HomeMy WebLinkAbout2001-0077.Gately and Nicholson.01-08-15 Decision
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GSB#0077/0 1, 0078/01
UNION# OLB016/99, OLB017/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIquor Control Boards Employees Umon
(Gately and Nicholson)
Grievor
-and-
The Crown III RIght of OntarIo
(LIquor Control Board of Ontano)
Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE GRIEVOR Ehzabeth Mitchell
Counsel
KoskIe Minksy
Barnsters & SohcItors
FOR THE EMPLOYER Ahson Renton
Counsel
Legal ServIces
LIquor Control Board of Ontano
HEARING June 8, 2001 and July 6, 2001
DECISION
There are two gnevances before me, both of whIch allege contraventIOns of the
CollectIve Agreement. One IS a group gnevance dated November 23, 1998, III whIch the
gnevors claim that the Employer dId not ask them to work two hours of overtIme on
Wednesday, November 18, 1998, and the other IS an IlldIvIdual gnevance filed by Mr S
Gately on Dec ember 10, 1998, III whIch Mr Gately claims that he was not asked to work
712 hours of overtIme on Saturday, November 28, 1998 SIllce the Employer concedes
that It contravened the CollectIve Agreement III both Illstances, the dIspute between the
partIes concerns the appropnate remedy for these contraventIOns. The Umon takes the
posItIOn that the gnevors are entItled to damages for the lost overtIme OpportunItIes whIle
the Employer takes the posItIOn that an Ill-kIlld remedy IS warranted III the CIrcumstances
There was no ObjectIOn to the JurIsdIctIOn of the GSB to hear and determIlle these
gnevances. Other outstandIllg gnevances concernIllg mIssed overtIme OpportunItIes have
been adjourned pendIllg the outcome of thIS arbItratIOn.
The partIes elected not to call eVIdence They rehed upon an Agreed Statement of
Facts, the text of whIch reads as follows
1. These gnevances anse III Department 969 at the Durham LOgIStICS
FacIhty In that Department, III 1998, the Employer employed
approXimately 120 full tIme warehouse workers, and approxImately 105
casual employees. There were no part tIme employees III the FacIhty
Normally the Department operated With employees rotatIllg between the
day and afternoon shIfts and a few employees worked consIstently on the
afternoon or the mght shIft, unless there was no reqUIrement for that
partIcular ShIft. With respect to the afternoon shIft, It was no longer
reqUIred as of the week of December 29, 1998 and contIllued agaIll
sometime III 1999
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2. At all tImes relevant to the grIevances, the Gnevor Sean Gately
(hereIllafter "Gnevor Gately") was a full-tIme Warehouse Worker at the
Durham LOgIStICS FacIhty III Department 969 He volunteered to work
consIstently on the afternoon shIft and was workIllg the afternoon ShIft III
or around November 1998
3 At all tImes relevant to the gnevances, the Gnevors, Al Nicholson, N
Shkuratoff, and A. RobbIe were casual employees and D Kennedy and A.
Salmon were full tIme employees (hereIllafter the "Group Gnevors") at
the Durham LOgIStICS Facihty III Department 969 The Group Gnevors
volunteered and worked steady afternoon shIfts, With the exceptIOn of
Salmon, who rotated through the shIfts
4. The collectIve agreement that was III eXIstence at the tIme the gnevances
were filed was effectIve Apnl 1, 1998 to March 31, 2000
5 Under the collectIve agreement ArtIcle 6 6(b), overtIme must be offered
on a rotatIllg basIs to full tIme employees, then part-tIme employees, then
casual employees. FaIIIllg sufficIent personnel, overtIme IS assIgned to the
least semor quahfied employee A copy of ArtIcle 6 6(b) IS attached.
6. In 1998, III Department 969, overtIme was admIllIstered III the folloWing
manner
. For overtIme OpportunItIes that occurred at the end of a shIft on
Monday through Fnday, the Employer maIlltaIlled an overtIme hst,
whIch was organIzed by semonty The Employer offered those daily
OpportunItIes by rotatIOn to the person already workIllg on that ShIft,
startIllg With the place the Employer last left off, untIl ItS reqUIrements
were fill ed,
. For overtIme shIfts reqUIred for Saturday and Sunday, the Employer
maIlltaIlled two overtIme hsts, one for Saturday and one for Sunday,
whIch were both organIzed by semonty With the very first overtIme
OppOrtunIty, the Employer offered the weekend overtIme OppOrtunIty
to the first person on the hst, and down the hst untIl ItS reqUIrements
were filled. Subsequently, With any new weekend overtIme
OppOrtunIty, the Employer filled ItS reqUIrements by offenng the
overtIme OppOrtunIty first to the employee whose name appeared
below the last person who worked the last weekend overtIme
OppOrtunIty and down the hst, startIllg With that person.
7 On Wednesday, November 18, 1998, the Employer reqUIred employees to
work daily overtIme, Immediately folloWing the afternoon shIft.
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8. The Employer faIled to offer the daily overtIme OpportunIty to the Group
Gnevors, all of whom were on the afternoon ShIft and aVailable to work.
The Group Gnevors claim they were workIllg together at the south end of
the Facihty and the person who offered the overtIme Illadvertently
bypassed them.
9 On November 18, 1998, the Employer offered the overtIme to persons
lower on the full tIme hst than Kennedy and Salmon and to casual
employees lower on the hst than Nicholson, RobbIe, and Shkuratoff, many
of whom accepted and worked the two hours of overtIme
10 The Group Gnevors filed a gnevance seekIllg monetary compensatIOn for
the two hours of overtIme worked on November 18, 1998 A copy of the
gnevance and reply are attached.
11 The Employer responded at the 1't Stage Gnevance meetIllg by
Immediately offenng that the Group Gnevors could work two hours of
overtIme on dates convement to each of them and the Employer Those
offers were declIlled.
12. The Employer reqUIred persons to work overtIme on Saturday, November
28, 1998 In offenng the weekend overtIme OppOrtunIty, the Employer
faIled to offer the work to Gnevor Gately, although he was at work and
aVailable for work. Instead, the Employer offered the OppOrtunIty to a
person on the weekend overtIme hst who was JunIor to the Gnevor Gately
That person worked 7 5 hours at the overtIme rate A copy of the rotatIOn
hst IS attached.
13 The Gnevor Gately gneved the mIssed overtIme OppOrtunIty for Saturday,
November 28, 1998, seekIllg payment for the mIssed OppOrtunIty A copy
of hIS gnevance and reply are attached.
14 On Saturday, November 28, 1998, several casual employees worked the
shIft, along With full tIme employees.
15 The Employer responded to the Gnevor Gately s gnevance at the Stage 1
Gnevance MeetIllg by Immediately offenng that he could work 7 5
addItIOnal hours for whIch he would be paid the overtIme premIUm rate,
an offer whIch Gately refused.
16 The work expected on the mutually agreeable dates would be productIve
work as norma lly and regularly performed by employees III theIr
appropnate classIficatIOn and hke the work performed dunng overtIme
hours
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17 The Employer s practIce of offenng employees to work the mIssed
overtIme ("Ill-kIlld remedy") began at the latest by the fall of 1997 III
Department 969 Pnor to that tIme, the Employer s usual practIce III
Department 969 was to pay wages for lost overtIme opportunItIes.
18. The Employer s practIce III Department 969 of offenng employees III - kIlld
remedy was put IlltO GUIdelIlles, whIch the Employer thought were posted
before these gnevances were filed, but the Umon says were not posted
untIl March 1999 after these gnevances were filed. A copy of the
GUIdelIlles IS attached.
19 The Employer dId not negotiate With the Umon about the contents of the
GUIdelIlles. The Umon has never agreed to the GUIdelIlles or the change
III practIce about the remedy The Umon has not filed a pohcy gnevance
about eIther the GUIdelIlles or the change III practIce about the remedy
However, there are many other IlldIvIdual gnevances about mIssed
overtIme opportunItIes, many of whIch gneve the appropnate remedy,
some filed before and some after these gnevances, and the outstandIllg
gnevances have been adjourned pendIng the results of thIS arbItratIOn.
There are also some employees who have accepted the III -kIlld remedy
SIllce the change III the Employer s practIce III Department 969 and pnor
to those gnevances beIllg filed.
20 The PartIes request that the Gnevance Settlement Board make a
determIllatIOn as to the appropnate remedy for said vIOlatIOns of the
collectIve agreement.
The CollectIve Agreement prOVISIon referred to III the Agreed Statement of Facts
reads as follows
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. FaIhng
sufficIent volunteers, overtIme would be assIgned to the least semor
quahfied employee
The Employer s GUIdelIlles for dealIllg With overtIme Issues provIdes that an error
III canvassIllg for overtIme shall be dealt With as follows
5
8. Where It IS agreed that an error has occurred III the canvassIllg of overtIme,
the employee shall be offered the OpportunIty to make up the lost tIme on a
mutually agreed upon date (to occur WIthIll 3 months unless otherWise
mutually agreed upon under extenuatIllg cIrcumstances) If the employee
worked overTIme the day pnor to the mIsse d day, or worked overtIme on the
day folloWing the mIssed day, compensatIOn shall be paid as If the overtIme
had been worked on the mIssed day If the make - up overtIme IS scheduled
such that It falls Immediately pnor to or folloWing another day of overtnne,
double rate Will not apply
DurIllg the course of theIr thorough submIssIons, counsel referred to the folloWing
decIsIons, most of whIch deal With the appropnate remedy III the context of a mIssed
overtIme OppOrtunIty
OLBEU and Liquor Control Board of Ontario (,'lousa), dated April 26, 2000,
GSB File No 1492/98 (Brown)
OLBEU and Liquor Control Board o.fOntario (Larmand ShotlanderThompson),
dated November 29, 1996, GSB File Nos 1056/94, 1057/94, 1058/94 (Stewart)
OLBEU and Liquor Control Board o.fOnta rio (,'lcarcello), dated June 18, 1990,
GSB File No 1633/89 (Kaplan)
OLBEU and Liquor Control Board o.fOntario (De Petrillo et al), dated October
20, 1989, GSB File Nos. 117/89, 118/89, 119/89 (Gorsky)
OLBEU and Liquor Control Board o.fOntario (Galli) dated May 16, 1985, GSB
FIle No 689/84 (Roberts)
Re Corporation o.f the Cif} o.f Cambridge and Amalgamated Transit Union, Local
1608 (1997),65 L AC (4h) 13 (Tims)
Dominion Colour Corp and Teamsters Chemical Energy and Allied Workers
Local 1880 (1997),64 L.AC (4h) 366 (O'NeIl)
Re Labatt s Ontario BreHeries and BreHel) Malt & So.ft Drink Workers Local
304 (1993),36 L AC (4h) 289 (Gray)
Re Labatt s Ontario BreHeries and BreHel) General and Pro.fessional Workers
Union (1996),56 L AC (4th) 407 (Howe)
Re Ivaco Rolling Mills and United Steel~orkers Local 7940 (1984), 13 L.AC
(3d) 289 (Weathenll)
Re Shennan Mine Cliffs of Canada Ltd. and United Steel~orkers (1980),26
LAC (2nd) 67 (Brunner)
Re Dominion Stores Ltd. and Retail, Wholesale and DeJXlrtment Store Union,
Local 579 (1978), 20 L.AC (2d) 359 (WhIte)
Re International Chemical Workers Local 346 and Canadian Johns Manville Co
Ltd. (1971),22 L.AC 396 (Weller)
Re United Automobile Workers Local 707 and Ford Motor Co Ltd. (1962) 13
LAC 8 (Cross)
6
In the above cases, arbItrators have fashIOned a remedy for a breach of an
overtIme proVIsIon With the IlltentIOn of placIllg an employee affected by the breach III a
posItIOn as close as possible to the one the employee would have been III If no
contraventIOn of the collectIve agreement had occurred. The folloWing excerpt from
Canadian Labour Arbitration, Brown and Beatty, Jd ed., at para. 2 1423, provIdes a
useful summary of the approach arbItrators have taken when remedYIllg mIssed overtIme
OpportunItIes
Where there has been an Improper dIstributIOn of overtIme or error III work
schedulIllg by the employer It has been held that an award of damages not only
puts a gnevor III the same posItIOn monetanly, but does so Without hIS havIllg had
to perform any work. AccordIllgly, because the claim IS essentIally for a lost
OppOrtunIty where It IS possIble for the company to proVIde a further OppOrtunIty,
some arbItrators have stated that a remedy III kIlld, III the form of anothe r
OppOrtunIty, IS more appropnate than an award of damages However, agaIllst
thIS general presumptIOn, arbItrators have recogmzed that III some CIrcumstances
a remedy III kIlld may not be appropnate Thus, where the gnevor IS no longer III
the same classIficatIOn, where It would "create a problem With other employees
under the rules for overtIme dIstributIOn", where the Imbalance among employees
III the dIstribuTIon of overTIme OpportunItIes was so great, where the work III
questIOn was gIven outsIde the group or classIficatIOn III whIch overtIme was to
be dIstributed and was therefore lost forever, where the penod of tIme over whIch
overtIme was to be equahzed had expIred, where the delay III makIllg an offer of
an Ill-kIlld remedy was substantial, or where the agreement Itself IlldIcates a
monetary remedy rather than a remedy Ill-kIlld, arbItrators have held a remedy Ill-
kIlld to be Illappropnate and have awarded damages
As the above comments suggest, a determIllatIOn regardIllg the appropnate
remedy III a mIssed overtIme sItuatIOn Illvolves a consIderatIOn of all of the
CIrcumstances and, most Importantly, a consIderatIOn of the provIsIons III the collectIve
agreement whIch deal With the dIstnbutIOn of overtIme ArtIcle 6 6(b) provIdes that
overtIme shall first be offered to full-tIme employees on a rotatIOnal basIs, then to
permanent part-tIme employees and then to casual employees The Employer maIlltaIlls
rotatIOnal hsts for full-tIme employees and for casual employees whIch are orgamzed by
semonty Contrary to the Employer s suggestIOn, It IS my VIew that the obhgatIOn here IS
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not to ensure the equahzatIOn of overtIme III the sense that the aVailable overtIme Will be
dIstributed equally over a penod of tIme A rotatIOnal system of the sort used by these
partIes merely provIdes a dIstributIOn of overtIme OpportunItIes, Without regard to the
number of overtIme hours offered III each Illstance With such a dIstributIOn mechanIsm,
employees WIthIll a group could expenence a sIgmficant dIspanty III the amount of
overtIme offered or worked. As the Umon emphasIzed, another central feature of the
CollectIve Agreement prOVISIon IS that the overtIme OpportunItIes must be dIstributed to
two groups, With the full-tIme group of employees beIllg offered the aVailable overtIme
pnor to the casual group of employees
The decIsIons referred to above demonstrate that overtIme contraventIOns mIght
occur III one of two general ways. One IS when overtIme IS Improperly dIstributed WIthIll
a group of employees and the other IS when there has been an Improper assIgnment of
work outsIde the group entItled to It. Vice-Chair R. Brown reVIews these two types of
vIOlatIOns III OLBEU and LCBO (,'lousa) supra, as follows
OvertIme IllfractIOns may be dIvIded IlltO two broad categones. The first IS
compnsed of VIolatIOns IllvolvIllg an Improper dIstnbutIOn of work among
employees III the group entItled to It. Many collectIve agreements call for an
eqUItable shanng of overtIme among some group of employees. When work
whIch should have been gIven to one employee IS Illstead assIgned to another
WIthIll the same group, thIS Imbalance can be corrected III some CIrcumstances by
gIVIllg the aggneved IlldIVIdual an overtIme assIgnment whIch otherWise would
have gone to a dIfferent member of the group. In kIlld rehef cannot rectIfy the
sItuatIOn If the overtIme work proposed by way of remedy IS sIgmficantly Illfenor
to the work mIssed, or If the proposed overtIme assIgnment IS not aVailable WIthIll
any penod specIfied III the contract for aChIeVIllg an eqUItable dIstributIOn.
Monetary compensatIOn has been awarded III CIrcumstances hke these where III
kIlld rehef cannot redress a vIOlatIOn. The leadIllg decIsIon on remedIes for an
Improper dIstributIOn of overtIme WIthIll a group of employees entItled to It, IS
Professor Weller s award III Canada Johns Manville Co and International
Chemical Workers (1971), 22 L.AC 396 The numerous cases folloWing hIS lead
are collected III Brown and Beatty, Canadian Labour Arbitration, at 2 1423
Where another overtIme assIgnment IS able to adequately rectIfy the loss caused
by an Improper dIstributIOn of overtIme WIthIll the group entItled to It, such a
remedy has been granted because It neIther under compensates nor over
8
compensates the gnevor for the harm caused by the breach. Over compensatIOn
notWIthstandIllg, monetary rehef has been awarded where no other remedy IS
capable of repamng the harm caused by an IllfractIOn. In thIS settIllg, faced With a
chOIce between damages whIch would over compensate and III kIlld rehef whIch
would under compensate, arbItrators have opted for over compensatIOn. In dOIllg
so, they have favoured the gnevor harmed by an Improper allocaTIon of overTIme
rather than the employer who caused the harm.
The second category of overtIme vIOlatIOns Illvolve an Improper assIgnment of
work to persons outsIde the group entItled to It, IllcludIllg assIgnments fallIllg
outsIde the bargaIllIllg unIt. The performance of work by someone outsIde the
proper group reduces the total amount of work aVailable to thIS group The unIon
rehes upon three cases awardIllg monetary compensatIOn where work was
performed outsIde the bargaIllIllg unIt: Dominion Stores Ltd. and Retail,
Wholesale and Department Store Union (1978), 20 L.AC (2d) 359 (0 Shea),
Shemwn Mine Cliffs of Canada and United Steel~orkers (1980),26 L AC (2d)
66 (Brmmer) 67 Ivaco Rolling Mills and United SteelHorkers (1984), 13 L.AC
(3d) 289 (Weathenll)
In each of these cases, the remedy proposed by the employer was to gIve the
gnevor an overtIme assIgnment compnsed of work whIch would have been done
WIthIll the bargaIllIllg unIt even If no vIOlatIOn had occurred. As thIS redress
would not offset the unIt s loss of work to outsIders, monetary compensatIOn was
awarded.
The CIrcumstances gIVIllg nse to the two gnevances at hand Illvolve both full-tIme
and casual employees. Gnevor Gately, a full-tIme employee, mIssed an overtIme
OpportunIty on Saturday, November 28, 1998, when the Employer offered the overtIme to
a person on the weekend overtlffie hst who was JunIor to Gately In addItIOn to full-tIme
employees, several casual employees worked the overtIme on November 28, 1998 On
November 18, 1998, the Employer faIled to offer the daily overtIme whIch followed the
afternoon shIft to the five group gnevors Instead, the Employer offered the overtIme to
employees lower on the full-tIme hst than Kennedy and Salmon and to casual employees
lower on the casual hst than Nicholson, RobbIe and Shkuratoff, many of whom worked
9
the overtIme In thIS Illstance as well, casual employees worked the overtIme whIch had
not been offered to the two full-tIme group gnevors
In both Illstances, the failure to offer the overtIme to the gnevors was Illadvertent.
The Employer offered the Ill-kIlld remedy to the Umon and the gnevors expedItIously In
the relevant first stage gnevance reports, the Employer offered Gately 7 12 hours
overtIme at hIS leIsure to make up for hIS loss and 2 hours overtIme to each of the group
gnevors. The work assIgned to the gnevors on the mutually agreeable dates "would be
productIve work as normally and regularly performed by employees III theIr appropnate
classIficatIOn and hke the work performed durIllg overtIme hours."
As noted above, the overtIme opportunItIes whIch were mIssed by the full-tIme
gnevors not only went to full-tIme employees lower on the hst, but also went to
employees outsIde the group entItled to them, namely casual employees Employees III
the casual group become entItled to the overtIme only after full-tIme employees are
offered the overtIme In these Illstances, the Improper assIgnment of overtIme to casual
employees reduced the amount of work aVailable to employees III the full-tIme group and
the offer of an Ill-kIlld remedy to the full-tIme gnevors would not offset the loss of work
to that group Such an offer would also create a problem With other employees because
any future overtIme OpportunIty must be offered to the next full-tIme employee on the
rotaTIonal hst.
10
SImIlar dIfficultieS anse With respect to the casual group gnevors They mIssed
an overtIme OpportunIty when persons lower on the casual group hst worked the two
hours of overtIme The offer of an Ill-kIlld remedy to the casual gnevors IS comphcated
agaIll by the reqUIrement that overtIme OpportunItIes must first be offered to persons III
the full-tIme employee group Therefore, offenng an III - kIlld remedy to the casual
gnevors affects the nghts of full-tIme employees and results III a further contraventIOn of
the CollectIve Agreement.
For the foregoIllg reasons, an Ill-kIlld remedy IS not an appropnate response
havIllg regard to the nature of the vIOlatIOns and the system for dIstributIllg overtIme
AccordIllgly, the gnevances are allowed. The Employer IS dIrected to compensate the
gnevors for theIr monetary losses I Will remaIll seIzed of these gnevances should the
partIes expenence dIfficultieS III ImplementIllg thIS decIsIon.
Dated at Toronto, thIS 15th day of August, 2001
"
~...,
Ken Petryshen, Vice-Chair
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