HomeMy WebLinkAbout1999-0134.Goncalves.00-02-23 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 # 134/99
OLBEU # OLB168/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees Umon
(Goncalves)
Grievor
- and -
The Crown m Right of Ontano
(LIqUor Control Board of Ontano)
Employer
BEFORE Richard Brown Vice Chair
FOR THE Ursula Bo, Ian
GRIEVOR Counsel
Koskie & Minsk."
Barnsters & SohcItors
FOR THE John LeWIS
EMPLOYER Counsel
Heenan BlaikIe
Barnsters & SohcItors
HEARING Februa.n 17 2000
When John Goncalves filed thIS gnevance on June 24, 1997, he was a causal
employee workmg at the Queen's Quay Store m Toronto The facts gIvmg
nse to the gnevance are illustrated by the schedule for casual employees m
January of 1997 On certam days, the gnevor worked from 1200 to 5 00 pm.
and at least one casual employee wIth less semonty worked from 4 00 to 9 00
P m. Accordmg to availabilIty sheets completed by Mr Goncalves, he was
available to work from 1200 to 9 00 pm. The umon contends he should have
been scheduled for thIS entIre mterval by vIrtue of hIS semonty If ills ShIft
had been from 12 00 to 9 00, the umon notes, he would not have been entItled
to overtIme for work m excess of eIght hours, because he would have been
paid for eIght hours only and have an unpaid lunch hour
Sam MelI IS the store manager Asked about the ShIftS from 12 00 to
5 00 and 400 to 9 00, he testIfied the overlap m these sillfts provIdes extra
coverage durmg a busy tIme He attributed the peak between 4 00 and 5 00 to
people shoppmg downtown on theIr way home from work and to local
restaurant operators buymg theIr supplIes for the evenmg. The store
manager's contentIOn that the overlap m ShIftS provIdes extra coverage was
dIsputed by the gnevor He testIfied, when workmg on cash from 1200 to
500, he IS relIeved by another casual employee startmg at 400 who merely
takes over from hIm and provIdes no extra coverage Accordmg to Mr Meh,
the casual employee reportmg at 4 00 first counts ills or her float and then
performs other dutIes until 5 00
ArtIcle 31 7 of the 1996-98 collectIVe agreement states
Casual hours of work shall be allocated accordmg to the semonty of
the casual employees assIgned to the applIcable work unIt or
department.
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The partIes agree the applIcable work umt m tills case IS the store where the
gnevor worked.
In OLBEU (Kruczaj) and Lzquor Control Board ofOntarlO, GSB
No 1359/93, decIsIOn dated March 25, 1996, Ms Bnggs consIdered artIcle
31 7 of the prevIOus collectIve agreement WhIch IS IdentIcal to the current
artIcle In that case, the employer establIshed a sillft from 12 00 to 800 pm.
and offered It to the gnevor He declmed the offer because he was not
available to work before 4 30 When he asked to work from 430 to 800, the
employer refused to dIvIde the sillft m two In dIsmIssmg the gnevance Ms
Bnggs wrote
Weare of the VIew that If the unIOn were correct m ItS mterpretatIOn It
would lead to an absurd result. It would reqUIre, m every store of the
LCBO, the manager schedulIng the most semor casual employees for
every hour of theIr availabilIty so long as that penod of tIme IS not less
than two hours Weare of the VIew that thIS IS not the mtended result
of artIcle 31 7 (page 16)
The reference to a two-hour mmImum arIses from artIcle 31 1(b) prohibItmg a
ShIft of lesser duratIOn.
The general pnncIpal emergmg from the Kruczaj decIsIOn IS that the
collectIve agreement does not fetter the employer's power to fix the start and
fimsh tImes of the ShIftS to be allocated to casual employees ArtIcle 31 7
comes mto play only after those ShIftS have been establIshed. ThIS artIcle
reqUIres management to dIstribute the predetermmed ShIftS on the basIs of
semonty For present purposes, the Important pomt IS that an employee has a
semonty claim only to those sillfts created by management for WhICh he or
she IS available In Kruczaj, the gnevor failed precIsely because he was not
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available for part of the ShIft on offer Ms Bnggs declIned to alter the
establIshed ShIft by awardmg part of It to the gnevor
Umon counsel sought to dIstmgUIsh the facts m Kruczaj from those at
hand on the basIs that Mr Goncalves IS available to work from the begmmng
of the 12 00 to 5 00 ShIft until the end of the 4 00 to 9 00 sillft. Tills argument
mIsses the pomt. The gnevor IS unable to provIde the servIces of two people
dunng the one-hour overlap m these ShIftS In other words, havmg accepted
the 12 00 to 5 00 ShIft, the grIevor was no longer available for the first hour of
the 4 00 to 9 00 sillft. In tills sense, he was unavailable for part of an
establIshed ShIft, Just as the gnevor m Kruczaj was
In the absence of bad faith, the employer's decIsIOn to schedule
overlappmg ShIftS should not be second guessed by thIS board. Schedulmg
by arbItratIOn would be hIghly ImpractIcal As the umon has not alleged bad
faith, I need not comment on the eVIdence relatmg to the reasons for
overlappmg ShIftS m tills case
The grIevance IS dIsmIssed.
Dated at Toronto, thIS 23rd day of February, 2000
~
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RIchard Brown, V Ice-Chair
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