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HomeMy WebLinkAbout2002-1189.Hoy et al.06-03-08 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1189 2002-2082 UNION# OLB362/00 OLB467/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Hoy et al ) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Michael V Watters Vice-Chair FOR THE UNION Jackie Crawford Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING Apnl 23 September 16 October 13 & 14 December 6 & 19 2005 2 DeCISIon ThIS proceedIng anses from a group gnevance filed on behalf of a number of employees who at the matenal tIme, were workIng as Clerks at the Employer's Durham Warehouse In WhItby Ontano By way of Global Minutes Of Settlement, executed In the summer of 2004 the partIes agreed to place the folloWIng Issue before thIS Vice-Chair "Were the Gnevors, by vIrtue of the posItIOns they held at the tIme Gnevance #OLB 362/00 was filed, on August 2,2000 entItled to a umform (i e two [2] clean ShIrtS and two [2] clean pairs of trousers per week) pursuant to artIcle 22.2 of the partIes collectIve agreement, effectIve Apnl 1 1998 to March 31 2000?" The answer to the above questIOn wIll determIne whether the gnevors were entItled to a umform allowance, as ImtIally proVIded for In the collectIve agreement effectIve Apnl 1 2000 to March 31 2002 ArtIcle 22 2 of the Apnl 1 1998 to March 31 2000 collectIve agreement proVIded as follows 222 Employees In the LCBO warehouses wIll be Issued two (2) clean ShIrtS and two (2) clean pairs of trousers per week, the cost of whIch shall be the responSIbIlIty of the Employer ThIS artIcle was changed dunng the negotIatIOns for the Apnl 1 2000 to March 31 2002 collectIve agreement. The amended artIcle proVIded as follows 22 2(a) MaIntenance employees, In LCBO Warehouses, wIll be Issued two (2) clean ShIrtS and two (2) clean pairs of trousers per week, the cost of whIch shall be the responSIbIlIty of the Employer (b) All other employees, In LCBO Warehouses, assIgned to a claSSIficatIOn whIch was prevIOusly elIgIble for umforms, shall be Issued a lump sum payment of four hundred dollars ($400 00) payable on September 1 2000 and no later than the first pay In the month of September annually thereafter ThIS proVIsIOn was contInued In IdentIcal terms In the subsequent collectIve agreement whIch expIred on March 31 2005 3 At the heanng of December 6 2005 the partIes filed the folloWIng Agreed Statement Of Facts 1 The PartIes have a long-term bargaInIng relatIOnshIp and have entered Into several collectIve agreements For the purposes of thIS ArbItratIon, the PartIes had a collectIve agreement covenng the penod of Apnl 1 1998 through March 31 2000 (hereInafter "the collectIve agreement") 2 In January 2000 the PartIes commenced bargaInIng for the renewal of the collectIve agreement and ultImately entered Into a collectIve agreement covenng the penod from Apnl 1 2000 through March 31 2002 (hereInafter "the renewed collectIve agreement") 3 At the outset of the bargaInIng, the Employer proposed a change to ArtIcle 222 of the collectIve agreement. Pnor to the change made In the renewed collectIve agreement, the language In ArtIcle 22.2 of the collectIve agreement had remaIned unchanged SInce at least 1973 4 At the bargaInIng table on or about March 7 2000 the PartIes' mutual understandIng was that the language set out In ArtIcle 222 of the collectIve agreement dId not mean that all employees In the LCBO warehouses were elIgIble for umforms, and that the proposed monetary umform allowance would be provIded only to those warehouse employees who had prevIOusly been elIgIble for a umform 5 On or about March 9 2000 the PartIes agreed to the language set out In ArtIcle 22 2 (b) of the renewed collectIve agreement The Instant gnevance was filed on August 2,2000 At the tIme of filIng, the partIes were In the statutory freeze penod and, as a consequence, were stIll governed by the proVIsIOns of the collectIve agreement whIch would otherwIse have expIred on March 31 2000 The threshold Issue In thIS case, SImply stated, IS whether any or all of the Clerks were "preVIOusly elIgIble for umforms" under the Apnl 1 1998 to March 31 2000 collectIve agreement. If they were, and assumIng they contInued to work In elIgIble claSSIficatIOns, the Clerks would be entItled to the umform allowance proVIded by the successor agreements Dunng the course of the heanng, I was Informed that the result In Gnevance #OLB 362/00 would affect eIght (8) employees I was 4 further told that the result would be dISposItIve for three (3) other employees whose gnevance turns on the same questIOn. Counsel for the partIes agreed that artIcle 22.2 of the Apnl 1 1998 to March 31 2000 collectIve agreement was ambIguous In that the provIsIOn dId not clearly set out whIch employees In LCBO warehouses were entItled to a umform thereunder Counsel, therefore further agreed that thIS was an appropnate case for the receIpt of extnnsIC eVIdence In aid of InterpretatIOn. The eVIdence led by the partIes, generally was focused on the folloWIng areas the nature of the work performed by the gnevors, the condItIOns eXIstIng In the workplace and the past practIce pertaInIng to the provIsIOn of umform s EVIdence for the Umon was presented by Ms Joanne Caldarola, Ms Demse DaVIS and Ms PaulIne Graham. Ms Caldarola commenced her employment wIth the LCBO In 1986 as a casual employee She subsequently worked In the warehouse as a Warehouse Worker 3 for approxImately twelve (12) years Ms Caldarola became a full-tIme Clerk In the ReCeIVIng Office In July 2001 Ms Caldarola filled In as a Clerk In the penod 1993 to 2001 when the regular Clerks were off sIck or on holIdays Ms DaVIS started wIth the LCBO as a casual employee In 1983 She became a full-tIme Warehouse Worker 3 In 1986 In the years 1992 to 1994 Ms DavIs served as an ActIng Stock Control Clerk and then as a ReceptIOmst. Both of these posItIOns were located In the Front Office In 1995 Ms DavIs became a Pallet Control Clerk. ThIS work was also ImtIally performed out of the Front Office Ms DavIs moved Into the warehouse In 1997 and contInued to work there as a Pallet Control Clerk untIl mId-2005 when the posItIOn was then moved back to the Front Office locatIOn. Ms Graham's ImtIal employment wIth the LCBO was as a Data Entry Clerk In the Control Room commencIng In 1985 In 1987 she moved Into the Front Office for traInIng purposes and was then later moved to the Exam Room to do data entry After returmng from a maternIty leave In January 1988 5 Ms Graham worked as a Clerk In the ReCeIVIng Office She has remaIned In that posItIOn to date Mr Vic ArauJo was the sole wItness to present eVIdence on behalf of the Employer Mr ArauJo IS the General Manager of OperatIOns at the Durham Warehouse He has occupIed the posItIOn on a permanent basIs SInce Apnl, 2001 Pnor to that, he was actIng In the posItIOn for one (1) year As General Manager of OperatIOns, Mr ArauJo IS responsIble for the day-to-day actIvItIes of all ShIftS Between September 1997 and 2000 Mr ArauJo served as the Manager of the Order ProcessIng Department. From 1990 to the former date, he worked In a number of management posItIOns, IncludIng the folloWIng SupervIsor of Order ProcessIng, SupervIsor of the Afternoon ShIft, ActIng ShIppIng Manager ActIng ReCeIVIng Manager and ReCeIVIng Manager Clerks reported to Mr ArauJo In a number of these posItIOns Before JOInIng management, Mr ArauJo held posItIOns In the bargaInIng umt for fourteen (14) years He has worked at the Durham Warehouse SInce It opened In or about 1985 The Durham Warehouse IS a large facIlIty whIch IS used by the Employer to receIve, store and ShIP product. Through agreement of the partIes, thIS Vice-Chair and counsel took a VIew of the facIlIty on September 16 2005 The InSpectIOn was helpful In that It proVIded me wIth a better understandIng as to the physIcal layout of the warehouse, the condItIOns eXIstIng thereIn and the nature of the work performed by the gnevors Dunng the course of the eVIdence a sketch of the Floor Plan of the Intenor warehouse was filed as ExhIbIt #40 The exhIbIt IS appended to thIS award. There are one hundred and thIrty-SIX (136) full-tIme employees workIng wIthIn the OperatIOns Group at the Durham Warehouse ThIS number IS supplemented by an addItIOnal complement of approXImately mnety (90) seasonal and casual employees At the tIme the gnevance was filed, there were eIght (8) full-tIme OperatIOns Clerks, IncludIng Ms Graham. As preVIOusly noted, Ms Caldarola subsequently became an OperatIOns Clerk In July 2001 Mr 6 ArauJo testIfied that there have always been between eIght (8) and mne (9) such posItIOns sInce the warehouse opened. There IS also one (1) Pallet Control Clerk. Ms DaVIS has been the only Incumbent In thIS posItIOn. At thIS Juncture, It IS necessary to bnefly address the dutIes of the other posItIOns referenced dunng the course of the heanng and theIr status VIS a VIS elIgIbIlIty for a umform The eVIdence may be summanzed as follows 1) Warehouse Workers 3 and 4 spend the bulk of theIr day workIng on the warehouse floor They unload contaIners by hand. I was told that thIS work IS physIcally demandIng and that a Warehouse Worker could unload up to two thousand (2,000) cases of product per day for placement on a conveyor or a pallet. Warehouse Workers also buIld pallets, handle, examIne and repack broken cases of product, clear cases from Jammed eqUIpment, and operate forklIft trucks and transporters 11) Warehouse Foremen/women supervIse warehouse personnel They also assIst Warehouse Workers wIth cleanngJams on the lIne, remOVIng broken cases and fixIng pallets that come apart; 111) MaIntenance employees fix broken eqUIpment, replace motors underneath the conveyors, replace rollers and forklIft truck battenes and, generally troubleshoot on the warehouse floor IV) Warehouse Workers 3 and 4 and Warehouse Foremen/women were provIded WIth umforms untIl the final expIry of the 1998 to 2000 collectIve agreement. Thereafter they receIved the umform allowance ImtIally provIded for by artIcle 22 2(b) of the 2000 to 2002 collectIve agreement. MaIntenance employees were SImIlarly provIded WIth umforms under the 1998 to 2000 collectIve agreement. They contInued, however to receIve umforms under artIcle 22.2(a) of the successor agreement. Mr ArauJo explaIned that these employees were gIven a umform or a umform allowance because theIr regular dutIes brought them Into contact WIth eqUIpment and matenal that could cause theIr clothes to become damaged, dIrty or staIned. He specIfically mentIOned that the Warehouse Workers carry cases agaInst theIr body and that they and the Warehouse Foremen/women and MaIntenance employees could come Into contact WIth grease, broken product and battery aCId dunng the course of theIr dutIes I note that Ms Caldarola and Ms DaVIS were Issued umforms dunng the penod they worked as Warehouse Workers, v) Vax System Operators and Control Console Operators work In the Control Room TheIr dutIes focus on the operatIOn of the computer system and are, generally performed WIthIn the confines of the Control Room I was Informed that they rarely go out Into the warehouse and that on those occaSIOns when 7 they do It IS for purposes of gOIng to another Clerk's office Employees In these classIficatIOns do not come Into contact wIth product; VI) Front Office staff do not work In the Intenor of the Durham Warehouse TheIr work area IS separate and removed from the warehouse floor It IS fair to say that theIr workIng envIronment resembles that tYPIcally found In a more conventIOnal office settIng; and, V11) Vax System Operators, Control Console Operators and Front Office staff have never receIved eIther a umform or a umform allowance under the proVIsIOns of the partIes' collectIve agreements Ms Graham and Ms Caldarola both descnbed theIr responSIbIlItIes as Clerks In the ReCeIVIng Office As mentIOned above, Ms Graham has worked In thIS capaCIty sInce January 1988 Ms Caldarola has performed thIS work SInce July 2001 On the baSIS of theIr eVIdence I thInk that the core dutIes of Clerks workIng In the ReCeIVIng Office may be fairly summanzed as follows 1) they prepare the necessary paperwork for the loads of product comIng Into the warehouse and, ultImately post receIpts In respect of such product; 11) they receIve paperwork and seals off the contaIners from dnvers 111) they are responSIble to reconcIle the count of IncomIng product WIth the amount the LCBO IS supposed to receIve ThIS reconcIlIatIOn functIOn IS performed, In part, through use of the computer IV) If there IS a dIscrepancy In the count, In the form of a shortage of product, the Clerks may leave theIr office and walk up and down the docks In an effort to locate any mISSIng cases They may also search for broken product placed In bIns or on a pallet close to the ReCeIVIng Office The Clerks may use a scanner to aSSIst WIth the search, If one IS avaIlable In the area. Ms Graham testIfied that she only comes Into dIrect contact WIth cases or bottles of product, when she IS lookIng for breakage She estImated that she mIght engage In movIng a case approxImately tWIce a month. She added that she would only actually touch broken product In those Instances In whIch she moved a case as part of her search Ms Caldarola testIfied that she would first attempt to get a Foreman/woman or Breakage Checker to look for mISSIng product. She advIsed that If neIther were avaIlable, then she would herself ImtIate the search. Ms Caldarola stated that such a search could be done "as Infrequently as once a week, or could be on a dally baSIS" She IndIcated that any search engaged In would, generally take between one (1) and three (3) mInutes to complete Ms Caldarola further advIsed that, In thIS process, she mIght be reqUIred to move a case of product. On her account, thIS could occur between once a day and once a month. Both Ms Graham and Ms Caldarola 8 agreed that the pnmary responsIbIlIty for mOVIng cases and handlIng breakage rests wIth the Foreman/woman and the Breakage Checker Ms Caldarola demed, however that Clerks are not supposed to leave theIr office to check for product. She commented as follows on thIS pOInt "My boss has never stopped me once He wants the Job done efficIently" v) they sIgn out dnvers and engage In the filIng of paperwork. With respect to the latter task, Ms Graham advIsed that she boxes files for storage about once every two (2) months She places the boxes on a skId near the Breakage Storage area. Ms Graham noted that she may later search out these files In storage, If InformatIOn contaIned thereIn IS needed. She descnbed thIS as a monthly rather than a dally functIOn, and VI) the Clerks In the ReCeIVIng Office go to the DIspatch Office once or tWIce each day They do so to pIck up and drop off paperwork, such as dock sheets and bIlls of ladIng, and to relIeve Clerks workIng In the latter office for lunches and breaks and at the end of the day Ms Caldarola advIsed that she also works In the ShIppIng Office from tIme to tIme Ms Caldarola, In cross-eXamInatIOn, agreed that Clerks do not work In or unload contaIners, do not operate eqUIpment such as forklIft trucks, and do not spend all of theIr ShIft workIng on the warehouse floor She further agreed that Warehouse Workers have more exposure to broken glass It appears from the eVIdence that Ms Graham and Ms Caldarola spend the bulk of theIr day workIng In the ReCeIVIng Office Ms Graham stated that a maJonty of her tIme IS spent there More speCIfically she advIsed that on "a regular day" she IS In her office for between mnety percent (90%) and mnety-five percent (95%) of the tIme Ms Graham IndIcated that on "non-regular days" whIch could occur once or tWIce each week, she spends approxImately seventy percent (70%) of her ShIft In the ReCeIVIng Office I formed the ImpreSSIOn from her testImony that on "non-regular days" more of her tIme IS spent workIng In the DIspatch Office In thIS regard, It was suggested by counsel for the Employer that, apart from tIme spent In the DIspatch Office, Ms Graham worked In the ReCeIVIng Office for between mnety percent (90%) and mnety-five percent (95%) of her day I note that Ms Graham agreed WIth counsel's suggestIOn. Ms Caldarola's eVIdence was of SImIlar effect. She testIfied that a large maJ onty of 9 her tIme IS spent In the ReCeIVIng Office When asked whether thIS equated wIth mnety-five percent (95%) of her tIme, Ms Caldarola answered, "fair to accurate, yes" As mentIOned, Ms DaVIS worked In the warehouse as a Pallet Control Clerk between 1997 and 2005 Her office was pOSItIOned Just to the south of the ReCeIVIng Office On the baSIS of the eVIdence I thInk that the J ob she performed as Pallet Control Clerk In thIS penod may be summanzed as follows 1) Ms DaVIS' pnmary responSIbIlIty was to track pallets ThIS reqUIred her to handle and process up to five hundred (500) pallet bIlls of ladIng each day ThIS functIOn Involved a large amount of data entry On Ms DaVIS' account, more than half of her dally tIme was spent on data entry 11) Ms DaVIS had to collect the bIlls of ladIng from a desk at the end of the conveyors To get to that locatIOn, It was necessary for her to leave her office It was the thrust ofMs DaVIS' eVIdence that she dId "rounds" In the warehouse to get the documents and to talk to IndIVIduals for the purpose of obtaInIng related InfOrmatIOn or resolVIng any dIscrepancIes, and 111) Ms DaVIS advIsed that bIlls of ladIng and assocIated paperwork were stored In cardboard cases on racks In the Non-Conveyable Area or In the High Bay If there was no room avaIlable In the former locatIOn. From tIme to tIme she was reqUIred to go to the storage area In order to retneve and reVIew documents The cases were there stored on three (3) levels Ms DaVIS first had to locate the actual case reqUIred. She then had to secure the aSSIstance of a forklIft truck operator to lower the skId on whIch the case was stored The tIme spent on thIS retneval functIOn depended, In large measure, on how long It took to find the case Ms DaVIS asserted that It could take up to one and a- half (1 IIz) hours to locate the needed matenal In eXamInatIOn In-chIef, Ms DaVIS testIfied that she mIght have retneved files from storage about tWIce per week. In cross-eXamInatIOn, she stated that she engaged In thIS task "maybe about once per week" She added that the frequency of performIng the task could Increase at certaIn tImes of the year such as year end. Ms DaVIS IndIcated that she mIght 11ft a case of bIlls or documents dunng the retneval process In her words, the cases can be "qUIte heavy" Ms DaVIS further advIsed that she also stored matenal on a skId Just outSIde of her office and that she penodIcally searched there for reqUIred paperwork. Dunng the course of cross-eXamInatIOn, Ms DaVIS agreed that the "vast maJ onty" of her tIme was spent In her office She was not prepared, however to accept the suggestIOn of counsel for the Employer that such tIme approxImated mnety-five percent (95%) of the day Ms DaVIS 10 further agreed wIth the folloWIng (i) she dId not 11ft two thousand (2,000) cases of product per day (iI) she had no reason to enter the contaIners (in) she dId not operate a forklIft truck; and (iv) there IS, generally a sIgmficant dIfference between the Job of a Pallet Control Clerk and a Warehouse Worker Ms Graham, Ms Caldarola and Ms DaVIS all asserted that they were entItled to a umform and that they should have receIved the umform allowance after the change to the collectIve agreement In 2000 ThIS claim was premIsed on the nature of theIr dutIes and on the condItIOns eXIstIng both In theIr offices and out on the warehouse floor TheIr eVIdence on thIS aspect of the case may be summanzed as follows 1) Ms Graham, Ms Caldarola and Ms DaVIS all advIsed that the paperwork receIved from hIghway dnvers and other warehouse employees can be wet or dIrty A vanety of reasons were offered to explaIn thIS pOSSIbIlIty IncludIng, Inclement weather outsIde of the warehouse contact wIth spIlled lIquor grease or blood, and the large number of persons who handle the documentatIOn as part of the overall process wIthIn the warehouse n) Ms Graham and Ms Caldarola expressed a sImIlar complaInt wIth respect to the seals whIch they receIve from dnvers These seals, whIch are made of steel or hard plastIC are removed from the extenor of a contaIner once the load arrIves at the warehouse The seal, whIch IS Intended to show that the load IS Intact on arrIval, IS kept In the ReCeIVIng Office untIl the load IS fully reconcIled agaInst the correspondIng bIll ofladIng. At that Juncture the seal IS dIscarded Into a box on the floor pendIng ItS ultImate dIsposal I was told that the seals, when first brought to the ReCeIVIng Office, may be dIrty muddy greasy OIly rusty or wet. Ms Graham advIsed that she handles between forty (40) and fifty (50) of these seals each day 111) Ms Graham, Ms Caldarola and Ms DaVIS each testIfied that they come Into contact wIth wet cases and broken glass when performIng theIr dutIes In the case of the former two (2) employees such contact occurs when they are lookIng for mISSIng or broken product. In the case ofMs DavIs, thIS exposure occurred when she retneved stored matenal from the racks and from the skId close to her office IV) Ms Caldarola testIfied that she accesses files In the ReCeIVIng Office on a dally basIs It was her eVIdence that the filIng cabInets are not cleaned and that there IS a collectIOn of dust, partIculate, bugs and paper clIps at the bottom of the drawers and that the files, themselves, are dusty Ms Caldarola also advIsed that she stores dally paperwork In a box on the floor of the office She observed that It too IS "full of dust" and that It leaves a mark on both her desk 11 and her clothes when she places It on her desk to access the contents Ms DavIs, In a sImIlar veIn, testIfied that the cases she retneved from storage were often covered by black soot and dust and that her clothes could get dIrty as a result of contact WIth same v) Ms Caldarola and Ms Graham both descnbed the ReCeIVIng Office as "filthy" Ms Caldarola testIfied that there IS debns, dust and partIculate on all surfaces She assumed that the partIculate matter results from the IdlIng of dIesel trucks In the Concourse area of the warehouse She added that soot emanates from the vents and stIcks to the walls Ms Graham SImIlarly testIfied that black soot covers the walls, ceIlIng, desks, file cabInets and keyboards Ms Caldarola claimed that the offices she accesses have "a general air of neglect of not cleaned offices" VI) Ms Caldarola and Ms Graham testIfied that the sItuatIOn IS aggravated by the fact the ReCeIVIng Office and the DIspatch Office are hIgh traffic areas With respect to the former I was told that dnvers, shuntmen, foremen, dock receIvers and other warehouse personnel enter the ReCeIVIng Office to drop off paperwork or to use office eqUIpment, such as the photocopIer telephone or fax machIne Ms Caldarola stated that there IS a smell of dIesel fuel In the office and that certaIn of the IndIVIduals comIng Into the office leave grease and dIrt on everythIng they come In contact WIth. Ms Graham made a SImIlar observatIOn dunng the course of her testImony vu) Ms Caldarola, Ms Graham and Ms DaVIS all testIfied that the offices are not regularly cleaned and that when cleamng IS performed, It IS done In a cursory and superfiCIal way I was Informed that the offices are supposed to be cleaned every Sunday on the mIdmght shIft but that It IS not uncommon for two (2) to three (3) weeks to pass between cleamngs If the cleaner IS away on holIdays or unavaIlable due to Illness All of the Umon' s wItnesses suggested that the extent of the cleamng, when done, Involves Just the sweepIng of the floor and the emptYIng of the garbage They each advIsed that theIr desks are not WIped down. Ms Caldarola and Ms Graham stated that, as a consequence they are reqUIred to clean theIr own desks of dIrt and soot. Ms DaVIS observed that, In contrast, the Front Office IS cleaned on a regular baSIS V111) Ms Caldarola took a senes of photographs of the Central Supply Office, the ReCeIVIng Office, the DIspatch Office and adJacent areas She stated that she dId so out of a concern the Employer would have the offices cleaned Just pnor to the takIng of the VIew on September 16 2005 The photographs were filed as exhIbIts #18 to #39 I am generally satIsfied that the photographs depIct the condItIOn and state of the offices as they are on a day-to-day baSIS I accept Ms Caldarola's eVIdence that neIther she nor other employees dId anythIng to make the offices appear to be In a worse condItIOn. I SImIlarly accept Mr ArauJo's statement that he dId not Instruct the cleamng staff or anyone else to clean up the areas In questIOn Just pnor to the tour IX) the above-mentIOned photographs show the folloWIng condItIOns In the ReCeIVIng Office a dIrty floor papers scattered on the floor a water staIn on 12 the floor from a leak In the warehouse soot and dIrt on the ceIlIng tIles dust and partIculate on the filIng cabInets and the file folders contaIned thereIn, and dust and partIculate on boxes used to store paperwork. The photographs Illustrate the folloWIng condItIOns In the DIspatch Office dIrt embedded Into the floor walls and sIde of the desk; chIpped and cracked floor tIles, soot and dIrt on the ceIlIng tIles, the presence of a rodent trap the presence of dead bugs on the WIndow sIll and boxes on the floor Another photograph showed that the paInt on a raIlIng on steps leadIng from the DIspatch Office to the Concourse area IS chIpped and peelIng; x) Ms Caldarola testIfied about the routes she would take to get from the ReCeIVIng Office to the DIspatch Office and return. She advIsed that, If In a hurry she formerly took a ladder down to the ReCeIVIng Concourse and from there walked In front of the parked trucks to get to the DIspatch Office Ms Caldarola stated that she could get there wIthIn two (2) mInutes through use of thIS route It was her eVIdence that her Manager never told her not to take thIS route I was left wIth the ImpreSSIOn that she stopped utIlIzIng thIS route dunng the course of thIS proceedIng when she was told by another gnevor that management dId not want employees to travel between the offices In thIS fashIOn. Ms Caldarola acknowledged that the proper way to travel between the two (2) offices IS to follow the walkway marked on the warehouse floor ThIS was referred to In the eVIdence as "the yellow bnck road" Ms Caldarola noted that folloWIng thIS path takes approxImately four (4) mInutes each way Ms Caldarola expressed the folloWIng complaInts and/or concerns about USIng thIS longer route there IS OIl, SpIt, saw dust and lIquor spIlls on the pathway she has seen spIlls from the overhead conveyors behInd the MPLS area and near the Jackpot area, she has been dn pped on three (3) to four (4) tImes In the past year there are a lot of forklIft trucks mOVIng In and around the MPLS area, and there IS a lot of breakage stored on pallets along the route Ms DaVIS testIfied that she uses thIS same route to get from her office to the DIspatch and ShIppIng Offices Her complaInts and/or concerns Included the follOWIng the dnppIng of WIne and lIquor around the MPLS area, she passes by a lot of forklIft trucks and eqUIpment near the Battery Storage area, there are a lot of forklIft trucks operatIng near thIS same area, and there IS black soot on the walls and on eqUIpment along thIS route and XI) Ms Caldarola, Ms Graham and Ms DaVIS all testIfied that theIr dutIes and workIng condItIOns causes theIr clothes to become dIrty after a SIngle shIft. These gnevors advIsed that they wear clothIng such as Jeans, track pants, sweat ShIrtS and tee ShIrtS that are exclUSIvely used for work purposes and that they are not afraid of ruInIng. They further advIsed that, because of the extent of the dIrt, these clothes must be washed after havIng been worn Just once Ms Caldarola and Ms Graham stated that they wear dark clothes to hIde the dIrt. The former IndIcated that the dIrt leaves a dark nng around whIte socks by the end of the day 13 Ms Caldarola was a Warehouse Worker 3 for approxImately twelve (12) years before she became a Clerk In July 2001 It was her eVIdence that she wore a umform whIle a Warehouse Worker It was her further eVIdence that she wore the umform In the penod dunng whIch she filled In as a Clerk. It IS clear however that she neIther wore a umform, nor was she gIven a umform allowance, after she became a permanent Clerk. Dunng her eXamInatIOn In-chIef, Ms Caldarola was asked why she belIeved she IS entItled to a umform allowance In response, she referenced the lack of cleamng In the warehouse and the resultIng dIrty condItIOns From her perspectIve, a umform allowance would assIst In covenng the cost of the clothes she now purchases for work. I recorded her folloWIng comments on thIS aspect of the case "Techmcally I'm bUYIng my own umform nght now" and "I have a set of clothes I consIder work clothes, In essence my work umform" As mentIOned preVIOusly Ms Graham started workIng as a Clerk In the ReCeIVIng Office In January 1988 She testIfied that she was then asked If she wanted a umform. It was her recollectIOn that the questIOn was asked by Mr Bob Kyle, the ReCeIVIng Manager or by Mr BIll McDowell, the ASSIstant DIrector NeIther of these gentlemen are now employed by the LCBO Ms Graham stated that she dId not take a umform In 1988 as she dId not thInk she needed one It was her eVIdence that she changed her mInd after her first year of work In the ReCeIVIng Office When Ms Graham was asked why her OpInIOn changed, she replIed, "the dIrt you came home WIth every day" It IS apparent, however that Ms Graham never asked for a umform. She explaIned that there were two (2) reasons for thIS. FIrst, she had preVIOusly "turned down" the offer of a umform Second, the umform then avaIlable Included men's pants and, as a consequence she preferred to wear her own clothIng. Ms Graham advIsed that when she learned there was to be a umform allowance she felt she would be entItled to It as well gIven the fact she bought her own clothes for work. 14 As prevIOusly noted, Ms DaVIS worked In the warehouse as a Warehouse Worker between 1986 and 1992 She returned to the warehouse from the Front Office In 1997 From that pOInt forward untIl 2005 her dutIes as the Pallet Control Clerk were performed out of an office In the warehouse Ms DaVIS testIfied that she wore a umform dunng the penod of tIme she worked In the warehouse as a Warehouse Worker She recalled that the umform was green and that It had her name on It. Ms DavIs advIsed that she dId not wear a umform whIle statIOned In the Front Office between 1992 and 1995 It IS not entIrely clear from her eVIdence, however as to whether she wore a umform between 1995 and 1997 when she performed the Pallet Control ClerkJob out of the Front Office What IS matenal, for purposes of thIS case, IS that thIS gnevor asserted that a umform was "avaIlable" to her after she returned to the warehouse In 1997 and that she actually wore It when she performed the dutIes of the Pallet Control Clerk posItIOn. Ms DavIs claimed that no one ever told her not to wear the umform. Ms DaVIS further testIfied that she wore a umform from 1997 untIl they were no longer avaIlable to employees She was unable to recall when the latter occurred. She remembered that, at some pOInt, the colour of the umform changed from green to blue, but was unsure of exactly when the tranSItIOn occurred. It was the substance ofMs DaVIS' eVIdence that she was gIven a blue umform and that she subsequently turned It In when the Employer asked employees to return all of the umforms In cross-eXamInatIOn, Ms DaVIS advIsed that she could not recall havIng been asked to return her umform In 1998 because the Employer was changIng supplIers She repeated, however that she dId return her ImtIaI umform Ms DaVIS was also unable to recall beIng measured for a new umform In 1998 She IndIcated It was pOSSIble that she mIght then "have gone wIth" her old measurements When It was suggested to her by counsel for the Employer that no Clerk was measured for or receIved, a umform In 1998 Ms DavIs reIterated that she receIved a blue umform at the tIme the colour of the umform changed. She added that the blue 15 umform was the last one she had and that after It was handed In, no other employees, other than those In MaIntenance, wore a umform Ms DavIs could not recall when the blue umform was returned. It was the substance of her eVIdence that she had a umform for as long as the Warehouse Workers on the floor had them. In reply Ms DaVIS maIntaIned that she wore her blue umform once she returned to the warehouse In 1997 She subsequently repeated that she and other employees wore blue umforms In 1997 Ms DavIs also asserted that It was a blue umform that she, ultImately handed In for good. I note, at thIS Juncture, that Ms DaVIS was the only Clerk who claimed she was proVIded WIth, and wore a umform Counsel for the Employer referenced the wordIng of Gnevance #OLB 362/00 In hIS cross-eXamInatIOn of thIS gnevor More specIfically he observed that the settlement desIred thereIn was stated as follows "Umforms to be Issued to the gnevors as per collectIve agreement" Counsel suggested to Ms DaVIS that thIS wordIng was InCOnsIstent WIth her claim that she had a umform at all matenal tImes Ms DaVIS responded by notIng that the gnevance was filed on behalf of a group of Clerks some of whom, such as Ms Sharyn Hoy dId not have a umform Ms DaVIS was also asked about why a gnevance was filed In August, 2000 She responded that there had been "a vague rumour" that umforms were an Issue at negotIatIOns and that employees could lose them Ms DaVIS stated that the gnevance was filed as a result of thIS concern. She demed the further suggestIOn that the gnevance was submItted because she knew that an agreement had already been reached In negotIatIOns for a umform allowance whIch would be restncted to those employees preVIOusly elIgIble for a umform Ms DaVIS testIfied that she dId not know at the tIme that such an agreement had been reached and that she also as a consequence was unaware of the quantum of the allowance Mr ArauJo testIfied that no Clerk or Pallet Control Clerk has ever been Issued a umform at the Durham Warehouse He further maIntaIned that no employee In these pOSItIOns ever asked 16 for a umform pnor to the filIng of the Instant gnevance In thIS regard, Mr ArauJo made the folloWIng observatIOns (i) he dealt dIrectly wIth the Clerks and would have notIced If any of them wore a umform, (iI) If a Clerk had requested a umform, hIS subordInates would have brought the request forward for hIS approval and (ill) as the Manager of Order ProcessIng, he was dIrectly Involved In the InVOICIng process wIth respect to umforms and In authonzIng payment to the supplIers In hIS eVIdence, Mr ArauJo outlIned the hIStOry pertaInIng to the supply and provIsIOn of umforms at the Durham Warehouse He advIsed that between 1985 and 1998 umforms were supplIed by Workwear The LCBO supplIed thIS company wIth a lIst of employees to whom umforms were to be Issued, together wIth theIr ShIrt and pant SIze I was told that the pants and ShIrtS Issued by Workwear were green In colour and that the colour was not changed In the penod the umforms were provIded by thIS supplIer CIntas Umforms took over the supply ofumforms In the Fall of 1998 Dunng the transItIOn, employees were notIfied to return theIr Workwear umforms to the Employer for ultImate return to the latter supplIer Not all employees complIed wIth the request. As a consequence the LCBO was subsequently InvOIced for the mISSIng umforms I was told that the InVOICe was paid at a sIgmficant cost to the Employer At the tIme of the change In supplIers, CIntas representatIves attended at the Durham Warehouse to measure employees for umforms Mr ArauJo advIsed that he supplIed CIntas wIth a lIst of the employees to be measured. It was hIS eVIdence that there were no Clerks on the lIst of names A lIst of the employees who got new CIntas umforms In December 1998 was filed In support of thIS assertIOn (exhIbIt #41) The lIst confirms that no Clerk was Issued a umform at that tIme Rather umforms were then Issued to Warehouse Workers 3's and 4's, Foremen/women and MaIntenance personnel Mr ArauJo testIfied that he was "one hundred percent sure" that Clerks were not provIded WIth CIntas umforms, as he was the person who 17 venfied the names of employees who would get umforms and It was he who authonzed the payment for same on the basIs of InVOICeS receIved from the supplIer A typIcal InVOICe was filed In thIS proceedIng as exhIbIt #42 The document lIsts the name of every employee who receIved a CIntas umform Mr ArauJo stated that these umforms, compnsed of ShIrtS and pants, were blue In colour Mr ArauJo noted that Ms DavIs' name dId not appear on eIther exhIbIt #41 or exhIbIt #42 He added that she was not on the lIst of employees to be measured for a CIntas umform It was the substance of hIS eVIdence that Ms DaVIS never receIved such a umform. Mr ArauJo further testIfied that he never saw her wear a umform as a Clerk. He readIly acknowledged, however that Ms DaVIS wore a umform when she worked as a Warehouse Worker Mr ArauJo also acknowledged that he dId not have wntten records, such as exhIbIts #41 and #42, WIth respect to the Workwear umforms He agreed, In cross-eXamInatIOn, that he was relYIng on hIS memory for the practIce pre-1998 Mr ArauJo nevertheless, reIterated that no Clerk or Pallet Control Clerk was ever Issued a umform from the opemng of the Durham Warehouse In 1985 onwards The practIce of provIdIng umforms was dIscontInued In the Fall of 2000 WIth respect to all warehouse employees, except MaIntenance staff At that Juncture, umforms were replaced by a umform allowance as agreed to In the negotIatIOns for the renewal collectIve agreement. Mr ArauJo advIsed that employees were then asked to return theIr umforms As was the case In 1998 not all employees complIed and the Employer was ultImately InVOIced for the cost of the mISSIng umforms Mr ArauJo testIfied about the vanous classIficatIOns of the employees workIng In the warehouse and the dutIes attached to same Much of thIS has been preVIOusly referenced, In a general sense, In the body of thIS award. I note that Mr ArauJo dId not agree that the gnevors' dutIes took them Into the warehouse on a frequent baSIS He descnbed theIr tIme out In the 18 warehouse as "mImmal" More specIfically thIS would capture Instances where they were lookIng for a Manager or a SupervIsor or were searchIng for paperwork stored outsIde of theIr office Mr ArauJo also claimed that he has never been dnpped on when walkIng In the MPLS area or elsewhere In the warehouse Lastly he stated that employees, such as the gnevors, are permItted to clean theIr own work areas, as long as they secure authonzed cleamng products from MaIntenance ArtIcle 22 2 of the 1998 to 2000 collectIve agreement provIded that, "Employees In the LCBO warehouses wIll be Issued two (2) clean ShIrtS and two (2) clean pairs of trousers per week, the cost of whIch shall be the responsIbIlIty of the Employer" In opemng argument, It was asserted by the Umon that, pursuant to thIS language, all employees In the warehouse, IncludIng Clerks, were entItled to a umform and, therefore, to a umform allowance once the contractual proVISIOn was changed In the 2000 round of negotIatIOns Dunng the course of thIS proceedIng, however the partIes agreed that thIS InterpretatIOn was not Intended when artIcle 22 2 was first negotIated and Incorporated Into the collectIve agreement. As noted above paragraph #4 of the Agreed Statement Of Facts dated December 6 2005 reads as follows on thIS pOInt "At the bargaInIng table on or about March 7 2000 the PartIes' mutual understandIng was that the language set out In ArtIcle 22.2 of the collectIve agreement dId not mean that all employees In the LCBO warehouses were elIgIble for umforms, and that the proposed monetary umform allowance would be proVIded only to those warehouse employees who had prevIOusly been elIgIble for a umform " Counsel for both partIes observed that whIle artIcle 222 addressed the type ofumform to be proVIded, It was sIlent on the questIOn of whIch employees In the warehouse were actually entItled to the umform. They accordIngly agreed that thIS was an appropnate case to present extnnsIc eVIdence In aid of InterpretatIOn. As a consequence, a conSIderable amount of such eVIdence was presented WIth respect to the folloWIng (i) the past practIce pertaInIng to the 19 provIsIOn ofumforms (iI) the nature of the work performed by the gnevors, and (ill) the condItIOns eXIstmg m the workplace Much of the eVIdence has been reproduced above In closmg argument, counsel for the Employer referenced the followmg authontIes relatmg to the admIssIbIlIty and use of extnnsIC eVIdence Re Northern Electnc Co. Ltd. and Umted AutomobIle Workers, Local 1535 (1972) 1 L.AC (2d) 310 (Weathenll) Re Labatt's Ontano Brewenes Ltd. and Umted Brewery Workers, Local 304 (1973) 2 LAC (2d) 119 (ShIme) Re BendIx Home Systems Ltd. and Umted Brotherhood Of Carpenters And Jomers Of Amenca, Local 3054 (1975) 10 L.AC (2d) 39 (Brent) Regma v. Barber et al., Ex parte Warehousemen and Miscellaneous Dnvers' Umon Local 419, [1968] 2 O.R. 245 (Ont. C.A) Re Teamsters Umon and Motor Transport Industnal RelatIOns Bureau OfOntano (1969) 22 L.AC 57 (Weathenll) Re Motor Transport Industnal RelatIOns Bureau OfOntano and General Truck Dnvers' Umon, Local 938 (1973) 2 L.AC (2d) 206 (Brown) Re Noranda Metal Industnes Ltd., Fergus DIvISIOn and InternatIOnal Brotherhood Of Electncal Workers, Local 2345 et aI., [1983] 44 O.R. (2d) 529 (Ont. C.A) Re Secuntas (Canada) Ltd. and Umted Steelworkers Of Amenca (2003) 114 L.AC (4th) 259 (Brown) Re Commumty LIVmg OakvIlle and Ontano PublIc ServIce Employees Umon, Local 249 (1997) 61 L.AC (4th) 289 (Tims) Re Izaak Walton KIllam HosPItal and Nova ScotIa Government Employees Umon, Local 22A (1992) 29 L.AC (4th) 332 (ChnstIe) Re InternatIOnal AssocIatIOn Of MachmIsts, Local 1740 and John Bertram And Sons Co. Ltd. (1967) 18 L.AC 362 (Weller) Re Toronto Harbour CommIssIOners and CanadIan Umon Of PublIc Employees, Local 186 (1973) 3 L.AC (2d) 145 (Hanrahan) It IS unnecessary to address these authontIes dIrectly gIven the partIes' agreement that artIcle 222 of the 1998 to 2000 collectIve agreement was ambIguous and that extnnsIC eVIdence, as a consequence was properly admISSIble to resolve the dIspute Counsel for the Umon observed that artIcle 22.2 (b) of the 2000 to 2002 collectIve agreement employed the phrase "prevIOusly elIgIble for umforms" to capture or descnbe those 20 employees entItled to a umform allowance On her assessment of the eVIdence the gnevors satIsfied thIS contractual cntenon for entItlement. In thIS regard, counsel referenced Ms DaVIS' eVIdence that she wore a umform whIle a Pallet Control Clerk and Ms Graham's eVIdence that she was offered a umform when she started workIng as a Clerk In the ReCeIVIng Office I was asked to prefer Ms DavIs' eVIdence over that presented by Mr ArauJo From counsel's perspectIve, thIS gnevor's testImony was clear and consIstent and served to establIsh that she wore a green, and later a blue umform whIle workIng as a Pallet Control Clerk between 1997 and 2000 In contrast, she submItted that the LCBO's records were poor and InCOnclUSIve She also noted that Mr ArauJo was testIfYIng from memory wIth respect to the pre-1998 practIce In substance, It was the posItIOn of the Umon that the gnevors were elIgIble for umforms pnor to 2000 and, accordIngly were entItled to the umform allowance thereafter Counsel for the Employer relYIng on Mr ArauJo's eVIdence, argued It was "crystal clear" that no Clerk or Pallet Control Clerk ever receIved, or asked for a umform from the opemng of the Durham Warehouse In 1985 untIl the filIng of the gnevance In August, 2000 On hIS analysIs, Mr ArauJo was well posItIOned to know whether any Clerk, IncludIng Ms DavIs, was Issued, wore, or asked for a umform In the penod matenal to thIS case I was urged to conclude that Mr ArauJo's eVIdence together wIth the CIntas documentatIOn, provIded firm support for the Employer's posItIOn. Counsel suggested that the gnevors were motIvated to file the gnevance after learmng of the agreement to change to a umform allowance He descnbed theIr claim to the allowance as an attempted "cash grab" Counsel for the Employer submItted that Ms Graham's eVIdence surroundIng the offer of a umform In 1988 was both dated and vague He noted that her eVIdence was gIven some seventeen (17) years after the fact and that she was not even sure who made the offer Counsel stressed that neIther of the Managers named now work for the LCBO He added that It was also unclear as to the context In whIch the alleged offer was made Counsel suggested, by way of 21 example, that any offer made could have been gratUItous, In the sense It was not reqUIred under the collectIve agreement. AddItIOnally he suggested that Instead of beIng a firm offer It may have sImply been a statement that the Manager would InqUIre Into the "possIbIlIty" of gettIng a umform for Ms Graham In the cIrcumstances, counsel argued that thIS gnevor's eVIdence on the pOInt should be gIven no weIght. Counsel for the Employer submItted that Ms DavIs' eVIdence wIth respect to the weanng of a umform was vague, unrelIable and, In certaIn Instances, not credIble He advanced the folloWIng arguments, Inter alIa, on thIS aspect of the case I) the fact that Ms DaVIS may have kept her umform after mOVIng from a Warehouse Worker posItIOn to the Job of Pallet Control Clerk dId not mean she was entItled to a umform In the latter Job ll) the eVIdence of Ms DaVIS was "hazy" as to whether she was measured for a new umform In 1998 and as to the return of the former umform, 111) the eVIdence ofMs DavIs that she wore a blue umform from 1997 onwards should be vIewed skeptIcally as CIntas umforms were not Issued untIl 1998 and were not made avaIlable to any Clerk at that tIme From the Employer's perspectIve IfMs DavIS turned In a umform In 2000 It could not have been a blue CIntas umform gIven the clear eVIdence ofMr ArauJo as to whIch employee classIficatIOns receIved those umforms on the change In supplIers IV) If the decIsIOn not to Issue umforms to Clerks In 1998 was a change In practIce, It IS lIkely that employees would have gneved at that tIme On the Employer's account, what transpIred In 1998 sImply confirmed, and was consIstent WIth, the pre-exIstIng practIce VIS a VIS the Issuance ofumforms and v) the eVIdence ofMs DavIs as to why the gnevance was filed was not credible Counsel submItted It was more lIkely than not that Ms DaVIS was aware of developments at the bargaInIng table gIven the long penod of tIme between the agreement reached In March, 2000 to change to a umform allowance and the filIng of the gnevance In August, 2000 He further argued that thIS gnevor provIded no real explanatIOn as to why she would file a gnevance If, In fact, she already had, and was weanng, a umform Counsel for the Umon revIewed the dutIes performed by Warehouse Workers She concluded that thIS employee classIficatIOn IS elIgIble for a umform allowance because the performance of theIr core dutIes can cause theIr clothes to become staIned, dIrty and damaged. 22 Counsel contrasted thIS wIth the treatment of Vax System Operators and Control Console Operators On her analysIs, these classIficatIOns operate computer eqUIpment In a segregated room wIthIn the warehouse and only rarely leave that area for the warehouse floor She argued that these employees do not handle product, load or unload cases, or move or sort through files stored elsewhere In the warehouse In short, counsel argued that Vax System Operators and Control Console Operators, generally work In a clean envIronment and are therefore, less lIkely to have theIr clothes damaged or staIned or become dIrty Counsel suggested It IS for thIS reason that these classIficatIOns do not receIve a umform allowance UltImately I was asked to find that the dutIes and workIng condItIOns of the gnevors more closely resemble those of the Warehouse Workers In thIS regard, counsel for the Umon referenced the folloWIng aspects of the gnevors' Jobs (i) somewhat atYPIcally these Clerks do not work In a clean area and do not exclusIvely process paper (iI) theIr offices are In the body of the warehouse and the doors to the offices open out to the warehouse floor (ill) the ShIppIng Office and the DIspatch Office are located next to the docks where trucks park, Idle and emIt fumes (iv) the offices wIthIn whIch they work are dIrty wIth most surfaces covered by soot and partIculate (v) dnvers and other warehouse personnel, who access theIr offices throughout the day bnng In dIrty matter such as seals and paperwork, and track In dIrt from the warehouse floor (VI) the gnevors are reqUIred to search for mISSIng product and stored paperwork whIch bnngs them Into contact wIth breakage, dust and dIrt and lIquor spIlls and (Vll) the gnevors are reqUIred to move between offices wIthIn the warehouse on a regular basIs and are, consequently exposed to warehouse condItIOns Counsel acknowledged that Warehouse Workers handle more cases and boxes than do these gnevors and that they spend more tIme out on the warehouse floor She asserted, however that the Clerks and the Pallet Control Clerk are exposed to the same types of thIngs that cause Warehouse Workers' clothes to become damaged, dIrty or staIned. For thIS reason, It was submItted that thIS 23 group of gnevors were "prevIOusly elIgIble for umforms" and should have receIved the monetary umform allowance folloWIng the new collectIve agreement In 2000 Counsel for the Employer agreed that I could attempt to determIne the partIes' IntentIOn WIth respect to elIgIbIlIty for a umform through an assessment of the dutIes performed by the gnevors He suggested, though, that thIS exerCIse would be unnecessary If I found the Employer's past practIce eVIdence to be persuaSIve Counsel, nevertheless, observed that certaIn aspects of that eVIdence spoke to or clanfied, the true nature of the gnevors' work. More specIfically he noted that Mr ArauJo testIfied that no Clerk asked for or receIved, a umform between 1985 and 2000 It was hIS submIssIOn thIS record was consIstent WIth a belIef, on the part of the gnevors, that they dId not need or reqUIre a umform Counsel suggested that at least one (1) Clerk would have raised the Issue If theIr clothes were beIng damaged or staIned In thIS penod. He argued that the absence of any complaInt, across a substantIal number of years, should be treated as tantamount to an admIssIOn agaInst Interest or a pnor InCOnsIstent statement. SImply put, I was asked to find that the practIce pnor to 2000 served to rebut the gnevors' subsequent assertIOn that they needed a umform Counsel for the Employer referenced the eVIdence ofMs Caldarola, Ms Graham and Ms DaVIS at some length. He argued that an obJectIve test should be applIed to thIS eVIdence, namely was there an Inherent nsk of sIgmficant wear and tear and/or staIn damage to the gnevors' clothIng floWIng from the nature of theIr dutIes It was counsel's submIssIOn that thIS questIOn should be answered In the negatIve His reasons for urgIng thIS conclusIOn may be summanzed as follows I) the condItIOn of the floors, walls and ceIlIngs of the vanous offices referred to In the eVIdence and the presence of dust or soot thereIn, has no beanng on the need for a umform. Rather such need must be assessed on the basIs of the nature of the dutIes performed. Counsel suggested that, In any event, the offices In questIOn were "not all that dIrty" and that the gnevors were, In effect, exaggeratIng theIr claims of uncleanlIness In thIS regard, he observed that the walls were not "caked In black" and that any dIrt ground or embedded 24 Into the floor would not lIkely get onto theIr clothIng. Counsel also questIOned how the proxImIty of the DIspatch Office and the ShIppIng Office to the reCeIVIng docks could result In damage to or staInIng of, the gnevors' clothIng; ll) a umform consIstIng of pants and ShIrt would not prevent socks from gettIng staIned. SImIlarly It would not prevent the gnevors' hands from possIbly gettIng dIrty through the handlIng of paperwork or seals Counsel suggested that, on the eVIdence, If there was a need for anythIng It was for socks and gloves, not pants and ShIrt. He further claimed that the gnevors could lIkely handle any dIrty matenal or obJects In such a way as to aVOId any contact wIth theIr clothIng; 111) there was no solId eVIdence that the gnevors' clothIng was actually staIned by beer WIne or battery aCId or that theIr clothes were npped, damaged or subJected to exceSSIve wear and tear Counsel observed that dust on boxes or files In the offices, or out In the warehouse would not lIkely cause permanent staInIng or damage as, In hIS words, "dust washes off' It was the thrust of hIS submIssIOn that a umform allowance IS not Intended to Indemmfy employees agaInst the cost ofweanng theIr clothes to work; IV) unlIke Warehouse Workers and Foremen/women, the gnevors do not unload contaIners, retneve cases from Jams on the conveyor or work around forklIft trucks so as to be exposed to battery aCId. Counsel further noted that the Clerks In the ReCeIVIng Office are not, stnctly speakIng, supposed to check for breakage That task belongs to other classIficatIOns Counsel asserted that to the extent these gnevors do come In contact wIth breakage, such contact IS not comparable to the exposure Warehouse Workers have to breakage In terms of both frequency and degree v) all of the Umon' s wItnesses testIfied that they spent a consIderable portIOn of each day In theIr office On counsel's readIng of the eVIdence, Ms Caldarola testIfied that she spent mnety-five percent (95%) of her tIme In the ReCeIVIng Office Ms Graham agreed that she spent between mnety percent (90%) and mnety-five percent (95%) of her tIme In that same office when not In the DIspatch Office and Ms DaVIS agreed that the vast maJonty of her tIme was spent In her office Counsel noted that Ms DaVIS now performs her dutIes out of the Front Office In a sImIlar veIn, he asserted that the gnevors spent "mImmal tIme out of theIr offices" He referenced Ms Caldarola's eVIdence that she would spend no more than five (5) mInutes out of the office lookIng for thIngs and Ms DaVIS' eVIdence that she mIght go out Into the warehouse once per week, for at most one and a-half (1I1z) hours, to look for stored matenal Counsel emphasIzed that the boxes were retneved for Ms DaVIS by forklIft truck operators, and VI) the gnevors are permItted to wear whatever clothes they lIke to work wIthIn reasonable lImIts 25 Lastly and In the alternatIve, counsel for the Employer relIed on, what he descnbed as, the "tIe goes to the runner defence" More partIcularly he argued that In the CIrcumstances of thIS case, the Umon had faIled to meet the onus of demonstratIng entItlement to a monetary benefit under the terms of the collectIve agreement. From hIS perspectIve It would be wrong to bestow a financIal benefit to these gnevors where the contractual language, as amplIfied by the extnnsIC eVIdence, does not compel that arbItral response Counsel referenced the folloWIng awards In support of thIS submIssIOn Re Peterborough UtIlItIes CommIssIOn and InternatIOnal Brotherhood Of Electncal Workers, Local 1964 (1973) 4 L AC (2d) 383 (Palmer) Re Wexford Inc. and CanadIan Umon Of PublIc Employees, Local 3791 (2001) 96 L.AC (4th) 153 (Albertyn) Re CardInal TransportatIOn B.C. Inc. and CanadIan Umon Of PublIc Employees, Local 561 (1997) 62 L.AC (4th) 230 (DevIne) Quaker Oats Co. of Canada and ServIce Employees Umon, Local 183 (RobIchaud Gnevance) (2000) 91 L.AC (4th) 1 (Emnch) At the tIme the Instant gnevance was filed, Ms Caldarola was workIng as a Warehouse Worker 3 She was, therefore then entItled to a umform ThIS explaIns why her name appears on exhIbIt #41 and exhIbIt #42, referenced above Ms Caldarola subsequently became a full- tIme Clerk as of July 2001 The fact that she wore a umform on the occaSIOns she filled-In as a Clerk between 1993 and 2001 IS Irrelevant to the resolutIOn of thIS dIspute It IS clear that the umform she may then have worn was provIded to her because she was a Warehouse Worker and not because she was performIng Clerk dutIes on a fill-In basIs Ms Graham never wore a umform from the tIme she started as a Clerk In January 1988 to the date of the gnevance I find her eVIdence as to the offer of a umform to be somewhat vague Ms Graham was unable to precIsely recall who actually made the offer alleged. AddItIOnally there was no clear eVIdence presented as to the context In whIch the offer was made In my Judgment, Ms Graham's eVIdence on thIS pOInt IS InSUfficIent to establIsh a past practIce of provIdIng umforms to Clerks Put another way It does not establIsh a belIef on the 26 part of the Employer that It was contractually bound to do so As an aSIde, I am InclIned to conclude that IfMs Graham actually felt she reqUIred a umform after her first year of work as a Clerk In the ReCeIVIng Office, then she, more lIkely than not, would have requested one I find her reasons for not makIng such request to be unpersuaSIve As IS readIly apparent, there IS a conflIct In the eVIdence ofMs DavIs and Mr ArauJo as to whether the former was Issued and wore a umform over the penod 1997 to 2000 whIle she performed the Job of Pallet Control Clerk out of an office In the warehouse In summary Ms DaVIS testIfied that she was Issued and wore a green, and then a blue, umform over thIS penod. In contrast, It was the thrust ofMr ArauJo's eVIdence that no Clerk was ever Issued, wore, or asked for a umform from the opemng of the Durham Warehouse In 1985 untIl the filIng of thIS gnevance In August, 2000 After reVIeWIng all of the eVIdence and argument, I have been persuaded to accept the Employer's verSIOn of the past practIce as It relates to Ms DaVIS I do so for the folloWIng reasons I) Mr ArauJo was the person who IdentIfied the employees who would be measured for and receIve a CIntas umform on the change of supplIers In late 1998 He firmly asserted that the Clerks and the Pallet Control Clerk were not on the approved lIst. His oral eVIdence, on thIS aspect of the case was corroborated by the documents filed as exhIbIt #41 and exhIbIt #42 Ms DavIs' name, and the names of the other Clerks, dId not appear on the lIst of employees who receIved umforms from CIntas In December 1998 nor dId they appear on the subsequent InVOICe provIded to the Employer ll) Mr ArauJo was unable to provIde sImIlar documentary eVIdence relatIng to the pre-1998 practIce He testIfied, however that the practIce of not provIdIng umforms to the Clerks and the Pallet Control Clerk was consIstent between 1985 and 2000 I have, ultImately been persuaded to accept Mr ArauJo's eVIdence on thIS Issue I thInk It more lIkely than not that a gnevance would have been filed If what occurred In 1998 wIth the CIntas umforms constItuted an abrupt change In practIce The lack of a gnevance, or Indeed any eVIdence of a complaInt, suggests to me that the pre-1998 and post-1998 practIce was consIstent, In the sense that Clerks dId not receIve a umform In eIther penod, 111) I accept that Ms DaVIS may have had a green Workwear umform pnor to 1998 I am satIsfied, however that she receIved same In the penod she was a 27 Warehouse Worker The fact that she may have chosen to contInue weanng It, after mOVIng to the warehouse as a Pallet Control Clerk In 1997 IS not dISposItIve For reasons set out above I conclude that Ms DaVIS dId not receIve a blue CIntas umform In 1998 as alleged. I note, In thIS regard, that Ms DaVIS testIfied she had a blue umform In 1997 It IS clear that CIntas umforms had not been Issued at that pOInt In tIme, as thIS company only became the supplIer In late 1998 In the cIrcumstances, I must find that Ms DavIs' recollectIOn on thIS Issue IS faulty IV) In contrast to Mr ArauJo's clear and consIstent eVIdence the eVIdence ofMs DavIs was, In many respects, vague uncertaIn and ImpreCIse By way of example, I note that thIS gnevor could not recall any of the folloWIng the CIrcumstances surroundIng the Employer askIng employees to return theIr Workwear umforms, when, In fact, she returned the Workwear umform, whether she was measured for a CIntas umform In 1998 exactly when the change to a blue umform occurred, and when the CIntas umforms were returned to the LCBO and, v) Ms DaVIS was the only gnevor from the group to testIfy that she actually wore a umform when workIng full-tIme In a clencal capacIty I thInk It more lIkely than not that other Clerks would have been able to confirm the practIce If such practIce was, In fact, In place In the final analysIs, I must conclude that the extnnsIC eVIdence presented IS SUpportIve of the Employer's posItIOn that Clerks and the Pallet Control Clerk were not Issued umforms In the penod pnor to the change to the umform allowance The partIes seemed to agree that there IS a contInuum of dutIes wIthIn the Durham Warehouse At one (1) extreme are the dutIes of the Vax System Operators and the Control Console Operators Employees In these classIficatIOns perform the bulk of theIr dutIes In respect of the computer system from the confines of the Control Room They rarely leave thIS office to go out to the warehouse floor Vax System Operators and Control Console Operators were never Issued a umform and have not receIved a umform allowance under the amended provISIOn. At the other extreme are the Warehouse Workers, and to a lesser extent the F oremen/W omen. The Warehouse Workers do physIcally demandIng work on the warehouse floor TheIr dutIes Include the unloadIng by hand oflarge contaIners, cleanng cases from Jammed conveyors, repackIng broken cases of product, and operatIng eqUIpment, such as forklIft trucks Warehouse Workers 28 were provIded wIth umforms pnor to the expIry of the 1998 to 2000 collectIve agreement. Thereafter they receIved the umform allowance The partIes dIffer as to where these gnevors should be posItIOned along the contInuum It was the Umon's posItIOn that the gnevors' Job dutIes are closer In nature to the dutIes of Warehouse Workers, In terms of the potentIal for theIr clothIng beIng exposed to dIrt, staIn and damage and that, as a consequence, they were sImIlarly entItled to a umform and are now entItled to the umform allowance In response, the Employer claimed that the dutIes of the Clerks and the Pallet Control Clerk more closely resemble the dutIes engaged In by the Vax System Operators and Control Console Operators In respect of the potentIal exposure of theIr clothIng to dIrt, staIn and damage From the perspectIve of the Employer thIS lower level of nsk does not support the provIsIOn of the current umform allowance to these gnevors After consIderable thought, I have been persuaded to accept the Employer's posItIOn for the folloWIng reasons I) Warehouse Workers perform theIr dutIes out In the warehouse These dutIes whIch occupy vIrtually all of theIr day are of the type that can naturally result In clothIng becomIng dIrty staIned or damaged. By way of example, Warehouse Workers may have to handle up to two thousand (2,000) cases a day when unloadIng contaIners of product and routInely have to handle broken product. In contrast, the Clerks and the Pallet Control Clerk spend the vast maJonty of theIr day In theIr offices performIng, what may be fairly described as, office and clencal functIOns Ms Caldarola agreed that approxImately mnety-five percent (95%) of her tIme was spent In the ReCeIVIng Office and that she only left the office a few tImes each day SImIlarly Ms Graham testIfied that on a regular day she too spent about mnety percent (90%) to mnety-five percent (95%) of her tIme In the ReCeIVIng Office She claimed that a lesser amount of tIme was spent thereIn on non- regular days It seems from her eVIdence that the dIfference between the two (2) types of days was tIme spent In the DIspatch Office and not tIme spent workIng out on the warehouse floor Ms DaVIS also agreed that the "vast maJonty" of her tIme was spent In her office I note her eVIdence that more than half of such tIme was devoted to data entry I conclude that the sIgmficant amount of tIme these gnevors spent In theIr offices mIlItates agaInst acceptance of the argument that they reqUIred a umform to perform theIr dutIes and that they are now entItled to payment of the umform allowance I have not been convInced that the handlIng of 29 paperwork and seals, whIch may on occaSIOn be dIrty or wet, supports the benefit sought. I also have not been satIsfied that thIS entItlement should flow from the fact the offices may be hIgh traffic areas UltImately I thInk there IS a matenal dIfference between the warehouse dutIes performed by Warehouse Workers out on the warehouse floor and the office and clencal dutIes performed by these gnevors In theIr offices In my Judgment, the former are sIgmficantly more exposed to the potentIal for theIr clothes to become dIrty staIned or damaged through contact wIth product, breakage, spIllage, eqUIpment or aCId and grease The contact the gnevors may have wIth these Items IS nowhere near as frequent or as Intense and ll) I accept from the eVIdence that Ms Caldarola, Ms Graham and Ms DaVIS may leave the confines of theIr office dunng the workday for reasons IncludIng the folloWIng to retneve bIlls of ladIng; to locate mISSIng cases or broken product; to retneve files from storage or to go to the DIspatch Office or ShIppIng Office to pIck up or drop off paperwork. I have not been satIsfied that the amount of tIme spent out of theIr offices on these tasks, whIch are ancIllary to the clencal functIOn, IS sIgmficant or that the nature of the tasks reqUIred the provIsIOn of a umform or a umform allowance I note, In thIS regard, that the pnmary responsIbIlIty to locate and handle breakage rests wIth the Breakage Checker and Foremen/women classIficatIOns and not wIth these gnevors AddItIOnally I thInk that the gnevors can readIly aVOId any hazards or unwanted contact wIth spIllage, dIrt or soot when travelIng between offices along "the yellow bnck road" I must conclude that the extnnsIC eVIdence related to the gnevors' dutIes does not compel the conclusIOn that they were formerly entItled to a umform under the 1998 to 2000 collectIve agreement and that, as a consequence, they are now entItled to a umform allowance under the successor agreements The gnevors' complaInts about the cleanlIness of theIr offices and adJacent areas have been fully set out earlIer In thIS award. As noted, I have also had the opportumty to put theIr eVIdence Into context and to assess theIr concerns through the takIng of a VIew on September 16 2005 The offices I Inspected on that day were generally not as clean as offices located In a more conventIOnal office settIng. Indeed, there was a dIfference In the level of cleanlIness between the DIspatch and ReCeIVIng Offices and the Front Office, wIth the latter office beIng cleaner ThIS dIstInctIOn IS not surpnSIng, however gIven that the former offices are located wIthIn the actual warehouse and are there to support the reCeIVIng and ShIppIng functIOns WhIle 30 I thInk that the Employer could do better In terms of maIntaInIng the cleanlIness of the offices matenal to thIS dIspute I have not been persuaded that they are sufficIently dIrty so as to reqUIre eIther the Issuance of a umform or the payment of a umform allowance I am also InclIned to accept the general thrust of the Employer's submIssIOn that entItlement to these benefits IS premIsed more on the nature of the dutIes performed than on the condItIOn of the workplace In any event, I have not been convInced by all of the eVIdence, IncludIng the takIng of the VIew that the gnevors' concerns as to cleanlIness are sufficIent to JustIfy an award of the remedy claimed In thIS proceedIng. For all of the above reasons, the questIOn submItted to me by the partIes IS answered In the negatIve The gnevance IS, accordIngly demed. Dated at Toronto Ontano thIS 8th day of March, 2006 - Vice-Chair 31 Exhibit 40 .-UrJ(M1iifhl B~=J !]~1r~"~-~ ~~~ - - - - ~ - I:'::~" ~'ii " ~ ~m~~1iT. 'L ~ 11in] reu. , ~ ~ . .~ -f.1 '--"'"':',"~1~- _.. .. ~.:~.oo:"........ ....:~~ :r :-">-_ -~ ,. . .......~I . ~....:..,,~, . ~111:t1i,fi"2i.~~.~ ~~~~itjti '" -~- ~-~~ -~ -.. - .>.. , -- .~_. .. A_ ,.. - - .-- .." i/j =:.o~ - ill ~- ,~~!t d; ,~ ...