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HomeMy WebLinkAbout2005-3601.Sin.08-01-30 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2005-3601 UNION# OLB001/06 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sin) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Laurie Kent Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario HEARING August 14, November 23 & 29, 2007; January 8, 2008. 2 Decision The grievor, Mr. Lawrence Sin, is a casual employee employed by the employer. He has filed a grievance with respect to a job posting for the position of Product Consultant, for which he had applied unsuccessfully. That grievance came before the Board for hearing on April 17, 2007. At the commencement of the hearing, the parties raised an issue that had arisen between them. The employer noted that the grievance alleges a violation of article 31.4(b) of the collective agreement, which provides: The Employer agrees to give consideration to the qualifications and ability of casuals for permanent full-time vacancies at the entry level in their geographic area, provided that no permanent part-time employees have applied. Where qualifications and ability are relatively equal, seniority shall be the determining factor. The employer took the position that the Board lacked jurisdiction to deal with the grievance and moved that the Board decline to hear the grievance. The union disputed the employer’s position that article 31.4(b) had no application to the circumstances of the instant grievance. However, besides opposing the employer’s motion on its merits, union counsel took the position that in any event the employer is estopped from taking such a position. In the further alternative, the union took the position that even if the Board finds that the grievor did not have rights under article 3 31.4(b) based on its interpretation or based on estoppel, it should nevertheless take jurisdiction over the grievance on the basis of fairness. The parties agreed upon a statement of facts, which was supplemented by viva voce and documentary evidence. The agreed statement of fact reads: AGREED STATEMENT OF FACTS The Employer and the Union (hereinafter “the Parties”) agree that the following agreed statement of facts are being entered into this matter without prejudice and precedent to any other matter between the Parties, for the purposes only of this hearing, and may be supplemented by either Party by viva voce evidence. 1. The Liquor Control Board of Ontario (the "Employer") is incorporated by statute and is responsible for the distribution and sale of alcohol in the Province of Ontario. OPSEU Liquor Board Employees Division (the "Union") is the exclusive bargaining agent for all permanent full time employees in the classifications shown in the Salary and Classification Schedule appended to the Collective Agreement, seasonal employees as per Appendix 4 and casual employees as per the Schedules of Casual Hourly Wage Rates at pages 131 – 132 of the Collective Agreement. Until 1995, the bargaining unit employees referenced herein were represented by the Ontario Liquor Board Employees Union (“OLBEU”) which merged with OPSEU in 2005. 2. The Parties have had a long-standing collective bargaining history. The current Collective Agreement is in existence from April 1, 2005 to March 31, 2009 (“the current Collective Agreement”) and a copy is appended hereto as Exhibit 1. 3. Until some point in the 1990’s, and through legislation, the Employer’s bargaining unit employees were prohibited from striking and thus outstanding bargaining issues were resolved through interest arbitrations. The language that subsequently became Article 31.4(b) initially appeared as a result of an interest arbitration chaired by Michel Picher on June 20, 1987 (“the 1987 interest arbitration). A second interest arbitration decision pertaining to casual promotion language was issued on February 12, 1988 (“the 1988 interest arbitration]. Copies of the 1987 and the 1988 interest arbitrations are appended hereto as Exhibit 2. 4 Article 31.4(b) 4. Following the 1987 interest arbitration and the 1988 interest arbitration, the Parties inserted what was then Article 32.4 into the 1987 Collective Agreement which was finalized on September 20, 1988. Appended hereto as Exhibit 3 is a copy of Article 32.4 from the 1987 Collective Agreement. 5. Appended hereto as Exhibit 4 is a copy of Article 32.4 from the 1985 Collective Agreement. 6. The Parties have not addressed the job posting provisions as they pertain to casual employees during collective bargaining since this language was first introduced in the 1987 Collective Agreement. “Geographic Area” 7. The Parties have agreed to a series of Geographic Posting Areas which set out the areas and/or stores from which and to which eligible bargaining unit employees can apply for vacancies through the job postings. These are the “geographic areas” referred to in Article 21,(4(a)(i), 31.4(b) and the Memorandum of Agreement re C/D Store Manager Geographical Posting Area found at pages 183 – 4 of the Collective Agreement. Falcioni decision and job competition process 8. In 1990, the Employer posted a job posting for the full time position of Wine Consultant (“Wine Consultant”), which was classification code 17. A job competition was held in 1991 following which a casual employee named Natalie Falcioni filed a grievance alleging that she had been unjustly denied a promotion to the Wine Consultant position (“the Falcioni Grievance”). The Falcioni Grievance proceeded to Arbitration and decisions were rendered on June 11, 1992 and May 20, 1993. A copy of these decisions is attached hereto as Exhibits 5 and 6. 9. The job competition process for the position of Wine Consultant was to have applicants complete a Q35 and to submit a résumé. Applicants screened into the competition participated in the interview process which consisted of interview questions, palate sensitivity and a written test. The palate sensitivity and the written test were weighted 40% overall and the interview was weighted 60% overall and the passing rate was 70% overall. Wine Consultants/Senior Wine Consultants 10. In 1990, in addition to the position of Wine Consultant, there was also a position of Senior Wine Consultant which was classification code 16. Copies of the job descriptions for the positions of Wine Consultant and Senior Wine Consultant are 5 appended hereto as Exhibits 7 and 8. Also appended hereto as Exhibit 9 is an excerpt from the 1991 Collective Agreement for the salary ranges for the positions of Wine Consultant, Senior Wine Consultant, and Liquor Store Clerk Grade 3, Customer Service Representative. Product Consultants 11. In 1994, and as a result of a grievance settlement, the Employer and the OLBEU agreed to the establishment of a revised salary range for the positions of Wine Consultant and Senior Wine Consultant resulting in the creation of one (1) position to be titled Product Consultant. Product Consultants are classification code 16. In 1996, the Product Consultant classification appeared in the Collective Agreement and a copy of the salary range for the Product Consultant position is appended hereto as Exhibit 10. A copy of the job description for the position of Product Consultant is appended hereto as Exhibit 11 and the current job description from 2007 is appended at Exhibit 12. Job Competition process for Product Consultant 12. Up until 1995 or 1996, the job competition process for Product Consultant was conducted in the same manner as the job competition process for Wine Consultant. A copy of the job posting for the position of Product Consultant from 1994 (ER 102/94) is appended hereto as Exhibit 13. A copy of the job posting for the Product Consultant job competition conducted in 1995 in Eastern Region (ER 81/95) is appended hereto as Exhibit 14. 13. By 1996 or 1997, applicants in Product Consultant job competitions were required to complete a questionnaire. Candidates were selected for interviews and presentations based upon the scoring of the questionnaires. Attached hereto as Exhibit 15 is a copy of the job posting for a 1997 Eastern Region Product Consultant job competition (ER 79/97). 14. From 1990 to present, casual employees have been eligible to apply for the position of Product Consultant and have participated in the Product Consultant job competitions. 15. Applicants in Product Consultant job competitions starting in 1995 or 1996 were required to complete a questionnaire which was scored. If the applicant scored 50% or more, they were invited to the next stage of the competition which is a product knowledge section consisting of a written and tasting tests (including palate sensitivity testing) consisting of 30% overall. If they scored 50% or more on the product knowledge section they are invited to the interview and presentation portion of the job competition consisting of 70% overall. The results of the product knowledge section and the interview and presentation section were totaled out of 100%. From 1990 until 1995 or 1996 the passing rate was 70% and in 6 approximately 1998 the passing rate was changed to 50%. The questionnaire was introduced in approximately 1995 or 1996 and is referenced in the job postings at least at 1997 as per job posting ER 79/97 which is appended hereto as Exhibit 15. This job competition process is still being used in 2007. 16. A number of the job competition files for Product Consultants no longer exist, having been shredded. At a minimum, the Employer no longer has the files for Product Consultant job competitions held before 1998 in Central Region and before 2005 in Western Region. 17. Appended hereto as Exhibit 16 are the job posting, job competition results and appointment memo dated May 1, 1998 in a Product Consultant job competition conducted in 1998 in Eastern Region (“ER 01/98”) in which casual employee Pia Quesnel was appointed to the position of Product Consultant. 18. Appended hereto as Exhibit 17 are the job posting, job competition results and appointment letters from December 1998 for a Product Consultant job competition conducted in 1998 in Eastern Region (“ER 92/98”) in which Lori Anne Davis, Vernon Liboiren, Natale Lofaro and Mike Touzel were appointed to the position of Product Consultant. 19. Appended hereto as Exhibit 18 are the job posting, job competition results and appointment letters for a Product Consultant job competition conducted in 1999 in Central Region (“CR 25/99”) in which casuals Paula DeRosa, Thomas Royko, Joe Gentile and Aaron Pitcher were appointed to the position of Product Consultant. 20. Appended hereto as Exhibit 19 are the job posting, job competition results and appointment letters for a Product Consultant job competition conducted in 2000 in Eastern Region (“ER 141/2000”) in which casual Anne Sullivan was appointed to the position of Product Consultant. Anne Sullivan had less seniority than Betty Ann Maley who was also a casual employee. 21. Appended hereto as Exhibit 20 are the job posting, incomplete job competition results and announcement for a Product Consultant job competition conducted in 2001 in Western Region (“WR 47/01”) in which casual Gillian Love-Slowey was appointed to the position of Product Consultant. 22. Appended hereto as Exhibit 21 are the job posting, job competition results and letters and list of applicants for a Product Consultant job competition conducted in 2001 in Northern Region (“NR 163/2001”) in which casual Brent Douglas was appointed to the position of Product Consultant. 23. Appended hereto as Exhibit 22 are the job posting, job competition results and announcement for a Product Consultant job competition conducted in 2001 in 7 Central Region (“CR 10/2001”) in which casual Lesley Marsh, Kathleen Ash were appointed to the position of Product Consultant. 24. Appended hereto as Exhibit 23 are the job posting, job competition results and announcement for a Product Consultant job competition conducted in 2001 in Central Region (“CR 08/2001”) in which casual John Daniel, Laurie Bowmaster, Marc Staples, were appointed to the position of Product Consultant. 25. Appended hereto as Exhibit 24 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2002 (“CR 10/2002”) in which casual employees Robert Miller and Astrid Brummer were appointed to the position of Product Consultant. 26. Appended hereto as Exhibit 25 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2002 (“CR 16/2002”) in which casual employees Natalie Kovalchuk, Brian Krentz, Paul Farrell, Melyssa Wrigley were appointed to the position of Product Consultant. 27. Appended hereto as Exhibit 26 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2002 (“CR 013/02”) in which a casual employee Leah-Anne Austin was appointed to the position of Product Consultant. 28. Appended hereto as Exhibit 27 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2003 (“CR 03/2003”) in which a casual employees, Kathie Gray-Wilson, Daphne Wiersma, Brant Gibbard, Ellen Keleher, Daniel Lafleur, Ryan Timms, James Thorpe, Neal Boven, Joe Abruscato, were appointed to the position of Product Consultant. 29. Appended hereto as Exhibit 28 are the job posting, competition results and announcements in a Product Consultant job competition conducted in Central Region in 2003 (“CR 06/2003”) in which a casual employee, Shelley Hutchison, was appointed to the position of Product Consultant. 30. Appended hereto as Exhibit 29 are the job posting, competition results and announcements in a Product Consultant job competition conducted in Western Region in 2003 (“WR 09/2003”) in which a casual employee, Zak Nicholls, was appointed to the position of Product Consultant. 31. Appended hereto as Exhibit 30 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Western Region in 2004 (“WR 26/2004”) in which a casual employee, Mary Beth Braiden, was appointed to the position of Product Consultant. 8 32. Appended hereto as Exhibit 31 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Northern Region in 2004 (“NR 184/2004”) in which a casual employee, Linda MacKenzie, was appointed to the position of Product Consultant. 33. Appended hereto as Exhibit 32 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Western Region in 2004 (“WR 35/2004”) in which a casual employees Kimberly Belliveau and Julianne Grabell were appointed to the position of Product Consultant. 34. Appended hereto as Exhibit 33 are the job postings, list of applicants, job competition results, and announcements in a Product Consultant job competition transfer to Northern Region in 2004 (“NR 10/2004”) from Central Region in which a product consultant, Riley Bulmer, was transferred from Central Region to Northern Region. 35. Appended hereto as Exhibit 34 are the job posting and list of applicants, and competition results in a Product Consultant job transfer to Northern Region in 2004 (“NR 11/04”) from Central Region. 36. Appended hereto as Exhibit 35 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2005 (“CR 11/2005”) in which a casual employees Kimberly Morden, Gail Eckley, Maria Deleanu, were appointed to the position of Product Consultant. 37. Appended hereto as Exhibit 36 are the job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2005 (“CR 12/2005”) in which a casual employee, Christopher Freeland, was appointed to the position of Product Consultant. 38. Appended hereto as Exhibit 37 are the job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2006 (“CR 14/2006”) in which a casual employee, Kimberly Day, Shannon Landry were Fernanda Cerone were appointed to the position of Product Consultant. 39. Appended hereto as Exhibit 38 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2006 (“CR 12/2006”) in which a casual employees Gulnar Kazbekova, Sean Ormsby, Ugo Naccarato, Laura Ruffolo, Anthony Tanov were appointed to the position of Product Consultant. 40. Appended hereto as Exhibit 39 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Western 9 Region in 2006 (“WR 7/2006”) in which a casual employees Diane Braemer and Carol Popovacki were appointed to the position of bilingual Product Consultant. 41. Appended hereto as Exhibit 40 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2007 (“CR 04/2007”) in which a casual employees Janet Nastamagu, Laura Aiello, Dina Martin were appointed to the position of Product Consultant. 42. Appended hereto as Exhibit 41 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Central Region in 2007 (“CR 03/2007”) in which a casual employees Shin Carew, Jill Kavanagh, Eric Warren were appointed to the position of Product Consultant. 43. Appended hereto as Exhibit 42 are the job posting, job competition results and announcements in a Product Consultant job competition conducted in Western Region in 2007 (“WR 02/2007”) in which a casual employees Gail Martin and Charles Ronzio were appointed to the position of Product Consultant. 44. Appended hereto as Exhibit 43 are the job posting, job competition results and announcements and letters and candidate ranking in a Product Consultant job competition conducted in Eastern Region in 2007 (“ER 4/2007”) in which a casual employees Lydia Seelye and Tara Whiteside were appointed to the position of bilingual Product Consultant. 45. Appended hereto as Exhibit 44 are the job posting, job competition results and announcements in the Product Consultant job competition conducted in Central Region in 2005 (“CR 10/05”) in which casuals Antonio Ruscetta, Gina Spagnuolo, Katherine Rycroft, Mona MacDonald, Luc Gauthier were appointed to the position of Product Consultant. This is the job competition that is currently before Vice- Chair Dissanayake. The Grievor, Lawrence Sin 46. The Grievor is a casual employee who has been employed by the Employer since April 2000 and who works in Geographic Area “A” and his seniority date is April 3, 2000. 47. The Grievor applied for the position of Product Consultant in 2002, 2003, 2005, 2006 and 2007. Those job competitions for the position of Product Consultant from 2003 to 2007 were open to all LCBO bargaining unit employees in Area “A” which is the Toronto area, which included casual employees. 10 48. By letter dated May 5, 2003, the Grievor was advised that he was not successful in the Product Consultant job competition CR 03/2003. A copy of this letter is appended hereto as Exhibit 45. 49. The Grievor filed a grievance on January 5, 2006, following the 2005 job competition, alleging that he had been unjustly denied a permanent full-time position of Product Consultant in violation of Article 31 of the Collective Agreement (“the Grievance”). A copy of the Grievance is appended hereto as Exhibit 46. 50. The Grievance was processed through the grievance procedure, was referred to arbitration and is scheduled before Vice-Chair Dissanayake. Until April 2007, the Employer did not raise the issue that Article 31.4(b) had no application to the Grievance during the grievance procedure. (Appendices omitted in this decision) Viva voce evidence was adduced on behalf of the employer through Mr. Michael Fagan (Manager of the Knowledge Research Group) and on behalf of the union through Mr. Steve Saysell (Staff Representative OPSEU). The Interpretation of article 31.4(b) Under article 31.4(b), the right to have qualifications and ability considered, with seniority as the determining factor where those are relatively equal is conferred upon casuals for “permanent full-time vacancies at the entry level in their geographic area”. This right is subject to the condition that no temporary part-time employees have applied. The parties are in dispute as to the meaning of “permanent full-time vacancies at the entry level in their geographic area”. The employer’s position is that under that provision casual employees may only apply for entry level positions. It is submitted that in the retail division, with which are concerned, the entry level position is Liquor Store Clerk 11 Grade III, commonly referred to as Customer Service Representative, and that article 31.4(b) only applies where a casual employee applies for that position. The employer submitted that the position of Product Consultant is not an entry level position, but a higher ranked position with a higher rate of pay under the collective agreement. It is on that basis that the employer submits that the grievor, a casual employee, is not entitled to grieve under article 31.4(b) with respect to a job competition for a position of Product Consultant. The union advocates a different interpretation of the words “entry level”. In its view, the use of that phrase is only intended to mean that a casual employee will be placed in the first step in the wage schedule applicable for the position. Counsel points out that the provision does not say “entry level position”, and submits that to uphold the employer’s interpretation the word “position” has to be read into article 31.4(b). This, counsel points out, is not permitted. Citing a number of authorities, she submitted that since this article impacts upon the seniority rights of casual employees it is inappropriate to interpret it narrowly as the employer does. Dealing first with the submission based on seniority, it is well established that seniority is one of the most important benefits unions have negotiated on behalf of its members and that “arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.” Re Tung- Sol of Canada Ltd. (1964), 15 L.A.C. 161 (Reville). However that does not mean that 12 employees can be accorded any rights based on seniority unless such rights are bestowed upon them by the collective agreement. The strict interpretation envisaged by authorities such as Re Tung-Sol (supra) pre-supposes that seniority rights have been conferred by the collective agreements in the first place. The proposition that no seniority rights exist unless the collective agreement has bestowed such rights, is expressed as follows in Brown & Beatty, Canadian Labour Arbitration, (4th Ed) at p. 6-10: The scope and significance of seniority rights are largely determined by the specific provisions of each collective agreement. Should an agreement not make any provision for the accumulation of seniority rights, an employer would be free to promote, transfer and lay off employees without regard to length of service. Similarly, if a collective agreement provides that an employer is required, either exclusively or in combination with other factors, to have regard to an employee’s seniority for certain purposes but does not include in that list of purposes layoffs, demotions, transfers, shift assignments or recalls from strikes, seniority rights would have no application in those contexts. (Foot-notes omitted) Therefore, it is necessary to determine whether or not article 31.4(b) bestows a right upon the grievor as a casual employee, to have his seniority (and qualifications and ability) considered in relation to a job competition for the position of Product Consultant. If it does not, he has no seniority rights in that regard to be protected through a strict interpretation. Having carefully considered the able submissions of both counsel, I have concluded that the interpretation advocated by employer counsel must prevail. In my view, the language in article 31.4(b) itself supports an interpretation that “entry level” is used to describe the position, and not the steps in the wage schedule. The article is about “vacancies at the entry level”. A vacancy occurs in relation to a position. In a labour 13 relations context, when one says “there is a vacancy”, it is understood to mean that there is a position which is vacant. In other words “position” is necessarily implied, by the use of the word “vacancy”. A job posting is required when a position is vacant. Therefore, the language indicates that the words “entry level” are used to describe the vacant position. I do not agree that those words “entry level” in article 31.4(b) are used as meaning the first step in the wage schedule. As employer counsel pointed out, where the parties intended to refer to a step in the wage schedule they have expressed that intention clearly in numerous articles in the collective agreement by using phrases such as “Final wage step”, (schedule of Casual Wage Rates at p. 132) “third step” (salary schedule for C.S.R. at p. 134), “second step” (salary schedule for Maintenance Service person at p. 135), “additional step” and “new top step” (Salary schedule for Product Consultant at p.137), “present salary step” (Article 3.4(a), “shall be assigned to the step within the salary range” (Article 5.15), “steps of the salary ranges” (Article 21.1), “shall be entitled to a salary increase of at least one step” (Article 21.2). This indicates that the parties were familiar with the term “wage step” and used it when they intended to refer to it. It would be reasonable to expect that if that was the intention of the parties in agreeing to article 31.4(b), they would have simply used the words “first step” or made some reference to wage “step”. The fact that they did not do so supports the position that “entry level” is a reference to the type of position. 14 Given that interpretation, the next issue is whether Product Consultant is a position at the entry level. Some light is shed on this issue by the provisions in the collective agreement relating to promotions. Article 21.5(a) sets out the criteria to be used in considering employees for promotion. Article 21.4(b) provides that for purposes of article 21.5(a) a promotion is deemed to include inter alia “the assignment of a permanent full-time employee to another permanent full-time position in a class with a higher maximum salary rate than the class of his/her former position”. The wage schedule in the collective agreement establishes that the maximum salary rate for Product Consultant is higher than the maximum salary rate for Customer Service Representative. Thus the movement of an employee from a permanent full-time position of Customer Service Representative to a position of full-time Product Consultant constitutes a “promotion” for the purposes of the collective agreement, and such movement is governed by the selection criteria stipulated in article 21.5(a). The foregoing indicates that the position of Product Consultant is at a level higher than that of a Customer Service Representative. Since it is beyond dispute that the movement of a casual employee to a full-time Customer Service Representative position also constitutes a promotion, the employer’s position is persuasive that the “entry level” position is that of Customer Service Representative. The Product Consultant position is at a level above that of the entry-level position of Customer Service Representative. This interpretation is also buttressed by the evidence that the parties have treated the movement of a Customer Service Representative to the position of Product 15 Consultant as a promotion. The employer’s uncontradicted evidence was that an employee is eligible to apply for a job posting only if the posted position constitutes a promotion to him/her. As an example, managers of “C” and “D” liquor stores are deemed ineligible to apply for a posting for Product Consultant because it does not constitute a promotion for them. Numerous documents were filed, establishing that Customer Service Representatives have regularly applied for Product Consultant postings, have participated in the competitions and have been appointed as Product Consultants. If the union’s position is accepted that the Product Consultant position is the entry level position, that would create the anomalous result that Customer Service Representatives will be ineligible to apply for the higher paid Product Consultant position, while casual employees who are paid even less than the Customer Service Representatives would be eligible. Therefore, I find that the Product Consultant position is not an “entry level” position to which a casual employee such as the grievor is entitled to apply under article 31.4(b). Therefore under the terms of the collective agreement the Board would have no jurisdiction to deal with the instant grievance alleging a violation of article 31. Estoppel In the foregoing passages I have interpreted the rights of the parties under article 31.4(b). Now I proceed to consider the union’s alternate position that the employer is estopped from asserting its strict rights under the provision. 16 Following a review of the definitions of estoppel in common law and arbitral authorities, the essential components of estoppel are described in Brown & Beatty, Canadian Labour Arbitration, at p. 2-68 as follows: Thus, the essentials of estoppel are: a clear and unequivocal representation, particularly where the representation occurs in the context of bargaining; which may be made by words or conduct, or in some circumstances it may result from silence or acquiescence; intended to be relied on by the party to whom it was directed; although that intention may be inferred from what reasonably should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom. With regard to the requirement of a clear and unequivocal representation, the union led evidence about the position the employer took in relation to a prior grievance which was dealt with in two Board decisions by Vice Chair Kaplan (Re Falcioni I, 2308/01 dated July 21, 1992 and Re Falcioni II, 2308/01 dated June 29, 1993). The former decision indicates that at the outset of the proceeding the employer made several preliminary objections, including one of timeliness. However, the employer did not make the objection it has raised in the instant case, to the effect that as a casual employee, the grievor was not entitled to grieve a competition with regard to the position posted (in that case the position of Wine Consultant) because a casual employees rights are only with respect to job postings for entry level positions. On the contrary, in support of its timeliness objection, the employer submitted that as of the date the grievor was informed that she was not successful in the competition she was aware that she had a right under the collective agreement that “jobs were to go to the most qualified person”. A review of the decision relating to the timeliness issue indicates that all parties – the employer, union and incumbent – proceeded on the basis that the grievor, as a casual employee, had a 17 right that the posting be awarded on the basis of seniority. The issue in contention was as to when the grievor actually became aware of the existence of that right. Although Re Falcioni I, which only dealt with preliminary issues, did not explicitly refer to article 31.4(b), the decision on the merits of the grievance in Re Falcioni II makes it clear that article 31.4(b) was the focus of the grievance. The case was about whether the employer had complied with that provision. The employer did not argue in any manner that, as a casual employee, the grievor was not entitled to grieve under article 31.4(b) a job posting for Wine Consultant. Its position was that it had complied with that provision. Indeed, the Board ultimately agreed, and in unanimously dismissing the grievance concluded at p. 44 that “all the evidence establishes that the senior and more qualified applicant obtained the position as is required by the collective agreement”. Counsel for the employer submits that the employer’s conduct in relation to the Falcioni matter does not amount to a clear representation by the employer that article 31.4(b) applied in the circumstances. She submitted that perhaps employer counsel in that case should have objected to the arbitrability of the grievance. Counsel’s failure to do so did not amount to a representation that it was arbitrable. Employer counsel further pointed to the evidence that there were differences in the duties and responsibilities in the positions of Wine Consultant and Product Consultant. She submitted that given those differences, the Wine Consultant position may have been 18 an entry level position along with the position of Customer Service Representative. Therefore, in her view, any representation the employer may have made in relation to a job competition for a Wine Consultant position should have no relevance in this case. Mr. Fagan testified that the position of Wine Consultant was created in 1958 and that in 1994 the Wine Consultant and Senior Wine Consultant positions were discontinued and amalgamated into the position of Product Consultant. He testified that since then the Product Consultant position “has evolved dramatically from the days of the Wine Consultant and Senior Wine Consultant, and today is much more integrated, is a key position in retail operations providing standard services to other divisions throughout the organization.” Mr. Fagan testified about the differences between the two positions. The evidence indicates that a Product Consultant has similar duties and responsibilities as a former Wine Consultant.. Both positions worked in cash, maintained a vintage section, dealt with spirits other than wines, did demonstration kitchens, tastings and releases of new products, and had a role in dealing with the media. However, the vintage sections today are much larger. The Product Consultants today do a larger number of demonstration kitchens than Wine Consultants did prior to 1994. The tastings done by Wine Consultants were smaller and less frequent. In the days of the Wine Consultant there were fewer new releases than today. A Product Consultant dealt with a greater variety of spirits than a Wine Consultant used to, and the Product Consultant had a greater media role to play than a Wine Consultant. 19 However, under cross-examination, Mr. Fagan agreed that when in 1994 the positions of Wine Consultant and Senior Wine Consultant were amalgamated to create the Product Consultant position, a new position specification was created to reflect what they were doing at the time. He agreed that the new position specification captured what Wine Consultants had been doing at the time. He also agreed that the duties and responsibilities had been evolving prior to 1994 and continues to evolve, just as the Customer Service Representative position had evolved over the years and continues to evolve. Based on the evidence I conclude that apart from the difference in volume and percentages of duties, the Wine Consultant position and Product Consultant position are in substance similar. In Re Falcioni, the employer, as well as the union and the incumbent, proceeded under a common understanding that article 31.4(b) governed in the circumstances. Despite employer’s submissions, there is no evidence that the employer counsel in that case failed to object to arbitrability as a result of an oversight, or as counsel suggested, because counsel was certain of winning on the merits. Therefore, I find that the conduct of the employer in that regard was a clear representation that it understood that the grievor, as a casual employee, was entitled to grieve under article 31.4(b) with regard to a Wine Consultant posting. Given my finding that the Wine Consultant and Product Consultant positions are similar in substance, that representation also extends to the latter position. 20 In any event, there is overwhelming evidence that even after the coming into existence of the Product Consultant position in 1994 the employer has routinely considered casual employees to be eligible to apply for Product Consultant positions under article 31.4(b). Mr. Fagan testified that as a matter of practice, applicants who are deemed ineligible are screened out and not permitted to participate. As an example, he stated that if a “C” or “D” store manager applied for a Product Consultant posting, that applicant would be screened out since he/she is not eligible because the posted position does not amount to a promotion. He was very clear that only applicants who are deemed eligible are allowed to participate in the competition process, and that eligibility to apply is a matter governed by the collective agreement, and that at least from the early 1990’s full-time, part-time, as well as casual employees have been allowed to apply for Product Consultant positions. He stated that ineligible applicants were screened out and not permitted to participate, and that he had been involved in screening out ineligible applicants. He confirmed his prior testimony that “C” and “D” store managers were screened out because they were ineligible to apply for Product Consultant positions. Then he was asked, “However, a full-time, part-time or casual CSR’s are eligible?”. His response was “I believe so”. Counsel asked “Are they eligible or not?”. Mr. Fagan’s reply was “yes”. He stated that to his knowledge no one has informed casuals during any competition for Product Consultant that they should not apply or have no right to apply. When Mr. Fagan was asked by union counsel, “Because casuals can apply?”, he replied “I assume they could”. 21 Mr. Fagan further agreed that since 1994 if a casual employee received 50% in the competition process, he/she would be awarded a Product Consultant position. Except on rare occasions, selection panel members would not even be aware of an applicant’s employment status (i.e. full-time, part-time, casual). He very clearly stated that the panel made recommendations as to who should he awarded positions based solely on the scores, and that the employee’s status “makes no difference”. The evidence further indicates that in numerous job postings for Product Consultant positions since that position was established in 1994, casual employees’ right to apply was recognized in the job posting itself. Most postings were stated to be open to “all employees in the bargaining unit”. Moreover, the union filed at least six postings which explicitly required that the application must indicate “your current employment status, e.g. PFT, PPT or Casual”. As already noted, the fact that an applicant disclosed his/her status as “casual” had no bearing on the right to participate fully in the job competition or to be awarded a position if sufficient scores were obtained. In this regard, paragraphs 46 and 47 of the Agreed Statement of Facts (supra) indicate that as a casual employed in Geographic Area “A” the grievor has himself participated in job competitions for Product Consultant in 2002, 2003, 2005, 2006 and 2007. The evidence also is that the grievor fully participated in these job competitions, and did not receive a position only because he was not deemed qualified based on his scores. The union relied on the following letter the grievor received from the employer after the conclusion of the 2003 job competition for a Product Consultant position: 22 This letter is further to your recent interview for the position of Product Consultant for the LCBO. We would like to thank you for your involvement in this challenging process and we appreciate your interest, however, the position has been awarded to the most senior qualified candidate. When asked in direct-examination whether the letter was correct in stating that the position was awarded to the most senior qualified candidate, Mr. Fagan replied that it was not. However, under cross-examination, he agreed that the position was indeed awarded to the most senior of the candidates who were deemed qualified based on their interview scores, and that the grievor was deemed not qualified because of his low interview score. An applicant with lesser seniority than the grievor was awarded the position only because the grievor was deemed unqualified. Therefore the most senior of the qualified candidates was appointed, and the letter to the grievor was not in error. Counsel for the employer submitted that the employer opened up competitions to applicant’s who are not eligible because it was more convenient to do so, rather than have a competition among full-time employees, and opening it to part-time and casual employees in a separate subsequent posting if no qualified full-time candidate was identified in the first competition. She submitted that by doing this for its own convenience, the employer should not be seen as making a representation that casual employees have a right to apply under the collective agreement. Whatever the merits of such an argument may be, there simply is no evidence that the employer gratuitously opened up competitions for Product Consultant positions to employees who it considered to be ineligible. Quite to the contrary, the evidence is that Mr. Fagan, the only employer 23 witness, testified that only those eligible were permitted to go through the competition process, and that he assumed that casuals were eligible. Counsel also pointed out that the job postings relied upon by the union nor the corresponding letters of appointment state that article 31.4(b) was applied, and that the employer had at no time written to the union that article 31.4(b) applied to casuals. While those factual assertions are correct, the point is that for purposes of estoppel a representation need not be explicit. Where the conduct of the employer gives rise to an unequivocal implication that the employer was making a certain representation, that is sufficient. This is clearly such a situation. The only right of casual employees to have their qualifications, ability and seniority considered for purposes of promotion flows from article 31.4(b). The clear evidence is that those factors were applied to casual employees who applied to be promoted to Product Consultant positions. Therefore, in the absence of any evidence to the contrary, the inference is inevitable that the right was accorded in accordance with that provision. Indeed, this is very consistent with Mr. Fagan’s evidence. Counsel argued that there is no evidence that the employer actually intended that the union understand its conduct of allowing casual employees to participate in job competitions for Product Consultant position as a representation that article 31.4(b) applied. Counsel relied on the following observations in Re OPSEU and Ministry of Health & Long-Term Care, 2005-3289 (Gray) at para 29 as follows: 24 At the heart of any estoppel claim are questions of fact: what representation was made and what detrimental reliance, if any, did it induce? When representation by conduct is alleged, the representation alleged must be shown to have been the unequivocal implication of the conduct in the context in which it occurred. To show that one party’s act or failure to act was induced by the words or conduct of the other, it is not enough to establish that the action or inaction was that party’s subjective reaction to the words or conduct. If the response was not the reaction actually intended by the party making the representation, it must at least be shown to be the foreseeable and objectively reasonable reaction to the representation before the representation can be said to have induced the response. With regard to the union’s reliance on the two decisions in Re Falcioni, employer counsel urged me to follow my own reasoning at para 10 and 11 in Re General Motors of Canada, (1999) 80 L.A.C. (4th) 10. I find that the union’s estoppel argument also fails for a number of reasons. The onus of establishing an estoppel falls upon the party asserting it. In this case, that is the union. The only evidence adduced by the union in this case to support its estoppel argument was the filing of two prior arbitration awards determining policy grievances between these parties. Employer counsel took the position that the factual circumstances in those cases were distinguishable. However, even assuming that there was no significant distinction between the circumstances in those cases and present one, all that is disclosed on the face of those awards is that they involved appendix “R” grievances filed as policy grievances, and that the employer did not object to the arbitrability of those grievances. At its highest, what this evidence establishes is that in two prior occasions, the employer did not raise a legal argument which may have been available to it at arbitration. 11. That in my view falls far short of the evidence required to establish an estoppel. There is no evidence as to why the employer did not object to the arbitrability or whether the employer even turned its mind to the issue of the definition of a policy grievance. There is simply no evidence that the definition of or pre-conditions for a policy grievance ever became an issue. In order to rely on estoppel, the union must establish that the employer action – in this case the omission to object to arbitrability – constituted a representation which was intended to induce reliance. Re Monarch Fine Foods Co. Ltd. (1985), 18 L.A.C. (3d0 257 (Schiff); Re Consolidated Bathurst Inc. (1985) 19 L.A.C. (3d) 231 (Kuttner); Re Elan Tool & Die Ltd., (1985) 18 (L.A.C. (3d) 17 (Weatherill). If the employer conduct was the result of an oversight or mistake, or a failure to turn its mind to the issue, it cannot form the basis for an 25 estoppel. Re Canadian General Electric Col. Ltd., (1954) 5 L.A.C. 1644 (Laskin); Re Canada Post Corp., (1985), 21 L.A.C. (3d) 204. However, I find that the circumstances here are very different than those in Re General Motors. There the “only evidence” was that the employer failed to object to arbitrability on two occasions. In contrast here, the employer not only failed to raise an objection but there is evidence that it had consistently permitted casual employees to compete for Product Consultant positions ever since that position was created, and even previously under the predecessor position of Wine Consultant. Moreover, unlike in Re General Motors, the evidence is that the employer did turn its mind to who is eligible to apply, and had a practice of screening out those applicants who were not eligible under the collective agreement. It treated casuals as eligible. This is not a case of individuals making a mistake in isolated cases. There is clear evidence that the employer had consistently accorded collective agreement rights to casual employees. I find that the consistent conduct of the employer in that regard, the evidence about which is set out above, leads to the unequivocal implication that the employer considered casual employees to be eligible. That evidence not only made a representation, but actually meets the test as set out by arbitrator Gray. Employer counsel further argued that the union had failed to establish that it had relied on the employer’s representation to its detriment. She submitted that it was not sufficient for the union to simply assert that but for the employer’s representation it would have addressed the issue in collective bargaining negotiations. There must be 26 evidence to support that. Counsel drew my attention to para. 30 of the Gray decision (supra) which states: Many reported awards have arisen out of an employer’s discontinuing a practice more favourable to its employees than the applicable collective agreement required. In such cases the union generally asserts that if it had known during negotiations for that collective agreement that the employer would thereafter discontinue the practice, it would have bargained to add the practice to the employer’s obligations under the collective agreement. That is not enough to support a finding that estoppel prevents the employer from altering the practice for the life of the agreement, however. Before it can achieve that, the union must establish that before or during that bargaining the employer represented by its words or conduct that it would continue the practice for the life of the ensuing collective agreement, and that it was that representation that induced it not to raise the matter in bargaining. While I do not disagree with the principle set out in that award, I do not agree that there is an obligation on the party asserting estoppel, to affirmatively lead evidence to prove that it would have acted in a certain way, had the other party conducted itself differently. That would be an impossible onus to meet. To give an extreme illustration, how would one lead evidence to “prove” that instead of wearing shorts and a tee shirt, he would have worn warm clothing had he known that the outside temperature would decrease from 25 Celsius to 10 Celsius in a matter of a few hours. That would be impossible to do apart from stating that that how is he would have responded. It is up to the trier of fact to determine in light of all of the circumstances and evidence, whether that assertion is reasonable and believable. Mr. Steve Saysell, a Staff Representative with the union who had been involved in servicing the LCBO bargaining unit since 1999, testified that ever since he started, casual employees have been applying for, and have been appointed to Product Consultant positions following competitions. He had always understood, as a result, that casual employees had a right to apply for such positions 27 under the collective agreement. He further testified that the employer had never indicated in any of the discussions he had in relation to grievances or collective bargaining, that there were any restriction on the casual employees’ right to participate fully in job competitions for Product Consultant. He testified that approximately 56-57 percent of the union’s members were casual employees, and that most of them were looking for a career at the LCBO in a permanent position with guaranteed hours and benefits as a Customer Service Representative, a Product Consultant, Events Coordinator, a “C” or “D” Store Manager, or even as “A” or “B” Store Manager. He testified that approximately a year before the next round of collective bargaining, the union’s Bargaining Committee received submissions from the union’s Grievance Committee on “problem areas” that need to be addressed at negotiations. He stated that he was involved in the last round of collective bargaining that led to the 2005 collective agreement and that no issue was raised by anyone about any hindrance on casual employees’ ability to apply for Product Consultant postings, and that it was not seen as a problem. He further testified that if the union had understood that there was such a hindrance, a recommendation would have been made to change the job posting procedures, because access to promotional opportunities for casual employees was an issue of job security and considered to be very significant. I find that the foregoing evidence is very plausible and adequately establishes that the union relied on the employer’s representation to its detriment. 28 The employer also referred to the provision in article 31.4(b) vacancies “in their geographic area”. The uncontradicted evidence is that at the time of his application which is the subject of this grievance, the grievor was employed in Geographic Area “A”. The evidence also is that in the job posting in question the “location” is stated as “Area A”, and the posting is stated to be open to “All LCBO bargaining unit employees in Area A”. In the circumstances, I fail to see how the geographic area becomes an impediment to the grievor’s participation in the job competition. If there were any impediments, I find on the evidence, that the employer, by consistently permitting casual employees in identical circumstances to participate in similar job postings, is estopped in this case from relying on such impediments. It follows from all of the foregoing that while I find that under the strict terms of article 31.4(b), the grievor, as a casual employee, is not eligible to rely on that provision with respect to a job posting for Product Consultant, the employer is estopped from relying on its strict rights in that regard. Therefore, I find that the instant grievance is arbitrable, and I remain seized with jurisdiction in respect of all remaining issues raised by the grievance. In view of that conclusion, I do not find it useful to deal with the argument the union made in the further alternative, that the Board should seize jurisdiction on grounds of fairness. 29 Dated this 30th day of January 2008 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson