GSB#2012-0396

UNION#2011-0378-0095

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Behm et al.)

Union

• and -

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

Employer

BEFORE

Gerry Lee

Vice-Chair

FOR THE UNION

Val Patrick Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Neil Lenihan Liquor Control Board of Ontario Human Resource, Service Manager

HEARING

August 31, 2012.

Decision

1The parties referred the above captioned grievance to mediation/arbitration in accordance with Article 22.11 and Appendix 2 of the Collective Agreement. This decision is with respect to a group grievance comprising of seasonal employees regarding overtime equalization. Specifically, the Grievors claim that on November 26 and 27, 2011, the Employer asked full time employees if they wished to work two separate back-to-back shifts (8am to 4pm and then 4pm to 12 midnight) on each of the aforementioned dates. The Grievors are of the view that after the full time employees are asked for the first set of shifts, the second set of shifts should be offered to seasonal employees prior to offering such overtime shifts to the full-time employees. The remedy requested by the Grievors is that they be paid time the appropriate overtime premium for the shifts in question.

2The Employer cited article 6.6 (b) of the collective agreement as well as a Memorandum of Agreement found at page 229 of the collective agreement as the rationale behind their decision to offer the shifts in question to full time employees prior to offering such overtime work to seasonal employees.

Article 6.6 (b) states:

Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees or in logistics facilities to seasonal employees and then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee.

3The employer explained that this article requires that the Employer only canvass seasonal employees after no full time employee volunteers for the overtime shifts in question. The Employer added that the 8am - 4pm shift may not suit some full-time employees for various reasons whereas a 4pm - 12 midnight shift may be acceptable. Accordingly, the Employer believed that if they asked seasonal employees to work the second shift without first canvassing the full time employees, such full time employees would likely grieve that the employer violated article 6.6 (b) of the collective agreement. The Employer also referenced the following section from the above mentioned Memorandum of Agreement in support of their position:

Overtime hours will not be offered to an employee where such hours will result in the employee working more than (2) full shifts in any 24 hour period. To clarify, each employee must have a minimum of one shift off (not working), in any 24 hour period…..

The Employer stated that this clause was introduced several years ago to prevent workers from performing a “triple shift” and indicates that the parties have had a long standing practice of allowing full time workers to work two back-to-back shifts.

4At the outset of the hearing, the parties agreed that I had jurisdiction to deal with this matter. Following extensive and well-presented details of the facts and circumstances surrounding this dispute by both parties’ representatives, I am of the view that it is not necessary to set out their positions in any further detail. Accordingly, I will render a succinct “bottom line decision” disposing of this matter.

5Having carefully considered the submissions made by the parties during the course of our mediation-arbitration session and after a review of all of the documentary evidence presented, this grievance is hereby dismissed.