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HomeMy WebLinkAbout1998-1425.Pizzolato.00-06-12 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1425/98 OLBEU # OLB115/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Emplovees Uillon (PIzzolato) GIievor - and - The Crown m RIght of Ontano (LIquor Control Board of Ontano ) Employer BEFORE Owen V Gra, Vice ChaIr FOR THE Ms JulIa Noble GRIEVOR Counsel Ontano LIqUor Boards Emplovees Uillon FOR THE Ms. AlIson Renton EMPLOYER Counsel LIquor Control Board of Ontano HEARING March 23 1999 July 12, 13 1999 September 9 16 1999 October 21 29 1999 November 25 1999 February 7 2000 Apnl 4 5 2000 May 1 2,2000 2 DECISION [1] SometImes an LCBO store IS open at a tIme when neIther ItS store man ager nor ItS assIstant manager IS scheduled to be at work. On those occaSIOns, another store employee IS assIgned to be m charge of the store and IS paId a premIUm for that shIft On 13 occaSIOns between Apnl 10 and August 4 1997 a store employee Jumor to the gnevor was paId that premIUm on an afternoon shIft at store 505 where the gnevor worked as a full tIme Customer ServIce Repre sentatIve ("CSR") The gnevor says she should have been scheduled to work the afternoon shIft and assIgned to be m charge of the store on each of those occa SIOns, because of her greater semonty The remedy claImed IS payment of the $8 50 per shIft premIUm that the gnevor would have been paId had she been scheduled to work and selected to be m charge on each of the 13 afternoon shIfts m Issue For some of the shIfts m Issue there IS a dIspute about whether the gnevor was offered and dechned an opportumty to work It The larger Issue of prmcIple m dIspute IS whether m 1997 the employer was obhged to make these "m charge aSSIgnments m accordance WIth semonty as the umon claIms It was [2] The employer desIgnates each of ItS hquor stores as an "A "B" "C or "D store m accordance WIth the store s SIze and volume of sales Store 505 was an "A store durmg the penod m Issue The store managers of the larger "A and "B" stores are managenal personnel excluded from the bargammg umt covered by the collectIve agreement, but store managers of the smaller "C and "D stores are not excluded "A and "B" stores also have a "Store ASSIstant or aSSIstant manager a pOSItIOn that falls wIthm the bargammg umt Indeed, at one tIme larger "double shIft stores - stores at whIch a day s hours of operatIOn are cov ered by two shIfts of employees - each had two aSSIstant managers who rotated between the day and afternoon shIfts 3 [3] In 1991 the employer announced that It would reduce the number of as sIstant managers m each double shIft store to one and reqUIre that assIstant managers work steady afternoon shIfts whIle store manager worked steady day shIfts The umon grIeved that the permanent assIgnment of an assIstant man ager to the afternoon shIft was contrary to the collectIve agreement When that grIevance came on for hearmg, the partIes were m dIspute about whether It had been settled The maJorIty of the panel assIgned to hear the grIevance found (GSB FIle #860/91 decIsIOn dated February 14 1992 at pages 5 and 6) that the partIes had settled It on the followmg terms (1) The terms of the settlement shall become effectIve November 1 1991 (2) ASSIstant managers m double shIft stores shall be assIgned to work the af ternoon (second) shIfts on a weekly or bIweekly rotatIOnal baSIS. The aSSIS- tant manager shall not normally be reqUIred to work more than half of the scheduled second shIfts wlthm the one or two week cycle (3) ASSIstant managers may elect to be scheduled to work more than half of the afternoon ShIftS on a voluntary baSIS. It IS understood however that the aSSIstant manager has the rIght to revert to rotatIOnal schedulmg Schedul mg preferences must be mchcated before store staff schedules are completed. (4) When the aSSIstant manager has not been assIgned to work the afternoon ShIft thIS aSSIgnment WIll be offered to the most semor employee m the next lowest classIficatIOn m the store who IS qualIfied to perform saId aSSIgnment. (5) When asslgnmg employees to the second shIft, the Store Manager WIll make every reasonable effort to balance the needs of the staff WIth opera tIonal reqUIrements of the store [4] UntIl the last day of hearmg m thIS matter the umon S claIm that the employer was obhged to make the "m charge aSSIgnment on the baSIS of semor Ity was based prImarIly on paragraph 4 of thIS 1991 grIevance settlement and, m the alternatIve on ArtIcle 25 l(c) of the partIes collectIve agreement The collec tIve agreement m effect at the tIme of the 1991 settlement ("the 1991 collectIve agreement) remamed m effect untIl the partIes came to agreement on the terms of the collectIve agreement covermg the perIod AprIl 1 1996 to March 31 1998 ("the 1996 98 collectIve agreement) The preCIse date on whIch they dId that IS not clear from the eVIdence and submISSIOns before me It was common ground, however that the 1996 1998 collectIve agreement was m effect throughout the perIod m whIch the grIevor's claIms arose Durmg her closmg submIssIOns umon 4 counsel saId that the umon was abandomng ItS claIm that the terms of the 1991 settlement had stIll been m effect when gnevor's claIms arose m 1997 and would rely only on ItS alternatIve arguments based on ArtIcle 25 l(c) of the partIes col lectIve agreement [5] The relevant prOVISIOns of the 1996 1998 collectIve agreement are ArtIcle 6 12 and paragraph (c) of ArtIcle 25 1 612 (a) The Employer agrees to pay a premIUm of eIght dollars and fifty cents ($8 50) per day to an employee actmg for the Store Manager m hIs/her absence, provIded he/she IS assIgned to act for a mmI mum of three (3) consecutIve hours Such premIUm WIll not be palel to an AssIstant Manager m charge of the second shIft. How ever It would be applIcable to other employees m charge of the store durmg the Manager's absence, whIle workmg the second shIft. (b) An employee (other than those m (a) above) desIgnated by the Employers to replace another employee m a hIgher classIficatIOn shall reCeIve a premIUm of one dollar and twenty cents ($1 20) per hour for each hour such dutIes are performed provIded he/she works a mmImum of two (2) contmuous days m the hIgher claSh'! ficatIOn. Actmg pay shall not exceed the maXImum of the salary range of the hIgher classIficatIOn. 215 (c) Where It IS decIded that It IS necessary to make a temporary 'l) pomtment to fill a temporary vacancy mcludmg summer stores, whIch WIll last five (5) workmg days or more or one day m the case of stores, the Employer shall appomt the most semor an ployee m the next lowest classIficatIOn m the department sectIOn or store mvolved, who IS qualIfied and avaIlable to perform the work. ArtIcle 6 12(a) of the 1991 collectIve agreement provIded for an $8 00 premmm, mcreasmg to $8 50 m July 1992 In all other respects, the language of both ArtI cle 6 12 and paragraph (c) of ArtIcle 25 1 of the 1996-1998 was IdentIcal to what It had been m the collectIve agreement that was m effect when the partIes nego tIated the 1991 settlement [6] The umon argued that when the employer aSSIgns an employee other than the store manager or aSSIstant manager to be m charge of a store durmg an af ternoon shIft, It IS makmg "a temporary appomtment to fill a temporary \a cancy and IS, therefore obhged by paragraph 21 5(c) to appomt the "most semor 5 employee m the next lowest classIficatIOn m the store mvolved, who IS quah fied and aVaIlable to perform the work. [7] The umon submIted that the "temporary vacancy bemg filled IS m the pOSItIOn of store manager In answer to the employer's argument that paragraph 21 5 does not govern appomtments to managerIal pOSItIOns outsIde the bargam mg umt, the umon argued that an employee "actmg for the Store Manager m hIs/her absence m an "A store does not have all of the dutIes and responsibIh tIes of an "A store manager and the aSSIgnment does not take the assIgned mdI vIdual out of the bargammg umt In the alternatIve the umon argued that the "temporary vacancy bemg filled IS m the pOSItIOn of aSSIstant manager In the further alternatIve the umon submItted that the "temporary vacancy bemg filled IS m a pOSItIOn that mIght be descrIbed as "actmg for the Store Manager or "shIft supervIsor but IS not set out m the classIficatIOn schedule of the collectIve agreement The umon argues that m both of these alternatIves artIcle 6 12(a) stIll apphes [8] The partIes agreed at the outset that whIle a CSR or aSSIstant manager IS performmg an "actmg aSSIgnment (that IS, "actmg for the Store Manager m hIs/her absence ) the employee contmues to pay umon dues and these dues are duly remItted by the Employer to the Dmon, the employee s bargaInIng unIt SenIOrIty contInues to run, the employee does not have the authOrIty to hIre or fire other employ ees the employee has the protectIOn of and access to the grIevance proce dure whIle on the actmg aSSIgnment, the employee contmues to make penSIOn trust contrIbutIOns, and the employee IS for all mtents and purposes a bargammg umt mem ber They further agreed that "actmg for the Store Manager m artIcle 6 12(a) IS a phrase that m practIce and effect refers to an employee S bemg m charge of a shIft, regardless of the SIze of the store The employer later argued, however that "Store Manager refers only to store managers m the bargammg umt 6 [9] The gnevor testIfied that whIle performmg an "m charge assIgnment she would spend about 90 percent of her tIme performmg her normal CSR dutIes, and that her addItIonal dutIes mvolved opemng and closmg the store and settmg the alarms, settmg up cashIers who were workmg on her shIft, assIgmng dutIes to the other employees on the shIft and balancmg the store safe [10] Employer wItness Mr Gary LeIgh testIfied that as an A store manager he had been mvolved m hIrmg processes on several occaSIOns as a member of com petItIOn panels mtervIewmg and assessmg candIdates, had completed perform ance appraIsals for employees who reported to hIm had made deCISIOns about IssUIng dIscIplme had Issued notIces of mtended dIscIphne and on one occaSIOn may have recommended dIscharge receIved management trammg and was re sponsible for preparmg the store s budget There was no eVIdence that bargam mg umt employees performed any of these functIOns whIle performmg the actmg functIOn contemplated by artIcle 6 12(a) [11] Durmg her opemng statement, counsel for the umon asserted that an as sIstant manager has more dutIes and responsIbIhtIes than a CSR m charge of a shIft does The eVIdence estabhshed that, as of 1997 the functIOns of an aSSIS tant manager were sImIlar to those of a CSR m charge of a shIft except that the assIstant manager IS generally responsible for preparmg work schedules and may also have some delegated dutIes of the manager m relatIOn to preparatIOn of budgets, momtormg of worker's compensatIOn claIms and return to work pro grams, approvmg health and safety reports There IS no suggestIOn that these are mSIgmficant or mmor functIOns The assIstant manager also has authonty to spend small amounts of money for store purposes, whIle a CSR m charge of a shIft does not [12] It IS apparent that, as used m artIcle 21 5 and the other parts of artIcle 21 "vacancy refers to a vacant Job or posItIOn, not to a work assIgnment that mIght be made to the mcumbent of one posItIOn or another "Temporary vacancy must have a correspondmg meamng The reference m paragraph 21 5(c) to "the 7 next lowest classIficatIOn ImplIes that the temporarIly vacant posItIOn has an assocIated classIficatIOn. In theIr collectIve agreement, the partIes have estab- lIshed classIficatIOns for posItIOns covered by that agreement From the perspec tIve of the collectIve agreement, It IS not meanmgful to speak of the classIficatIOn of a posItIOn to whIch the agreement does not apply [13] In Shendan, 2299/93 (BrIggs) another Vice ChaIr of thIS board concluded that paragraph 25 l(c) of the partIes 1991 collectIve agreement dId not apply to appomtments to temporary vacanCIes m posItIOns not covered by that collectIve agreement I see no reason to come to a dIfferent conclusIOn wIth respect to the IdentIcal provIsIOn of the 1996-98 agreement [14] It does not follow however that every reference m the collectIve agree ment to a posItIOn must be read as though the words "bargammg umt preceded It so that, as employer counsel argues, "an employee actmg for the Store Man ager m hIs/her absence IS only entItled to the premIUm provIded for m ArtIcle 6 12(a) If the absent store manager IS a bargammg umt employee Although the employer has for years paId the premIUm contemplated by that artIcle to em ployees put m charge of larger "A stores m the absence of store managers ex cluded from the bargammg umt, employer counsel argues that thIS was not re qmred by the collectIve agreement and has been done gratmtously [15] In KaluLchuh, 482/83 (Draper) the Board found that ArtIcle 5 12(a) of the partIes then collectIve agreement (whIch provIded for a $4 50 per day premIUm but was otherWIse IdentIcal to ArtIcle 6 12(a) of the 1996 98 agreement) applIed to an assIstant manager m charge of the first shIft m a "B" store m the absence of the store manager There appears to have been no suggestIOn by the employer there that the prOVISIOn was mapplIcable when the absent store manager was not m the bargammg umt although, as employer counsel notes there IS no mdI catIon m the award whether "B" Store Manager was a bargammg umt posItIOn at that tIme 8 [16] In Pohcy Gnevar/,ce 597/86 (Samuels) the Umon sought a declaratIOn that all employees, mcludmg Clerk 4 s and AssIstant Managers, were entItled to premmm pay under ArtIcle 6 12(a) of both the collectIve agreement m force m June 1986 and the 1987/88 agreement (whIch were both IdentIcal to ArtIcle 6 12(a) of the 1996 98 agreement except for the amount of the premmm) when assIgned to act on the Store Manager's day off, subJect to the qualIficatIOn m the second sentence of the artIcle One would have thought that the dIstmctIOn now bemg raIsed by the employer would have been asserted then, If the employer be lIeved that "Store Manager meant "bargammg umt Store Manager EVIdently It was not [17] ArtIcle 6 13 of the collectIve agreement provIdes as follows 613 There shall be one (1) fifteen (15) mmute rest perIOd durmg each half (1/2) shIft or each half (1/2) work day Such rest perIod shall be at tImes desIgnated by the Store Manager or Department Head (except WIth respect to rest perIOds referred to m ArtIcle 6 2) Employer counsel was unable to explam why the partIes should be Imagmed to have meant "bargammg umt Store Manager when they used the phrase "Store Manager m thIS provIsIOn I cannot Imagme that they dId Equally I cannot Imagme that the partIes mtended such a qualIficatIOn when they used the same phrase m ArtIcle 6 12(a) Accordmgly I find that "Store Manager has ItS ordI nary unqualIfied meamng m ArtIcle 6 12(a) That artIcle bears applIcatIOn whenever an employee IS assIgned to be m charge m a store manager's absence whether or not the absent store manager IS a bargammg umt employee [18] Returmng to the Issue of the applIcabIlIty of paragraph 21 5(c) the prem Ise of the employer's argument was that when someone IS assIgned to be m charge of a shIft m the absence of the store manager m an "A store they have been appomted temporarIly to the pOSItIOn of "A store manager and that para graph 21 5(c) IS mapplIcable for that reason. The umon argued that arbItratIOn cases concernmg the Issue of bargammg umt employees bemg assIgned to temporarIly fill a vacancy whIch has arIsen m a non bargammg unIt pOSItIon show that It IS common practIce m labour relatIOns for bar 9 gammg umt employees to temporarIly fill non bargammg umt posItIons, and that normally the actmg employee IS not workmg m an excluded posItIon when they are performmg the actmg functIOn. The awards cIted for thIS proposItIOn are Re Ur/,aed Automob[le Workers, Local 195 and Duplate Ltd (1957) 6 LAC 335 (MacRae) Re Red Deer Regwnal Hos paal and Unaed Nurses Of Alberta, Local 2 (1992) 28 L.AC (4th) 415 (ponak) Re Newfoundland Processmg Ltd and Unaed Steelworkers of Amenca, Local 9316 (1993) 35 LAC (4th) 244 (Alcock) and Re Custom Pharmaceut[cals and lnternatwnal Assocwtwn of Machuusts and Aerospace Workers, Lodge 171 (1998) 74 L.AC (4th) 73 (Petryshen) None of those awards concerned an em ployee "assIgned to temporarIly fill a vacancy whIch has arIsen m a non bargammg umt posItIOn. They all deal, from one perspectIve or other wIth sItuatIOns m whIch bargammg umt personnel have been gIVen some supervIsory dutIes but not appomted temporarIly or otherwIse to an excluded management posItIOn. They Illustrate that the assIgnment to and performance of some super vIsory dutIes by a bargammg umt employee does not necessarIly transform hIm or her mto an excluded manager [19] As follows from the conclusIOn expressed m paragraph 13 of thIS decISIOn, I accept that paragraph 21 5(c) would not apply to the temporary appomtment of an employee as an "A store manager NotwIthstandmg the employer's assertIOn to that effect, however I have conSIderable doubt that makmg an assIgnment of the sort contemplated by artIcle 6 12(a) m an "A store amounts to temporarIly appomtmg someone as an "A store manager The umon makes a strong case that "actmg for the store manager m an "A store does not amount to "actmg as an "A store manager What would follow from that, however IS that contrary to the umon S submIssIOn the employer's makmg an assIgnment of the sort contem plated by artIcle 6 12(a) m an "A store does not amount to filhng a temporary vacancy m the posItIOn of "A store manager [20] In order to demonstrate that an assIgnment of the sort contemplated by artIcle 6 12(a) must be made on the basIs of semorIty by reason of paragraph 10 21 5(c) the umon must show (at least) that such an assIgnment amounts to a temporary appomtment to a temporanly vacant bargammg umt posItIOn WIth a classIficatIOn under the collectIve agreement that IS hIgher than the gnevor's LIquor Store Clerk Grade 3 classIficatIOn as a CSR The only bargammg umt po sItIOns m store 505 that had hIgher classIficatIOns than CSR at the tImes m Issue m thIS gnevance were a Product Consultant posItIOn and the AssIstant Man ager's posItIOn. The umon dId not argue that makmg an assIgnment of the sort contemplated by artIcle 6 12(a) amounted to fillmg a temporary vacancy m a Product Consultant posItIOn. [21] The umon argued that because the second sentence of artIcle 6 12(a) treats bemg m charge of a second shIft as part of the Job for whIch an assIstant manager IS paId assIgmng another employee to be m charge of a second shIft amounts to fillmg a temporary vacancy m the assIstant manager's posItIOn. ThIS argument suffers from a defect sImIlar to the one the umon attacked m the em ployer's argument that assIgmng an employee to be m charge of an "A store amounts to appomtmg the employee as an "A store manager AssIgmng an em ployee m one posItIOn some of the dutIes regularly performed by an employee m another posItIOn does not amount to appomtmg the former to a vacancy m the latter's posItIOn. It mIght be otherWIse If (among other thmgs) the dutIes m ques tIon are the only ones that dIstmgmshed the two posItIOns As umon counsel as serted m opemng and demonstrated m eVIdence however the addItIonal dutIes assumed by a CSR whIle m charge of a shIft are not the only ones that dIstm gmsh a CSR's posItIOn from that of an assIstant manager [22] There IS no dIstmct classIficatIOn defined m the collectIve agreement for a posItIOn of "shIft supervIsor or "employee m charge or "employee actmg for the store manager or whatever label one mIght apply to a person whIle performmg the "m charge functIOn contemplated by artIcle 6 12(a) It IS dIfficult to charac tenze temporanly assIgmng an employee addItIonal dutIes as amountmg to ap pomtmg the employee to a posItIOn not provIded for m the collectIve agreement when that collectIve agreement expressly contemplates the makmg of such an 11 assIgnment and provIdes for premIUm pay for the assIgnee Even If It IS properly so characterIzed, however paragraph 25 l(c) cannot sensIbly apply when thIS notIOnal posItIOn has no assocIated classIficatIOn under the collectIve agreement [23] Accordmgly none of the umon S arguments persuades me that paragraph 25 l(c) of the 1996 98 collectIve agreement applIed to an assIgnment of the sort contemplated by artIcle 6 12(a) m an "A store lIke store 505 m 1997 when the assIgnments m dIspute took place For that reason, It IS unnecessary for me to deal wIth a number of the factual Issues raIsed durmg the hearmg It would not serve any useful purpose to recIte the extensIve eVIdence and argument put ffi fore me on those Issues and on the factual and legal Issues that became moot when the umon abandoned ItS relIance on the 1991 settlement ThIs grIevance IS dIsmIssed Dated at Toronto thIS 12th day of June 2000 ~(/