GSB# 2003-2857, 2003-3651

UNION# OLB510/03, OLB009/004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (Ginn)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

Graham Williamson Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

February 16, 2005.

Decision

The Proceedings

This is a grievance filed by the Ontario Liquor Board Employees’ Union (hereafter “OLBEU” or “the union”) on behalf of Danny Ginn (hereafter “the grievor”). The grievor is a Maintenance Service Person at the Durham Retail Service Centre operated by the Liquor Control Board of Ontario (hereafter “the LCBO” or “the employer”). OLBEU says that it is a violation of the collective agreement between the parties not to pay the night shift premium for overtime shifts worked on the weekend.

The Facts

The parties filed the following “Agreed Statement of Facts”:

The Parties agree that the following facts and documents are agreed to for the purpose of this Arbitration before Arbitrator Dan Harris commencing on February 16, 2005. The Parties agree that the following facts and documents are agreed to for the purpose of this Arbitration only, and are without precedent or prejudice to any further or other matter between the Parties

The Parties reserve the right to call such further and other evidence as may be necessary, to augment this Agreed Statement of Facts, but in no event shall they call evidence that contradicts the facts agreed to herein.

1. Danny Ginn, the Grievor, is a permanent full time employee in the bargaining unit employed at the Durham Retail Service Centre which is one of the Employer's logistics facilities. Mr. Ginn is employed as a Maintenance Service Person and his hours of work rotate among the three shifts set out in Article 6.2(a)(ii) of the Collective Agreement. He rotates among the three shifts in accordance with the shift rotation set out in Article 6.14 of the Collective Agreement.

2. In addition to his regular hours, the Grievor was offered the opportunity to work overtime on the following Saturdays: November 8 and 15, 2003; August 23, 2003; and September 27, 2003. On each of those days the Grievor did, in fact, work overtime from 12:01 a.m. Saturday to 8:00 a.m. Saturday. In each case, the Grievor was working the night shift set out in Article 6.2(a)(ii) of the Collective Agreement on the Monday through Friday immediately preceding the Saturdays in question.

3. The Grievor was paid an overtime premium for working the shifts set out in paragraph 2 and was paid at the rate of one and one-half the normal hourly rate as required by Article 6.6(a) of the Collective Agreement.

4. The Union on its own behalf, and on behalf of the Grievor, have filed two grievances which allege that the Employer has breached the Collective Agreement by failing to pay the Grievor the nightshift premium set out in Article 6.15(b) of the Collective Agreement. Copies of the Grievances are attached at Tabs 1(a) and (b).

5. The Employer has denied the Grievances.

6. Without prejudice to any further or other matters between the Parties, the Employer agrees that there are no timeliness issues with respect to the filing of the Grievances.

The relevant provisions of the collective agreement are as follows:

6.2 (a) The Employer shall prescribe the number of hours in each working day not exceeding eight (8) hours for the various departments or establishments of the Employer. Normal hours of work will be as follows:

(i) Retail — Stores and Depot

The work week for stores shall be from 12:01 a.m. Monday to 12:00 midnight Saturday.

(ii) Logistics — Facilities and Private Stock

The work week for Facilities and Private Stock shall be from 12:01 a.m. Monday to 12:00 midnight Friday.

Night (1/2 hr. unpaid lunch)

Shift 8:20 p.m. to 4:20 a.m.

(VAX System Operators)

11:00 p.m. to 7:00 a.m. (Security)

11:45 p.m. to 7:45 a.m.

(Durham Facility — Tiers and Tunnels only)

12:00 midnight to 8:00 a.m. (other employees)

Fifteen (15) minute rest period during each half shift.

(iii) LCBO Head Office and Warehouse Offices (Monday through Friday, inclusive)

Between 7:30 a.m. and 9:30 a.m. to between 3:30 p.m. and 5:30 p.m.

Receiving/Shipping/Order Processing Offices Only (Durham Warehouse) (Monday through Friday, inclusive)

Security Staff at the Head Office Desk Security staff at the Head Office desk shall be scheduled as follows on a seven (7) day schedule:

(iv) Toronto Airport Stores

The work week for stores shall be from 12:01 a.m. Monday to 12:00 midnight Saturday.

(v) Retail POS/Help Desk

The work week for the POS Help Desk shall be Monday to Saturday, inclusive. POS Help Desk hours of work shall not be changed further without negotiation with the Union.

(vi) Head Office Computer Operators (Monday through Friday, inclusive)

6.6 (a) Authorized work performed in excess of the employee's normal work day shall be paid at the rate of one and one half (1 1/2) 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.

6.15 (a) An employee shall receive a shift premium of one dollar ($1.00) per hour for all regular hours worked between 6:00 p.m. and 7:00 a.m. Where more than fifty percent (50%) of the hours, inclusive of lunch and rest periods, fall within this period the premium shall be paid for all hours worked.

(b) An employee working on the night shift as defined in 6.2 (a) above, shall be paid a premium of two dollars ($2.00) per hour for each hour worked.

(c) An employee who works the night shift and receives the premium set out in (b) above shall not also be eligible for the premium set out in Article 6.15(a).

(d) Shift premium shall not be considered as part of an employee's basic hourly rate.

The Submissions of the Parties

OLBEU noted that the grievor, on four occasions, had worked the night shift from Monday to Friday, and then worked the same shift the next day. He received the night shift premium for the shifts worked Monday to Friday. He did not, but should have, received the premium for the Saturday shift as well. It concedes he received the overtime rate for the Saturday shift, but says that nothing in the collective agreement bars him from receiving the night shift premium as well.

OLBEU submitted that this matter raises a pure question of contract interpretation in the context of a straightforward, undisputed fact situation. Accordingly, no question of onus or burden of proof applies. The two different interpretations must be resolved on the basis of accepted canons of construction set out in Brown and Beatty at page 4-43as “the purpose of the particular provisions, the reasonableness of each of the interpretations, the administrative feasibility and whether one of the possible interpretations would give rise to anomalies.” Those canons of construction need to be considered against the backdrop of the rule against pyramiding.

The union reviewed the jurisprudence on this issue and submitted that the earliest cases failed to distinguish between the distinct purposes of shift premiums and overtime premiums. Subsequently, arbitrators recognized these distinct purposes and found that there was no pyramiding of benefits if both premiums were found owing. That is, the presumption against pyramiding was rebuttable where the underlying purpose of each premium was different and no specific language in the collective agreement prevented the payment. The union said that this analysis is now so ingrained that it is presumed that the payment of overtime and a shift premium is not pyramiding and it requires specific language in a collective agreement to oust that presumption. In view of the language of the instant collective agreement, both premiums are payable in these circumstance.

The union asks for a declaration that both premiums are payable, an order that the grievor be made whole and that I remain seised with respect to implementation. OBLEU relied upon the following authorities: Ontario Liquor Boards’ Employees’ Union (Cheng) and Liquor Control Board of Ontario, GSB No. 1328/00 (Abramsky, Vice-Chair); Ontario Liquor Boards’ Employees’ Union (Pallotta) and Liquor Control Board of Ontario, GSB No. 1185/00 (Dissanayake, Vice-Chair); Canadian Labour Arbitration Third Edition, Canada Law Book, Brown and Beatty, § 3:2400, § 4:2000, §8:2140; Grey County Board of Education and O.S.S.T.F., District 23 (1983), 1983 CanLII 4809 (ON LA), 12 L.A.C. (3d) 412 (Teplitsky): Borden Chemical Co. (Canada) Ltd. and Allied and Technical Workers, Local 13491 (1973), 1973 CanLII 2158 (ON LA), 3 L.A.C. (2d) 383 (Weatherhill); Texaco Canada Ltd. and Oil, Chemical & Atomic Workers, Local 9-599 (1975), 1975 CanLII 2099 (ON LA), 10 L.A.C. (2d) 221 (Shime); Associated Freezers of Canada Ltd., and Teamsters Union, Local 419 (1979), 1979 CanLII 3985 (ON LA), 23 L.A.C. (2d) 40, (Burkett).

The LCBO submitted that the union’s grievance ought to fail for any, or all, of three reasons. First, the shift worked on Saturday was not a “night shift” as set out in article 6.15(b) and defined by article 6.2(ii). The definition of “night shift” in article 6.2(ii) is dependant on the overall definitional structure of article 6.2(a), which limits the understanding of the various shifts set out. Those shifts pertain to “normal hours” as falling between 12:01 am Monday to 12:00 midnight Friday, thereby excluding week-end hours. That is, there are no weekend shifts per se.

Second, if the shifts worked on the Saturdays in questions were “night-shifts”, nonetheless, article 6.15(b) is a mere modifier of article 6.15(a), which limits shift premiums to "regular hours worked,” which excludes overtime hours. Further, no distinction may be drawn between “regular hours” set out in 6.15(a) and the phrase “normal hours”, which is used to define the shift times set out in 6.02. Both indicate an intention to exclude overtime hours as time that might also attract shift premiums. The LCBO said that the only reasonable interpretation of article 6.15 (b) is to exclude its applicability to overtime hours. Otherwise, only the time period of 12:00 to 8:00 am could qualify for the premium. There are no restrictions on the LCBO’s right to schedule weekend hours and the article 6.15(a) shift premium clearly applies only to regular hours not overtime hours. To find that the shift premium only applies to the night shift would produce an unreasonable and anomalous result that could not have been intended by the parties.

The LCBO said that the third basis upon which the grievance should be dismissed is that it is a pyramiding of benefits. As set out above, there is clear language in the collective agreement that the night shift premium is not to be paid for overtime hours. It said that the absence of language against pyramiding does not establish that both premiums are payable unless the language of the collective agreement supports payment of both premiums in the first instance. It requires clear language to confer an economic benefit and the language here does not establish that intention. The purpose of the language at issue is not to provide shift premiums for weekend work. The language required to do so would be much different and not be limited to the 12 to 8 am shift. The language of this collective agreement, considered as a whole, intends overtime and shift premiums to be mutually exclusive.

The employer relied upon the following authorities: Canadian Labour Arbitration (supra), § 4:2000; International Chemical Workers, Local 721 and Brockville Chemicals Ltd. (1966), 1966 CanLII 879 (ON LA), 16 L.A.C. 393 (Weatherhill); U.A.W. and Gardner-Denver Co. (Canada) Ltd. (1968), 1968 CanLII 1222 (ON LA), 19 L.A.C. 409 (Palmer); Gerdau Courtice Steel Inc. and USWA, Local 8918 (2000), 2000 CanLII 50221 (ON LA), 92 L.A.C. (4th) 314 (Weatherhill); DDM Plastics Inc and I.A.M., Local 2792 (2000), 2000 CanLII 29501 (ON LA), 88 L.A.C. (4th) 299 (Solomatenko); Black’s Law Dictionary re: “normal” and “regular”; Longo Brothers Fruit Market and UFCW, Local 633 (1995), 1995 CanLII 18443 (ON LA), 52 L.A.C. (4th) 113, (Solomatenko); Northern Electric Office Employee Association and Northern Electric Co. Ltd. (1968), 1968 CanLII 1234 (ON LA), 19 L.A.C., 125 (Weatherhill); Printing Specialties & Paper Products Union, Local 466 and Interchem Canada Ltd. (1969), 1969 CanLII 1476 (ON LA), 21 L.A.C. 46 (Weatherhill); Burns Meats and UFCW, Local 832 (1995), 1995 CanLII 18440 (MB LA), 50 L.A.C. (4th) 415 (Hamilton): R.W.D.S.U. Local 440 and Ault Milk Products Ltd. (1962), 12 L.A.C. 279 (Anderson); Inland Aggregates Ltd. and I.U.O.E. Local 955(2002), 2002 CanLII 78914 (AB GAA), 106 L.A.C. (4th) 62 (Sims); Canada Post Corp. and CUPW (1993), 1993 CanLII 16663 (CA LA), 39 L.A.C. (4th) 6 (Bird).

In reply, the union first said that I should be guided by the heading “night shift” in article 6.2 in order to define the term, which does not exclude the days of the weekend. Second, article 6.15 (a) and 6. 15(b) are distinct, not intertwined, provisions. Here, article 6.15(b) applies and is not limited to regular hours. It simply applies to the night shift hours as those hours are known to the parties by the application of article 6.2.

Third, the cases relied upon by the LCBO represent the old law that did not sufficiently distinguish between the two different purposes of shift premiums and overtime premiums.

Reasons for Decision

I have carefully considered the submissions of the parties and the jurisprudence upon which each rests. In the cases referred to, the conclusions reached are dependent upon the language of the collective agreements there at issue. Of course, this case also depends upon the language used by the parties to express their intention as to whether night shift premiums ought to be paid for overtime work performed on the weekends. It is agreed that the grievor was paid the night shift premium for the days prior to the four shifts in question. Those shifts were worked on the following Saturdays, from 12:01 am to 8:00 am. It is agreed that he was properly paid overtime for those shifts. The question for determination is whether he ought also to have been paid the night shift premium.

As set out above, any night shift premium is payable by virtue of article 6.15(b). For ease of exposition, article 6.15 (b) is again set out as follows:

(b) An employee working on the night shift as defined in 6.2 (a) above, shall be paid a premium of two dollars ($2.00) per hour for each hour worked.

Clearly, in accordance with article 6.15(b), if the grievor worked the “night shift as defined in 6.2(a)” he qualifies for a premium of two dollars ($2.00) per hour for each hour worked.

It is evident that article 6.2(a) sets out the “normal hours of work”. It is agreed that the grievor’s classification falls within “other employees” under 6.2(a) (ii) “Logistics – Facilities and Private Stock”. The union argues that article 6.15(b) only imports the “night shift” definition, thereby excluding the general purpose of the article, which is to establish normal hours of work. The employer looks to the entire article.

To determine whether the reference in article 6.15(b) to article 6.2(a) requires consideration of the entire article or only refers to the bare definition of “night shift”, requires that the interplay between the two articles be considered within the context of the provisions as a whole and their purposes.

The union correctly submitted that some guidance to intention may be gleaned from the headings used in the collective agreement. Article 6 is entitled “Hours of Work and Overtime”. Overtime is defined as follows:

6.1 For the purpose of this Article:

(a) "overtime" means a period of work computed to the nearest fifteen (15) minutes and,

(i) performed on a regular working day in excess of the regular working period consisting of at least fifteen (15) minutes, or,

(ii) performed on a holiday or other day that is not a regular working day but shall not occur where the work performed is due to shift rotation.

(b) The starting time of the work week shall be Monday, 12:01 a.m.

(c) For payroll purposes, the start of the work week shall be Sunday at 12:01 a.m.

In our case, the overtime involved falls under 6.1(a)(ii), “a period of work performed on a day that is not a regular working day. The grievor was paid overtime pursuant to article 6.6(a) (supra) for “work performed in excess of [his] normal workday”. As set out above, and as is agreed between the parties, the time worked on Saturday was overtime because it was not a regular working day, not because it was in excess of his regular working hours on a regular working day.

As described above, Article 6.2 continues by defining the regular working days applicable to various categories of employee. It is necessary to define the normal hours of work in order to know when overtime is payable. Although those days are defined in terms of “normal hours of work”, the parties agreed before me that “regular” and “normal” have the same meaning in the context of article 6. It is necessary to consider the overall structure of article 6.2. There are 6 categories of employee for whom the normal hours of work are set out. Within each category, the applicable shifts are set out, including the night shift of the grievor set out in 6.2(a) (ii), reproduced above. Clearly, the night shift is defined within the context of the grievor’s normal hours, not his overtime hours. Article 6.2(a) must be taken as a whole. There is no basis upon which the night shift definition may be carved out to stand alone for the purposes of article 6.15 (b). Article 6.2 (a) defines the various regular working days of the different categories of employees. That is the definition that is imported into article 6.15(b). Accordingly, the grievor would be entitled to the night shift premium if he was working the night shift on a regular work day. It is agreed that he was not working on a regular work day. Accordingly, he is not entitled to the night shift premium.

That conclusion is buttressed by the fact that it harmonizes the bases upon which any shift premium is payable under article 6.15. Manifestly, shift premiums payable under article 6.15(a) are only payable “for all regular hours worked” between 6:00 p.m. and 7:00 a.m. That is, that premium would not be payable for overtime hours worked, which are hours worked outside regular hours, as set out in article 6.1 above. It would be an anomaly if the shift premium was not payable under 6.15(a) but was payable for a slightly different time period pursuant to 6.15(b).

The Decision

The grievance is denied. It was not a violation of the collective agreement not to pay the grievor the night shift premium for the shifts worked on August 23, September 27, November 8 and 15, 2003.

Dated at Toronto this 22nd day of February, 2005.