GSB # 1492/98
OLBEU # OLB134/98
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Sousa)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Richard Brown Vice Chair
FOR THE Elizabeth Mitchell
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE Damhnait Monaghan
EMPLOYER Counsel Heenan Blaikie Barristers & Solicitors
HEARING April 13, 2000
Joe Sousa, a warehouse worker 4 at the Durham warehouse, grieved because he was not offered overtime work on Sunday, April 5, 1998. There are two issues to be decided. The parties differ as to whether the employer violated the collective agreement by not giving overtime to Mr. Sousa and, if so, as to whether the appropriate remedy is damages or another overtime opportunity.
I
As the basic facts upon which the union relies are not in dispute, it did not call any witnesses. Vic Araujo testified on behalf of the employer. He was recently appointed acting general manager of operations at the Durham warehouse and has held a number of other management positions over the last ten years. Mr. Araujo also worked in the bargaining unit for twelve years. For some of this time, he served as a zone representative for the union.
The assignment of overtime to employees is made by management using a document listing them by seniority number. If employee number 13 was the last person offered overtime on the previous occasion, for example, the first offer on the next occasion is made to employee number 14. As Sunday work attracts a double-time premium and Saturday work a premium of time and one-half, there is one list for Sunday and another for Saturday.
Mr. Sousa left his job early on Thursday, April 2 on account of illness. While at work that day, he was offered overtime work for Saturday, April 4 and he accepted. He did not report for duty on Friday due to illness.
Management determined on Friday that an eight-hour overtime shift for approximately seventy people would be scheduled for Sunday to pick orders in the warehouse. This overtime was offered to those at work on Friday. When Mr. Sousa’s name came up in the normal rotation, he was passed over and was not contacted at home. Having determined the number of volunteers for Sunday work was insufficient, the employer made arrangements on Friday for De Vere Temporary Services to provide three additional people to work on Sunday. When Mr. Sousa worked his overtime shift on Saturday, he asked to work on Sunday also. He was told his services were not required.
Mr. Araujo testified the employer’s practice is not to call a sick employee at home when seeking volunteers for overtime. This practice is based upon the premise that an employee in these circumstances should not be bothered. Mr. Araujo testified the same practice is followed for employees on vacation or “E-time”--i.e. absent for reasons such as child care or medical appointments. This has been the practice at the Durham warehouse for as long as Mr. Araujo can recall.
When a zone representative for the union, Mr. Araujo supported this practice because he felt very strongly a sick employee should not be called at home. Mr. Araujo testified he discussed this matter with his fellow zone representative, Colin Richards, and the then union president, John Miles. As Mr. Araujo did not reveal what was said during this discussion, there is no evidence as to how Messrs Richards and Miles felt about the matter. The parties agreed that, if called as a witness, Mr. Miles would testify that he has no recollection of such a conversation more than a decade ago.
As to why Sunday overtime was not assigned to Mr. Sousa when he asked for it on Saturday, Mr. Araujo testified the employer had already made arrangements for De Vere Temporary Services to supply the extra personnel required for Sunday. Mr. Araujo thought these arrangements could not be canceled on Saturday, because he believed De Vere’s office was not open that day. If De Vere’s workers had been sent home when they reported for duty on Sunday, the employer would have had to pay them for four hours of work.
In cross-examination, Mr. Araujo conceded he does not know whether management made any attempt to contact De Vere Temporary services on Saturday. He also conceded employees are sometimes called at home about overtime work.
One scenario where someone would be called at home is illustrated by the following example: employee number 13 is on the Friday afternoon shift; employee number 14 is on the Friday day shift; Saturday overtime is assigned on Friday; and there is enough overtime work for only one of these people. Employee 13, who has first claim to the overtime, does not report for duty on Friday until after employee 14 has left. In this situation, the employer may wait to ask employee number 13 when he arrives for the afternoon shift. If he declines, employee 14 would then be called at home. Alternatively, the employer may call employee 13 at home before employee 14 leaves work. In either case, someone is called at home. However, Mr. Araujo testified no such call would be made if management knew the employee concerned was not well at the time.
Mr. Araujo also gave another example of when an employee would be called at home. He testified that overtime on Sunday, April 5 would have been assigned to Mr. Sousa if he had called on Friday to say he was available in the event such overtime arose. Mr. Araujo testified Mr. Sousa would have been advised of his overtime assignment either when he worked on Saturday or by telephone if he did not work that day.
II
Article 6.6(b) of the collective agreement states:
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 and then casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee. (emphasis added)
According to the union, the employer contravened the first sentence of this article by passing over the grievor on Friday when assigning Sunday overtime. Counsel contended the “unadorned” language of the collective agreement obliged the employer to call Mr. Sousa at home on Friday when overtime was assigned for the following Sunday. In the alternative, counsel submitted the grievor should have been assigned Sunday overtime when he asked for it on Saturday.
The employer relied upon the decision in OLBEU and Liquor Control Board of Ontario (Larmand, Shotlander and Thompson), dated Nov. 29, 1996, GSB File No. 1056/94 (Stewart) interpreting article 6.6(b). In that case, the grievors were not offered overtime because they had not been trained how to operate a new computer system. Ms. Stewart ruled they were not entitled to overtime work which required them to use this system. She wrote:
As previously noted, one of the arguments advanced by the Union was that because the grievors were not responsible for the delay in training they should not be deprived of overtime opportunities lost due to the delay. I am unable to accept this submission. Both counsel referred me to a number of decisions dealing with the provisions of article 6.6(b). The essence of those decisions is that this provision is to be given reasonable and practical interpretation. While delay in training was unfortunate, it is apparent it was due to operational circumstances. I am unable to accept that a reasonable and practical interpretation of this provision would require the Employer to pay damages for loss of overtime opportunities by virtue of the grievors not receiving training at an earlier date. (pages 7 and 8; emphasis added)
Based upon this decision, employer counsel contended the collective agreement is not violated on every occasion that an employee is not offered overtime in rotation. Counsel noted the contrary conclusion would mean a breach occurred even where the employer made a determined effort to contact an employee by telephone but did not succeed. Turning to the facts at hand, counsel argued it would not have been reasonable either to call the grievor at home on Friday, while he was ill, or to have granted his overtime request on Saturday, when management was already committed to De Vere Temporary Services. Counsel cited the employer’s practice of not calling sick employees at home as proof that it was reasonable not to call Mr. Sousa.
In reply, union counsel conceded not every instance of failing to offer overtime in rotation contravenes the collective agreement. Applying the standard of reasonableness, counsel suggested the employer is not required to contact an employee absent on disability leave who is expected not to return to work for six months. However, counsel argued the employer’s conduct in this case was not reasonable.
Was it reasonable for management not to call the grievor at home? This question should be answered by striking a reasonable balance between employee and management interests. Mr. Araujo testified a call was not made because managers did not want to bother the grievor when he was sick. In other words, the employer suggested not calling an ill employee serves his or her interest in not being bothered. As the union notes, this suggestion overlooks a countervailing employee interest. Not making a call may cause an individual to miss a valuable overtime opportunity. In the instant case, an eight-hour shift at double the normal rate of pay was worth hundreds of dollars. The employer does not rely upon any interest of its own. Making phone calls does take time, but no concern was raised on this front, and managers do take the time to call employees at home in some circumstances. Management was not concerned that the grievor would not be well enough to work on Sunday. Indeed, Mr. Araujo testified the grievor would have been assigned overtime for Sunday if he called the employer on Friday to request Sunday overtime.
Weighing the competing interests raised before me, I conclude calling the grievor at home would have been the reasonable thing to do. Based upon this conclusion, I find the employer violated article 6.60(b) by not making any attempt to contact the grievor.
I have not overlooked Mr. Araujo’s testimony about the employer’s practice. In appropriate circumstances, past practice in the administration of a collective agreement is a very useful aid in the interpretation of ambiguous contract language. For example, if senior union officials acquiesce in a long-standing management practice based upon one reading of the collective agreement, these officers may be found to have implicitly agreed with this interpretation. The uses and limits of evidence of past practice are discussed in John Bertram & Sons Co. and International Assoc. of Machinists (1967), 1967 CanLII 1039 (ON LA), 18 L.A.C. 362 (Weiler). In the case at hand, there is evidence of the employer’s practice at the Durham warehouse and evidence of the conduct of at least one former union officer. However, the collective agreement applies to other facilities, and there is no evidence relating to any of them. As the collective agreement must mean the same thing for all of the facilities governed by it, the available evidence of past practice is of little assistance in interpreting article 6.6(b)
III
The union seeks monetary compensation in the amount of the overtime pay lost. According to the employer, in kind relief should be awarded in the form of a substitute overtime assignment. In particular, the employer proposes that the grievor be assigned overtime work re-packing damaged product or unloading containers. Like order picking, these duties are normally performed by members of the bargaining unit. Unlike order picking, these duties are not assigned as overtime in the normal course of events.
The purpose of contract remedies is to place the party harmed by a breach in a position as close as possible to the one which would have been occupied if no breach had occurred. Damages in the full amount of the overtime pay lost always ensure the party aggrieved is no worse off than if the agreement had not been violated. Indeed, such monetary compensation necessarily entails an element of over compensation for the grievor as an individual, because this person is paid for overtime not worked, whereas he or she would have worked for overtime pay if the infraction had not happened. In kind relief avoids over compensation by requiring the grievor to work in exchange for the money received. However, an in kind remedy sometimes cannot adequately repair the harm suffered either by the grievor as an individual or by members of the bargaining unit as a group. To avoid over compensation, arbitrators generally have awarded in kind relief so long as it redresses the loss caused by a violation. Monetary compensation has been awarded, even though it over compensates, where another overtime assignment would not redress the situation. In choosing between these two types of remedy, the central question is whether in kind relief would adequately repair the harm caused by a breach.
Overtime infractions may be divided into two broad categories. The first is comprised of violations involving an improper distribution of work among employees in the group entitled to it. Many collective agreements call for an equitable sharing of overtime among some group of employees. When work which should have been given to one employee is instead assigned to another within the same group, this imbalance can be corrected in some circumstances by giving the aggrieved individual an overtime assignment which otherwise would have gone to a different member of the group. In kind relief cannot rectify the situation if the overtime work proposed by way of remedy is significantly inferior to the work missed, or if the proposed overtime assignment is not available within any period specified in the contract for achieving an equitable distribution. Monetary compensation has been be awarded in circumstances like these where in kind relief cannot redress a violation. The leading decision on remedies for an improper distribution of overtime within a group of employees entitled to it, is Professor Weiler’s award in Canadian Johns Manville Co. and International Chemical Workers (1971), 1971 CanLII 1948 (ON LA), 22 L.A.C. 396. The numerous cases following his lead are collected in 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 within the group entitled to it, such a remedy has been granted because it neither under compensates nor over compensates the grievor for the harm caused by the breach. Over compensation notwithstanding, monetary relief has been awarded where no other remedy is capable of repairing the harm caused by an infraction. In this setting, faced with a choice between damages which would over compensate and in kind relief which would under compensate, arbitrators have opted for over compensation. In doing so, they have favoured the grievor harmed by an improper allocation of overtime rather than the employer who caused the harm.
The second category of overtime violations involve an improper assignment of work to persons outside the group entitled to it, including assignments falling outside the bargaining unit. The performance of work by someone outside the proper group reduces the total amount of work available to this group. The union relies upon three cases awarding monetary compensation where work was performed outside the bargaining unit: Dominion Stores Ltd. and Retail, Wholesale and Department Store Union (1978), 1978 CanLII 3443 (ON LA), 20 L.A.C. (2d) 359 (O’Shea); Sherman Mine Cliffs of Canada and United Steelworkers (1980), 1980 CanLII 4006 (ON LA), 26 L.A.C. (2d) 67 (Brunner) 67; Ivaco Rolling Mills and United Steelworkers (1984), 1984 CanLII 5203 (ON LA), 13 L.A.C. (3d) 289 (Weatherill).
In each of these cases, the remedy proposed by the employer was to give the grievor an overtime assignment comprised of work which would have been done within the bargaining 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. In Dominion Stores, Arbitrator O’Shea wrote:
The work should have been performed by the grievors as overtime work at overtime rates. Since they were not given the opportunity to perform the work and thereby increase their earnings during the week in question, and since the work has been permanently lost to them and indeed to all members of the bargaining unit, the only appropriate remedy is to direct that they be reimbursed for the wages they would have earned had the company not contravened the provisions of art. 33.05 of the collective agreement. (page 364 and 365; emphasis added)
In Ivaco Rolling Mills, Mr. Weatherill wrote:
It was the assignment of work to persons outside the bargaining unit that was in violation of the collective agreement, and it was for that reason that the overtime opportunity must be said to have been lost irrecoverably. (page 292)
Sherman Mine Cliffs appears to have been decided on similar grounds. For present purposes, the important point is that the remedy proposed by the employer in each of these cases failed to replace the work lost to the bargaining unit as a whole. Rather than granting in kind relief which would not compensate the unit for its collective loss, these arbitrators awarded damages even though this remedy over compensated the grievor.
Counsel for the employer relies upon two awards addressing a different sort of in kind remedy for the assignment of work to someone outside the group to whom it belongs: Labatt’s Ontario Breweries and Brewery, Malt & Soft Drink Workers (1993), 1993 CanLII 16797 (ON LA), 36 L.A.C. (4th) 289 (Gray); Labatt’s Ontario Breweries and Brewery, General and Professional Workers Union (1996), 1996 CanLII 20286 (ON LA), 56 L.A.C. (4th) 407 (Howe). These two cases involved the same employer and union, notwithstanding the difference in the reported name of the bargaining agent. In both cases, overtime work, which should have been assigned to a permanent employee, was given to a temporary employee who was a member of the same bargaining unit. And in both cases, management proposed by way of remedy an “artificial” assignment paid on an overtime basis. This assignment was artificial in the sense that the work would not have been done by a permanent employee, as overtime or otherwise, if no violation had occurred.
In the first Labatt’s case, Arbitrator Gray awarded monetary compensation because the employer had delayed in offering its proposed remedy. As a result of the passage of time, in kind relief could not equalize the distribution of overtime among permanent employees within the period specified by the collective agreement. In the absence of such delay, and in the absence of any other complicating factor such as deliberate disregard for contractual obligations, Mr. Gray suggested an artificial assignment might be the appropriate remedy, because it would redress the collective harm caused to permanent employees by the violation. This conclusion rested upon the unusual nature of the collective bargaining relationship in question. Mr. Gray wrote:
The distinguishing feature in this case is that some work of the sort which was performed on overtime on the occasion in question is regularly performed on straight time by [temporary] employees who do not belong to the group to which such work must be assigned if it is to be performed on an overtime basis. Temporary employees do not have a right to the work which the employer is free to assign to them, nor do they acquire such a right by being scheduled to perform it. Thus, there are frequent occasions on which the applicable collective agreement leaves the employer free to have such work performed either by temporary employees on straight time or by permanent employees on overtime. These occasions are relatively easy to identify; their occurrence is easy to predict. Since an hour of work by a permanent employee on overtime costs roughly three times as much as an hour of work by a temporary employee on straight time, one can say with some confidence that these are not occasions on which overtime opportunities would arise for permanent employees in the normal course. Since the proposed remedy involves a selection by the grievor from work opportunities which temporary employees have already been scheduled to perform on straight time, there can be no serious doubt that the resultant overtime opportunity is “artificial” ... (pages 303 and 304)
Arbitrator Howe was faced with similar facts and the same contract language, but this time the employer made a prompt offer of in kind relief. Agreeing with the above passage from the Gray award, Mr. Howe ruled the remedy proposed by the employer was appropriate. As the artificial assignment would not have gone to permanent employees if the agreement had not been violated, assigning this work to one of them would offset their collective loss arising from the violation.
The first Labatt’s award acknowledged an important limit on the use of an artificial assignment as a remedy. This limitation arises where there is uncertainty as to whether the work proposed would have been assigned to the aggrieved group of employees even if there had been no breach of the collective agreement. Mr. Gray wrote:
The circumstances may make it difficult to distinguish, or to be confident of distinguishing, an “artificial” opportunity from a “natural one”. ... Where an arbitrator is left in genuine doubt whether implementing a proposed in kind remedy will effectively redress the loss caused by a breach of the collective agreement without itself constituting another breach, that remedy should not be employed. (page 303)
Here Mr. Gray suggests an arbitrator should award a monetary remedy which over compensates the individual grievor rather than an in kind remedy which runs a significant risk of under compensating the group for its collective loss.
In the instant case, overtime work which should have been assigned to the grievor was done by agency personnel supplied by De Vere Temporary Services. In other words, the violation of the collective agreement caused a loss of work to the bargaining unit. The work proposed by the employer as a remedy would be performed by members of the bargaining unit in any case. In the normal course of events, this work would be done by a member of the unit at the regular rate of pay and not as overtime. As a remedy for the violation, the employer suggests the grievor do such work as overtime. Payment of the overtime rate for this work would be artificial, but there would be no artifice in the assignment of this work to the grievor as a member of the bargaining unit. As the work normally would be done by an employee in the unit, assigning it to the grievor at the overtime rate would not redress the unit’s collective loss of work caused by the improper assignment made to an outsider.
The sort of in kind remedy suggested here differs markedly from the sort considered in the two Labatt’s cases. In those cases, the artificial assignments proposed by the employer would offset the collective loss of permanent employees by giving their group work which otherwise would have been done by temporary employees. In contrast, the in kind remedy proposed in the case at hand would not bring into the bargaining unit any work to replace that lost to the unit as a result of the breach. In this sense, the remedy proposed here is analogous to the sort of in kind relief rejected in the three cases cited by the union where work was assigned to someone outside the bargaining unit. Damages are appropriate here for the same reasons as damages were awarded in those cases.
The grievance is allowed. The employer is directed to compensate the grievor for his monetary loss.
Dated at Toronto, this 26th day of April, 2000