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Home My WebLink About1989-1633.Scarcello.90-06-18 ONTARIO EMP£ 0 YES DE LA COURONNE * ~ CROWN EMPLOYEES DE L'ON TA RIO = GRIEVANCE ¢.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS OtJNDA$ $TREET WEST, SUITE 2100, TORONTO, ONTARIO, MSCJ ;Z8 TELEPHONE/T~[..~PHONE,. [4~6) 325-7358 RuE DUN,~A$ OUEST, 8UREAIJ 2700, TORONTO (ONTARIO). 1633/89 IN THE HATTER OF AN ARBITBATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU (Scarcello) Grievor - and- The Crowr in Right of Ontario (Liquor Control Board of Ontario) Employer and - BEFORE: W. K )lan Vice-Chairperson T. B!r~wes-Budgen Member A. Merritt Member FOR THE E. Mitchell GRiEVOR: Counsel Kos~ie & Minsky Barristers & Solicitors J. Chaykowsky ClaSsification Officer Ontario Liquor Boards ' E~ployees' Union FOR THE W. IZachar EMPLOYER: St~ff Relations Officer Liquor Control Board of Ontario BEARING: Ma~ 7, 1990 Francesco $carcello is a Vax Operator at the LCBO Durham Warehouse. In a grievance dated December 19, 1989 Mr. Scarcello seeks compensation for two overtime opportunities which he claims he was wrongfully denied. A hearing was held in Toronto on May 7, 1990. Most of the facts of this case are not in dispute. The Durham Warehouse is a supply depot for the LCBO Central Ontario Region. It is highly computerized, and the computer system runs almost t~enty-four hours a day, Monday through: saturday. T~here are four computer operators, called Vax Operators. In addition to Mr. Scarcello, $. Markowiak, Drake Dziewier and~Mike Dunbar work as Vax Operators. Barbara Warden is the Assistant Manager, Computer Operations, and she reports to John DaFoe, the Manager of Systems. The Vax Operators report directly to Ms. Warden and indirectly to Mr. DaFoe. The regular shift schedule of the Vax Operators is as follows, Monday through Saturday: 7:00 a.m. to 3:00 p.m., 10:00 a.m. to 6:00 p.m., 4:00 p.m. to 12:00 midnight, and 9:00 p.m. to 5:00 a.m. The last shift of the week is the 9:00 p.m. Friday to 5:00 a.m. Saturday shift. The four Vax Operators work these four shifts in rotation. 3 BecauSe of the virtually continuous nature of the operations at the Durham Warehouse, and because the warehouse is highly computerized, it is necessary that the computer be kept running. If, for one reason or another, the computer fails on the weekend when no regular shifts are scheduled, overtime becomes necessary. Article 6.6 (b) of the Collective Agreement provides, in part, that: "Where there is a requirement for overtime to be worked, it shall be first offered to full-time employees 9n a rotational basis." In other parts of the Durham Warehouse the rotational list is established by seniority. Among the Vax Operators another method has.been established. Overtime is first offered to the person Who is scheduled to work that week on the 7:00 to 3:00 shift. It is next offered to the person scheduled to work on the 10:00 to 6:00 shift, and then to the person on the 4:00 to 12:00 shift, and then to the remaining employee, who would be working the 9:00 to 5:00 shift. It appears from the evidence that overtime opportunities are highly sought after by the Vax Operators. In this case, Mr. Scarcello claims that he was denied overtime opportunities on two specific occasions. It is appropriate, given our disposition of the first part of Mr. Scarcello's claim, to deal with each instance separately. 4 On Sunday November 26, 1989 Drake Dziewier worked scheduled overtime on preventive maintenance. The fault in the system could not be corrected during the scheduled overtime period, which was a day shift beginning at 8:00 a.m. and ending at 4:00 p.m. Beginning around noon Mr. Dziewier began calling other Vax Operators to come in for an unscheduled overtime shift of 4:00 p.m. to 12:00 midnight. The grievor was among those called, but said that he could not come in at 4:00 p.m. as he had to go to the airport. He indicated, however, that he would be free to come in later on. As it.turned out, the Assistant Manager, Barbara Warden, worked the 4:00 p.m. to 12:00 midnight unscheduled overtime shift. The problem could still not be corrected and another employee was called in to continue the work. In fact, Mr. Dziewier volunteered to come back to work but not on overtime. He arranged with Ms. Warden to work the 12:00 midnight to 8:00 a.m. shift in lieu of his regularly scheduled shift on November 27, 1989. Mr. Dziewier was paid his regular rate for this work. It is.at 12:01 a.m. on November 27, 1989 that the union alleges an overtime opportunity arose and that the grievor was entitled to it. The union's claim is straightforward. The week of November 27, 1989 the grievor was scheduled to work the 7:00 a.m. to 3:00 p.m. shift.. This meant, in accordance with the rotation system pertaining to Vax Operators, that he was entitled to the 5 first call on overtime occurring that week. The Collective Agreement provides in Article 6.1(b) that: "the starting time of the work week shall be Monday, 12:01 a.m.," and the grievor argues that he should have been asked to perfor~ the overtime since according to the rotation system he was entitled to it. The employer drew our attention to Article 6.4(a)(ii) of the Collective Agreement which provides that: "Hours of work may be changed without any premium or penalty if agreed upon between the employee and management." Also relevant is Article 6.2(b) which provides that: "Normal hours of work may be subject to change by the Employers depending on local conditions." Very simply, it is the employer's contention that all that took place here was a mutually-agreed upon change in the hours of work. Since the agreed-upon change in the hours of work did not involve payment of any overtime the employer was not required to call in the grievor or anyone el~e. For its part the union argued that "hours of work" must be read to mean "normal hours of work" and that it is onl~ normal hours, meaning regularly scheduled hours of work, that can be changed by mutual consent. Put another way, the union argued that Article 6.4(a) (ii) cannot be read so as to allow the employer to avoid overtime by persuading employees to switch their regular shifts to what would otherwise be overtime shifts. This interpretation is, in our view, supported by the definition of overtime found in the Collective Agreement. Article 6.1(a) provides that "'overtime' means a period of work computed to the nearest fifteen (15) minutes and (i) performed on a regular working day in excess of the regular working period consisting of at least (15) minutes, or (ii) performed on a holiday or other day that is not a regular working day but shall not occur where the work performed is due to shift rotation." In this case, the work performed took place during a period other than a period during which work was regularly scheduled. It was agreed upon by both the union and the employer that the work being performed was of an emergency nature. The employer certainly has the right, subject to the provisions of the Collective Agreement, to utilize its resources to avoid overtime; that principle is not in dispute. Here the work was performed during a time when work was not regularly' performed. This' work was exceptional, and was necessary so that operations could resume on Monday morning when the regular work week began. An overtime obligation therefore arose and the grievor was entitled to it. We therefore order that the grievor be compensated for the loss of the overtime Rpportunity on November 27, 1989. The second part of the grievance relates to another claim for loss of overtime opportunity which took place on December 2, 1989. The facts relating to this incident are somewhat more 7 complex. Having found, however, that the grievor was wrongfully denied the overtime opportunity on November 27, 1989, it is not necessary for us to consider whether or not he was entitled to any other overtime opportunity which may have arisen later in the week. The Collective Agreement provides for overtime to be rotated. This does not mean, nor~ did we hear any evidence suggesting that it meant, that the grievor was~entitled to every opportunity for overtime that occurred during the week. The rotation system established for the distribution of overtime opportunities among Vax Operators should have given the grievor the first chance at the first overtime opportunity the week of November 27, 1989. We have found that it f~iled to do so and have ordered the' grievor compensated for that loss of opportunity. Had we found that the grievor was not wrongfully denied overtime on November 27, 1989 we would h~ve gone on to consider the facts of his claim that he was denied overtime on December 2, 1990. Indeed, had there been any evidence that the rotation system had run its course and that the grievor was again first in line for overtime we would have considered this second claim. There was no such evidence, and what evidence there was suggests that this had not taken place. Given our disposition of the first claim, it is not necessary for us to determine whether or not the grievor was denied a second overtime opportunity. 8 We retain jurisdiction to deal with. any matter arising out of the implementation of this award. Dated this 18day of june, 1990. William Kaplan Vice Chairperson ~. Browes-Bug~gen Member A. Merritt Member %