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HomeMy WebLinkAbout1991-0564.Dicker.93-06-25,: ..: ",.. .... ON?AR/O EMPL 0 Y~'S DE LA COURONNE · , ' CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTARIO. MSG IZ8 TELEPHOI~E/TELEPHONE: (4 ~6~ 326-~388 'tSO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO t, ONTARIO). MSG 'IZ$ FACSIMILE/T/~t~'COPIE .. (4 ,'$,t 326- ~:396 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Dicker) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: N. Dissanayake Vice-Chairperson J. Mcmanus Member D. Halpert Member FOR THE S. Philpott GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R. Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 13, 1991 August 24, 1992 .0ECI$ ON 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 Courtdght, 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 entitfed 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 counse~ 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 LCBO operates approximately 620 retail stores and five 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 grtevor 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 13 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 Cot~rtrlght 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 at 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 shaf[ 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 qualified and available to perform the ~ore Manager's job. The evidence is that the grievor is the second most senior cte~ 4. The most sen~or 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 testimony was based solely on her "understandings from talking to people". She also testified as to the understandlhg of the un,on when they signed the collecth/e agreement. That evidence is 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 consuJtation with senior management, he started using casual empJoyees 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 Croghan et al, 462/91 (Gorsky) by interpretfng 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 within the District, before offering such positions 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 ca~ual employees employed in the stores when the appointments complained of were made. The facts relevant to one of the grievances are remarkably sim'ilar to the facts before us. At p. 13 the Board set, s, out those facts: 5 It was acknowledged 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, Schreiber, Ontario, effective January 14, 1991 (Exhibit 3~. As a result o! mr. WlJson'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 appr,ox[mate five week period during which no permanent appointment had been made. lnstead, 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 casuat 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 s.uch rights are specifically granted. For the reasons given above, we find that art. 21.5(c) aJso applies to casual employees. Where the application to a particular group of employees is unctear from a reading of an article, it may be necessary to rely on various rules of interpretat'~on 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 art. 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 art. 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 departr~ent or section involved" in filing temporary vacancies, The union submitted that '1he 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 real~y of the day-to- day operations of the Employer, there is a danger that in using words we wif~ lose sight of reality. Accordingly, we must endeavour, throughout our decision, to test the words chosen by us"to r~ec~ realil7 against that reatity. When the parties negotiated the 6 collective agreement, they must have been aware that there are districts, such as District 24, which cover a large geographic area where the distance between some stores can be considerable. This reality must have been in their minds when they drafted art. 21.5(c). Iri the absence of a clear indication w/thin 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 ~or 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 d,ays (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 Employer 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 ptace the burden on the Employer to conduct a search for the most senior employee Jn 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 ti coutd create chaos in others. There is also some support for the Employer's position found in the coltective agreement. ~n 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 Jn 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, it 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 ama" is used is in article 21.4(a) In dealing the posting of permanent vacancies or a newly created pos/tions. If the parties ;,~tended to use the same concept in the Immediate)y following provision article 21.5, it would have been easy and logical for them to have used the same phrase "geographic area', Instead of "department or section'. Indeed, their failure to do so is, in our view, a clear Indication that the patties Intended something 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 Croghan decision the Board dealt with article 29.1 and the Letter of Agreement as follows: We do not regard the letter of agreement, above quoted from p. 129 of the coJlectlve 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 art. 21.4(c) is concerned with the rights of employees within a particular store or other estabtishment or work unit. There is room for art. 29.1 to apply where the Grievors and the casual employees selected, worl< 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 coltective agreement in the manner suggested by the union. In addition, that ir,~erpretation 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 [or longer absences. However, if the absence is foreseeatole, 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 r, ot as wide an area of se,~rch 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 mann.gar 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 senfority, to find the · most senior full-time employee, who is qualified and willing to fill in. As the Board in Re 8 pointed out, this could create chaos in some cases and where a more sensible interpretation is reasonably possible, it must be preferred. Union counsel submitted that Re Crogh.~. was wrongly decided and ought not to be followed. We are satisfied that the Board's interpretation of the relevant provisions of the collective agreement in Re Cro(~han was a reasonable and sensible one. It certainly cannot be said to be manifestly wrong, tn addition to the reasoning of the Board in that case, we agree with ernployer counsel that the reference in the Letter of Agreement to "where there is a need to replace the store manager", is dearly supportive of the employer's interpretation. If the tetter intended to refer to the district or the geographic area, it would have referred to "a manager", because there will be more than one manager within a district or geographic area. We can understand that the un{on 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 Jn contravention of any provision of the agreement. Therefore this grievance is hereby dismissed. Dated this 2 5 day of June, 1993 at Hamilton, Ontario N, Dissanayake Vice-Chairperson "! Dissent:" Dissent Attached d. McManus Member D. Halpert Member IN THE MATTER OF A ARBITRATION BETWEEN; ONTARIO LIQUOR BOARD EMPLOYEES UNION GRIEVOR DICKER FILE 564/91 AND: LIQUOR CONTROL BOARD OF ONTARIO DISSENT. I have read the award of the majority and find that after careful consideration, that I can nc, t agree Article 21.5 (c) On review of the collection agreement, I find that this article should be given further consideration. Casual employees 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 on 21.5(C) by Mr. Gorsky in the CROGHAN award,is I think, inconsistent with that three-tiered approach in the collective agreement. It is, in addition, inconsistent with Article~ 31.5(A) of the agreement which specifies the Articles 31.4/31.7 and 21.5(B) for which the casual employees will be considered to have seniority. No mention is made in the award of Article 31.5(A) DEPARTMENT OR SECTION AND STORES; There is no consideration given as to why the parties used both the phrase" department or section" and stores in Article 2~.5(C). That is, the result of both awards is to equate the meaning of those two phrases without any comment as to why the parties used different phrases to 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 weii thought out in the past. Co~'t .... page 2. It is more logical to conclude that the use of the word "stores" in Article 21.5(C) encompasses a group of stores, which would be equivalent to a department or section, the most logical way to divide the ~tores as a whole into groups of stores, is to divide them into geographic areas as dictated by the Job Posting provision. The explanation for the parties not using the phrase '"geographic area" in Article 21.5(C) is because, the article applies to more than just stores. That is ,it applies to the warehouse and the head office as well,but confines the scope of application to the parti, cular warehouse or office involved. At page eight(8) of~the award the majority relies upon a statement by the Employer counsel to'the effect that in Metropolitan Toronto there are some 100 Stores within the geographic area~ and the application of the Union's interpretation of Article 25.5(C), wc. utd be unworkable in such a large area. I do not recall any evidence being called on that point, however, my notes indicate, that there are few, if any C.or D. stores in the Metropolitan Toronto area and, therefore, 'the potential chaos referred to would simply not arise. REPLACEMENT OF C. D. STORE MANAGERS. · he Grievor's evidence was that he, as most senior emplc~yee in the geographic area, always replaced absent store managers until the incident which gave rise to this grievance. At page four(4), at the top of the page, there is reference to the Grievor's evidence establishing that, " in 5 Districts, the practice had been to replace absent D store managers with the mnst senior .-asual employees" There is nothing in the evidence, as far as I recall, that would give rise to a basis for this comment. In conclusion, I would have upheld the grievance. Board member, T.O. J.D. Mc Manus.