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HomeMy WebLinkAbout1996-2698.Jung.97-04-21TELEPHONEfTiLiPHONE : (416) 326-1388 FACSIMILE/TiLiCOPIE : (418) 326-1396 GSB # 2698/96 OLBEU # OLB321/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Jung) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE P. Knopf Vice-Chairperson FOR THE GRIEVOR J. Noble Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER M. Gage Counsel Liquor Control Board of Ontario HEARING April 9, 1997 The parties presented this case under their expedited arbitration process. It involves a grievance alleging the denial of an .overtime opportunity on November 13, 1996. While the parties were unable to reach an agreed statement of facts, there is no dispute over the facts. Because this was an expedited proceeding, the parties presented the facts through statements given by counsel. Each counsel listed the facts that the party intended to rely upon to establish its case. It was apparent that some facts were agreed upon by both parties. It was also apparent that some facts were not disputed, but were not of a nature that the other party could have sufficient knowledge to endorse by way of consent. However, the presentation of facts in this matter enabled the parties to avoid the necessity of calling evidence or embarking on a lengthy proceeding. The Grievor is a Warehouseman 4 who works in Department 738 which is a Vintages warehouse. His regular shift is the day shift; 8:00 a.m. to 4:00 p.m. In the normal course of his work, orders or “bills” come into Department 738 around 2:00 or 3:00 p.m. The day shift workers fill the orders and process the bills. From time to time the bills arrive late. The regular procedure in such circumstances is that the foreman and usually two employees from Department 738 are asked to stay after 4:00 p.m. on an overtime basis to process the bills. It is the established practice in Department 738 that where there is an overtime opportunity, it is offered first to Department 738 employees on a rotational basis. If there are not sufficient volunteers, then the overtime opportunity is offered to the employees in Department 739. If there are not sufficient volunteers from that department, then the work will be assigned in Department 738. Up until October 1996, when the bills arrived late they usually arrived approximately one hour late. It then took 15 to 30 minutes to process the bills. Further, because of the method of delivering the bills up to the end of October 1996, there was a certain predictability about lateness. The bills were generated from the Information Technology Department. Either the Information Technology Department would advise Department 738 of when the expected time of arrival would be, or there was an understanding that the bills would arrive by about 5:00 p.m. -2- In October 1996, the computer system which generated the bills was changed and a new main frame computer was installed. In the initial start up phase, there was a corporate lack of familiarity about the-new system’s “idiosyncrasies” and there was no predictability about how long it would take to deliver the bills once the 4:00 p.m. end of shit-t had passed. On the day in question, November 13, 1996, the bills had not arrived by the end of the shift at 4:00 p.m. The Information Technology Department was unable to predict when the bills would be ready. All the employees in Department 738 were sent home except for the foreman who stayed to wait for the bills to arrive and was compensated for staying at the overtime rate. The bills did arrive at approximately 5:30. At that time, the work involved in processing the bills was given to a day shift employee from Department 739 who was in the vicinity working on his department’s responsibilities on an overtime basis. According to the established practice and rotation in Department 738, if there was to be an overtime opportunity available on November 13, it would have been offered to the grievor. Further, in light of the fact that he worked overtime on November 12, he would have been paid at double his regular rate of pay for having worked two overtime shifts on a consecutive basis. Accordingly, the Union is seeking two hours of pay at double the rate by way of compensation for the lost overtime opportunity. The only ‘Yuzzy area” of the undisputed facts is that the Union asserts that the Employer knew or ought to have known what time the bills could be expected to arrive on November 13 and, given the fact that the foreman stayed late, the Employer should have had a bargaining unit member stay and wait for at least two hours for the bills to arrive. However, the Employer indicates that the Information Technology Branch advised that it did not know what the problem was that was causing the delay of the printing of the bills or when the bills could be expected to arrive. . . . The Posltlonof the Parties The Union argues that it should be inferred that the Employer knew or ought to have known that the bills would arrive within a reasonable period of time on November 13. It is asserted that the evidence to support that inference is the fact that the foreman stayed and waited for the bills. As it turned out, the bills did not arrive much later than normal and the work took only 30 minutes to complete. This was said to show that it would have been reasonable to ask an employee such as the grievor to’ stay for two hours on an overtime basis to avirait the bills. Further, the fact that the foreman stayed and was paid overtime was said to be sufficient to allow the Board to infer that the Employer knew the bills would be coming in. In addition, it was argued that great significance should be attached to the fact that an employee from another department was working on an overtime basis and was available to be called to do the work of Department 738. It was suggested that the grievor and his fellow employees would not have been sent home if the Employer had not anticipated being able to use the employee from the other department. The Union argued that “the reasonable course of action for the Employer” would have been to have employ .s from Department 738 wait on an overtime basis for the usual amount of time to see if the bills arrived. It was said that it would then have been open to the Employer to send the grievor home if there was no work to do after I-1/2 or 2 hours. The reasonabIeness of this position was said to be founded in the fact that the foreman did precisely what the Union is suggesting. Tl- Union relies on the following three cases to support its position that the overtime rotation practice should be enforced by the Board and that an overtime opportunity arose in this situation: DePetriZlo andLCB0, GSB File 117-l 19189 (Gorsky), Scar-cello and LCBO, GSB File 1633/89 (Kaplan), Gwin and LCBO, GSB File 382/84 (Brandt). In the alternative, the Union argues that the grievor should have been called back to do the work and paid a minimum of four hours pursuant to Article 16.10(b) which provides that where an employee is called back to work after leaving the place of work and prior to the start of his/her next schedule, that employee should be paid a minimum of four hours’ pay at the overtime rate. The Employer responds to the Union’s allegation that the Employer knew or ought to have known that the bills would be coming in at a certain point, by saying that there was “absolutely no evidence” as to why the foreman stayed or to support a finding that the Employer knew or ought to have known when the bills would have been expected to arrive. Counsel for the Employer suggested several reasons why the foreman may have stayed overtime on that day. However, counsel conceded that her suggestions, given in argument, do not amount to evidence. But it was stressed that the Board could not conclude, in the absence of evidence, that the foreman stayed on an overtime basis -4- because the Employer knew when the bills would be coming. It was said that the onus was on the Union to prove the facts it was asserting and not for the Employer to disprove anything. The Employer relied on the fact that the agreed evidence establishes that Department 738 did not know what time the bills would be arriving. Further, it was stressed that there was no evidence that the Union can rely upon to suggest that it be inferred that the Employer sent the Department 738 employees home because it knew that it could call upon an employee from another department to fill the orders. This was said to be an illogical inference in light of the fact that the employee from Department 739 was working on an overtime basis on tasks which were completely unrelated to Department 73 8. The position of the Employer is that it had no obligation to keep an employee on an overtime basis on the speculation that the bills could arrive and work would need to be done at some indefinite time in the future. It was said that the Union’s position is not supported by the collective agreement or the practice. It was said that the established practice is simply that if the Department knew or could predict when the bills would arrive, then employees were retained on an overtime basis to fill the orders. But the established practice does not cover the situation when there is no predictability as to the arrival of the bills. It was stressed that the installation of the new computer system took the predictability away from the Employer. Hence it was said to be reasonable for the Employer not to keep someone there to wait for an indefinite period of time. Further, and in the alternative, it was argued that there is no obligation under the collective agreement to call back an employee in circumstances such as these. By way of reply, counsel for the Union argued that only the Employer has knowledge as to why the foreman was asked to stay. It was said that it was appropriate for the Union to ask that an inference be drawn as to why he stayed in relation to the late bills. However, it was also said that because the information as to why the foreman stayed would be within the knowledge of the Employer rather than the Union, it would behove the Employer to have offered such an explanation. . . The Dewan This Award is part of an expedited process. The process serves the parties well because it gives the parties the appropriate amount of time and resources for cases that fit within the criteria. Cases that are appropriate include those with few factual -5- disputes. These parties are to be encouraged to agree upon facts and utilize this process as much as possible. It would not benefit the parties or labour relations if the parties were compelled to call lengthy evidence or find themselves disadvantaged at the end of the hearing by decisions to limit the evidence. . Much of the argument of both sides in this case focused on inferences that could be drawn from the evidence. This is understandable given the issues and few facts at hand. We have a situation where there is no evidence as to what the foreman did when he stayed on an overtime basis on the evening in question. This Board could take a formalistic approach and analyze the issues of onus and determine who has the responsibility to call evidence within one’s control and in what circumstances. But it would be detrimental to labour relations to decide a case such as this on the basis of onus. Onus is a concept that is important only when there must be a weighing of evidence. Counsel for the parties took the appropriate and professional approach in this case of setting forth their facts and agreeing to as many facts as is possible. They also indicated which facts could simply not be challenged but need not be proven in a formal sense. This avoided the necessity of witnesses and saved the parties much time and expense. After having achieved this maturity in the parties’ relationship, it would be contrary to good labour relations to decide this case simply on the question of onus or on inferences. The case can and will be decided solely on the basis of the agreed upon and/or unchallenged facts. The facts are that there is an established practice in Department 738 of offering overtime on a rotational basis. When the bills which generated work were late in the past, there was a predictability as to when they would arrive. Employees would be offered an overtime opportunity to wait to fill the orders. This usually meant approximately two hours of overtime for two employees and the foreman. On the date in question, the bills had not arrived by the end of the day’s shift. A new computer system was in place and was not yet fully efficient. There was no predictability about the arrival of the bills as there would have been in the past. All employees were sent home from Department 738 except for the foreman. He stayed to await the bills and was paid on an overtime basis. The bills did arrive at approxima.tely .5:30. The work of filling these orders was then assigned to another employee from another department who was doing work for his own department -6- on an overtime basis. Offering him this overtime was not consistent with the policy of offering Department 738 employees overtime before it was offered to other departments. Therefore, the question is whether this assignment amounted to an overtime opportunity that should have triggered the use of the established practice of offering overtime within Department 73 8. It may have been reasonable to have had a Department 738 employee stay on an overtime basis and await the arrival of the bills. He/she could have been sent home after two hours if the bills had not yet appeared. In fact the bills did appear and the work was completed within those two hours. But the case cannot be decided on the basis of reasonableness. My function is simply to apply and interpret the collective agreement and the parties’ established overtime practice. Neither refers to the concept of reasonableness in this context. The established practice applicable in this situation dictates that an overtime opportunity in Department 738 should be offered first to Department 738 employees. But the situation on November 13 cannot be viewed as creating an overtime opportunity. As the Scarcelo case, supra, points out, the Employer has the right, subject to the provisions in the collective agreement, to use its resources to avoid overtime. It therefore follows that the Employer has the right to chose not to assign overtime work or schedule overtime where it can be avoided. The fact that an overtime work opportunity may potentially exist does not dictate that a worker mu:e be assigned to do that work. The Employer can choose not to assign anyone to it un;less there is an actual overtime opportunity. In the case at hand, the Employer could have asked for a volunteer to stay on an overtime basis and await the bills. The Employer chose not to do this, Its decision was legitimate given the unpredictability of the bills arrival because of the new computer system. The decision would have been suspect and contrary to practice if there had been an estimated time of the arrival because there was a practice of assigning overtime when bills were expected within a predictable time. But nothing in the collective agreement or the practice requires this employer to keep an employee waiting on an overtime basis for a potential of work. Therefore it cannot be said that either the collective agreement or the procedure was violated. -7- The fact that the work did material& one and a half hours after the end of the regular shift is not determinative. At that point, an employee from another department was called away from other overtime tasks and asked to fill these orders. The evidence does not establish that his presence was linked to the late arrival of the bills. Indeed, his work was unrelated and he was called from other duties for one half hour to complete the work for Department 738. Under these circumstances, the events of November 13 should not be viewed as a denial of an overtime opportunity to the grievor. Unusual facts came into play on November 13. Further, while the collective agreement does contemplate a minimum payment if an employee is called back to work prior to the commencement of his next regular shift (Article 6. IO(b)), nothing in the collective agreement obligates an employer to call back an employee in the circumstances at play in this case. For all these reasons, the grievance is dismissed. DATED at Toronto, Ontario, this 2 1 st day of April, 1997. Paula &nopf - Vice-Chairptison ,,.’ EMPLOY& DE LA COURONNE DE L’ONTARK) COMMISSION DE RtiGLEMENT DES GRIEFS 180 DUNDAS STREET WES 7; SUITE 600, TORONTO ON M5G lZ8 180, RUE DUNDAS OUES 7; BURE4 U 600, TORONTO (ON) M5G I28 TELEPHONEITiLiPHONE : (416) 326- 1388 FACSlMILEITtiLtiCOPIE : (416)326-1396 GSB # 2720196 OPSEU # 97CO93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sharon Knapp) Grievor - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Randi Hammer Abramsky Vice Chair FOR THE GRIEVOR Mary Mackinnon Counsel, Bode & Mackinnon Barristers & Solicitors FOR THE EMPLOYER Lucy Siraco Counsel, Legal Services Branch Management Board Secretariat HEARING April 26, 1999 INTERIM ORDER Under the specific facts of this case, the Employer must elect whether or not to call evidence if it wishes to proceed with its motion for non-suit. Issued this 3rd day of June, 1999, in Toronto.