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HomeMy WebLinkAbout1990-1917.Coones.91-04-17 ONTARtO EMPLOYES DE LA COURONN£ CROWN EMPL 0 YEES DE L 'ON TA RiO GRiEYANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNOAS STREET WEST, SUITE 2100, TORONTO, ONTAR~. 180, RUE DUNDAS OUEST, BUgEAU 2~O0, TORONTO (ONTARIO). MSG ;Z8 ~:ACS/MILE/T~£C~COPIE ' (4~6) 326-~3~6 1917/90 IN THE I~TTER OF ~W 3t~BIT~TION .Under THE CROWN EMPLOYEES COLLECTIVE B3~RG~INING ACT Before THE GR~EV~ICE SETTLEMENT BO3~RD BETWEEN OLBEU (Coones) ~rlevor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario). Employer BEFORE: M. Watters Vice-Chairperson J. Carruthers Member D. Montrose Member FOR THE E. Mitchell GRIEVOR Counsel Koskie and Minsky Barrister & Solicitors FOR THE R. Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart Storie Barristers & SoliCitors HEARIN~ March 7, 1991 This proceeding arises from a policy grievance dated November 16, 1990 which was filed by Mr. John Coones, President of the Ontario Eiquor 8pards Employees' Union (OLBEU). Zn substance, the Union alleged therein that the Employer had violated the terms of an agreement concluded by the parties on Nay 9, 1990. The material part of this agreement reads: " Temporary Christmas HelB Period of Employment: November 1, 1990 to, but no later than December 31, 1990. Duties; Regular duties of a casua7 save and except office or cashier work. Rate o¢ Pay:' $8.50 per hour It is agreed that these terms apply only to temporary Christmas help.in the Retail Division. It is understood that temporary Christmas help shall only be scheduled hours of work for which no P.P.T. or casual employee is available. Thi~ letter shall cease to have any force or effect aCter December 31, 1990. ' This letter' formed part of a series of agreements all reached on Hay 9, 1990. The other agreements related to : ('i) Implementation of Work Forbe Reductions; (ii) Application of Article 29.1; (iii) Rotation of Core Hours;. and (iv) Guarantee. The latter agreement provided that all of these matters were "subject to the grieyance procedure commencing at Article 27.8 of the Collective Agreement." The agreement reproduced above makes reference to "casual" employees and to "temporary Christmas help" The former category of employee is used to st~pplement the LCBO's full-time work. force. Generally, they engage itl the same range of duties as performed by the full-time staff, albeit for a lesser number of hours. Their hours are assigned on an "as needed" basis. The duties of a casual include the unloading and shelving of stock; store maintenance; customer service; and cash. Casual employees are hired pursuant to a process administered through Regional. Offices. They are paid an hourly rate of $12.22 plus eight percent (8%) in lieu of benefits and four percent (4%) vacation pay. This translates into an hourly rate of $13.68. Casual employees are also entitled to certain other benefits, including seniority, provided for .by the collective agreement, In contrast; temporary Christmas help is hired for a limited term to assist with the increased volume experienced over the Christmas period. Approximately two thousand (2000) ~uch employees are hired each year by Store Managers to work in the LCBO outlets across the Province. We were advised that the number of such stores totals six hundred and twenty-five (625). In past years, they have been paid the same rate as casual employees. Their employment is normally limited to the months of November and December. Such.employment terminates, by virtue of a written agreement signed by each employee, at the end of the latter month. Historically, the temporary Christmas help has performed the same range of duties as casual employees. It is readily apparent that the agreement'of May 9, 1990 altered the past practice with r,~spect to the use of temporary Christmas help. More specifically, pursuant to such agreement they would be paid at the rate of $8.50 per hour and would not engage in cashier or office duties. A considerable amount of evidence was advanced as to the context in which these changes were negotiated. This evidence can be summarized as follows- (i) At some point in early 1990, the LCBO announced an intention to lay-off several hundred employees as a consequence of an $11,000.000.00 shortfall in the Retail Bivision. The Union subsequently obtained a strike mandate from its members, In an effort to find other alternatives to the lay-offs, the parties met on May 9, 1990. At-that time, the Employer presented a list of twenty-one (21) proposals. After the Union's refusal to address such a substantial number of ~tems, discussions focused on work¢orce reduction and rotation of core hours. At the Employer's insistence, the matter of temporary Christmas help was also addressed. These discussions ultimately led to the signing of the several letters of .agreement, including that relating to Christmas help. (ii) Hr. Coones testified that the Union advised management it was not prepared to agree to hire temporary Christmas staff at a lower rate if they were to perform the same job as casual employees. The'Employer then advanced the restriction on duties fouMd within the agreement, More particularly, it stated that such help would not engage in office or cashier work. Hr. Coones testified that the Union considered this proposal at some length 3 t to discover if ~t conta~}ed a "hidden hook". He ~as cor~cerped with its feasibility because, in the past, christmas help had been used on cash. I% was his recollection the Employer responded to this concern with the assurance that such work would be done by casual and permanent part-time (PPT) employees, rather than by'those hired at the $8.50 rate. Mr. Coones advised that the Union entered into the arrangement on the basis cf..this assurance. (iii) Hr. Sandy Roe, the Director of Staff Relations, recalled being asked who would be expected to perform the cashiering aspect of the work. He agreed that he stated such work would be undertaken by casual and PPT staff, He acknow]edged the LCBO ultimately determined in early November, 1990 that it did not have enough of such staff to cover all of the cashiering duties required, (iv) Both Mr. Coones and Mr'. Roe agreed that the subject of upgrading the status'of Christmas help was not discussed during the negotiations. From the perspective of the Union, such discussion was unnecessary given the Employer's assertion %ha~ the work in question would be performed by casuals and PPTs. The Employerl as noted, acknowledged that it then believed the work could be completed in this fashion. .- Difficulties arose with the implementation of %he agreement in early November, 1990. Hr, Coones then 1. earned about a number of situations relating to the hiring and use of Christmas help which caused him concern. It is unnecess~ry to refer to the particulars of all of the complaints directed to him as a number of the matters were s~bsequentty rectified by the Employer. The Union's primary complaint was that a significant number of employees hired pursuant to the agreement were subsequently ask6d to perform cashiering work. This led to ~ series of communications between the parties. Initially, Mr. Coones attempted to resolve the matter through a number of telephone conversations with Mr. Rae. Zt was the latter's position that the agreement was not contravened by having the Christmas help perform cashiering work as long as their hourly rate was upgraded to that paid to casual employees. As Mr. Coones was not satisfied with this response, he next wrote to Mr. M. Kane, Vice- President of the Human Resources Division., by letter of November 7, 1990. After alleging a breach of %he agreement, Hr. Coones stated the Union's position as ~ollows: "Therefore, the Union hereby gives notice to the Employer that asa result of the Boards breach of this Letter the Union considers the Letter of Understanding covering temporary ChCistmas he~p nu'll and void. As a result, all provisions oE the collective agreement applicable to casual employees including, but not limited to wages and union dues, must be applied to alt persons hired as temporary Christmas help. Failure by the employer to do so will result in grievances being filed." He wa~ asserting, in essence, that all of the Christmas help shouqd be treated as casual employees, and thereby be entitled to all of the benefits of that status, from their date oF hire. Mr. Kane replied by letter dated November 13, 1990 in which he stated, inter a7ia: , " With regard to the use of Christmas help, you will note that the duties of these individuals are restricted to "~eqular duties o¢a casual save and exceotoffice or cashier work." We have not intentionally or knowingl'y violated this commitment. If specific incidents do occur (and, in an organization as large as ours, isolated instances may occur), the remedy would be to provide the individual with the appropriate remuneration that would have been paid a Casual. We cannot accept or agree that isolated instances violate this mutual agreement. To this end,. the Liquor Control Board intends to maintain its commitments in accordance with the Letter of Understanding of May 19, 1990 and rectify any isolated instances that may contravene this understanding." Mr. Coones was also no% satisfied with this response. In bis subsequent correspondence of November 16, 1990, he noted that "District Managers have instructed store managers that when it gets busy, these Christmas help employees are to be used on cashiering duties and paid at.the rate of a casual." As this apoeared to be in conflict with the letter of November 13, 1990, Mr. ~oones requested confirmation of the Board's "official position". Mr. Kane responded by further letter of November 27, 1990. After first identifying the temporary period of employment, he stated: " Also, it is my understanding that if during this period the employee was required to work as a cashier, their Status would automatically be changed to that of a casual. As such, that person would be paid at the casual rate for all hours worked, from that date on, up to December 31, 1990." Simply put, it was.the Union's position that the Employer misrepresented the purpose of the agreement relating to temporary Christmas help. We were urged to find that the'Employer intended all along bo use such employees on cash amd only entered the agreement so that it could delay payment of the hi9her rate. As noted above, the Union asserted that, as a consequence, the agreement was of no force and effect. Il: submitted that these employees should be dealt with according to the practice as it existed in previous years, as from their .date o¢ hire. This woul. d naturally affect all o.f the two thousand (2000) employees hired under the Christmas program. Alternately, it was submitted that such treatment should be restricted to the six hundred (600). · Christmas employees who were subsequently asked to work on cash. The Union argued that the Employer should be estopped from relying on the terms of-the agreement. In response, ~t was the Employer's. position that the agreement simply created a ~ classification. In its analysis, the agreement did not prohibit the use o'F temporary Christmas help on cash should the need arise, provided that they were paid at the higher casual rate. The Employer emphasized that the affected employees all received the higher rate from the assum- on of cashier duties tilt the end of their employment. In summary, it was argued by the Employer that this type o¢ upgrading did not consti, tute a breach of the agreement. To the contrary, counsel submitted it was consistent with same as employees who did work that fel] outside of. the agreement were paid in excess of $8.50 per hour. Both parties treated the agreement now before us as an addition to their collective agreement. This intent was evidenced by the Guarantee agreement which provided that alleged violations could be addressed through the grievance procedure. The Board has no reason to differ with the parties assessment aS to the nature of the'letter relating to temporary Christmas help. In our judgment, the Christmas help agreement is clear and unambiguous. It specifies that such help would perform regular casual duties, with the exception of office or cashier work, for a limited term at the rate of $8.50 per hour. We are satisf{ed that, as of May 9, 1990,. both parties assumed this would be the extent of the work performed by this group of employees. The Employer was of the view, which proved ultimately to be mistaken, that any cashier work required could be completed by casual and PPT staff. .Full-time staff were also available for that task. This impression or belief was communicated to. the Union by Mr. Rae. We find that there is insufficient evidence to permit us to conclude that the Employer misrepresented its intent during the negotiations of May 9, 1990, as claimed by the Union. Rather, we think that the Employer simply over-estimated the capacity of its other staff to perform the cashiering work. The Union also believed that this work could be undertaken by casual and PPT employees. While Mr. Coones felt that the use of these employees in this fashion could pose problems on the stock side of the opehation, he seemed to co,~s~der the Employer's plan to be workable. Unfor%~u~,atety, the parties did not 9o the further stem to consider what arrangements should be made if their mutua~ intent proved unworkable. In this respect, the Board concludes that there is a gap in the agreement. More specifically, we are unable to find that the parties addressed the situation of what' would occur should there be a need to ut'i]ize Christmas help as cashiers. Given the above-stated con¢;lusion, l;he Board is unable to find that the Employer fundamentally breached the agreement when it upgraded the temporary Christmas help in the manner described. For the same reason, we.are not satisfied that the doctrine of estoppel is applicable, Simply put, we cannot find in the agreement, or in the extrinsic evidence presented, a firm repre~enl~mtion that the Employer would not re~ort to this type of help for cashiering work in any circumstances. Even if we are in error in thi~ regard, the Board considers) the Employer's response to be a reasonable remedy, for in substance, it elected to treat such help as casual staff from the point at which they commenced cashiering work. Clearly, the temporary Christmas employees were paid the higher rate once they started to perform duties falling outside of the agreement. In our judgment, this satisfied the Union's objective, as articulated during negotiations, that employees not be paid different rates fo~' identical work. The Board does not accept the Union"s submission that these employees should automatically receive the higher ~ate as of November 1, 9 1990. A return to the past practice in r'espect of all oS the two thousand (2000) temporary staff, or in respect of those whc actually did cashiering work, would be contrary to the intent of the agreement which was obviously designed as a c~st saving measure. The same conclusion would apply to the Union's suggestion that other staff should have b~en hired to meet the need. That requirement would similarly have defeated the intent of the agreement reached on Nay g, 1990. In summary, we consider that the Employer acted reasonably when it paid the higher rate .as of the assumption of the extra duties. The Board would, therefore, not have been inclined to award any additional remedy had we found the agreement to have been breached. In retrospect, it is clear that the parties should have provided for the eventuality which occurred in this instance. Further, we have been 3eft with the distinct impression that the Employer should have engaged in fuller consultation with the Union once the problem materialized. Had that been done in early November, 1990, it is possible that this dispute could have been avoided. The Union did not allege in this proceeding that other casual or PPT employees had lost the opportunity to work as a cons~equence ~f the Employer's use of the Christmas help on cash. That result.would likely have constituted a violation of the agreement. In view of our decision om the merits of the 10 remedy For all of these reasons, the grieva, nce is denied. Dated at To~omto ,. Ontario this 17th day of ~p~il ,1991. M.V. Watters, Vice-Chairperson <'<. J. Carrvthers, Member ' m D. Mormtros~, Member 11