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HomeMy WebLinkAbout1984-0040.Attard.84-08-03IN THE MA ,TTER OF AN Under THEN CROWN EMPLOYEES COLLEC T Before ARBITRATION IVE BARGAINING ACT Between: OLBEU (Roger Attard) - And - (The T' he Crown in Right of Ontario Liquor Contra? Board of Ontario) THE GRIEVANCE SETTLEMENT BOARD Before: Grievor Employer A. Kruger F. Tay.lor P. D. Camp Vice Chairman Member Member For the Grievor: M. Levinson, Counsel Koskie & Minsky Barristers & Solicitors For the Employer: M. A. Hines, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Date of Hearing: May 28, 1984 . < This matter comes .before this Board as a result ~<of a grievance launched by Mr. Roger Attard concerning his claim for overtime pay for three days worked late in 1983. At the outset of our hearing, the parties agreed that the Board had jurisdiction to hear and determine this matter. Fortunately there is agreement on most of the relevant facts. The griever, Mr. Attard, was employed as a stationary engineer in the Engineering Department at the Toronto Warehouse at the time of the events leading up to this grievance. In the Engineering Department, there was a Chief Engineer, Mr. Leonard Edmunds, an Assistant Chief Engineer, Mr. Warren Johnson and four stationary engineers. .The law requires that at least one engineer be on duty atall~times in the boiler room. In order to meet this requirement, a complex shift schedule was drawn up to ensure coverage by one 'of the four stationary engineers twenty-four hours a day, seven days a week. The schedule was published at the beginning of each year for the entire calendar year. Mr. Attard worked seven days 'onone shift followed by two days off. Then he moved to another shift for seven days followed by two days off. Then he worked for six days on the third shift after which he had four days off. This meant that in each twenty-eight day period, each stationary engineer was scheduled to work twenty days and had eight days off. The Chief Engineer and the Assistant Chief Engineer normally worked Monday through Friday from 8 a.m. to 4 p.m. and were not required to work on other shifts. For the stationary - 3 - engineer, the shifts were 7 a.m. to 3 p.m., 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. In accordance with the published annual schedule, Mr. Attard moved to the 3 p.m. to 11 p.m. shift for a seven day assignment on that shift on Wednesday, November 23, 1983. He was scheduled to be on that shift up to and including Tuesday, November 29, 1983. . .At the time Mr. Edmunds was off work sick and it was uncertain when he would be fit to return to work,Mr. Johnson had applied for's permanent posting to the Whitby warehouse .and ha'd been successful. He was scheduled to leave Toronto for his new job approximately December 1, 1983. Mr. David Wilcox, the Assistant General Manager, of the Toronto Warehouse was concerned about the total absence of management in the Engineering Department if Mr. Johnson left. He met with Mr. Johnson and Mr. Lamantia, the Supervisor of the Toronto Warehouse on Monday, November 2 in the morning to discuss this matter. Mr. Johnson suggested that Mr. Attard was capable of serving as Acting Assi'stant Chief Engineer until such time as the position was posted and filled on a permanent basis by Mr. Attard or someone else. Messrs. Wilcox and Lamantia accepted this suggestion and asked Mr. Johnson to propose this to Mr. Attard. They agreed that, if Mr. Attard accepted the offer, he would start in this new capacity on the following day when Mr. Johnson would work with him to show him what had to be done. If Mr. Attard refused to serve as Acting Assistant Chief, then they .* I - 4 - agreed that Mr. Johnson would divide his time between Toronto and Whitby until either Mr. Edmunds returned or the post of Assistant Chief Engineer was filled. Mr. Johnson met with Mr. Attard that afternoon. Mr. Attard agreed to accept the position of Acting Assistant Chief Engineer and he,served in that capacity until ear.ly January $984. .When he accepted the, job, Mr. Attard knew it involved work on days with .~ weekends off duty. He also was told that under the collective agreement he would be paid a premium of sixty-eight cents per hour while on this assignment. There is one matter of 'fact on which the parties are not in agreement. Mr. Johnson testified that on accepting. the job, Mr. Attard voluntarily. consented to a.,, change in. his shift arrangements beqinn-ing the next.morning. Mr. Attard told the Board that he did not agree to the immediate shift change but was instructed by Mr.- Johnson to come to work at 8 a.m. the next day and begin his new assignment. There is no dispute about the fact that Mr. Attard did come to work before 8 a.m. on Tuesday, November 29 and began his new duties on that day. He also worked on Wednesday, November 30 and Thursday, December 1 (8 a.m. to 4 p.m.1 when he would otherwise have had his days off. He worked Friday, December 2 18 a.m. to 4 p.m.-) and was off over the following week-end. He then continued to work 8 a.m. to 4 p.m. Monday to Friday with week-ends off until he left this position and returned to his normal duties as a stationary engineer early in January of 1984. -5- While nothing turns on it, we heard that Mr. Attard was encouraged by management to apply for the position of Assistant Chief Engineer when it was posted. He applied but expressed his concern that because of the loss of shift premiums and overtime, he would have a lower income as a manager than he had had as a stationary engineer. Mr. Wilcox attempted to make a special arrangement for him to. overcome this problem but was not successful. Mr. Attard withdrew his application and the position was filled by someone else. It is agreed that although the position of Assistant Chief Engineer is~.not in the bargaining unit, as Actinq Assistant, Mr. Attard remained~ in the bargaining unit and was subject to the terms of the..collect-ive agreement.~. The employer on January 12, 1984 included in Mr. Attard's pay cheque;-a sum of $256.56 as overtime pay for 16 hours of work. His next pay cheque'issued on January 15, 1984 was reduced by $256.56 because of an "overpayment". The issue before this Board relates to the appropriate rate of pay for Mr. Attard on Wednesday, November 30, Thursday, December~l and Friday, December 2. The Union's position is that Mr. Attard was entitled to time and one half on the first and last of these three days .and to double-time on the second day. The Employer% position is that he was entitled only to straight- time pay plus the 68 cents per hour premium on all three of those days. Before we proceed to summarize the arguments of the parties in support of their respective positions, it is worth reproducing in full here the relevant portions of Article V on which they relied in making their cases. ARTICLE V HOURS OF WORK AND OVERTIME 5.1 For the purpose of this Article: (a) (b) (c) 5.2 (a) (cl ."holiday" means a day on which a holiday falls or the day that is allowed in lieu thereof when ~the employee is required to work on the day of the holiday, as defined in Article 6. "overtime", means a period of work computed to the nearest fifteen (15) minutes and, (i) performed on a regular working day in excess of the. regular working period and consisting of at least fifteen 115) minutes, or, (ii) performed on a ~holiday or other day that is not a regular working day.but shall not occur where the work per- formed is due to shift rotation. the starting time of ,the work week shall be Monday 12:Ol a.m., The Boards shall prescribe the number of hours in each working day not exceeding eight (81 hours for the various depart- ments or establishments of the Boards. Normal hours of work will be as follows: such hours will not apply to those employees classified as Liquor Licence Inspectors and Stationary Engineers. However, where employees in these classifications perform authorized work in excess of eight (8) hours per day or forty - 7 - (40) hours per week, they shall be paid at overtime rates as defined in Articles 5.6 and 5.7 .5.3 Hours per week may vary according to the classification of the position and in accordance with the schedule in which the classification is listed. (Schedule "B" attached to this Agreement). 5.4 (a) Ci) Hours of work shall. be posted .at least two (2) weeks in advance for each establishment and there shall be no change in the schedule after it has been posted un.less notice is given to the employee one (1) week in advance of the starting time of the shift as originally scheduled. If the employee is not notified one (1) week in advance he .shall be paid at the same hourly rate which would apply to overtime hours worked~on that day for all hours worked~outside his posted scheduled hours. . (ii) Hours of work may be changed without any premium or penalty if agreed upon between the employee and management. 5.6 (a) Authorized work performed inexcess of the employee's regular work day shall be paid at the rate of .one..and one half; (l-~1/2) times the ;.regular. 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 regular 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. 5.8 Authorized work performed in excess of five (5) regular days during any week, or five (5) days less one (1) day for each paid holiday (as defined in Article 61, during that week, shall be paid at the overtime rates, subject to the other provisions of this Agreement. 5.12 (b) An employee (other than those in (a) above) designated by the Board to replace another employee in a higher classification shall - 8 - receive a premium of sixty-eight cents per hour for each hour such duties are per- formed provided he works a minimum of two (2) continuous. days in the higher classification. 5.16 It is understood and agreed that other arrange- ments regarding hours of work and overtime may be entered into between the parties with respect to variable work days or variable work weeks which includes compressed work week arrange- ments. The Union Argument The Union argues that Mr. Attard worked ten consecutive days from Wednesday, November 23 through Friday, December 2. Under Article 5..3~ and Schedules B, the hours of work for a stationa'ry -engineer. are 40.-hours per week. Furthermore, under Article 5.8, an employee.is entitled to the overtime rate (l-l/2 rate) for work in excess of ,.five days per week. Wednesday, November 23 was Mr. Attard's sixth consecutive day of Wcrk. Accordingly he was entitled to this premium rate on that days. For similar reasons the grievor was entitled to the same premium,rate forFriday, December 2. It was his sixth consecutive day of work in the second week in question. As for Thursday, December 1, under Article 5.6(a), Mr. Attard was entitled to a rate of double his normal rate. This day was both his second consecutive day of overtime and also his second scheduled day off under the published annual schedule. Anticipating that the employer might rely on Article -9- 5.1(c), counsel for the Union dealt with the matter of the work week as it applied in this case. He pointed out that Article 5.16 provided for a work week that was' different from the one outlined in 5.1(c) if the parties mutually agreed on another arrangement. The long established practice of publishing annual work schedules for stationary, e~ngineers with work weeks that did not,conform to 5.1(c) made this clause irrelevant in this.case. Mr. Attard's work week started Wednesday, November 23 and not Monday, November 28 as the Employer would likely'allege. Mr. Attard never agreed to move to the 8 a.m. shift on Tuesday, November 29. Nor did he agreed to forego. his scheduled days o.ff on Wednesday, November 30 and Thursday,,December 1 in exchange' for time off.on the followi,ng weekends:When.he accepted the new assignment,:~ Mr.,~Johnson ordered--him to-come in early on Tuesday, November 29.=to-.work .according to this arrangement which was contrary .to the published yearly schedule. Even if Mr. Attard had agreed to the new schedule, as .the Employer alleges he did, he had no authority to do so in conflict with the collective agreement. - 10 - The Employer's Argument The Employer agreed that Mr. Attard worked ten consecutive days beginning Wednesday, November 23. However,, under Article V it would be possible for someone to'do this without necessarily being entitled to overtime pay under the portions of that section relied on by-the Union. Article 5.1(c) indicates that a work week begins at 12:Ol a.m. each Monday. Someone might work for five days beginning on a Wednesday in one week and continue working until Friday of the following' week, for ten consecutive, days without working more than five days in either of the two weeks in question. This his precisely what occurred here. Accordingly Article 5.8 does not provide any basis for a premium rate for Mr. , Attard. When the griever_-accepted the new-job, he also accepted the new work. schedul~e. '.~e .began working under- the schedule own .~~ Tuesday, November .29 .-and- received. then week-end days off as promised when he voluntarily accepted the new assignment. Under Article 5.4(a)(ii), Mr. Attard and the Employer were. entitled to agree to a change in hours without the consent of the Union. That clause is explicit in stating that where an employee and the Employer reach such an agreement, "hours of work may be changed without any premium of penalty", (emphasis added). Mr. Attard knew of the.new work schedule when he voluntarily accepted the new job. He agreed to it and has no claim for "any premium or penalty" as a result of his change in hours. - 11 - The fact that Mr. Attard did not suffer as a result of the change in his schedule. He exchanged, his days off on Wednesday and Thursday for time off the following week-end. But even if this were not so, he.would have no claim for ,premium pay once he voluntarily agreed to the new position and the new work schedule. The Union Reply counsel for the Union repeated his earlier position that the work-weeks in the published yearly work schedule applied here rather than the work week contemplated by 5.1(c). The Employer had for a'number of .years accepted this and was now estopped from arguing that Article~S.l(c) applied to Mr. Attard:, As for the .Employer's argument .that Mr. Attard had agreed to the change and could not claim:any premium because of Article 5.4(a)(ii), then Union countered withtwo arguments. 'First, Mr. Attard in his evidence had denied any agreement on his part to the change in work schedule. He had accepted the new job and had been ordered to work the new schedule. For Article 5.4(a)(ii) to apply I there would have to have been an explicit agreement in writing between the grievor and the Employer to the change in hours and a written waiver of a claim to,penalty rates. There was neither a written nor oral agreement to this effect. .5 -- - 12 - Moreover, the Union pointed to Article 5.4(a)(i) which required at least one week's notice before changing an employee's published schedule. That clause makes it mandatory to pay appropriate premium rates if. the schedule is altered Cthout the required notice. There is no dispute tha't in this case, Mr. ~ Attard had less-than twenty-four hours notice of the change. The Award The Board has carefully considered the evidence and the able arguments of both counsellors i.n.=this matter. The crux of the matter is whether or .not Mr. Attard reached an agreement with the Employer to alterhis hours land to-.waive hisclaim to premium payments as contemplated under section---5.4(.a-)(~ii); If he did, then that agreement would prevail over all the other sections relied on by the U.nidn including sec.tion_~5.4(a)(i.l. If he,did.not reach such an agreement, .then the Union would have succeeded in its case for one and one-half the normal rate on Wednesday, November 30 and double the normal rate~on Thursday, December 1. This Board ,finds no basis for the Union's argument for a premium rate for Friday, December 2 as the sixth working day in the second week. By Monday, December 4, Mr. Attard would have had the one week of notice of a,change in schedule contemplated in Article I 5.4(a)(i). On Monday, December 5, he began the work schedule - 13 - appropriate to an Acting Assistant Chief Engineer which was a schedule governed by Article 5.1(c) rather than by the published schedule for stationary engineers. Accordingly, work done the Friday of the previous week would not qualify for overtime payment. Having disposed of Mr. Attard's claim for a premium for work on Friday, December 2, we must still deal with his claim for Wednesday We 5.4(a)(ii November 30 and Thursday, December 1. find that for the Employer to rely on Article I it would be necessary to secure the agreement of Mr. Attard to a change in his hours of work "without any premium or penalty." ~There was no evidence before us that on Monday, November 20. ..there was ,=w discussion between,. members of management and the grievor concerning his willingness~.to change his hours "without any premium of penalty." While we do not accept the -Union's position that .the employee-must agree to this in writing, we do f,ind that he must agree explicitly to such a waiver of his rights. For all these reasons, we find that Mr. Attard should have received a premium of 50% above the normal rate for his work on Wednesday, 'November and a premium of 100% above the normal rate for work done on Thursday, December 1. We so award. In the event that the parties experience any difficulty in implementing our Award, the Board shall remain seized of the matter of compensation due to Mr. Attard for a period of thirty (30) days from the date of this Award. - 14 - DATED at Toronto, this 3rd day of &gust,- 1984. F. Taylor - Nekoer "I DISSENT" (see attached) P. D. Camp - Member , ,----_;.- - 15 - Re: 40/84 OLBEU (Roger Attard) and Crown/Ontario (Liquor Control Board of Ontario) I have reviewed the majority Award in this matter and find that I cannot concur. My reasons are: 1. The schedule published each year, to ensure coverage at all times in the boiler room as required by law, had application only to the four Stationary Engineers, one of whom was Mr. Attard. 2. This schedule would cease to have any meaning in respect to Mr. Attard's work when he accepted the promotion to the position of Acting Assistant Chief Engineer with its day shift work schedule, Monday to Friday. For these reasons, I find there has been no violation of the Collective Agreement and accordingly would deny the grievance. PETER D. CAMP