HomeMy WebLinkAbout2020-2404.Union.22-05-27 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2020-0968; 2020-1345; 2020-2404
UNION# 2020-0162-0011; 2020-0287-0009; 2020-0999-0025
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
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The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Adrienne Couto
Liquor Control Board of Ontario
Counsel
HEARING DATES March 24, July 27 and December 8, 2021
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Decision
[1] The Union grievance before me was filed on or about December 11, 2020.
Although there were Local Union grievances and almost 200 individual grievances that
raised the same issue, the parties agreed to focus first on the Union grievance. The
Union grievance claims that “the Employer has violated article 7.4 (a) (iii) by failing to
provide (17) Saturday’s off on a rotational basis during the contract year…” There is no
dispute that the Employer did not provide all permanent full-time (“PFT”) employees with
17 Saturday’s off on a rotational basis during the contract year that began on April 1,
2020, and ended on March 31, 2021. This was the inevitable result of the Employer’s
decision to close its retail stores on Mondays during the first year of the pandemic. The
central issue for determination is whether the Employer was required to provide PFT
employees with 17 Saturdays off given its decision to close retail stores on Mondays.
[2] In discussions on how the case should proceed, the parties agreed to
develop an agreed statement of facts. They also agreed that the Employer would call
one witness to explain its reasons for closing retail stores on Mondays. The Employer
provided a witness statement for Mr. R. Louli, (A) Senior Vice President and Vice
President Retail Operations. When the Employer was prepared to call Mr. Louli to
testify, Union counsel indicated that the Union had decided that it was unnecessary to
cross-examine Mr. Louli. Therefore, counsel made their submissions on the basis of
the facts in the agreed statement of facts (“the ASF”) and in Mr. Louli’s witness
statement.
[3] In addition to setting out certain facts, the last section of the ASF references
the issue to be determined by the Union grievance. The ASF, absent the attached
documents, provides as follows:
AGREED STATEMENT OF FACTS
The LCBO and the Union (hereinafter “the Parties”) agree to the following facts for the
purposes of the hearing of the above-noted matter and without prejudice or precedent to
other grievances and/or hearings.
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A. The Parties
1. The LCBO operates an alcoholic beverage warehousing, distribution and retail
operation in the Province of Ontario. The LCBO employs approximately 9973
employees (exclusive of fixed term employees) in respect of these operations.
2. OPSEU is the collective bargaining agent for LCBO bargaining unit employees. The
Collective Agreement between the LCBO and OPSEU effective April 1, 2017 to March
31, 2021 is attached at Tab 1 (the “Collective Agreement”).
The LCBO’s Retail Operations
3. As of January, 2020, the LCBO operated approximately 669 LCBO retail stores across
Ontario and employed approximately 2020 permanent full-time and 5852 casual retail
bargaining unit employees in such stores.
4. Of the afore-noted 669 retail stores, and prior to March, 2020, in the normal course:
a. Approximately 566 retail stores operated seven (7) days a week Monday to
Sunday; and,
b. Approximately 103 retail stores operated less than seven (7) days a week for all
or part of the year, depending on sales and/or whether the store is “seasonal” (for
example, stores whose sales fluctuate seasonally due to tourists, cottagers, etc.).
Hours of Work: Retail Employees
5. Casual retail employees (“Casual Employees”), are not guaranteed any particular
hours of work, but, rather, are scheduled by seniority and their approved availability to
meet the operational requirements of the store. In this regard, the LCBO requires that
Casual Employees meet “minimum availability” requirements of Friday evening,
Saturdays, Sundays, and long weekends, which is the LCBO’s peak selling period
during the week.
6. By contrast, permanent full-time retail employees (“PFT Employees”) are guaranteed
forty (40) hours of work per week, consisting of five (5) shifts of eight (8) hours each
(exclusive of meal and break periods).
7. While the regular work week for PFT employees is Monday to Sunday, Articles
7.4(a)(iii) to (v) of the Collective Agreement set out a number of restrictions with
respect to the scheduling of PFT employees on Saturdays and Sundays, as follows:
Article 7.4(a)(iii) Saturday: For Retail – Store and Depot and Retail
POS/Help Desk Employees Days off will be on a rotational basis unless
otherwise mutually agreed to in writing by the employee and his/her
supervisor. However, the Employer agrees to provide for employees who
work in stores other than those that observe a weekly closing day,
seventeen (17) Saturdays off on a rotational basis as part of their regular
days off each contract year. The provision whereby seventeen (17)
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Saturdays off on a rotational basis each contract year will be exclusive of
vacation periods, paid holidays and leaves-of-absence with pay as defined
in this Agreement.
(iv) Sunday: Retail – Store and Depot and Retail POS/Help Desk
employees Subject to what is set out in this Article, Sunday shall be
voluntary for Permanent Full-Time (PFT) employees. Management will
determine staffing requirements for each Sunday and a Sunday signup
sheet shall be posted four (4) weeks in advance for employees to
voluntarily sign-up for identified PFT shifts. Where there is a requirement
for Sunday PFT shifts to be scheduled, shifts will be assigned to the most
senior qualified employee(s) who sign up until the required number of
identified PFT shifts are filled for that particular Sunday. Failing sufficient
volunteers, Sunday shifts will be assigned to the least senior qualified PFT
employee, on a rotational basis. An employee can be scheduled to a
maximum of ten (10) Sundays in a contract year (inclusive of those that
the employee has volunteered for) unless the employee volunteers for
more than ten (10) Sundays. No employee will be scheduled to work a
Sunday directly following a Saturday that is his or her regularly scheduled
day off. Management will use its best efforts to ensure that Retail – Store
and Depot and Retail POS/Help Desk employees will have two (2)
consecutive scheduled days off in the week they work a Sunday.
(v) Weekends Off (Saturday and Sunday): The combination of paragraphs
(iii) and (iv) above will ensure that Retail – Store and Depot and Retail
POS/Help Desk employees will have a minimum of seventeen (17)
weekends off (Saturday and Sunday) per contract year excluding vacation
periods, paid holiday and leaves-of-absence with pay as defined in this
Agreement.
8. As a result of the above-noted provisions, for those PFT Employees who have been
continuously assigned to work in a store(s) that is (are) open seven (7) days a week
on a year-round basis, they are entitled to receive seventeen (17) Saturdays off on a
rotational basis per contract year (April 1 to March 31) in accordance with Article
7.4(a)(iii).
B. The Grievance
9. In response to the COVID-19 Pandemic, and for the reasons set out below, from
March 30, 2020 to March 1, 2021, the LCBO closed its stores on Mondays.
10. As a result of the Monday closures, PFT Employees were scheduled to work from
Tuesday to Sunday. In turn, a number of PFT Employees did not receive seventeen
(17) Saturdays off.
11. On or about December 11, 2020, the Union filed a policy grievance with respect to the
LCBO’s alleged failure to provide seventeen (17) Saturday’s off on a rotational basis
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during the contract year as set out in Article 7.4(a)(iii) (OPSEU No. 2020-0999-0025).
Specifically, the Grievance states as follows:
Statement of Grievance: The union grieves that the Employer has violated article
7.4(a)(iii) by failing to provide seventeen (17) Saturday’s off on a rotational basis
during the contract year and any other applicable article, legislation or laws that may
apply.
Settlement Desired: Full redress. Carryover the Saturdays for the next contract year.
Any other award an arbitrator deems appropriate.
A copy of the Grievance is attached at Tab 2 (the “Grievance”).
12. In addition to the above-noted policy grievance, approximately 192 individual
grievances, as well as local policy grievances, have been filed with respect to the
same subject matter.
C. Facts Giving Rise to Grievance
Beginning of Pandemic and Closure of Schools and Non-Essential Business
13. On or about January 30, 2020, the World Health Organization (“WHO”) declared the
novel coronavirus (COVID-19) “a public health emergency of international concern”1.
Subsequently, on or about March 11, 2020, WHO declared the COVID-19 outbreak a
global pandemic 2.
14. On or about March 12, 2020, the Ontario government announced that publicly funded
schools would be closed from March 14 to April 5, 2020, subject to review.3
15. On or about March 17, 2020, the Ontario government declared a state of emergency
in Ontario pursuant to section 7.0.1 of the Emergency Management and Civil
Protection Act (“the EMPCA”).4 The declaration was accompanied by, amongst other
things, an order made pursuant to section 7.0.2. of the EMPCA 5, requiring the closure
of certain non-essential businesses, including daycares, private schools, restaurants,
bars and theatres.6
16. On or about March 23, 2020, the Ontario government ordered the closure of further
non-essential business effective Tuesday, March 24, 2020 at 11:59 p.m. for 14 days.7
The following day, on or about March 24, 2020, a list of essential businesses was
published, which list included the LCBO.
1 IHR Emergency Committee on Novel Coronavirus (2019-nCoV) (who.int)
2 WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020
3 Statement from Premier Ford, Minister Elliott, and Minister Lecce on the 2019 Novel Coronavirus (COVID-19) |
Ontario Newsroom
4 O Reg 50/20.
5 O Reg 51/20; O Reg 52/20.
6 Ontario Enacts Declaration of Emergency to Protect the Public | Ontario Newsroom
7 Ontario Orders the Mandatory Closure of All Non-Essential Workplaces to Fight Spread of COVID-19 | Ontario
Newsroom
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17. Throughout the pandemic, the LCBO has been classified as an “essential business”
and has been permitted to remain open to the public, albeit with a number of
restrictions, which have changed from time to time and over the course of the
pandemic.
Impact of Pandemic on LCBO Retail Operations
18. Shortly after the start of the pandemic came a number of challenges for the LCBO’s
retail network, including the following:
a. Increased absenteeism amongst retail staff;
b. Changing consumer demand and buying patterns; and,
c. New health and safety requirements.
19. Each of the above-noted challenges is described in further detail below.
a. Increased Absenteeism
20. On or about March 19, 2020, the Ontario Government amended the Employment
Standards Act, 2000 (the “ESA”), to provide for declared emergency leave and
infectious disease emergency leave.8 Under the applicable provisions of the ESA,
employees who were unable to work due to specified pandemic related reasons, such
as due to a health condition, isolation, or caring for a child as a result of a school or
daycare closure, were entitled to take an indefinite job protected leave of absence.
21. Effective March 18, 2020, the LCBO also instituted a One Time Exception Leave of
four (4) days or thirty-two (32) hours for all retail employees, including casual and full-
time retail employees. The One Time Exception Leave could be used for any COVID
related absences, including, without limitation, absences due to childcare needs or
health related reasons. This leave is further described in the document attached at
Tab 3.
22. Initially, the One Time Exception Leave could be used from March 18, 2020 to April 5,
2020; however, the LCBO later extended the use of this leave to September 7, 2020
for bargaining unit employees.
23. Following the outset of the pandemic in March, 2020, a number of LCBO retail
employees availed themselves of the new ESA leaves and/or the LCBO’s One Time
Exception Leave or otherwise were absent from work or refused to work due to,
amongst other things:
• Childcare needs, as a result of the closure of daycares and schools;
• Health and safety concerns or fears regarding working with the public;
• Personal medical health conditions and/or health risks; and/or,
• Isolation, including after returning from out of country and/or being symptomatic.
8 Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 | Ontario Newsroom
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24. Indeed, from March, 2020 to March, 2021 approximately 1587 or 20% of retail
bargaining unit employees took a leave of absence of varying durations, although only
437 employees remained on a leave as of March 30, 2021. For clarity, the afore-
noted leaves do not include leaves that commenced prior to March, 2020 or periodic
absences (such as a sick day) and/or shift cancellations or informal arrangements
made at the store level.
25. With the number of employees absent from work, particularly at the outset of the
pandemic, staffing of LCBO stores was a significant issue and, indeed, many stores
were forced to close or operate on reduced hours or days due to a shortage of staff
and/or other COVID-19 related issues, as summarized in the chart below.
DATE
#
Stores
Closed
# Stores on
Reduced
Hours
# Stores on
Reduced Days
(other than
Mondays)
Total
Affected
Stores
March 25, 2020 20 15 42 77
March 26, 2020 19 12 38 69
March 27, 2020 20 16 51 87
March 28, 2020 22 17 52 91
March 29, 2020 22 17 54 93
March 30, 2020 24 18 55 97
March 31, 2020 21 20 58 99
April 1, 2020 24 24 64 112
April 2, 2020 26 22 65 113
April 3, 2020 26 22 65 113
April 4, 2020 26 25 66 117
April 5, 2020 28 25 67 120
April 6, 2020 29 25 67 121
April 7, 2020 19 26 67 112
April 8, 2020 18 29 67 114
April 9, 2020 17 30 69 116
April 10, 2020 17 30 71 118
April 11, 2020 17 30 71 118
April 12, 2020 17 30 71 118
April 13, 2020 19 30 71 120
April 14, 2020 20 31 75 126
April 15, 2020 22 32 78 132
April 16, 2020 20 32 79 131
April 17, 2020 22 31 81 134
April 18, 2020 20 31 79 130
April 19, 2020 20 32 82 134
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DATE
#
Stores
Closed
# Stores on
Reduced
Hours
# Stores on
Reduced Days
(other than
Mondays)
Total
Affected
Stores
April 20, 2020 20 32 82 134
April 21, 2020 20 30 83 133
April 22, 2020 20 30 83 133
April 23, 2020 21 30 83 134
April 24, 2020 20 32 85 137
April 25, 2020 20 32 86 138
April 26, 2020 20 32 86 138
April 27, 2020 20 32 86 138
April 28, 2020 20 32 86 138
April 29, 2020 19 31 85 135
April 30, 2020 19 30 58 107
May 1, 2020 18 29 58 105
May 2, 2020 18 29 58 105
May 3, 2020 18 28 58 104
May 4, 2020 17 26 58 101
May 5, 2020 16 23 58 97
May 6, 2020 13 22 58 93
May 7, 2020 14 17 60 91
May 8, 2020 12 17 60 89
May 9, 2020 12 17 60 89
May 10, 2020 12 17 60 89
May 11, 2020 7 12 54 73
May 12, 2020 8 54 12 74
May 13, 2020 8 54 12 74
May 14, 2020 12 52 11 75
May 15, 2020 11 52 11 74
May 16, 2020 11 52 11 74
May 17, 2020 13 52 11 76
May 18, 2020 13 52 11 76
May 19, 2020 11 53 11 75
May 20, 2020 12 53 11 76
May 21, 2020 11 51 11 73
May 22, 2020 10 42 11 63
May 23, 2020 7 42 11 60
May 24, 2020 7 42 11 60
May 25, 2020 6 41 11 58
May 26, 2020 6 37 10 53
May 27, 2020 6 37 10 53
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DATE
#
Stores
Closed
# Stores on
Reduced
Hours
# Stores on
Reduced Days
(other than
Mondays)
Total
Affected
Stores
May 28, 2020 6 37 8 51
May 29, 2020 6 36 5 47
May 30, 2020 6 36 5 47
May 31, 2020 6 36 5 47
June 1, 2020 6 36 5 47
June 2, 2020 5 5 3 13
June 3, 2020 5 1 9 15
June 4, 2020 5 1 9 15
Week of June 9th, 2020 5 1 7 13
Week of June 16th, 2020 4 1 5 10
Week of June 16th, 2020 3 3 3 9
Week of June 30th, 2020 1 1 2 4
Week of July 7th, 2020 1 1 3 5
Week of July 14th, 2020 0 2 0 2
Week of July 21, 2020 0 2 0 2
Week of July 28, 2020 0 2 0 2
Week of Aug 4, 2020 0 2 0 2
Week of Aug 11, 2020 0 2 0 2
Week of Aug 18, 2020 0 2 0 2
Week of Aug 25, 2020 0 1 0 1
Week of Sept 1, 2020 0 1 1 2
Week of Sept 8, 2020 0 1 1 2
Week of Sept 15, 2020 0 1 1 2
Week of Sept 22, 2020 0 1 0 1
Week of Sept 29, 2020 0 2 0 2
Week of Oct 6, 2020 0 2 0 2
Week of Oct 13, 2020 0 2 0 2
Week of Oct 27, 2020 0 2 0 2
Week of Nov 3, 2020 0 2 0 2
Week of Nov 3, 2020 0 2 1 3
Week Nov 10, 2020 0 2 1 3
Week Nov 17, 2020 0 2 1 3
Week of Nov 24, 2020 1 2 1 4
Week of Dec 1, 2020 0 2 1 3
Week of Dec 8. 2020 0 2 1 3
Week of Dec 15, 2020 0 2 1 3
Week of Dec 22, 2020 0 2 0 2
Week of Dec 29, 2020 0 2 0 2
Week of Jan 5, 2021 0 2 0 2
Week of Jan 12, 2021 0 1 0 1
Week of Jan 19, 2021 0 1 0 1
Week of Jan 26, 2021 0 0 0 0
NOTE: Changed to weekly reporting commencing June 9, 2020
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b. Changing Consumer Demand and Buying Patterns
26. With uncertainty as to whether the LCBO would remain open and/or be deemed “non-
essential”, the LCBO saw not only an overall increase in sales, but also a change in
buying patterns. In particular, the average basket size of customers greatly increased,
with customers buying more per transaction and/or “stocking up”.
27. In turn, the LCBO had to ensure that its stores remained stocked and ready for
business.
c. New Health and Safety Requirements
28. Finally, but most importantly, after the start of the pandemic the LCBO had to
drastically change its health and safety protocols to protect its employees, customers
and communities from the spread of COVID-19.
29. Early on in the pandemic (and continuing thereafter), this included, but was not limited
to:
a. Increased cleaning and sanitization, including cleaning between
customers and cleaning of high touch points throughout the store, with dedicated
employee(s) assigned to cleaning duties only;
b. Instituting hand-washing breaks for all employees;
c. Instituting ways to promote social distancing, including floor markers and
unidirectional arrows;
d. Assigning employees to the store entrance to greet and offer hand sanitizer to
customers;
e. Monitoring line-ups outside the store, including distancing of customers in line-
ups; and,
f. Managing traffic flow within stores to avoid crowding and ensure distancing,
particularly in confined areas, vintage sections, cold rooms and/or high traffic
areas of the store.
30. At the same time, the institution of these new health and safety measures created
additional staffing pressures and issues, as staff needed to be trained and assigned to
duties that previously did not exist such as cleaning and crowd control.
31. As the pandemic continued, health and safety measures continued to grow and
change, as the government and public health officials issued new guidance, legislation
and orders, including, without limitation, in respect to:
a. Masking;
b. Plexiglass dividers;
c. Hand sanitizer;
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d. Capacity limits;
e. Physical distancing;
f. Signage (re masking, screening, capacity, etc.);
g. Health screening; and,
h. Safety plans.
32. In this regard, the LCBO was not only required to monitor new COVID-19 related
direction, guidance and legislation issued by provincial authorities, the LCBO also had
to monitor and comply with:
a. Guidance and orders issued by the 34 local public health units across Ontario
which have authority to make orders to local businesses pursuant to section 22
of the Health Protection and Promotion Act, and
b. COVID-19 related by-laws made by municipalities and regions.
33. At the same time, from March, 2020 to March, 2021, the LCBO received an
unprecedented number of store visits by various enforcement agencies monitoring
compliance with COVID-19 health and safety requirements. Indeed, the LCBO had
approximately 172 visits, 90% of which were at the LCBO’s retail stores.
34. The additional and ever changing health and safety requirements, as well as the
increased scrutiny of enforcement agencies, created challenges and pressures for the
LCBO’s retail network, not only in implementing and ensuring compliance with all
applicable requirements, but also sourcing supplies, including hand sanitizer,
plexiglass, face shields and masks. In this regard, and particularly at the outset of the
pandemic, certain of these provisions were in short supply.
LCBO Decision to Reduce Operating Hours
35. Given the above-noted impacts of the pandemic on LCBO’s retail operations,
particularly at the outset of the pandemic, in March, 2020, the LCBO made the
following changes to store operating hours:
a. Effective March 19, 2020, the LCBO changed its operating hours, such that
LCBO stores across the province would operate to the public from 11 a.m. to 6
p.m. daily (7 days a week); and
b. Effective March 30, 2020, LCBO stores across the province would be closed on
Mondays (as per the announcement at Tab 4).
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Reopening of the Province and LCBO Expansion of Store Hours
36. On or about April 27, 2020, the Ontario Government announced a framework for
reopening the province. Thereafter, commencing in or around May 9, 2020, certain
businesses were permitted to open.
37. In or around the same time, commencing April 19, 2020, and in accordance with a
Letter of Agreement between the LCBO and Union and the Collective Agreement
(Letter of Agreement re Fixed Term Employment at page 221) the LCBO was able to
employ fixed term employees to assist with staffing issues in its retail stores
commencing April 19, 2020.
38. Accordingly, and having regard to the above, on or about May 6, 2020, the LCBO
announced that beginning Thursday, May 14, 2020, it would gradually expand its store
operating hours in a number of locations throughout the province, subject to staffing
and health and safety requirements. The LCBO, however, continued to remain closed
on Mondays. A copy of the LCBO’s announcement is attached at Tab 5.
39. The LCBO’s decision to remain closed on Mondays was intended to ensure that the
LCBO continued to be able to and have flexibility to respond to the above-noted
COVID-19 related challenges, as well as any new COVID-19 related challenges that
might arise, including, without limitation, further “waves” that were projected to occur,
as well as the ever changing COVID-19 rules, legislation, regulations and guidance.
Reopening of LCBO Stores on Mondays
40. Other than during the holiday period in December, 2020, the LCBO remained closed
to the public on Mondays until March 1, 2021. In addition, retail store employees were
scheduled to work on Mondays, on the occasional basis, as required, including as
follows:
- On Monday, June 1, 2020 to perform year-end inventory counts; and,
- On Mondays from June 22, 2020 to August 31, 2020, in select stores (between
approximately 73 to 115 stores) to receive stock and perform stock related duties,
as a result of back-logs in the warehouses.
41. With respect to the holiday period, the LCBO opened its stores on Mondays as follows:
- Monday, December 21, 2020 – stores open
- Friday, December 25, 2020 (Christmas) – stores closed
- Saturday, December 26, 2020 (Boxing Day) – stores closed
- Monday, December 28, 2020 – select stores open
- Friday, January 1, 2020 (New Year’s Day) – stores closed
42. With respect to opening stores on Mondays, effective March 1, 2021, the LCBO made
such determination having regard to the following:
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a. The second state of emergency, which had been declared on January 12, 2021
had ended effective February 9, 2021;
b. Childcares and schools remained open at that time and absenteeism had greatly
declined;
c. The vaccination rollout had begun in December, 2020 and was anticipated to
continue in the coming months;
d. Health and safety measures, guidance and orders had stabilized, such that the
LCBO was not constantly having to adapt and change its measures, protocols
and training and, indeed, the LCBO had become quite efficient and proficient in
this regard; and,
e. Consumer buying and demand had stabilized.
The LCBO’s announcement with respect to the Monday store openings
commencing March 1, 2021 is attached at Tab 6.
D. Discussions between the Parties
43. Throughout the period in question, the LCBO and the Union regularly met
through a newly formed Emergency Labour-Management Committee (ELMC) to
discuss COVID-19 related issues.
44. At the ELMC, the Union regularly raised their concern regarding the impact of the
Monday closures on the ability of PFT Employees to have seventeen (17) Saturdays
off, as provided for under Article 7.4(a)(iii) of the Collective Agreement.
45. In response, the Employer was unable to confirm when its stores would be re-opening
on Mondays. When it became apparent to the Union that the LCBO was not
reopening its stores on Monday and that PFT Employees would not be guaranteed at
least seventeen (17) Saturdays off, the Union filed the herein policy grievance.
46. In addition to the policy grievance, the Union encouraged its members to file individual
grievances, resulting in the 192 individual and/or local policy grievances referred to
above at paragraph 12.
E. The Issue
47. While it is the LCBO’s position that the policy grievance is not a proper policy
grievance pursuant to Article 28.8 of the Collective Agreement, as it is a matter upon
which an employee is personally entitled to grieve and that no remedy, including
individual remedies, can be claimed in respect to same, the Parties have agreed to
submit the following issue to the Grievance Settlement Board for determination:
Given the LCBO’s decision to close its stores on Mondays from
March 30, 2020 to March 1, 2021, are PFT employees entitled to
seventeen (17) Saturdays off on a rotational basis for the April 1, 2020 to
March 31, 2021 contract year under the terms of Article 7.4(a)(iii)?
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48. For clarity, the submission of the above-noted interpretation issue to the Grievance
Settlement Board is without prejudice or precedent to the LCBO’s position, as noted
above. For further clarity, should the above-noted issue be answered in the
affirmative, the LCBO reserves the right to make submissions with respect to its
position.
[4] After consulting others and obtaining the approval of the Employer’s Executive
Leadership Team, Mr. Louli directed that changes be made to store operational hours
and that the retail stores be closed on Mondays. His reasons for taking these steps are
set out in the ASF and in his witness statement. His reasons for selecting Monday as
the weekly closing day are described in the following paragraphs of his witness
statement:
Retail Store Managers
…
22. Altogether, by staying closed on Mondays, Managers and District Managers
were provided with a much needed day of rest, when stores were completely
closed and they would not be required or called upon to respond to any
Pandemic related issues or concerns at the store.
Bargaining Unit Full-Time Retail Staff
23. Under Article 7.4(a)(iv) of the Collective Agreement, Sunday is a voluntary
day of work for permanent full-time retail employees (PFT’s), although PFT’s can
be scheduled for a maximum of ten (10) Sundays a year, if there are insufficient
volunteers.
24. Given the voluntary nature of Sundays, by observing a weekly closing day of
Monday, PFT’s could also enjoy two (2) consecutive days off a week, thereby
also providing them relief and a break from the daily pressures caused by the
Pandemic.
Mondays as Day of Rest
25. While the LCBO could have closed its stores on Saturdays, to provide the
above-noted two (2) days of rest, at all material times, even through the
Pandemic, Saturdays remained one of the LCBO’s peak business periods. For
this reason, casual retail employees are required, pursuant to the Terms and
Conditions of their employment at time of hire, to be available for work Friday,
evenings, Saturdays and Sundays. Conversley, casuals are not required to be
available for work on the LCBO’s slowest retail days being Mondays to
Thursdays and, indeed, many casuals are unavailable for work on these days.
26. Given the above, including the guaranteed availability of casuals for work on
the weekends and Monday being the LCBO’s slowest retail day, it was
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determined that Monday closures were preferable to Saturday closures.
Altogether, Monday closures allowed the LCBO to meet its operational and
customer service requirements, while still providing its managers and full-time
employees with two (2) consecutive days of rest.
27. Finally, for these retail employees dealing with school closures, observing
Monday as a weekly closing day alleviated pressures for those employees, who
could also opt to work both Saturday and Sunday, thereby providing them with
two (2) days during the week when they could support and/or care for their
school-aged children.
[5] The key elements of the positions taken by each party on the Union
grievance can be concisely summarized as follows. The Union did not claim that the
Employer exercised its management rights in bad faith or for illegitimate business
reasons when it elected to close its retail stores on Mondays during first year of the
pandemic. For the Union, this case was not about whether the Employer had good
reasons for closing its retail stores on Mondays, but whether it can deny PFT
employees entitlement to an important Collective Agreement provision. The Union took
the position that the language in the Collective Agreement required the Employer to
ensure that PFT employees were provided with 17 Saturdays off during the relevant
contract year and that the Employer cannot eliminate this obligation by implementing a
weekly closing day for all of its retail stores. In the alternative, the Union took the
position that the principle of estoppel should be applied in this instance to preclude the
Employer from closing all of its stores one day a week. The Union based its position on
the longstanding practice of the Employer to operate at least 85% of its stores without a
weekly closing day.
[6] In addition to two LCBO and OPSEU interest arbitration awards by arbitrator
Kaplan dated February 10, 2017, and March 27, 2017, and references to sections 4:20
and 4:22 (The Object of Construction: Intention of the Parties) and section 2:47
(Estoppel), in Brown & Beatty, Canadian Labour Arbitration, 5th Edition, Union counsel
referred me to Hinton Pulp & Hinton Wood Products v. CEP, Local 855, 2013
CarswellAlta 1059 (Beattie).
[7] The Employer’s position on the language of the Collective Agreement is that
the provision dealing with 17 Saturday’s off in a contract year provides PFT employees
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only with a right that is contingent on their working in a store that does not have a
weekly closing day. It maintained that when all stores were closed on Mondays during
the relevant contract year, the condition for receiving the 17 Saturday’s off was no
longer present. The Employer also took the position that there was no provision in the
Collective Agreement which precluded it from exercising it management rights to
establish a weekly closing day for all of its stores. And finally, the Employer took the
position that its practice of operating about 85% of its stores without a weekly closing
day prior to the pandemic cannot be the basis for the application of an estoppel.
[8] In addition to referencing the Canadian Oxford Dictionary and section 2.2211
(Estoppel) in Brown & Beatty, Canadian Labour Arbitration, 5th Edition, Employer
counsel relied on the following decisions: Creston Moly Corp. v. Sattva Capital Corp.,
2014 SCC 53; Petro Canada Lubricants Inc. and Unifor, Local 593 (Thornton), 2019
CarswellOnt 10684 (Surdykowski); Wire Rope Industries Ltd. v. U.S.W.A., Local 3910,
1982 CarswellBC 2620 (Chertkow); Chronicle Journal v. C.E.P., Local 191, 2003
CarswellOnt 4647 (Surdykowski); Alcan Packaging Canada Ltd. v. G.C.I.U., Local
100M, 2006 CarswellOnt 5328 (Beck); Sears Canada Inc. v. U.S.W., 2011 CarswellOnt
12401 (Knopf); Amhil Enterprises v. Workers United Ontario Counsel, 2012 CarswellOnt
6947 (Slotnick); B.B.F. v. Howden & Parsons (Canada) Ltd., 1970 CarswellOnt 901
(Weiler); Loblaw Companies Ltd. and UFCW, Local 1400, 2009 CarswellSask 946
(Stevenson); Humber River Hospital v. TC, Local 419, 2018 CarswellOnt 350 (Gedalof);
and, Metro Ontario Inc. v. UFCW, Local 175 (Colley), 2013
CarswellOnt 273 (Stout).
[9] After considering the submissions of counsel in light of the agreed facts, I am
of the view that the positions advanced by the Employer are to be preferred. I find it
unnecessary to set out the submissions of counsel in detail. I will refer to some of the
submissions briefly during the course of my reasons. I also find it unnecessary to
provide a detailed review of all of the case law relied on by counsel. There was no
dispute about the well known principles of interpretation and estoppel that are to be
applied in this case. In my view, the application of the relevant principles to the facts in
this case can be addressed quite simply and concisely.
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[10] Although I was referred to a number of Collective Agreement provisions, the
17 Saturdays off clause and the management rights clause are the key provisions for
determining the Union grievance. They provide as follows:
ARTICLE 7 - Hours of Work and Overtime
…
7.4 (a) (iii) Saturday: For Retail – Store and Depot and Retail POS/Help Desk
Employees
Days off will be on a rotational basis unless otherwise mutually
agreed to in writing by the employee and his/her supervisor.
However, the Employer agrees to provide for employees who work
in stores other than those that observe a weekly closing day,
seventeen (17) Saturdays off on a rotational basis as part of their
regular days off each contract year…
ARTICLE 1 - Recognition
…
1.1 (c) The Union acknowledges that it is the exclusive function of management
to:
. maintain order, discipline and efficiency;
. hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff,
recall, suspend or otherwise discipline employees subject to the right to
grieve as provided for in this Agreement;
. manage the operation and without restricting the generality of the
foregoing, the right to plan, direct and control operations, direct its
employees, determine complement, methods and the number, location
and class of employees as required from time to time, the scheduling and
assignment of work, cessation of operations and all other rights and
responsibilities not specifically modified elsewhere in this Agreement.
The Employer agrees that these functions will be exercised in a manner
consistent with the provisions of this Agreement.
…
[11] In taking the position that the majority of PFT employees were entitled to 17
Saturdays off during the first year of the pandemic no matter what the situation was
during that year, the Union placed considerable reliance on how the Employer had
operated its retail stores in the normal course prior to the pandemic. As essentially
described in paragraph 4 of the ASF, the Employer, in the normal course of operating its
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business, had a lengthy practice of operating approximately 85% of its retail stores
without a weekly closing day. This meant that PFT employees who worked in those
stores were provided with a minimum of 17 Saturdays off during a contract year. In
maintaining that PFT employees who worked in retail stores that operated 7 days a
week prior to the pandemic were entitled to 17 Saturdays off during the first year of the
pandemic, the Union relied on three matters to aide in the interpretation of the relevant
language. Union counsel referred to the extensive clauses in the Hours of Work and
Overtime provision and argued that one of the purposes of the provision was to ensure
that PFT employees were provided with a minimum of 17 weekends off during a
contract year. Counsel submitted that the parties recognized in the words they used the
value of having Saturday as a day off and he noted that this would be particularly
important during the pandemic. Secondly, counsel submitted that the Employer’s
practice of operating the majority of its retail stores without a weekly closing day prior to
the pandemic provided an important context for the collective bargaining process. He
noted that the parties negotiated the relevant language without contemplating that there
would be a change in the Employer’s practice and with the expectation that the majority
of the PFT employees would receive 17 Saturdays off in each contract year covered by
the Collective Agreement. Lastly, Union counsel submitted that the absence of
language to address what will occur if all retail stores have a weekly closing day for a
period of time during a contract year is an indication that the parties did not intend that
the Employer could institute a weekly closing day for all of its stores and thereby
eliminate the obligation to provide the majority of PFT employees with at least 17
Saturdays off during a contract year. Counsel submitted that there is no language
which gives the Employer the right to eliminate this bargained provision at its discretion.
[12] As I suggested previously, I did not find the above matters referred to by the
Union during its submissions sufficiently persuasive to adopt its interpretation of the
relevant Collective Agreement language. The entitlement PFT employees have to 17
Saturdays off during a contract year must ultimately be determined by interpreting the
words the parties used in article 7.4 (a) (iii) to express their intention on the subject.
There are no other provisions in the Collective Agreement or contextual matters that are
determinative when it comes to deciding the essential issues in this case. In my view,
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there is no ambiguity about what the parties intended when they crafted the language in
article 7.4 (a) (iii). There is no doubt that the right of PFT retail employees to have 17
Saturdays off during a contract year is not an absolute right. The language of the
clause clearly indicates that it is a contingent right that depends on whether a PFT
employee works in a retail store that does not observe a weekly closing day. In order to
reach the result suggested by the Union, I would have to ignore the plain language
utilized by the parties and read in words that are not present in the relevant provision.
The triggering condition entitling retail store employees to 17 Saturdays off during a
contract year was no longer present when the Employer decided to close all of its retail
stores on Mondays during the first year of the pandemic. This then raises the question
of whether the Employer’s decision to operate all of its retail stores with a consistent
weekly closing day is prohibited by the provisions in the Collective Agreement. As
Employer counsel noted, success for the Union in this case is dependent on a finding
that the Employer’s decision to close all of its retail stores on Mondays is contrary to the
Collective Agreement.
[13] The management rights provision provides the Employer with a broad
authority to plan and control its operations. This authority includes the right to
determine how its retail stores will operate and whether they will have a weekly closing
day. Its authority in this regard must be exercised in a manner consistent with the
provisions of the Collective Agreement. I agree with Employer counsel’s submission
that any restriction on management’s broad authority to plan and control its operations
in these circumstances needs to be clear and unequivocal. There is no provision in the
Collective Agreement, let alone a clear provision, which modifies the Employer’s
management right to determine how many days a week its retail stores will operate.
There is no provision which compels the Employer to operate a certain percentage of its
retail stores 7 days a week, nor is there one which prevents it from closing all of its retail
stores on Mondays. There is no provision which compels the Employer to continue with
its practice of how it operates its retail stores. Simply put, there are no features of this
Collective Agreement which fetters management’s right to operate all of its retail stores
with a weekly closing day of Mondays. This conclusion and my interpretation of article
7.4 (a) (iii) compels the result that the Employer did not contravene the Collective
- 20 -
Agreement when PFT retail employees were not provided with 17 Saturday’s off during
the relevant contract year.
[14] As noted previously, the Union relied on the principle of estoppel in the
alternative. It took the position that the Employer’s lengthy practice of operating 85% of
its retail stores 7 days a week amounts to an Employer representation that it will
continue to operate in this manner, that this representation by conduct was intended to
be relied on by the Union and that it was relied on by the Union and bargaining unit
employees to their detriment, thereby precluding the Employer from relying on its strict
legal rights to alter the practice. In my view, and as other arbitrators have found, a
longstanding practice that develops pursuant to management’s right to operate its
business in a particular way cannot, by itself, amount to a representation upon which an
estoppel can be based. The essential circumstances in the instant case are not unlike
those in Chronicle Journal v. C.E.P., Local 191, supra. In that case, the union took the
position that the employer was estopped from discontinuing its longstanding practice of
providing vehicles to bargaining unit employees for use during the course of their
employment. Arbitrator Surdykowski noted at paragraph 27 that, “The Union’s case
really is that the Company’s practice standing alone forms the basis for an estoppel.” In
dismissing the Union’s grievance, the arbitrator commented as follows at paragraph 55;
55 Where there is a practice in the workplace that is not related or referable to a specific
provision in the collective agreement that is where it relates at most to the exercise of
management rights reserved to the employer within a management rights clause written
or implied in the collective agreement the mere existence of a practice however lengthy
without more will not be a sufficient basis for an estoppel. Regardless of the length of a
practice the mere fact that the employer has chosen to exercise a management right in a
particular way will not by itself freeze that practice or transform it into a collective
agreement right such that the employer cannot unilaterally alter that practice. In these
circumstances there is no representation inherent in the practice. There must be an
additional clear and specific representation that the employer will maintain the practice in
the circumstances where the union either sought to bargain the matter or the issue was
raised in circumstances where the union would have had an opportunity to bargain the
matter that the union in fact relied upon. Where nothing like this has occurred that is
where the practice is not inconsistent or at odds with a term of the collective agreement
and the matter has never come up in bargaining mere silence at the bargaining table will
not constitute a representation because silence is not enough to matter within the
collective agreement regime. It requires a representation made within the context of the
legal relationship between the parties (i.e. the collective agreement) to accomplish that
result.
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[15] There is nothing in the ASF to indicate that the Employer had made the kind
of representation that would be necessary to transform its longstanding practice of
operating 85% of its retail stores 7 days a week into a Collective Agreement obligation.
In the absence of such a representation, there is no basis for finding that the Employer
was estopped from closing all of its retail stores on Mondays during the first year of the
pandemic.
[16] For the forgoing reasons, the Union grievance filed with the Employer on or
about December 11, 2020, is hereby dismissed. I will remain seized of the related
grievances that were referred to the Board.
Dated at Toronto, Ontario this 27th day of May 2022.
“Ken Petryshen”
_______________________
Ken Petryshen, Arbitrator