Loading...
HomeMy WebLinkAbout1992-3350.Henderson et al.94-06-27EMPLOY& DE LA COURONNE CROWN EMPLOYEES DEL’ONTARIO GRIEVANCE CgMMlsSlON DE mm.BOARD SETTLEMENT DE-$GRlEFS ., ‘... I.’ ‘.. ’ REGLEMENT : 180 DUNDAS STREET WEST, SUITE 2100, TOPONTO, ONTARTO. M5G 128 TEL~PHONE/TEL~PHONE: (4 161 326- 1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO j. [O&TAR/O,. MSG 128 FACSIMILE/TE’LkOPIE : i (4 16) X6- 1396 ! December 14, 1994 M E M 0 RA,N D U M RE: 3350/92, 3351/92, 3354/92, 2519/93 OLBEU (Henderson et-al) and The 'Crown in Right of Ontario -(Liquor Control Board of Ontario): The above-noted decision was released.by the Board on June 27, 1994. Please be advised that a Notice of Application for Judicial i Review dated December 6, 1994 has been filed,by Mr. D. Brown of the Ministry of the Attorney General. , i .Yourstruly, -\ r JS/ch Encl. ONTARIO EMPLOY& DE LA COURONNE CROWN EMPLOYEES DEL’ONTARIO GRIEVANCE COMMliSlON DE SETTLEMENT RkGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST, SUfTE 2100, TOROpTO, ONTARIO. M5G II8 TELEPH~NE/TEL.+H~NE: (4 76~ 326- 7388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 128 FACSlMlLE/Tt’L~COPlE : (4 161 326- 1396 3350/92,3351/92,3354/92,2519/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES CGLLECTIVE BARGAINING ACT Before \ THE GRIEVANCE SETTLEMENT'BOARD,, BETWEEN OLBEU (Heuderson et al) Grievor. - and - I BEFORE: The Crown in Right of,Ontario (Liquor Control Board of Ontario) 1 Employer W. Kaplan Vice-Chairperson M. Lyons 'Member D. Montrose Member FOR THE,, GRIEVOR ,S. Philpott Counsel Koskie & Minsky . . Barristers & Solicitors 7 FOR THE EMPLOYER D. Mombourquette , Counsel Liquor Control.Board of Ontario HEARING September 13, 1991 August 24, 1992 Introduction. This case concerns the alleged vio&ion of Article 3 1.1 (a) 6f the Collective . Agreement which provides: “Hours of work shall be posted at least one (1) full week in advance for each ,establishment and there shall be. no split shifts.” The Board was initially seized with the individual grievances of Jeff Henderson, Ron Giesbrecht and Doug Thompson dated December 14, 1992. On January 31, 1994, the Union filed a policy grievance alleging a violation of Article 3.1 .l (a), and it, along with a. number 6f other grievances, all of which allege a violation of this provision, were consolidated in the interests of expediency, .and in ‘order to conserve resources, with the instant case. \ a 1 In brief, the different -grievances take issue with the employer’s scheduling practices at the London and Durham Warehouses. For its part, the union alleges that the employer has failed to comply with Article 31 .l (a) of the Collective Agreement in the scheduling of casual employees. The employer ” 1 takes the position that there has been no breach. ~ The Union’s Case Evidence of Jeff Henderson .’ -\ . Mr. Henderson testified. He is a casual employee assigned to the London Ware’house, one of a number of such facilities located around the province. Mr. Henderson is second on the casual seniority list. He told ‘the Board that Mr. Thompson was first and Mr. Giesbrecht was third; According to Mr. Henderson, casual ‘employees usually work between April and December. In ’ general, casual employees are scheduled on the same list as pe.rmanent employees, and the 1992 list was, in fact, introduced into evidence. This list indicates that Messrs. Thompson, Henderson and Giesbrecht were first i (:. :- /’ : c. ! ‘ r; 3 scheduled to work beginning on Monday, March 16, 1992. He testified that he. was advised that he. had been ,scheduled the previous Thursday or Friday. Be’tween March 16, 1992 and the middle of May 1992, Mr. Henderson’s name r was penciled on to the list after it was posted. He testified that he did not receive one week’s notice of his schedule during this -period. Beginning with the schedule for the week ending May 15, 1992; Mr. Henderson’s name, and that of Mr. Thompson,-appeared on the typed list which was posted one week in advance. For whatever it is worth, Mr. Giesbrecht’s name appeared on the typed list which was posted several weeks later. Over the course of the ’ summer other casual employees were asked to report to work. At first, ’ their names would be penciled in; later some of their names were typed on the posted list. i i I Mr. Henderson testified that he was properly scheduled until the middle of I r December 1992. His name appears for the last time on the typed part of the - list for the week ending December 11, 1992. Towards the end of that week; he ,was approached by Mr. Bob Stafford, the General Foreperson. Mr. Stafford / asked Mr. Henderson to come into work the following week. As it turned out, Mr. Henderson and Mr. Giesbrecht each worke.d on December 14, 1992. ’ Mr. Thompson worked that entire week. On December 14, 1992, Messrs. Henderson, Thompson. and Giesbrecht filed grievances alleging the violation of Article 31 ,l (a). ’ Mr. Henderson described his experiences in, 1993, which ‘were essentially similar to those of the previous year. He testified that in 1993 he was properly scheduled to work until approximately one week before Christmas. On the Thursday of his last scheduled week, he was approached by a member I , of management and asked whether he wished to work the following week. He was not told how many days he would be assigned. if he accepted the $offer. Because of the short notjce, Mr. Henderson could not arrange day care and so could not work on the following Monday. He was, however, ableto work on the Tuesday, and that was the only day that he worked that week. In 1994, Mr. Henderson was called back. to work in January.’ He was not, however, schedu1e.d. Instead, he was, offered work on a day-to-day basis, and this work was generally’ offered several days in advance. On at least one occasion; Mr. Henderson could not accept an offered shift because of a previously arranged appointment. He testified that this would not have occurred had he been scheduled one week in advance. Mr. Henderson was scheduled in this manner for the first six weeks of 1994; after that, his . name appeared on the typed schedule which was posted one. week .in advance. According to Mr. Henderson, he was entitled to refuse work when it was offered on short notice. He pointed out, however,, that he would do so at -some peril given that ‘a refusal to accept work might affect his entitlement to Unemployment Insurance. , ‘\ Cross-Examination of Mr. Henderson . In cross-examination, Mr. Henderson testified that it was his position that the Collective Agreement required that every hour of work be scheduled one week in advance, and that if it was not so scheduled the overtime provisions came into effect. Mr. Henderson agreed that he had made his concerns about the scheduling known to management as early as 1991. Mr. Henderson also agreed that by March 1992 he was aware that the LCBO had a different view with respect to its obligations under the Collective ; Agreement. He did not file a grievance at that time because he was of the <. 1 5. ._ i 5 (1 .; \ n ;, .’ view ‘that a previously .filed grievance on this same subject remained outstanding. Evidence of Doua Thompson Mr. Thompson testified. He is also employed at the London Warehouse. Mr. . Thompson’s evidence did not depart any in any material respect from that of Mr. Henderson. In 1991, Mr. Thompson filed a grievance with respect to the employer’s staffing practices. In the aftermath of filing this grievance, Mr. / Thompson had a conversation with ‘his supervisor, Mr. Stafford. According to Mr.. Thompson, Mr. Stafford stated that he could not p’redict staffing needs in advance, and,that he would do what he could to notify casual employees of staffing requirements. Mr. Thompson testified that scheduling improved following this conversation, and so he, thought that the matter had been resolved. When Mr. Thompson realized that his concerns ha-d not been resolved he filed one of the instant grievances. - Cross-Examination of Mr. Thompson !n cross-examination, Mr. Thompson testi.fied that he could not recall when in 1991 he filed -his initia! grievance. He ‘agreed ‘that when he. returned, to work in’ February and March ‘I 992 he was not initially given one week’s notice, and also agreed that he did not file a .grievance until December. 1992. He testified that while he may not have acted early in 1992, at the end of /_ 1 the year he realized that the problem had still not been addressed, and so he took steps so as to ensure that it would be dealt with. Evidence of Jean Chavkowskv. Ms. Chaykowsky testified. She is the union’s Grievance Officer, and has held that position for twelve years. She testified that she was not aware of any grievances filed-in 1991 by either Mr. Henderson o’r Mr. Thompson. I Cross-Examination of Ms. Chavkowsky In cross-examination, Ms. Chaykowsky testified that while it was pos$ble that another unionofficer would have knowledge of Mr. Henderson’s’ and Mr. Thompson’s 1991 grievances, she was of the understanding that both of those matters had- not gone beyond the complaint .stage. Ms. Chaykowsky testified that according to her interpretation of the Collective Agreement, the employer cannot call casual employees in for work ,without seven days notice unless some emergency condition. is said to exist. Such an emergency situation- would,. in her view, include the necessity of replacing a classified employee who called in sick. It would, not, however, include dealing with fluctuations in workload as, in her view, they can- be anticipated and- scheduled. x The Employer’s Case Evidence of, Bob Stafford. . i Mr. Stafford testified. He is the. General Foreperson at the London Warehouse, and has held that position for approximately twelve years. He began, his career with the LCBO twenty-two years ago as a casual employee. Among his duties,. Mr. Stafford is responsible for coordinating work ., schedules. Mr. ‘Stafford told the Board that the use’ of casual employees at the London Warehouse varies. Typically they unload imported containers, assemble product for shipment and assist with housekeeping functions. Casuals are also employed for a variety of other reasons including replacing classified employees who are away on vacation or off receiving compensation.- They are also used if the system breaks down or because of seasonal business. -. ;/ Mr. Stafford reviewed the London Warehouse 1992 schedule which was earlier introduced into evidence. Mr. Stafford told the Board that the schedule is posted each Monday for the week beginning the following Monday. The names of all scheduled employees, both classified and casual, are typed, while the names of casual employees called in with less than one week’s notice are penciled in. The schedule for the week ending December 18, 1992 indicates that Messrs. Henderson, Thompson and Giesbrecht, were not initially scheduled to work that week. As it turned out, ~Mr. Thompson worked the full week, and Messrs. Henderson and Giesbrecht each worked one day. .Mr. Stafford thought that Messrs. Thompson, Henderson and Giesbrecht were probably asked to work at the end of the previous week. According to Mr. Stafford, a need arose for casual employees, and this in , turn, led him to offer the work to Messrs. Thompson, Henderson and Giesbrecht. Mr. Stafford described how product arrives at the London i Warehouse, and the degree of notice that the Warehouse receives in respect, of its arrival. To make a long story short, on some occasions, the Warehouse would receive notification that a container of product was to arrive on a specific day one or two days hence. Afterthe schedule of the week ending December 1’8th. was posted, Mr; Stafford received notice that a shipment of wine would be arriving, and this led him to call in the casual, employees. Sometimes notification arrives that a product is to arrive on a specific day but. does not, in fact, arrive as scheduled.~ The Warehouse also receives orders for stock to be shipped to the stores. These orders arrive on one day and are filled and sent.out on the next. The number and timing of these orders varies. Mr. Stafford told the Board that the current practices with respect to the scheduling of casual employees have been followed for as long as he coujd recall. He is of the view that if it was decided that the Warehouse had to ’ provide casual employees with one week’s notice, such a decision would create significant operational difficulties including .late storage and demurrage costs. He testified that he attempts to give-casual employees as much notice as possible, and stated that as soon as he is made aware of the need for additional employees he informs the employees of that need. Cross-Examination of Mr. Stafford In cross-examination, Mr. ‘Stafford agreed that if an employee’s name was - penciled on to the schedule, that meant that he or she had not received one week’s ‘notice of the work. He testified that he can predict how many ’ casuals are required during the summer when classified staff take i vacations. Mr. Stafford can also schedule replacement cas<uals for . classified employees away receiving Workers’ Compensation. While Mr. i Stafford is aware that most employees are ,absent on sick leave -for 7-8 days a year, he cannot predict when this will take place and account for it in his scheduling. Mr. Stafford was asked’ a number of questions about the LCBO’s computer ordering system. There is a computer system reporting store orders, however, Mr. Stafford testified that sometimes those orders change. Moreover, he indicated that the information about store orders is only provided to him several days in advance. For example, he might find out what a store had ordered on a Tuesday for pick-up the following Friday. On other occasions, the individual stores are late in submitting their orders. If the Warehouse was required to give seven days notice to casua! 9 employees, Mr. Stafford testified that this requirement would likely result ‘! in late deliveries as well as the demurrage costs he earlier referred to. Very simply, if he ‘is not able call in some casuals on short notice to deal with unexpected events, the work will not get done. j .Evidence of- V. Arauio Mr. Araujo testified. He is the Acting Manager of the Receiving Department ‘of the Durha,m Warehouse. He has held that position for approximately eighteen months. Mr:’ Araujo joined the LCBO eighteen years ago as a casual employee and served for a number of years as a shop steward. Mr. Araujo ‘(, told the Board that casual staff are employed in two capacities at the i Durham Warehouse: They unload product from trucks to be sent to the Warehouse, and they load productfrom the Warehouse on to paliets to be sent to the stores. Occasionally, casual employees will be’ used in the manual assembly of product.. \ Mr. Araujo testified. that the use of casual employees depends on a number of factors including the season, the arrival of containers from overseas, .the number of employees on sick leave, the number of employees receiving Workers’ Compensation, system problems and the holiday schedules of classified employees. Up to fifty casual e.mployees have been used at one time.. Portions of the 1993 and 1994 Durham Warehouse work schedule were introduced into evidence. By and large the entire. year’s schedule is known to ,classified employees at the beginning of the year. This schedule changes, however, as a result of the factors just referred to. Mr. Araujo testified that whenever he knows that a casual employee will be required, he notifies that employee in. advance. Many times, however, he does not know, such as when a container unexpectedly arrives and arrangements must be made to c .unload it immediately. According to Mr. Araujo, he only receives approximately twenty-four hours notice of a container’s arrival. In the period January-March 1994, a number of casual employees at the Durham Warehouse were called in on a daily basis. -Introduced into evidence were several letters sent to these employees, the salient portion of which reads: “henceforth work available will be assigned on a day to day basis. ! You shall be informed- before the completion of your shift if you are i required to report for work the following day.“. Mr. Araujo ‘testified that he could not give casual employees greater notice of the need for their services in the period January 11994 through March 1994 because of circumstances beyond his control. He told the Board that because of weather conditions in the Atlantic Ocean, a number of container ships were stranded making it difficult to predict casual employee complement. The implications for scheduling were obvious. --. Mr. Araujo also testified with respect to the notice he receives regarding store orders. A number of documents were introduced into evidence, To make another long story short, these documents establish that the Durham Warehouse often receives less thaln one, week’s notice with respect to store orders. Moreover, there is often a daily fluctuation with respect to the \, number of cases to be shipped. One day the Durham Warehouse might be required to ship 24,000 cases; another day half that amount. Some days, up to thirty-five containers will arrive at the Warehouse; other days no containers will appear. Mr. Araujo told the Board that if he was not able to * call in casual employees on short notice a backlog might develop and shipping and demurrage costs might be incurred.- In addition, a failure to fill store orders might result ,in the retail outlets running out of product. If the Warehouse had Io schedule casual’ employees one week in advance, it might, if there was no real work to be performed, end up having to pay ‘. ,, them, or find other jobs for them to do such as, sweeping. Mr. Araujo 4 testified that in his ten years at the Durham Warehouse, casual employees have always been scheduled in this manner, and that it has always been understood that they might be offered work at the last minute. Cross-Examination of Mr. Arauio -. Mr. Araujo was asked a number of questions in cross-examination about. the notice the Durham Warehouse receives with respect to container arrival and store orders. While store orders should be constant, they are often / unpredictable. Mr. Araujo was also asked why the casual employees were. limited to two basic functions at the Durham Warehouse, and he testified that these were the entry level functions. While some. classified employees I are, for example, assigned to receive containers, if a vacancy arises , elsewhere in the Warehouse, those employees will .move up to that vacancy creating an employment opportunity for a casual employee. Mr. Araujo testified, that order processing’ was a priority. While it was true that demurrage and other costs arose at the receiving end, costs could .also arise, at the shippingi end. Moreover, in his view, it was easier to catch-up on receiving -than on order processing. %\ . . . The evidence having been completed, the matter turned to argument. r .i i I Union Argument i Union counsel began her submissions with the observation that the ’ Collective Agreement provides casual employees with very limited rights, and the limitations on these rights are made clear when the provisions applicable to causal staff are compared.with those relating to full-time employees. One right, however, that the Collective Agreement does give to causal employees is set out in Article 3 1.1 (a), and counsel argued that this provision required the employer to schedule casual employees at least, one week in advance. In the union’s submission, provisions of this kind are negotiated in order to provide casual employees with some ability to ~ manage their affairs by giving them at least one week’s notice of scheduled work. Counsel’argued that there was absolutely no doubt, on the. facts of the instant case, that this provision had been breached. Having established a breach, counsel turned to the matter of, remedy. In her - view, the only remedy which made any sense was a. declaration of breach \ followed by an order requiring the employer to pay casual employees overtime rates for all hours worked when an employee was scheduled ,less i than seven days in advance. In the union‘s view, this remedy was consistent with Article 31 .l (a) as the parties had, in that provision, agreed that no employee should be, scheduled .less than one week in advance. ‘Accordingly, a breach of that provision should result in a penalty to.. the employer. ,Put another way, the employer should be given an incentive- to comply .with the Collective Agreement, and the incentive in this case would be avoiding having to pay overtime rates. In support of this submission, counsel referred to.-Brown and Beattv for the general proposition that arbitrators have held that employers may not (.- ‘5 unilaterally change ,scheduled hours without attracting a premium rate ’ consequence. Counsel also referred to two reported awards in further support of her position: Re Printina Specialities & Paper Products Union, Local 466 and lnterchem Canada Ltd. 21. L.A.C. 46 (Weatherill) and & Newfoundland Farm Products Corp. Ltd. and Newfoundland Association of Public Employees 4 L.A.C (4th) 343 (Easton). In the Printinq Specialities case the Collective Agreement referred to “normal hours of work” and “regular work week.” The employer unilaterally, , albeit for sound business reasons, changed the work schedule, and the, board found that there were”consequences for doing so: “If, therefore, the work now being scheduled on a regular basis .outside the hours ‘provided in’ the agreement .is proper at all, it is proper only on the basis that such work is overtime work, and must be paid for at’ overtime rates” (at 48). The Collective Agreement at issue in that case provided for overtime. for all hours ‘worked in excess of the “normal work day.” In the union’s view, the principles .in the Printinq Specialities award could be extended to the circumstances in the instant case. Somewhat similarly, union counsel c,ounsel argued that the Newfoundland Farm. Products award was also applicable. In that case?’ a group of employees engaged in a wildcat strike on a regularly scheduled working day. i To make up for the lost day, the employer scheduled those employees for work on a week-end, and the employees were a,dvised,that they were to work their regular hours for their regular rate. Employees were further ‘advised that the employer would consider any failure to attend as insubordination and that disciplinary action would .be taken in the result. The employees reported for work, but a grievance was filed alleging that s i i > the overtime provisions of the Collective Agreement- had been breached. After consjdering the positions of the parties, the arbitrator held that notwithstanding his sympathy for the predicament faced by manage,ment, the employer was required to abide by the terms of the Collective Agreement. Accordingly, .overtime was awarded for the week-end work. In the instant case, counsel argued that an award of overtime was the only way in which to- ensure that the Collective Agreement did not continue to ‘be ’ breached. In conclusion, therefore, union counsel asked that the Board issue a declaration of violation and further order the! employer to discontinue scheduling casual employees contrary to the requirements of Article 31.1(a)., In addition, counsel asked for an order directing the employer to compensate the grievors, at overtime rates, for all hours worked for which the grievors had not been given the requisite one week’s notice and to further require the employer to credit the grievors with seniority for any hours offered which could not be worked as a result of the employer’s ‘failure to comply with’ the Collective Agreement. Counsel asked the ‘Board to remain seized with respect to the matter of remedy and the implementation of any .award. Employer Argument Employer counsel began his submissions by observing that there were a number of questions raised by this case, each of which had to be answered in turn. The first question to be addressed was whether Article 31 .l (a) required the employer to post casual hours seven days in’ advance. Assuming this question was answered in the affirmative, the second question’ to be considered was whether that” provision violated Section 18 of the Crown Emolovees Collective Barqaininq Act.’ If the Board concluded ,- that the there was no statutory violation, it would only then be called upon to consider whether’the provision had been breached, and to ,determine the proper remedy for that breach. I r .I Turning to the evidence, employer counsel noted that there was absolutely no evidence of any bad faith on the part of management in either the London ’ or Durham Warehouses in the scheduling of casual employees. The evidence established that casual employees were given one week’s notice whenever possible, and th’e only time they were given less than one week’s notice was when some unexpected contingency arose requiring the immediate need for casual labour. Counsel further noted that these scheduling practices were long established. Turning to the particular questions earlier identified, counsel argued that Article 31 .l (a) only required the employer to schedule those hours. it could reasonably anticipate seven days in advance. Work which could not beg reasonably anticipated need not, counsel suggested, be scheduled one week, , in advance. In the .employer’s view, this is the only interpretation of, the A,’ /’ Collective Agreement which made any sense given that the provision at : ‘.issue related to casual employees, and given that’ the whole, purpose of casual labour was to ensure a readily available casual labour ‘workforce to provide casual labour requirements and, in that way, allow the employer to avoid overtime. In support of these submissions, employer counsel made a number of observations about possible conflicts in Article 31 considered generally, not to mention a May 1, 1989 memorandum of agreement entered into by the i. i 16 k.:,,; parties with respect to the scheduling of certain employees working in retail stores. The thrust of these submi’ssions was to the effect that there _. was nothing, in Article 3,l .l (a) precluding the employer from offering casual employees unscheduled hours less than one week- in advance. Put another way, the employer was only required to give seven days notice of “scheduled hours.” Hours which were not “scheduled” could; counsel argued, be offered to employees with less than one week’s notice. In response to a question from the Board, employer counsel argued that the purpose of the provision would not be gutted by an interpretation of this kind because’the employer _- would still be required to schedule casual hours one week in advance whenever those hours could be anticipated. Counsel also pointed out that _/ the employer’s interpretation was consistent with the long-established past practice of the parties. Assuming that the Board found that the employer was required by Article 31 .l (a) to schedule casual hours at least seven days in advance, employer counsel argued{ that this provision should not be given effect because it was contrary to section 18 of the Crown Employees Collective ,Baraainina Act which reserved to management exclusive jurisdiction over work methods and procedures. As Article 3 1 .l (a) was contrary to that provision it was in breach of the statute and could not, therefore, be given effect. . ’ Finally, assuming’ that this second argument did not prevail and assuming : further that-the Board found that the Collective Agreement had been ( breached, counsel argued that it was beyond our jurisdiction to,grant that , part of the remedy requested by the union which would effectively add an overtime ‘provision to the Collective Agreement. Employer counsel pointed out that the ,Board did not have the jurisdiction to alter, modify or amend i. the Collective Agreement, and suggested that ordering the payment of ‘\, overtime for unscheduled hours worked would have exactly that effect. In counsel’s submission,, the cases relied upon by the union could be distinguished on their particular facts, ,as well as the’.highly specific Collective Agreement language found in each of them. It was noteworthy that in both cases specific overtime provisions were at issue. In the instant case, the. union was attempting to convince the Board to read one in. In the employer% view, the most that the Board could do in this case was issue a dec!aration of. breach. r In conclusion, counsel asked that the grievances be dismissed, but that, in the alternative, that the Board issue a declaration of breach.land remain seized with. respect to the determination of damages should the parties prove unable to agree. Union Reply In reply, union .counsel argued that Article 3 1 .‘I (a) was not in conflict Smith statute,, and pointed out that a work schedule was not a work method or I procedure, but was instead an issue whkh was commonly the subject of bargaining between Management Board and the OLBEU. Counsel also pointed. out .that the Board regularly takes jurisdiction in cases-of this kind. In counsel’s further submission, there was little practical point in relying on the May 1, 1989 memorandum of agreement as that document was specifically limited to the retail stores. Its applicability to the instant . case was, accordingly, questionable to say the least. I’ \ ’ ,’ :\. : / I. I Finally, counsel argued that there was no evidence. before the Board indicating that the employer could’ not change some of its operational realities in order to comply with Article 31.1 (a). If supplies were not delivered on time, the employer had, counsel suggested, the wherewithal to change suppliers. If retail stores were not sending their orders in on time, / this too, counsel submitted could be corrected. The, point was that the employer could not unilaterally ignore a provision of the Collectrve Agreement. Ithad done so in the instant case, and on this basis; and for the 1 reasons given earlier, counsel urged that the various grievances be upheld. jl Decision t .I \ Having carefully considered the evidence and arguments of, the parties, we have come to ,the conclusion that these grievances should, be allowed. We should note at the outset that we are not convinced that the result of this award will .serve the onigoing needs of either party, and certainly, as tunion ! counsel conceded in her submissions in response to a question from the Board, it is far from evident that our award in’ this matter will result in an increase in work for casuals employed at LCBO warehouses. If anything, the opposite might result. These observations aside, we are left with little choice but to find, on the \ facts of this matter, that Article 31 ..l (a) of the Collective Agreement has been breached. That provision clearly requires the employer to post hours of work for casual employees one week in advance. The May 1, 1989 memorandum of, agreement contextualizes this provision, but does so only for employees of the retail stores. Casual Warehouse employees are not covered by this memorandum, and given that Article 31 .l (a) is absolutely clear as to what it requires, we can only find on the facts of this matter I In reaching this result ‘we have considered employer counsel’s argument, that Article 31.1 (a) 4s in conflict with the Crown Employees Collective Baraainina Act. and should not, therefore, be given effect. With :respect, we cannot agree with this submission. It is true enough that Section 18 of the Act reserves certain matters to the exclusive jurisdiction of management. It is also true that section 7 of the Act entitles the union, upon recognition, to bargain with the employer with respect to, among other things, hours of work. Clearly, the parties were entitled to negotiate Article 31.1(a), and we are required to give that provision effect r .; 19 i ( . ’ that it has been breached. __ In making this finding we wish to emphasize that there is absolutely no evidence whatsoever that the employer made anything but good faith efforts to schedule casual Warehouse .employees in compliance with this provision whenever poss/ble. The evidence establishes that casual employees were only, asked to work with less than one week’s notice as a. result of truly unforeseen contingencies and events. The evidence further establishes, as Mr. Henderson testified, that an employee could refuse work .’ on short notice, although he or she would .do so at some ‘risk given that ‘it’ might jeopardize subsequent entitlement to Unemployment Insurance. Given that the language of the provision is clear, we do not find that the evidence of past practice, is useful in the making of a determination in this case. What matters is that the grievors’ and their union took issue with the employer’s interpretation of the provision and filed a grievance with respect to iti Despite our misgivings about the outcome of- this award, we ’ can only find that the Collective Agreement has been breached and we issue a declaration to that effect. ..- While we find that Article 31 .l (a) of the Collective Agreement has ,been breached, we ca.nnot and do not find that the appropriate remedy for that breach is an order requiring ‘the employer to pay overtime for all hours worked in contravention of that provision. In our view, such an order would constitute a violation of Article 27.10(a) of the Collective Agreement which prohibits the Board from altering, amending or modifying any part of the Collective Agreement. Had the parties wished to provide for the payment .of overtime for a breach of this provision it was well within their” power to do so by negotiating a provision in the Collective Agreement., It is not within our power to impose this remedy, even if we’ were ‘so inclined. In _. reaching this result we have carefully reviewed’the authorities relied on by the union. Those cases can, be distinguished from the instant case. At the very least,. in both of those cases, the parties had negotiated’set schedules and had also provided for the payment of overtime. Neither factor is present in the instant case. All that Article 3 1,. 1 (a) requires is that the hours of casuals be posted at least seven days in advance. / Accordingly, and for the foregoing. reasons, we find that Article 31 .l (a) has been breached, and we issue a declaration to that effect as well as an order requiring the employer to cease and desist. As agreed upon by the parties, we remain seized with respect to the matter of remedy should the parties prove unable to agree. _ ! , . . t I 21 - ~ ,$;j ; c ‘i‘ PATED at Toronto this ZTthday’Of June, l<Y ; ----------------- William’ Kadan c ,:- 1994. Vice-6hairbrecn --,,-,.~.c,,-...--~--- .._.........e _ _..__m_. _...-. D. Montrose Me Nmber .