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HomeMy WebLinkAbout1984-0689.Galli.85-05-16Between: Before:; (. '. IN THE I-KiTER OF AN ABBITRCCON Before CUEfJ (F. Galli) .. . - and - The Crmm in RightofcXltario (Liquor CcntmlE?oerdof Chtario) R J. Roberts I. Rreedwn W. A. Lobraico Qievor Ehployer M. Levinson Camsel Pkssrs. Ibskie & Minsky Barristers & Solicitors Robert Atkinson Barrister & Solicitor Elessrs. Hicks, bbrley, Hamilton, Stewart, Storie Ppril 4th, 1985 t 2.~ .' DECISION The events leading to this arbitration began,when the grievor filed a grievance claiming that Management did not offer him Saturday overtime, as required by the Collective Agreement, but instead, offered it to temporary employees. The grievor claimed as the "settlement desired" monetary compensation. For reasons .,< which follow, the grievance is allowed. '(1. The grievor is employed as a Warehouseman at the L.C.B.O. ,, Warehouse bn Freeland Ave., in Toronto.. It seems that on or about July 16, 1984, the grievor sprained his ankle in the course of the performance of his duties, and as a result was 'away from work on Workers ' Compensation until Wednesday, July 25. On the latter date, the grievor returned to work with a note from his own doctor stating that he was cleared to do SO. However, according to L.C.B.O. practice, he was required to be similarly cleared by the L.C.B.O. doctor. This clearance was given at about 8:30 a.m., and the gri evor i thereupon commenced work. It seems that in the course of the grievor's absence, ime it became apparent to Management that considerable amounts of overt work would have to be scheduled. In fact, it was indicated in the evidence at the hearing~that the week beginning Monday, July 23; marked the commencement of a period of considerable overtime ~for all employees at the Warehouse.. In that particular week, over- time was required to be worked by some employees on Tuesday and Wednesday evenings. It also was necessary to schedule a full crew for 7% hours of overtime on Saturday, July 28. In the course of their evidence, the ~witnesses for the L.C.B.0 and the grievor were not consistent with respect to when Management actually scheduled employees for the Saturday work; however, because this inconsistency does not have any impact upon the outcome of this arbitration, it will suffice to setforth the facts as related by the witnesses~ for Management. These facts are as follows: On Tuesday, July 24, before the grievor returned to work, !. Mr. R. Alexander, the Assistant Warehous~em,GS,upervisor, went around to those employees who were in attendance to offer them the Saturday overtime works. According to Mr. Alexander, he carried .~ e ., . _. with him on a clip board a so-called "work sheet", which listed in descending order of seniority, the names of all of the classified staff. After these,.~ were listed the names of the temporary employ- ees. Using this list as a-guide, Mr. Alexander asked each employee in order of seniority whether he or she wanted to work on the Saturday. The grievor was not asked because he was not there. There was marked upon this'list beside his name the letters "w.c.', to indicate .l~~~ that he was away on Workers' Compensation. .~ It seems that Mr. Alexander made up the above overtime list for Saturday at,the same time as her made one up for the Wednesday overtime. Mr. Alexander testified that he trie~d to ask employees to work overtime at least one day in advance, so that both he and the employees would have some notice of what the situation would be, and also because, pursuant to Article 5.5 (b) of the Collective Agreement, "an employee who is not instructed to work overtime 4. until the day during which the overtime is to.be performed", must, in most circumstances, be reimbursed for the cost of his dinner. Accordingly, it was seen as a savings to Management to avoid notifying employees of overtime on the day in which overtime was to .be worked. When the grievor returned to work on Wednesday morning, he heard that there was overtime to be worked on 'Saturday. He also found out that everyone else, including unclassified staff, had been asked to work overtime on that day. Nevertheless, despite the existence of several occasions, when he and.Mr. Alexander were in close proximity to each other, the latter never spoke to him about Saturday. The grievor complained to his Acting Foreman, ci Mr. James Cheng, that he wanted to work overtime on Saturday, July 28, and thought -that he should be scheduled for it. Mr. Cheng did not take any action. He simply told the grievor that if he wanted to.,work this overtime, he should see Mr. Alexander. The grievor did~ not. On July 30, 1984, which was the Monday following the Saturday in question, the grievor filed then grievance leading to the present arbitration. Upon the foregoing record, it must be concluded by the Board that the Collective Agreement'~was violated when Management failed to ask the grievor to work the Saturday overtime. Article 5.6 (b) of ~the Collective Agreement provides as follows: Where there is a requirement for overtime to be worked, it shall first be offered to full-time employ- ees 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- +:-= ---7.-!rooc r- > -m+,-.~.<q,.>~ y>c;c ( 5. This Article requires Management to give priority to full-time employees in the offering of overtime work. When, despite his presence at work for three full days before the Saturday, the grievor was not offered the overtime work and casual staff were called in instead, Article 5.6(b) of the Collective Agreement, above, was violated. .It was urged by counsel for.the L.C.B.O. that this provision of the Collective Agreement c ., . should be read as if it required full-time employees to be present-. at work as .of the day the overtime was scheduled. But nowhere in Article 5.6 (b) is the time of scheduling made significant. It is the timing of the "requirement" which the Article appears to make important, and that requirement was not to occur until Saturday, July 20. Of course, it is recognized by the Board that Article 5.6 (b) of the Collective Agreement, like many other provisions ,~ thereof, must be interpreted an,d applied by both Union and Management in a reasonable manner. In this regard, it would not seem to be unreasonable for Management &rely upon an overtime schedule whichwas made rrp a reasonable amount of time in advance of the overtime., It would appear to be inappropriate to read Article 5.6 (d) as requiring Management to make a continual update of hits overtimes schedule up to and including the 1as.t minute before the overtime actually was worked. Here, however, it must be concluded that Management was (. 6. not entitled to rely upon, without any updating, a schedule which was made three days in advance of the requirement for overtime. There'was nothing in the evidence to indicate that either party would have been inconvenienced if the schedule had been finalized at a point in time closer to the Saturday. In fact, the reverse was true. The overtime schedules for Tuesday and Wednesday were made up on the day before the overtime was to be worked. Moreover, C' the only penalty to Management that the Collective Agreement exacte,d with respect to the scheduling of overtime had to do with scheduling it on the same day'as it was requi'red. In these circumstances, it fell to Mr. Alexander to update his overtime schedule for Satur- . . day at a point closer to that day. If he had,"the grievor, who was present, would have been offered Saturday overtime, and his rights ,lective Agreement would not have under Article 5.6 (b) of the Co1 been breached. Tu~rning to the question of remedy, counsel for the L.C.B.O. !I suggested that if the Board were to find for the grievor on the question of pliability, he should be granted a.remedy in ,kind and not monetary"compensation. It was suggested that the Board might provide in its award that the grievor be granted the next available 7% .hours-worth of overtime, regardless of his place in the rotational scheme mandated under 5.6 (b) of the Collective Agreement. Both counsel for the L.C.B.O. and the Union candidly conceded that the question of granting a remedy in kind constitutes a subject of controversy in current arbitral jurisprudence. One line of 7. cases suggests that a bbard of arbitration ought to apply a presumption in favour of monetary compensation. See Re Gulf Canada Products Co. and Enerqv and Chemical Workers Union, Local 593, (1982), 6 L.A.C. (3d) 189 (Palmer). A second line suggests embracing the opposite presumption, i.e., a presumption favouring a remedy in-kind. See Re International Chemical Workers, Local 346 and Canadian Johns ManVille Co. Ltd. (1971) 22 L.A.C. 296 (Weiler); Re Rothmans of Palls Mall Canada Ltd. and Tobacco Workers International Union, Local 319 (1974) 8 L.A.C. (2d) 60 (Shime); Re 3M:Canada Inc. and Enerqy:and Chemical Workers Union, Local 294 (1984), 15 L.A.C. (3d) 316 (Picher). In all of these cases, the 'respective boards selected the approach which they believed would ,achieve the most appropriate balance between the interest of the employee in being made whole and the interest of the employer in not being penalized for actions taken in good faith. A monetary award in an overtimes grievance, for example, could be regarded' as punitive in the sense that the employer must pay twice, once to the employee who was incorrectly~scheduled but who actually worked, and once to the employee who should have been scheduled and grieved. In the present case, however, neither of these two competing lines of authority~need be embraced by the Board. For here, the Board is presented with a situation in which the equities .:. . do not permit the' grant of an "in-kind" remedy. As was said in Re Canadian Johns Manville and International Chemical Workers, Local 346 (1976) .12 L.A.C. (2d) 266 (Burkett): . . . , I. ( 8. T. There are situations, however, which do not permit an "in kind" remedy following from a missed overtime opportunity. If the grievor has left the classifi- cation or group of classifications which compete for the same overtime opportunities a remedy "in kind" is not possible:... Similarly if the work has been performed by a person from outside the competing group thenthat work is lost to the competing group'"for all time"... Indeed in circumstances where the imposition >f a remedy "in kind" adversely affects the rights of other employees a monetary settlement must be ordered. . . . Id. at p. 272. Where the imposition of a remedy "in-kind" would adversely affect (., the rights of other employees, a monetary.remedy must be preferred. Here, imposition of a remedy "in kind" would adversely affect the rights of other employees. The overtime opportunity that the grievor lost was given to a member of the unclassified staff, i.e., a person who was not a full-time employee. In this sense, the work was lost to the grievor's group. To turn and grant the grievor an equivalent overtime opportunity which otherwise might have gone to a fellow full-time employee, would adversely affect c the latter. In fact, it would seem that to do so would be akin to "robbing Peter to pay Paul". Accordingly, in the circumstances of this case, a monetary remedy stands 3s the most appropriate remedy. In sum, the grievance is allowed and the grievor must be granted the monetary compensation that he requested in this grievance. The Board will retain jurisdiction of the matter pending implementation by the parties of the terms of this award. DATED at London, Ontario, this 16th day of May, 1985. 9. i I. Freedman, Nember W. A. Lobraico, Member