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HomeMy WebLinkAbout1991-0564.Dicker.93-06-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Dicker) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer BEFORE: N. Dissanayake Vice-Chairperson J. Mcmanus Member D. Halpert Member FOR THE GRIEVOR S. Philpott Counsel Xoskie & Minsky Barristers & Solicitors FOR THE EMPLOYER R. Little Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 13, 1991 August 24, 1992 This is a grievance of Mr. Uoyd Dicker claiming that the employer has Improperly used a causal employee to replace the store manager in store number 337 in Courtright, Ontario during the latter’s absence between February 18 and 23, 1991. Mr. Dicker claims that he was the senior clerk 4 in the geographic area and that he was entRIed to replace the manager in question. By way of remedy the union seeks a declaration that the employer has contravened the collective agreement and a direction that the grievor be compensated for the loss of acting pay. The hearing in this matter was concluded on August 24, 1992. However, subsequently both counsel made additional written representations, the last of which was received on November 12, 1992. In determining this grievance, we have considered the evidence and submissions offered at the hearing, as well as the subsequent written representations. For administrative purposes of the LCBO, the province is divided into five regions. Each region is in turn divided into five districts. Within this organization, the LCEO operates approximately 620 retail stores and fiie warehouses. It employs approximately 4500 employees in the bargaining unit. The stores themselves are categorized into A, B, C and D stores, primarily based on size. D stores are the smallest, In a D store, the employee complement consists only of the store manager and one or more casual employees. The store managers in C and D stores are members of the bargaining unit. At the relevant time, the grievor was employed as a clerk 4 (full-time) at store no. 459 in Clearwater, Ontario. Commencing February 18, 1991. the Manager at the store in Courtright, Ontario, a D store, was absent from work for a period of one week in order to attend a training course. During the manager’s absence, the most senior casual employee from within the Courtright store replaced him. 3 The union claims on behalf of the grievor that by virtue of articles 21.5.C. 29.1 and a Letter of Agreement in the collective agreement, the grievor was entitled to replace the manager a! the Courtrlght store, and that by using a casual employee, the employer had contravened the collective agreement. Those provisions read as follows: 21.5.c In filling temporary vacancies (including summer stores) which will last five (5) working days or more, the Board shall appoint the most senior employee in the department or section involved, provided the employee is qualified and available to perform the work. However, the minimum requirements of five (5) days shall not apply in the case of stores. 29.1 The Employers agree not to utilize permanent part-time employees or casuals to replace permanent full-time employees. Nor will the Employers utilize casuals to replace permanent part-time employees, Any utilization as referred to in this article will not adversely affect job training opportunities for permanent full-time or permanent part-time employees. LETTER OF AGREEMENT TEMPORARY REPLACEMENT OF STORE MANAGER Where it is decided that it is necessary to make a temporary appointment to replace the absent Store Manager, it is the policy of the Board to appoint the most senior person~in the next lowest classification who is quallied and available to perform the Store Manager’s job. The evidence is that the grievor is the second most senior clerk 4. The most senior employee was already in an acting management position and he has not grieved. Therefore the union submits that for all intents and purposes, the grievor was the most senior clerk 4 in the geographic area, and that as such, he was entitled to replace the manager at the Courtright store. The union purported to lead evidence as to past practice in replacing absent store managers. The only witness called by the union had no ability to give direct testimony as to any practice. Her testlmony was based solely on her ‘understandings from talking to people”. She also testtfled as to the understanding of the union when they signed the collective agreement. That evidence ie of 4 no assistance. The employer’s evidence, together with the grievor’s evidence, establishes that In 5 districts, the practice had been to replace absent D store managers with the most senior casual employee. However the evidence further indicates that in the district where these stores are located, prior to the Incident giving rise to this grievance the practice was not to replace absent managers with casual employees from within the store. Once the current manager of the District took over in October 1990, in consultation with senior management, he started using casual employees to replace managers, as he had done in the past in two other districts. Suffice it to observe that this evidence at best establishes that the past practice has not been consistent in the districts. We know that in five districts casual employees replaced absent managers. In one they did not. We have no evidence as to the practice in the remaining districts. This evidence does not assist us to resolve any ambiguity that may exist in the collective agreement. In any event, this Board has dealt with the issue between the parties in Re Croohan et al, 462/91 (Gorsky) by interpreting the relevant provisions. The Board !here dealt with a number of grievances. The employer conduct that gave rise to the grievances is set out at p. 1. In 1991, in the case of the stores with which the grievances before us are concerned, when appointing employees to temporary vacancies as Acting Store Managers or Summer Store Managers, the Employer appointed the most senior qualified employee who worked in the store where the vacancy existed. The Employer did not offer the positions to regular part-time or full-time employees, wherever they might be working wfthln the District, before offering such posttions to the most senior casual employee working in the stores with which we are concerned. In the cases with which we are concerned, there were only casual employees employed i.n the stores when the appolntments complained of were made. The facts relevant to one of the grlavances are remarkably sinrilar to the facts before us. At p. 13 the Board sets, out those facts: 5 It was acknowfedged that the above grievance arose as a result of a temporary vacancy created when George Wilson. the Store Manager at Store # 235, Powassan, Ontario, was promoted to the position of “c” Store Manager. Store # 464, Schrefber, Ontario, effective January 14. 1991 (Exhibit 3). As a result of mr. Wson’s promotion, a position posting (Exhibit 4) took place on January 3, 1991 in order to fill the position which was that of “D” Store Manager, classified as Liquor Store Manager 1. The successful candidate, Tom O’Connor, was appointed to the position effective February 25, 1991. This grievance concerns Ms. Croghan’s claim that she was entitled to fill the position of Manager on an acting basis for the approximate live week period during which no permanent appointment had been made. Instead, the Employer appointed a casual employee, Ms. Latour, to fill the position. Store # 235 has a normal complement of one permanent full-time employee (the Manager) and two casual employees, who were Ms. Latour and a Ms. Williams, with Ms. Latour having greater seniority. The union there argued that article 21.5(c) had no application to casual employees. In a well reasoned majority award, the Board disagreed. At pp. 12-13 the Board concluded: As noted above, counsel for the Union made a very detailed argument based on a careful analysis of many of the provisions of the collective agreement, with a view to establishing that casual employees only have seniority rights where such rights are specifically granted. For the reasons given above, we find that art. 21.5(c) also applies to casual employees. Where the application to a particular group of employees is unclear from a reading of an article, it may be necessary to rely on various rules of interpretation for the purpose of finding the existence of an inference supporting a particular meaning. Notwithstanding counsel for the Union’s most impressive argument: (1) as the provisions of art. 21.5(c) have been specifically made~applicable to casual employees by an. 31: (2) as art. 21 was not made inapplicable by art. 31.3; and (3) as the limited application of art. 21, provided for in art. 31.3, did not include an. 21,5(c). we are unable, to accept her conclusion Article 21.5(c) entitles the employer to appoint the most senior employee “in the department or section involved” in filing temporary vacancies, The union submitted that “the department or section” referred to the whole district. The Board disagreed again At pp. 15-17, the Board stated: Because the Board Is required to substitute words for the reality of the day-to- day operations of the Employer. there Is a danger that in using words we will lose slght of raaltty. Accordingly, we must endeavour, throughout our declston. to test the words chosen by us’to reflect realfty against that reality. When the partles negotiated the 6 collective agreement, they must have been aware that there ar8 districts, such as District 24. which cover a large geographic area where the distance between some stores can be consfderabfe. This reality must have been in their minds when they drafted art. 21.5(c). In the absence of a clear indication within that article as to the meaning of “department of section,” we can examine the purpose behind the article. it was to enable the Employer to fill temporary vacancies, sometimes for very short periods of time. Any interpretation that would, in many cases, make the realisation of that purpose unlikely ought to be rejected unless the language of the agreement makes it clear that the parties had agreed to it. We note that “the minimum requirement of five days (does) not apply in the case of stores,” and it was acknowledged by the parties that article .21.5(c) could apply, for example, to a store where there was a temporary vacancy of as little as three hours. This would mean, if the Union’s interpretation was accepted, that the Employar would have to offer the temporary vacancy in a store to the “most senior (permanent) employee” in District 24 who was qualified and who might be available. This would place the burden on the Employer to conduct a search for the most senior employee in the District, communicating with that employee and then, if she was not interested in accepting the temporary appointment, going to the next qualified and possibly available employee within the District, and so on. There was nothing to stop the parties from agreeing to such a provision, and they can still do so. However, to accept the interpretation of the Union would create a situation that would border on the unworkable. It might work in some cases, but it is evident that ii could create chaos in others. There is also some support for the Employer’s position found in the collective agreement. In art. 21.5(c) there is some indication that a store is a department. This is seen from the last line of art. 21.5(c) which states: “However, the minimum requirements of five (5) days shall not.apply in the case of stores.” It is difficult to interpret a store as being a department or section and at the same time, interpret the district where the store is located as also being a department or section. ir would appear that a department might encompass other establishments operated by the Employer within a district, but it is Inconsistent, have employed the language found in the article, to then argue that department also means district. In the present case the union’s position is slightly different, It takes the position that the employer must appoint the most senior full-time employee in the “geographic area”, as opposed to the “district”. In other words, the argument was to the effect that ‘department or section” meant “geographic area”. We cannot agree. The only provision where that term “geographic area” Is used is In article 21.4(a) In dealing the posting of permanent vacancies or a newly created positions. If the parties LItended to use the same concept In the lmmsdlately following provlsfon article 21.5. it would have been easy and logical for them to have used the same phrase “geographic area’, Instead of ‘department or sectlon’. Indeed, thelr iallure to do so Is, In our view, a clear lndlcatfon . . 7 that the parties Intended somethlng other than geographic area. There simply is no basis for importing the concept of ‘geographic area” into article 21.5(c). At pp. 18-19 of the Croahan decision the Board dealt with atticle 29.1 and the Letter of Agreement as follows: We do not regard the letter of agreement, above quoted from p, 129 of Ihe collective agreement, as affecting our interpretation of art. 21,5(c). The letter must be read in the light of art. 21,5(c) and its restriction to the “department or section involved” We also believe that art. 29.1 can be harmonized with our interpretation of the provisions of art. 21.5(c). We regard art. 29.1 as representing a general provision, whereas aft 21.4(c) is concerned with the rights of employees w!thin a particular store or other establishment or work unit. There is room for art. 29.1 to apply Where the Grievers and the casual employees selected, work within the same “department or section.” We are of’the view that based on the language in the collective agreement it is not reasonable to interpret the collective agreement in the manner suggested by the union. in addition, that interpretation is not a very sensible one either. Under article 21.4, there is no requirement for the posting of temporary vacancies. The union does not dispute that. The union agrees that the most senior casual employee in the store is entitled to replace a manager for unforeseeable absences of not more than 7 days but not for longer absences. However, if the absenC8 is foreseeable, as was the case here, the union contends that the senior clerk 4 in the geographic area is entitled to fill in even if the absence is for one day, Eventhough “geographic area” is not as wide an area of seiirch as a district, article 21.5(c) can still be very impractical when there is a need for replacing a manager for a short period, if the union’s interpretation is accepted. As employer counsel pointed out, and this was not challenged, in Metropolitan Toronto there are some 100 stores within the geographic area. If a manager of a store is scheduled to attend a training seminar or some similar event for one day or even for a few hours, In order to replace him during this foreseeable absence, the employer may have to canvass within each of the 100 stores, according to senforfty, to find the most senior full-tlme employee, who Is qualified and willing to fill in. As the Board in Re pointed out, this could create chaos in some cases and where a more sensible interpretation is reasonably possible, ft must be preferred. Union counsel submitted that Re Croahan was wrongly decided and ought not to be followed. We are satisfied that the Board’s interpretation of the relqfant provisions of the collective agreement in Re Croahan was a reasonable and sensible one. It certainly cannot be said to be manifestly wrong. In addition to the reasoning of the Board in that case, we agree with employer counsel that the reference in the Letter of Agreement to “where there is a need to replace &$ store manager, is clearly supportive of the employer’s interpretation. If the letter intended to refer to the district or the geographic area, it would have referred to ‘3 manager”, because there will be more than one manager within a district or geographic area. We can understand that the union and the grievor may find it offensive and unfair that a casual employee gets priority over full-time regular employees with regard to an opportunity to earn higher acting pay, even for a short period. However, every situation must be governed according to the provisions of the collective agreement. As presently framed, the union has not established that the employer conduct in the circumstances, was in contravention of any provision of the agreement. Therefore this grievance is hereby dismissed. . . 1 9 Dated thls 2 5 day of June, 1993 at Hamilton, Ontario . ~-A.&4 I L--- I N. Dissanayake Vice-Chairperson *‘I Dissent” Dissent Attached J. McManus Member IN THE MATTER OF A ARBITRATION BETWEEN; ONTARIO LIQUOR BOARD EMPLOYEES UNION GRIEVOR DICEEI? FILE %4/‘31 AND: LIQUOE CONTROL BOARD OF ONTARIO DISSENT. ____--_----_-----_--_ I have read the award of the ma.jor ity and find that after careful consj.deration, that I can not agree On review qc*f the callection agreement, I find that this article should be given further ~:onsideration. Casual employee~j throughout the LCBO system do not have equivalent seniority rights to those of permanent full-time and permanent pat-time employees. Rather, there is a three- tiered seniority system, with casual employees at the bottom. The interpretation that has been placed un 21.5(C) by Mr. Gorsky in the C’ROGHAN award,is I think, inconsistent with that three-tiered approach in the co1 lect ive agreement. It ii;, in addit ian, inconsistent with Article. 3i.SCA:r af the aqreement which specifies the Articles 31.4/31,7 and 21.68(B) for which the casual employees will be considered to have seniority. No mention is made in the award of Article 31.5CA) DEPAFTMENT OR SECTION AND STORES; ___-_____--_____-_------------.---- There is nn cunsideratiun given as to why the parties used both the phrase ” department aor sect ion” and stores in Article ‘31.5c’Cj. That is, the result of both awards is to equate the meaning aof those two phrases without any comment as to why the parties used different phrases tu purportedly convey the same meaning.If the parties meant “store” when they said “department or section”, why didn’t they say store. This agreement is a very sophisticated document, and the parties use of words has always to me been very precise and well thought out in the past. ccm’t .*... . . . .page 2. It is more logical to conclude that the use of the word “stores” in Article 21.5CC:a encompasses a group of stores, which would be equivalent to c7 department ,cw set t ion w the most logical way to divide the stores as a whnle into groups of stures, is to divide them into geographic areas as dictated by the Job F’ost ing provision. The explanation far the parties not using the phrase “geographic area” in Article 21.511C:~ is because, the article applies tn mcwe than .just stores. That is , it applies tn the warehouse and the head office ~7% well ,but ~zonfines the scope of application tu the parti,c:ular warehouse #or off ice involved. At page eight (811 ssf. the award the ma.jority relies upon a stakement by the Emplc#yer counsel tc. the effect that in Metr~opc~l itan Toronto there are some 100 Stores within the geographic area, and the application of the Union’s interpretation of Article ‘25.5(c:), ws::uld be unworkable in such a large area. I do n jot recall any evidence being called nn that point, hwever, my notes indicate,that there are few, if any C.or D. stores in the Metropolitan Toronto area and, therefore, ‘the potent ial chaos referred to would simply not arise. REPLACEMENT OF 1::. D. STOF:E MANAGERS. __-_---__-_---__-__-----~--~~-.----.--- The Grievor’s evidence was that he, as mcjst senior employee in the geographic area, always replaced absent store managers until the incident which gave rise to this grievance.& page four (43, at the top af the page, there is reference to the Grievor’s evidence establishing that, ” in 5 Districts, the practice had been ta replace absent D staore managers with the most senior ~casual emplnyees” There is nothing in the evidence, as far a~ I recall, that would give rise to a basis for this comment. grievance. In conclusion, I would have upheld the Board member, J.D. tic Manus.