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HomeMy WebLinkAbout1991-2618.Parker & Union.92-10-27 ~4, ONTARIO EMPLOYEs DE LA COURONNE CROWN EMPLOYEES DE L'ONTARiO GRIEVANCE C,OMMISSlON DE :., SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS ST,qEET WEST, SUITE 2100, TOF~ONTO, ONTARIO. MSG ~80, BUE DUNDAS OUEST, BUREAU 2 [00, TOFiONTO (ONTARIO,I. M5G ~Z8 FACS~,41LE,'T~L~.COPiE .. ~ ~SJ 226-:396 2,6:].8/91, 2,619/9]. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Parker/Union Grievance) Gr~evor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) .Employer BEFORE: A. Barrett Vice-Chairperson E. Seymour Member D. Clark Member FOR THE S. Philpott GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. Drmaj EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING July 14, 1992 DECISION The union and Mr. Parker grieve that the employer has scheduled a new shift at the Terminal I and Terminal 2 Duty Free Stores contrary to Article 6.2 of the collective agreement, the relevant portions of which are set out below: "6.2 (a) The Employers shall prescribe the number of hours in each working day not exceeding eight (8) hours for the various departments or establishments of the Employers. Normal hours of work will be as follows: (i) Stores ... (ii) Warehouses ... (iii) LCBO/LDBO Head Office and Warehouse ... (iv) Toronto Airport Stores: 6:00 a.m. to 1:00 p.m. 8:00 a.m. to 4:30 p.m. 1:00 p,m. to 8:00 p.m. 2:00 p.m. to 9:00 p.m. 4:00 p,m. to 11:00 p.m. (b) Normal hours of work may be subject to change by the Employers depending on local conditions." In December 1991r in accordance with a decision taken in June 1991, management changed the 6:00 a.m. to 1:00 p.m. shift to 5:00 a.m. to 12 noon. The change was in response to changing airline schedules which often require the stores to be opened at 5:00 a.m. The need for a 5:00 a.m. opening had been in existence for some time, particularly at Terminal 1 because of increasing numbers of charters departing from that terminal as a result of a transfer of most business flights to the new Terminal 3. Especially in the fall, winter and spring, there are a great number of early departures, although not so many in the summer. 2 Up until December 1991, the employer was handling these early flights by calling the 6:00 a.m. to 1:00 p.m. shift in 'one hour early and either paying them one hour overtime or letting them Go one and a half hours early. The union concedes that the employer is entitled to change the normal hours of work but says that if the hours are at variance with the ones set out in the collective aGreement~ then overtime must be paid for any hours outside the "normal hours". The union argues that Article 6.2(b) allowing the employer to change the hours of work depending upon local conditions must be Given a restrictive reading in order to avoid rendering Article 6.2(a)'nuGatory. The union says that Article 6.2(b) only allows management to alter hours on a temporary basis, and with payment of overtime. The exigency~dictatinG the change of normal hours must be an abnormal condition. The clause cannot be used to "normalize" a shift that is not listed in article 6.2(a). The union says that any new normal shift must be negotiated between the parties. Union counsel points to Article 6.4(a) (ii) which states that "hours oX work may be changed without any premium or penalty if agreed upon between the employee and management" as further evidence that changes must be negotiated. Union counsel cites Re St. Clair Chemical Ltd. a'nd Oil~ Chemical and Atomic Workers, Local 9 - 1{ (1973), 5 L.A.C.(2d) 50 (H.D. Brown); Re Miramichi Pulp & Paper Inc. and Canadian PaDerworkers Union. Local 869 (1987), 29 L.A.C.(3d) 48 (Stanley); Re Parking Authority of Toronto and Canadian Union of Public Employees. Local 43 (1974), 5 L.A.C.(2d) 150 (Adell) for the proposition that where normal hours of work are specified in a collective agreement, manaGement-can only change 3 tl]ose normal hours by negotiation or by paying overtime for hours outside the listed hours. Employer counsel argues that Article 6.2 of the collective agreement was definitively interpreted by another panel of this Board in 1978, and that interpretation governs the present situation, {HerrinQton et al. G.S.B. 32/77 and 16/78 (Adams)). The wording of Article 6.2 (then 5.2) has not changed in any material respect since 1978. In that decision, the Board was asked to determine the legality of a number of changed shifts in various stores, warehouses, head office and Duty Free Shops which the employer alleged it was entitled to do pursuant to the "local conditions" exception in Article 5.2(b) (now 6.2(b)). In that case, there was a history of the union and management agreeing to change shifts by memoranda of understanding, but it was found on the evidence that all of those shift changes were made at the instance of the employees and not due to local condition changes. Those agreements made from time to time were not found to bind the employer to negotiate shift changes in the normal hours of work where local conditions dictated the changes, not employee requests. That panel of the Board reviewed the St. Clair Chemical Ltd. case cited above and several others in the same vein but distinguished them from the instant collective agreement because in none of those cases was there a clause permitting the employer to change the normal hours of work depending on local conditions. The Board said at page 17: "Thus if Article 5.2 of this collective agreement only provided for the 'normal hours of work' as specified and nothing mor~, the lists of 4 variations outlined above would violate the article and all hours worked outside of the normal work hours would attract overtime pay under Article 5.7 .., However Article 5.2 goes on to provide that the 'normal hours of work may be subject to change by Boards depending upon local conditions.'", In that case, the union argued that Article 5.2(b) only permitted changes where service to the public required deviation f. rom the schedules provided for in 'the collective agreement, a~d cited the example of the Duty Free Stores at Toronto International Airport. In result, the Board gave the words "local conditions" a broader interpretation largely because the variations in work schedules had been in effect for many many years. The Board found that the employer was entitled to change shift schedules to accommodate such local conditions as store delivery schedules, the need to take inventory, customer patterns, store volume and staffing effectiveness, The Duty Free Stores were then operating a late night shift not specified in the collective agreement to accommodate late night departures which were becoming more frequent. The Board harmonized the operation of Article 5.2(a) and 5.2(b) in the followinG explication at page 19, as follows: "We wish to emphasise that management cannot exercise its discretion under the local conditions exception in such away. as to render its earlier agreement to the normal hours of work nugatory. Were the employer able to effect any change it wanted under this exception the totality of Article 5.~2 would make little sense. For this reason then we are of the view that some local conditions must reasonably justify variations from the normal hours provided for in the agreement. For example this would appear to be the case with respect to the variations that. exist in the large stores in that the size of the store~ customer service, or truck delivery schedules are the stated reasons for such variations. But mere employee or employer preference for some other worR schedule, unsupported ~y a bona fides local problem, would not support a change in the normal hours of work under this exception. Indeed we believe that the parties have themselves recognized this fact by executing memoranda of understandings where changes in hours have been introduced at either the Head Office or warehouse locations at the request of the affected employees. These changes have not been in response to any particular local conditon as far as we understand and thus required the consent of the Association in order to modify the contractually a~re~d upon normal work hours contained in the collective agreement." We believe the instant case is on all fours'with the Herrington case. ChanGingftight schedules are a legitimate local condition Giving rise to the employer's right to unilaterally change the normal hours of work, The previous practice of paying" one hour overtime to people who came in at 5:00 a.m. is not evidence that the employer knew it could not change the scheduled shiZt without the consent of the union or the payment of overtime. The need for early openings simply increased over t±me, The manager of the Terminal i Store testified that she came to the conclusion that it would be fairer to schedule a regular 5:00 a.m. shift than to frequently require the 6:00 a.m. shift to work overtime, often on short notice. The manager also testified that frequently their most lucrative business is done between 5:00 a,m. and 6:00 a.m. This is a clear example of a local condition ~ivinG rise to the ~mployer's right to change t~e normal hours of work. With respect to the union argument that Article 6.4(a)(:[i) relating to aGreed-upon changes in hours of work, Governs this case, we do not think it has any relevance. Article 6.4 relates to the posting of shift schedules and overtime pay in lieu of proper notice. It is in that 6 context that paragraph (ii) provides an exception for mutual agreement to short notice changes for individual employees. In result, the grievances are dismissed. Dated at Toronto this2?th day of October, 1992. E. Seymour Member D. Clark Member