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Home My WebLink About1982-0572.Fox.83-10-19 DecisionClUEVAIICE 1,7!1.1715L12N1 .coARD -=,„ r 711 • I '4 4 V • I, d TO T.-1E PARTS (..41N01 •MAY APPE,f-,R !N COPY TO BE DISTI -40.i.JTL..0 LATER. RECETFR 572/82 " IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (T.A. Fox) Grievor and The Crown in Right of Ontario ((Liquor Control Board of Ontario)) Employer Before: P. Draper Vice Chairman J. Best Member D.B. Middleton Member For the Grievor: G. Beaulieu, Consultant For the Employer: C. Slater, Counsel Hicks Morley Hamilton Stewart bc Stone Hearing: May 17, 1983 DECISION The Grievor, Thomas Fox, originally grieved that in a competition conducted by the Employer in September and October, 1982, (Job Posting #1127) he was wrongfully denied promotion to Liquor Store Clerk Grade 4 (Clerk 4) at Store #97 in Napanee, and requested that he be awarded that promotion together with compensation for loss of pay from the date of appointment of the successful applicant. At the hearing the Board was informed that in a later competition the Grievor had been promoted to a Clerk 4 position at Store #40 in Kingston. The remedy he now seeks is a declaration that Article 16.5(a) of the collective agreement requires the Employer to specify (i.e. to name or identify) a geographic area for the purpose of determining the eligibility of employees to apply for a new job or a vacancy and within which notice of the job opening will be posted. The Grievor also requests compensation for loss of pay in the interval between the appointment made under Job Posting #1127 and his own appointment to Clerk 4. Article 16.5(a) reads: (a) If a new job classification within the bargaining unit is created or a permanent vacancy occurs in an existing job classification before inviting applications from persons not employed by the Boards, the Boards will post within the geographic area as specified, notice of such new job or vacancy for a period of ten (10) working days during which employees within such area who have completed their probationary period may apply. The notice shall stipulate qualifications, classification, salary range, department and location concerned. 3 The Employer's practice is to direct job postings to employees working at stores identified by numbers. Copies of job postings are sent to the Union., Job Posting #1127 listed stores #84 (Picton), #96 (Desoronto), #97 (Napanee), #105 (Tamworth), and #517 (Amherstview). The successful applicant was a less senior employee than the Grievor who worked at the Amherstview store. At the time of the competition the Grievor was working at Store #167 in Kingston, which was not listed. However, having heard of the competition "by word of mouth," he applied. His application was acknowledged. About the time the name of the successful applicant was announced (the Grievor is not certain of the date) he inquired as to the disposition of his application and was told that because he was not working at a store within the geographic area of the Napanee store he was not eligible to apply and that his name had been "red lined", that is, removed from the bid list. When he pursued the matter with Peter Willcock, the Employer's Recruitment Supervisor, who administers the job posting procedure and determines geographic areas, he was again told that he was not eligible because the store where he worked was outside the applicable geographic area. The Employer has never put on record any "geographic area as specified" or (except in metropolitan areas) any listing of stores falling within a particular geographic area. The Union's understanding has been that a geographic area is a 25 mile radius from the store where the new job or vacancy occurs but it does not, in practice, monitor job postings so 4 as to verify the area covered or the accuracy of the list of stores. Willcock testified that the use of geographic areas started in 1974 as a result of negotiations between the parties which led to the present Article 16.5(a). In 1975 20 road miles was established as the limit of such areas. He concedes that there have been exceptions to the application of the 20 mile standard as, for example, where a store is more than 20 miles from any other store and so would otherwise never appear in a job posting. He also acknowledges that a 1976 job posting for a vacancy at the Napanee store listed stores in Belleville and Kingston, both being beyond the 20 mile limit, but states that it was decided afterwards that that had been a mistake and would not be repeated. Willcock also states that the Napanee store has not been listed in job postings for vacancies at Kingston stores and that the stores in the geographic area in such cases are the three Kingston stores, the store in Amherstview and the store in Sydenham. However, he admits that the latter store was omitted from a November, 1982, job posting for a Kingston store vacancy. He would tell any union official who asked, what the geographic area is. The twofold submission is made by counsel to the Employer that the matter is beyond the jurisdiction of the Board because, first, the specifying of a geographic area (or of geographic areas) is an exclusive management function and, second, the grievance before the Board is an individual grievance that is being presented as a policy grievance. As to the first submission, the issue is not the right of the Employer to establish a geographic area for the purposes of Article 16.5(a) using whatever criteria it may choose (which is not in dispute) but whether, having done so (which it has), it is required by the article to do anything more. We are of the opinion that in Article 16.5(a) the Employer has accepted an obligation relating to the administration of the article and in so doing has qualified what would otherwise be an exclusive management function. For the reasons which follow immediately, we consider that we cannot adjudicate the issue of that obligation. As to covnsel's second submission, we agree that an individual grievance cannot be converted into a policy grievance where, as here, under the collective agreement (see particularly Article 21.6) individual grievances and policy (or union) grievances are mutually exclusive. See Brown and Beatty, Canadian Labour Arbitration at pp. 75-77. It is therefore not open to us to make a declaration of general application regarding the Employer's obligation under Article 16.5(a). There is arbitral jurisprudence to support the proposition that an arbitrator may grant an individual claim for a declaration of a right or entitlement under a collective agreement where the grievor has an interest to be protected that relates to the subject matter of the grievance (Re Inco (1972) 24 L.A.C. 51 (Weiler); Re Union Gas (1973) 4 L.A.C. (2d) 132 (Rayner); Re Inc° (1975) 9 L.A.C. (2d) S3 (Simmons). As the concept was applied in .the latter case, any declaration that might be made in such 6 circumstances would not be of general application but would be restricted in its application to the particular grievor and the issues raised by the grievance. It is not argued for the Grievor that Job Posting #1127 should have specified the applicable geographic area and no objection is made to the fact that it merely lists by number the stores to which it is addressed. Rather, it is argued that a separate, general obligation rests upon the Employer to specify geographic areas to be used in job postings and that the Board should so declare. We come back to the point that what is before us is an individual grievance. It seems to us that to make the declaration requested would be to permit the Grievor to achieve indirectly what we have already decided he cannot achieve directly and would therefore clearly not be appropriate. The issue raised by the grievance is whether or not the Grievor was eligible to apply for the Napanee vacancy. Eligibility is determined by reference to the applicable geographic area. The Employer is on record in this proceeding as stating that at the material time the applicable geographic area was an area with a limit of 20 road miles from the Napanee store. The direct conflict of evidence that exists in that regard cannot reasonably be resolved in favour of the Griever. Our conclusion must be that, on a balance of probabilities, the Grievor has failed to prove 7 his eligibility. It follows that there can be no award of compensation based on an improperly withheld promotion. The grievance is dismissed. Unhappily for the relationship of the parties, the disposition which we have felt bound to make of the case leaves unresolved the real issue that separates them - the nature of the Employer's obligation under Article 16.5(a) by reason of the reference to 'the geographic area as specified". Immediately prior to the hearing the parties attempted to reach a settlement of the issue but without success. It is to be hoped that the airing of the problem during the course of this proceeding will assist towards its final resolution. DATED at Toronto, Ontario this 19th day of October, 1983. ?°1)t-42.1 441,— P. Draper Vice Chairman "I dissent" (Ilissent to follow) J. Best Member D.B. Middleton Member /lb 2:1200 2:3120 5:2520 2:1300 2:3122 6:2310 2:1450 2:3124