GSB#1519/00, 1520/00
UNION# OLB443/99, OLB477/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Scarcello)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE GRIEVOR Elizabeth Mitchell
Counsel
Koskie Minsky
Barristers & Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING April 3, August 30, and September 7, 2001.
DECISION
The grievor, Frank Scarcello, filed two grievances concerning missed overtime opportunities. At the commencement of the hearing the parties provided me with the following Agreed Statement of Facts:
The Employer, the Union and the Grievor (hereinafter “the Parties”) agree to the following facts for the purposes of the hearing and without prejudice or precedent to positions taken or arguments made in other grievances and/or hearings. The Union enters into this agreement without prejudice to its position that the manner of rotating overtime is inconsistent with the collective agreement and without prejudice to its right to file a grievance concerning the rotation system in future.
The Grievor was a Vax System Operator at the Employer’s Durham Logistics Facility at all relevant times. He has been a Vax Operator since July 1985 when he joined the Employer.
At the times in question, there were 3 Vax System Operators on the Seniority and overtime lists: Joe Markowiak, the Grievor, and Drake Dziewir. On these lists, the employees are listed in the order set out herein, with Mr. Markowiak being the most senior employee.
During the relevant time periods, the Vax Department had written guidelines for soliciting overtime. As of 1995, those guidelines set out that overtime opportunities would be rotated among the employees listed in the paragraph 2, with the employee with the lowest amount of overtime hours being offered the overtime opportunity first. A copy of the Administration Guidelines for Soliciting Overtime (guidelines”) and a copy of a sample overtime log are attached hereto as Appendix “A”.
Prior to 1998, the Employer paid monetary compensation or gave lieu time for missed overtime opportunities to employees in this department, where entitlement was not in dispute. In or round 1998, the Employer changed its practice from paying monetary compensation for missed overtime opportunities and began offering an in-kind remedy. The Union does not agree with this change in practice.
In 1989, the Grievor filed a grievance which proceeded to hearing before the Grievance Settlement Board. The Employer disputed the Grievor’s entitlement to the overtime. The Arbitrator ruled that he was entitled to the overtime and awarded monetary compensation. A copy of that decision is attached hereto as Appendix “B”.
The collective agreement language about overtime in 1989 was different from the language about overtime in the collective agreement pertaining to these grievances. A copy of that language with the changes underlined is attached hereto as Appendix “C”.
Subsequent to the 1990 decision, the Grievor continued to grieve missed overtime opportunities and received monetary compensation or time in lieu equivalent to the overtime missed. This occurred 5 or 6 times between 1990 and 1998.
In June 1998, the Grievor was missed in an overtime situation. He grieved and the Employer said he would be offered the next available overtime, if he was entitled to the overtime. The Grievor refused that offer. This grievance continues to be outstanding. A copy of the 1st Stage Grievance Report and Stage 3 Grievance forms are attached hereto as Appendix “D”.
On Sunday, November 21, 1999, there was a requirement for a Vax System Operator to work overtime because of a system problem. It is the Employer’s position that a computer consultant who was a non-LCBO employee and not familiar with the guidelines, called the employee whose name appeared at the top of the telephone list, whereas the fact is the Grievor had the least amount of total overtime hours. That employee who was called was Joe Markowiak who worked four (4) hours of overtime at the applicable overtime rate (double time for Sundays). The Union has no evidence to refute the Employer’s fact.
The Grievor brought this issue to the attention of his manager, Nick DeBonis (“DeBonis”) on November 23, 1999. The Parties disagree about Mr. DeBonis’s response or intention:
(i ) The Employer says that Mr. DeBonis advised the Grievor that he could work any four (4) hours at his convenience, and would be paid at the double time rate. Mr. DeBonis’s intention was to create a new overtime opportunity, not one that would normally be offered to the Vax Operators. The Employer’s position is that the work for these hours would be work normally performed by Vax Operators.
( ii ) The Grievor understood, and the Union accepts, that Mr. DeBonis offered the Grievor the next available four (4) hour overtime opportunity which would attract the double time rate. The Employer says that this overtime opportunity would have occurred within a three (3) month period of time.
The Parties agree to request that the Arbitrator determine, based upon the arguments by the Parties, whether or not this changes her conclusion about the appropriate remedy (if the Arbitrator determines the merits of the grievances). Attached hereto as Appendix “E” is a copy of the Grievor’s 1st Stage Grievance Report.
A stage 2 grievance was filed, date stamped December 13, 1999, and a Stage 3 Grievance was filed, December 19, 1999, which forms the subject matter of GSB File No. 1519/00 and is attached hereto as Appendix “F”.
On Monday, December 13, 1999, there was a requirement for a Vax System Operator to be contacted to resolve a problem that had arisen after 12:00 am. The Grievor was scheduled to work 4:20 am to 12:20 pm. Jim Cheng, a computer console operator, and bargaining unit employee, called Drake Dziewir to consult with him on the problem because Mr. Dziewer was the last Vax Operator on site. Mr. Dziewir decided to come in and was paid for four (4) hours of overtime. The additional two (2) hours, as well as the eight (8) hours Mr. Dziewir worked on Saturday, December 11, 1999, were not included in the overtime book until the morning of Monday, December 13, 1999 when Mr. DeBonis arrived at work at 8:00 am. Mr. DeBonis realized when he updated the overtime book, that he (sic) Grievor should have been called in early for the December 13th overtime work.
The Grievor brought this issue to the attention of Mr. DeBonis on December 14, 1999. The Parties disagree about Mr. DeBonis’s intention or response and repeat the positions set out in paragraph 10. The Parties agree that for the purposes of this hearing, the overtime for the Grievor would be four (4) hours at time and one-half (1 ½). Attached hereto as Appendix “G” is a copy of the 1st Stage Grievance Report.
A Stage 2 grievance date stamped December 20, 1999, was filed and a Stage 3 grievance, dated February 6, 2000, was filed, which forms the subject matter of GSB File no. 1520/00 and is attached hereto as Appendix “H”.
The Employer agrees that Article 6.6(b) of the collective agreement was violated, for the reasons set out above, on November 21 and December 15, 1999, by not offering the overtime opportunities to the Grievor.
The Employer unilaterally amended the written guidelines for soliciting overtime effective December 13, 1999 to be consistent with its new practice as stated in paragraph 4. A copy of the amended guidelines is attached hereto as Appendix “I”.
Prior to the filing of these grievances, the Employer and the Union discussed the Employer’s change in remedy for breaches of Article 6.6(b) of the collective agreement from monetary compensation to in-kind remedy, but the Union did not agree to any changes.
The Grievances that have been referred to the GSB pursuant to this arbitration were filed under the 1998-2000 collective agreement. A copy of Article 6.6(b) is attached hereto as Appendix “J”.
The Parties request that the Crown Employees Grievance Settlement Board make a determination as to the appropriate remedy for said violations of the collective agreement.
The Employer agrees that no notice of the change in practice was given during the bargaining that resulted in the 1998-2000 collective agreement and the Union’s evidence is that it missed an opportunity to bargain to maintain the long standing practice.
The Administrative Guidelines for Soliciting Overtime referred to in paragraph 3 read as follows:
Overtime shall be solicited first to the full-time employees who normally perform the work to be done on a rotational basis, based on a “Balanced Total Hours System”.
The employees with the lowest total of overtime hours recorded, will be solicited first. Employee solicited must have a minimum of eight (8) hours between shifts.
If overtime is required past midnight on an overtime or week-ending shift, the operator has the option of staying up to (8) hours to complete the work, or he may “CALL IN” another operator according to the overtime rotation.
All overtime that is accepted or declined by an employee will be recorded as worked for the purpose of maintaining records, unless the employee has declined after already completing their regularly scheduled work week.
Overtime will not be recorded as worked when the employee is...
(a) on vacation
(b) absent from work due to sickness or scheduled “E” days
( c ) declining any second consecutive day of overtime providing that the previous day of overtime consisted of a minimum of two hours worked.
(d) on Bereavement or Compassionate leave.
(e) serving as a court witness or juror.
(f) on a temporary secondment or special assignment.
The only material change to the guidelines in December of 1999 was the addition of the following:
Where it is agreed that an error has occurred in the canvassing of overtime, the employee shall be offered the opportunity to make up the lost time on a mutually agreed upon date (to occur within three months unless otherwise mutually agreed upon under extenuating circumstances). If the employee worked overtime the day prior to the missed day, or worked overtime on the day following the missed day, compensation shall be paid as if the overtime had been worked on the missed day. If the make-up overtime is scheduled such that it falls immediately prior to or following another day of overtime, double rate will not apply.
The relevant provision of the collective agreements read as follows:
1989-collective agreement - Article 6
(a) Authorized work performed in excess of the employee’s normal workday shall be paid at the rate of one and one-half (1 ½) times the normal hourly rate of the employee unless otherwise provided in this Agreement. All work performed on any second consecutive day of overtime shall be paid at double the employee’s normal rate of pay. It is understood that an employee is to receive double rates when the employee works on the employee’s second scheduled day off.
(b) 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 then to casual employees. Failing sufficient volunteers, overtime would be assigned to full-time employees on a rotational basis.
1998-2000 collective agreement = Article 6
(b) 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 be offered to permanent part-time employees then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee.
UNION SUBMISSIONS
Ms. Mitchell, counsel for the Union, submitted that this grievance should succeed on three grounds. First, she took the position that this matter had been dealt with in a previous decision of the GSB (Scarcello v. LCBO, GSB # 1633/89) and that the matter is res judicata. In that 1990 case the Board found that the grievor had been improperly denied an overtime opportunity and ordered that he be compensated for that omission. The 1990 decision involved the same grievor, the same parties and the same issue. This Board, it was submitted, should be bound by the award.
In the alternative, the Employer is estopped from unilaterally changing the established practice of paying compensation for overtime hours and offering instead an in-kind remedy. The amendment to the existing policy was made without notice to the Union and has never been agreed to by the Union. There had been a long standing practice to pay for overtime worked and, after the 1990 decision of the Board, every lost overtime opportunity resulted in monetary compensation. The parties conducted themselves in a manner consistent with the 1990 decision. The Employer is estopped from altering that practice for the duration of the 1998-2000 collective agreement. The grievance should be upheld on these grounds as well.
However, notwithstanding these preliminary objections, the parties asked the Board to consider the merits of the grievance to aid the parties in the future. With respect to the merits, it was explained that the grievor is one of three Vax Operators at the Durham warehouse. There is one operator on each shift and their duties comprise of, for the most part, the operation of the computers for the warehouse. The distribution of overtime is not based on an equalization of hours but rather on the offering of extra hours to the Vax Operator who has the lowest number of overtime hours. If that employee refuses the overtime, it is credited to him as if he had worked and then offered to the next lowest Vax Operator on the list. That can result in a large discrepancy in the actual number of overtime hours each Vax Operator has worked. This is clearly not a situation where an in-kind remedy will compensate the grievor for his loss. To offer him the next overtime opportunity is meaningless. He remained the lowest on the list and would have been offered the next overtime. The overtime lost to him as the result of the Employer’s error cannot be replaced by another offer of overtime that he would be entitled to in any event.
With respect to the issue of res judicata and issue estoppel, it was argued that the facts of the 1990 case are essentially identical to those in the instant case. The grievor was overlooked in the assignment of overtime. Although the assignment of overtime was based on a different system at the time of the earlier grievance, at issue was the interpretation of Article 6.6 (b). No issue was taken to the form of remedy and the Board ordered that the grievor be compensated for the time lost. Since that time the grievor has filed 5 or 6 more grievances for lost overtime and has been paid each time. Clearly, it was submitted, the parties understood the 1990 decision to be binding. The Employer introduced a new policy that changed the practice respecting overtime. The new practice was to offer instead an in-kind remedy for an improper assignment of overtime. The Union has never agreed to that change, as these grievances indicate.
Thus, it was submitted, this Board should be bound by the Scarcello award of 1990 for several reasons. In the first instance, this Board has no jurisdiction to determine an issue that has already been the determined by another tribunal. These two cases clearly meet the test of res judicata in that they are between the same parties, that is the same Employer, the same Union and the same grievor and they deal with the same issue, that is the interpretation of Article 6.6 (b). The instant case is being brought forward in the same forum as the earlier decision. In the second instance, this Board should be reluctant to overturn a decision of another tribunal unless it is convinced that the previous award has been manifestly wrongly decided. The policy reasons to adopt such an approach are obvious. Finality is the primary rationale. Previous decisions allow the parties to conduct themselves in a manner that avoids continuous confrontation and gives them security in their actions. To ignore previous decisions and relitigate issues repeatedly will only result in uncertainty and unnecessary expense. In this case, it was said, the first Scarcello was accepted by all concerned as being the correct interpretation of Article 6.6 (b). In fact, the Employer is not taking issue with the correctness of that award, but rather takes the position that it had the right to change its practice. There are no grounds upon which this Board could or should reject the 1990 award.
Finally, the Union took the position that the Employer is estopped from changing its practice during the term of the 2000 collective agreement. Its long standing practice was based on the prior award and the Union relied on this practice to its detriment.
If the Board should claim jurisdiction to determine the merits of the case, it was submitted by the Union that the case law is clear. A rotational system for overtime opportunities is not an equalization scheme for hours worked and the presumption is that payment for the hours worked is the appropriate remedy. If the theory is to place the grievor in the position he would have been in but for the breach, the only proper remedy in this situation would be to pay him for the hours worked. Otherwise he receives no remedy because, being the person with the lowest number of hours, he would be entitled to the next overtime anyway.
Additionally it was stated that if the Employer does give the grievor the next overtime opportunity and if he is not entitled to it, the person entitled to it is deprived of his overtime hours causing a further distortion in the overtime system that has been established by the parties. The case law is clear, an in kind remedy is not appropriate when it interferes with the rights of other employees.
In support of its position the Union relied on the following cases: Re Liquor Control Board of Ontario and Ontario Liquor Board Employees Union (Gately, Nicholson), (2001), GSB Nos. 0077/01, 0078/01 (Petryshen); Re Ontario Liquor Control Board of Ontario and Ontario Liquor Board Employee’s Union (Scarcello), (2000), GSB No. 1633/89 (Kaplan); Re Ontario Liquor Control Board of Ontario and Ontario Liquor Board Employees’ Union (Sousa), (2000), GSB No. 1492/98 (Brown); Re Ontario Liquor Control Board and Ontario Liquor Board Employees Union (Larmand/Shotlander/Thompson), GSB Nos. 1056/94, 1057/94, 1058/95 (Stewart); Re Ontario Liquor Control Board and Ontario Liquor Board Employees’ Union (DePetrillo et al) (1989), GSB Nos. 117/89, 118/89, 119/89 (Gorsky); Re Ontario Liquor Control Board and Ontario Liquor Board Employees’ Union (Galli) (1985), GSB No. 689/84 (Roberts); Re Corporation of the City of Cambridge and Amalgamated Transit Union, Local 1608 (1997), 1997 CanLII 24963 (ON LA), 65 L.A.C. (4th) 13 (Tims); Re Dominion Colour Corporation and Teamsters Chemical, Energy and Allied Workers, Local 304 (1993), 1993 CanLII 16797 (ON LA), 36 L.A.C. (4th) 289 (Gray); Re Labatts Ontario Breweries and Brewery, Malt and Soft Drink Workers, Local 304 (1993), 36 L.A.C. (4th) 289 (Gray); Re Sherman Mine, Cliffs of Canada Ltd and United Steelworkers (1980), 1980 CanLII 4006 (ON LA), 26 L.A.C. (2d) 67 (Brunner); Re Ivaco Rolling Mills and United Steelworkers, Local 7940 (1984), 1984 CanLII 5203 (ON LA), 13 L.A.C. (3d) 289 (Weatherill) and Re Labatts Ontario Breweries and Brewery, General and Professional Workers Union (1996), 1996 CanLII 20286 (ON LA), 56 L.A.C. (4th) 407 (Howe).
Ms. Renton, counsel for the Employer, took the position that this case involves a dispute over lost overtime between three full time employees. In the Sousa case (supra) the grievor was bypassed and the overtime work went to an agency person instead. Because the work was lost to the bargaining unit the appropriate remedy was payment for the lost opportunity. That is not the case in the instant grievance. That case also stands for the proposition that delay in correcting the error will also result in an order to pay. Again that is not the case before you. Otherwise the case law suggests there is a presumption against payment in these circumstances. In fact, the Board in the Labatts (Howe) case pointed out that there is a punitive aspect to an order to pay overtime for work not performed. It was referred to as “armchair overtime”.
It was said that even if the overtime cannot be replaced within the normal work routine, arbitrators have still been reluctant to order payment for armchair overtime. In the Sousa case the Board approved of an artificial overtime assignment as a remedy for a missed overtime opportunity. That approach was also adopted by Arbitrator Howe in the Labatts (Howe) case (supra). It has even been suggested that where an employee has refused to accept an offer of replacement overtime hours, that refusal should be considered a failure to mitigate Labatts (Howe).
With respect to the submissions of the Union regarding issue estoppel and res judicata, the Employer referred to the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc. [2001] S.C.C. 44 which involved an appeal of a decision of the Court of Appeal which, in turn, had affirmed the decision of a motions judge who had found that the decision of an ESA officer was final. As a consequence of that decision the appellant’s claim for unpaid wages and commissions was barred by issue estoppel. The Supreme Court repeated the threefold test required to invoke the doctrine of issue estoppel; namely, that the same question has been decided in earlier proceeding, that the earlier judicial decision was final and that the parties were the same in both proceedings. It also stated that decision to apply the doctrine was within the discretion of the trier of fact. Those same principles have been accepted by the GSB in the Cheng decision (supra).
In this case it was stated that the LCBO/OLBEU decisions provided to the Board do not meet those preconditions. In the Cheng case the issue involved article 6.15 (a) of the collective agreement. The grievor had abandoned an earlier grievance on the same issue and the employer took the position that her subsequent grievance was barred by the doctrine of res judicta. The Board rejected that argument for several reasons, one being that although the grievances involved the same legal issues, the fact situations were different. The grievance was allowed to proceed.
The Employer did not take the position that the Scarcello (1990) case (supra), was wrongly decided. However it submitted that the issues in that case were not the same issues before this Board. The earlier decision concerned an interpretation of a different article than the instant case and therefore there is no issue estoppel. Scarcello (1990) does not provide any finality to article 6.6 (b).
And, in any event, it was stated the issue of the appropriate remedy was never placed before the Scarcello (1990) Board. Once the Board was satisfied that the grievor had been entitled to the overtime in question, it ordered he be paid for the lost hours. Neither party took any position about the appropriate form of payment and the Scarcello (1990) case did not decided that question for all time.
In the alternative, the Employer took the position that even if its practice in 1990 was to pay for lost overtime; it was entitled to change its practice. The collective agreement is silent with respect to the issue of payment for lost overtime opportunities and it is within the Employer’s discretion to determine the appropriate method of payment. The Sousa and Gately & Nicholson grievances were filed a year after the Scarcello (1990) decision and the Union has known since then that the Employer intended to change its past practice and compensate lost overtime with an in kind remedy. The Sousa case involved a question of entitlement and in neither of those cases did the Union raise an issue about this change in practice.
Finally, the Employer took the position that the grievance should be dismissed on the merits. The case law shows that there is a presumption in favour of an in kind remedy unless it can be shown that it is not feasible to do so, or unless the assignment of the overtime would interfere with the rights of other employees and result in a further breach of the collective agreement. In this case neither of those situations apply. The grievor was offered the next overtime opportunity, which he rejected. The Employer’s evidence was that it was prepared to call the grievor in at overtime rates to perform extra or additional work that would not have been assigned to anyone else and therefore would not have interfered with the rights of other employees to overtime. The grievor refused that overtime as well.
In support of its position the Employer relied on the following cases: Re LCBO & OLBEU (Mather) (July 29, 1996), GSB # 2260/95 (Kirkwood), Re LCBO & OLBEU (August 3, 2001) GSB # 1328/00 (Abramsky), Re LCBO & OLBEU (Lariviere) May 12/00 (Harris), Re Goodyear Canada Inc. & United Steelworkers of America, Local 189 (1996) 1996 CanLII 20224 (ON LA), 57 L.A.C. (4th) 247 (Mikus), Re Long Manufacturing Ltd. And Canadian Autoworkers, Local 1285 (1995), 1995 CanLII 18369 (ON LA), 48 L.A.C. (4th) 208 (H. D. Brown), Re Commonwealth Holiday Inns of Canada Ltd. (Holiday Inn of Don Valley) and Hotel and Restaurant Employees and Bartenders’ International Union, Local 75 (1983), 1983 CanLII 4839 (ON LA), 9 L.A.C. (3d) 32 (Brent), Re Toronto Electric Commissioners and Canadian Union of Public Employees, Local 1 (1994), 1994 CanLII 18724 (ON LA), 45 L.A.C. (4th) 248 (Solomatenko), Re Rothman’s of Pall Mall Canada Ltd and Bakery, Confectionery and Tobacco Workers’ International Union, Local 319T (1983), 1983 CanLII 4876 (ON LA), 12 L.A.C. (3d) 329 (M. Picher), Re KS Centoco Ltd. and Teamsters, Local 880 (Serecin) (2000) 2000 CanLII 50179 (ON LA), 85 L.A.C. (4th) 1 (Hunter), Re Extendicare Health Services Inc. And Canadian Union of Public Employees, Local 1394 (1993), 1993 CanLII 8515 (ON CA), 104 D.L.R. (4th) 8 (Ontario Court of Appeal) and Re International Chemical Workers, Local 346 and Canadian Johns Manville Co. (1971), 1971 CanLII 1948 (ON LA), 22 L.A.C. 396 (Weiler).
REASONS FOR DECISION
I have been asked by the parties to address all of the arguments submitted in support of their positions even if any one of them would determine the issue on a preliminary basis. The first issue then is whether the doctrine of res judicata or issue estoppel applies so as to bar the Employer from changing its practice regarding overtime. The Union relies primarily on a previous decision concerning this grievor, Frank Scarcello, this Employer and the issue of an alleged failure to pay overtime.
The doctrines of res judicata and issue estoppel were developed by the courts to prevent abuse of the system by barring the relitigation of claims. The bar extends both to causes of action previously adjudicated and of the constituent issues or material facts embraced within those causes of action. The most recent affirmation of the application of the doctrine is found in the decision of the Supreme Court of Canada in the Danyluk case (supra). The court, at paragraph 21, stated:
These rules were initially developed in the context of prior court precedings. They have since been extended with some necessary modifications to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issue once decided.
Issue estoppel grew out of the doctrine of res judicata because of the differences that exist between courts and administrative tribunals. It was defined in by the Ontario Court of Appeal in the case of McIntosh v. Parent, 1924 CanLII 401 (ON SCAD), [1924] 4 D.L.R. 420, at page 422:
When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.
The courts were agreed that the a more stringent definition of purpose be applied to issue estoppel
than res judicata. In Angle v. Ministry of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, Dickison J. said:
It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment. The question out of which the estoppel arose must have been fundamental to the decision arrived at in the earlier proceeding.
The preconditions to the estoppel are as follows:
That the same question has been decided.
That the judicial decision which is said to create the estoppel was final.
That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
Applying those principles to the instant case, there is no dispute that the parties are the same; that is the LCBO, the OLBEU and Mr. Scarcello. It is also without dispute that the previous decision, that is Scarcello 1990, was final. The only remaining question then is whether the issue before me is the same issue that was decided by the Board in Scarcello 1990.
The earlier grievance arose from two separate denials of overtime. The Employer had argued that it was not overtime but rather a mutually agreed upon change in the hours of work and therefore not a violation of the collective agreement. The Union took the position that the Employer had improperly avoided the overtime provisions of the collective agreement by pressuring the employees to change shifts. The Board found that the grievor had been improperly passed over for the overtime that arose on one of the two occasions grieved. It went on to order the employer to compensate the grievor for the lost overtime hours. Clearly the circumstances giving rise to that grievance are different than those giving rise to the instant grievance. In the instant case the question was whether the Employer had improperly overlooked the grievor in the distribution of overtime work, which the Employer has conceded. In any event, no res judicata or issue estoppel can apply to the question of entitlement to overtime since each case stands or falls on the facts of that individual case.
For that reason, none of the previous GSB decisions regarding overtime are of any assistance to this Board. The entitlement to overtime is found in the circumstances giving rise to each individual grievance and, notwithstanding the decision in Blake et al and the Amalgamated Transit Union, GSB # 1276/87 etc., a Board cannot bind itself to the decision of another tribunal when it involves questions of fact arising from different circumstances. In any event, the cases provided can be distinguished on their facts. In the Gately and Nicholson, Sousa, De Petrillo, and Galli cases, (supra), the overtime work was assigned outside of the bargaining unit and in the Larmand/Shotlander/Thompson case (supra), the denial of overtime was based on a lack of training for the position in which the overtime arose.
With respect to the second issue, in the first Scarcello case, there were no submissions made with respect to the issue of remedy. The order of the Board was stated as follows:
An overtime obligation therefore arose and the grievor was entitled to it. We therefore order that the grievor be compensated for the loss of the overtime opportunity on November 27, 1989.
The parties interpreted that order to mean payment for the lost overtime. Since that award, lost overtime opportunities have always been paid as money, not time. The decision to pay in money instead of replacement overtime was not based on the Scarcello 1990 award. The parties applied that award in a manner consistent with the practice at the time. The parties made no submissions on the issue of remedy and it cannot be said that the Scarcello 1990 Board dealt with it in any meaningful way. The Board did not rule on a right, question or fact distinctly in issue. Indeed, there was no issue between the parties on the appropriate remedy. The Board in the Scarcello 1990 case ordered the grievor be compensated but made no order as to what that compensation should be. It was for the parties to apply the award in a manner consistent with the practice at the time. The doctrines of res judicata and issue estoppel bar a party from relitigating a matter that has been determined by another arbitration board. However, it cannot be said that the issue in the instant grievance is the same as that in Scarcello 1990. The issue in the latter case was the grievor’s entitlement to overtime. The issue in the instant case is the appropriate remedy for a missed overtime opportunity. Therefore neither res judicata or issue estoppel applies and the grievance fails on those grounds.
Having determined that there is no preliminary bar to my jurisdiction to proceed, the next issue raised by the Union is promissory estoppel. It takes the position that the Employer cannot unilaterally alter its method of payment for lost overtime without proper notice to the Union of its intention to change its practice. If the Union had received timely notice, it would have raised the issue at the bargaining table. It relied to its detriment on the existing practice and asked this Board to order the Employer to revert to its previous practice.
There is no dispute that the since the decision in Scarcello 1990, and before, the Employer had compensated employees for missed overtime opportunities in money, not time. In 1998 the Employer decided to offer an in kind remedy, which was not agreed to by the Union. There can be no dispute that these facts give rise to an estoppel. The practice was well known, consistently applied and understood by all to be the result of the collective agreement and, later, the Scarcello 1990 award. By its conduct the Employer represented that was the interpretation of the collective agreement which was accepted by all of the parties. The Union relied on the Employer’s representation and felt no need to raise the issue at the bargaining table. As a result they were unable to attempt to negotiate a continuation of the practice. Those facts meet the requirements of a promissory estoppel.
The issue then becomes the duration of the estoppel. The grievances were filed under the 1998-2000 collective agreement; namely December 20, 1999 and February 20, 2000. The amended guidelines for the payment of overtime were dated December 1999. Prior to the filing of these grievances the Union and the Employer discussed the changes to compensation for lost overtime opportunities. Clearly the Union was put on notice at that time that the Employer intended to alter its practice. If it intended to negotiate to maintain the status quo, it was given time to do so before negotiations began for the next collective agreement, that is the one dated April 1, 2000 to March 31, 2002.
Therefore the grievances succeed in part on the basis of an estoppel. Specifically the Employer is estopped from changing its practice of compensating missed overtime opportunities in pay instead of replacement overtime until the expiry of the 1998-2000 collective agreement.
Finally, in an effort to avoid future litigation, the parties have asked for a decision on the merits.
There has been general acceptance of the presumption that in the case of an improper overtime assignment, an in kind remedy of alternate work is the appropriate remedy. The first reported case on this issue of remedy and the genesis for that presumption appears to be Re Canadian John Mansville Co. And I.C.W., Local 346 (1971), 22 L.A.C. 396 (P. Weiler). In that case the grievor had been improperly passed over for an overtime opportunity and was paid for the lost time. However, an issue arose over the incentive bonus he claimed he would have earned had he been scheduled to perform the overtime in the first instance. Although the Board awarded the lost incentive bonus, it was sympathetic to the employer’s argument that had the grievor worked the overtime he would have been paid for the hours he actually worked. By paying him for the lost overtime, the employer contended the grievor had been paid for time not worked which put him in a significant better position than if the overtime had been properly distributed. The employer, on the other hand paid twice for the same work which was inconsistent with the non-punitive and compensatory nature of damages. In response to that argument, the Board said, at page 403;
In principle, the proper remedy for a lost overtime shift should be the offer of a substitute. If there is some distinctive reason why no similarly attractive substitute is available, then the company may be obliged to compensate the employee in money. However, this should not be assumed to be the case and should require proof of the facts in the individual situation.
It is this principle that has led to a general acceptance by arbitrators of the presumption that a remedy “in kind” is the better way of making whole an employee who has been denied an overtime opportunity. Recent decisions suggest that, while that presumption still prevails, subsequent decisions have developed so many exceptions to the rule that it appears to be observed more in the breach. For example, in the PLH Aviation case (supra), the arbitrator noted, at page 341;
[E]ven though it may be easier to apply a remedy in-kind in the case of an equalization or equitable distribution clause, an arbitration board must still be satisfied that to do so, would be consistent with the intention of the parties as reflected in the agreement. If it is not practicable or reasonable to equalize overtime, the appropriate remedy will be damages.
He referred to the exceptions to the rule that had been set out in Doman Forest Products Ltd. Ladysmith Division and P.P.W.C., Local 8, (May 29, 1986), unreported (Kelleher) on page 344;
[F]irst, if the employer’s breach of the agreement was deliberate; second, if there is a pattern of persistent, albeit good faith, mistakes by the employer; and third, if, for whatever reason, it is not possible to fashion an appropriate in-kind remedy.
In the instant case, none of those exceptions apply. There is no evidence, or indeed any allegation, that the Employer deliberately overlooked the grievor when it assigned the overtime in question. There has been no suggestion of a pattern of persistent mistakes.
Other exceptions have also been accepted by arbitrators on a case by case basis. Where the grievor has left the employ of the employer or is no longer part of the group within which the overtime was to be equality distributed, a remedy in kind has been found not to be the appropriate remedy for the obvious reasons. Similarly, arbitrators have agreed that when the overtime was improperly assigned to someone outside of the competing group, an in kind remedy is not appropriate. Where the replacement hours cannot be offered within the time period over which the inequity was to be balanced, payment for the lost time is the appropriate remedy. Finally, it has been generally agreed amongst arbitrators that when seniority is the determining factor in assigning overtime, a remedy in kind would only exacerbate the problem because it would result in the interference of another’s seniority rights and another breach of the agreement.
In the final analysis, what is clear is that the answer to the question of the appropriate remedy depends on the collective agreement and the facts of the particular case. In the instant case, the collective agreement is silent on the method of payment for an improper overtime assignment. Overtime is offered on a rotational basis to the three VAX operators in the department. However, it is offered first to the person with the least number of overtime hours. All overtime declined is entered as worked for purposes of calculating the total overtime hours. It is clear from the overtime logs provided that the system was not meant to result in an absolute equalization of hours. For the December 2, overtime log, the three operators worked 121 hours, 123.575 hours and 113 hours of overtime respectively. For the December 3 log, the numbers were 121, 129.575 and 119. By December 9, the number of hours worked were closer to equal being 130, 129.575 and 128. The system is designed to attempt to distribute the overtime in an equitable manner amongst the three employees in the department. The system is not seniority driven. It cannot be said that any employee’s right have been interfered with by the assignment of replacement overtime hours to the grievor since the right under the collective agreement to the overtime in the first instance was his and, because of the Employer’s error, remained his. This issue was considered by the Board in the Sousa case (supra). Arbitrator Brown, at page 8, stated as follows:
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 overcompensates, 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 awarded in circumstances like these where in kind relief cannot redress a violation...
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 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.
I have come to the conclusion then that, in the instant case, none of the exceptions to the general presumption that an appropriate remedy for a lost overtime opportunity is an in kind assignment of overtime hours apply and the grievance fails on the merits. The assignment of replacement overtime does not affect the rights of other employees in that the right to overtime remained with the grievor who had the least hours. Over time, the overtime hours worked by all three VAX operators will balance as equitably as possible. An in kind remedy will neither over compensate nor under compensate the grievor for the violation of the collective agreement. Another overtime opportunity will adequately compensate the grievor for any loss he suffered as a result of the violation and is the appropriate remedy in the circumstances.
The parties have also asked that I deal with the issue of a make-work remedy to replace the lost overtime. Again, by reference to the Sousa decision (supra), Arbitrator Brown considered the awards of Arbitrator Gray and Howe in the context of a make work assignment in the two Labatts cases mentioned earlier. In the first case Arbitrator Gray awarded monetary compensation because of the delay in offering the proposed remedy. The delay made it impossible to distribute overtime within the period prescribed in the collective agreement. Absent that delay, however, Mr. Gray suggested that an artificial assignment of overtime might be appropriate if it addressed the collective harm caused by the breach. He arrived at that conclusion because of the unique circumstances of the case before him. The work assignment was one that had been performed by the temporary employees at straight time rates and by the permanent employees at premium rates. The temporary employees had no right to the work in the first instance and so, returning the work to the permanent employees addressed the loss to the bargaining unit as a whole. Arbitrator Howe in the second Labatts case was dealing with similar facts and identical contract language. He ruled that the artificial assignment of overtime was the appropriate remedy as the overtime being offered would not have gone to the permanent employees absent the breach. This assignment offset the collective loss to the bargaining unit and was appropriate in the circumstances.
However, Arbitrator Gray acknowledged a limitation on the use of artificial overtime as a remedy which arises when there is uncertainty as to whether the work being offered would have been assigned to the bargaining unit even if there had been no breach. He wrote, at page 303:
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.
The Board in the E.B. Eddy case (supra), the Board rejected an offer of substitute work because the offer was vague and not necessarily related to the scope of the employee’s regular duties. In the Purolator case (supra), the Board considered a make work offer of overtime and stated, at page 379:
The second proposal of the employer fits classically within the make-work type of situation rejected universally by the authorities. It is, of course, not work that is being offered but special training. Whereas this may be useful it cannot be said to be necessary. I adopt what arbitrator Dissanayake said in Re Canada Packers, supra:
Besides, whether technically first aid training is or is not bargaining unit work, there is nothing to suggest that such training is warranted from the grievor’s point of view or that of this company. In other words, the company’s proposal is a make work project. As with the proposal of non-bargaining unit work, I have serious difficulty directing the grievors to engage in a make-work project to earn their overtime.
I too have serious doubts about the appropriateness of a make work remedy in these circumstances. The work being offered is work that is routinely done by these VAX operators and is essentially work that ought to but cannot be fitted into the normal work routine, either at straight time or at premium rates. In those circumstances, it seems to me that it is work that would, if budgets allowed, be offered to these very employees in the course of their duties. Can that be considered “make-work”. I cannot distinguish this make work from the routine work of the department and therefore cannot say with confidence that offering it as an in kind remedy will not cause another breach of the collective agreement. In the circumstances I do not believe it is an appropriate remedy.
DECISION
In conclusion, the Union’s preliminary objections of res judicata and issue estoppel are dismissed. The Employer, however, is estopped from changing its practice with respect to the compensation of missed overtime opportunities for the duration of the 1998-2000 collective agreement. The grievances are dismissed in their merits. The Employer’s decision to change its practice and compensate lost overtime with an in kind remedy is not a violation of the collective agreement.
Dated at Toronto, this 12th day of February, 2002.