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HomeMy WebLinkAbout1977-0032.Herrington et al.78-04-14CAqWN EMPLOYEES 416/598 0688 Suite 2100 GRIEVANCE SETTLEMENT 180 Dundas Street West BOAR0 TORONTO, Ontario M5G lZ8 Between: Before: IN THE MATTER OF ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD L.C.B.O. E L.L.B.O. Employees' (The Grievor) Association (Herrington et al) And The Crown in Right of Ontario Liquor Control Board of Ontario (The Employer) G. W. Adams - Chairman J. W. Henley - Member I. K. Levack - Member For the Grievor: Mr. W. R. Angus Legal Administrator L.C.B.O. & L.L.B.O. Employees' Association 3063 Southcreek Road Mississauga, Ontario For the Employer: Mr. Bruce Stewart Hicks, Morley, Hamilton Toronto, Ontario Hearing: Suite 2100, 180 Dundas St. West Toronto, Ontario March 17th, 1978 in ‘) -2- _ In this case the Association grieves that the Liquor Control Board of Ontario changed the normal hours of work of store employees in many L.C.B.O. stores contrary to Article 5.2 of the collective agreement between the parties. The parties agreed that the Grievance Settlement Board should attempt~to render a decision based upon a very general stipula- tion of facts and that the parties would then resolve their more detailed differences in the light of this decision. The principal provision of the collective agreement in this grievance is Article V, paragraph 5.2 dealing with the norma hours of work. It provides: 5.2 The Boards shall prescribe the number of hours in each working day not exceeding eight hours for the various c@partments or establishments of the Boards. Normal hours of work will be as follows: stores: 9:OO a.m. to 6:00 p.m. (day shift) 2:00 p.m. to 9:00 p.m. (second shift - 9:00 p.m. closing) 3:oo p.m. to 1O:OO p.m. (second shift - 1O:OO p.m. closing) **5:30 p.m. to 12 midnight (second shift - midnight closing) **No 15 minute rest periods. Warehouses: *8:00 a.m to 4:30 p.m. (day shift) *No 15 minute rest periods during the afternoon. **4:30 p.m. to 11:OO p.m. (night shift) **No 15 minute rest periods. Head Offices and Warehouse Offices (Monday through Friday, inclusive): ***8:30 d.m. to 4:30 p.m. - from 1st Monday in Septem- ber till last Friday in June (inclusive) l **8:15 a.m. to 4:15 p.m. - during times other than as specified above ***No 15 minute rest periods during the afternoon Duty Free Stores: 6:OO a.m. to l:oo p.m. 1:00 p.m. to 8:00 p.m. 2:oo P.rn.~ to 9:oo p.m. 4:oo p.m. to ll:oo p.m. Normal hours or work may be subject to change by the Boards depending upon local conditions. -3- Such hours will not apply to those employees classified as Liquor Licence Inspectors and Station- ary Engineers.' However, where employees in these classifications perform authorized work in excess of eight hours per day or forty hours per week,~ they shall be paid at overtime rates as defined in Article 5.6 and 5.7. This grievance arises because employees inmany stores are being asked to work hours that do not, in their entirety, fall within these so-called normal hours. A number of such situations were described to the Board. All or most stores in Ontario open to the public at 10:OO~a.m. The product is delivered to the stores by Canada Cart- age on a periodic basis consistent with a store's volume and sales experience. At many store locations the deliveries are made on a weekly basis, on the same day each day, and before 9:00 a.m. At those locations employees are requested to report to work at 8:00 a.m. instead of 9:00 a.m. and they finish work an hour earlier than they do on the other days of the week. The Association takes the position that such variations in the regular work hours is prohibited by paragraph 5.2 and/or that overtime should be paid for those hours of work falling outside the "normal hours of work." The Board was advised that such variations in the normal hours of work tend to be confined to the larger stores and that they increase in frequency at busy times of the year, for example at Christmas time. The Board was further advised that the practice of asking employees to come in early to unload the trucks has been taking place for at least 15 years. Representatives of the employer explained'the practice ” -4- in terms of customer service and store efficiency. The employer wants to have al~l of.its .product shelved before customers~come into the store in order to facilitate service. The product is then in place and all~the employees can devote their time to customer service. Moreover, by finishing~the rather physical task of unloading the trucks before 10:00 a.m., the employees have an opportunity to wash up before having to deal with customers. Truck delivery schedules appear to be determined by Canada Cartage and only those stores where the product is delivered before 9:00 a.m. are affected by ,this parti- cular variation in the normal hours. A second and somewhat similar variation in hours centers on the taking of inventory. Inventory counts appear to be made on a monthly basis and, once again, the employer wishes to complete this exercise before customers enter the store. Indeed it is essential tha,t the count be completed before daily sales begin if the inventory count is to be accurate. Accordingly at those stores, typically the larger ones, where the inventory count cannot be completed between 9:00 a.m. and 10:00 a.m., the employees are asked to report earlier and in some cases as early as 7:00 a.m. But as with the early report- ing to unload trucks, the employees continue to work an eight hour day and thus on the day in question leave tiork.earlier than they otherwise would. This practice too has been going on for many years. A third type of variation appears to be the institution of normal hours of work in some stores that do not coincide with those mentioned in'the collective agreement on any day of-the week. A number of such stores in the Toronto area where this is the case were brought to the Board's attention and the employer advised that these varia- , tions were determined by the locals store management having regard to customer patterns; store volume; and staffing effectivenes,s. Again the larger stores seem to be the greatest source of this kind of variation. A fourth variation pertained to non-store locations involv- ing: (1) the Data Processing Department located at the employer's head office and the work schedules for the reception area and watchman at this same location; (2) Outy Free Stores; and (3) the Kipling Warehouse. None of the work schedules at these locations conform with the normal hours of work stipulated in the collective agreement. Data process- ing times (8 a.m. to 4 p.m.; 4 p.m. to 9:45 p.m. and 8:30 p.m. to 3:15 a.m.) have been in place for at least five years and are set up to maximize the use of the equipment. The reception and watchman times (3 p.m. to 11 p.m.; 11 p.m. to 7 a.m.; 7 a.m. to 3 p.m.) have been in place for 5 years and are to accommodate employee needs for public transportation. Duty Free Stores times (5 p.m. to 12 midnight and 8:30 a.m. to 4:30 p.m.) have been in operation for four years or more, to accommodate late night departures which are becoming more frequent, and.to provide two or three regular staff for continuity throughout busy day tiours. At the Kipling warehouse (7 a.m. to 3.p.m.) the times are to ensure delivery by 2 p.m. of material required by the Distribution Depot for their night shift. A final variation is more employee specific. For example, wine consultants appear to work between the hours of 10 a.m. and 1~0 p.m. and the actual hours of the wine consultant at any store location IL -6- depend upon the'pattern of customer inquiries. In addition to these variations the Associations advised the Board of six other changes in the.normal hours of work but all of these changes, it submitted, had been effected with its consent. The first was a change in head office hours that is now recorded in the collective agreement. The next three were changes at warehouses located in London, Ottawa and Thunder Bay respectively. These changes were made at the request of employees and the Association's President was asked to sign a "Memorandum of Understanding” on each occasion. The Board drafted these documents and the one for the Ottawa warehouse change reads: MEMORANDUM OF UNDERSTANDING SUBJECT: HOURS OF WORK FOR THE~OTTAWA WAREHOUSE It is agreed between the Liquor Control Board of Ontario AND the L.C.B.O./L.L.B.O. Employees' Association that the hours of work for the Ottawa Warehouse be amended from 8:00 a.m. - 4:30 p.m. day shift with a one hour lunch period, to 8:OO a.m. - 4:00 p.m. day shift with a half hour lunch period effective Monday, February 28, 1977. For the Board For the Association w. 3. mans A. G. Edmunds DATED at Toronto this 16th day of February, 1977. The last two changes relate to the institution of staggered hours at the head offices of both the Liquor Control Board (L.C.B.O.) and'the Liquor Licence.Board (L.L.B.O.) Both these changes were made at the request of the employees. The employer objected to any evidence pertaining to changes effected by the Liquor Licence Board because that Board is a separate employer under the agreement. However, the evidence -7- of Robert MacDougall, L.C.B.O. Staff Relations Officer, indicates a very close working.relationship between then Boards for the purposes of,collective bargaining and contract administration. The letters documenting the change in hours in relation to the Liquor Licence Board staff will therefore be reproduced. The letters documenting the subsequent change for the Liquor Control Board head office were all drafted after this dispute had arisen and are of no evidentiary value. Accordingly they are not reproduced. The L.L.B.O. change was recorded~ in the following manner. June ZOth, 1977. Mr. R. A. Ferquson, Business Administrator, LCBO/LLBO Employees' Association, 3063 Southcreek Rd., Mississauqa, Ontario L4X 2E9 Dear.Mr. Ferquson: Re: Staggered Working Hours for LLBO Clerical Employees I wish to acknowledge your letter to me of the 15th of June concerning the above-captioned subject. You are correct in your understanding that the LLBO is in favour of maintaining the staggered hours program which we have been operating on a trial basis for the past few months. As you have informed me that the Employees' Association is also in favour of the program I can confirm to you that we will maintain it indefin- itely. We'have no objection in principle to placing within the new agreement language to formalize our present temjzr- ary arrangement, however, I would leave it to the actual negotiating body to arrive at mutually acceptable term- inology. I would like to take this opportunity to thank you and the Association for their co-operation in this matter. Yours sincerely, P. Boukouris, Director of Administration. - a -, June 15, 1977 Mr. P. Boukouris Director of Administration Liquor Licence B&r-d of Ontario 55 Lakeshore Blvd. East Toronto, Ontario Re: "Staggered Working iiours" for L.L.B.O. Clerical Employees Dear Mr. Boukouris: Please be advised that we have conducted a vote of members of the Bargaining Unit involved in the "Staggered Working Hours" project. The results of this vote was 54 employees in favour, with only 3 opposed. I understand from you, that your Board is in favour of the "Staggered Hours" as well and such being the case, I would assume you are willing to continue these hours, pending finalization of our current contract negotiations for renewal of our Aqreement, at which time these hburs will be incorporated in the new Agreement. Once again, on behalf of our members affected, I would express gratitude for your cooperation. Yours truly, RAF:kd cc: 3. Mideo, Personnel Manager L.L.B.O. R. A. Ferquson Business Administrator The Association argues that the only exception, to the normal hours of work provided for in the agreement can be those situations where unusual conditions centering on service to the public require it. Examples of such unusual conditions were, the Association submitted, the Duty Free Store at Toronto International Airport and the Store at Union Station in Toronto. At both locations the flow of customers at unique times requires a deviation from the normal hours of work and the.sole purpose of the "local conditions".provision in paragraph 5.2 was to meet the needs of such situations. On the other hand the changes 9> 3 i r> -9- in hours to deal with inventory counts or to unload trucks were not made in response to unusual customerpurchasing,patterns but rather were made in response to general conditions existing across the Province. For that reason those changes, the Association urged, could not be justified under the "local conditions" exception. The Association also emphasized that the Liquor Control Board had sought its concurrence each time general changes were made at ware- house locations, indicating that the employer understood the cont- ractual nature of paragraph 5.2. Counsel for the employer submitted that all the changes could be justified either by having regard to meaning of "normal" in the opening paragraph of Article 5.2 or under the local conditions exception contained in that same paragraph. With respect to the periodic changes due to inventory counts and the unloading of trucks he submitted that a new norm had not been created. These changes were an exception to the usual hours worked by employees in a week. Alternatively, he contended that these changes, as well as all others, were in response to local conditions. The changes were made to achieve better customer service and were dependent on local trucking schedules; store volume; and staff 'size and effectiveness. He asserted that the memoranda of understandings between the parties did not contradict this position in that those changes were all made at the insistence of employees and it would therefore not be unusual for an employer to want such changes recorded in "black and white." 3 ;s P - 10 - DECISION The relevant provision of the collective agreement is Article V which reads as ~follows: ARTICLE v HOURS OF WORK AND OVERTIME 5.1 For the purposes-of this Article: (a) "holiday" means the day on which a holiday falls‘ or the day that is allowed in lieu thereof when the employee is required to work on the day of the holiday, as defined in Article VI. (b) "overtime" means a period of work computed to the nearest fifteen minutes and, (i) performed on a regular working day in excess of the regular working period and consisting of at least fifteen 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. 5.2 The Boards shall prescribe the number of hours in each working day not exceeding eight hours for the various departments or establishments of the Boards. Normal hours of work will be as follows: Stores: 9:OO a.m. to 6:00 p.m. (day shift) 2:oo p.m. to 9:00 p.m. (second shift - 9:00 p.m. clos- ing) 3:00 p.m. to 10:00 p.m. (second shift - 1O:OO p.m. closing) **5:30 p.m. to 12 midnight (second shift - midnight closing) **No 15 minute rest periods. Warehouses: *8:00 a.m. to 4:30 p.m. (day shift) *No 15 minute rest periods during the afternOOn. **4:30-p.m. to 11:OO p.m. (night shift) **No 15 minute rest periods. Head Offices and Warehouse Offices (Monday through Friday, inclusive): ***8:30 a.m. to 4:30 p.m. - from 1st Monday in Septem- ber till last Friday in June (inclusive) ***8:15 a.m. to 4:15 p.m. - during times other than as specified above ***No 15 minute rest periods during the afternoon. _ Duty Free Stores: 6:OO a.m. to l:oo p.m. 1:00 p.m. to 8:00 p.m. 2:OO p.m:to 9:oo p.m. 4:oo p.m. to 11:oo p.m. - 11 - Normal hours of work may be subject to change by the Boards depending upon local conditions. Such hours will not apply to those employees classified as Liquor Licence Inspectors and Stationary Engineers. However, where employees in these classi- fications perform authorized work in excess of eight hours per day or forty hours per week, they shall be paid at overtime rates as defined in Article 5.6 and 5.7. 5.3 Hours per week may vary according to the classification of the position and in accordance with the Schedule in which the classification is listed (Schedule B attached to this dgreement). 5.4 (a) Hours of work shall be scheduled at least a full week in advance for each establishment. Days off for store employees will be on a rotational basis unless otherwise mutually agreed to in writing by the employee and'his supervisor. However, the Board agrees to provide for employees who work in stores other than those that observe a weekly closing day , eight .(8) Saturdays off on a rotational basis as part of their regular days off each contract year. Days off for employees working a day shift in double shift stores will be on a rotational basis, Monday through Friday, unless otherwise mutually agreed to in writing by the employee and his supervisor. sat- urday will normally be the day off for employees engaged on the second shift. The provision whereby (8) Saturdays off on a rotational basis each contract year will be exclusive of vacation periods, paid holidays and~leaves of absence with pay as defined in drticle VI. (b) A store employee may, with proper notification, opt to have his/her scheduled day off occur immediately before and after his/her vacation period. (c) Where an employee works in a store that observes a weekly closing day the employee is allowed to substitute the Saturday as the employee's weekly day off, in the week the paid holiday occuzs provided the Boards' operations are not disrupted. 5.5 where an employee is required to report to work at 12:00 noon or thereafter, overtime shall be computed on the basis of his regular scheduled work day reduced by one hour. In addition he shall receive one-half hour off with pay for a lunch period. 5.6 (a) Authorized work performed in excess of the employee's regular work day shali be paid at the rate of one and one half times the regular hourly rate of the employee unless otherwise provided in this Agreement. - 12 - All work performed on any second consecutive day of over- time shall be paid at double the employee's regular rate of pay.* I Where there is a requirement for overtime to be worked it shall first be offered to full time employees on a voluntary basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to part- time employees and failing sufficient volunteers shall be assigned to full-time employees on a rotational basis. (c) Liquor Licence Inspectors who perform author- ized work under Section 5.2 shall take lieu days in payment of such overtime worked providing work demands on the Inspectors are such to permit the Board to grant such lieu days no later than the end of the nwnth~ next fol- lowing the month in which the overtime occurred. Where this is not the case the~In.spactors shall be paid overtime rates in accordance with Section 516(a) . 5.7 Except as provided in paragraph 5.5 overtime rates shall be applicable from the time an employee completes his basic work day determined from the time.he commences work, but only if a minimum of fifteen (15) minutes in excess of the basic hours are worked, and overtime rates shall be paid to the nearest fifteen (15) minutes. An employee who works three hours in excess of his basic working hours shall receive one-half hour off with pay for a lunch perio'd. 5.8 Authorized work performed in excess of five regular days during any week, or five days less one day for each paid holiday (as defined in.Article VI) during that week, shall be paid at the overtime rates, subject to the other provisions of this Agreement. 5.9 Scheduled overtime worked shall be paid the incum- bent in accordance with the provisions herein established even though such overtime may subsequently be declared unnecessary. 5.10 Where an employee is required to report for any period of work on a paid holiday (as defined in Article VI) or other day that is not a ~regular working day, or on his/ her scheduled day off he/she shall be entitled to a credit of a minimum of four hours of pay at overtime rates, but where an employee performs work for more than four hours after being so ~required to report for work, he/she shall be entitled to a minimum of eight (8) hours of pay at the over- time rate. 5.11 Two or more kinds of overtime will not be paid for the same hours worked. r .i:, 8 . z - 13 - 5.12 The Boards agree to pay's premium of $4.00 per day to an employee acting for the Store Manager in his/her absence. Such premium will not be paid to an Assistant Manager in charge of the second shift. .However, it would be applicable to the person desig- nated to act for the Assistant Manager in his/her absence while working the second shift. 5.13 There shall be one fifteen minute rest period during each half shift or each half work day. Such rest period shall be at times designated by the Store Manager 0~‘ Department Head (except with respect to rest periods referred to in Article 5.2). 5.14 Where employees are required to work on a shift basis such employees shall work the shifts on a rotational basis unless otherwise mutually agreed to in writing by the employee and his supervisor. 5.15 Stationary engineers and watchmen scheduled to work on shift commencing at 12:00 noon or thereafter shall be paid a premium in the amount of $2.50 for . each completed shift. *Note: It is understood that an employee is to receive double rates only when the employee works on the employee's second scheduled day off. Management begins with the authority to schedule hours of work even though it is not specifically provided for in Article 3 which deals with management's rights (See us Northern i?lectric Office Empl*yeeAss'n and Jorthern Electric Co. Ltd. (lgSB), lg LnC 125, 126 (Weatherill). However, by Article 5.2 it has agreed to place limits upon the exercise of this power by stipulating what the "normal hours of work" will be. Stipulations similar to the hourly ranges contained in Article 5.2 have been interpreted by many boards of arbitration to prohibit management from scheduling hours of work out- .side the agreed upon times on a regular basis and, in conjunction with the overtime provisions, to require the payment of overtime in relation to any scheduled hours falling outside those times stipulated , as the normal hours of work. (See Re Northern Electric Co. Ltd., (Supral; i, f+ :; ‘> - 14 - Re Printing Specialties & Paper Products Union, Local 466 and Interchem Canada Ltd. (1969), 21 L.6.C. 46 (Weatherill); Re United Glass and Ceramic Workers, Local 248 and Canadian Pittsburgh Industries Ltd. (1972)‘ 24 L.A.C. 402 (H.D. Brown); R&St. Clair Chemical Ltd. and Oil, Chemical and Atomic Workers, Local 9 - 14 (1973), 5L.A.C. (2d) 50 (Ii. D. Brown);and British Leyland Motors Canada Ltd. and Adams and U.A.W., Local 525, (1974), 74 CLLC 14,216 (Ont. Div. Ct.). In Northern Electric (supra) the company established a seven- day continuous shift operation for certain office employees in the face of an "Hours of Work" provision stipulating their regular hours of work to be Monday to Friday. The Board of arbitration concluded that the employer had violated the collective agreement and in this regard it wrote: The "regular hours" provided for by art. 21(l) are still in effect for the vast majority of the employees in the bargaining unit. This fact, of course, yives no comfort to those employees who have been deprived of the benefit of that provision. The provision sets out what "will be" the "regular hours of work for office employees"; it is not merely a statement of policy or of "pious hope" , and it applies to office employees generally - not to "nest" office employees, as one of the company's submissions would suggest. No doubt, as we have indicated, work may be scheduled~ at hours other than the regular hours set out. It would seem, although the issue is not before this Board, that work might properly be scheduled for less than the weekly hours provided for. Certainly, as we have said, overtime work is contemplated by other provisions of the agreement. A provision for "regular" hours, then, does not prohibit the scheduling of other, "irregular" hours. The hours now scheduled for the computer room employees, however, are not "irregular" in this sense: they are quite clearly "regular" hours for these employees, and they are not the reyular hours provided for in the agreement. We have no doubt that the scheduling of hours is the prerogative of manaye- ment , even though it.is not specifically provided for in art. 3, which deals with management's rights. The company has, however, agreed to limit itself in the exercise of this prerogative by the clear wording of art. 21. This limitation .is made even noze clear by the express provision in art. 21 (2) as to the changing of starting and stopping times. There is no such provision as to the changing of the days on which regular hours of work may be scheduled. In InterchemCanada Ltd. (supra.) a similar scheduling Cbanbe in the face of~similar contractual language stipulating the regular work week to be Monday to Friday was held to attract over- time pay but was not prohibited per2 because in that case the new seven-day schedule of work was said to be of a temporary nature. In arriving at that conclusion the board applied the following reasoning. \ Having regard to the material provisions of the collective agreement, it is clear that the company did not have the right to alter the "regular work week". By art. 6, s-ss. (2) and (3), the arrange- ment of hours is subject to alteration by agree- ment, but the general pattern of Monday to Friday work is clearly established, and could be altered only by amendment to the collective agreement. The general management right to schedule is plainly restricted by the provisions of art. 6. It is never- theless also clear from art. 6(l) that the company could require work to be done outside the regular hours. Such work, however, periodically falls outside of the regular work week defined in art. 6 of the agree- ment. Certainly the company is not entitled unilater- ally to alter the agreed provisions respecting the regular hours of work. If, therefore, the work now being scheduled on a regular basis outside the hours provided in the agreement is proper at all, it is proper only on the basis that such work is overtime work, and must be paid for at overtime rates. If this were not so, and the work now scheduled on a regular basis is not regarded as overtime with respect to that portion falling outside the reqular hours contemplated by the agreement, then the company may simply disregard the provisions of art. 6 with impunity. For the board to reach this conclusion would be contrary to the pro- visions of the collective agreement and clearly wrong. It is accordingly our conclusion that the company my not alter the regular hours of work, and that work scheduled outside those hours must be treated as over- time. We do'not, however, conclude that the company - 16 - may not require work to be done according to the schedule which it has implemented. In ou* view, the reference in art. 6 of the collective agree- ment to a "regular work week" is intended as a reference to certain times as a basis for over- time calculation, and not a prohibition against the scheduling of work on a different basis. This distinction'is pointed out in Re Northern Electric Office Employee Ass'n and Northern Electric Co. Ltd. (1968), 19 L.A.C. 125, the cases on which it is based being discussed at p. 128. The matter is of course tb be deter- mined having regard to the particular provisions of the collective agreement in each case. In the instant case, art. 6(l) of the collective agreement specifically provides that the pro- visions relating to hours of work shall not be construed as limiting the right of the company to request employees to perform work outside the normal hours. Thus, "normal hours" should be read as referring to the "period beyond which work, when performed, is paid for at an overtime rate": cf. Re Int'l Brotherhood of Electrical Workers, Local 1590, and Canadian Radio Mfg. Corp. Ltd. (1955), 5 L.A.C. 1969. In Canadian Pi&sburgh Indu&ries Ltd. (Sup& the "flOfT7al scheduled times of work" in the collective agreement were, Monday through Friday, 8:OO a.m. to 12:00 noon and 12:30 to 4:30 p.m. Against this wording the employer changed the grievor's work schedule to Tuesday to Saturday on an alternating basis and he was paid straight time for all such work regardless 'of his work on Saturday. The board of arbitration concluded that the employer had violated the collective agreement by scheduling work for the grievor "on a normal basis outside of the 'normal scheduled times' set out Gin the collective agreement)" and directed that the employer pay him at overtime rates for the hours'falling outside the,normal scheduled times. In St. Clair Chemical Ltd. (supra) the "normally assigned hours" were eon a Monday to Friday basis according to the collective agreement and the grievors were scheduled to work Wednesday to Sunday. I \ - 17 - The board of arbitration found that the employer had violated the agreement by not paying.the grievors the.overtime rates for all hours they worked on their regularly scheduled days off. The board reasoned: There is no question that the scheduling of hours is a management function and that management can schedule hours which are not "normal" within the meaning of art. 12.02 as indeed any overtime hours would be. ~That however, is not the same as establish- ing such abnormal hours as normal or regularly sched- uled, in which case the overtime provisions might possibly never be applicable. In view of the party's agreement in art.,12 with regard to normal hours of work, to find that the company could implement a new schedule of Wednesday ,to Sunday without regard to art. 12.03 would fly in the face,of the clear meaning of art. 12 which sets out the normal hours of work. If those normal hours are exceeded then the employees are entitled to overtime under the provisions of art. 12.03. Thus, if Article 5.2 of this collective agreement only provided for the "normal hours of work" as specified and nothing more, the list of 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. We would be of the view that the variations due to the unloading of trucks and taking of inventory are not irregular assignments but rather involve the regular scheduling ofwork outside of the normal work hours. Additional variations around Christmas time and the like might constitute irregular assignments but even temporary changes in the scheduling of work appear to attract overtime pay (See Interchem (sbpra)). However Article 5.2 goes on to provide that the "In>ormal hours of work may be subject to change by Boards depending upon local conditions." The Association argued that this provision only permitted changes where service to the public required deviations from the schedules provided for in the agreement and cited the example of the "Duty Free" store at Toronto International Airport. But the dif- ficulty with this argument is that the language used does not limit the application of the provision to such circumstances or to this interpretation of the requirements of customer service. The employer characterized the variations due to inventory counts and the unloading of trucks as changes required by local conditions and aimed at better customer service. These particular variations do depend on store size and customer patterns. However the Association argued that changes in trucking patterns and the hiring of more staff would eliminate the need for the work schedule changes and thus could not be considered as amounting to local conditions. If this Board was interpreting the meaning of "local condi- tions" in the abstract the Association's submission in this regard would have considerable force but these variations in work schedules have been' in effect for many, many years. These variations have not suddenly been instituted but rather the Association and its members have known about them or should have known'about them for, in some cases, the full duration of this particular collective bargaining relationship. For this reason, the,Board prefers to give the phrase "local conditions" a broader interpretation than that proposed by the Association.' We are of the opinion that, on the available evidence, all the variations brought to the Board's attention and to which the Association has not consented are supportable under this proviso of Article 5.2. The only situation where we have some doubt is the reception and,watchman variation but these variations have not been grieved. Our reason for doubt will become apparent from the following observations. We wish to emphasize that management cannot exercise its discretion under the local conditions exception in such a way as to render its earlier agreement to the normal hours of work nugatory. Were the employer able to effect x 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 work schedule, unsup- ported by 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 intro- duced at either the Head Office or'warehouse locations at the reques of the affected employees. These changes have not been in response to any particular local condition as far as we understand and thus required the consent of the Association in order to modify the contractually agreed'upon normal work hours contained in the col- lective agreement. For all of these reasons the grievance is~dismissed. Dated at Toronto this 14th day of April 1978. G. W. Adams Chairman I concur J. W. Henley 'Member I concur I. K. Levack Member