36 L.A.C (4th) 289 (Gray),
Labatt '51 OntarlO Brewerzes and Brewery, General and ProfesslOnal
Workers UnlOn (1996), 56 L.A.C (4th) 407 (Howe) These two cases
mvolved the same employer and umon, notwIthstandmg the dIfference m the
reported name of the bargammg agent. In both cases, overtIme work, WhICh
should have been assIgned to a permanent employee, was gIven to a
temporary employee who was a member of the same bargammg umt. And m
both cases, management proposed by way of remedy an "artIficial"
assIgnment paid on an overtIme basIs ThIS assIgnment was artIfiCial m the
sense that the work would not have been done by a permanent employee, as
overtIme or otherwIse, If no vIOlatIOn had occurred.
In the first Labatt '51 case, ArbItrator Gray awarded monetary
compensatIOn because the employer had delayed m offenng ItS proposed
remedy As a result of the passage of tIme, m kmd relIef could not equalIze
the dIstributIOn of overtIme among permanent employees wIthm the penod
specIfied by the collectIve agreement. In the absence of such delay, and m
the absence of any other complIcatmg factor such as deliberate dIsregard for
contractual oblIgatIOns, Mr Gray suggested an artIficial assIgnment mIght be
the appropnate remedy, because It would redress the collectIve harm caused
to permanent employees by the vIOlatIOn. ThIS conclusIOn rested upon the
11
unusual nature of the collectIVe bargaImng relatIOnshIp m questIOn. Mr Gray
wrote
The dIstmgUIshmg feature m thIS case IS that some work of the sort
WhICh was performed on overtIme on the occaSIOn m questIOn IS
regularly performed on straight tIme by [temporary] employees who do
not belong to the group to WhICh such work must be assIgned If It IS to
be performed on an overtIme basIs Temporary employees do not
have a nght to the work WhICh the employer IS free to assIgn to them,
nor do they acqUIre such a nght by bemg scheduled to perform It.
Thus, there are frequent occaSIOns on WhICh the applIcable collectIVe
agreement leaves the employer free to have such work performed
eIther by temporary employees on straIght tIme or by permanent
employees on overtIme These occaSIOns are relatIvely easy to IdentIfy,
theIr occurrence IS easy to predIct. Smce an hour of work by a
permanent employee on overtIme costs roughly three tImes as much as
an hour of work by a temporary employee on straIght tIme, one can
say WIth some confidence that these are not occaSIOns on WhICh
overtIme opportumtIes would anse for permanent employees m the
normal course Smce the proposed remedy mvolves a selectIOn by the
gnevor from work opportumtIes whIch temporary employees have
already been scheduled to perform on straIght tIme, there can be no
senous doubt that the resultant overtIme opportumty IS "artIficial"
(pages 303 and 304)
ArbItrator Howe was faced wIth sImilar facts and the same contract language,
but thIS tIme the employer made a prompt offer of m kmd relIef Agreemg
wIth the above passage from the Gray award, Mr Howe ruled the remedy
proposed by the employer was appropnate As the artIficial assIgnment
would not have gone to permanent employees If the agreement had not been
vIOlated, assIgmng thIS work to one of them would offset theIr collectIve loss
arIsmg from the vIOlatIOn.
The first Labatt '51 award acknowledged an Important lImIt on the use
of an artIficIal assIgnment as a remedy ThIs lImItatIOn arIses where there IS
uncertamty as to whether the work proposed would have been assIgned to
12
the aggneved group of employees even If there had been no breach of the
collectIVe agreement. Mr Gray wrote
The CIrcumstances may make It dIfficult to dIstmgUIsh, or to be
confident of dIstmgUIshmg, an "artIficial" OpportunIty from a "natural
one" Where an arbItrator IS left m genume doubt whether
Implementmg a proposed m kmd remedy will effectIvely redress the
loss caused by a breach of the collectIve agreement wIthout Itself
constItutmg another breach, that remedy should not be employed.
(page 303)
Here Mr Gray suggests an arbItrator should award a monetary remedy WhICh
over compensates the mdIvIdual gnevor rather than an m kmd remedy whIch
runs a sIgmficant nsk of under compensatmg the group for ItS collectIVe loss
In the mstant case, overtIme work WhICh should have been assIgned to
the gnevor was done by agency personnel supplIed by De Vere Temporary
ServIces In other words, the vIOlatIOn of the collectIVe agreement caused a
loss of work to the bargammg umt. The work proposed by the employer as a
remedy would be performed by members of the bargammg unIt m any case
In the normal course of events, thIS work would be done by a member of the
umt at the regular rate of pay and not as overtIme As a remedy for the
vIOlatIOn, the employer suggests the gnevor do such work as overtIme
Payment of the overtIme rate for thIS work would be artIficIal, but there
would be no artIfice m the assIgnment of thIs work to the gnevor as a
member of the bargaImng umt. As the work normally would be done by an
employee m the unIt, assIgmng It to the gnevor at the overtIme rate would not
redress the umt's collectIve loss of work caused by the Improper assIgnment
made to an outsIder
The sort of m kmd remedy suggested here dIffers markedly from the
sort consIdered m the two Labatt '8 cases In those cases, the artIficial
13
assIgnments proposed by the employer would offset the collectIve loss of
permanent employees by gIVmg theIr group work WhICh otherwIse would
have been done by temporary employees In contrast, the m kmd remedy
proposed m the case at hand would not bnng mto the bargammg umt any
work to replace that lost to the umt as a result of the breach. In thIS sense, the
remedy proposed here IS analogous to the sort of m kmd relIef rejected m the
three cases cIted by the umon where work was assIgned to someone outsIde
the bargammg umt. Damages are appropnate here for the same reasons as
damages were awarded m those cases
The grIevance IS allowed. The employer IS dIrected to compensate the
gnevor for hIS monetary loss
Dated at Toronto, thIS 26th day of April, 2000
RIchard Brown, V Ice-Chair
14