Ontario Liquor Boards Employees Union (Goncalves) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2000 CanLII 20520

GSB # 134/99

OLBEU # OLB168/97

Under

Before

BETWEEN

Ontario Liquor Boards Employees Union

(Goncalves)

Grievor

and -

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE Richard Brown Vice Chair

FOR THE Ursula Boylan GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors

FOR THE John Lewis EMPLOYER Counsel Heenan Blaikie Barristers & Solicitors

HEARING February 17, 2000

Decision

When John Goncalves filed this grievance on June 24, 1997, he was a causal employee working at the Queen’s Quay Store in Toronto. The facts giving rise to the grievance are illustrated by the schedule for casual employees in January of 1997. On certain days, the grievor worked from 12:00 to 5:00 p.m. and at least one casual employee with less seniority worked from 4:00 to 9:00 p.m. According to availability sheets completed by Mr. Goncalves, he was available to work from 12:00 to 9:00 p.m. The union contends he should have been scheduled for this entire interval by virtue of his seniority. If his shift had been from 12:00 to 9:00, the union notes, he would not have been entitled to overtime for work in excess of eight hours, because he would have been paid for eight hours only and have an unpaid lunch hour.

Sam Meli is the store manager. Asked about the shifts from 12:00 to 5:00 and 4:00 to 9:00, he testified the overlap in these shifts provides extra coverage during a busy time. He attributed the peak between 4:00 and 5:00 to people shopping downtown on their way home from work and to local restaurant operators buying their supplies for the evening. The store manager’s contention that the overlap in shifts provides extra coverage was disputed by the grievor. He testified, when working on cash from 12:00 to 5:00, he is relieved by another casual employee starting at 4:00 who merely takes over from him and provides no extra coverage. According to Mr. Meli, the casual employee reporting at 4:00 first counts his or her float and then performs other duties until 5:00.

Article 31.7 of the 1996-98 collective agreement states:

Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department.

The parties agree the applicable work unit in this case is the store where the grievor worked.

In OLBEU (Kruczaj) and Liquor Control Board of Ontario, GSB No. 1359/93, decision dated March 25, 1996, Ms. Briggs considered article 31.7 of the previous collective agreement which is identical to the current article. In that case, the employer established a shift from 12:00 to 8:00 p.m. and offered it to the grievor. He declined the offer because he was not available to work before 4:30. When he asked to work from 4:30 to 8:00, the employer refused to divide the shift in two. In dismissing the grievance Ms. Briggs wrote:

We are of the view that if the union were correct in its interpretation it would lead to an absurd result. It would require, in every store of the LCBO, the manager scheduling the most senior casual employees for every hour of their availability so long as that period of time is not less than two hours. We are of the view that this is not the intended result of article 31.7. (page 16)

The reference to a two-hour minimum arises from article 31.1(b) prohibiting a shift of lesser duration.

The general principal emerging from the Kruczaj decision is that the collective agreement does not fetter the employer’s power to fix the start and finish times of the shifts to be allocated to casual employees. Article 31.7 comes into play only after those shifts have been established. This article requires management to distribute the predetermined shifts on the basis of seniority. For present purposes, the important point is that an employee has a seniority claim only to those shifts created by management for which he or she is available. In Kruczaj, the grievor failed precisely because he was not available for part of the shift on offer. Ms. Briggs declined to alter the established shift by awarding part of it to the grievor.

Union counsel sought to distinguish the facts in Kruczaj from those at hand on the basis that Mr. Goncalves is available to work from the beginning of the 12:00 to 5:00 shift until the end of the 4:00 to 9:00 shift. This argument misses the point. The grievor is unable to provide the services of two people during the one-hour overlap in these shifts. In other words, having accepted the 12:00 to 5:00 shift, the grievor was no longer available for the first hour of the 4:00 to 9:00 shift. In this sense, he was unavailable for part of an established shift, just as the grievor in Kruczaj was.

In the absence of bad faith, the employer’s decision to schedule overlapping shifts should not be second guessed by this board. Scheduling by arbitration would be highly impractical. As the union has not alleged bad faith, I need not comment on the evidence relating to the reasons for overlapping shifts in this case.

The grievance is dismissed.

Dated at Toronto, this 23^rd day of February, 2000.