HomeMy WebLinkAbout1999-0134.Goncalves.00-02-23 DecisionONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 134/99
OLBEU # OLB168/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Goncalves)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Richard BrownVice Chair
FOR THE Ursula Boylan
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THEJohn Lewis
EMPLOYER Counsel
Heenan Blaikie
Barristers & Solicitors
HEARING February 17, 2000
2
When John Goncalves filed this grievance on June 24, 1997, he was a causal
employee working at the Queen’s Quay Store in Toronto. The facts giving
rise to the grievance are illustrated by the schedule for casual employees in
January of 1997. On certain days, the grievor worked from 12:00 to 5:00 p.m.
and at least one casual employee with less seniority worked from 4:00 to 9:00
p.m. According to availability sheets completed by Mr. Goncalves, he was
available to work from 12:00 to 9:00 p.m. The union contends he should have
been scheduled for this entire interval by virtue of his seniority. If his shift
had been from 12:00 to 9:00, the union notes, he would not have been entitled
to overtime for work in excess of eight hours, because he would have been
paid for eight hours only and have an unpaid lunch hour.
Sam Meli is the store manager. Asked about the shifts from 12:00 to
5:00 and 4:00 to 9:00, he testified the overlap in these shifts provides extra
coverage during a busy time. He attributed the peak between 4:00 and 5:00 to
people shopping downtown on their way home from work and to local
restaurant operators buying their supplies for the evening. The store
manager’s contention that the overlap in shifts provides extra coverage was
disputed by the grievor. He testified, when working on cash from 12:00 to
5:00, he is relieved by another casual employee starting at 4:00 who merely
takes over from him and provides no extra coverage. According to Mr. Meli,
the casual employee reporting at 4:00 first counts his or her float and then
performs other duties until 5:00.
Article 31.7 of the 1996-98 collective agreement states:
Casual hours of work shall be allocated according to the seniority of
the casual employees assigned to the applicable work unit or
department.
3
The parties agree the applicable work unit in this case is the store where the
grievor worked.
In OLBEU (Kruczaj) and Liquor Control Board of Ontario, GSB
No. 1359/93, decision dated March 25, 1996, Ms. Briggs considered article
31.7 of the previous collective agreement which is identical to the current
article. In that case, the employer established a shift from 12:00 to 8:00 p.m.
and offered it to the grievor. He declined the offer because he was not
available to work before 4:30. When he asked to work from 4:30 to 8:00, the
employer refused to divide the shift in two. In dismissing the grievance Ms.
Briggs wrote:
We are of the view that if the union were correct in its interpretation it
would lead to an absurd result. It would require, in every store of the
LCBO, the manager scheduling the most senior casual employees for
every hour of their availability so long as that period of time is not less
than two hours. We are of the view that this is not the intended result
of article 31.7. (page 16)
The reference to a two-hour minimum arises from article 31.1(b) prohibiting a
shift of lesser duration.
The general principal emerging from the Kruczaj decision is that the
collective agreement does not fetter the employer’s power to fix the start and
finish times of the shifts to be allocated to casual employees. Article 31.7
comes into play only after those shifts have been established. This article
requires management to distribute the predetermined shifts on the basis of
seniority. For present purposes, the important point is that an employee has a
seniority claim only to those shifts created by management for which he or
she is available. In Kruczaj, the grievor failed precisely because he was not
4
available for part of the shift on offer. Ms. Briggs declined to alter the
established shift by awarding part of it to the grievor.
Union counsel sought to distinguish the facts in Kruczaj from those at
hand on the basis that Mr. Goncalves is available to work from the beginning
of the 12:00 to 5:00 shift until the end of the 4:00 to 9:00 shift. This argument
misses the point. The grievor is unable to provide the services of two people
during the one-hour overlap in these shifts. In other words, having accepted
the 12:00 to 5:00 shift, the grievor was no longer available for the first hour of
the 4:00 to 9:00 shift. In this sense, he was unavailable for part of an
established shift, just as the grievor in Kruczaj was.
In the absence of bad faith, the employer’s decision to schedule
overlapping shifts should not be second guessed by this board. Scheduling
by arbitration would be highly impractical. As the union has not alleged bad
faith, I need not comment on the evidence relating to the reasons for
overlapping shifts in this case.
The grievance is dismissed.
Dated at Toronto, this 23rd day of February, 2000.
Richard Brown, Vice-Chair