HomeMy WebLinkAbout1993-2299.Sheridan et al.98-02-13 DecisionONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 2299/93, 1556/93, 1588/94, 756/94, 32/94, 34/94
OLBEU # 080/93, 186/93, 190/94, 107/94, 264/93, 019/94
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Sheridan et al)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFOREF. BriggsVice Chair
FOR THE R. Davis
GRIEVOR Counsel
Koskie Minsky
FOR THE R. Little
EMPLOYER Counsel
Hicks Morley Hamilton Stewart Storie
HEARINGSeptember 26, 1995
November 27, 1995
February 6, 7, 1997
May 9, 1997
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There are three grievances filed by employees working in the Durham distribution warehouse alleging that
the collective agreement was violated when the Employer failed to assign employees to an Aacting manager@
position on the basis of seniority. Each grievance requested compensation for all monies lost.
At the commencement the Employer raised a preliminary objection that this Board is without jurisdiction to
hear and determine these matters because the grievances are inarbitrable. This decision deals only with that
preliminary objection. The Employer argued that the positions that the grievors are claiming ought to have
been assigned to them are outside of the bargaining unit and therefore are beyond the scope of review by
this Board. The Employer asserted that, in addition to the fact that the language of the collective agreement
does not provide the remedy sought by the grievor=s, there was significant discussion regarding this issue in
the last complete round of bargaining in 1990 that supports its view. It was the Union=s position that the
long standing practice of the Employer had been to appoint bargaining unit employees to temporarily fill in
for excluded managers in A & B stores as well as at the Durham warehouse, in accordance with article
6.12(a) and (b).
Prior to reviewing the evidence regarding negotiating discussions, it is appropriate to set out the sections of
the collective agreement relied upon by the parties. Those provisions are:
Preamble
1.The general purpose of this Agreement is to establish and continue harmonious relations
between the Employers and the employees covered by this Agreement and consistent
therewith to provide procedures for the prompt and just disposition of differences and
grievances.
2.It is understood that the provisions of this Agreement apply equally to male and female
employees.
Recognition
1.1(a)The Employers recognize the Union as the exclusive bargaining agent for all employees
in classifications shown in Salary and Classification Schedule appended thereto.
(b)Solely for the matters dealt with in Article 31, Casuals, the Employers recognize the
Union as the exclusive bargaining agent for employees as casuals.
Hours of Work and Overtime
6.12(a)The Employers agrees to pay a premium of eight dollars ($8.00) per day to an employee
acting for the Store Manager in his/her absence, provided he/she is assigned to act for a
minimum of three (3) consecutive hours. Such premium will not be paid to an Assistant
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Manager in charge of the second shift. However, it would be applicable to other
employees in charge of the store during the Manager=s absence, while working the
second shift.
6.12(b)An employee (other than those in (a) above) designated by the Employer to replace
another employee in a higher classification shall receive a premium of one dollar and
twenty cents ($1.20) per hour for each hour such duties are performed provided he/she
works a minimum of two (2) continuous days in the higher classification. Acting pay
shall not exceed the maximum of the salary range of the higher classification.
Assignments and Job Postings
21.4(a)If a new job classification within the bargaining unit is created or a permanent vacancy
occurs in an existing job classifications before inviting applications from persons not
employed by the Employers, the Employer 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 may apply. The notice shall stipulate
qualifications, classification, salary range, department and location concerned.
21.5(a)Where employees are being considered for promotions, seniority will be the determining
factor provided the employee is qualified to perform the work.
(b)Notwithstanding the provision of Article 21.5(a) within any calendar year the Employers
may identify a limited number of permanent part-time vacancies as vacancies to be filled
by special merit promotion. In no case shall special merit promotions exceed ten
percent (10%) of all promotions within the calendar year. Special merit promotions shall
be so identified on the job posting and shall be awarded to bargaining unit employees
only. In filling special merit promotions, the Employers agree to give consideration to
the qualifications and ability of permanent part-time employees and casuals to perform
the duties of a vacant permanent part-time position. Where two (2) or more such
employees are relatively equal in qualifications and abilities, the permanent part-time
employee with the greatest seniority shall be awarded the position. If the employees
who are deemed relatively equal are casuals, the senior casual shall be awarded the
position.
( c)Where it is decided that it is necessary to make a temporary appointment to fill a
temporary vacancy, including summer stores, which will last five (5) working days or
more, or one day in the case of stores, the Employer shall appoint the most senior
employee in the next lowest classification in the department, section or store involved,
who is qualified and available to perform the work.
21.10Where a bargaining unit employee accepts a position with the Employer outside the
bargaining unit, his/her seniority for promotional purposes shall continue to accumulate
during such time as that employee is outside the bargaining unit only for a maximum of
five (5) years.
As mentioned earlier, the parties called evidence about the discussions that took place during the 1990
negotiations. Wayne Zacher has been the Employee Relations Manager since February of 1989. He
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testified that, notwithstanding the fact that Sandy Rae was the chief negotiator for the Employer, he was
responsible for certain aspects, including Article 21.5( c) and a Letter of Understanding. That letter stated:
Where it is decided it is necessary to make a temporary appointment to replace the absent Store
Manager, it is the policy of the employer to appoint the most senior person in the next lowest
classification who is qualified and available to perform the Store Manager=s job.
Mr. Zacher had received complaints and grievances surrounding assignments to store manager positions
and hence, he developed the Employer=s proposals and participated in the discussion at negotiations for
these matters. The grievance which arose from the warehouse was ultimately withdrawn due to timeliness.
Mr. Zacher testified that he was of the view that the Letter of Understanding only referred to the
Employer=s practice and, accordingly, there could be deviation from that practice in the event there was
good reason. The practice in retail stores was to appoint the person in the next lowest classification who
was the most senior. Deviation from that practice would occur where there were two assistants in an A
Store who rotated through the assignments and when people were being trained. As well, sometimes in D
Stores when the most senior person was a casual employee, a person from another store was assigned.
The Employer originally proposed the deletion of the Letter of Understanding. Their proposal on article
21.5( c) stated, AEliminate, or at least clarify reference to Abargaining unit@ vacancies, and it is the most
senior employee >in the next lowest classification=@. The Union proposed incorporating the Letter of
Understanding into the body of the collective agreement. The proposals and notes taken during bargaining
by Mr. Zacher were put before the Board. His notes indicated that he presented the Employer=s position
on October 30, 1990. He told the Union=s bargaining representatives that it was management=s view that
article 21.5( c) did not apply to non bargaining unit positions. In the event that the Union did not agree with
that view, the Employer wanted 21.5( c) deleted from the collective agreement. If there was no dispute on
the point, the Employer wanted the language clarified to ensure that the issue would not have to be revisited
each time a problem arose in the field. There was also some discussion at this point that assignments should
be made to the most senior in the next lowest classification. According to Mr. Zacher, there was further
discussion about this at the October 30, 1990 meeting following his explanation.
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Mr. Zacher testified that on November 1, 1990 Mr. Coones, President of the Union, responded to
management=s proposal for article 21.5(c). Mr. Coones said that he wanted to keep the current language
but was agreed to an addition that assignments would be made to the most senior employee in the next
lowest classification. Mr. Zacher=s negotiating notes indicate that when Mr. Coones was asked about the
Letter of Understanding regarding temporary store managers, he said that only the bargaining unit is
included in the collective agreement. Those notes also show that there was discussion regarding meaning of
the Employer=s intention to Aclarify@. According to Mr. Zacher=s notes, Mr. Coones asked if Aclarify@ meant
that the Employer was putting the Union on notice in an effort to end an estoppel. Mr. Rae responded Ayes,
in some instances@. Later that day Mr. Rae told the Union that to Aclarify@ meant to Aunderstand each
others position@. At this point the Union still wanted the Letter of Understanding included in the collective
agreement.
On November 2, 1990 there was further discussion about this matter. Mr. Zacher=s notes again revealed
that there was discussion regarding article 21.5(c). The notes ascribe Mr. Coones as saying, AWe wanted a
chance to look over the letter and proposal. Anything that is in this book only deals with the bargaining
unit@. At the December 3, 1990 meeting Mr. Rae asked the Union for its position which was not
forthcoming until December 4, 1990. During this meeting, the Union gave the Employer a counter proposal
to article 21.5( c)which was agreed and the Letter of Understanding was deleted. Mr. Zacher testified that
he was of the view that the Employer had achieved its goal in agreeing to the present language.
In cross examination, Mr. Zacher agreed that his notes were not complete. He stated that he did not
propose the inclusion of Awithin the bargaining unit@ to his proposal because of the Union=s assurances that
the collective agreement only dealt with the bargaining unit employees.
Mr. Coones did not take notes during bargaining in 1990. Staff members of his negotiating committee did
take notes, however they were unable to find them. He provided some background about the premium
payments for assistant managers. He also referred to an arbitration award wherein it was determined that
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assistant managers were to be paid for replacing managers on the second shift except for the managers
regular days off.
Mr. Coones disagreed with Mr. Zacher=s evidence regarding his comments that the collective agreement
did not apply. According to Mr. Coones, any statement he made in that regard was made during
discussions about article 21.10, not article 21.5(c). The Employer had proposed that an addition be made
to article 21.10 that provided that employees who had been out of the bargaining unit and were returning
would be limited to classifications equal to or less than the classification they occupied prior to their
promotion. Mr. Coones said he did not recall Mr. Zacher=s explanation of the Employer=s position
regarding article 21.5( c) and the Letter of Understanding but he conceded that there were other notations
in Mr. Zacher=s notes that he did not recall. In cross examination, he stated that he thought article 21.5( c)
applied to any temporary position outside the bargaining unit except those in human resources.
Mr. Coones did not share the same view as Mr. Zacher that the Letter of Understanding was merely a
statement of practice and therefore not binding in all cases. He said that the Union wanted the Letter of
Understanding incorporated into the collective agreement because they thought deleting it would result in a
lesser benefit to his members. He said that the Employer never explained their view of article 21.5( c) but
he remembered Mr. Rae asking for the Union=s interpretation. Mr. Coones testified that he never did
respond. Mr. Coones testified that he could not say with certainty that Mr. Rae never indicated that article
21.5( c) applied only to bargaining unit positions.
The parties also agreed to some facts in this matter. That agreement said:
For the purposes of this case only, the parties agreed to the following facts:
Prior to the 1990 negotiations. It was the policy/practice of the LCBO to appoint the most senior
employee in the next lowest classification who was qualified and available to replace the absent
excluded Store Manager. In those cases, the employee was generally paid the premium in Article
6.12(a). In the case of longer term appointments, the job rate was sometimes paid without the
Union being aware. If there were exceptions to this policy/practice, the Union was not aware of
them. The LCBO=s view was that these appointments/payments were not governed by the
collective agreement but were made as a matter of policy which, in its view, reflected the most
7
practical employee relations option. The Union=s view was that these appointments/payments
were required by the collective agreement. With the exception of the Kalichuk and Union policy
grievances, GSB#482/83 and 597/86 respectively, the Parties agree that neither party ever
expressed its respective view to the other on this issue prior to the 1990 negotiations.
Prior to the 1990 negotiations, the general practice of the LCBO was to appoint the most senior
employee in the next lowest classification who was qualified and available to temporary
vacancies that it wished to fill in the excluded position of warehouse foreperson. In those cases,
the appointed employee generally received the premium set out in Article 6.12(b). In the case of
longer term appointments, the job rate was sometimes paid without the Union being aware.
If there were exceptions to this practice, the Union was not aware of them. The LCBO=s view
was that these appointments/payments were not required by the collective agreement but were
made as a matter of policy which, in its view, reflected the most practical employee relations
option. The Union=s view was that the payments/appointments were required by the collective
agreement. However, the Parties agree that neither party ever expressed its respective view to
the other on this issue prior to the 1990 negotiations.
Prior to the 1990 negotiations, with respect to temporary appointments to other excluded
positions, the LCBO=s evidence would be that the practice was variable, i.e. that bargaining unit
employees might be appointed; if they were, it might/might not be the senior employee; non-
bargaining unit employees might be appointed; external hires might be made.
With respect to the payment employees received in these temporary appointments, the practice
varied. The employee might receive the job rate, the rate set out in Article 6.12(b), their existing
rate or some other rate. The Union states it was not aware of the rates being paid to the
bargaining unit employees who were appointed.
In this regard, the Union=s evidence would be that it did not receive any complaints from, and
were not aware of, any bargaining unit employees that had been denied temporary appointments
for which they were qualified.
The LCBO=s view was that these payments/appointments were not governed by the collective
agreement. The Union=s view was that these payments/appointments would be governed by the
collective agreement. However, the Parties agree that neither party ever expressed its view to the
other on this issue prior to the 1990 negotiations.
EMPLOYER SUBMISSIONS
The Employer contended that there is a general proposition that, subject to express contractual language,
there is a presumption that the collective agreement only applies to the bargaining unit. It is not surprising
that the preamble of the collective agreement states that the parties desire to establish and maintain
harmonious relations between employees covered by the agreement and the Employer. A union=s rights
8
revolve around the bargaining unit concept of seniority. That concept does not apply to those excluded
from the bargaining unit making it impossible to adjudicate disputes between bargaining unit and excluded
people. Warehouse Foreman 1 and 2 are included in the collective agreement but the position that the
grievors claim appointment rights to does not appear in the Salary Class Schedules or anywhere else in the
collective agreement.
There were four aspects to the Employer=s preliminary objection regarding arbitrability. The first was that
the clear language of the collective agreement would lead this Board to uphold the preliminary objection.
When the word Avacancies@ appears in the collective agreement, it means vacancies within the bargaining
unit. In article 21.4, the parties refer to vacancies Awithin the bargaining unit@. That qualification applies
throughout the article because if the parties intended otherwise they would said so. The Union conceded in
article 21.4 that jobs outside of the bargaining unit are beyond their jurisdiction and similarly, Avacancies@
throughout the collective agreement are all within the bargaining unit. In order for this Board to accept
jurisdiction of the grievance the Union has to establish that Avacancy@ means something different in article
21.5( c) than it means at 21.4(a). Common sense would lead one to the conclusion that if the parties
intended different meanings to the same word within the same article they would have clearly provided for
that distinction. Further, it would be odd for the parties to have agreed to rights to temporary excluded
positions and not to permanent excluded positions.
Mr. Little, for the Employer, suggested that Mr. Coones= evidence that article 21.5( c) applied to any
position with the LCBO, up to and including the CEO is indicative of the absurdity of the Union=s position
in this matter. There would be bargaining unit employees with seniority and excluded employees with no
seniority vying for a position for which seniority is a key determinant.
Further, the Employer contended that where the parties intended to take positions outside of the bargaining
unit into account, they did so expressly as can be seen in article 21.10. A further review of the collective
agreement shows that the parties often dealt with vacancies and, as can be seen at article 5.3 and 31.4(a).
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The Employer=s interpretation is consistent with those provisions.
The Employer relied upon Re Abitibi Paper Company Limited and International
Brotherhood of Electrical Workers (April 20, 1967), unreported (Little); Re British
Columbia Telephone Co. And Federation of Telephone Workers of British Columbia
(1976), 12 L.A.C. (2d) 117 (Larson); Re Municipality of Metropolitan Toronto and
Canadian Union of Public Employees, Local 43 (1979), 21 L.A.C. (2d) 424 (Brent); Re The
Parking Authority of Toronto and Canadian Union of Public Employees Local 43
(December 18, 1980), unreported (Betcherman); Re Municipality of Metropolitan Toronto and
Canadian Union of Public Employees, Local 43 (September 27, 1982), unreported (O=Shea);
Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees
Local 79 (November 12, 1982), unreported (Linden); Re Municipality of Metropolitan
Toronto and Canadian Union of Public Employees Local 79 (1993), 35 L.A.C. (4th) 357
(Fisher); Re Art Gallery of Ontario and Ontario Public Service Employees Union, Local
535 (1992), 30 L.A.C. (4th) 179 (Brandt); Re Cunningham and the Crown in Right of
Ontario (Ministry of Consumer and Commercial Relations) (1980), 29 L.A.C. (2d) 90
(Hennessey); Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU
(Shelton, Haynes & Villella) - GSB#520/90 (October 9, 1990), unreported (Dissanayake); Re
The Crown in Right of Ontario (Ministry of Revenue) and OPSEU (Dias) -
GSB#3479/92 (March 3, 1995), unreported (Gorsky).
The Employer=s second assertion is similar to its first. Mr. Little contended that where the word
Aclassification@ is used throughout the collective agreement it means classification within the bargaining unit.
The Union has to prove that Aclassification@ in article 6.12(b) means positions outside the bargaining unit. In
order for the Union to prevail in that regard, clear language would be required.
Thirdly, Mr. Little submitted that the evidence regarding the discussions that took place during negotiations
10
must lead this Board to uphold the Employer=s preliminary objection. The parties agreed that the language
applied only to bargaining unit positions. Until article 21.5( c) is amended, the Union must be held to the
representation it made at the bargaining table. The evidence supports the Employer=s contention. The
Employer tabled a proposal because it wanted to clarify its view. The Union wanted to renew the Letter of
Understanding regarding store managers because it was of the view that 21.5( c) did not include excluded
positions. The Union was aware that the Letter of Understanding was not sufficient because it only
expressed an Employer policy and was therefore not binding. During the discussions, John Coones told the
Employer that the collective agreement applied only to the bargaining unit and the Employer relied on those
assurances in determining its position on article 21.5(c). The Union must now be held to those
representations.
Mr. Little spoke of the disparity in the evidence regarding the discussions which took place during the 1990
negotiations and suggested that the Board ought to prefer Mr. Zacker=s testimony. His recollection was
clear and supported by his notes. Mr. Coones did not have the benefit of notes to refresh his recall and
because the negotiations took place six years and two rounds of bargaining ago, it is not surprising that his
memory would be less than clear. Indeed, he admitted that his recall was not clear. Specifically addressing
Mr. Coones= evidence that Mr. Zacker did not explain the Employer=s view of its proposals, it was
suggested that Mr. Zacker=s evidence was more credible. Mr. Coones did not have a reasonable
explanation as to why the Union wanted to retain the Letter of Understanding if article 21.5( c) applied to
positions outside the bargaining unit. Mr. Coones told the Employer that the collective agreement only
applied to the bargaining unit. If he believed differently and was bargaining in good faith, he had an
obligation to tell the Employer that view.
The Employer=s fourth argument concerned the evidence of past practice. Mr Little submitted that all of
the past practice evidence was irrelevant because this Board ought to find that the Employer put the Union
on notice during the 1990 negotiations that article 21.5( c) of the collective agreement did not apply to non
bargaining unit positions. In the event that I reject the Employer=s third argument, notice was given to the
11
Union that the practice was to stop. In the alternative, if past practice evidence is considered, it has to be
consistent and the agreed statement of facts makes clear that there was no consistent application. The facts
as agreed by the parties is consistent with the interpretation of both parties. The Employer made
appointments at its discretion and with an eye to the Letter of Understanding in the collective agreement
prior to 1990. The appointments were made sometimes but not always in accord with the stated policy set
out in the Letter of Understanding for employees in the Warehouse and Retail Stores. At best, the Union
can assert that prior to 1990, article 6.12(a) applied to store managers. In any event, the Letter of
Understanding did not survive the next collective agreement so the Employer was no longer committed to
the practice. It is apparent from the agreed statement of fact that the practice varied, as such it cannot be
said that the Employer is estopped. In this regard, the Employer relied upon Re Carling O==Keefe
Breweries of Canada Ltd. And Canadian Union of United Brewery Flour Cereal, Soft
Drink and Distillery Workers (December 2, 1980), unreported (Burkett); Re The Crown in
Right of Ontario (Liquor Control Board) and OBLEU (Worsely/Daigle/Milgate)
(October 10, 1989) unreported (Knopf); Re Hallmark Containers Ltd. And Canadian
Paperworkers Union, Local 303 (1983), 8 L.A.C. (3d) 116 (Burkett); and Re National
Grocers Co. Ltd. And Teamsters Union, Local 91 (1991), 20 L.A.C. (4th) 310 (Bendel).
UNION SUBMISSIONS
The Union generally agreed with the proposition that a collective agreement is presumed to apply only to
bargaining unit members. However, in this type of workplace which is scattered over a huge geographical
area, the Employer occasionally utilizes bargaining unit people in managerial positions. It is the Union=s
intention to ensure that those assignments are done in a fair and rational manner with appropriate
compensation. The employees who are in those temporary positions remain in the bargaining unit. The
majority of jurisprudence provided by the Employer dealt with permanent appointment to positions outside
of the bargaining unit and are therefore of little assistance to this Board.
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Mr. Davis, for the Union contended that in the instant matter, the grievors and the Union are not attempting
to represent positions outside of the bargaining unit but that bargaining unit members are paid appropriately
when they are assigned the responsibilities of those positions. Article 21.5( c) of the instant collective
agreement provides the same benefits as the Letter of Understanding; that is, qualified employees in the
next lowest classification have a right to temporary appointments when the Employer deems it necessary to
fill the position for more than five working days, or more than one day in the case of retail stores.
The Employer argued that the Union=s position would have it replace even the Chief Executive Officer with
bargaining unit personnel. That might be accurate in the absence of the qualifying language regarding the
next lowest classification. In order for a bargaining unit employee to temporarily be assigned to act as CEO
it would require the elimination of all employees in positions between those in the bargaining unit and the
CEO.
Mr. Davis urged that meaning must be given to the plain language of the collective agreement and in the
content of this agreement that is to ensure that temporary vacancies are tied to article 6.12 which provides
responsibility allowance. It is subsection (b) that clearly provides for temporary vacancies, evidenced by
the reference to Aacting pay@ found in the last sentence. The Union referred the Board to Re The Crown
in Right of Ontario (Liquor Control Board of Ontario) and OLBEU(Kalichuk) (April 2,
1984), unreported (Verity) which was quashed by Divisional Court and subsequently re-heard and
decided in Re The Crown in Right of Ontario (LCBO) and OBLEU(Kalichuk) (November
20, 1985), unreported (Draper).
In Re The Crown in Right of Ontario (LCBO) and OBLEU(Policy) (February 23, 1988),
unreported (Samuels), article 6.12 (a) was at issue and, generally speaking, it was found that employees
who acted for the Store Manager in his absence were entitled to the premium provided in Article 6.12
including Clerk 4's. During this dispute, the Employer did not raise the issue of whether the collective
agreement applied to positions outside of the bargaining unit because it knew that the collective agreement
applied to all bargaining unit employees who were replacing store managers.
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Shortly after the issuance of that award, the parties enter into the 1990 bargaining round. It is not surprising
that the Union would have felt confident that bargaining unit employees had rights regarding assignment to
store manager positions. Mr. Davis suggested that the issue was res judicata. At the very least, I should
apply past decisions of this Board and allow the grievances to be heard on their merits. There have been
previous decisions that have found that article 6.12(a) gave a specified rate of pay for members of the
bargaining unit who were temporarily acting as store managers, including store managers who were outside
of the bargaining unit.
The Union is not asking for a finding of estoppel. Notwithstanding, all of the evidence set out in the Agreed
Statement of Fact is relevant and indicates a consistent practice regarding assignment of the work at issue.
The past practice evidence should assist this Board in determining the appropriate meaning of the collective
agreement in those cases where an ambiguity is found. In this regard the Union relied upon Re
International Association of Machinists, Local 1740, and John Bertram & Sons Ltd.
(1967), 18 L.A.C. 362 (Weiler).
Mr. Davis asserted that article 21.4 and 21.10 make reference to positions inside or outside the bargaining
unit. If the parties intended article 21.5( c) to apply only to positions inside the bargaining unit, they could
have and would have said so. Article 21.5( c) contemplates temporary vacancies. This language was
arrived at after Mr. Rae assured the Union that its concerns in the Letter of Understanding were met,
according to Mr. Zacher notes. On November 2, 1990, Mr. Rae said that he was confused because the
first position of the Union was that it wanted to include the Letter of Understanding into the collective
agreement. Then he said, AWe found 21.5( c) covered same concerns as letter so we combined both in our
proposal@. When the Board considers that assurance as well as the past litigation and past practice of the
parties, the preliminary objection must be dismissed.
Mr. Davis submitted that it must be evident from the Employer=s proposals at the bargaining table in 1990
14
that it knew that article 21.5( c) applied to positions outside the bargaining unit. Indeed, it proposed the
deletion of the article or, at the very least, a significant limitation on its application.
Regarding the suggestion that Mr. Coones gave assurances at bargaining, it was contended that Mr. Zacher
notes were deficient. It is simply not credible that the Union would give up what it had in the Letter of
Understanding. Any comment that Mr. Coones might have made about the scope of the collective
agreement were in respect of people being demoted into a bargaining unit position. There must be clear and
cogent evidence of a representation that would allow a finding for the Employer. There has been no such
evidence provided in the instant matter.
The Union also relied upon Re Victoria Hospital Corporation & District Service Workers==
Union Local 220 (1977), 17 L.A.C. (2d) 204 (H. D. Brown); Re Sudbury District Roman
Catholic Separate School Board and Ontario English Catholic Teachers== Association
(1984), 15 L.A.C. (3d) 284 (Adams); Re Consolidated-Bathurst and Canadian Paperworkers
(1985), 19 L.A.C. (3d) 231 (Kuttner); and Re Napev Construction Limited 1980 OLRB Rep.
June 862.
In reply, the Employer conceded that prior to 1990, article 6.12(a) was applied to non bargaining unit store
manager positions. However, the appropriate article in this instance would be article 6.12(b) and the
practice regarding this as set out in agreed statement of facts is of little assistance because it is either
inconsistent with the Union=s view or, at most, it supports the position of both parties.
Regarding the alleged Employer assurances given at bargaining, Mr. Little stated that any comments made
by Mr. Rae regarding combining elements into a new proposed article 21.5 ( c) were made in light of the
assurances already given by Mr. Coones that only bargaining unit matters were covered in the collective
agreement. The context of that discussion was that the Union was trying to have the Employer renew the
Letter of Understanding regarding store managers. It would be difficult for this Board to make a finding that
15
the Employer made representations during bargaining for a variety of reasons. First, the proposition was
never put to Mr. Zacher when he was a witness. Second, the very first time this allegation was made was
during the Union=s closing arguments. It was never said by Mr. Coones that a representation had been
made to him that article 21.5( c) would apply to positions outside the bargaining unit. To the contrary, he
testified that he understood that article 21.5( c) applied to positions outside the bargaining unit so he did not
have to be told so by Mr. Rae. When he was asked about this exchange, Mr. Coones stated that he did
not recall the exchange. For there to have been such an assurance would have been completely inconsistent
with the Employer=s objectives as set out in its original proposals.
DECISION
The issue for this Board to address is whether the grievances are arbitrable. After consideration the
evidence and submissions of the parties, I am of the view that I am without jurisdiction to hear and
determine the grievances. I find that the language of the article 21.5 ( c) is clear and unambiguous.
Therefore it is neither necessary nor appropriate for me to rely on extrinsic evidence regarding
representations or past practice to assist in its interpretation. I agree that there is a general presumption that
the collective agreement applies only to the bargaining unit. There is no reference to vacancies Aoutside the
bargaining unit@ in article 21.5 ( c) and for the grievances to be arbitrable, there would have to be clear
language to that affect. In order for me to accept jurisdiction of the grievances, I would have to read
Aoutside the bargaining unit@ into article 21.5( c) and I have no authority to alter the collective agreement. In
Abitibi Paper (supra) it was stated at page 4:
The Board agrees with the Company that the grievance is not arbitrable for the following
reasons.
1.The recognition article of the Agreement as quoted states that the Union is the
bargaining agent for Aall those employees under their jurisdiction engaged in the
operation, maintenance, repair and installation of all electrical equipment, electronic
equipment and the electrical portion of metering equipment@, and the superintendent=s
job is not included therein.
2.That normally an employer has the right to promote a person to a job out of the
bargaining unit or assign such a person to it on a temporary basis, without being
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governed by the promotion provisions of a Collective Agreement.
3.That this Agreement does not provide that Article 7 must be followed in the case of a
designation such as Palangio received, and therefore, the decision of the Company
cannot be subject of a grievance.
4.That said Article 28 provides, AIt is further understood that the Company reserves the
right to determine when it is necessary to see up a replacement for a superintendent
absent for a day or more@. The latter sentence emphasizes the Company=s sole
responsibility for making a decision in this regard.
5.The provision in Article 28 that the Company is compelled to pay a certain rate is
undoubtedly one by which the Company is bound under the Agreement, but this is not
inconsistent with its sole right to decide to whom the work shall be assigned.
6.There is no question that the grievance concerns a decision of management which is
beyond the scope of the Collective Agreement.. It was the sole prerogative of the
Company to designate any person it considered fit to act temporarily in the place of its
superintendent and the Union has no right to object.
I agree with the above and many of those comments apply in this instant matter. Further, the jurisprudence
issued after the above decision is consistent and supports that I lack jurisdiction to decide the three
grievances before me.
Accordingly, I find that the clear and unambiguous language of the collective agreement supports the
Employer=s preliminary objection. If there were an ambiguity in the language, the past practice prior to the
1990 negotiations would have been of virtually no assistance. The facts setting out the past practice as
agreed by the parties are consistent with each party=s view of the appropriate interpretation of the collective
agreement. The Employer=s policy was generally followed but there might have been variations and if there
were, the Union was unaware of them. Each party thought the collective agreement was being complied
with and had no knowledge that the other party had a different view. Where it is appropriate to utilize past
practice evidence to assist in determining the interpreting a collective agreement, that past practice must be
clear, unequivocal and both parties must have been aware of it. Such was not the case in the instant matter.
Similarity, in the event that I had determined it necessary to consider whether any representations were
made during the course of bargaining, the evidence regarding discussions at negotiations would not have
17
been helpful. That evidence revealed that there was no clear representation made by the Union. I believe
that Mr. Coones made the comments ascribed to him in Mr. Zacher=s notes. However, I would not have
found that those comments were a clear indication or representation to the Employer about the scope of
article 21.5( c). Indeed, my review of the evidence and Mr. Zacher=s notes would have led me to find that
the discussions held during bargaining were almost designed to avoid addressing the issue at hand. It was
not surprising that Mr. Zacher=s view of what was achieved at bargaining is completely opposite to that of
Mr. Coones.
Accordingly, the Employer=s objection is upheld and I find that I am without jurisdiction to hear and
determine the grievances. Therefore, the grievances are dismissed.
Dated in Toronto, this 13th day of February, 1998.
Felicity D. Briggs, Vice-Chair