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HomeMy WebLinkAbout1986-1012.Araujo.88-01-20IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Fa the Grievor: Fa the Employer: OLBEU (Vitor Araujo) Grievor and T~he Crown in Right of Ontario (Liquor Control Board of Ontario) Employer E. J. Ratushny Vice-Chairman I. J. Thomson Member H. Roberts Member M Levinson Counsel Koskie and Minsky Barristers and Solicitors R. J. Drmaj R. J. Drmaj Counsel Counsel Hicks Morley Hamilton Stewart Storie Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Barristers and Solicitors November 19, 1987 i DECISION This grievance requires an interpretation of one aspect of section 6.10 (a) of the collective agreement which provides: Where~ an employee is required to report for any period of work on a . . . day that is not a regular working day, or on his scheduled day off, he shall be entitled to a credit of a minimum of four (4) hours of pay at overtime rates. . . The parties. have agreed that this should be considered as a group grievance also governing fourteen additional grievances, namely, Peter O'Flynn (1008/86), Norman Haskett (1009/86), George Whyte (1010/86), John Knight (1011/86), Nick DeBonis (1013/86), Evan Black (1014/86), Danny White (1015/86), George Kapasky (1016/86), Julio Miguel (1017/86), B. Whitla (1018/86), David Coneau (1019/86), Kevin Clarke (1020/86), Bill Morton (1021/86) and Louis Visconti (1022/86). ._ The essential. facts are not in dispute. On Thursday, September 18, 1986, at approximately.1:08 p.m., the employee, Mr. Araujo, was contacted by a shipping manager; Mr. Ronald Graves. Mr. Araujo was asked if he would work eight hours of overtime on Saturday, September 20th, which was his regular .day off. He agreed to this request. On Friday, September 19th, at approximately 2:00 p.m., Mr. Araujo saw a notice posted near the security office. This notice was in the form of a memorandum from the Operations Manager, William McDowall to the Union Steward, Kevin. Clarke, dated September 19th, which stated: As discussed this morning, due to unforeseen circumstances we have found it necessary to cancel overtime scheduled in order processing and receiving areas. All staff have been verbally notified by their supervisors. It is not clear whether it was before or after seeing the notice that Mr. Araujo was informed verbally of the cancellation but -2- that difference is not significant. The unforeseen circumstances ,in question led to the necessity of an outside contractor attending' at the place of work on the Saturday in question in order to complete certain work in relation to the facilities. Counsel for .the Grievor took the position that the key words in section 6.10 (a) are in the phrase "required to report". It is contended that when the employee agreed on Thursday to work on the following Saturday, he was then in the position of being "required to reporti'. At that point, therefore, the condition in section 6.10 (a). was met, the employee'was entitled to four hours of pay at overtime rates and this could not be altered by the subsequent cancellation of overtime by the employer. In support of this contention it was argued that once the employee agreed to work overtime, he became required to do so. In these circumstances, the failure to report for the agreed overtime work would subject the employee to disciplinary action. Counsel cited Re Canada Glazed Paners and Printins Specialties and Paper Products Union, Local ~466 5 L.A.C. (2d). 355 as authority for the last proposition and it was -not disputed by counsel for the employer. Counsel for the Grievor'was unable to locate authorities which dealt directly. with the effect of a cancellation of overtime in these circumstances. However, he cited a number of "posting" cases by way of analogy to illustrate the soundness of a policy which would prevent the employer from cancelling scheduled overtime without any consequences for that employer. In Re International Chemical Workers Local 798 and Union Gas Co. of 'Canada Ltd. 24 L.A.C. 159, the union grievance alleged improper failure to fill posted vacancies. The majority award spoke of "additional policy reasons" why the relevant article in the collective agreement should not be interpreted as containing an implied management right unilaterally to terminate a job posting without processing applications duly submitted in response thereto: I -3- The concern, in terms of policy, would be in the risk of abuse in other situations and the difficulties of proof of motivation with which a union would be placed in such situations. In addition, counsel cited Re United Steelworkers and International Nickel Co. of Canada Ltd. 16 L.A.C. 216 and Re Robb Engineerins. Division,of Dominion Bridge Company Ltd. and United Steel Workers, Local 4122 20 L.A.C. (2d) 340. It is argued that just as certain rights crystallize upon posting, they should also crystallize when a requirement to work overtime occurs. Once an employee becomes obligated to work overtime, that employee may have to make personal adjustments in order to fulfil that obligation. These may involve making babysitting arrangements, cancelling social activities and a wide range of others. Therefore, it is argued, the potential arbitrariness of cancelling overtime commitments without pay should not be permitted. We wish to emphasize. that there is no. suggestion whatsoever of bad faith on the part of the employer in this case. It is the potential for arbitrariness which is emphasized, just as it was in the Chemical Workers and Union 'Gas case. In the present case, evidence was not led as to the actual hardship caused to the employee by the cancellation. Nor was evidence led as to the degree of necessity faced by the employer in deciding to cancel. Counsel for the employer responded to these submissions by distinguishing the posting cases. It was argued that they are based on specific provisions in collective agreements which require posting. In contrast, our. situation with respect to overtime is not covered by any posting requirement. Since there is ~no obligation imposed upon management by the collective agreement in this area, the cancellation of overtime is said to be entirely within the discretion of management. While possible hardship might accrue to 'an employee, that must be balanced -4- against business necessity which cannot- be predicted with certainty in every situation. We are of the view that the policy considerations in the posting cases are helpful. There is a sound basis in good industrial relations'policy for crystallizing certain obligations on the part of management at the same time that the employee becomes obligated to report for overtime work, whether through compulsory provisions or through a voluntary arrangement. However, these policy considerations cannot determine the issue in this case. The question for consideration is whether, by its words, in the context of the. collective agreement, article 6.10 (a) does, in fact, reflect such a policy. Counsel for the Grievor submits that the words "required to report" must be given their plain meaning.~ As soon as the employee agreed to work overtime on .the Saturday in question, he was "required to report" and, therefore, entitled to four hours, of overtime pay. This could not be altered by a cancellation on the part of management on the following day. If the parties had intended that the entitlement to four hours of overtime pay was to be triggered by actually reporting -for work, the phrase "required' to report" would have been replaced by the word "reports". To interpret article 6.10 (a) otherwise would be to read into the phrase, "required to report", the additional words "and in fact does report", it is contended. In contrast counsel for the employer submits that article 6.10 (a) must be read .in the context of 'the other provisions in article 6. Article 6.1 (b) def~ines "overtime" as a period of "work" which is "performed". There are a number of additional references in article 6 to work which is "performed". All of this suggests that the parties only contemplated the payment of overtime for work which was actually performed. These contextual considerations are helpful, just as the policy considerations are helpful.' However, in the end, we are .’ -5- driven to provide an interpretation of the words contained in article 6.10 (a). There is no question that.this provision does contemplate the payment of overtime for hours not' actually worked. If only one hour of work is performed under this provision, the employee is still entitled to pay at overtime rates for four hours. The only issue is whether that entitlement comes into play when the employee actually reports for work or when the employee becomes obligated to report. The wording of article 6.10 (al' is not ambiguous in this respect. It becomes operative when "an employee is required to report". When Mr. Araujo agreed to work overtime on the Saturday in question, he became obligated to do so. In other words, he was VVrkquired to report" and, therefore he is entitled to receive the minimum of four hours of pay at overtime rates. A subsequent cancellation by the employer cannot operate to extinguish this entitlement. Accordingly, the grievance is allowed and the Grievor 'is entitled to four hours of pay at overtime rates for Saturday, September 20, 1986. We wish to thank both counsel for the very clear, concise and effective manner in which the facts and arguments were presented. DATED at Ottawa, this 20th day OfJanuary , 1988. "I dissent" (Dissent attached) H. ~EOBERTS, MEMBER DISSENT I have read the Decision on the above case and with regret, must advise that I do not find my self in agreement. As noted, the grievance requires an interpretation of one aspect of Article 6.10 (a) of the Collective Agreement which is produced in full below: “Where an employee is required.to report for any period of work on a paid holiday (as defined in Article 7) or other day that is not a regular iorking dai, or on his scheduled day off, he &all be entitled to a credit of a minimum of four (4) hours of pay at overtime rates, but where an employee performs work for more than four (4) hours after being so required to report for work, he shall be entitled to a minimum of eight (8) hours of pay at the overtime rate”. The Union position is that the words underlined above mean that the employee does not have to actually report (i.e. appear at work), so long as he has agreed to work the overtime as requested and any cancellation of that overtime prior to the day on which it was planned to take place, leaves the employer liable for the four (4) hours (minimum) of pay at overtime rates. The Ministry ‘contends that Article 6, .hours and work and overtime, in its entirety, beginning ai page 14 of the Collective Agreement, sets out in its various component parts the premium rates of pay for,overtime payment and the times to be worked to qualify for payment at these overtime rates. Nowhere is the payment -of overtime rates considered fey any period not worked. The essence of the Union position is that so long as overtime is “scheduled” and an employee agrees in advance to work it, then no matter how far in advance of the actual planned date the employer cancels the overtime *rr**geme*ts, the employ,ee is entitled to payment for the minimum of four (4) hours at overtime rates. I can find nothing in the Collective Agreement to support this position nor is it in my belief, common industrial relations practice. In my view “scheduling” overtime which is subsequently cancelled for cause (in this instance on the day prior to the day for which overtime had been originally contemplated) does not under 6.10 (a) or any other part of the Collective Agreement, obligate the employer to pay any employee a minimum of four (4) hours at overtime rates. ,i, - The latter part of 6.10 (a) says - “where an employee performs work for more than four (4) hours after being so required to report for work, he shall be entitled to a minimum of eight (8) hours of pay at the overtime. rate” (my underlining). Obviously the qualifytng requirement is work performed. I interpret Article 6.10 (a) as meaning that an employee who works on the days therein noted, shall not receive less than four (4) hours pay at overtime rates even if he works any period of time shorter than from four (4) hours and if he works more than four (4) hours (even 15 minutes more) he shall be paid for a minimum of eight (8) hours at the overtime rate. Accordingly, I would have dismissed the grievance.