HomeMy WebLinkAbout2003-1610.Smyth et al.06-08-04 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2003-1610, 2003-2460, 2003-2461, 2003-2462, 2003-2463
UNION# OLB339/03, OLB480/03, OLB481/03, OLB482/03, OLB483/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Smyth et al.)
Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Vice-Chair
Nimal V. Dissanayake
FOR THE UNION
Larry Steinberg
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING March 29, 2006
SUBMISSIONS July 13, 2006.
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Decision
The instant grievances in essence allege that the employer has adversely affected the
right of casual employees to be converted to se asonal status by an unreasonable exercise of its
management right to schedule and assign work. The union claims that the collective agreement
gives rise to an implied requirement that the em ployer exercise its manage ment right to schedule
and assign work reasonably, either through specif ic provisions of the collective agreement or
from a reading of the collective agreement as a whole in a labour relations context. Counsel
submitted that in the circumstances of this case, the employer?s exercise of that right was
unreasonable. The union sought an order that the grievors? entitlement to seasonal status be
recalculated and that they be compensated for their losses.
At the hearing on March 29, 2006, the partie s filed documentary evidence on consent,
and also filed an agreed statement of fact. Subsequently, submissions were made by way of
written briefs in accordance with an agreed upon timetable.
The agreed statement of facts, (with the appendices omitted) is as follows:
AGREED STATEMENT OF FACTS
The Employer and the Union (hereinafter ?the Parties?) agree to the following facts for the
purposes of the hearing and without prejudice or precedent to positions taken or arguments made
in other grievances and/or hearings. The Pa rties agree that additi onal information may be
presented at the hearing by viva voce evidence.
1. The Grievor Dan Smyth filed a group grie vance at Stage 2 dated June 10, 2003 (OLB
339/03) which is the subject matter of GSB # 1610/03. The grievance alleges, ?Fixed
term employees being used before cas uals have a full work week (37 ½ hours)
scheduled; casuals being scheduled ½ days for stock taking once per month. Letter of
Agmt [sic] p. 189 of C.A. This prevents an y more casuals attaining seasonal status.
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Schedule casuals full work week before any fix ed terms are used. To be made whole
in all respects?. A copy of grievance is appended hereto as Appendix ?__1__?.
2. The Grievor Patrick Gagnon filed an indivi dual grievance at Stage 2 dated August 13,
2003 (OLB # 480/03) which is the subject matter of GSB # 2460/03. The grievance
alleges, ?Letter of agrmt. On page 188 of CA; casuals only scheduled 35 hrs for week
of Aug. 11/03; fixed terms scheduled 30 hrs; ?stock taking? says mgr; this affects
seasonal attainment. To be made whole again in all respects; top up all part weeks to
whole weeks for seasonal attainment where fixed terms were utilized?. A copy of the
grievance is appended he reto as Appendix ?_2_?.
3. The Grievor Sebastien Lanthier filed an individual grievance at Stage 2 which is date
stamped as received September 30/03 (OLB #481/03) which is the subject matter of
GSB #2461/03. The grievance alleges, ?Letter of agreement on page 188 of CA;
casuals only scheduled 24 hrs. for week of Aug. 11/03; fixed terms scheduled 30 hrs.;
?stock taking? says manager; this affects/re tards seasonal attainment. To be made
whole again in all respects + top up all part weeks to whole weeks for seasonal
attainment where fixed terms were utilized?. A copy of the grievance is appended
hereto as Appendix ?_3__?.
4. The Grievor James Agmaliw filed an indi vidual grievance at Stage 2 on August 21,
2003 (OLB #482/03) which is the subject matter of GSB #2462/03. The grievance
alleges, ?Page 188 of CA ? letter of agreement; casuals only scheduled 34 hrs. week
of Aug. 11/03; fixed terms scheduled 30 h rs.; ?stock taking? sa ys manager; this
affects/retards seasonal attainment. To be made whole again in all respects; top up
all part weeks to whole weeks for seasonal attainment where fixed terms were
utilized?. A copy of the grievance is appended hereto as Appendix ?_4_?.
5. The Grievor Oliver Tibbles filed an indi vidual grievance at Stage 2 which is date
stamped as received September 30, 2002 (O LB #483/03) which is the subject matter
of GSB #2463/03. The grievance alleges ?Letter of Agreement on page 188 of C.A.;
casuals only scheduled 34 hrs. for week of Aug. 11/03; fixed terms scheduled 30 hrs.;
?stock taking? says manager; this affects/re gards seasonal attainment. To be made
whole again in all respects + top up all part weeks to whole weeks for seasonal
attainment where fixed terms were utilized?. A copy of the grievance is appended
hereto as Appendix ?_5_?.
6. At the time of filing the gr ievances, the Grievors were employed as casual employees
at the Ottawa Retail Service Centre (?th e Ottawa warehouse?) which is one of five
warehouses within the Logistics Division of the Employer. The other warehouses
are: Durham (located in Whitby), L ondon, Thunder Bay and Toronto (collectively
?the warehouses?).
7. There are different classifi cations of employees within the warehouses. For those
employees who work on the operations side of the warehouses, and which are
relevant for the purposes of this hearing, those employees include (ranked from the
highest to the lowest classification): Warehouse Worker 4; Warehouse Worker 3;
Seasonal; and Casual. For the period from the first Monday in May until Labour
Day, the warehouses can also employ Fixe d Term employees (?Fixed Terms?) in
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accordance with the Letter of Agreement found at pages 188 ? 189 of the 2002 ?
2005 Collective Agreement (?Collective Agreement?).
8. Warehouse Workers 4?s and Warehouse Worker s 3?s (collectively ?the full timers?)
are guaranteed hours of work on a weekly basis. They are scheduled for 37.5 hours
per week.
9. Seasonals and Casuals are not guaranteed hours of work and therefore their weekly
hours of work can fluctuate. They are scheduled according to the operational
requirements of the warehouse and based upon their seniority. Seasonals are
scheduled after the full timers are schedul ed and before Casuals are scheduled.
Casuals are scheduled after Seasonals and, dur ing the period from the first Monday in
May until Labour Day, before Fixed Terms.
10. In or around May 2000, an interest arbitrat ion panel, chaired by Paula Knopf, issued
an interest arbitration award (?the Seasona l Award?) that introduced the category of
employees called Seasonals and defined thei r terms and conditions of employment.
Subsequent interest arbitr ation decisions, chaired by Pa ula Knopf, set out further
terms and conditions or addressed outsta nding issues pertaining to Seasonals
with the last decision dated May 21, 2004
(collectively ?the Seasonal Awards?) .
11. The terms and conditions for Seasonals, as set out in the Seasonal Awards, became
incorporated into the Collective Agreement as Appendix 4 ? Applicable to Seasonal
Employees (LCBO Logistics Facilities) found at pages 158 ? 177 of the Collective
Agreement (?Appendix 4?).
12. Appendix 4 sets out how Seasonals and Casual s are to be scheduled at sections 4-2.1
and 4-2.2 which state:
4-2.1 In Logistics facilities, hours of work will be assigned by Department in the
following order:
First to employees who have atta ined seasonal status commencing
with the seasonal employee with the earliest seasonal attainment
date, and then
To casual employees in order of seniority
Provided they are qualified to perf orm the work, and no overtime is
incurred.
4-2.2 It is understood that these availabl e hours of work are hours of work
required after hours of work for perm anent full-time employees have been
scheduled.
13. Appendix 4 sets out how a Casual can atta in seasonal status in sections 4-4.1 and 4-
4.2 which state:
4-4.1 Casual employees who are scheduled or work for more than fourteen (14)
consecutive weeks at thirty-five (35) hours or more per week shall
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thereafter be considered to be a ?seasonal employee?. It is understood
that the thirty-five (35) hours does not include overtime hours.
4-4.2 The following periods shall also be credited to an employee for the
purposes of determining whether th ey achieve status as a seasonal
employee:
Where a paid holiday occurs on a day that would otherwise have
been a regular working day for su ch casual employee, during one
of the above weeks, he/she shall be credited with seven and one
half (7-1/2) hours.
Where an absence resulting from a handicap as defined within the
Ontario Human Rights Code, or pregnancy leave occurs on a day
that would otherwise have been a regular working day for such
casual employee, during one of the above weeks, he/she shall be
credited for any hours they would have otherwise worked.
14. Appendix 4 also sets out how a Seasonal can lose Seasonal status and become a
Casual again. This is found at section 4 ? 5.1.
15. Further, Casuals are allocated work according to Article 31.7 which states:
Casual hours of work shall be allocated ac cording to the seniority of the casual
employees assigned to the applicable work unit or department.
16. The Letter of Agreement for Fixed Terms, found at pages 188 ? 189 (?the Letter of
Agreement?) of the Collective Agreement, states:
No fixed term employee shall be scheduled for work until all permanent full-time,
permanent part-time, seasonal and casual employees who are assigned to the work
site have been scheduled in accordance with the collective agreement, including
employees who may be eligible for work under Article 51 and the Memorandum of
Agreement ? Allocation of Additional Hours.
No fixed term employee sha ll be scheduled for work whic h has not been offered in
accordance with seniority to any perm anent full-time and/or permanent part-time
employee, or seasonal employee who is laid off and on a recall list in the geographic
posting area in which the need for fixed term help arises.
17. Copies of the schedules for Casuals for the period of April 7 to September 15, 2003
(?the Casual schedules?) are ap pended hereto as Appendix ?__6__?. The Casual
schedules list the Casuals in se niority order, with the most senior at the top and the
most junior at the bottom.
18. Copies of the Absence R ecords for the grievors for cal endar year 2003 are appended
hereto as Appendix ?__7__?.
19. Copies of the schedules for Fixed Terms for the period of May 12 to August 25, 2003
(?the Fixed Term schedules?) are appended hereto as Appendix ?_8__?. The Fixed
Term schedules list the Fixed Terms in senior ity order, with the most senior at the top
and the most junior at the bottom.
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20. Copies of the Absence Records for Fixe d Terms for calendar year 2003 are appended
hereto as Appendix ?__9__?.
21. The Grievors allege that each Casual should have been scheduled 37.5 hours per
week before any Fixed Terms were scheduled.
22. The Grievors allege that the Employer, by introducing dates upon which inventory
counts were done, prevented the Grievors from attaining Seasonal stat us at an earlier
point in time. In particular, the Grievors allege that the Employer improperly
scheduled and assigned only 4 hours of work for them on inventory days in order to
prevent them from attaining seasonal status.
23. Although the Employer has conducted inventor y counts over the years, in April 2002,
the Senior Vice-President of Logistics rece ived a memorandum from the Director of
General Audit pertaining to stock discrepa ncies at the warehouses, including Ottawa,
which was followed up by the President of the Employer. As a way of ensuring
compliance with these directives, and to ensu re more accurate inventories, the Ottawa
warehouse conducted more frequent inventory counts.
24. In 2002, inventory counts were conducted on January 5 and 24; February 2 and 9;
March 14; April 5, 22 and 29; May 10, 25 and 31; June 14; August 16; September 15;
October 4 and 28; and November 4 and 29.
25. In 2002, although casual employees were scheduled to work, some casuals were
scheduled for 4 hours. No grievance was filed by the Union or any of the casuals
about this.
26. In 2003, and up to September, inventory counts were conducted on January 3 and 13;
February 10; March 14; May 5; June 9; and August 11.
27. On dates on which the inventory counts took place and on which the Grievors were
scheduled 4 hours, the Grievors were not ge nerally scheduled to participate in the
actual inventory count. Inst ead, the Grievors would be scheduled either before the
inventory count took place in the afternoon, or after the inventory count took place in
the morning and they would conduct their nor mal duties such as picking orders and
de-stuffing containers.
28. Inventory counts that were conducted on the dates de scribed above, require an
employee or employees to physically count all the cases of product in an area in
which the inventory was to be counte d, and no new product would be received,
brought or removed into the area which was being counted. In other words, the area
was essentially ?quarantined?. All full timers on that shift would either participate in
the inventory count or be re-assigned.
29. It is the position of the Employer that it di d not require all casual s, or sometimes any
casuals, to participate in the inventory counts because, simply, not that many
employees were required and there was no other work to which they could be
assigned. The Parties request that the Grievance Settlement Board determine whether
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the Employer has improperly scheduled the Gr ievors and, if so, to order that their
entitlement to seasonal status be recalcula ted and they be compensated accordingly.
The Parties request that the Board remain seized.
Counsel for the union relied upon the follo wing passage from O.L.B.E.U. and LCBO
(Attendance Review Decision), 2001-0557 (Dissanayake) where, following a review of the case
law, at para. 18 the Board observed:
In light of the two Court of Appeal decisi ons, the most sensible approach, and the
one that I subscribe to, is that taken in Re Meadow Park Nursing Home (supra). The
state of the law following the Toronto Po lice Com?rs and Printing Industries court
decisions, as I read them, may be summari zed as follows: An arbitrator has no
jurisdiction to import into a collective ag reement a general duty on an employer to
exercise management rights reasonably. Howe ver, if on an application of the general
law of implied terms in contract, the impli cation arises from the collective agreement
itself that a particular management right mu st be exercised reasonably, the arbitrator
is bound to make that implication since it arises from the collective agreement
negotiated by the parties, from which the ar bitrator draws his or her jurisdiction.
Such an implied duty may arise from a speci fic provision of the collective agreement,
or from a reading of the agreement as a whole in a labour relations context.
The union submits that in this case a duty to act reasonably arises implicitly through two
specific provision in the collective agreement. Counsel points out that s. 4-4.1 of Appendix 4
provides that casual employees who are schedule d or work for more than 14 consecutive weeks
at 35 hours or more per week are to be considered to be ?Seasonal Employees?. In other words,
in order to be ?converted? to the higher rated ?seasonal? status, a casual employee must work 35
hours or more per week for more than 14 consecutive weeks.
The second provision relied upon by the union is a provision in the Letter of Agreement
re Fixed Term Help, which states:
No fixed term employee shall be scheduled for work until all permanent full-time,
permanent part-time, seasonal and casual employees who are assigned to the work
site have been scheduled in accordance with the collective agreement, including
employees who may be eligible for work under Article 51 and the Memorandum of
Agreement ? Allocation of Additional Hours.
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Counsel submits that the two foregoing provi sions clearly attract an implied duty on the
employer to reasonably exercise its ri ght to schedule and assign employees.
Alternatively, the union submits that a duty to act reasonably can also be implied from a
reading of the collective agreemen t as a whole in a labour relations context. Counsel relies on
the preamble to the collective agreement whic h provides that the general purpose of the
agreement is to establish and continue ?harmoni ous relations?, and ?to provide procedures for
the prompt and just disposition of differences a nd grievances?. Counsel submits that permitting
the employer to exercise its management right to schedule and assign work without subjecting it
to a duty to act reasonably, woul d not be conducive to harmonious relations betw een the parties
or the just disposition of differences or grievances. Counsel submits that permitting the
employer to unreasonably exercise its right to schedule and assign wo rk would seriously
undermine the core values and purposes of collec tive bargaining, one of which is the removal of
the possibility of capricious actions by either party.
Counsel submits that it was incumbent upon the employer to schedule the work and
employees in a manner that did not prejudice the right of the grievo rs to attain seasonal status.
Counsel points out that historically there had been no set rules as to the number of inventories to
be done, or as to the interval between inventories. Counsel subm its that the employer could have
scheduled the inventories in such a manner so as not to affect the casual employees? right to be
converted to seasonal status. For example, i nventories could have been scheduled every 15
weeks, so that casual employees would be able to work the required 14 consecutive weeks at
more than 35 hours. Counsel s uggested alternate ways the employer could have scheduled its
employees and assigned work, which would have allowed casual employees to attains seasonal
status.
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Employer counsel points out that under the coll ective agreement, th e obligation on the
employer is to schedule employees in the follo wing order, Full-time employees first, then
seasonal employees, casual employees and finally fixed term employees. The full timers are
guaranteed 37.5 hours per week and are scheduled 7.5 hours per day Monday to Friday. The
full-timers have to be scheduled 37.5 hours per w eek before scheduling any seasonal, casual or
fixed term employees.
Counsel points out that in direct contrast, seasonals, casuals and fixed terms are not
guaranteed hours of work. They are scheduled according to the employer?s operational needs.
Counsel submits that the union?s position is to the effect that casuals should be scheduled a
minimum of 35 hours per week before the employer can schedule any fixed term employee. She
points out that the collective agreement imposes no such requirement. She submits that article
31.7 and the Letter of Agreement envisages clearly that casuals are to be scheduled where work
is available on a daily basis, before fixed terms are scheduled. She submits that this was
precisely what the employer did. In other words, the employer has scheduled casual employees
on a per shift basis before scheduling fixed terms.
Counsel referred to the following excer pt from the Attendanc e Review Grievance
decision (supra)
In the instant case, the union has not pointed to anything in the collective agreement
that could give rise to an implied term that management rights must be exercised
reasonably. Nor is there anythi ng in the collective agreement to justify an implied
term that the particular exercise of th e management right to create an attendance
review policy must be reasona ble. Therefore, the Board ha s no jurisdiction to review
the reasonableness, of the employer?s exer cise of management rights to create the
policy, or of the policy itself.
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Although union counsel asserted in his submi ssions that the employer?s exercise of its
management right to schedule and assign work was ?not in accordance with the provisions of the
collective agreement?, the union was not asse rting that the employe r had contravened any
particular provision of the collective agreement. If it was taking that position, the union could
have simply grieved that the employer violated certain specific provision/s of the agreement.
Rather, its allegation is about the unreasonableness of the manner in which the employer
exercised its management rights. In any event, the agreed upon facts do not substantiate a
violation of either provision of the collective agreement relied upon by the union. S. 4-4.1 of the
Appendix 4 provides that if a cert ain threshold is reached, (i.e. a casual employee works or is
scheduled to work, for fourteen consecutive week s at more than 35 hours per week), certain
consequences flow (i.e. such casual employee is c onsidered to be a seasonal employee). There is
no right per se to be converted to seasonal status. That status is granted only if the threshold is
met. There is no evidence that any casual empl oyee who met that threshold was denied seasonal
status. Nor has the employer contravened the Le tter of Agreement re Fixed Term Help. The
only way in which a violation may be found is if the provision is interpre ted to mean that the
employer is required to ensure that all casual employees are scheduled for at least 35 hours per
week before scheduling any fixed term employ ees. The Letter of Agreement does not impose
such an obligation. Such an assertion would also be contradictory to the agreed upon fact that
casual employees have no guaranteed hours. The ag reed facts establish th at the only category of
employees with guaranteed hours is the category of full-time employees. All others ? seasonals
casuals and fixed terms ? have no guaranteed hours. Therefore their weekly hours will
necessarily fluctuate according to the employer?s operational needs.
Assuming, without finding, th at the employer was under an obligation to exercise its
management right to schedule and assign work in a reasonable manner, the Board cannot
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conclude that the employer acted unreasonably in this case. The evidence is that based on a
directive from the Director of General Audit, the employer determined that more frequent
inventories ought to be conducted to deal with concerns about stoc k discrepancies and to ensure
more accurate inventories. The frequency of such inventories and the interval between
inventories were determined based on those bus iness considerations. The union has not alleged
bad faith on the part of the employer in this regard.
At best, the union?s argument is to the effect that the employer may have been able to
schedule inventories in alternate ways which would have a llowed it to meet its legitimate
business goals, while still allowing casual employ ees to work the necessary hours per week to
attain seasonal status. The union suggested al ternate ways in which the employer could have
scheduled the inventories to produce that result. However, could it be said that the employer was
exercising its rights unreasonably, be cause it opted to follow a schedule which it considered to be
most efficient and responsive to its business goa ls, rather than opt for one that was most
beneficial to the employees? I do not think so. In the Board?s view, to hold that an employer?s
exercise of its management rights may be st uck down as unreasonable because it could have
acted differently in a manner that would have c onferred collective agreem ent rights or benefits
on employees, would render the management rights meaningless and unduly hinder the
employer?s ability to manage its operation. That would not be compatible with the
uncontradicted fact that under the collective agreement, scheduling of employees and assignment
of work are exclusive management functions.
In summary, the Board has not determined the issue of whether in this case a duty to act
reasonably arises impliedly. However, assuming that such a duty did apply, it has determined
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that the employer did not, in the particular ci rcumstances, exercise its management right
unreasonably.
Accordingly, all of the grieva nces herein are hereby dismissed.
th
Dated this 4 day of August, 2006 at Toronto, Ontario
Nimal Dissanayake
Vice-Chairperson