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Home My WebLink About1993-2598.Taylor.95-12-08 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 GSB # 2598/93 OLBEU # OLB240/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Taylor) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: W. Low Vice-Chairperson M. Vorster Member F. Collict Member FOR THE J. Noble GRIEVOR Counsel Ontario Liquor Boards Employees Union FOR THE J. Baker EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING March 20, 1995 September 1, 1995 AWARD The Grievor, Marilyn Taylor, grieves that a non-bargaining unit employee did bargaining unit work while the Grievor was laid off and she seeks damages by way of remedy. The union relies on Articles 1.l(b), 21.5(c) and 31.7 of the Collective Agreement. They provide as follows: "1.1(b) Solely for the matters dealt with in Article 31, Casuals, the Employers recognize the Union as the exclusive bargaining agent for employees employed as casuals. 21.5(c) Where it is decided that it is necessary to make a temporary appointment to fill a temporary vacancy, including summer stores, which will last five (5) working days or more, or one day in the case of stores, the Employer shall appoint the most senior employee in the next lowest classification in the department, section or store involved, who is qualified and available to perform the work. 31.7 Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department." The union also relies upon a Memorandum of Settlement dated December 16, 1991 which was made pursuant to an earlier grievance. It provides, inter alia, as follows: "4) Following the permanent filling of the reception position, M. Taylor will be assigned to any casual work in the Shipping, Receiving and'/or Order Processing, Office Work Units, that is available, and that she is qualified for, according to her seniority. If M. Taylor's typing skills meet the Employer's qualification requirements of 50 w.p.m., then she will be considered for casual typing work assignments in the Administration Office, Work Unit. Should there be no work available, M. Taylor will be given a week's notice of lay off." 2 The union alleges that the agreement has been breached. The Grievor was classified as a clerk-typist and at all material times held the status of a casual employee. She started to work at the Durham warehouse in September 1988 as a receptionist typist. She worked for one and one-half years as a receptionist typist. The job was then posted and as the Grievor did not succeed in the competition, the job having been filled from outside, she was laid off. Around December 1989, the Grievor was called by the General Manager of Operations and was offered work as "pallet control clerk", the general function of which was inventory control of inbound and outbound pallets. There is no evidence before us that a formal position of "pallet control clerk" existed, but it was the Grievor's evidence that she performed this function for one year and three months, and we have no reason not to accept that evidence. The function was carried out by a manual record keeping system until the last three months that Ms. Taylor was doing the work, at which time there was a trial computerization on the "Always" software which apparently was short-lived. The Grievor was able to perform the function throughout this period. Ms. Taylor was laid off, however, when a full time employee who had been away on disability returned and was assigned the pallet control function. Ms. Taylor was laid off 3 December 6, 199 1. Following the December 16, 1991 Memorandum of Settlement, Ms. Taylor was called in to do temporary reception work for a few months in 1992 and was called in to work on the reception desk from time to time until October 14, 1993, when she received a lay- off letter effective October 22, 1993. This was extended, however, to November 5, 1993. Following November 1993, Ms. Taylor has occasionally worked at the warehouse as receptionist. Apart from the period July 12 through September 12, 1994, Ms. Taylor was available for work. The grievance centres on the fact that while Ms. Taylor was on lay-off and was only sporadically called in to do casual or temporary work, the pallet control job was being performed by one Shelley Bark who was originally supplied to the employer by an agency and was subsequently hired directly on a contract basis by the employer. Ms. Bark performed the pallet control function from about August of 1993 to January of 1995, in the course of which she computerized the function by implementing an inventory control software package called "CPC". It is the Grievor's contention that she was entitled to do the work that Ms. Bark performed during this period of time, or at the least from about October of 1993 when Ms. Bark had the computerized system up and running. The job of "Pallet Control/Engineering Support Clerk" was not posted until January 30, 1995. Ms. Taylor was not the successful candidate in the competition. The successful candidate, Denise Davis, was trained in the job by Ms. Bark during a training period that appears to have lasted some six weeks. There is no evidence before us that the Grievor was qualified to do the task which Ms. Bark did vis-a-vis the pallet control 4 function (Ms. Bark had other duties unrelated to this function). Although Ms. Taylor testified that she could learn to use the software, that is that she could become qualified, there is no evidence that she was qualified at the relevant time. There is, however, a matter of more fundamental concern, and that is that the Collective Agreement between these parties contains no provision prohibiting the employer from contracting out and no provision prohibiting the employer from assigning bargaining unit work to a non-bargaining unit employee. The employer acknowledges that the engaging of Shelley Bark was not contracting out but the hiring of an employee. What then were the rights of a casual employee to the work assigned to Ms. Bark? The union is not able to point to a breach of the Collective Agreement. The work done by Ms. Bark, by first setting up the computerized pallet inventory control system and then running it, a function later posted as a position, was never suggested by either party to be in the nature of casual work. Indeed, by all accounts, it appears to have been permanent work. Accordingly, Article 31.7, which calls for hours of casual work to be allocated by seniority does not apply. Article 21.5(c), which deals with temporary vacancies, is very specific as to who is entitled to fill the vacancy: it is the most senior employee in the next lowest classification in the department, section or store involved who is qualified and available to perform the work. There is no evidence before us that Ms. Taylor is the person described in Article 21.5(c) even if she were qualified and even if this was a case of a temporary vacancy. On the evidence 5 before us, it would appear that what had transpired was a decision on the part of the employer to computerize the pallet control function, the result of which was the creation of a permanent, not temporary, position. That the employer waited some 14 months before posting the position might be the subject of some concern but that is not the gravamen of the grievance before us. We are not satisfied that Article 21.5(c) applies, but even if this were a case of a temporary vacancy, there is no evidence before us that establishes that the Grievor was the person entitled to the work. Does the Memorandum of Settlement entitle the Grievor to the work? In our view, it does not. The provision relied on is paragraph 4: "4) Following the permanent filling of the reception position, M. Taylor will be assigned to any casual work in the Shipping, Receiving and/or Order Processing, Office Work Units, that is available, and that she is qualified for, according to her seniority. If M. Taylor's typing skills meet the Employer's qualification requirements of 50 w.p.m., then she will be considered for casual typing work assignments in the Administration Office, Work Unit. Should there be no work available, M. Taylor will be given a week's notice of lay off." The work in question was permanent and not casual. Secondly, it was work in the engineering department and not in the shipping, receiving and/or order, processing office work units. It is clear that the parties specifically put their minds to the kind of casual work to which Ms. Taylor was to be assigned: they named certain departments and did not name others. We can only infer that they intended to exclude those not named. 6 Accordingly, as the union has not demonstrated a breach of the Collective Agreement nor a breach of the Memorandum of Settlement, the grievance will be dismissed. DATED this 8th day of December , 1995. WAI AN LOW Vice-Chairpe son e/ F. COLLI Member "I Dissent" (dissent to follow) M. VORSTER Member