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Home My WebLink About1985-1216.Lawrence.88-07-121216185 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE. BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD Between: OLBEU (Jack Lawrence) Griever and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: J. Forbes-Roberts Vice-Chairman I. Freedman Member G. Milley Member For the Griever: E. Mitchell Counsel Koskie & Minsky Barristers and Solicitors For the Employer: M. H,ines COUIlSt?l Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearing: August 26, 1987 \ \, - -DECISION At the relevant time the instant grievor Mr. Jack Lawrence was a Warehouseman 4 with the Liquor Control Board ~of Ontario ("the Employer"). The grievor alleges that the Employer breached Article 5.6 (b) of the collective.-agreement. -The Article provides: 5.6 (b) Where there is a requirement for overtime to be .worked, it shall first~be assigned on a rotational basis. Where sufficient psrson- nel do not volunteer, such overtime shall then be offered to part-time store cashiers or temporary ~employees and failing sufficient volunteers shall be assigned to full-time employees on a rotational basis. The collective agreement- obviously provides a strict formula for the distribution of overtime. The evidence revealed that certain facts are agreed to by the parties. They are as follows: (1) The warehouseman's 4 job can be divided into two main .functions. First, the ,Assembler .function, which involves continuous -1lfting. Second, the Checker function which involves no .lifting:- .Warehousemen typically work in teams of two. (2) For the ,most apart on both regular and.-overtime-~shlfts Warehousemen are paired and equitably split the Assembler and-Checker functions. - 2 - (3) (4) (5) (6) (7) (8) (9) (10) In March of 1985, the grievor sustained an injury to his back. The injury subsequently required correc- tive surgery. While the surgery was judged success- ful, it precluded the grievor from doing sustained heavy lifting. Following the griever's convalescence, the Employer and the Union were able to come to agreement allow- ing the griever's return to the classification of Warehouseman 4 - but exclusively performing the non- physically demanding Checker's~ function. This arrangement was not required by the collective agree- ment. In addition to the grievor there are at least two other employees who for whatever reason are required to perform only the non-physically demanding Checker's job. These two above mentioned employees are assigned overtime in accordance with Article 5.5 (b). There is a great deal of overtime at certain peak periods of the year when the demand for L.C.B.C. products is high - Christmas, New years, the day in February when the Visa bill comes in, and any other occasion upon which the general populace is driven to drink. Because of its non-physically demanding nature the position of Checker is considered a "plum" job. The employees and the Employer had agreed upon a system whereby on both regular and overtime shifts employees bid for the Checker jobs on a straight seniority basis. In October, the grievor was offered one (1) overtime opportunity as a Warehouseman. Because it involved the heavy Assembler function he was unable to accept. In November and December of 1985 there was an as yet undetermined amount of overtime. The grievor was not offered any. Upon inquiry he was told by Management that because he could not perform the Assembler function that he did not have to be asked about overtime opportunities. . - - 3 - Union Counsel argued; (1) The language of Article 5.6 (b) establishes a man- datory scheme of overtime distribution with which Management has not complied. The only restriction on the language is jurisprudentially imposed. That restriction is that the language must be interpre- ted fairly by both Union and Management. Refusing a disabled employee hiss negotiated rights under the collective agreement is not "reasonable." (2) Organization of a full overtime shift of exclusively Checker's work was inconvenient for the Employer was not impossible. Inconvenience was no defence to contravening obligations under the collective agree- ment. (3) Having once accommodated a disabled individual and accepted him as an employee, the Employer is not entitled to be selective about which collectively bargained rights attach to that employee. The Union's fourth argument addressed remedy, a matter with which this Board was specifically asked not to deal with at this stage. We therefore will not address it. It was the Employer's evidence (and ultimately argument) that while it is aware twenty-four (24) hours in advance of the number of Warehousemen it will need for an overtime shift, it could not know until the actual commencement of the shift how many strictly Checkers were required. The Employer thus argued (1) (2) (3) - & - Because the Employer had extended itself once vis a y& regular shift work and allowed the grievor to perform only modified duties did not mean that it had to turn a non-contractually obligated privilege into a right vis a vis overtime. While an Employer could not circumvent the rotational assignment contemplated by the agreement on the basis of favouring the best qualified employees, it was entitled to expect employees to be capable of performing the full range of functions contemplated by the overtime assignment. There is in place a consensual system between the emnlovees and the Employer. "Plum" jobs are awarded on a seniority basis. To accede to the griever's request (founded in a claim under the collective agreement) would be to disturb the arrangement. :ronically both parties relied primarily upon the same case, re:Galli, F.S.B. 689/84. At page 5 Arbitrator Roberts states: Of course, it is recognized by the Board that Article 5.6 (b) of the Collective Agreement, like any other provisions, must be interpreted and applied by both Union and Management in a reasonable manner. In this regard, it would not seem unrea- sonable for Management to rely upon an overtime schedule which was made up of a reasonable amount of time in advance of the overtime. It would appear inappropriate to read Article 5.6 (b) as requiring Management to make a continual update of its over- time schedule up to and including.the last minute before the overtime is actually worked. Union counsel, relied on the paragraph's first sentence, Employer counsel on its third. (Apparently neither was particularly taken with the second sentence). -, ;- P 1 - 5 - We start by discounting the consensual overtime bid system. While it is a system desired by the majority and apparently works well, it is clearly, outside the collective agre'ement. This matter must be determined strictly on the terms of that agreement as negotiated by the employees' legal bargaining agent (the Union) and the Employer. The grievor is clearly an "employee" within the meaning of the Collective Agreement's Preamble, its Article 1.1 (a) and Article 5.6 (b). As such the grievor is entitled to the benefits negotiated for him by his legal bargaining agent. Article 5.6 (b) clearly states that overtime will be distributed amongst certain classes of Employees on a rotational basis. Clearly the Employer was incorrect to cease to ask the grievor about overtime opportunities. As an "employee" within the contractual context, he was entitled to be approached on a rotational basis. But to what overtime work is the grievor entitled? On his regular shifts he is granted the concession of modified duties. Neither party argued that this was contractually mandated. It is an extra-contractual concession the Employer chose to grant the grievor without which he could not have, returned to work ' following his injury. It is not unlike the consensual overtime work system which the Employer reached with the other Warehousemen. - 6 - Being outside the collective agreement, for the following reasons it is equa.lly unenforceable vi6 a vis the collective agreement. There .is no question that the collective agreement does not reauire the Employer to provide modified duties for a disabled employee. This is a concession voluntarily granted to the grievor. Article 5.6 (b) states that "Where there is a reauirement for overtime..." the work shall be distributed by a certain pre-determined scheme. Only the Employer is in a position to determine what overtime work is required. Because the collective agreement does not mandate that modified duties be provided for disabled workers, an employee is contractually entitled only to lay claim to the overtime functions deemed required by the Employer. If the Employer determines that Warehousemen are required for overtime, then only persons capable of performing the full range of this function need to be considered, in appropriate order. Should a full overtime shift of Checker's work arise coincidental with the griever's entitlement under the rotation system, he is entitled to the right of refusal under the scheme prescribed by Article 5.6 (b). We are faced with two (2) "side deals," one regarding bidding for overtime work on the basis of seniority and the other regarding allowing an employee to perform modified - 7 - duties. Neither are mandated by the collective agreement, and thus neither are enforceable through the instrument's procedures. The grievance is hereby dismissed. Dated at Toronto, this 12th day of July , 1986. *---.. D.JJ. Forbes-Roberts, vice-Chairman &+ ,. I. Freedman, Member - G. Milley, Member