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HomeMy WebLinkAbout1984-0382.Gwin.85-02-044 . . _ ,? ,I . . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OLBEU (P. Gwin) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer G. Brandt Vice Chairman T. J. Kearney Member A. G. Stapleton Member For the Grievor: M. Levinson Counsel Koskie & Minsky For the Employer: J. Baker Counsel Hicks Morley Hamilton Stewart Storie Hearing: November 19, 1984 -2- ,. DECISION ' This grievance complains of the "failure to offer overtime on a rotational basis" and seeks as relief payment for 4 hours at the overtime rate. The applicable PrOViSiOn of the Collective Agreement is Article 5.06(b) which provides as follows: "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 part-time store cashiers or temporary employees and failing sufficient volunteers shall be assigned to full-time employees on a rotational basis." The agreed upon facts are as follows. The Grievor is employed in the Kipling Street Warehouse of the Liquor Control Board of Ontario. On March 24th, 1984 a number of employees were requested to and did in fact work 7 l/2 hours overtime on that day. Those employees were B. Whitla, M. Millar, G. Ilari, C. Hardie and V. Morgan. Subsequently another overtime opportunity occurred on April 3rd, 1994 and 9 employees were asked to and did in fact work overtime on that day.. Seven of those employees, that is, R. Palzci, J. Muranyi, W. James, M. Muise, D. Anderson, R. Lunan, and R. Enrico, were all employees with less seniority than those who had been assigned overtime on March 24th. However, the -3- .- Employer also asked two senior employees, C. Hardie and V. Morgan, each of whom had been assigned overtime on March 24th, to work the overtime on April 3rd, 1984. The Grievor claims that the Employer violated the Collective Agreement by offering the overtime to Hardie and Morgan rather than to him. He was both available and willing to work the overtime in question. Counsel for the Employer took the position that, even if it were to be assumed that the, Agreement had been breached, the Grievor had not demonstrated that he has suffered any injury for which he should be compensated. It was suggested that insofar as there were 26 other employees with a seniority date falling between that of Enrico and the Grievor, the probability is that, even if the Employer had followed the seniority list as a basis for assigning overtime on a rotational basis as' required by Article 5.06(b), the Grievor would not in any event have been asked to work this overtime. It was submitted that the failure of the Grievor to establish that he would have been asked to work this overtime had the Employer followed the seniority list, constitutes a failure to prove the loss for which he seeks compensation. Although Counsel for the Employer did not put her argument in terms of a lack of standing on the part of the Grievor to raise this grievance her argument nevertheless amounts to i -4- i- the same thing. When viewed in that perspective the argument of the Employer must fail in law. This issue has been dealt with in two other arbitration \. “(1 t cases. In Re Federal White Cement Limited'and United Cement Workers, Local 368, 29 L.A.C. (2d) 342 (Rayner) a grievance was filed claiming that overtime work was allocated to persons not entitled to that work under the provisions of the Collective Agreement. Those provisions provided that overtime was to be divided as equitably as possible among employees performing the same class of work. The Company acknowledged thatthe work was given to an employee who was not entitled to it but took the position that payment should be made not to the Grievor but rather to the employee in the class who-had the lowest amount of accumulated overtime at the time that the work was performed. In rejecting that position the Board stated that "It should not be open to the Company to say that the Grievor, who brings the matter forward to the attention of the Union and, indeed, perhaps the Company, should not be entitled to enforce his right in a meaningful way. Once the grievance is filed, it is our view that it is then too late for the Company to say that the matter will be corrected by payment to another person. It may take that position before the filing of the grievance but, after the filing of the grievance, in the absence of any clear language to the contrary in the Collective Agreement, the Grievor is the agrieved employee and is entitled to a remedy that would enforce the Collective Agreement in a meaningful fashion." The Board went on to direct that the Grievor be paid for the I overtime which had been denied to him. :; r ’ : - . -5- \ 1n"Re Canadian Rock Salt Company-Limited:and U.A.W. Local 195, 6 L.A.C. (2d) 316 (Gorsky) the Grievor alleged an improper - distribution of overtime work. Again the Employer took the position that the Grievor had no basis for objecting to the over- time as there were two other employees who bad fewer overtime hours than the Grievor. In allowing the grievance and directing the hployer to pay to the Grievor the overtime denied to him the Board stated that "It is not now open to the Company to rely upon the failure of an employee to prosecute a claim for overtime as grounds for excusing its,failure to comply with the provisions of [the Collective Agreement]. Nor should the Grievor be penalized because of, the failure of other employees to pursue rights which they might have under [the Collective Agreement]." In the instant case none of the other employees whose seniority was greater than that of the Grievor filed a grievance respecting the assignment of overtime to Hardie and Morgan on April 3rd, 1984. There is no serious issue in this case that the Collective Agreement has been breached. Indeed Counsel for the Employer made her submissions on the assumption that such a breach had occurred. In view of the cases referred to it is clear that, as a matter of law, once such a breach has occurred, the Grievor is entitled-to a remedy and the failure of other employees who might also have been entitled to a remedy to grieve their own loss does not deprive the Grievor of his right to seek 'relief before this Board. Had I there been other grievances of other employees the matter might have been more difficult. However, in the circumstances of the case, the matter is free from difficulty and the grievance is i- allowed. Consequently the Employer is directed to pay to the Grievor the relief requested. DATED at London, Ontario this 4th day of February, 1985. Vice Chairman 7 i. Kearney, Member A. G. Stapleton, Member