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HomeMy WebLinkAbout1992-3030.O'Flynn.93-12-14CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOYiS‘DE LA COURONNE DE L’ONTARIO COMMISSION REGLEMENT, DES GRIEFS i ‘.’ _ c I . \.:. DE ..’ ‘T . ,180 DiNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/T~L~PtfONE: (416) 326-7388 . 180, RUE DUtiDAS OUEST,. BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 ‘,, FACSIMILE/TiL~COPR: (4 16) 3.?6- 1396 ~ ,3030/92 IN 'iHE MATTER OF AN ARBITRATION .' Under BETWEEN THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT * B&ore ._ THE GRIEVANCE SETTLEMENT BOARD : .' OLBEU (O'Flynn) Grievor - -~ Eind - The Crown in Right df Ontario (Liquor Control Board -of Ontario) Employer W.. Kaplan Vice-Chairperson i M. Khalid Member F. Collict Member i ‘. BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING E. Mitchell Counsel- Koskie & Minsky , '. : Barristers t Solicitors ,' D. Mombourquette " : ~ . Legal Counsel Liquor Control Board of Ontario October 25, 199;3 . . 2 introduction ‘- By a grievance tdated November 26, i992, Peter O’Flynn grieves a violation of Article, 7.6 of the. Collective Agreement. The parties .were generally agreed as to the facts, and after they were set out, the partiesproceeded .directly to argument. , I The Facts. : I ’ The grievor is employed at the LCBO’s Durham Warehouse as a Warehouse Worker.: On November 1.0; 1992, the grievor was approached by a member of , management and was asked whether he was willing to work. on November 41, 1992. November 11, Remembrance Day, is recognized in the Collective Agre.ementas a paid holiday. According to the union, the grievor was asked around 11:30’a.m. if he wished to work the following day, and was advised . around 2:30.p.m. that the employer had made a mistake and’that his services were no longer required. According, to- the employer, the grievor was asked ‘_ around 2:15 p.m., if he wished, to work the following day, and- was advised’ around .2:30 p.m. that his services were no longer required; .-There is no dispute between the parties that whatever tim,e the grievor was. asked, he -agreed to work the following day. There is also no dispute that the grievor was asked .in error whet-her he wished this overtime. assignment. Overtime is distributed, as required by the Collective Agreement; in rotation, and the grievor was asked out of turn. When the mistake was discovered the , request was rescinded. The relevant portion of article 7.6 of the Collective Agreement provides: Where an employee is required to report for. any, period of work on a paid holid’ay, he/she shall .be entitled to a ‘_ i : ‘credit of a minimum of four (4) hours at’ two (2)‘times his/her regular :hourly rate of pay: . Union Arqument ._ In brief,. the union argued that the exact matter in dispute had already been -decided in- an .earlier case, and that the Board’s decision in that case, Arauio 1012186, should apply with equal force in the- instant case. In Araujo the. Board. was asked to interpret the predece,ssor provision to Article 7;6. That provision read: ‘I -. 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 working ‘day, ‘or on his scheduled .’ day off, h,e shall be entitled to .a credit of a minimum of ;, four (4) hours 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, : : Union counsel pointed ‘out that Article 7.6 is, in. all material. respects, identical to’. this predecessor provision. / ..‘) InAraujo, the grievor was- asked if he wished, to work on a -day- off two days hence. He agreed to that request. The next day the employer determined : that it, no. longer required the grievor’s services, ‘and so. cancelled the overtime.- A grievance was filed and proceeded to a hearing at the Board. The Board held: ” There is a sound basis in in good -industrial relations policy for crystalkzing 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 ttie issue in this case. The,.question for consideration is whether, by its words,: in the context- :of the cqllective agreement, article 6.1 O(a) does,. in fact, 1 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, ent.itled to four hours of overtime pay. This could not be altered by a cancellation on the part of management 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 ph,rase , ‘: “required to report” would have been replaced by the word “reports”. To interpret article 6.1 O(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 6.1 O(a) must be read in the c,ontext of the. other . . provisions in, article 6. Article 6.1 (b) defines “overtime” as a period of “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 driven to provide an interpretation of. the words contained in. article 6.1 O(a). There is. no question that this provision does contemplate the p5yment’of overtime for hours not actually worked. If .only one houi of work is performed under this provision, the--employee is still’ entitled to. pay for 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 for work. . The wording of. article 6.1 O(a) is not ambiguous. in this i 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 “required 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 (at 4-5). -, I In counsel’s submission, the facts of this case were almost identical to _ those, in the instant case, and given that the material parts of the .. Collective Agreement provision were also the same, ‘then so too,, she argued, should .be the final result. ” I Counsel pointed out that the employer is responsible for the correct distribution of overtime, and ‘the fact that it: imbroperly offered an overtime..opportunity to the grievor was not dispositive of. any of the issues in this case. ,ln counsel’s submission, the employer offered the grievor an . overtime opportunity, that opportunity was accepted,- and’when it was, the grievor was obligated to. report and would have been subject to discipline had he failed to do so. Having offered the opportunity, and that opportunity, t having been-accepted, the employer was, .notwithstanding its apparent mistake, required, given the Arauio award, to compensate the grievor regardless of the &sons .for the cancellation of the overtime opportunity. Final’ly, counsel. noted that Araujo had not been .judicially reviewed and indeed, that the parties entered into a subsequent ‘Collective Agreement without changing the language of the provision in any material respect. Emolover Araument Employer counsel did not take issue with the Arauio award but sought 1: instead, to distinguish- it from the instant case. Counsel suggested that one distinguishing feature was that in Araujo a group of.employees had been asked to work overtime, and when the overtime was cancelled it .resulted in a loss of the overtime to the entire bargaining unit. Counsel contrasted that situation to the instant one where there was no loss’ of a bargaining : ’ unit overtime .opportunity; rather all ‘that’ had taken place ‘was that another member of. the bargaining unit performed the. overtime work. . Counsel- also noted that the -grievor was not entitled to the overtime. work, ~ and suggested, that- being the case; that the grievor! was:not obligated to report] to .work .as ‘agreed. In counsel’s submission, if the grievor. had failed .to report he could have .defended himself successfully against discipline. by establishing that he should never have received the assignment in the first place. Counsel pointed out that if the grievor had in this case performed the overtime, that would have resulted ,in another violation of the Collectrve Agreement as. other employees were ahead of the grievor on the . rotation list but not called in .for this particular overtime work. In counsel’s submission, management should not be penalized for realizing its mistake and correcting it in accordance with the Collective Agreement. .. Counsel concluded his submissions by arguing that the Araujo -decision was not binding. That being the case, and the union having failed, in the I. employer’s view, at. establishing a Collective Agreement breach, ‘counsel asked that the grievance be dismissed. .i Union Reolv In reply, union counsel took issue with the employer’s assertion that the I grievor could have failed to show up for work and used, as his defence to ;. _’ . . : ‘. .: ., ,.. /. : .I .’ .’ -cr.... .. : - -7. (;;!,: ‘-; ( .. .. :.- discipline, the .ar&ment that the overtime assignment tias improper. This 1 . assertibn, Munsel argued, .was, ridiculous. As sobn as the grievor agreed to _ j’ accept the assignment, he was bound to honour his agreement, and. he could have been disciplined for failing to do so. In counsel’s submission, the fact that -the. employer was required to correct its mistake had nothing to do with the grievor’s .entitlement under the Collective Agreement. Counsel arguedthat that entitlement was clear, and she again -asked the Board to -uphold the grievance and direct the employer to compensate. the grievor. ‘ Decision Havjng carefully considered the submissions of the parties, we find that the instant ,case is virtually on. all fours with the Board’s earlier decision in Araujo. In Blake 1276/87 (Shime), the Board held: ,‘. Thus each decision- by ,a panel becomes. a decision of the .- Board and in our opinion the standard of manifest error which is appropriate to the private sector is not appropriate for the Grievance Settlement Board. .The Act .‘. does not give.one panel the rightto overrule another panel or to sit on appeal .on the decisions of an earlier . panel. Also, given the volume, of cases that are %urrently ‘administered by this boalrd; the continuous attempts to persuade one panel that another panel was in error only encourag.es..a multiplicity of proceedin& and arbitrator shopping .which in turn creates undue adminjstrative difficulties in .handling the case load. : ’ We are mindful, however, that there is no prov,ision for appeal and there are limits to judicial review. While it is our view that the “manifest error” theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be...reviewed. At this point we are not prepared to ‘. .delineate ‘what constitutes exceptional circumstances _I and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party ,: seeking review to establish exceptional circumStances (at 8-9). . The “manifest error” and “exceptional circumstances” tests have been considered by the Divisional Court. There is no need, however, for the purposes of this award, to review the judicial interpretation of the Board’s award in Bl.ake, for we. are satisfied that whatever the appropriate test might be, there was-no “manifest error” in Araujo, nor are there any “exceptional circumstance.s” that would cause us to de,part from the finding in that case. Indeed, in our view the decision in Araujo is completely correct. In that we have found that that case, and the one before us, are, in all material respects, identical, we have no choice,,but to find, was did the 1 I panel in .Arauio,, that there has been a violation of the Collective Agreement. ~ In reaching this decision, ,we should also point out that we were ‘influenced by the fact that the Araujo award was not judicially reviewed-and, more importantly, that subsequent to the rendering of that -decision, the ‘parties renegotiated- their Collective Agreement, but did not make -any material: changes to the provision at issue. Employer counsel argued- that there were ‘5 important distinguishing- features between ‘Araujo. and the instant case. ” I ‘With respect, we cannot agree. Moreover, we cannot accept employer counsel’s assertion that had the grievor failed to appear -for his ,assigned L shift on November 1 1 th, he could have. defended himself successfully from discipline by establishing -that his initial overtime assignment was incorrect. The employer is responsible for ensuring the appropriate . rotation of overtime, and once the grievor agreed to an overtime assignment I he- was responsible to report to work. The fact that there was apparently a very short timeldelay between the offer and acceptance of the overtime ‘: ,. . ‘. . / I’ ..z . . : I : .’ ii:; ,.. -- .- .*, -.” g “: (y<.,I,. ‘. :. 7 opportuhity is, in ‘our view, neither here nor there. The fact of the matter .. is that the only way this scheme can work is for both ‘parties to- be bound to., their-agreement as soon as that agreement is reached. It is true that going through with the grievor’s overtime. assignment in this case would‘ have . resulted, on the-agreed facts, in another Collective Agreement breach. ._ - However, that is not the issue to be determined in this case, .and’the employer could have avoided any subsequent breach by accepting the consequences,of its ,mistake and compensating the grievor. We. note in passing that there was ‘no evidence in this case of any damages incurred .by the grievor..- Article 7.6 directs a very specific result, and a- finding’ of a . damages is not the prerequisite to that result. -\Accordingly, and for the foregoing reasons, the. grievance js upheld, and the . employer is ordered to compensate the grievor as set out above. .We remain seized with respect to the implementation- of this. award. .. - .. DATED at Toronto this -. ,14th day of December, 1993. . I /p . /;+I: _ --------------w-e William Kaplan 7 Vice-Chairperson .’ L _ /Lg.~~ y, ------A.-- M. :Khalid :’ - Member ., ‘I : I dissent. -(attached) .’ -,,,-----w--d---- F. Collict Member 10 : ‘,i Chairoerson’s Addendum ‘. I .have read Mr. Collict’s dissent, and wish to offer the following : observations ‘with respect to it. _’ Management does have the statutory right to determine assignments, and it exercised that right in this. case. However, in assigning the overtime to the grievor and requiring him to report to work, it assumed certain obligations under Article, 7.6 of the Collective Agreement. ,:.That provision does not abrogate any -of management’s statutory rights. All that it does is set out a scheme for the compensation of employees who are required fo report for work. The grievor in this case was ‘assigned work and was required to report for that work. The fact that the grievor was subsequently advised that his overtime assignment had been rescin.ded, and that he, was no longer’required to report for work, does not alter the fact- that the assignment and acceptance of the overtime- work crystallized certain reciprocal obligations on both the part of the employer. and the employee: The employer cannot, as. the dissenting member indicates, rescind its assignment and then hide behind its statutory rights with respect to assignment to avoid the Collective Agreement consequences of its mistake, particularly in a case such as. this’ one where this particular employer was well aware of the arbitral interpretation of the exact Collective Agreement provision in issue. It should also be pointed out that the dissenting member’s position would completely undermine the Collective Agreement provisions agreed to by the parties in successive negotiations by enabling the employer tc rescind .assignments any time and under any circumstances it wished without any Collective Agreement consequences based on an extremely broad, and, inmy. view, totally unsupportable, interpretation of the Crown Emolovees Collective Baraainina Act. Very simply, the grievor,, in this case, on. the uncontradicted evidence, was, asked to work overtime. He agreed to do so. He was required to report for work, and as soon as he was, he was entitled to. the benefits of Article 7.6. This is so notwithstanding the fact that the grievor does not appear to have suffered any damages as a result of the employer’s mistake, which for its part, it sought to quickly correct. It must do so, however, in accordance, . with the Collective Agreement. .’ Il. _:. .i . _ . . . __.*.. There aie- no. manifest errors or exceptional circumktances in this case. -. The Arauid c& was correctly decided, and even in its absence, the majority in the instant case would have reached- exactly the same result.’ _ , ~. I ./.. I. ; : ‘I : ., . ,- ‘.... i . . : . . : ‘, . . ’ . ~ RE: G.S.B. #3030/92. O’FLYNN & L.C.B.O. i I This Member is not in agreement with the majority in this award. ’ : .’ ‘. . . -: I \ In brief summary, the reasons for this position are as fo.llows: 1. 2. 3. 4. 5. 6. The ISSUE in this case is one of ASSIGNMENT;.and not ENTFTLEMENT. .’ The position set out below was not argue.d by either of the parties. .In addition, it was not presented to the Board in ARAUJO. However, it flows from the Collective .Agreement (C.A.) and, more specifically, from section 18 of the Crown Employees Collective Baroainino Act which -is a deemed~provision of the CA. between the parties. Aside from the fact that the CA. is+a matter of record, it w&s presented to this . . Board asExhibit 3’. . . The position set out below is in conformity with BLAKE (G.k.B. #1276/871 and, indeed, meets the.test of an “exceptional circumstance”, as set out in BLAKE. It therefore provides for this Board to deviate from the ARAUJO decision which, the majority declined to do in this case. ., With- reference to the test of “manifest error” as related to ARAUJO; it is sufficient to note that the following position and argument was not put to that Board. Very briefly,‘the “exceptional circumstance” which warrants this Board to deviate from ARAUJO is that, \ .’ , ‘i . 0 the Board;in ARAUJO, abrogated the-Employer’s exclusive function to ‘. . . ii) ASSIGN, andthereby altered the C.A. (which is a violation of Article 27.10(a) of the C.A.‘); and, the. Board exceeded its jurisdiction by deciding a matter which does not “...come.within the jurisdiction of a board;” (s.18(1), CECBA); and ,’ . iii) whether the interpretation of Article 7.6 of the C.A. in ARAUJO is I’. ,7. ‘. 8. patently reasonkble’or not, the resriction placed upon the Employer by the ARAUJO award impacts the exclusive function of the ,Employer to assign (or reassign)‘; and, as stated in s. 18(l) of CECBA, “...such, matters will not be the subject ‘of _- .., collective barqaininq...” (underscoring added) _ Hence, the statute provides that the parties cannot engage in ‘. collective bargaining associated with this exclusive employer prerogative of assignment and, therefore, cannotnegotiate the : . . ‘abrogation, of the Employer’s right to determine assignment as found in ARAUJO relative to the interpretation of Article 7.6. _ *. ifinally, jurisprudence relative to the above position may b’e found-in the ’ Divisional Court ruling’concerning G.S.B..#2499;86 (CourtFile No. 66/91, O’Learv, Hartt and Smith; JJ - Nov. 2, 19921, which dealt with the Employer’s ‘. exclusive function to manage. ‘. Accordingly, this Member would have dismissed this subjectgrievance. . . . ‘. ‘. : ; L ‘. ,. . . ‘, _’ .:s, 3’ _ . . . The position-of this Member on this case is as follows: ; : 1. The Collective..Agreement between the parties flows-from the Crown Employees Collective Baroainino Act (C.E.C.B.A.). . *‘... 1 .. 2. C.E.C.B.A. provides the following: . ‘:18(l) Every collective agreement shallbe deemed to. provide that it is the exclusive function of the e,mployer to i manage; which function, witlhout limiting the generality of ..the foregoing, includes the right to determ’ine, : a). employment, appointment, complement, organization, assianment, discipline.... b) ‘...... and such ,matters will not be the subiect of ., ” 3 collecti$e‘ barqainino nor come within the iurisdiction of a tioard.“. _I (underscoring added) -,, . 1 3. In this case’ Mr. O’Fiynn .’ the grievor; was’ assioned to work overtime on. November 11, 1992. The Employer recognized that Mr. O’Flynn had been .’ . . . assioned to wor,k.this overtime out of rotation, contrary to the. provisions ‘of the collective agreement. ,This mistake was.-determined within a short period of time (approximately 15 minutes as per the Employer,, several hours as per the Union).“SHowever, this time interval was not an issue between the, parties and .- the possible prejudice to Mr. O!Flynn also was ‘not an issue. : ._ ’ The Employer, on finding that it had failed-to follow the provisions of the collective agreement, informed the grievor that he was not assigned to .report to work on the statutory holiday of November 11, 1992. 1 : : , i 4 .-.. . 4. In the view of this Member, Inasmuch as grievor O’Flynn was, not assiqned to report for overtime work on the statutory holiday of November 11, i992; he. therefore had no entitlement to the four ,hours. at double time as provided for under Article 7.6 of the collective agree,ment,.as he has claimed. 5. To put this more clearly,~A&cle 7.6 of the C.A. provides Mr. O’Flynn with a credit of a minimum of four hours of double time - ONLY if he ._ . ‘_ “...is required to report for any period of work on a.paid holiday...” (underscoring added) It was common ground between the parties that when it was found that an error had been made in assigning’Mr. O’Flynn’ to report to York, that he was then instructed that the was not required to work. Clearly, this’was an. assiqnment or, instruction to the effect that Mr. O’Flynn was not required to.report for any . -period:of Work ‘on November 11, 1992. .. . -, ‘, i.. .- , 6. To state this positionmore generally and even more simply, i) Ai per ARAUJO, one has an”‘entitlement”.if one is -“required to work”. (Art. 7.6) ii) One is “iequired,to work” only if.0n.e is so I’assigned”. iii) Assignment-to work is the exclusive function .of the Employer; And conversely, if one is not assiqned to work, one is not required to work; and hence, one has no entitlement. . ‘_ 4 7. The Union bas’es its case upon G.S.B #1012/86 (ARAUJO). The Union argued both estoppel and’res adjudicata, utilizing this.case as its &pport.- However, in the view of this Member,.the ARAUJO,case must not be followed. for the following reasons: I . - 4 the Board in G.S.B. #1012/86 (ARAUJO) seized jurisdiction associated with the matter of “assicnment”‘which is an exclusive function of the employer as set .out in s.l8(1)(& of C.E.C.B.A., above; and W the ,Board in GSB. #l&2/86 (ARAUJOI made a f/nding of an. “entitlement” on behalf of ARAUJO when, in fact, this was,not a matter of “entitlement”, - but a simple ‘matter of “assionment” : which the employer changed- by re-assionment - a matter which was, and is an exclusive right .of the e’mployer: and, ‘. -c) the Board in G.S.B. #lOl U86 (ARAUJO) exceeded3ts jurisdiction by reading into the collective agreement a restriction upon the Employer ,._ which the language of article 7.16 of the C.A: could not reasonably provide:- That is, in GS.B #1012/86, the Board stated, at page 5, : .^ “A subsequent cancellation (of an assignment) .. I by the Employer cannot operate to extinguish .’ this entitlement.” : (brackets and underscoring, added) ‘/ . In the view’of this tvlember, the Board in ARAUJO, 0 exceeded its jurisdiction by interpreting an assianment to overtime, ,’ ‘as an entitlement and concluding that the Employer could not re- :’ assian. That is, as per article 27.1 O(a) of the collective _: . . . . . . . 5 - .’ I _ ‘. ,, ‘> : ‘.. .$ - .,. : 6 -..: __: .‘I ‘. . agreement;the board shall not alter,.modify oramend the collective agreement; and ;. : -, ii) exceeded its jurisdiction by seizing jurisdiction of a matter of assignment, which was an exclusive function of the employer as set out in s. 18(l)(a) of C.E.C.B.A. 8. In addition to the above, however, even if the interpretation by the Board of Article 7.6 of the C.A. in ARAUJO was patently reasonable, it, is nevertheless in conflict with the statute (CECBA); for the parties are ijiecluded’ from-collective barcaininqTel&ive to’matters (such as the right of assignment), which are the -\ exclusive function of the Employer. As stated in s. 18(l) of CECBA, .’ -“...such matters wili not be the.subject of collective ’ baroaininq...“’ - (underscoring added) Clearly therefore,-although in the private sector the parties may collectively bargain modifications to claimed prerogatives of . management, by statute this cannot be done by the partiesto this ‘subject CA. which has a deemed provision (s. 118) which flows from the ‘.’ statute (CECBA); and which expressly states that there are specific and, exclusive,functions reserved to. the Employer which shall not be the subject &collective bargaining. The right to determine assignment is one of these exclusive functions. . 9. In the opinion of this Member, the above constitutes’an “exceptional . \ circumstancer’,as contemplated in BLAKE; and as a result;ARAUJO must not be followed: ‘. . : .’ . I. E ,. . .- .’ 7’ ; I / -10. 1. Further with respect to the above, this Member.would cite the Divisional Court ruling as related to an appeal to the G.S.B..award in G.S.B. #2499/86, as . . 1 follows: ” “In our view it was patently unreasonable for the majority to conclude as- they did that-the use by an employee of his or a ’ her own car may a”, times not be a “work’method” and so be’ subject to bargaining. ‘i In our view Sec. 18(l) is clear and “work method” cannot be subject. to,collective bargaining.” .’ (Court File No. 66/91 ,.before O’Leary, Hartt 8t Smith, JJ - Nov.. 2, 1992). . . . Just as “work method” cannot be subject to.collective bargaining as per s. .18(l) of CECBA, so also the matter of “assignment” in s. i 8(l) of CECBA is an exclusive function, of the. Employer, - and it shall not “come -withinthe jurisdiction of a board”; and, “such matters will not be the subiect. of collective barqaininq” between the parties.- : 1 11. At page’8 of this majority award the following was stated, ~ ‘-. “In reaching thisdecision we should al&o point out that we were influenced by the fact that the ARAUJO award was not judicially reviewed and, more importantly, that .’ subsequent to the rendering’of that decision, the parties .._ renegotiated their Collective Agreement, but did not make any material changes to the provision at issue.” This Member agrees that-the above did occur. Notwithstanding the absence of action in this respect by the Employer, neither the ARAUJO award’ nor’this subject O’FLYNN award can be allowed to stand because, these cases are in : ’ .. /. .. . .) ,_ : : -. ‘_ :* : I . . ’ 8 conflict with’the statute (&CBA). ARAUJO introduces the concept. of. “entitlement” which is in conflict with Article .27.10(a) of the C.A.; arid’both awards have denied the right of assignment by the Employer which is an I ‘I ex&sive function of the Employer. ‘. 12. It may be somewhat superfluous to add the fol!owing with reference to the . significance of the statute, (iii this case, CECBA).. However, Brown atid Beattk at paqe 39, (1:540Olmay be cited as follows: - . “Althoughat one time it was assumed ihat an-ai’bitrator would be a&g ,in excess of his ,jurisdiclion if he.applied the ‘. terms of an otherwise applicable.statute, it is now .. ; ., anv relevant statute law.” .’ _’ (underscoring added) Counsel for the Employer in the. O’Flvnn case advised the Board that ‘Article 7.6 of the C.A. had to be.&d in context with oiher relevant provisions of the C.A. ” / I Section 18(l) of CECBA is not only a part 01 the CECBA statute. ‘It also is 5 deemed provision of the C.A. The Board, therefore, clearly had an obligation to review the matters raised in the O’FLYNN case against the backdrop of both : the C.A. and the ‘siatute. Such a review gives rise tq the “exceptional : ’ ’ circtimsta’ncti” contemplated in BLAKE and is the context in which this dissent is written..’ _’ 13. The Employer had the right ,&d “exclusive function” to re-schedule or re-&Sian ‘Mr. O’Flynn to not work overtime on November 11,1?92.’ ‘The subject grievance of Mr. O’Flynn should be dismissed. _: I.. ..-,