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HomeMy WebLinkAbout1992-0008.Cox.96-02-02 ONTARIO EMPLO'YES DE LA COURONNE . CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE / / SETTLEI~IENT REGLEMENT BOARD DES GRIEFS 180 DUN~ STREET WEST, SUITE 2100. TORONTO, ONTARIO. M5G IZ8 TELEPHONE/T~L~PHONE: (416; 326Z1388 180. RUE DUNDAS OUEST. BUREAU 2100. TORONTO (ONTARIO) M5G IZ8 FACStMILE/T¢L~COPlE . [416) 326-1396 GSB #- 8/92 OLBEU_# OLB024/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN '' OLBEU (Cox) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: H. Finley Vice-.Chairperson J.C. Laniel Member D. Clark Member .FOR THE G. Caroline GRIEVOR Counsel Caroline, Engelmann & Gottheil Barristers & solicitors FOR THE M. Gage .. EMPLOYER Legal Counsel Liquor Control Board of Ontario HEARING December 2, 1994 January 3, 1996 GSB 08/92 DECISION Store employees of the Liquor Control Board of ontario (IzCBO) are' hired and/or promoted into one of the fbllowing categories: (a) permanent full-time, (,b) permanent pan-rune, or (c) casu,,. The category of permanent pan-time was negotiated in 1987 and the fbllowing year the first permanem part-time employees assumed their positions. The stores are also categorized and have the fbllowing designations: A,-B, C, and D stores, the largest being A and the smallest, D. Each store has a manager. The managers of A and B stores belong to management, while the managers of C and D stores, in spite of their managerial position, are members of the Bargaining Unit. For posting purposes, the Provij~ce is divided into geographic areas which may comain a number of stores, or a single store. A list is established by the Employer and confirmed in the current C611ective Agr6ement under the Job Security article: 5.2 (b) tni) The cmTent geographic posting areas shall not be altered by th.e Employer during the term of this a~'eement. Although it is agreed between the parties in the Collective Agreement that the current geograptfical posting areas will not be changed for the duration of that Agreement, a memorandum fi-om the Employer of May 27, 1991 noted "a.revised geographic area of search for' postings". There has been a long-standing practice of posting permanent full-time positions province-wide and this pre-date~ the creation of the permanent part4ime category. The Grievor, Don Cox;' who began his employment with this Employer in May 1984, was at the time of the hearing a permanent part-time employee, Liquor. Store Clerk Grade 3, at the time of his grievance. The store which is.involved in his grievance, is' Store ,,' .~,'' '~ a "D" store in Nakina, a'remote location in Northern Ontario The geographic posting area tbr ttiis store is the store itself as there are n0 other 'stores in that geographic area. In 1991, .the' manager's position at this store Came vacant. It was a permanent full-time position designat_ed as Store Manager 1. On September 19, 1991, the Emplgyer posted this position, addressing i~t to "all permanent employees of the Liquor Control Board of Ontario, and posted it-pro?ince-wide foll0Mng the practice 'of the Employer of posting all full-time positions province-wide} a practice accepted by the Union. The effective posting date was Septelnber 30, 199.1.3 and the posting closed on - October 11, 1991~ The Employer's rationale tbr restricting this posting to permanent tull-time employees was that they, according to the Collective Agreement had first rights. The Co- 0rdinator of Hhman Resources tbr the Northern Region, testified that it was the 'practice to POSt all C and D store manager positions with the restriction to permanent tull-time applicants and if no suitable' candidate were to come out of this pool, then there would be a second posting restricted to permanent pan-time employees, although; on occasion, casuals would be included iii those cases 'where "the posting area was the same as the geographic area". .lVlrl Cox, who.was a pernlanent' part-time employee working at store number 267 iii Creemore, also in Northern Ontario, applied, and when the posting closed; was the only applicant. He was declared ineligible by the Employer because his status was permanent pan-time, rather than p.ermanent f'a'll-tinm: He received correspondence ti'om the Co-ordinator,'Human Resources Services, Northern Region, stating that "the vacancy [was] only open to 'permanent full-time employees" and for this reason they were '~unable to consider his application at this time". On November 18, 1991, the vacancy was reposted an~t this time, was addre'ssed to "all. permanent part-time and casual employees at store 332 Liquor Control B6ard Of Ontario". The geographic posting area selected was the store's geographic area, the store itself. The Eniployer's rationale for restricting.the reposting was that once it became clear that there were no permanent full-time employees interested in the po'sition of D-store manager then it, the LCBO, should not be required to post province=wide for part-time since the casuals who worked the store's geographic area {tl~e store) gave them a sufficient pool of people who would be f;amiliar with ihe product range. :l'he effective posting date was. November 22, '1791, ~tnd the closing date.Was December 5, 1991. No permaaent.part-time employees fi-om the geograptfic area applied, and a casual employee at the Nakin'a store, Chris McLaughlin, applied and was awarded the position of Acting Manager. ' ' Mr..Cox filed a grievance claiming that seniority, provided the employee is qualified to do the job, should be'the determining factor, and asked that he be made whole. When the grievance finally came on fbr arbitration in 1994/5, the Union took the position that it was not asking for M~-. Cox to be placed in the position or that the competition be rerun, but that a declaration be made to deternfine the question of whether there is .a requiremem in the Collective Agreement or elsewhere fbr the Employer to post C and D store manager posiuons (a) to both permanem full-time and permanem part-time employees, and (b) province-wide The following amcles of the Collective A~eemeat ard relevant to the issue: .,M'ticte 5 Job SecuritY, 5.2 (b) (iii) The cma'ent'geographic posting areas shall not be altered by the lgmployer during the te~zu of this ao~'eement. Amcl'e 21 Assigmnents and Job Postings 21.4 (a) -If a ne\¥ job.classific~.tion within the bm'gaming uni~ is created m' a permanent xacancy occurs m an e.,astmg j ob classification before mv~tmg applications fi'om persoaztot . employed by the Employe~s. the Employers will post ~¥ithin the geoga'aphic area as specified, notice of such new job or x,acancv for a period of ten (10) working days during which employees within such area may apply: The notice shall stipulate qualifications, classif]cation., salaL',' range, depmm~ent and location concerned. (b) . ?'or the pm~pose of.~'ficle 21 (5) (a), a promotion shall be deemed to include: the assignment of a permanent fi~ll-time employee to another permanent fidl-tm~e position m a class with a higher maxmmm salad' rate than the class of his?uer forn~r posit~on: or the assigmnent of a pennanem part-tune employee to a pennanem rull-thne posmon ff there was no permanent full-thne employee eligible and qualified for the posmou; or ira) the ass~gmnent of a pcni~an~ent part-rune employee to another pennanem part-rune position with a higher weekly sala~3' th~ his/her former posmon; or the ass~gmnent of a casual to a pem~anent part-tnne position m accordance with the provismns of Article 31.4. 21.5 ~a) Where employees are being considered for promotion, ~emonty will be the determining hctor provided the employee is qualified to perform the work. (b) Nomrthstanding the provision of,~a'ticle 21.5 (a) within any calendar 3'ear the Employers may identify a hnited number of pelmanent part-tm~e vacancies as vacancies to be filled by special merit promotion. In no case shrill special merit promotions exceed ten percem (10%) of all promotions within the calendar year. Special merit promotions shall be so identified on the job posting and shall be awarded to bargaining umt employees only. Lu filling special merit promotions the - Employers agree to give consideration to the qualifications and abiht3~ of permanent part-tnne employees and casuals to perform the duties of a vacant permanent part-tnne position. Where two (2) or more such employees are relatively equal m qualifications and abihties, the permanent part-rune employee nrth the o~'eatest seniorit3: shall be awm'ded the position. If the 'enXPloyees who m'e deemed relatively equal are casuals, the senior castial shall be awarded the position. 31.4 [a) Casuals shall have the right to apply for certain pennanem part- time posihons m accordance with the provisions of ~raxicle 21. Ass~gmnents and Job Postings. floweret, except as noted in ,~'ticle 21.5 (b) tspecial merit promotion), they shall only be ehgible to apply for vacancies within then' geographic areas if there ~s no permanent part-thne employee promoted m accordance with Article 21.5 (b) 'l'he Employer agrees to g~ve consideration to the qualifications and ability of Casuals fbr l'ennanent ?'tfil-'l'ime vacancies' at the enuy lex'el m their geoga'aphic m'ea, provided that no l~ennanent l'art-tnne employees have apphed. Where qualifications and abiht¥ are relatively equal, semont¥ shall be the determining factor. . The Panel heard testimony fi'om Ms. Camille Clements-Pitkur, Co-ordinator-of Human Resources tbr the Northern Regi6n .and Mr. Heino Nei!son, the Union's Business Agent since I983. It also received in evidence the submissi{)ns and awards with respect to negotiating history in'1985 and 1986. The earlier Board was chaired by Arbitrator Arthur Kruger,. the later one by Aa'bitrator Michel Picher. The Union took-the position 'that there was a requirement fbr ihe Employer to post C and D store management positions province-wide to both permanent full-time and permanent, part-time employees. The Employer took the position that there was no requirement .to post these positions province-wide tbr permanent part-time employees. The Panel has taken' into account-the .argumems of both parties concerning article analysis, past practice and estoppel. Its decision follows DECISION The Panel took as it's starting point that it was the practice of the Employer to relate postings to the list of geographi~ posting areas established bythe Employer and confirmed fi'om time to time by the Union in the Collective Agreement, With the tbllowing exception. In spite of the geographic posting area list, it has been the Employer;s practice to ignore the geograplfic posting list and to consider the whole province as a geograplfic area when posting permanent tull- time positions. The Union has accepted ti'tis practice for some considerable time and there was no indication of its dissatisfaction with the practice as it relates to permanent tull-time employees. The Panel notes that there was a general acceptance by both the Employer and the Union of the. concept that a hierarchy exists within the employee categories, with the permanent full-time employee at the top, the casual employee at the bottom and the permanent part-time employee somewhere in between. It is importam to note when considering this matter that it is a combination of the store location and the status of the vacant position or the new job classification wtfich determines the scope of the geographical posting and the restriction of applicants. The status of potential aPplicants, that is whether they are permanent tull-time, permanent part-time or casual, has no effect on the scope of the geograptfical'posting. It is to be 5 noted also that the fact a position is a "C" store manager pogition or a ':':'D" store manager posiuon is not relevant in the interpretation of Article 21.4. The references'tliere are to ~"a new job' classification within the bargaining unit" and ""a permanent, vacancy...in an existing job classification", and '"C" and "D" manager positions could be encompassed by either of these. Ms. Clements-Pitkur testified that the imtial posting was restricted to permanent'full-time employees, because, ~"according to the Collective Agreement they have first hght". The Panel fbund no such prior right respecting applications for vacant posaions iii the Collective Agreement. other than that Which rests with them as a .result of the restrictions on Casuals set out in Article ' 31.4. ' Article 21.4, wtfich pre-dates the creation of the permanent part-time category; is not, in the opinion of the Panel ambiguous. It's meaning on analysis is clear and extrinsic evidence is therefore neither necessary nor appropriate when considering its interpretation. Further, when the interpretation is based on a piain reading of an unambiguous article, in the context of the whole Collective Agreement, the practice of the parties is not determinative of the meaning of the article. Article 21.4 is a protective posting clause wlfich sets out the steps the Employer must take before inviting applicmlts from ~outslde for new bargaining unit job classifications or permanent vacancies.. It sets out 'the details to. be specified in the internal posting, and the length of time the posting must remain posted. It also refers to.the geograptfic scope of the posting, stating that "the' Employers will post within the geographic area as specified". Where is "~the geographic area as specie}ed"? A plain reading of the language results in three choices, in the Collective, Agi'eement, in the posting, or iii the geographic area posting list. ArtiCle 5.2. (b) (iii), the Job Security ,~-ticle refers to "geograplfic posting areas". ,~'ticle 21.4 is a ~'~'posting'~ clause, it makes sense that the geographic area referred to in the posting clause, would be the geograplfic posting area While geographic posting areas are referred to in the Collective Agreement, they are not set out there. If the phrase '~geographic area" were in the-posting it would not have any value as a direction for ~he posting. However, it is to the list established by the Employer and confilmed by the Union throUgh Article 5.2 (b) (iii), su/)ra, that the Employer refers in defining' 6 the ~eographic scope of a position which has become vacant or fbr which there is a new job classification. It is the opinion of:the Panel that "the geographic area as specified" means tile geographic area specified ii~ the geographic area posting list. When a permanent vacancy or.a new job classification occurs in a store, Article 21.4 ~neans, tn practical terms, that the Employer must look up the store in the geographic area list and find the geographic area fbr that' store. The geographic area then becomes the geographic scope of the posting. However, this process has not been Used when the vacancy is tbr a permanent full-time posi[mn. In that case, the Employer has posted province-wide and that, along with the practice of restricting these positions to permanent full-time applicants, has been a long-standing practice the Union has condoned. There is nothing in the Collective Agreement which addresses either the exemption fi'om the geograplfic posting area list or the restriction of applicants lrbr permanent full-timepositions to permanent full-time employees. If there were not the established practice of posting full-time vacancies province-wide, one would expect the Employer to act according to the Collective Agreement, to use the geograplfic posting area which relates to the store with the vacancy. The initial posting for the Store Manager's position at the Na~na Store was restricted to applicants who were permanent full-time employees. There is nothing in 'Article 21.4 which-gives the Employer authority to restrict the employee applicants for a new job classification or a permanent vacancy according to their employee category, be it full, part-time, or casual.. This article says "employees within such area may apply". The restriction is geograptfic, not according to employee category. If; therefore, the area is province-Wide, any employee within the Province should be 'eligible to apply, re,less there is a restriction placed on that employee's catego?y elsewhere in the Collective Agreemem. There is no application restriction on permanent full-time employees, or on permanent part-time employees elsewhere'in the Collective Agreemem. Nor is there a restriction on probationary employees. There are however, restrictions on casual employees in Article 31.4. sut)rct. The restrictions are as follows: (1) Casuals have a right to apply for certain [and this is not defined] vacant permanent part-time positions (a)' if no permanent part-time, empl0yee ~s promoted under the special merit ' p[omotion scheme. '~ - - (b) . ii' the vacant permanent Part-time position is within their geographic area. · . (2) Casuals have. aright to apply for vacant permanent full-time positious o,dy (.a) in itheir: geographic area .. (b)' at the entry level. If they meet the restrictions fbr applying, then, their qualifications and ability may be considered by the Employer only if no permanent part-time employees have applied. No such application re}trictions are set out tbr permanent full-time or ibr permanent pal-t-time employees.' Article 21.5 (a) sets out the determining factors in the consideration of promotion: '(a) qualified to do the work (b) Seniority. Article 25 (b),.an exception to 21.5 (a), sets out the parameters of special merit promotion ~n the case of permanent pan-time vacancies: There is no rest~'iction'on the application for these positions, although given that they are permanent part-time and given the ihct that the position is to be awarded in/he case of equality to a permanent part-time employee, it is unlikely that permanent full-time employees Would apply. Ttu'oughout .the Selection process, both part-time and casual employees are considered together. However, at the final selection stage, if there are r~glatively equal candidates the tbllowing restrictions apply: (1) If the relative equality is between a casual and a permanent part-time employee,' the permanent pan-time employee is to be awarded the posaion. (2) If the relative equality is between two permanent part-time employees, the position will be __ awarded to the one with the greatest seniority. A promonon fbr the purposes of the article cited abov~ (21.5 (a)) includes: (I) the a.ssigmnem of a pem~anent full-thne empl%'ee to another pemmnent full-t/ane posinon m a class with a hiorher maXnnmn salary rate than the class of his/her fom~er posmon: or (ix) the assignment of a permanent part-tnne employee to a permanent full-tUne position, if there ~¥as no permanent full-thne em plo.~'ce eligible and qualified for thc position; or tin) the ass~gmnent Of a pennanenl pm't-tune employee to another pemmnent pa~x-mne position 8 with a higher weekly salal3 than his/her lbrmcr posmon: m' the asslgmnent of a casual to pellna/leul parl-tml~ poslhon m accordance with the pl'OVlSlOnS of z~'ticle 31.4. lEmphasis ad&dj ,~though thc parties have relied on t his clause to say that permanent thll-timc employees have preferred eligibility tbr thll-time positions over permanent pan-time employees, thc article does not actually grant preferred eligibility to a peru!anent thll-time employee. Rather, it states that assignment to a permanent/hll-time position will be a promotion tbr.the permanent part-time candidate only in ca~es in wtfich there is no permanem thll-time employee eligible' and qualified tbr the position. The Panel views the difficulty that the parties ha~'e encountered as one of the collision of the CollectNe Agreement with an established and condoned practice iii a situation that had not b_een tbreseen. Further, it is of the opinion that, while the Umon may not have a problem with the first posting, that, in fact, is where the problem began. The problem is not with the province-wide .posting but rather with the restriction of applicants to permanent tull-time. Had this restriction not been in place, since there is no restriction respecting apPlication tbr positions on either permanent thll-time or permanent part-time employees, it would then have been 6pen to applicants fi'om either group to apply and the criteria tbr eligibility would have been qualification to do the work and seniority. A promotion for a permanent part-time employee would have occurred only if there were no permanent tull-time employee eligible and qualified. Casual employees would not have been eligible to apply because of the restrictions placed on them in Article 31.4. In conclusion, the Board has determined that the language of the Collective Agreement does not require the Employer' to post permanent tull-time positions, in particular the "C" and "D" manager positions,' province-wide, although the abrupt discontinuance of a practice of such long d Standing mutual acceptance, and on Milch the Union may have relied in negotiations, perhaps tO its detriment, would surely be unwise and unsettling The Board' has further concluded'~hat the language of the Collective Agreement gives the Employer the right.to restrict potential'applicants 9 : · for pemmnent:thll-time positions only in tile caseofthe casual category~ as set out in.,4d-tir31e 31.4. With that exception permanent full-time postings are open to ~employees" according to Aaticle ,z 1.4 (a). The Panel will remain seized' in the event the parties reqmre its assistance with respect to its decision. Dated ' .' ' .~"~/~' ' Tht,~ February 2, 1996. f~,[,.j~ ~t ~'-~ D., I. Cl~trk, Member 10