GSB#0236/98

UNION#98U041

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Correctional Services)

Employer

BEFORE Gerry Lee Vice-Chair

FOR THE David Wright, Counsel

GRIEVOR Ryder, Wright, Blair & Doyle

Barristers and Solicitors

FOR THE Len Hatzis, Counsel

EMPLOYER Legal Services Branch

Management Board Secretariat

HEARING January 30^th, 2001 and April 30^th, 2001.

Introduction

This case concerns a policy grievance dated April 1, 1998, alleging that the employer was violating article Cor. 8.02 of the collective agreement at the Guelph Correctional Centre (GCC). In a med/arb. session that took place on January 30^th, 2001, a significant number of issues were resolved with respect to the local overtime agreement for Classified Correctional Officers. However, the parties could not reach agreement on the question of an appropriate remedy where a Correctional Officer (CO) had been denied an overtime opportunity to which she was entitled. In this regard, the parties agreed to submit a Statement of Facts and Issues, which would contain certain hypothetical scenarios for this Board to address. By proceeding in this manner, the parties were hopeful that my decision would enable them to resolve approximately 75 outstanding overtime grievances at GCC. The matter resumed on April 9, 2001, where counsel for the union and the employer made submissions based on the Statement of Facts and Issues (below).

Statement of Facts and Issues

Background:

1. The parties have agreed to split the issue of liability and remedy with respect to the group and policy grievances before the Grievance Settlement Board. The parties are seeking a generalized decision from the arbitrator on the issue of remedy only in the context of certain fact situations mentioned below. The fact situations are merely hypothetical and are designed to reflect situations where liability is not contested.

2. The sole purpose for this referral to the Grievance Settlement Board at this time is to assist the parties in dealing with the numerous individual grievances filed in relation to the local overtime agreement and also assist with resolving any future grievances and disputes in the context of the local agreement at Guelph.

3. The employer disputes any allegation that it has violated any of its obligations under the current collective agreement or the relevant local agreement in relation to the subject matter of these grievances.

Facts:

4. OPSEU and the Ministry entered into an Overtime Distribution Agreement for Correctional Officers at the Guelph Correctional Centre dated June 5, 1998. The Agreement states that the parties agree that the overtime policy is to ensure a fair and equitable distribution of overtime at the Guelph Correctional Centre, and is in keeping with Article Cor. 8 of the Correctional Bargaining Unit Collective Agreement.

5. There have been temporary exceptions to the local agreement during the holiday season, which have been agreed to by the parties.

Scenarios:

1. The computer system which tracks overtime hour’s malfunctions and consequently an inaccurate accounting of hours for overtime hiring purposes results. A classified correctional officer (CO A) with actual lesser hours relative to another classified correctional officer (CO B) is not contacted for overtime consideration for a day shift on January 12 per the local agreement and accepted procedures. CO B works the overtime shift instead. CO A has a history of requesting numerous overtime shifts in any given week and further has requested overtime shifts subsequent to January 12. On January 13, the employer offers CO A the opportunity to work another overtime shift of her choice in light of the computer malfunction.

What effect, if any, do the following alterations have on the issue of remedy:

(i) the employer offers CO A the opportunity to work another overtime shift of her choice but this offer is made 2 weeks later on January 26.

(ii) the employer offers CO A the opportunity to work another overtime shift of her choice but this offer is made three months later on April 12.

(iii) the employer offers CO A a special opportunity for overtime consisting of the same number of hours missed. The special opportunity to work overtime is to be utilized at CO A’s discretion. The understanding is that this opportunity would be in addition to any overtime that the employer would otherwise find it necessary to schedule, and whether or not the employer would otherwise have required anyone to work overtime.

(iv) the employer offers CO A a special opportunity for overtime tied to training. Specifically, CO A still needs to complete various components of her mandatory training, which in this example is restraint training. The restraint training course is scheduled to occur on a day when CO A is already scheduled to work at the institution. Under normal circumstances, CO A would be paid her eight hours pay to complete the training. In light of the overtime issue noted above, the employer offers to pay CO A twelve hours pay for the upcoming eight-hour training day.

(v) the employer does not offer CO A another overtime shift in light of the fact that CO A worked an overtime shift the very next day.

(vi) CO A generally requests only one overtime shift per month, which in this example was January 12.

(vii) the employer and the union learn that CO A’s request was deliberately overlooked by the scheduling person in charge of assigning overtime.

(viii) there is evidence to suggest that a vast number of requests filed by correctional officers in the preceding months have been innocently overlooked by the employer. These omissions reflect a sizeable amount of hours in relation to the actual overtime hours assigned.

2. Using the same fact scenario as number one, CO A’s overtime shift is lost to CO C, an unclassified correctional officer.

3. CO D alleges that on February 9, he requested to work an overtime shift on February 10 per the accepted procedures. The requested overtime shift is provided to another CO who has more hours of overtime accrued than CO D. Although the employer disputes that CO D made the request for the specific shift in question, the employer ultimately accepts that CO D made the request and offers him another overtime opportunity for the very next day, February 11.

What effect, if any, do the following alterations have on the issue of remedy?

(i) the employer offers CO D the opportunity to work another overtime shift of his choice to be taken within the next thirty days.

(ii) the employer and the union learn that CO D’s request was deliberately overlooked by the scheduling person in charge of assigning overtime.

(iii) there is evidence to suggest that a vast number of requests filed by correctional officers in the preceding months have been innocently overlooked by the employer. These omissions reflect a sizeable amount of hours in relation to the actual overtime hours assigned.

(iv) the employer offers CO D the opportunity to work another overtime shift of his choice but this offer is made 2 weeks later on February 26.

(v) the employer offers CO D the opportunity to work another overtime shift of his choice but this offer is made three months later on May 12.

(vi) the employer offers CO D a special opportunity for overtime consisting of the same number of hours missed. The special opportunity to work overtime is to be utilized at CO D’s discretion. The understanding is that this opportunity would be in addition to any overtime that the employer would otherwise find it necessary to schedule, and whether or not the employer would otherwise have required anyone to work overtime.

(vii) the employer offers CO D a special opportunity for overtime tied to training. Specifically, CO D still needs to complete various components of her mandatory training, which in this example is restraint training. The restraint training course is scheduled to occur on a day when CO D is already scheduled to work at the institution. Under normal circumstances, CO D would be paid her eight hours pay to complete the training. In light of the overtime issue noted above, the employer offers to pay CO D twelve hours pay for the upcoming eight-hour training day.

(viii) the employer does not offer CO D another overtime shift in light of the fact that CO D worked an overtime shift the very next day.

(ix) CO D generally requests only one overtime shift per month, which in this example was February 10.

4. On April 25, a manager hires CO E for an overtime shift. It is revealed that the overtime shift was not required by the employer on April 25 and that the manager made a mistake in assigning overtime on that day. CO F learns of the April 25^th assignment and alerts the employer to the fact that he had requested the same overtime shift and that he had priority over CO E in terms of assignment of overtime. CO F insists that he should be compensated regardless if an error was made or whether overtime was actually required by the employer. CO F works overtime on April 26^th.

What effect, if any, do the following alterations have on the issue of remedy:

(i) the employer offers CO F another overtime shift of his choice to be taken within the next thirty days.

(ii) the employer offers CO F another overtime shift of his choice to be taken within the next ninety days as CO F is leaving on holidays for the next month.

The Statement of Facts and Issues makes reference to the Overtime Distribution Agreement (the Local Agreement) and article Cor. 8.2.1 of the Correctional Bargaining Unit Collective Agreement. The relevant sections of the local agreement and article 8.2.1 are reproduced below:

COR 8.2.1. In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

Local Agreement

Preamble:

The parties agree that the overtime policy is to ensure a fair and equitable distribution of overtime at the Guelph Correctional Centre, and is in keeping with Article Cor. 8 of the Correctional Bargaining Unit Collective Agreement.

6. The Scheduling Officer/Shift Manager will ensure the Officer with the least amount of accumulated overtime hours is called first in order to equalize overtime distribution. Hours will accumulate over a Two Calendar Month period after which the previous months totals will be eliminated. For example, June and the ongoing month (July). Entering August, June totals will be dropped and accumulation will be based on July/August and so on.

7. Should an individual have a concern in regards to the hiring of a specific overtime shift, they should contact the Scheduling Manager directly with their concerns at the earliest time. The Scheduling Manager will review the individual’s concern and, if necessary, demonstrate the reason for the overtime hire which is reflected on the overtime computer screen, in keeping with this agreement. Where possible, when an error is discovered, the Scheduling manager shall attempt to rectify the situation with the affected individual.

UNION ARGUMENT

Counsel for the union takes the position that the employer has entered into an agreement with the local union regarding the distribution of overtime and is bound by that agreement. Counsel stated that both the collective agreement and the local agreement are silent with respect to remedy. The union contends that if a CO was improperly denied an overtime assignment, the only appropriate remedy would be monetary compensation and not an “in-kind” remedy, i.e. a future opportunity to work at overtime rates.

The union argues that the agreed upon system for distributing overtime at GCC is neither a seniority-based system, nor is it a rotational system. According to the union, the system is “unique” and may, in some form, resemble an equalization system.

The union acknowledged that the arbitral jurisprudence, in general, establishes that there is a presumption that a remedy in kind may be appropriate in certain instances where there has been a lost overtime opportunity. Counsel argued that it is also well established that an in-kind remedy will not be granted in situations where it would simply create further violations of the collective agreement. For that reason, the union stated that the system in place at the GCC was simply not amenable to in-kind remedies.

The union described the system at GCC as a voluntary system whereby COs interested in overtime assignments indicate their interest and availability on a daily basis. On any given day, a CO can select from a wide range of different shift options. If an overtime opportunity arises, the scheduling officer checks the overtime list to see which COs have signed up for the shift in question. The scheduling officer then attempts to fill the shift by contacting employees in the “pool”, beginning with the CO with the least amount of accumulated overtime hours, until the shift is filled. The union argues that this is the extent to which overtime equalization applies.

Counsel for the union stated that the pool of COs interested in overtime changes on a daily basis. Some employees might sign up for one or two shifts per month, others may sign up on a more frequent basis. Consequently, as the pool of available COs changes on a daily basis, the employee identified as having the least amount of accumulated overtime hours would also, in most instances, change.

Counsel stated that when an error is discovered at GCC, the actual remedy proposed by the employer is to award the aggrieved CO a replacement overtime shift. This is achieved by placing the CO’s name to the top of the list for the next available overtime opportunity. Counsel submitted that as a result of this approach, the pool becomes distorted when an otherwise eligible CO is bumped from the top of the list in order to accommodate the CO who missed the overtime assignment. Union counsel submits that this approach merely leads to additional problems or grievances from other COs.

With respect to the “special” overtime opportunities, union counsel argues that the “supernumerary” assignment is still work that belongs to the CO overtime group and by assigning the work to CO A it would be “lost” to the rest of the group. Further, the proposed assignment would provide no economic value to the employer, that is, the employer would be paying for a task that was not really necessary. Union counsel added that both the supernumerary and training assignments are a recipe for disagreement between the parties and would be difficult to implement. Counsel stated that both proposals would create further problems in that they would adversely affect the rights of other COs. Counsel added that the training assignment does not fully compensate the grievor, as it only results in four hours extra pay when the grievor had in fact lost 12 hours pay (8 hours pay at time and one half).

In summary, the union submitted that if the Board has any doubt whether a proposed remedy in kind will effectively redress the loss caused by an overtime breach, without itself causing another breach, a monetary remedy should be ordered.

Union counsel made reference to the following authorities in support of his case. Re: Dominion Colour Corp. and Teamsters Chemical, Energy and Allied workers, Loc. 1880 (1997), 64 L.A.C. (4^th)(O’Neil); Re: Cambridge (City) and A.T.U., Loc. 1608 (1997), 65 L.A.C. (4^th) (Tims); Re: OLBEU and Liquor Control Board of Ontario (Sousa) dated April 13, 2000, GSB File No.1492/98 (Brown); Re: OLBEU and Liquor Control Board of Ontario (De Petrillo et al) dated August 2, 1989, GSB File No.117 –119/89 (Gorsky); and Re: OPSEU and Ministry of Correctional Services (Chard) dated January 21, 1994, GSB No. 1398/93(Kaplan).

EMPLOYER ARGUMENT

Firstly, the employer submits that as a starting point, one must look to article 8.2.1 of the collective agreement and the preamble of the local agreement in order to determine the appropriate remedy. Counsel stated that article 8.2.1. requires the employer in the assignment of overtime to be “…fair and equitable after having ensured that all its operational requirements are met.” The preamble of the local agreement reiterates this provision when it describes that the purpose of the local agreement is to “… ensure a fair and equitable distribution of overtime at Guelph Correctional Centre, and is in keeping with Cor.8 of the Correctional Bargaining Unit Collective Agreement.”

The employer acknowledged that there is no specific mention of remedy either in the collective agreement or the local agreement. Employer counsel noted that article 13 of the local agreement comes closest to discussing a remedy when it refers COs with “concerns” to the Scheduling Officer to “…attempt to rectify the situation with the affected individual”. Employer counsel submitted that as there is no specific mention of remedy in either agreement, and based on overtime distribution being subject to “..operational requirements”, the employer is entitled to enjoy “flexibility” with respect to remedy and overtime distribution.

Secondly, counsel submits that Article 6 of the Local Agreement requires the employer to “equalize” overtime opportunities within a rolling two month time period. Employer counsel described the overtime distribution system in place at GCC as an equalization system and that built in to such a system is an “automatic correction factor”. That is, if a CO was improperly denied an overtime opportunity, she would not be credited with the overtime hours missed. The error, therefore, is automatically corrected because the CO would establish her right to subsequent overtime assignments within the time frame for equalization. As a result, the affected CO would not be disadvantaged in relation to other COs in the overtime group. Counsel submitted that because of this factor, the Board must find that if a breach occurs, the equalization system itself automatically provides a built-in remedy.

Thirdly, counsel asks me to carefully consider the employer’s proposal regarding “special” overtime opportunities and to conclude that this approach reconciles the interests of both the employer and the employee. In each case, the remedies proposed do not require the employer to pay for time that is not worked. Furthermore, both scenarios confirm that there was no deliberate breach of the overtime protocol by the employer, nor was there any indication of a persistent pattern of mistakes. Counsel contended that both proposals would not adversely affect the rights of other COs, nor would they lead to a breach of the local agreement.

Employer counsel referred to the following authorities in support of his case: Re: Canadian Johns-Manville Co. and International Chemical Workers Union, Local 346 (1971) 1971 CanLII 1948 (ON LA), 22 L.A.C. 396 (Weiler); Re: Canadian Johns-Manville Co. Ltd. and International Chemical Workers Union, Local 346 (1974) 12 L.A.C. (2d) (Burkett); Re: PLH Aviation Services Inc. and I.C.T.U., Local 1 (1994) 45 L.A.C. (4^th) (Hicking); Re: Cabot Carbon of Canada, Ltd and Oil, Chemical and Atomic Workers, Local 9-14 (1980) 28 L.A.C. (2^nd) (Palmer). Counsel also submitted an article from Marguerite Jackson titled: Lost Overtime Opportunities: Cash or In Kind Remedies (The origin of this article was not provided).

DECISION

The sole purpose of this policy grievance referral to the Board is to provide a generalized decision on the issue of remedy only in the context of certain fact situations described in the Statement of Facts and Issues. Hopefully, this decision on the issue of remedy will also assist the parties at GCC to deal with the outstanding grievances and any possible future disputes regarding the local overtime agreement. With respect to the outstanding grievances, the employer currently disputes any allegation that it has violated its obligations under the collective agreement or the relevant local agreement.

I preface my comments therefore, by noting that while I hope the findings set out herein will be of assistance to the parties at GCC, the individual circumstances of any particular case must be considered in assessing the appropriate result.

At common law, the ordinary remedy for breach of contract is an award of damages. In calculating the amount, the object of a court is not to punish the party in breach for the wrong inflicted, but to compensate the injured party for the loss suffered. The object of an award of damages is to place the plaintiff in the same position as if the contract had been performed, in so far as a monetary award can accomplish that goal.

There is, however, a range of remedies available to an arbitration board in addition to monetary compensation. In some cases, from the point of view of both the grievor and the employer, an award of damages can be somewhat defective in fulfilling the objectives of contract remedies. The more appropriate remedy may be to compensate the grievor in “kind”, rather than providing monetary compensation.

In situations where there has been an improper allocation of overtime, the aggrieved employee has been deprived of an opportunity to work overtime. In certain circumstances, this can be restored to the employee directly by providing a future overtime opportunity, rather than indirectly through a monetary award. These general propositions find expression in Canadian Johns- Manville Co. at pp. 397-8 and 401, a case included in the employer’s brief of authorities and cited in a number of the authorities drawn to my attention by counsel for the union. In OLBEU and Liquor Control Board of Ontario at pp 8, Arbitrator Brown makes the same point about the general objective of remedies for breach of a collective agreement:

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 where compensation has been awarded, even though it over compensates, 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.

There has been a long-standing debate amongst arbitrators as to whether an in-kind remedy is more appropriate than an award of damages for lost overtime opportunities. In general, arbitrators appear to subscribe to the view that an in kind remedy is the preferred approach, providing it is practical to implement such a remedy.

In the PLH Aviation Services case, Professor Hickling when faced with the choice of the appropriate remedy stated:

“…the content of the collective agreement may either implicitly rule out the possibility of remedies in-kind or impose such practical impediments to their use as seriously to curtail their practicality in many situations. The examples contained in the cases cited tend to fall into one of two broad categories. In one, the right to overtime is dependent upon seniority. In the other, the agreement contemplates the equitable distribution of overtime over a period of time. That period may be the duration of the collective agreement or a more limited term.

Any remedy proposed must be consistent with the terms of the collective agreement. Where the right is geared to seniority it may be difficult (if not impossible) to fashion a remedy in-kind that does not adversely affect the rights of other employees who may have a better claim when some future opportunity arises. Granting a remedy in-kind would not be appropriate where it would simply create a new breach by taking overtime from the next person entitled: see Re Doman Forest Products Ltd., Ladysmith Division and Pulp & Paper Workers of Canada, Loc. 8, May 29, 1986, (Kelleher) at pp.6-7, and Re Canadian Pacific Forest Products and Pulp & Paper Workers of Canada, Loc.11, supra, at pp.374-5 (citing Pacific Brewers Distributors, March 8, 1984, (Albertini), and Green River Log Sales Ltd. and I.W.A., Loc1-367, January 10, 1990, (Kinzie).

The employer enjoys much more flexibility where the agreement provides for equalization of overtime over a period. As arbitrator Kelleher observed in the Doman Forest Products Ltd. case, supra, at p.6, in such a case it is usually a relatively simple matter to direct that the grievor receive an extra opportunity to make up for the one missed and no one loses. However, difficulties may still arise when overtime has been mistakenly distributed to persons outside the pool of persons among whom overtime is to be distributed: see also Re Canadian Pacific Forest Products, supra, at pp.374-5.

Drawing upon the cases cited above, the majority in the latter case identified, at pp. 375-6, three recognizable situations:

If overtime is based on seniority, the remedy is cash, because the next opportunity must go by seniority, not by an interference which creates a new problem in solving the last one. If overtime is based on an equalizing system, and the mistake is internal within the group, a “next opportunity” will be a quick way back to equality and is appropriate. If overtime is equalized, and the mistake is an assignment of work outside the equalization unit, then cash is preferable since a “remedial” internal assignment interferes with the group calculations and entitlements.

A remedy in-kind may be easier to apply in dealing with equalization clauses; however, even in such situations, the board must still be satisfied that such a remedy will be consistent with the agreement. If it is not reasonable or practicable to equalize overtime over the relevant period, the appropriate remedy is damages” (emphasis added).

What then are the factors governing the choice of remedies in cases such as this? In my view, there are four factors to be considered on a sequential basis in order to decide this matter:

1. The first factor to examine is the collective agreement itself. Both parties

agree that that there are no specific provisions in either article 8.2.1. or the local agreement that deal with the issue of remedy for the improper allocation of overtime. In reviewing article 8.2.1., the employer is required to “..develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met”. This language suggests that the parties realized that the distribution of overtime can be an intricate and complex task and that it would be more practical to develop specific overtime procedures at the local workplace. This is especially so given the vast number of employees and operations that this employer has throughout the Province. In this respect, the parties at GCC entered into an overtime distribution agreement on June 5, 1998.

On its own, article 8.2.1. may have provided the employer with some degree of “flexibility” regarding overtime distribution and remedy. However, the generality of this article is now subject to the specific provisions outlined in the local agreement. Nothing in the language of article 8.2.1 or the local agreement either expressly prescribes or specifically restricts the range of remedies available. Neither agreement dictates a remedy in kind, nor do they restrict an award of damages.

Subject to future arguments regarding the possible meaning of “operational requirements”, which counsel for the employer agreed to set aside at this time, I am not persuaded that the language contained in the collective agreement or the local agreement provide the employer with any degree of “flexibility” with respect to an appropriate remedy for an overtime violation.

2. The second factor to be determined in this matter is whether or not the system in place at GCC for distributing overtime is a true equalization system.

I agree with employer counsel’s contention that in a situation where an employer has failed to distribute overtime equitably, the imbalance can, in certain cases, be redressed by ensuring that those who have missed out will have first call for future overtime opportunities. Providing, of course, that the employer has acted in good faith and that there is a true equalization system in place.

A true equalization system typically provides a formula that attempts to equalize the opportunity for overtime assignments over a specified period of time. The goal is to establish fairness amongst employees in the overtime distribution group; it does not ensure that all employees actually work equal amounts of overtime.

An important characteristic of a true equalization system is that the group to which overtime is offered must be static, that is, there is no opportunity to opt out. Furthermore, as opportunities arise, everyone in the group is credited with the hours offered, whether they accept or decline the overtime assignment. Employees transferring from other departments, or employees who are off work for extended periods of time, are normally credited with the average overtime hours accumulated by the group when they join, or re-join, the group. New hires either receive the group average or are awarded the highest accumulated hours plus one when they join the group.

The system in place at GCC does not include the characteristics outlined above.

Due to the voluntary nature of the equalization system at GCC, the overtime pool is not static. As a result, COs are free to opt in and out of the overtime pool as they see fit. In fact, given that there are up to eleven different shifts that a CO can sign-up for on any given day, there can be as much as eleven different overtime pools each day. As a result of this complex process, the task of equalizing overtime over the specified time period is virtually impossible to achieve. Accordingly, I agree with the union that the system for distributing overtime at GCC is not a true equalization system. Consequently, it is not feasible for the system itself to automatically correct mistakes in the allocation of overtime.

3. Can a remedy in-kind still be offered given that the overtime distribution system at GCC is not a true equalization system?

Firstly, because of the voluntary nature of the system at GCC, the CO to whom an in kind remedy is offered may be unavailable for the entire balance of the equalization period. This is especially true given the relatively short time period for equalization as outlined in the local agreement.

Secondly, even if the affected CO is available, other COs in the various pools, on any given day, and for any given shift, may have accumulated fewer overtime hours. Article 6 of the local agreement imposes a mandatory obligation on the employer to select the CO with the least amount of accumulated overtime hours when an overtime assignment occurs. The language does not provide for any exceptions. In certain respects, the system in place at GCC is actually analogous to a seniority system insofar as it clearly identifies the individual entitled to overtime on any given occasion. The language contained in article 6 would be rendered meaningless if the employer was allowed to place an aggrieved CO to the top of the overtime list whenever an error occurred. For the aforementioned reasons, I am not convinced that an in-kind remedy would be consistent with the local agreement or is practical to implement given the nature of the overtime distribution system at GCC.

4. Can a remedy in kind in the form of a “special” overtime opportunity be used where there has been a lost overtime opportunity?

In scenario number 1, a computer malfunction results in an error that leads to an improper allocation of overtime. In scenario number 3, a dispute arises as to whether or not an individual was entitled to work an overtime shift. (Both the employer and union counsel acknowledge that the sub-set of questions for scenarios 1 and 3 are essentially the same e.g. scenarios 1(iii) and 3 (vi) are identical. For ease, I will only refer to CO A when dealing with both examples).

The first proposal is a future overtime opportunity in the form of a “special” or “supernumerary” assignment that:

• Offers the same number of hours lost to CO A;

• Allows CO A to work the overtime assignment at her discretion;

• Is based on the fact that the work in question would be in addition to any overtime the employer would otherwise find necessary to schedule; and

• Is based on the fact that the employer would not otherwise require anyone to perform the overtime assignment.

In the second proposal, the employer again offers a “special” opportunity; only in this instance the work assignment involves training and not regular duties. In this case, CO A would be offered an eight hour mandatory training assignment that would occur on a day when CO A would otherwise be scheduled to work at the institution. The employer proposes to pay CO A 12 hours pay, as opposed to 8 hours pay that she otherwise would have been entitled to earn for her regularly scheduled shift.

I agree with employer counsel that scenarios one and three, on their face, do not indicate that there was a deliberate breach of the overtime protocol by the employer, nor do they indicate that there has been a persistent pattern of mistakes. The question remains however, could the “special” overtime assignments adversely affect the rights of other COs and would the assignments be consistent with the collective agreement?

Arbitrator O’Neil in the Dominion Colour Corp. case at page 376, reviews the conditions set out by Arbitrator Gray for a substitute work opportunity in Re: Labatt’s Ontario Breweries and Brewery Malt and Soft Drink Workers, Loc. 304(1993), 36 L.A.C.:

Whether it is or not turns in any given case on whether, operating within the constraints of the applicable collective agreement, the employer can both create and assign a substitute work opportunity in such a way that those aggrieved by the breach in question are restored to a position substantially similar to the one in which they would have been had the breach not occurred. To accomplish that result, the nature of the work opportunity must be similar to that lost (or, at least, the differences must be unobjectionable.). The intended assignment of the opportunity as overtime work must be consistent with any applicable provision of the collective agreement: implementing it must not amount to a breach of the agreement. And the intended assignment must restore both the group and the member(s) of the group who would have performed the lost opportunity to the same position, in terms of total overtime worked, as they would have been in had the lost opportunity been performed within the group by the member(s). This last criterion will not be satisfied by reallocating among the members of the group those other work opportunities which the group would have had in any event. An “artificial” opportunity must be injected – one which no one in the group would have enjoyed but for the employer’s remedial effort. This may be impossible. It may be, as it was in Re Gulf Oil, supra, that the only overtime work the group would not have enjoyed in the ordinary course is work that the collective agreement requires the employer to assign to another group if the opportunity to perform it on overtime arises.

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 remedy in kind will effectively redress the breach caused by a breach of the collective agreement without itself constituting another breach, that remedy should not be employed.

Dealing first with the supernumerary issue as outlined in scenario 1(iii), the scenario does not identify the exact nature of the proposed assignment thereby making my decision in this matter somewhat more difficult. In my view, there may be a number of complexities associated with this form of remedy.

Firstly, assuming that the work in question is CO work, the assignment may be one that CO A, or someone else in the CO overtime pool, would otherwise be entitled to claim. If indeed that was the case, then Article 6 of the local agreement stipulates that overtime be assigned to the CO in the overtime pool with the least amount of accumulated overtime hours. Consequently, the supernumerary assignment would be inconsistent with the local agreement.

Secondly, given that CO A has a history of requesting numerous overtime shifts, CO A may be entitled to a regular overtime shift on the day that she decides to work her supernumerary assignment. Obviously, there would be no advantage to CO A in that type of situation.

Thirdly, if CO A was brought in to do non-CO work, it would likely lead to further problems. For example, if CO A performed maintenance, kitchen or administrative duties, it would adversely affect the rights of employees in those positions.

Fourthly, if the proposed assignment does fall squarely within the scope of a CO’s duties and responsibilities, or is entirely different from the work normally performed, the employee may be forced to accept an assignment that was substantially different from the one that was originally missed.

Finally, I agree with union counsel that there would likely be constant disagreement between the parties as to whether a CO is actually performing supernumerary work and not “regular” work within the CO classification. The fact that the employer at the time of the infraction would not normally require the work to be done on an overtime basis, does not answer the question whether or not the COs could still be entitled to the work if offered as an overtime assignment at some point in the future. Indeed, the proposed assignment may be one in which the employer has in the past required a CO to do on an overtime basis.

Given the unique and complex nature of the overtime distribution system at GCC, and for the reasons outlined above, I am not convinced that the proposed supernumerary assignment is consistent with the local agreement or is practical to implement.

Notwithstanding the foregoing, given a different fact situation where the employer could demonstrate beyond a doubt that the “special” assignment was a genuine extraordinary opportunity that could be reasonably achieved in circumstances that do not adversely affect the rights of other employees, this form of remedy could be appropriate.

Turning to the special training opportunity outlined in scenario 1(iv), the employer proposes an assignment that would provide CO A the opportunity to undergo training instead of performing her regular duties. The employer proposes to pay CO A twelve hours pay for the special assignment, as opposed to eight hours pay that she would normally receive for performing her regularly scheduled shift. As stated above, the purpose of contract remedies is to place the party harmed in a position as close as possible to the one that would have been occupied if no breach had occurred. This proposed remedy provides CO A with an extra four hours pay, whereas had there been no breach, she would have received twelve hours pay. In addition, this proposal also involves work of a substantially different nature from the work that was missed.

Given this particular fact situation, the remedy proposed is not acceptable because it would not restore CO A to the same position she would have been in prior to the error in the overtime allocation.

Accordingly, after having carefully considered the submissions of the parties, the special assignments proposed in scenarios 1(iii), (iv) and 3(vi), (vii), are not appropriate for the reasons stated herein.

SUMMARY

Given my findings in the above matters, it is not necessary to address individually all of the scenarios contained in the Statement of Facts and Issues. Based on the submissions of the parties and the fact situations presented, and for all of the reasons set out herein, I find that, subject to my comments regarding supernumerary assignments, a monetary award is required for all of the various scenarios contained in the Statement of Facts and Issues.

I will retain jurisdiction to resolve any difficulties encountered in the implementation of this award.

Dated at Toronto, this 8th day of May 2001.