HomeMy WebLinkAbout2000-1519.Scarcello.02-02-12 Decision
~M~ om~o EA1PLOYES DE LA COURONNE
_QJ_L i~~i~~~~~T DE L "ONTARIO
COMMISSION DE
REGLEMENT
"IIIl__1I'" BOARD DES GRIEFS
Ontario
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GSB#1519/00, 1520/00
UNION# OLB443/99, OLB477/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees' Union
(Scarcello)
Grievor
-and-
The Crown In Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE GRIEVOR Elizabeth Mitchell
Counsel
Koskie Minsky
Barnsters & Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING April 3, August 30, and September 7,2001
DECISION
The gnevor Frank Scarcello filed two gnevances concernIng mIssed overtIme opportumtIes At the
commencement of the heanng the partIes provIded me wIth the folloWIng Agreed Statement of
Facts
The Employer the Umon and the Gnevor (hereInafter "the PartIes") agree to the
folloWIng facts for the purposes of the heanng and wIthout preJudIce or precedent to
posItIOns taken or arguments made In other gnevances and/or heanngs The Umon
enters Into thIS agreement wIthout preJudIce to ItS posItIOn that the manner of rotatIng
overtIme IS InCOnsIstent WIth the collectIve agreement and wIthout preJudIce to ItS
nght to file a gnevance concernIng the rotatIOn system In future
1 The Gnevor was a Vax System Operator at the Employer's Durham
LOgIStICS FacIlIty at all relevant tImes He has been a Vax Operator
SInce July 1985 when he JOIned the Employer
2 At the tImes In questIOn, there were 3 Vax System Operators on the
Semonty and overtIme lIsts Joe MarkowIak, the Gnevor and Drake
DZIewIr On these lIsts, the employees are lIsted In the order set out
hereIn, wIth Mr MarkowIak beIng the most semor employee
3 Dunng the relevant tIme penods, the Vax Department had wntten
gUIdelInes for SOlICItIng overtIme As of 1995 those gUIdelInes set
out that overtIme opportumtIes would be rotated among the
employees lIsted In the paragraph 2, wIth the employee wIth the
lowest amount of overtIme hours beIng offered the overtIme
opportumty first. A copy of the AdmInIstratIOn GUIdelInes for
SOlICItIng OvertIme (gUIdelInes") and a copy of a sample overtIme
log are attached hereto as AppendIx "A"
4 Pnor to 1998 the Employer paid monetary compensatIOn or gave lIeu
tIme for mIssed overtIme opportumtIes to employees In thIS
department, where entItlement was not In dIspute In or round 1998
the Employer changed ItS practIce from paYIng monetary
compensatIOn for mIssed overtIme opportumtIes and began offenng
an In-kInd remedy The Umon does not agree wIth thIS change In
practIce
5 In 1989 the Gnevor filed a gnevance whIch proceeded to heanng before
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the Gnevance Settlement Board. The Employer dIsputed the Gnevor's
entItlement to the overtIme The ArbItrator ruled that he was entItled to
the overtIme and awarded monetary compensatIOn. A copy of that
decIsIOn IS attached hereto as AppendIx "B"
6 The collectIve agreement language about overtIme In 1989 was
dIfferent from the language about overtIme In the collectIve
agreement pertaInIng to these gnevances A copy of that language
wIth the changes underlIned IS attached hereto as AppendIx "c"
7 Subsequent to the 1990 decIsIOn, the Gnevor contInued to gneve
mIssed overtIme opportumtIes and receIved monetary compensatIOn
or tIme In lIeu eqUIvalent to the overtIme mIssed. ThIS occurred 5 or
6 tImes between 1990 and 1998
8 In June 1998 the Gnevor was mIssed In an overtIme sItuatIOn. He
gneved and the Employer said he would be offered the next avaIlable
overtIme, Ifhe was entItled to the overtIme The Gnevor refused that
offer ThIS gnevance contInues to be outstandIng. A copy of the 1st
Stage Gnevance Report and Stage 3 Gnevance forms are attached
hereto as AppendIx "D"
9 On Sunday November 21 1999 there was a reqUIrement for a Vax
System Operator to work overtIme because of a system problem. It IS
the Employer's posItIOn that a computer consultant who was a non-
LCBO employee and not famIlIar wIth the gUIdelInes, called the
employee whose name appeared at the top of the telephone lIst,
whereas the fact IS the Gnevor had the least amount of total overtIme
hours That employee who was called was Joe MarkowIak who
worked four (4) hours of overtIme at the applIcable overtIme rate
(double tIme for Sundays) The Umon has no eVIdence to refute the
Employer's fact.
10 The Gnevor brought thIS Issue to the attentIOn of hIS manager Nick
DeBoms ("DeBoms") on November 23 1999 The PartIes dIsagree
about Mr DeBoms's response or IntentIOn
(i ) The Employer says that Mr DeB oms advIsed the Gnevor that
he could work any four (4) hours at hIS convemence, and
would be paid at the double tIme rate Mr DeBoms's
IntentIOn was to create a new overtIme opportumty not one
that would normally be offered to the Vax Operators The
Employer's posItIOn IS that the work for these hours would be
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work normally performed by Vax Operators
( 11 ) The Gnevor understood, and the Umon accepts, that Mr
DeB oms offered the Gnevor the next avaIlable four (4) hour
overtIme opportumty whIch would attract the double tIme
rate The Employer says that thIS overtIme opportumty would
have occurred wIthIn a three (3) month penod of tIme
The PartIes agree to request that the ArbItrator determIne, based upon the
arguments by the PartIes, whether or not thIS changes her conclusIOn about
the appropnate remedy (if the ArbItrator determInes the ments of the
gnevances) Attached hereto as AppendIx "E" IS a copy of the Gnevor's 1st
Stage Gnevance Report.
11 A stage 2 gnevance was filed, date stamped December 13 1999 and a Stage
3 Gnevance was filed, December 19 1999 whIch forms the subJ ect matter of
GSB FIle No 1519/00 and IS attached hereto as AppendIx "F"
12 On Monday December 13 1999 there was a reqUIrement for a Vax System
Operator to be contacted to resolve a problem that had ansen after 12 00 am
The Gnevor was scheduled to work 4.20 am to 1220 pm. Jim Cheng, a
computer console operator and bargaInIng umt employee called Drake
DZIewIr to consult wIth hIm on the problem because Mr DZIewer was the
last Vax Operator on sIte Mr DZIewIr decIded to come In and was paid for
four (4) hours of overtIme The addItIOnal two (2) hours, as well as the eIght
(8) hours Mr DZIeWIr worked on Saturday December 11 1999 were not
Included In the overtIme book untIl the mormng of Monday December 13
1999 when Mr DeBoms arrIved at work at 8 00 am. Mr DeBoms realIzed
when he updated the overtIme book, that he (SIC) Gnevor should have been
called In early for the December 13th overtIme work.
13 The Gnevor brought thIS Issue to the attentIOn ofMr DeBoms on December
14 1999 The PartIes dIsagree about Mr DeBoms's IntentIOn or response
and repeat the posItIOns set out In paragraph 10 The PartIes agree that for
the purposes of thIS heanng, the overtIme for the Gnevor would be four (4)
hours at tIme and one-half (1 1/2) Attached hereto as AppendIx "G" IS a copy
of the 1 st Stage Gnevance Report.
14 A Stage 2 gnevance date stamped December 20 1999 was filed and a Stage
3 gnevance, dated February 6 2000 was filed, whIch forms the subJect
matter of GSB FIle no 1520/00 and IS attached hereto as AppendIx "H"
15 The Employer agrees that ArtIcle 6 6(b) of the collectIve agreement was
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vIOlated, for the reasons set out above on November 21 and December 15
1999 by not offenng the overtIme opportumtIes to the Gnevor
16 The Employer umlaterally amended the wntten gUIdelInes for SOlICItIng
overtIme effectIve December 13 1999 to be consIstent WIth ItS new practIce
as stated In paragraph 4 A copy of the amended gUIdelInes IS attached hereto
as AppendIx "I"
17 Pnor to the filIng of these gnevances, the Employer and the Umon dIscussed
the Employer's change In remedy for breaches of ArtIcle 6 6(b) of the
collectIve agreement from monetary compensatIOn to In-kInd remedy but the
Umon dId not agree to any changes
18 The Gnevances that have been referred to the GSB pursuant to thIS
arbItratIOn were filed under the 1998-2000 collectIve agreement. A copy of
ArtIcle 6 6(b) IS attached hereto as AppendIx "J"
19 The PartIes request that the Crown Employees Gnevance Settlement Board
make a determInatIOn as to the appropnate remedy for said vIOlatIOns of the
collectIve agreement.
20 The Employer agrees that no notIce of the change In practIce was gIven
dunng the bargaInIng that resulted In the 1998-2000 collectIve agreement and
the Umon's eVIdence IS that It mIssed an opportumty to bargaIn to maIntaIn
the long standIng practIce
The AdmInIstratIve GUIdelInes for SOlICItIng OvertIme referred to In paragraph 3 read as follows
1 OvertIme shall be solIcIted first to the full-tIme employees who normally
perform the work to be done on a rotatIOnal basIs, based on a "Balanced Total
Hours System"
2 The employees wIth the lowest total of overtIme hours recorded, wIll be
solIcIted first. Employee solIcIted must have a mImmum of eIght (8) hours
between ShIftS
3 If overtIme IS reqUIred past mIdmght on an overtIme or week-endIng ShIft,
the operator has the optIOn of staYIng up to (8) hours to complete the work, or
he may "CALL IN" another operator accordIng to the overtIme rotatIOn.
4 All overtIme that IS accepted or declIned by an employee wIll be recorded as
worked for the purpose of maIntaInIng records, unless the employee has
declIned after already completIng theIr regularly scheduled work week.
5 OvertIme wIll not be recorded as worked when the employee IS
(a) on vacatIOn
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(b) absent from work due to sIckness or scheduled "E" days
( c ) declImng any second consecutIve day of overtIme proVIdIng that the prevIOUS
day of overtIme consIsted of a mImmum of two hours worked.
(d) on Bereavement or CompassIOnate leave
(e) servIng as a court wItness or Juror
(0 on a temporary secondment or specIal assIgnment.
The only matenal change to the gUIdelInes In December of 1999 was the addItIOn of the folloWIng
Where It IS agreed that an error has occurred In the canvaSSIng of overtIme, the
employee shall be offered the opportumty to make up the lost tIme on a mutually
agreed upon date (to occur wIthIn three months unless otherwIse mutually agreed
upon under extenuatIng cIrcumstances) If the employee worked overtIme the day
pnor to the mIssed day or worked overtIme on the day folloWIng the mIssed day
compensatIOn shall be paid as If the overtIme had been worked on the mIssed day If
the make-up overtIme IS scheduled such that It falls ImmedIately pnor to or folloWIng
another day of overtIme, double rate wIll not apply
The relevant provIsIOn of the collectIve agreements read as follows
1989-collectIve agreement - ArtIcle 6
(a) Authonzed work performed In excess of the employee's normal workday shall be
paid at the rate of one and one-half (1 1/2) tImes the normal hourly rate of the
employee unless otherwIse provIded In thIS Agreement. All work performed on any
second consecutIve day of overtIme shall be paid at double the employee's normal
rate of pay It IS understood that an employee IS to receIve double rates when the
employee works on the employee's second scheduled day off
(b) Where there IS a reqUIrement for overtIme to be worked, It shall first be offered to
full-tIme employees on a rotatIOnal
basIs Where sufficIent personnel do
not volunteer such overtIme shall then
be offered to permanent part-tIme
employees then to casual employees
FaIlIng sufficIent volunteers, overtIme
would be assIgned to full-tIme
employees on a rotatIOnal basIs
1998-2000 collectIve agreement = ArtIcle 6
(b) Where there IS a reqUIrement for overtIme to be worked, It shall first be offered to
full-tIme employees on a rotatIOnal basIs Where sufficIent personnel do not
volunteer such overtIme shall be offered to permanent part-tIme employees then to
casual employees FaIlIng sufficIent volunteers, overtIme would be assIgned to the
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least semor qualIfied employee
UNION SUBMISSIONS
Ms Mitchell, counsel for the Umon, submItted that thIS gnevance should succeed on three grounds
FIrst, she took the posItIOn that thIS matter had been dealt wIth In a prevIOus decIsIOn of the GSB
(Scarcello v LeBO, GSB # 1633/89) and that the matter IS res judicata In that 1990 case the
Board found that the gnevor had been Improperly demed an overtIme opportumty and ordered that
he be compensated for that omISSIOn. The 1990 decIsIOn Involved the same gnevor the same partIes
and the same Issue ThIS Board, It was submItted, should be bound by the award.
In the alternatIve, the Employer IS estopped from umlaterally changIng the establIshed practIce of
paYIng compensatIOn for overtIme hours and offenng Instead an In-kInd remedy The amendment to
the eXIstIng polIcy was made wIthout notIce to the Umon and has never been agreed to by the Umon.
There had been a long standIng practIce to pay for overtIme worked and, after the 1990 decIsIOn of
the Board, every lost overtIme opportumty resulted In monetary compensatIOn. The partIes
conducted themselves In a manner consIstent WIth the 1990 decIsIOn. The Employer IS estopped
from altenng that practIce for the duratIOn of the 1998-2000 collectIve agreement. The gnevance
should be upheld on these grounds as well
However notwIthstandIng these prelImInary obJectIOns, the partIes asked the Board to consIder the
ments of the gnevance to aid the partIes In the future With respect to the ments, It was explaIned
that the gnevor IS one of three Vax Operators at the Durham warehouse There IS one operator on
each ShIft and theIr dutIes compnse of, for the most part, the operatIOn of the computers for the
warehouse The dIstributIOn of overtIme IS not based on an equalIzatIOn of hours but rather on the
offenng of extra hours to the Vax Operator who has the lowest number of overtIme hours If that
employee refuses the overtIme, It IS credIted to hIm as Ifhe had worked and then offered to the next
lowest Vax Operator on the lIst. That can result In a large dIscrepancy In the actual number of
overtIme hours each Vax Operator has worked. ThIS IS clearly not a sItuatIOn where an In-kInd
remedy wIll compensate the gnevor for hIS loss To offer hIm the next overtIme opportumty IS
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meamngless He remaIned the lowest on the lIst and would have been offered the next overtIme
The overtIme lost to hIm as the result of the Employer's error cannot be replaced by another offer of
overtIme that he would be entItled to In any event.
With respect to the Issue of res judicata and Issue estoppel, It was argued that the facts of the 1990
case are essentIally IdentIcal to those In the Instant case The gnevor was overlooked In the
assIgnment of overtIme Although the assIgnment of overtIme was based on a dIfferent system at the
tIme of the earlIer gnevance, at Issue was the InterpretatIOn of ArtIcle 66 (b) No Issue was taken to
the form of remedy and the Board ordered that the gnevor be compensated for the tIme lost. SInce
that tIme the gnevor has filed 5 or 6 more gnevances for lost overtIme and has been paid each tIme
Clearly It was submItted, the partIes understood the 1990 decIsIOn to be bIndIng. The Employer
Introduced a new polIcy that changed the practIce respectIng overtIme The new practIce was to
offer Instead an In-kInd remedy for an Improper assIgnment of overtIme The Umon has never
agreed to that change, as these gnevances IndIcate
Thus, It was submItted, thIS Board should be bound by the Scarcello award of 1990 for several
reasons In the first Instance, thIS Board has no JunsdIctIOn to determIne an Issue that has already
been the determIned by another tnbunal These two cases clearly meet the test of res judicata In that
they are between the same partIes, that IS the same Employer the same Umon and the same gnevor
and they deal wIth the same Issue, that IS the InterpretatIOn of ArtIcle 6 6 (b) The Instant case IS
beIng brought forward In the same forum as the earlIer decIsIOn. In the second Instance, thIS Board
should be reluctant to overturn a decIsIOn of another tnbunal unless It IS convInced that the prevIOUS
award has been mamfestly wrongly decIded. The polIcy reasons to adopt such an approach are
ObVIOUS FinalIty IS the pnmary ratIOnale PrevIOUS decIsIOns allow the partIes to conduct
themselves In a manner that aVOIds contInUOUS confrontatIOn and gIves them secunty In theIr actIOns
To Ignore prevIOus decIsIOns and relItIgate Issues repeatedly wIll only result In uncertaInty and
unnecessary expense In thIS case, It was Said, the first Scarcello was accepted by all concerned as
beIng the correct InterpretatIOn of ArtIcle 6 6 (b) In fact, the Employer IS not takIng Issue WIth the
correctness of that award, but rather takes the posItIOn that It had the nght to change ItS practIce
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There are no grounds upon whIch thIS Board could or should reJect the 1990 award.
FInally the Umon took the posItIOn that the Employer IS estopped from changIng ItS practIce dunng
the term of the 2000 collectIve agreement. Its long standIng practIce was based on the pnor award
and the Umon relIed on thIS practIce to ItS detnment.
If the Board should claim JunsdIctIOn to determIne the ments of the case, It was submItted by the
Umon that the case law IS clear A rotatIOnal system for overtIme opportumtIes IS not an
equalIzatIOn scheme for hours worked and the presumptIOn IS that payment for the hours worked IS
the appropnate remedy If the theory IS to place the gnevor In the posItIOn he would have been In
but for the breach, the only proper remedy In thIS sItuatIOn would be to pay hIm for the hours
worked. OtherwIse he receIves no remedy because, beIng the person wIth the lowest number of
hours, he would be entItled to the next overtIme anyway
AddItIOnally It was stated that If the Employer does gIve the gnevor the next overtIme opportumty
and If he IS not entItled to It, the person entItled to It IS depnved of hIS overtIme hours caUSIng a
further dIstortIOn In the overtIme system that has been establIshed by the partIes The case law IS
clear an In kInd remedy IS not appropnate when It Interferes wIth the nghts of other employees
In support of ItS posItIOn the Umon relIed on the folloWIng cases Re Liquor Control Board of
Ontario and Ontario Liquor Board Employees Union (Gately, Nicholson), (2001), GSB Nos
0077/01 0078/01 (Petryshen) Re Ontario Liquor Control Board of Ontario and Ontario Liquor
Board Employee's Union (Scarcello), (2000) GSB No 1633/89 (Kaplan) Re Ontario Liquor
Control Board of Ontario and Ontario Liquor Board Employees' Union (Sousa), (2000), GSB
No 1492/98 (Brown) Re Ontario Liquor Control Board and Ontario Liquor Board Employees
Union (Larmand/Shotlander/Thompson), GSB Nos 1056/94 1057/94 1058/95 (Stewart) Re
Ontario Liquor Control Board and Ontario Liquor Board Employees' Union (DePetrillo et al)
(1989), GSB Nos 117/89 118/89 119/89 (Gorsky) Re Ontario Liquor Control Board and
Ontario Liquor Board Employees' Union (Galli) (1985), GSB No 689/84 (Roberts) Re
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Corporation of the City of Cam bridge and Amalgamated Transit Union, Local 1608 (1997), 65
LAC (4th) 13 (Tims) Re Dominion Colour Corporation and Teamsters Chemical, Energy and
Allied Workers, Local 304 (1993),36 L A.C (4th) 289 (Gray) Re Labatts Ontario Breweries
and Brewery, Malt and Soft Drink Workers, Local 304 (1993) 36 L A.C (4th) 289 (Gray) Re
Sherman Mine, Cliffs of Canada Ltd and United Steelworkers (1980), 26 L.A.C (2d) 67
(Brunner) Re Ivaco Rolling Mills and United Steelworkers, Local 7940 (1984) 13 L A.C (3d)
289 (Weathenll) and Re Labatts Ontario Breweries and Brewery, General and Professional
Workers Union (1996),56 L A.C (4th) 407 (Howe)
Ms Renton, counsel for the Employer took the posItIOn that thIS case Involves a dIspute over lost
overtIme between three full tIme employees In the Sousa case (supra) the gnevorwas bypassed and
the overtIme work went to an agency person Instead. Because the work was lost to the bargaInIng
umt the appropnate remedy was payment for the lost opportumty That IS not the case In the Instant
gnevance That case also stands for the proposItIOn that delay In correctIng the error wIll also result
In an order to pay AgaIn that IS not the case before you. OtherwIse the case law suggests there IS a
presumptIOn agaInst payment In these CIrcumstances In fact, the Board In the Labatts (Howe) case
pOInted out that there IS a pumtIve aspect to an order to pay overtIme for work not performed. It was
referred to as "armchair overtIme"
It was Said that even If the overtIme cannot be replaced wIthIn the normal work routIne, arbItrators
have stIll been reluctant to order payment for armchair overtIme In the Sousa case the Board
approved of an artIficIal overtIme assIgnment as a remedy for a mIssed overtIme opportumty That
approach was also adopted by ArbItrator Howe In the Labatts (Howe) case (supra) It has even
been suggested that where an employee has refused to accept an offer of replacement overtIme
hours, that refusal should be consIdered a faIlure to mItIgate Labatts (Howe)
With respect to the submIssIOns of the Umon regardIng Issue estoppel and res judicata the
Employer referred to the Supreme Court of Canada decIsIOn In Danyluk v Ainsworth
Technologies Inc. [2001] S C C 44 whIch Involved an appeal of a decIsIOn of the Court of Appeal
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whIch, In turn, had affirmed the decIsIOn of a motIOns Judge who had found that the decIsIOn of an
ESA officer was final As a consequence of that decIsIOn the appellant's claim for unpaid wages and
commISSIOns was barred by Issue estoppel The Supreme Court repeated the threefold test reqUIred
to Invoke the doctnne of Issue estoppel namely that the same questIOn has been decIded In earlIer
proceedIng, that the earlIer JudIcIal decIsIOn was final and that the partIes were the same In both
proceedIngs It also stated that decIsIOn to apply the doctnne was wIthIn the dIscretIOn of the tner of
fact. Those same pnncIples have been accepted by the GSB In the Cheng decIsIOn (supra)
In thIS case It was stated that the LCBO/OLBEU decIsIOns provIded to the Board do not meet those
precondI tI ons In the Cheng case the Issue Involved artIcle 6 15 (a) of the collectIve agreement.
The gnevor had abandoned an earlIer gnevance on the same Issue and the employer took the
posItIOn that her subsequent gnevance was barred by the doctnne of res judicta. The Board reJ ected
that argument for several reasons, one beIng that although the gnevances Involved the same legal
Issues, the fact sItuatIOns were dIfferent. The gnevance was allowed to proceed.
The Employer dId not take the posItIOn that the Scarcello (1990) case (supra) was wrongly decIded.
However It submItted that the Issues In that case were not the same Issues before thIS Board. The
earlIer decIsIOn concerned an InterpretatIOn of a dIfferent artIcle than the Instant case and therefore
there IS no Issue estoppel Scarcello (1990) does not provIde any finalIty to artIcle 6 6 (b)
And, In any event, It was stated the Issue of the appropnate remedy was never placed before the
Scarcello (1990) Board. Once the Board was satIsfied that the gnevor had been entItled to the
overtIme In questIOn, It ordered he be paid for the lost hours NeIther party took any posItIOn about
the appropnate form of payment and the Scarcello (1990) case dId not decIded that questIOn for all
tIme
In the alternatIve the Employer took the posItIOn that even If ItS practIce In 1990 was to pay for lost
overtIme It was entItled to change ItS practIce The collectIve agreement IS sIlent wIth respect to the
Issue of payment for lost overtIme opportumtIes and It IS WIthIn the Employer's dIscretIOn to
determIne the appropnate method of payment. The Sousa and Gately & Nicholson gnevances were
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filed a year after the Scarcello (1990) decIsIOn and the Umon has known SInce then that the
Employer Intended to change ItS past practIce and compensate lost overtIme WIth an In kInd remedy
The Sousa case Involved a questIOn of entItlement and In neIther of those cases dId the Umon raise
an Issue about thIS change In practIce
FInally the Employer took the posItIOn that the gnevance should be dIsmIssed on the ments The
case law shows that there IS a presumptIOn In favour of an In kInd remedy unless It can be shown
that It IS not feasIble to do so or unless the assIgnment of the overtIme would Interfere wIth the
nghts of other employees and result In a further breach of the collectIve agreement. In thIS case
neIther of those sItuatIOns apply The gnevor was offered the next overtIme opportumty whIch he
reJ ected. The Employer's eVIdence was that It was prepared to call the gnevor In at overtIme rates to
perform extra or addItIOnal work that would not have been assIgned to anyone else and therefore
would not have Interfered wIth the nghts of other employees to overtIme The gnevor refused that
overtIme as well
In support of ItS posItIOn the Employer relIed on the folloWIng cases Re LCBO & OLBEU
(Mather) (July 29 1996), GSB # 2260/95 (KIrkwood) Re LCBO & OLBEU (August 3 2001)
GSB # 1328/00 (Abramsky), Re LCBO & OLBEU (Lariviere) May 12/00 (Hams) Re Goodyear
Canada Inc. & United Steelworkers of America, Local 189 (1996) 57 L A.C (4th) 247 (Mikus),
Re Long Manufacturing Ltd. And Canadian Autoworkers, Local 1285 (1995), 48 L A.C (4th)
208 (H. D Brown) Re Commonwealth Holiday Inns of Canada Ltd. (Holiday Inn of Don
Valley) and Hotel and Restaurant Employees and Bartenders' International Union, Local 75
(1983),9 L.A.C (3d) 32 (Brent) Re Toronto Electric Commissioners and Canadian Union of
Public Employees, Local 1 (1994), 45 L.A.C (4th) 248 (Solomatenko) Re Rothman's of Pall
Mall Canada Ltd and Bakery, Confectionery and Tobacco Workers' International Union,
Local 319T (1983) 12 L.A.C (3d) 329 (M. PIcher), Re KS Centoco Ltd. and Teamsters, Local
880 (Serecin) (2000) 85 L.A.C (4th) 1 (Hunter) Re Extendicare Health Services Inc. And
Canadian Union of Public Employees, Local 1394 (1993) 104 D.L.R. (4th) 8 (Ontano Court of
Appeal) and Re International Chemical Workers, Local 346 and Canadian Johns Manville Co.
12
(1971),22 L.A.C 397 (Weller)
REASONS FOR DECISION
I have been asked by the partIes to address all of the arguments submItted In support of theIr
posItIOns even If anyone of them would determIne the Issue on a prelImInary basIs The first Issue
then IS whether the doctnne of res judicata or Issue estoppel applIes so as to bar the Employer from
changIng ItS practIce regardIng overtIme The Umon relIes pnmanly on a prevIOus decIsIOn
concernIng thIS gnevor Frank Scarcello thIS Employer and the Issue of an alleged faIlure to pay
overtIme
The doctnnes of res judicata and Issue estoppel were developed by the courts to prevent abuse of the
system by barnng the relItIgatIOn of claims The bar extends both to causes of actIOn prevIOusly
adJudIcated and of the constItuent Issues or matenal facts embraced wIthIn those causes of actIOn.
The most recent affirmatIOn of the applIcatIOn of the doctnne IS found In the decIsIOn of the Supreme
Court of Canada In the Danyluk case (supra) The court, at paragraph 21 stated
These rules were ImtIally developed In the context ofpnor court precedIngs They
have SInce been extended wIth some necessary modIficatIOns to decIsIOns classIfied
as beIng ofaJudIcIal or quasI-JudIcIal nature pronounced by admInIstratIve officers
and tnbunals In that context the more specIfic obJectIve IS to balance fairness to the
partIes WIth the protectIOn of the admInIstratIve decIsIOn makIng process, whose
Integnty would be undermIned by too readIly permIttIng collateral attack or
relItIgatIOn of Issue once decIded.
Issue estoppel grew out of the doctnne of res judicata because of the dIfferences that eXIst between
courts and admInIstratIve tnbunals It was defined In by the Ontano Court of Appeal In the case of
McIntosh v Parent, [1924] 4 D.L.R. 420 at page 422
When a questIOn IS lItIgated, the Judgment of the Court IS a final determInatIOn as
between the partIes and theIr pnvIes Any nght, questIOn, or fact dIStInCtly put In
Issue and dIrectly determIned by a Court of competent JunsdIctIOn as a ground of
recovery or as an answer to a claim set up cannot be re-tned In a subsequent SUIt
between the same partIes or theIr pnvIes, though for a dIfferent cause of actIOn. The
nght, questIOn, or fact, once determIned, must, as between them, be taken to be
conclusIvely establIshed so long as the Judgment remaInS
13
The courts were agreed that the a more stnngent defimtIOn of purpose be applIed to Issue estoppel
than res judicata In Angle v Ministry of National Revenue [1975] 2 S C.R. 248 DIckIson J
said
It wIll not suffice If the questIOn arose collaterally or IncIdentally In the earlIer
proceedIngs or IS one whIch must be Inferred by argument from the Judgment. The
questIOn out ofwhIch the estoppel arose must have been fundamental to the decIsIOn
arnved at In the earlIer proceedIng.
The precondItIOns to the estoppel are as follows
1 That the same questIOn has been decIded.
2 That the JudIcIal decIsIOn whIch IS Said to create the estoppel was final
3 That the partIes to the JudIcIal decIsIOn or theIr pnvIes were the same persons
as the partIes to the proceedIngs In whIch the estoppel IS raised or theIr
pnvIes
ApplYIng those pnncIples to the Instant case, there IS no dIspute that the partIes are the same that IS
the LCBO the OLBEU and Mr Scarcello It IS also wIthout dIspute that the prevIOUS decIsIOn, that
IS Scarcello 1990, was final The only remaInIng questIOn then IS whether the Issue before me IS the
same Issue that was decIded by the Board In Scarcello 1990
The earlIer gnevance arose from two separate demals of overtIme The Employer had argued that It
was not overtIme but rather a mutually agreed upon change In the hours of work and therefore not a
vIOlatIOn of the collectIve agreement. The Umon took the posItIOn that the Employer had
Improperly aVOIded the overtIme provIsIOns of the collectIve agreement by pressunng the employees
to change ShIftS The Board found that the gnevor had been Improperly passed over for the overtIme
that arose on one of the two occaSIOns gneved. It went on to order the employer to compensate the
gnevor for the lost overtIme hours Clearly the CIrcumstances gIVIng nse to that gnevance are
dIfferent than those gIVIng nse to the Instant gnevance In the Instant case the questIOn was whether
the Employer had Improperly overlooked the gnevor In the dIstnbutIOn of overtIme work, whIch the
Employer has conceded. In any event, no res judicata or Issue estoppel can apply to the questIOn of
entItlement to overtIme sInce each case stands or falls on the facts of that IndIVIdual case
14
F or that reason, none of the prevIOUS GSB decIsIOns regardIng overtIme are of any assIstance to thIS
Board. The entItlement to overtIme IS found In the CIrcumstances gIVIng nse to each IndIVIdual
gnevance and, notwIthstandIng the decIsIOn In Blake et al and the Amalgamated Transit Union,
GSB # 1276/87 etc a Board cannot bInd Itself to the decIsIOn of another tnbunal when It Involves
questIOns of fact anSIng from dIfferent CIrcumstances In any event, the cases provIded can be
dIstIngUIshed on theIr facts In the Gately and Nicholson, Sousa, De Petrillo and Galli cases,
(supra) the overtIme work was assIgned outsIde of the bargaInIng umt and In the
Larmand/Shotlander/Thompson case (supra) the demal of overtIme was based on a lack of
traInIng for the posItIOn In whIch the overtIme arose
With respect to the second Issue In the first Scarcello case, there were no submIssIOns made wIth
respect to the Issue of remedy The order of the Board was stated as follows
An overtIme oblIgatIOn therefore arose and the gnevor was entItled to It. We
therefore order that the gnevor be compensated for the loss of the overtIme
opportumty on November 27 1989
The partIes Interpreted that order to mean payment for the lost overtIme SInce that award, lost
overtIme opportumtIes have always been paid as money not tIme The decIsIOn to pay In money
Instead of replacement overtIme was not based on the Scarcello 1990 award. The partIes applIed
that award In a manner consIstent WIth the practIce at the tIme The partIes made no submIssIOns on
the Issue of remedy and It cannot be said that the Scarcello 1990 Board dealt wIth It In any
meamngful way The Board dId not rule on a nght, questIOn or fact dIStInCtly In Issue Indeed, there
was no Issue between the partIes on the appropnate remedy The Board In the Scarcello 1990 case
ordered the gnevor be compensated but made no order as to what that compensatIOn should be It
was for the partIes to apply the award In a manner consIstent WIth the practIce at the tIme The
doctnnes of res judicata and Issue estoppel bar a party from relItIgatIng a matter that has been
determIned by another arbItratIOn board. However It cannot be said that the Issue In the Instant
gnevance IS the same as that In Scarcello 1990 The Issue In the latter case was the gnevor's
entItlement to overtIme The Issue In the Instant case IS the appropnate remedy for a mIssed
overtIme opportumty Therefore neIther res judicata or Issue estoppel applIes and the gnevance
15
falls on those grounds
HavIng determIned that there IS no prelImInary bar to my JunsdIctIOn to proceed, the next Issue
raised by the Umon IS promIssory estoppel It takes the posItIOn that the Employer cannot
umlaterally alter ItS method of payment for lost overtIme wIthout proper notIce to the Umon of ItS
IntentIOn to change ItS practIce If the Umon had receIved tImely notIce It would have raised the
Issue at the bargaInIng table It relIed to ItS detnment on the eXIstIng practIce and asked thIS Board
to order the Employer to revert to ItS prevIOus practIce
There IS no dIspute that the SInce the decIsIOn In Scarcello 1990 and before the Employer had
compensated employees for mIssed overtIme opportumtIes In money not tIme In 1998 the
Employer decIded to offer an In kInd remedy whIch was not agreed to by the Umon. There can be
no dIspute that these facts gIve nse to an estoppel The practIce was well known, consIstently
applIed and understood by all to be the result of the collectIve agreement and, later the Scarcello
1990 award. By ItS conduct the Employer represented that was the InterpretatIOn of the collectIve
agreement whIch was accepted by all of the partIes The Umon relIed on the Employer's
representatIOn and felt no need to raise the Issue at the bargaInIng table As a result they were
unable to attempt to negotIate a contInUatIOn of the practIce Those facts meet the reqUIrements of a
promIssory estoppel
The Issue then becomes the duratIOn of the estoppel The gnevances were filed under the 1998-2000
collectIve agreement; namely December 20 1999 and February 20 2000 The amended gUIdelInes
for the payment of overtIme were dated December 1999 Pnor to the filIng of these gnevances the
Umon and the Employer dIscussed the changes to compensatIOn for lost overtIme opportumtIes
Clearly the Umon was put on notIce at that tIme that the Employer Intended to alter ItS practIce If It
Intended to negotIate to maIntaIn the status quo It was gIven tIme to do so before negotiatIOns began
for the next collectIve agreement, that IS the one dated Apnl 1 2000 to March 31 2002
Therefore the gnevances succeed In part on the basIs of an estoppel SpecIfically the Employer IS
16
estopped from changIng Its practIce of compensatIng mIssed overtIme opportumtIes In pay Instead
of replacement overtIme untIl the expIry of the 1998-2000 collectIve agreement.
FInally In an effort to aVOId future lItIgatIOn, the partIes have asked for a decIsIOn on the ments
There has been general acceptance of the presumptIOn that In the case of an Improper overtIme
assIgnment, an In kInd remedy of alternate work IS the appropnate remedy The first reported case
on thIS Issue of remedy and the genesIs for that presumptIOn appears to be Re Canadian John
Mansville Co. And I.C.W., Local 346 (1971), 22 L.A.C 396 (P Weller) In that case the gnevor
had been Improperly passed over for an overtIme opportumty and was paid for the lost tIme
However an Issue arose over the InCentIve bonus he claimed he would have earned had he been
scheduled to perform the overtIme In the first Instance Although the Board awarded the lost
InCentIve bonus, It was sympathetIc to the employer's argument that had the gnevor worked the
overtIme he would have been paid for the hours he actually worked. By paYIng hIm for the lost
overtIme, the employer contended the gnevor had been paid for tIme not worked whIch put hIm In a
sIgmficant better posItIOn than If the overtIme had been properly dIstnbuted. The employer on the
other hand paid tWIce for the same work whIch was InCOnsIstent WIth the non-pumtIve and
compensatory nature of damages In response to that argument, the Board said, at page 403
In pnncIple, the proper remedy for a lost overtIme shIft should be the offer of a
SubstItute If there IS some dIstInctIve reason why no sImIlarly attractIve SubstItute IS
avaIlable, then the company may be oblIged to compensate the employee In money
However thIS should not be assumed to be the case and should reqUIre proof of the
facts In the IndIVIdual sItuatIOn.
It IS thIS pnncIple that has led to a general acceptance by arbItrators of the presumptIOn that a
remedy "In kInd" IS the better way of makIng whole an employee who has been demed an overtIme
opportumty Recent decIsIOns suggest that, whIle that presumptIOn stIll prevaIls, subsequent
decIsIOns have developed so many exceptIOns to the rule that It appears to be observed more In the
breach. For example, In the PLH Aviation case (supra) the arbItrator noted, at page 341
[E]ven though It may be eaSIer to apply a remedy In-kInd In the case of an
equalIzatIOn or eqUItable dIstnbutIOn clause, an arbItratIOn board must stIll be
17
satIsfied that to do so would be consIstent WIth the IntentIOn of the partIes as
reflected In the agreement. If It IS not practIcable or reasonable to equalIze overtIme,
the appropnate remedy wIll be damages
He referred to the exceptIOns to the rule that had been set out In Doman Forest Products Ltd.
Ladysmith Division and P.P W c., LocalS, (May 29 1986), unreported (Kelleher) on page 344
[F]Irst, If the employer's breach of the agreement was delIberate second, If there IS a
pattern of persIstent, albeIt good faith, mIstakes by the employer and thIrd, If, for
whatever reason, It IS not possIble to fashIOn an appropnate In-kInd remedy
In the Instant case, none of those exceptIOns apply There IS no eVIdence, or Indeed any allegatIOn,
that the Employer delIberately overlooked the gnevor when It assIgned the overtIme In questIOn.
There has been no suggestIOn of a pattern of persIstent mIstakes
Other exceptIOns have also been accepted by arbItrators on a case by case basIs Where the gnevor
has left the employ of the employer or IS no longer part of the group wIthIn whIch the overtIme was
to be equalIty dIstnbuted, a remedy In kInd has been found not to be the appropnate remedy for the
ObVIOUS reasons SImIlarly arbItrators have agreed that when the overtIme was Improperly assIgned
to someone outsIde of the competIng group an In kInd remedy IS not appropnate Where the
replacement hours cannot be offered wIthIn the tIme penod over whIch the IneqUIty was to be
balanced, payment for the lost tIme IS the appropnate remedy FInally It has been generally agreed
amongst arbItrators that when semonty IS the determInIng factor In assIgmng overtIme, a remedy In
kInd would only exacerbate the problem because It would result In the Interference of another's
semonty nghts and another breach of the agreement.
In the final analysIs, what IS clear IS that the answer to the questIOn of the appropnate remedy
depends on the collectIve agreement and the facts of the partIcular case In the Instant case the
collectIve agreement IS sIlent on the method of payment for an Improper overtIme assIgnment.
OvertIme IS offered on a rotatIOnal basIs to the three V AX operators In the department. However It
IS offered first to the person wIth the least number of overtIme hours All overtIme declIned IS
entered as worked for purposes of calculatIng the total overtIme hours It IS clear from the overtIme
logs provIded that the system was not meant to result In an absolute equalIzatIOn of hours For the
18
December 2, overtIme log, the three operators worked 121 hours, 123 575 hours and 113 hours of
overtIme respectIvely For the December 3 log, the numbers were 121 129575 and 119 By
December 9 the number of hours worked were closer to equal beIng 130 129 575 and 128 The
system IS desIgned to attempt to dIstnbute the overtIme In an eqUItable manner amongst the three
employees In the department. The system IS not semonty dnven. It cannot be said that any
employee's nght have been Interfered wIth by the assIgnment of replacement overtIme hours to the
gnevor SInce the nght under the collectIve agreement to the overtIme In the first Instance was hIS
and, because of the Employer's error remaIned hIS ThIS Issue was consIdered by the Board In the
Sousa case (supra) ArbItrator Brown, at page 8 stated as follows
The purpose of contract remedIes IS to place the party harmed by a breach In a
posItIOn as close as possIble to the one whIch would have been occupIed Ifno breach
had occurred. Damages In 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 necessanly entaIls an element of over compensatIOn for
the gnevor as an IndIVIdual, because thIS person IS paid for overtIme not worked,
whereas he or she would have worked for overtIme pay If the InfractIOn had not
happened. In kInd relIef aVOIds over compensatIOn by requmng the gnevor to work
In exchange for the money receIved. However an In kInd remedy sometImes cannot
adequately repair the harm suffered eIther by the gnevor as an IndIVIdual or by
members of the bargaInIng umt as a group To aVOId over compensatIOn, arbItrators
generally have awarded In kInd relIef so long as It redresses the loss caused by a
vIOlatIOn. Monetary com pensatI on has been awarded, even though It
overcompensates, where another overtIme assIgnment would not redress the
sItuatIOn. In choOSIng between these two types of remedy the central questIOn IS
whether In kInd relIef would adequately repair the harm caused by a breach.
OvertIme InfractIOns may be dIvIded Into two broad categones The first IS
compnsed of vIOlatIOns InvolvIng an Improper dIstributIOn of work among
employees In 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 Instead assIgned to another wIthIn the
same group thIS Imbalance can be corrected In some CIrcumstances by gIVIng the
aggneved IndIVIdual an overtIme assIgnment whIch otherwIse would have gone to a
dIfferent member of the group In kInd relIef cannot rectIfy the sItuatIOn If the
overtIme work proposed by way of remedy IS sIgmficantly Infenor to the work
mIssed, or If the proposed overtIme assIgnment IS not avaIlable wIthIn any penod
specIfied In the contract for aChIeVIng an eqUItable dIstnbutIOn. Monetary
compensatIOn has been awarded In CIrcumstances lIke these where In kInd relIef
cannot redress a vIOlatIOn.
19
Where another overtIme assIgnment IS able to adequately rectIfy the loss caused by
an Improper dIstnbutIOn of overtIme WIthIn the group entItled to It, such remedy has
been granted because It neIther under compensates nor over compensates the gnevor
for the harm caused by the breach. Over compensatIOn notwIthstandIng, monetary
relIef has been awarded where no other remedy IS capable of repamng the harm
caused by an InfractIOn In thIS settIng, faced wIth a chOIce between damages whIch
would over compensate and In kInd relIef whIch would under compensate, arbItrators
have opted for over compensatIOn. In dOIng so they have favoured the gnevor
harmed by an Improper allocatIOn of overtIme rather than the employer who caused
the harm.
I have come to the conclusIOn then that, In the Instant case, none of the exceptIOns to the general
presumptIOn that an appropnate remedy for a lost overtIme opportumty IS an In kInd assIgnment of
overtIme hours apply and the gnevance falls on the ments The assIgnment of replacement overtIme
does not affect the nghts of other employees In that the nght to overtIme remaIned wIth the gnevor
who had the least hours Over tIme, the overtIme hours worked by all three V AX operators wIll
balance as eqUItably as possIble An In kInd remedy wIll neIther over compensate nor under
compensate the gnevor for the vIOlatIOn of the collectIve agreement. Another overtIme opportumty
wIll adequately compensate the gnevor for any loss he suffered as a result of the vIOlatIOn and IS the
appropnate remedy In the CIrcumstances
The partIes have also asked that I deal wIth the Issue of a make-work remedy to replace the lost
overtIme AgaIn, by reference to the Sousa decIsIOn (supra) ArbItrator Brown consIdered the
awards of ArbItrator Gray and Howe In the context of a make work assIgnment In the two Labatts
cases mentIOned earlIer In the first case ArbItrator Gray awarded monetary compensatIOn because
of the delay In offenng the proposed remedy The delay made It ImpossIble to dIstnbute overtIme
WIthIn the penod prescnbed In the collectIve agreement. Absent that delay however Mr Gray
suggested that an artIficIal assIgnment of overtIme mIght be appropnate If It addressed the collectIve
harm caused by the breach. He arnved at that conclusIOn because of the umque CIrcumstances of the
case before hIm The work assIgnment was one that had been performed by the temporary
employees at straight tIme rates and by the permanent employees at premIUm rates The temporary
employees had no nght to the work In the first Instance and so returnIng the work to the permanent
20
employees addressed the loss to the bargaInIng umt as a whole ArbItrator Howe In the second
Labatts case was dealIng wIth sImIlar facts and IdentIcal contract language He ruled that the
artIficIal assIgnment of overtIme was the appropnate remedy as the overtIme beIng offered would
not have gone to the permanent employees absent the breach. ThIS assIgnment offset the collectIve
loss to the bargaInIng umt and was appropnate In the CIrcumstances
However ArbItrator Gray acknowledged a lImItatIOn on the use of artIficIal overtIme as a remedy
whIch anses when there IS uncertaInty as to whether the work beIng offered would have been
assIgned to the bargaInIng umt even If there had been no breach. He wrote, at page 303
The CIrcumstances may make It dIfficult to dIStIngUISh, or to be confident of
dIStIngUIShIng, an "artIficIal" opportumty from a "natural one" Where an arbItrator IS
left In genUIne doubt whether ImplementIng a proposed In kInd remedy wIll
effectIvely redress the loss caused by a breach of the collectIve agreement wIthout
Itself constItutIng another breach, that remedy should not be employed.
The Board In the E.B. Eddy case (supra) the Board reJected an offer of SubstItute work because the
offer was vague and not necessanly related to the scope of the employee's regular dutIes In the
Purolator case (supra) the Board consIdered a make work offer of overtIme and stated, at page 379
The second proposal of the employer fits classIcally WIthIn the make-work type of
sItuatIOn reJected umversally by the authontIes It IS, of course not work that IS
beIng offered but specIal traInIng. Whereas thIS may be useful It cannot be said to be
necessary I adopt what arbItrator DIssanayake said In Re Canada Packers, supra.
BesIdes, whether techmcally first aid traInIng IS or IS not bargaInIng umt
work, there IS nothIng to suggest that such traInIng IS warranted from the
gnevor's pOInt of VIew or that of thIS company In other words, the
company's proposal IS a make work proJect. As wIth the proposal of non-
bargaInIng umt work, I have senous dIfficulty dIrectIng the gnevors to
engage In a make-work proJect to earn theIr overtIme
I too have senous doubts about the appropnateness of a make work remedy In these CIrcumstances
The work beIng offered IS work that IS routInely done by these V AX operators and IS essentIally
work that ought to but cannot be fitted Into the normal work routIne, eIther at straight tIme or at
premIUm rates In those cIrcumstances, It seems to me that It IS work that would, Ifbudgets allowed,
be offered to these very employees In the course of theIr dutIes Can that be consIdered "make-
work" I cannot dIStIngUISh thIS make work from the routIne work of the department and therefore
21
cannot say wIth confidence that offenng It as an In kInd remedy wIll not cause another breach of the
collectIve agreement. In the CIrcumstances I do not belIeve It IS an appropnate remedy
DECISION
In conclusIOn, the Umon's prelImInary obJectIOns of res judicata and Issue estoppel are dIsmIssed.
The Employer however IS estopped from changIng ItS practIce WIth respect to the compensatIOn of
mIssed overtIme opportumtIes for the duratIOn of the 1998-2000 collectIve agreement. The
gnevances are dIsmIssed In theIr ments The Employer's decIsIOn to change ItS practIce and
compensate lost overtIme WIth an In kInd remedy IS not a vIOlatIOn of the collectIve agreement.
Dated at Toronto thIS lih day of February 2002
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Loretta Mikus, Vice-Chair
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