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HomeMy WebLinkAbout1994-1056.Larmand-Shotlander-Thompson.96-11-29oNlmK3 EhfPLOY&z DE LA CaJRmNE CiWWN Eh4PLOYEES oELaNlARK3 GRIEVANCE COMMISSION DE SETTLEMENT RkGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G lZ8 TELEPHONE/T&&PHONE : (416) 326-1388 l&l, RUE DUNDAS OUES’I; BUREAU 2100, TORONTO (ON) A&G 1Z8 FACSIMLE/T~LkOPIE : (416) 326-1396 GSB # 1056194, 1057194, 1058194 OLBEU # OLB155-7/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Larmand/Shotlander/Thompson) Grievor - and - BEFORE: FOR THE GRIEVOR FOR THE R. Drmaj EMPLOYER Counsel HEARING The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer S. Stewart Vice-Chairperson J. Noble Legal Counsel Ontario Liquor Boards Emplqyees' Union -Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors April 30, 1996 October 21, 1996 DECISION The grievors, Ms. H. Thompson, Ms. M.C. Larmand and Mr. G. Shotlander are employed as clerks in the Employer's Durham warehouse. Mr. Shotlander works in the receiving department. Ms. Larmand and Ms. Thompson work in the order processing department. The Union claims that the grievors were improperly denied opportunities to work overtime in the shipping department. There was no objection to my jurisdiction to hear and determine the grievances. The Collective Agreement provides as follows with respect to overtime: 6.6(b) Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees then to casual employees. Failing sufficient volunteers, overtime would be assigned to full-time employees on a rotational basis. It was common ground between the parties that the manner in which overtime was to be distributed.among employees of the shipping, order processing and receiving departments had been established in accordance with a memorandum dated September 16, 1991, which reads as follows: As committed, this is a recap of the points covered during our meeting of July 17th that surround the issue of your concerns with respect to the current method of overtime and job rotation. As a point of clarification, it was you, as a group of operations clerks who approached us about 6-8 months ago 2 with a request that we look at alternatives to what you saw were the problems with the practice of frequent and broad rotation. We met, we listened to your concerns and we considered your proposals. As a result, we felt that the basis of your concern i.e. the low level of accountability and responsibility caused by this frequent rotation and the feelings of disjointedness that resulted, did indeed warrant serious consideration. It was decided that it would in fact be operationally beneficial to narrow the window of rotation and lengthen the time that each individual would stay in a job function. The resulting plan still had clerk rotation, but this time, the rotation would be restricted to/within a department and each created a structure that had three clerks within each department and each of those clerks would rotate through the three jobs, ideally on an annual basis. In structuring the plan, we decided to leave the three non-rotational clerks in the function/department that they were in and that we would post the six (6) remaining functions on a board and allow each of you to select the position/department that you wanted to work in, on a seniority basis. We would rotate the three departmental clerks amongst themselves, as mentioned earlier, ideally on an annual basis i.e. four months per function and as far as overtime went, when available, it would be offered to the departmental clerks first within the department with the need to incur the overtime. If the incumbent clerks refused the overtime, we would assign the junior clerk within that department to the overtime hours. Your concerns, that arose from this structure, was that of fairly sharing the overtime amongst the clerks outside of the department as there were some departments that worked a significant amount of overtime and others that virtually worked none. You felt that there was no point in forcing a clerk to work overtime if there were clerks outside of the department that would like to have to have an opportunity to work. As a compromise, we agreed that we could offer overtime to the clerks outside of a department, if, after canvassing, we were unsuccessful in filling our manpower needs from within the department working the overtime, provided that we had at least one clerk from within the department also working. This was deemed to be necessary to ensure that 3 we had at least one clerk present who was up-to-date with the functioning of the department and its needs. The grievances arise from an enhancement to the computer system, known as the "Net K52 Project". The purpose of the enhancement was to increase the accuracy of shipping documents, known as "K52~~~ including providing for an adjustment for breakage. As well, the new system was designed to allow for the . more efficient generation of documentation associated with shipping orders. Training for.employees in the shipping department and back-up employees in the warehouse was commenced in June 1994, however the grievors were not provided with training on the system until the latter part of November, in the case of Ms. Larmand and Mr. Shotlander and the early part of December in the case of Ms. Thompson. It is the position,of. the Employer that because the grievors had not been trained on the enhancement procedures they were not able to perform the work and thus were not entitled to be considered for overtime opportunities. The Union advanced a number of positions. It was argued that the Employer should have trained the grievors on the new system and that the grievors ought not be disadvantaged by the Employer's failure to do so. It was further argued, in the alternative, that training was not in fact required for the grievors to have been offered the overtime opportunities. There were two aspects to this argument. It was suggested that training was not in fact required for the 4 grievors to have performed work involving the K52 system. In the alternative, it was argued that there was overtime work available that the grievors could have performed without the necessity of utilizing the enhanced computer system and that in those instances, at least, overtime should have been granted in accordance with the Septmber 16, 1991 memorandum. All three of the grievors testified, as did Mr. G. DeLuca, who was shipping manager at the time of the events giving rise to the grievance. The grievors all testified that that they would have accepted overtime work in the shipping department had it been offered to them. As well, they testified that after reading the manual relating to the program, and a brief period of training, they were able to utilize the system without difficulty. The manual is 35 pages in length, excluding samples. The time allocated for the training of the grievors on the enhanced system was three half days. Mr. Shotlander testified that he was able to utilize the program after only 5 or 10 minutes of instruction and that he proceeded to perform work on the system during the remainder of his allocated training time. Ms. Larmand testified that it took her 30 to 45 minutes of direct instruction to learn the new system. Ms. Thompson's evidence was that she was able to utilize the system after about 90 minutes of instruction. Ms. Thompson also testified that an employee from the warehouse was 5 assigned to work on the K52 system of the grievors agreed that during prior to being trained. All the course of their training there was a person available to provide them with any assistance they might require. Mr. DeLuca testified that the new system was brought into the department around June, 1994. He testified that he required training on the system for '*a few days". However, Mr. DeLuca acknowledged that he does not perform this kind of work on a regular basis and thus that it may have taken him longer to learn the new system than someone who does perform this kind of work on a regular basis. Mr. DeLuca testified that training for the three permanent shipping clerks and two persons from the warehouse who performed backup duties in shipping commenced in June. One of the shipping clerks became ill in June and was off work until mid August. Another clerk .from the warehouse was brought in to receive training in her place. Mr. DeLuca denied that any employee was assigned overtime duties on the K52 system prior to being trained. He testified that the training for employees in the receiving and order processing departments was delayed because of the absence of the shipping clerk and the fact that a number of employees were on vacation during the summer. When training takes place it is necessary to replace the person being trained. There was no dispute that the Employer's consistent practice is to train employees on straight time rather than on overtime. 6 It was common ground between the Union and the Employer that the use of a computer terminal was necessary to work on the K52 system. There was some discrepancy in the evidence of the grievors as to how many terminals were available in the shipping However, there was no real contradiction of Mr. department. Deluca's assertion that there were three terminals in use at the time. Similarly, there was no real contradiction of Mr. DeLuca's evidence that they could all be utilized at the same time. The testimony of the grievors, with which Mr. DeLuca concurred, was that working on the computer terminal was not the only function of employees in the shipping department. In particular, Ms. Larmand's evidence was that the usual work pattern with three employees would involve one employee working on the terminal with the other two working on related tasks. There was some difference between the grievors and Mr. DeLuca as to the amount of time that would be spent on the integrated tasks within the department, although there was agreement that tasks other than the operation of the K52 system were necessary. During the period between the implementation of the new system and her training, Ms. Larmand was offered and accepted overtime work in the shipping department. At that time she was assigned to the task of splitting bills and was not required to perform any work.on the K52 system. Employees outside the shipping department who had not received training on the K52 enhancements were assigned to tasks within that department during regular 7 working hours and were assigned to duties other than working on the K52 system. Mr. DeLuca testified that approximately 90% of the overtime work assigned during the period between the introduction of new system and the training of the grievors was on work relating to the implementation of the K52 system. According to his evidence, there were a number of difficulties with the system that had to . be worked out. He testified that all three of the computer terminals in the shipping area were used the majority of the time. However, Mr. DeLuca acknowledged that he was not in the shipping area all of the time and thus could not confirm precisely how much time they would be in use. I will first deal with the issue of whether the grievors ought to have been entitled to overtime opportunities notwithstanding their lack of training. As previously noted, one of the arguments advanced by the Union was that because the grievors were not responsible for the delay in training they should not be deprived of overtime opportunities lost due to the delay. I am unable to accept this submission. Both counsel referred me to a number of decisions dealing with the provisions of Article 6.6(b). The essence of those decisions is that this .provision is to be given reasonable and practical interpretation. While the delay in training-was unfortunate, it is apparent that it was due to operational circumstances. I am unable to accept a that a reasonable and practical interpretation of this provision would require the Employer to pay damages .for loss of overtime opportunities by virtue of the grievors not receiving training at an earlier date. I turn now to the issue of whether training was in fact necessary to perform the work on the enhanced K52 system. There was contradictory evidence on the issue of whether an employee performed overtime work on the K52 system prior to training. It seems most unlikely that the Employer would have imposed a requirement for training on all but one employee. The employee directly involved was not called to testify. I am unable to conclude, on a balance of probabilities, that this allegation has been established. While it appears that the time allocated for training was somewhat generous, it is also apparent from the evidence that some training was required. Accordingly, I am unable to conclude that the grievors ought to have been assigned to work involving the K52 system prior to training. Mr. Drmaj argued that because the grievors did not have training on the K52 system at the relevant time they were not eligible for overtime and the grievances should be dismissed. In support of that posjtion I was referred to LCBO t OLBEU JLawrence) 1216/85 (Forbes-Roberts). In that case, the grievor's claim to overtime was dismissed on the basis that he was not capable of performing the full range of functions that he might 9 be called upon to perform. I accept the principle that an employee is properly expected to 'be able to perform the full range of the functions of a postion in order to be eligible to perform overtime work. However, on the facts of this case there is an issue of whether all persons performing overtime work in the shipping department during the period in issue were in fact required to have knowledge of the new K52 system. The evidence called by the Union suggested that in the normal course of events there would be one, or at most two, employees utilizing the monitors to work on the K52 system while other employees would be in the department would be performing other functions. However, the uncontradicted evidence of Mr. DeLuca was that 90% of the time spent on overtime during the period in issue was in relation to the K52 system. But, it is also apparent from the evidence that the maximum number of employees who could work on the K52 system at any time was three. The record of overtime hours worked which was provided by the Employer, (Exhibit 9), indicates that there were occasions where more than three persons were assigned to overtime in shipping. In my view, it is clear that in those situations overtime I opportunities ought to have been made available to persons in the ;. position of the grievors and I so declare. Ms. Noble submitted that entitlement to work overtime in the shipping department where three other employees with the K52 10 training were working should not be limited to situations where the other employees were working overtime hours. In this regard I was referred to the caveat contained in the last paragraph of the September 16, 1991 memorandum. Ms. Noble indicated that there would be some instances where a shipping employee with the K52 training would have been on afternoon shift when a need for overtime and the necessity of bringing in employees from other departments arose. In Ms. Noble's submission, it was not necessary for that person to be on overtime in order for employees in other departments to be entitled to work overtime. Mr. Drmaj argued that the memorandum should be interpreted as contemplating that the employee in the department would also be working overtime. While the memorandum is not entirely clear on this point, it is my view that the interpretation urged upon me by the Union is the preferable one. The Employer has an obvious interest in ensuring that an employee in the department is present'when overtime is worked, however that concern does not necessitate the employee being present by virtue of working overtime. The Union's interest, in providing for opportunities for overtime to be available more widely, will not be met if the Employer's position were to prevail. Moreover, the position put forward by the Union in this regard appears to me to be the preferable interpretation of the language of Article 6.6 (b) of the Collective Agreement. The grievances are allowed in accordance with and to the 11 extent of the foregoing conclusions. The grievors are entitled to compensation accordingly. The parties are to review the relevant records and confer as to the extent of compensation. I retain jurisdiction to deal with any matter necessary to finalize this matter. Dated at Toronto, this 29th day of November, 1996 S.L. Stewart - Vice-Chair