Loading...
HomeMy WebLinkAbout1981-0041.Gerrard.82-06-30278/81 IN THE MATTER OF AN ARBITmTION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD. Between : OLBEU (G. Gerrardl -and- Grievor T:?e Crown in Right of Ontario (Liquor Ccntrol Board of Ontario) Employer Before: S.B. Linden, Q.C. .- Vice Chair-man K. O'Neil - Member W. Lobraico - Member For the Grievor: E. Baker, General Secretary Ontario Liquor Boards Employees' ,Union For the Employer: M. P. Moran, Counsel Hicks, Morley, Hamilton, Stewart & Storie Hearing: January 15,.1982 -2- The grievance in this matter, fil at the hearing, is essentially as follows: "In accordance with Article 21.4 of the collective ed as Exibit ii1 aqreement~ between the Liquor Control Board of Ontario and the Employees' Union, I do hereby grieve that contrary to Article 5.6 (a) I have been denied overtime pay and; further that I have been ordered to work other than my scheduled shift, contrary to Article 5..14". The Union argues that the Employer ~has ~improperly chanced the Grievor's shift in an attempt to introduce an additional shift and establish it as a practice. TheUnion argues that the Collec- tive Agreement provides that shifts should be posted a week in advance and that the hours of the various shifts should comply with those set out in Article 5.2 of the Aqreement. The store this particular case is open from 10:00 a.m. to 10:00 p.m. and the-Union asks if the Employer has the right to schedule a in combination of normal working shifts during a week. The Emplcyer maintains that management-can change the hours worked on a shift from day to day so long as they are within the normal hours. ~. For example, the Employer says that it can schedule an employee to be off on a Monday and work Tuesday, Wednesday, Thursday on day shift from 9:00 a.m. to 6:OO p.m., work a second shift on Friday from 3:00 p.m. to 1O:OO p.m. and then work a regular day shift again on Saturday from 9:00 a.m. to 6:00 p:m. The issue in this case really revolves around the definition of the .word "shift" - is a shift a week of working,the same hours as the Union maintains or is a shift the hours worked by an employee on an individual working day? -3- :4r . Michael Sullivan, the President of the Local, has- had considerable experience with the Union and says that in his experience people are normally scheduled fcr a week on the day shift or a week on the second shift. Mr . Sullivan pointed out that the number of shifts an individual store maintains depends on the number of employees working in the store. A high 'volume store is qenerally a double shift store as are some stores that have extended hours, that is, stores that are open late on Thursday and Friday nights. Apparently, there are over 600 L.C.B.O. stores in the province and approximately 90 of them are double shift stores. It is ccmmon practice to have people starting at different times during a working day but, Mr. Sullivan said that he had never experienced a split. shift, that is, workinq 9:00 to 6:00 one day and 3:00 to 10:00 the next day in the same week. A former employee of the L.C.B.O., Mr. Dave Buchanan testified and indicated that he had been asked to work a split shift while working at the L.C.B.O. and grieved. The Grievor in this case, Mr. Gerrard, testified and said that he had once worked for Store #183 in Brampton and his shift was changed from the day shift to the second shift. This was the first time it happened to him and that incident eventually was resolved. Mr . Gerrard is a Union representative and testified -4- that he hadnever heard about split shifts before his own experience but said that he did hear about some employees who had complained about the practice but no one had grieved as far as he knows. He was asked why he thought the L.C.B.O. was doinq this and he said that it was to avoid paying 0vertim.e and also to accommodate the busy periods. Both parties have asked this Board to remain seized in the event there are probiems in the implementation of this award. On cross-examination, Mr. Gerrard agreed that splitting shifts would cut down on overtime. It would qi.Je the Eoard more flexibility to accommodate busy periods durinq a store's business hours. But, the Grievor still felt that a shift meant that you worked the whole week on days, that is, 9:00 to 6:00 or a whole week on nights, that is, 3:00 to lO:OO, with no chance of times worked during the week, even if posted in advance. He felt that only the Store Manager could have his shift changed like this. Mr. Tony Marsella, Store Manager of L.C.B.O. Store %183, testified on behalf of the Employer. He has been with the Liquor Board since 1965. He said that he did schedule a ~"swinq" shift just befpre Christmas because he-needed experienced employees on the second "night" shift. He says that normally he is reluctant to do this. He also said that the Grievor was not the only employee who had to split his shift. The whole staff had to do one "night" shift during the m.onth. He said that he, had worked elsewhere where swing shifts were used. Indeed, he said that he himself worked a swing shift when he was a Xanager at another double shift store. M- L. Ball, the Assistant Director of Store Operations, also testified. He said that swing shifts are used, general11 as required, depending on the volume of business. He said that an individual Store Manager makes the decisions and there is a qreat deal of fluctuation between the days of the week and the times of the year as far as business is concerned. Fe said that he worked a swing shift himseif in 1968 and as a Manager he implemented it sometime between 1972 and 1974. He said he did a quick survey himself on the stores between Oshawa and Oakville and 25~of 40 stores in the survey used a swing shift, as required. There was some agreement between the parties regarding a "compressed" work week relative to some stores where the Xanaqer reserves the right to "swing shift". (.For example, the 3:00 p.m. to 1O:OO p.m. shift is only 7 hours long but is a premium shift.) Mr. Ball inferred that the Agreement contemplates the existence of a swing shift by allowing for this premium. He also said that he is not aware of any store in which the employees have agreed -6- not to work a swing shift - it is not something to be agreed to, but just part of the working arrangements. Nanaqement reserves the right to use the swing shift when they feel that it is required. There are times when a nucleus of experienced people in a store is required and the Manager has to have the right to resort to a swing shift, if necessary, in order to have these experienced staff in the store. Each store is different and it depends on the circumstances. The Union;in its argument, asks if the Employer can introduce a new daily "shift" into an already scheduled weekly shift. The Union argued that the Board should'look at a.shift as a period of, time covering a week. The work schedules are posted a week in advance,and reflect a full week of work and it should consist of-a week of day shift or a week of second or night shift. Union Counsel says the word "shift" is used in the Collective Agreement with no other modifying words. ne maintains that "shift" refers to a week of working days or a week of working nights and not a combination of the two. He acknowledged that the Employer -. should be able to operate efficiently but that this could be accomplished by bringing in employees on overtime. i-:e also says that the Collective Agreement between the part,ies does not provide for altering shifts and that should be done at negotiations, not by interpretation of the Collective Agreement. The relevant provisions of the Collective Aqreernent acre as follows: -7- "5.1 For the purpose of this Article: (a) 'holiday' means a 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 6. (b) '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 and consisting of at least fifteen (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. (cl the starting time of the work week shall be i4onday 12:Ol a.m. 5.2 The Boards shall prescribe the number of hours in each working day not exceeding eight (8) hours for the various departments or establishments of the Boards. Normal hours of work will be as follows: Stores: 9:00 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) 3:00 p.m. to 10:00 p.m.(second shift -10:00 p.m. closing) **5:30 p.m. to 12 midnight (second shift - midnight c:osinq! **No fifteen (15) minute rest periods. Warehouses: *8:00 a.m. to 4:00 p.m. (day shift) *No fifteen (15) minute rest periods during the afternoon **4:00 p.m. to lo:30 p.m. (night shift) ~ **No fifteen (15) minute rest periods .L.C.B.O./L.L.B.O. Head Office and FTarehouse Offices (Xcnday throuqh Friday, inclusive) : Between 7:30 a.m. and 9:30 a.m. ***to between 3:30 p.m. and 5:30 p.m. ***No fifteen (15) minute rest periods during the afternoon Duty Free Stores: 6:00 a.m. to 1:00 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:OO p.m. Normal hours of work may be subject to chanqe by the Boards depending upon local conditions. -8- Such hours will not apply to those employees classified as Liquor Licence Inspectors and Stationary Engineers. However, where employees in these classifications perform authorized work in excess of.eiqht (8) hours per day or forty (40) hours per week, they shall be paid at overtime rates as defined'in Articles 5.6 and 5.7. 5.3 Hours per week may vary according to the classi~fication of the position and in accordance with the schedule in which the classification is listed (Schedule "B" attached t0.thi.s Agreement). 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 aqreed to in writing by the employee and his/her supervisor. However, the Board agrees to provide for employees who work in stores, other than those that observe a weekly closing day, ten (10) Saturdays off on a rotational basis as part of their regular days off each contract year. Days off for employees ,workinq 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/her supervisor. Saturday will normally be the day off forthe employees engaged on the second shift. The -provision whereby ten (10) 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 this Agreement. (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 occurs provided the Board's operationsare not disrupted." Counsel for the Employer maintains that when an employee is brought in to work for a day, he will work one' of the "sets" or "shifts" of hours set'out in Article 5.2. He says the Collective Agreement fixes a starting and a finishing time for a particular -working day. He says there is no restriction which says that when the work schedule is prepared in a,dvance the Employer is I -9- prohibited from scheduling an employee to work different hours on different days. He says the Employer is restricted to scheduling an employee to work the "normal" hours set out in Article 5.2 and he says that the Employer has complied with that restriction in this case. He maintains that a shift as defined in the Collective Agreement is a period of aaday, not a week Or a month. In his argument Counsel emphasized the "Management Functions" clauses of the Collective Agreement and stated that the Union is simpl:J trying to get overtime pay for its members in circumstances where it is not warranted. Counsel stated the Employer posts the schedule a week-in advance so that employees know what hours they are working and there is nothing in the Collective Agreement that requires the Employer to obtain the permission or consent of the employees to the hours scheduled for work. He points out that the "swing shift" is used only as required and that is why it was not contemplated in Article 5.4 of the Collective Agreement. He referred to a number of authorities including American cases that point out that employees are scheduled to work a normal number of hours. He says there is good reason for doing this and even the Grievor acknowledges that it is more'economical and efficient and cuts down overtime. He maintains there is no .: breach of the Collective Agreement. This arrangement has been in place for a long time and does not depend on consent. The practice existed long before there was a Union and he says that - 10 - Article 5.14 was not included in the question of swing shifts but was inc equal distribution of shifting. Agreement to address the luded to provide for This Board has carefully considered this matter and we cannot find anything in the CollectiTle Agreement or in the authorities cited which prevents the Employer from scheduling what amounts to a solit shift. Article 5.2 sets .out normal hours of work but it does not preclude a split shift. Article 5.4 requires that the hours of work shall be scheduled at least a full week in advance for each establish- ment. Once the Employer's schedule for a given work week has been established, whether it be-for a week of days, a week of nights or fcr a split shift, it cannot be changed unilaterally by the Employer unless the employee is advised at least one week in advance of which hours he~or she will be working. That is clear from Article 5.4, but any combination of daily shifts within the given work week as specified in Article 5.2, providing they are normal hours of work, are permissible by the terms of the Collective Agreement. Accordingly, we find that the scheduling of hours of work in this case are not in contravention of the Collective Agreement and the grievance is, therefore, di.smissed. -7 - 11 - DATED at Toronto, Ontario xhis 30th day of June, 1952. S.B. Linden, Q.C. '- Vice Chzirman "1 concur' (See addendum attached) K. O'Neil - Member . ..A‘ . Addendum of timber K. 0'Nei.l It is with some regret that I find I must concur wit:? the Vice-Chaiman's award in this matter. It was very clear from the hearing in this matter that the scheduling provisions of the present collective agreement 1ea.w room for misunderstanding between the par:ies, as well as for scheduling arrangements that are somewhat onerous & :he employees. The real "rub" of the swing.shift arrangement is dbviously the fact that an employee can work until 1O:OO p.m. one evening and then be schedultid for work the very next day at 9:00 a.m. Unfortunately, the language at the moment-does not prohibit that arrangement. HCMeE!r, the referexes in the collective agreement to the "shift basis" of scheduling, wichou: naking explicit the meaning of the term, invite comparison to vhat any given employee experiences as his own "shift basis". For the griever in this case, it was clear that the LCBO had always scheduled hia on a basis that did not include a swing shift, and he, like others similarly scheduled, had come to see that as the "shift basis" referred' to in the collective agreement. June 23. 1982