HomeMy WebLinkAbout1993-2299.Sheridan et al.98-02-13 Decision
o NTARlO EMPUJYES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARlO
. . GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE (416) 326-1396
GSB # 2299/93 1556/93 1588/94 756/94 32/94 34/94
OLBEU # 080/93 186/93 190/94 107/94 264/93 019/94
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SElTLEMENT BOARD
BElWEEN
Ontano LIquor Boards Emplovees Umon
(Shendan et al)
Grievor
- and -
The Crown 111 RIght of Ontano
(LIquor Control Board of Ontano)
Employer
BEFORE F Bnggs Vice Charr
FOR THE R. DavIs
GRIEVOR Counsel
KoskIe Minsk",
FOR THE R. LIttle
EMPLOYER Counsel
Hicks Morle" Hamilton Stewart Stone
HEARING September 26 1995
November 27 1995
F ebruan 6 7 1997
Ma" 9 1997
There are three gnevances flied by emplayees workmg m the Th.uham dIstribuTIon warehause allegrng that
the collectIve agreement was vIalated when the Emplayer failed ta asSIgn emplayees ta an -actrng manager-
pasItIan an the basIS .of sernonty Each gnevance requested compensatIon far all mames last.
At the commencement the Emplayer raISed a prelmunaIy abJectIan that tlns Baard IS WIthaut JmschctIan to
hear and detennme these matters because the gnevances are marbItrable, TIns deCISIon deals .only WIth that
prellll11illllY abJectIan The Emplayer argued that the pasItIons that the gnevors are clannmg aught to have
been assIgned ta them are .outsIde .of the bargammg lIDlt and therefore are beyand the scope .of reVIew by
tlns Baard, The Emplayer asserted that, m adchtIon ta the fact that the language .of the callectIve agreement
does nat provIde the remedy saught by the gnevaI-S, there was SIgmficant chscussIan regardmg tlns ISsue m
the last camplete romd afbargammg m 1990 that supparts Its VIew It was the UmOIJ-S pasItIon that the
long standmg practIce .of the Emplayer had been to appomt bargammg lIDlt emplayees ta temporarily fill m
for excluded managers m A & B stores as well as at the Dtrrham warehause, m accordance WIth artIcle
6 l2(a) and (b)
Pnar ta revIewrng the eVIdence regardmg negatIatmg chscussIans, It IS apprapnate ta set aut the sectIons .of
the callectIve agreement relIed upan by the partIes, Thase proVISIons are
Preamble
1 The general purpose of tlus Agreement IS to estabhsh and contmue hanllolllous relations
between the Emplovers and the employees covered b" thIS Agreement and consIstent
therewIth to provIde procedures for the prompt and Just dIsposItion of dIfferences and
gnevances,
2 It IS understood that the provIsIOns of tlus Agreement apph equall" to male and female
employees,
ReCOgllltIon
1 lea) The Emplovers recoglllze the Ulllon as the exclusIve bargam111g agent for all employees
111 classIfications shown 111 Salan- and ClassIfication Schedule appended thereto
(b) Soleh for the matters dealt wIth 111 ArtIcle 31 Casuals, the Emplovers recoglllze the
Ulllon as the exclusIve bargallung agent for employees as casuals,
Hours of Work and Overtlllle
6 Il(a) The Emplovers agrees to pa" a premIUm of eIght dollars ($8 00) per da" to an employee
act111g for the Store Manager 111 hIs/her absence provIded he/she IS aSSIgned to act for a
nUlllmum of three (3) consecutive hours Such prenuum will not be paid to ail ASSIStaIlt
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Manager m charge of the second shIft. However It would be apphcable to other
employees m charge of the store dunng the Manageros absence while workmg the
second shIft.
6 l2(b) An employee (other than those m (a) above) desIgnated b"\- the Emplover to replace
another employee m a hIgher classificatIon shall receIve a prenuwn of one dollar and
twenn- cents ($1.20) per hour for each hour such dutIes are perfonned provIded he/she
works a mmImum of two (2) contmuous days m the hIgher classificatIOn, Actmg pa"\-
shall not exceed the maxunwn of the salan range of the hIgher classIficatIon,
ASSIgnments and Job Postmgs
21 4(a) If a new Job classIficatIon wIthm the bargammg umt IS created or a permanent vacanc"\-
occurs m an eXIstmg Job classIficatIons before mVItmg apphcatIons from persons not
employed b"\- the Emplovers, the Emplover will post wIthm the geographIc area as
specIfied, notIce of such new Job or vacanc"\- for a penod of ten (10) workmg days
durmg whIch employees wItlun such area ma"\- apph The notIce shall stIpulate
quahficatIons, classIficatIon, salan- range, department and locatIon concerned,
21 5(a) Where employees are bemg consIdered for promotIons, semonn- will be the detennuung
factor provIded the employee IS quahfied to perform the work..
(b) NotwItllstandmg the provIsIOn of ArtIcle 21 5(a) wItlun an"\- calendar year the Emplovers
ma"\- IdentIf"\- a hnuted number of permanent part-tIme vacanCIes as vacancIes to be filled
b"\- specIalment promotIon, In no case shall specIalment promotIOns exceed ten
percent (10%) of all promotIons wIthm the calendar year Specwlment promotIons shall
be so IdentIfied on the Job postIng and shall be awarded to bargauung umt employees
onh In filhng specwlment promotIons, the Emplovers agree to gIve consIderatIon to
the quahficatIons and abihn- of penn anent part-tIme employees and casuals to perfonn
the dutIes of a vacant permanent part-tIme posItIon, Where two (2) or more such
employees are relatIveh equal m quahficatIons and abihtIes, the permanent part-tIme
employee wIth the greatest semonn- shall be awarded tlle posItIon, If the employees
who are deemed relatIveh equal are casuals, the semor casual shall be awarded the
posItIon,
( c) Where It IS decIded that It IS necessan- to make a temporan appomtment to fill a
temporan vacanc"\- mcludmg summer stores, whIch will last five (5) workmg days or
more or one da"\- m the case of stores, the Emplover shall appomt the most semor
employee m the next lowest classIficatIon m the department, sectIon or store mvolved,
who IS quahfied and available to perfonn the work..
2110 Where a bargaunng wnt employee accepts a posItIon WIth the Emplover outsIde the
bargammg umt, hIs/her semonn- for promotIonal purposes shall contmue to accUlllulate
durmg such tune as that employee IS outsIde the bargaunng umt onh for a maxunwn of
five (5) years,
As mentIoned earlIer, the partIes called eVIdence about the dISCUSSIOns that took place dlUlllg the 1990
negotIatIons, Wayne Zacher has been the Employee RelatIons Manager smce Februmy of 1989 He
3
testrfied that, notwIthstandmg the fact that Sandy Rae was the chIef negotIator for the Employer, he was
responsible for certam aspects, mcludmg ArtIcle 2l,5( c) and a Letter ofUnderstandmg, That letter stated,
Where It IS decIded It IS necessm to make a temporm appo111tment to replace the absent Store
Manager It IS the pohc"\- of the emplover to appo111t the most semor person 111 the next lowest
classrricatIon who IS quahfied and available to perform the Store Manager"S Job
Mr Zacher had receIved complamts and gnevances SlUTOlllldmg assIgnments to store manager poSItIons
and hence, he developed the Employer-s proposals and partIcIpated m the dIscussIon at negotIatIons for
these matters, The gnevance whIch arose from the warehouse was ultImately WIthdrawn due to tImelmess,
Mr Zacher testrfied that he was of the VIew that the Letter ofUnderstandmg only referred to the
Employer-s practIce and, accordmgly, there could be deViatIon from that practIce m the event there was
good reason, The practIce m retail stores was to appomt the person m the next lowest classIficatIon who
was the most semor DeVIatIon from that practIce would occm where there were two asSIStants m an A
Store who rotated through the assIgnments and when people were bemg tramed, As well, sometImes m D
Stores when the most semor person was a casual employee, a person from another store was assIgned,
The Employer ongmally proposed the deletIon of the Letter ofUnderstandmg, Therr proposal on artIcle
21 5( c) stated, · Elnnmate, or at least clan:fY reference to · bargammg lU1lt. vacancIes, and It IS the most
semor employee em the next lowest classIficatIon- The Umon proposed mcorporatmg the Letter of
Understandmg mto the body of the collectIve agreement. The proposals and notes taken chmng bargammg
by Mr Zacher were put before the Board, His notes mdIcated that he presented the Employer-s posItIon
on October 30, 1990 He told the Umon-s bargammg representatIves that It was managernent-s VIew that
artIcle 2l,5( c) dId not apply to non bargammg lIDlt poSItIOns, In the event that the Umon dId not agree WIth
that VIew, the Employer wanted 2l,5( c) deleted from the collectIve agreement. If there was no dIspute on
the pomt, the Employer wanted the language clanfied to ensme that the Issue would not have to be revIsIted
each tIme a problem arose m the field, There was also some dIscussIon at tlns pomt that assIgnments should
be made to the most semor m the next lowest classIficatIon, Accordmg to Mr Zacher, there was fi.uther
dIscussIon about tlns at the October 30, 1990 meetmg followmg hIs explanatIon
4
Mr Zacher testrfied that on November 1, 1990 Mr Coones, PresIdent of the Umon, responded to
management-s proposal for artIcle 21,5( c). Mr Coones SaId that he wanted to keep the clUTent language
but was agreed to an addItIon that assIgnments would be made to the most semor employee m the next
lowest c1assIficatlon Mr Zacher-s negotlatmg notes mchcate that when Mr Coones was asked about the
Letter ofUnderstandmg regardmg temporary store managers, he saId that only the bargammg llillt IS
mcluded m the collectIve agreement. Those notes also show that there was chSCUSSIon regardmg meanmg of
the Emp1oyeI-s mtentlon to -c1anfY- Accordmg to Mr Zacher-s notes, Mr Coones asked If -c1anfY- meant
that the Employer was puttmg the Umon on notrce m an effort to end an estoppel. Mr Rae responded -yes,
m some mstances- Later that day Mr Rae told the Umon that to -c1anfY- meant to -lillderstand each
others posItron- At tlns pomt the Umon still wanted the Letter ofUnderstandmg mc1uded m the collectIve
agreement.
On November 2, 1990 there was fi.uther chscussIon about tlns matter Mr Zacher-s notes agam revealed
that there was chscussIonregardmg artI.c1e 21,5(c). The notes ascribe Mr Coones as sayrng, -We wanted a
chance to look over the letter and proposal, Anythmg that IS m tlns book only deals WIth the bargammg
lU1lt- At the December 3, 1990 meetmg Mr Rae asked the Umon for Its posItron whIch was not
forthcommg lilltil December 4, 1990 Dunng tlns meetmg, the Umon gave the Employer a cOlillter proposal
to artIcle 21,5( c )whIch was agreed and the Letter ofUnderstandmg was deleted, Mr Zacher testrfied that
he was of the VIew that the Employer had achIeved Its goal m agreemg to the present language,
In cross e:xammatIon, Mr Zacher agreed that hIs notes were not complete, He stated that he chd not
propose the mclusIon of -WIthm the bargammg lU1lt- to hIs proposal because of the UmOI1'S assurances that
the collectrve agreement only dealt WIth the bargammg llillt employees,
Mr Coones chd not take notes dill1llg bargammg m 1990 Staff members ofills negotIatIng commIttee chd
take notes, however they were unable to fmd them, He proVIded some backgrolilld about the premIllill
payments for asSIStant managers, He also referred to an arbItratron award wherem It was detennmed that
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asSIStant managers were to be paId for replacmg managers on the second shrft except for the managers
regular days off
Mr Coones dIsagreed WIth Mr Zacher-s eVIdence regardmg hIs comments that the collectIve agreement
dId not apply Accordmg to Mr Coones, any statement he made m that regard was made ch.rrrng
dISCUSSIOns about artIcle 21 10, not artIcle 2l,5( c). The Employer had proposed that an addItron be made
to artIcle 21 10 that provIded that employees who had been out of the bargammg llillt and were retLnnmg
would be lnmted to classIficatIons equal to or less than the classIficatron they OCCUpIed pnor to therr
promotron, Mr Coones SaId he dId not recall Mr Zacher-s explanatron of the Employer-s posItron
regardmg artIcle 2l,5( c) and the Letter of Understandmg but he conceded that there were other notatIons
m Mr Zacher-s notes that he dId not recall, In cross exammatron, he stated that he thought artIcle 2l,5( c)
apphed to any tempormy poSItron OUtsIde the bargammg llillt except those m hman resOlrrces,
Mr Coones dId not share the same VIew as Mr Zacher that the Letter ofUnderstandmg was merely a
statement of practIce and therefore not bmdmg m all cases, He saId that the Umon wanted the Letter of
Understandmg mcolporated mto the collectrve agreement because they thought deletmg It would result m a
lesser benefit to ills members, He saId that the Employer never explamed therr VIew of artIcle 2l,5( c) but
he remembered Mr Rae askmg for the UmOI1'S mterpretatron, Mr Coones testrfied that he never dId
respond, Mr Coones testrfied that he could not say WIth certamty that Mr Rae never mdIcated that artIcle
21 5( c) apphed only to bargammg llillt pOSItrons,
The partIes also agreed to some facts m tlns matter That agreement saId,
For the purposes of thIS case on1\. the partIes agreed to the followmg facts
Pnor to the 1990 negotIatIons, It was the pohc"\-/practIce of the LCBO to appomt the most selllor
emplovee m the next lowest classificatIon who was quahfied and available to replace the absent
excluded Store Manager In those cases, the emplovee was generall"\- paid the prennIDll 111 ArtIcle
6 Il(a) In the case of longer term appomtments, the Job rate was sometImes paid wIthout the
Ulllon be111g aware If there were exceptIOns to tins pohc"\- /practIce, the Ulllon was not aware of
them The LCBO"S VIew was that these appomtments/pavments were not governed b"\- the
collectIve agreement but were made as a matter of pohc"\- whIch, 111 ItS VIew reflected the most
6
practIcal emplovee relatIons optIon, The Umon"S VIew was that these appomtments/pavments
were reqUIred b" the collectIve agreement. With the exceptIon of the Kahchuk and Umon pohc"
gnevances, GSB#482/83 and 597/86 respectIveh the PartIes agree that neIther pam ever
expressed Its respectIve VIew to the other on tlus Issue pnor to the 1990 negotIatIons,
Pnor to the 1990 negotIatIons, the general practIce of the LCBO was to appomt the most semor
emplovee m the next lowest classificatIon who was quahfied and available to temporm
vacanCIes that It wIshed to fillm the excluded posItIon of warehouse foreperson, In those cases,
the appomted emplovee generall" receIved the prenuum set out m ArtIcle 6 12(b) In the case of
longer term appomtments, the Job rate was sometImes paid wIthout the Umon bemg aware
If there were exceptIons to thIS practIce, the Umon was not aware of them, The LCBO"S VIew
was that these appomtments/pavments were not reqUIred b" the collectIve agreement but were
made as a matter of pohc" whIch, m ItS VIew reflected the most practIcal emplovee relatIons
optIon, The Umon"S VIew was that the pavments/appomtments were reqUIred b" the collectIve
agreement. However the PartIes agree that neIther part"\- ever expressed ItS respectIve VIew to
the other on thIS Issue pnor to the 1990 negotIatIons,
Pnor to the 1990 negotIatIons, wIth respect to temporm appomtments to other excluded
posItIons, the LCBO"S eVIdence would be that the practIce was varIable l.e that bargallung UIut
emplovees mIght be appomted, If the" were, It mIght/mIght not be the semor emplovee non-
bargallung UIut emplovees mIght be appomted, extemallures mIght be made
With respect to the pavment emplovees receIved m these temporm appomtments, the practIce
vaned, The emplovee mIght receIve the Job rate, the rate set out m ArtIcle 6 12(b) theIr eXIstmg
rate or some other rate The Umon states It was not aware of the rates bemg paid to the
bargallung UIut emplovees who were appomted,
In tlus regard, the Umon"S eVIdence would be that It dId not receIve ail"\- complamts from, aIId
were not aware of, an" bargammg umt emplovees that had been demed temporm appomtments
for whIch the" were quahfied,
The LCBO"S VIew was that these pavments/appomtments were not govemed b" the collectIve
agreement. The Umon"S VIew was that these pavments/appomtIllents would be govemed b" the
collectIve agreement. However the PartIes agree that neIther part"\- ever expressed ItS VIew to the
other on tlus Issue pnor to the 1990 negotIatIons,
EMPLOYER SUBMISSIONS
The Employer contended that there IS a general proposlb.on that, subject to express contractual language,
there IS a preslUllpbon that the collectIve agreement only applIes to the bargammg lllllt. It IS not SLUpnsmg
that the preamble of the collectIve agreement states that the partIes desrre to establIsh and mamtam
hannomous relatIons between employees covered by the agreement and the Employer A lllllon-s nghts
7
revolve arOlmd the bargammg llillt concept of semonty That concept does not apply to those excluded
from the bargammg llillt makmg It nnpossible to a4JudIcate dIsputes between bargammg llillt and excluded
people, Warehouse Foreman 1 and 2 are mcluded m the collectIve agreement but the posItIon that the
gnevors clann appomtrnent nghts to does not appear m the Salary Class Schedules or anywhere else m the
collectIve agreement.
There were four aspects to the Employer-s prelmunaIy objectIon regardmg arbItrabihty The frrst was that
the clear language of the collectIve agreement would lead tlns Board to uphold the prelnnmmy obJectIon,
When the word .vacancIes. appears m the collectIve agreement, It means vacancIes WIthm the bargammg
llillt. In artIcle 21 4, the partIes refer to vacanCIes .WIthm the bargammg lU1lt. That qualIficatIon applIes
throughout the artIcle because If the partIes mtended otherwIse they would SaId so The Dmon conceded m
artIcle 21 4 that Jobs outsIde of the bargammg llillt are beyond therr JmschctIon and snnilarly, .vacancIes.
throughout the collectIve agreement are all WIthm the bargammg llillt. In order for tlns Board to accept
JmsdIctIon of the gnevance the Dmon has to establIsh that .vacancy- means somethmg chfferent m artlcle
21 5( c) than It means at 21 4( a). Common sense would lead one to the conclusIon that If the partIes
mtended drfferent mearungs to the same word WIthm the same artlcle they would have clearly proVIded for
that dIstInctIon Further, It would be odd for the partIes to have agreed to nghts to temporary excluded
pOSItIOns and not to permanent excluded pOSItIOns,
Mr Little, for the Employer, suggested that Mr Coones. eVIdence that artIcle 2l,5( c) applIed to any
posItIon WIth the LCBO, up to and mcludmg the CEO IS mdIcatIve of the absurdIty of the Dmon-s posItIon
m tlns matter There would be bargammg llillt employees WIth sernonty and excluded employees WIth no
sernonty vyrng for a pOSItIon for wmch sernonty IS a key detenmnant.
Further, the Employer contended that where the partIes mtended to take pOSItIOns OutsIde of the bargammg
llillt mto accomt, they dId so expressly as can be seen m artIcle 21 lOA fi.nther reVIew of the collectIve
agreement shows that the partIes often dealt WIth vacanCIes and, as can be seen at artIcle 5,3 and 31 4( a)
8
The Emp1oyer-s mterpretatIon IS consIstent WIth those prOVISIOns,
The Emp10yerrehed upon Re Abitibi Paper Com pany Limited and International
Brotherhood of Electrical Workers (April 20, 1967), unreported (Little); Re British
Columbia Telephone Co. And Federation of Telephone Workers of British Columbia
(1976), 12 L.AC (2d) 117 (Larson), Re Municipality of Metropolitan Toronto and
Canadian Union of Public Employees, Local 43 (1979),21 L.AC (2d) 424 (Brent); Re The
Parking Authority of Toronto and Canadian Union of Public Employees Local 43
(December 18,1980), unreported (Betcherrnan), Re Municipality of Metropolitan Toronto and
Canadian Union of Public Employees, Local 43 (September 27, 1982), unreported (O-Shea),
Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees
Local 79 (November 12, 1982), unreported (Lmden), Re Municipality of Metropolitan
Toronto and Canadian Union of Public Employees Local 79 (1993), 35 L.AC (4th) 357
(Fisher); Re Art Gallery of Ontario and Ontario Public Service Employees Union, Local
535 (1992),30 L.AC (4th) 179 (Brandt); Re Cunningham and the Crown in Right of
Ontario (Ministry of Consumer and Commercial Relations) (1980),29 L.AC (2d) 90
(Hennessey), Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU
(Shelton, Haynes & Villella) - GSB#520/90 (October 9, 1990), unreported (DIssanayake), Re
The Crown in Right of Ontario (Ministry of Revenue) and OPSEU (Dias)-
GSB#3479/92 (March 3, 1995), unreported (Gorsky).
The Emp1oyer-s second asserb.on IS snnilar to Its frrst. Mr Little contended that where the word
-classIficatIon- IS used throughout the collectIve agreement It means classIficatIon Wlthm the bargammg llillt.
The Dmon has to prove that -classIficatIon- m arbcle 6 12(b) means pOSItIons outsIde the bargammg llillt. In
order for the Dmon to prevail m that regard, clear language would be reqwred
Thrrdly, Mr Little subrmtted that the eVIdence regardmg the dISCUSSIons that took place chmng negotIatIons
9
must lead tlns Board to uphold the Employer-s prelnnmmy obJectIon, The partIes agreed that the language
applIed only to bargammg lIDlt pOSItIons, Until artIcle 2l,5( c) IS amended, the Umon must be held to the
representatIon It made at the bargammg table, The eVIdence supports the Employer-s contentIon, The
Employer tabled a proposal because It wanted to clan:fY Its VIew The Umon wanted to renew the Letter of
Understandmg regardmg store managers because It was of the VIew that 2l,5( c) illd not mclude excluded
pOSItIons, The Umon was aware that the Letter ofUnderstandmg was not sufficIent because It only
expressed an Employer polIcy and was therefore not bmdmg, Th.rrmg the dISCUSSIOns, John Coones told the
Employer that the collectIve agreement applIed only to the bargammg lIDlt and the Employer relIed on those
assmances m detennmmg Its posItIon on artIcle 2l,5( c). The Umon must now be held to those
representatIons,
Mr Little spoke of the illspanty m the eVIdence regardmg the illSCUSSIOns whIch took place ch.mng the 1990
negotIatIons and suggested that the Board ought to prefer Mr Zacker-s testnnony His recollectIon was
clear and supported by hIs notes, Mr Coones illd not have the benefit of notes to refresh hIs recall and
because the negotIatIons took place SlX years and two rOlmds ofbargammg ago, It IS not SlUpl1smg that hIs
memrny would be less than clear Indeed, he adrmtted that hIs recall was not clear SpecIfically addressmg
Mr Coones. eVIdence that Mr Zacker illd not explam the Employer-s VIew of Its proposals, It was
suggested that Mr Zacker-s eVIdence was more credible, Mr Coones illd not have a reasonable
explanatIon as to why the Umon wanted to retam the Letter of Understandmg If artIcle 2l,5( c) applIed to
poSItIOns outsIde the bargammg lIDlt. Mr Coones told the Employer that the collectIve agreement only
applIed to the bargammg lIDlt. Ifhe belIeved drfferently and was bargammg m good fruth, he had an
oblIgatIon to tell the Employer that VIew
The Employer-s fourth argrnnent concerned the eVIdence of past practIce Mr Little subrmtted that all of
the past practIce eVIdence was melevant because tlns Board ought to fmd that the Employer put the Umon
on notIce dlll1I1g the 1990 negotIatIons that artIcle 2l,5( c) of the collectIve agreement illd not apply to non
bargammg lIDlt poSItIons, In the event that I reject the Employer-s thrrd argrnnent, notIce was grven to the
10
Umon that the practIce was to stop In the alternatIve, If past practIce eVIdence IS consIdered, It has to be
consIstent and the agreed statement of facts makes clear that there was no consIstent applIcatIon The facts
as agreed by the partIes IS consIstent WIth the mterpretatIon of both partIes, The Employer made
appomtments at Its dIscretIon and WIth an eye to the Letter ofUnderstandmg m the collectIve agreement
pnor to 1990 The appomtments were made sometImes but not always m accord WIth the stated polIcy set
out m the Letter ofUnderstandmg for employees m the Warehouse and Retail Stores, At best, the Umon
can assert that pnor to 1990, artIcle 6 l2( a) applIed to store managers, In any event, the Letter of
Understandmg dId not SlllVlve the next collectIve agreement so the Employer was no longer comrmtted to
the practIce, It IS apparent from the agreed statement of fact that the practIce vaned, as such It carmot be
saId that the Employer IS estopped, In tlns regard, the Employer relIed upon Re Carling O-Keefe
Breweries of Canada Ltd. And Canadian Union of United Brewery Flour Cereal, Soft
Drink and Distillery Workers (December 2, 1980), unreported (Burkett), Re The Crown in
Right of Ontario (Liquor Control Board) and OBLEU (Worselyillaigle/Milgate)
(October 10, 1989) unreported (Knopf); Re Hallmark Containers Ltd. And Canadian
Paperworkers Union, Local 303 (1983), 8 L.A.C (3d) 116 (Burkett); andRe National
Grocers Co. Ltd. And Teamsters Union, Local 91 (1991),20 L.A.C (4th) 310 (Bendel).
UNION SUBMISSIONS
The Umon generally agreed WIth the proposItIon that a collectIve agreement IS preslUlled to apply only to
bargammg lIDlt members, However, m tlns type of workplace wmch IS scattered over a huge geograpmcal
area, the Employer OCcasIOnally utilizes bargammg lIDlt people m managenal pOSItIons, It IS the UmOIJ-S
mtentIon to ensure that those assIgnments are done m a farr and ratIonal marmer WIth appropnate
compensatIon, The employees who are m those temporary poSItIOns remam m the bargammg lIDlt. The
maJ011ty of JlUlsprudence proVIded by the Employer dealt WIth permanent appomtment to poSItIOns OutsIde
of the bargammg lIDlt and are therefore of lIttle asSIStance to tlns Board,
11
Mr DaVIS, for the Umon contended that m the mstant matter, the gnevors and the Umon are not attemptmg
to represent poSItIOns OutsIde of the bargammg lIDlt but that bargammg lIDlt members are paId appropnately
when they are assIgned the responsibilItIes of those pOSItIons, Arttcle 21,5( c) of the mstant collectIve
agreement provIdes the same benefits as the Letter ofUnderstandmg; that IS, qualIfied employees m the
next lowest classIficatIon have a nght to ternporcuy appomtrnents when the Employer deems It necesscuy to
fill the poSItIon for more than five wOlkmg days, or more than one day m the case of retail stores,
The Employer argued that the UmOl1'S posItIon would have It replace even the ChIef ExecutIve Officer WIth
bargammg lIDlt persormel. That rmght be accurate m the absence of the quahtymg language regardmg the
next lowest classIficatIon In order for a bargammg lIDlt employee to temporarily be asSIgned to act as CEO
It would reqwre the elnmnatIon of all employees m poSItIons between those m the bargammg lIDlt and the
CEO
Mr DaVIs urged that meanmg must be gIven to the p1am 18110auage of the collectIve agreement and m the
content of tlns agreement that IS to ensure that ternporcuy vacancIes are tIed to artIcle 6 12 whIch provIdes
responsibilIty allowance, It IS subsectIon (b) that clearly provIdes for ternporcuy vacanCIes, eVIdenced by
the reference to -actrng pay- fOlmd m the last sentence, The Umon referred the Board to Re The Crown
in Right of Ontario (Liquor Control Board of Ontario) and OLBEU(Kalichuk) (April 2,
1984), unreported (V enty) whIch was quashed by DIVISIOnal Court and subsequently re-heard and
decIdedmRe The Crown in Right of Ontario (LCBO) and OBLEU(Kalichuk) (November
20, 1985), unreported (Draper)
InRe The Crown in Right of Ontario (LCBO) and OBLEU(Policy) (Februcuy 23, 1988),
unreported (Samuels), artIcle 612 (a) was at Issue and, generally speakmg, It was fOlmd that employees
who acted for the Store Manager m hIs absence were entItled to the premn,.un provIded m Arttcle 6 12
mcludmg Cle1k. 4's, Thmng tlns chspute, the Employer chd not raISe the ISsue of whether the collectIve
agreement applIed to pOSItIOns outsIde of the bargammg lIDlt because It knew that the collectIve agreement
applIed to all bargammg lIDlt employees who were rep1acmg store managers,
12
Shortly after the Issuance of that award, the partIes enter mto the 1990 bargammg rOlmd It IS not smpnsmg
that the Dmon would have felt confident that bargammg lllllt employees had nghts regardmg assIgnment to
store manager pOSItIons, Mr DavIS suggested that the ISSue was res judicata At the very least, I should
apply past decISIons of tlns Board and allow the gnevances to be heard on therr ments, There have been
preVIOUS deCISIOns that have fOlmd that artIcle 6 l2( a) gave a specIfied rate of pay for members of the
bargammg lllllt who were temporarily actmg as store managers, mcludmg store managers who were OutsIde
of the bargammg lllllt.
The Dmon IS not askmg for a findmg of estoppel. NotwIthstandmg, all of the eVIdence set out m the Agreed
Statement of Fact IS relevant and mmcates a consIstent practIce regardmg assIgnment of the wOlk at Issue,
The past practIce eVIdence should asSIst thIS Board m detennmmg the appropnate mearung of the collectIve
agreement m those cases where an ambIgt.llty IS fOlmd In tlns regard the Dmon rehed upon Re
International Association of Machinists, Local 1740, and John Bertram & Sons Ltd.
(1967), 18 L.AC 362 (Weiler).
Mr DavIs asserted that artIcle 21 4 and 21 10 make reference to pOSItIons lllSIde or outsIde the bargammg
llillt. If the partIes mtended artIcle 2l,5( c) to apply only to poSItIons lllSIde the bargammg lllllt, they could
have and would have saId so ArtIcle 2l,5( c) contemplates temporcuy vacancIes, TIns language was
amved at after Mr Rae asSllfed the Dmon that Its concerns m the Letter of Dnderstandmg were met,
accordmg to Mr Zacher notes, On November 2, 1990, Mr Rae saId that he was confused because the
frrst pOSItIon of the Dmon was that It wanted to mclude the Letter ofDnderstandmg mto the collectIve
agreement. Then he saId, -We fOlmd 2l,5( c) covered same concerns as letter so we combmed both m Oill
proposal- When the Board consIders that assillance as well as the past htIgatIon and past practIce of the
partIes, the prellll11l1aIY objectIon must be msmISSed,
Mr DaVIs subrmtted that It must be eVIdent from the Employer-s proposals at the bargammg table m 1990
13
that It knew that artIcle 2l,5( c) applIed to pOSItIons outsIde the bargammg llillt. Indeed, It proposed the
deletIon of the artIcle or, at the very least, a SIgmficant lnmtatIon on Its applIcatIon,
Regardmg the suggestIon that Mr Coones gave assurances at bargammg, It was contended that Mr Zacher
notes were deficIent. It IS snnply not credible that the Umon would gIve up what It had m the Letter of
Understandmg, Any comment that Mr Coones rmght have made about the scope of the collectIve
agreement were m respect of people bemg demoted mto a bargammg llillt posItIon There must be clear and
cogent eVIdence of a representatIon that would allow a findmg for the Employer There has been no such
eVIdence proVIded m the mstant matter
The Umon also relIed upon Re Victoria Hospital Corporation & District Service Workers.
Union Local 220 (1977), 17 L.AC (2d) 204 (H. D Brown); Re Sudbury District Roman
Catholic Separate School Board and Ontario English Catholic Teachers. Association
(1984), 15 L.AC (3d) 284 (Adams); Re Consolidated-Bathurst and Canadian Paperworkers
(1985),19 L.AC (3d) 231 (Kuttner); andRe Napev Construction Limited 1980 OLRB Rep
Jlille 862,
In reply, the Employer conceded that pnor to 1990, artIcle 6 l2( a) was applIed to non bargammg llillt store
manager poSItIons, However, the appropnate artIcle m tlns mstance would be artIcle 6 l2(b) and the
practIce regardmg tlns as set out m agreed statement of facts IS of lIttle assIstance because It IS eIther
mCOIlSIStent WIth the UmOIJ-S VIew or, at most, It supports the poSItIon of both partIes,
Regardmg the alleged Employer assurances gIven at bargammg, Mr Little stated that any comments made
by Mr Rae regardmg combmmg elements mto a new proposed artIcle 21,5 ( c) were made m lIght of the
assurances already gIven by Mr Coones that only bargammg llillt matters were covered m the collectIve
agreement. The context of that chscussIon was that the Umon was tIymg to have the Employer renew the
Letter of Understandmg regardmg store managers, It would be drfficult for thIS Board to make a findmg that
14
the Employer made representatrons chmng bargammg for a vanety of reasons, First, the proposItron was
never put to Mr Zacher when he was a WItness, Second, the very frrst tlme tlns allegatron was made was
ch.nmg the Umon-s closmg argrnnents, It was never SaId by Mr Coones that a representatron had been
made to bun that artIcle 2l,5( c) would apply to pOSItrons outsIde the bargammg llillt. To the contraIy, he
testIfied that he mderstood that artIcle 2l,5( c) applIed to pOSItrOns outsIde the bargammg llillt so he illd not
have to be told so by Mr Rae, When he was asked about tlns exchange, Mr Coones stated that he illd
not recall the exchange, For there to have been such an assmance would have been completely mconsIStent
WIth the Employer-s obJectrves as set out m Its ongmal proposals,
DECISION
The ISSue for tlns Board to address IS whether the gnevances are arbItrable, After consIderatIon the
eVIdence and subrmssIons of the partIes, I am of the VIew that I am WIthOut Jmschctron to hear and
detennme the gnevances, I find that the laIloouage of the artIcle 21,5 (c) IS clear and llIlambIguous,
Therefore It IS neIther necessary nor appropnate for me to rely on extnnsIC eVIdence regardmg
representatrons or past practrce to asSISt m Its mterpretatron, I agree that there IS a general presmptron that
the collectrve agreement applIes only to the bargammg llillt. There IS no reference to vacancIes .0utsIde the
bargammg lU1lt. m artIcle 21,5 ( c) and for the gnevances to be arbItrable, there would have to be clear
language to that affect. In order for me to accept Jmsillctron of the gnevances, I would have to read
· outsIde the bargammg lU1lt. mto artIcle 2l,5( c) and I have no authonty to alter the collectrve agreement. In
Abitibi Paper (supra) It was stated at page 4
The Board agrees wIth the Compan"\- that the gnevance IS not arbItrable for the followmg
reasons,
1 The recogmtIon artIce of the Agreement as quoted states that the Umon IS the
bargaullng agent for "all those emplovees under theIr JUrIsdIction engaged m the
operation, mamtenance, repaIr and mstallatIon of all electncal eqUIpment, electromc
eqUIpment and the electncal portion of metenng eqUIpment" and the supenntendent"S
job IS not mcluded therem,
2 That nonnalh an emplover has the nght to promote a person to a job out of the
bargammg umt or assIgn such a person to It on a temporan- basIs, wIthout bemg
15
governed b"\- the promotIon provIsIOns of a CollectIve Agreement.
3 That thIS Agreement does not provIde that ArtIcle 7 must be followed m the case of a
desIgnatIon such as PalangIO receIved, and therefore, the decIsIOn of the Compan"\-
cannot be subject of a gnevance
4 That said ArtIcle 28 provIdes, "It IS further understood that the Com pan"\- reserves the
nght to detenmne when It IS necessan- to see up a replacement for a supenntendent
absent for a da"\- or more" The latter sentence emphasIzes the COmpaIlV"S sole
responsibihn- for makmg a decIsIOn m thIS regard,
5 The provIsIOn m ArtIcle 28 that the Compan"\- IS compelled to pa"\- a certam rate IS
undoubtedh one b"\- whIch the Compan"\- IS bound wIder the Agreement, but tlllS IS not
mconsIstent WIth ItS sole nght to decIde to whom the work. shall be assIgned,
6 There IS no questIOn that the gneVaIICe concerns a decIsIOn of management whIch IS
bevond the scope of the CollectIve Agreement. It was the sole prerogatIve of the
Compan"\- to desIgnate ail"\- person It consIdered fit to act temporarih 111 the place of ItS
supenntendent and the Umon has no nght to object.
I agree WIth the above and many of those comments apply m tlns mstant matter Frnther, the JlUlsprudence
Issued after the above decIsIon IS consIstent and supports that I lack JlUlschctIon to decIde the three
gnevances before me,
Accordmgly, I fmd that the clear and lll1ambIguous language of the collectIve agreement supports the
Employer-s prelmunaIy objectIon If there were an ambIgwty m the laIloauage, the past practIce pnar to the
1990 negotIatIons would have been of vntually no assIstance, The facts settmg out the past practIce as
agreed by the partIes are COnsIStent WIth each partyes VIew of the appropnate mterpretatIon of the collectIve
agreement. The Employer-s polIcy was generally followed but there rmght have been vanatIons and If there
were, the Dmon was unaware of them, Each party thought the collectIve agreement was bemg complIed
WIth and had no knowledge that the other party had a ch:fferent VIew Where It IS appropnate to utilIZe past
practIce eVIdence to asSIst m detennmmg the mterpretmg a collectIve agreement, that past practIce must be
clear, lUleqlUvocal and both partIes must have been aware of It. Such was not the case m the mstant matter
Snnilanty, m the event that I had deterrnmed It necessmy to consIder whether any representatIons were
made dlll111g the course ofbargammg, the eVIdence regardmg chsCUSSIons at negotIatIons would not have
16
been helpful, That eVIdence revealed that there was no clear representatIon made by the Dmon, I belIeve
that Mr Coones made the comments ascribed to hnn m Mr Zacher-s notes, However, I would not have
fOlmd that those comments were a clear mchcatIon or representatIon to the Employer about the scope of
artIcle 21,5( c). Indeed, my reVIew of the eVIdence and Mr Zacher-s notes would have led me to fmd that
the chSCUSSIOI1S held dlll111g bargammg were almost desIgned to aVOId addressmg the Issue at hand, It was
not SlUpnsmg that Mr Zacher-s VIew of what was acmeved at bargammg IS completely OppoSIte to that of
Mr Coones,
Accordmgly, the Employer-s objectIon IS upheld and I find that I am WIthOut JilllSchmon to hear and
detennme the gnevances, Therefore, the gnevances are chsmIssed,
Dated m Toronto, tlns 13th day of F ebrumy, 1998
~
FelIcIty D Bnggs, Vice-Charr
17