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HomeMy WebLinkAbout1989-0048.Gordon.91-01-10 ONTARIO EMPt OYf~S DE LA COURONNE , , · CROWNEMPLOYEES DEL'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 178-SUITE2100 TELEPHONE/T~'£~cRHONE I80. RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG ;Z8 - BUREAU 2100 (416) 598-0688 0048/89 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES cOLLECTiVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Gordon) Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: N. Dissanayake Vice-Chairperson M. Vorster Member D. Clark Member FOR TEE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D. Gray EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: July 26, 1989 June27, 1990 2 DECISION This is a grievance dated February 17, 1989, wherein the grievor, Ms. Donna G. Gordon, alleges that the employer has contravened article 32.7 of the collective agreement by failing to assign her work hours according to seniority. Article 32.7 reads: Hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department. The evidence is that the collective agreement incorporating the foregoing provision was ratified sometime in late 1987. This followed an interest arbitration award handed' down by a Board chaired by arbitrator M. Picher. By a memorandum dated February 26, 1988 addressed to all store managers, warehouse supervisors and department heads, the Human Resources Director of the LCBO, drew. attention, inter alia, to the new article 32.7. Despite the ratification of the agreement and the memorandum, apparently not all stores in District 23 implemented article 32.7. This resulted in a memorandum dated December 8, 1988 addressed to all store managers in District 23, in Which the District Manager noted that it has come to his attention that some store managers were not' apply~ing+ the correct scheduling procedures for permanent.part time and casual employees. He emphasised that "If there are still hours available they must be offered to your most senior casual". The gr. ie~or commenced employment with the LCBO on November 8, 1980, at Niagara Falls. In August 1985 she transferred to Waterloo. Sometime thereafter her husband obtained employment at Mount Forest. In March Of 1987, the Manager of the LCBO Store # 302 in Mount Forest, Mr. Adam Jongkind, called the grievor and inquired if she would be interested in transferring to his store since her husband had been transferred to Mount Forest. At the time Mr. Jongkind 'informed her that another casual employee with two years seniority, Ms. Janet Logan, also worked at the store and that he had an obligation to give her some hours. He asked the grievor if she would mind sharing hours with Ms. Logan. The grievor testified that at the time it was rumoured~ that the Picher award was pending and that when it is issued it would provide some seniority protection for causal employees. Therefore s~e felt that given her length of service, work hours will not be a problem for her in the future. She agreed to share hours with the other casual. She testified that she expected to share 4 hours only until the Picher award was issued and that after that she would get "full hours" as the senior casual employee. After commencing employment at Store 302, the grievor noticed that the other casual was getting more hours assigned than she did. Several times she questioned Mr. Jongkind about this. The only response she received from Mr. Jongkind was that he was "being fair". In May or June 1988 the LCBO published seniority lists for casual employees at all of its stores in the region covering the period January 1, 1980 to December 3t, 1987. The grievor was at the top of the seniority lists in each of the five area stores, including Store 302. She had accumulated hours at the other area stores. because she was from time to time called in to work at those stores. Subsequently a number of permanent, part- time positions were posted in the area stores. She applied to a number of them, and commencing October 17, 1988 accepted a permanent part-time position within Store 302 itself. The next notable event was the posting of a full- time position at a LCBO store in Arthur in December 1988. 5 1988. The grievor applied but was informed in January 1989 that another more senior employee from the Fergus Store was the s~ccessful applicant. The grievor was surprised and wondered how the latter would have accumulated all those hours to be able to leap-frog over her in the seniority list. Upon inquiry she discovered that the Picher award had come down some time ago and that the successful employee had become more senior to the grievor because of the implementation of article 37.2 at the Fergus Store. Until that time, the grievor had been unaware that the Picher award had been issued. She was upset that other stores had implemented article 37.2, but it was not implemented at her store. She immediately raised her concerns with Mr. Jongkind. 'She then filed her grievance claiming a violation of article 37.2 for the period April 1988 to October 1988, the period during which she was employed as a causal, but was not assigned hours according t'o seniority. Under cross-examination the grievor testified that while she had hear~ rumours that the Picher award was "in the works" as early as 1984 or 1985~ she did not ask anyone in the union to inform her when it is issued. Nor did any union official take the initiative to inform the employees of the change resulting from the new article 32.7. Mr. Ron Hunter was employed at Store 302 and ~was the zone representative for the Union during the relevant period. He was aware that when the grievor came to Store 302 she had verbally agreed with the store manager to share hours with Ms. Logan. When copies of the new collective agreement became available, he glanced through it. He testified, however, that until the grievor talked to him on January 30, t989, it never dawned on him that the new collective agreement had any impact on the grievor's agreement to share hours. He admitted candidly that when the memoranda of February 26, 1988 and December 8, 1988, (suDra) arrived at Store 302 he initialled them to indicate that he had read them. However, he'took no action because the memoranda were addressed to managers and he was not a manager. From the memoranda Mr. Hunter understood that casual work hours are required to be assigned according to seniority~ He took no action to inform the .grievor of her rights, nor did he raise the issue with the manager, because as far as he was concerned there was an agreement to share hours between the grievor and the manager and "everything seemed to be going satisfactorily". It was only in January 1989'when the grievor brought the matter to a head, that Mr. Hunter realized that there was a problem. Counsel for the Employer raised four defences against the grievance~ (a) That the grievance is untimely. (b) That the grievor and the Union were estopped from pursuing rights under article 32.7. (c) That in any event, there had been no breach of the article. (d) That even if there had been a breach there is no proof of any compensable loss. Timeliness' The following articles relating to timeliness of grievances are relevant. 27.3 (a) (i) An employee who has a complaint or a difference shall discuss the complaint or difference with his supervisor, as designate~ by the Boards,. within ten (10) days of the emDloyee first becomin~ aware of the circumstances ~ivin~ rise to the complaint or difference. (emphasis added) 27.8 The Union shall have the right to lodge a grievance based on a difference arising directly with the Boards. However, such a grievance shall not include any matter upon which an employee is personally entitled to grieve. Such grievance shall first be presented, in writing, to the Boards within twentv ¢20) davs of the circumstances ~ivinq rise to the grievance. A meeting between representatives of the Union and the Boards will be held within ten (10) days of receipt of' the grievance. The grievance shall be answered in writing by the Boards within ten (10) days o~ such meeting, following which or failing settlement of the grievance, the Union may submit the grievance to the Crown Employees Grievance Settlement Board within a further period of ten (10) days. (emphasis added) The Union concedes that the time limits in the agreement are mandatory. The issue between the parties on the timeliness question is clear. The Employer takes the position that the ten days referred to in article 2~.l.(a) (1) began to run when the grievor became aware that she was the senior casual and that hours were being assigned ko another casual employee with lesser seniority. The Union disagrees. According to counsel, before time begins to run, the grievor must not only be aware that she was not getting all the casual hours, but that she had a right to those hours under the collective agreement. It was only in January 1989 that she discovered that the Picher award had been issued and article 32.7 had been incorporated'in the new collective agreement. It was only then that time began to run against her. Counsel were unable to direct the Board to any jurisprudence on the timeliness provisions in the collective agreement between these Parties ("LCBO agreement"). However, our attention was drawn to Board awards interpreting the ·timeliness provisions in the collective agreement, between the' Crown in Right of Ontario and the Ontario Public Service Employees Union ("OPSEU agreement"). The relevant timeliness provisions in the OPSEU agreement are as follows: 27.2.1. An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twent~ (20~ d~¥s of first becoming aware of the complaint or difference. (emphasis'added) 27.12.1 Where 'any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty ~30) days followin~ the occurrence or origination of the circumstances Giving rise to the ~rievance. (emphasis added) The Board's approach to the proper interpretation of article 27.2.1 of the OPSEU agreement as to when time begins to run has not been consistent as to the significance of the employee's subjective awareness of .the right to file a grievance. However, at the time 10 this hearing was concluded, the DivisiOnal Court had heard an application for judicial review of the Board's decision in Re Veronica Pierre 0492/86 (Verity) where the Board had dealt with this very issue. Immediately after hearing the application on July 11, 1990, the Court had endorsed the record, unanimously finding that the Board had correctly interpreted article 27.2.1. This endorsement was confirmed in a written decision of Court issued on September 5, 1990. It is useful to set out first, the following passages from the Board's de~ision in Pierre (pp. 13- 16): The parties differ on the precise time the 20 day period begins and the clock starts to run. The Employer maintains that the grievor-ought to have be~n aware of her right to file a grievance following the testing in February or the events in November, 1985. Mr. Benedict argues that ignorance of the right of file a grievance is no excuse and that the individual grievance filed in March of 1986 was Well beyond the mandatory time limits. The Union alleges that the grievor was unaware that the events surrounding her concerns could be the subject matter of a grievance- until she spoke with Union Representative Brian McMullan in late February, 1986. Mr. Stoykewych contends that the grieuor properly filed the grievance within the 20 day period. The language of the Collective Agreement appears to provide two quite separate and distinct procedures for the filing of individual grievances on the one hand, and the filing of union grievances on the other. In individual grievances, Article 27.2.1 States that the employee "who believes he has a complaint or a difference" shall raise it with his supervisor "within 20 days of first becomin~ aware of the complaint or difference (emphasis.added). What is required on the part of the e~ployee to comply with the mandatory 20 day time limit, is knowledge or awareness that there has been a violation or a possible violation of the provisions of the Collective Agreement. Article 27.2.1 contemplates the knowledge on the part of the employee - a subjective concept. Vice-Chairman Samuels makes that point in OPSEU CP. Mitchell and Union Grievance) and Ministry of. Government Services, 1614/85 and 1615/85. at p. 6: "Article 27.2.1 establishes a time limit which does not begin t~ run until the employe% first becomes aware of the complaint 6r difference. And the words 'complaint or difference' refer to 'complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement'. (Article 27.1). In other words, the time does not begin to run until the°employee is aware that there is a complaint or difference under the collective aqreement. Her complaint or difference in this sense is not being declared surplus, or being laid off,. but her feeling that she has not been treated according to the collective agreement." On the other hand, in the filing of union grievances under either Article 27.8.1 or 27.8.2, there is no subjective component. As Arbitrator Brandt observed in OPSEU ~Union Grievance) and Management Board of Cabinet, 1546/85 at p. 5 in referring to the filing of union grievances: "Knowledge or awareness of the violation is not the appropriate basis on which to assess the beginning of the time period." Article 27.8.1 provides for the filing of a union grievance within 30 days "following the occurrence or origination of the 12 circumstances giving arise to the grievance". Similarly, Article 27.8.2 contains the identical requirement in providing a 60 day time limit for filing a union grievance affecting multiple Ministries. In the instant matter, the evidence is uncontradicted that the grievor first became aware of her right to file a grievance only when she spoke with Chief Steward McMullan on February 25, 1986. On the evidence adduced, the Board does have some concern with the grievor's testimony that she first learned of the events surrounding this matter in November 1985. The evidence of Mrs. Clark and Mrs. Shrader would indicate otherwise. However, the date the grievor learned of the events or circumstances giving' rise to her grievance (whether in February or November, 1985) is not the determining factor. The Board finds as a fact that prior to February 25, 1986 the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the Collective Agreement. The Board cannot find that the preliminary objection has merit. Accordingly, we do find that the grievance was filed in a timely fashion. The Divisional Court's endorsement dated July 11, 1990 which upholds the foregoing decision of the Board reads as follows: We are all of the view that the Board was correct in its conclusion that the 20-day time period within which the grievor had to bring her grievance, began to run only when she became aware that she had a complaint that was based on a violation or possible violation of the collective agreement. In our view, the 'complaint or difference' referred to in Article 27.2.1 of the collective agreement is the same kind of complaint(s) or difference(s) mentioned in Article 27.1, that is to say a complaint or difference between the parties arising form the interpretation, application, administration or alleged contravention of this agreement, including any question as to whether a matter is arbitrable'. 13 The grievor knew at least by-November, 1985 that she was unhappy about a possible exposure to T.B., but she was not aware until late February, .1986 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement. Until she became so aware she could not have believed she had such a complaint. It is implicit in the reasons of the Board that the grievor first became aware that she had a complaint based on a violation or possible violation of the collective agreement on February 25, 1986 when her Union representative told her she could file a grievance. The grievor filed her complaint on March 4, 1986 well within the 20-day time limit for doing so. The words 'believes' and 'becoming aware' found in Article 27.2.1 clearly establish that it is only the subjective awareness of -the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running. Having found the Board was correct in its interpretation of the collective agreement, it is not necessary for us to decide whether this application would also have failed if it could be said that the interpretation placed on the agreement by the Board was not patently unreasonable. The application is dismissed with costs to the Union. Presumably neither counsel was aware of the foregoing court endorsement at the time they made their submissions before us. Neither made reference to it, although the Board's decision itself was relied on by the Union. However, the Court has spoken in a very authoritative and convincing manner on an'issue which is very similar to the one under consideration here. In the circumstances, in the absence of very convincing reasons, the Board must follow the opinion of the court. A comparison of article 27.3(a) (1) of the LCBO agreement with article 27.2.1 of the OPSEU agreement discloses that the two provisions are very similar, although not identical. In our view, unless the differences in wording are such as to'make the interpretation placed on article 27.2.1 of the OPSEU by the Board, and approved by the Court, inapplicable, the Board must follow that interpretation in regard to article 27.3(a) (1) of the LCBO agreement also. The critical words which were interpreted by the Board in Pierre are "within twenty (20) days of first becoming aware of the complaint or difference". The Board held that the required awareness included the knowledge or belief that "her concerns were amenable to resolution under the collective agreement." Accordingly it was held that the time limit did not begin to run against the grievor until she was advised by her chief steward that she had a right to file a grievance. The Court, found that the Board was correct in its interpretation. 15 In the LCBO agreement the critical language is "within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference., The issue then is the significance, if any, of the addition of the words "the circumstances giving rise to" in the. LCBO agreement. In our opinion those words do not change the meaning of the article. As under the OPSEU agreement, the "complaint or difference" referred to in article 27.3(a) (i) must be a complaint or difference un6er the collective agreement. In our view, the "circumstances" giving rise to such a complaint or difference are two fold. First, there must be a right under the collective agrement. Second, there must be an act 6r omission by a Party to the agreement which the other party feels has abridged or contravened that ~ight. Before an employee can be said to have become aware of "the circumstances giving rise to the complaint or difference" under article 2'7.3(a) (i), he or she must be aware of both the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the parties, by alluding to the employee's awareness, have intended to introduce a subjective test. The intent is that an employee must act expeditiously once he or she becomes aware that a right under the collective agreement may have been contravened. 16 The distinction drawn between individual and union grievances in the OPSEU agreement, is paralleled in the LCBO agreement. Under article 27.8, Union grievances, must be filed "within twenty (20) days of the circumstances giving rise to the grievance". There is no reference to awareness of anything on the part of the Union. In other words, there is no subjective test. As long as right under the agreement exists and facts forming a possible violation of that right occur, time begins to run against the union, regardless of any subjective knowledge on the part of the Union. On' the facts before us, the grievor had concerns about Ms. Logan being assigned work hours. She was also anticipating that a change to the collective agreement which would give her entitlement to those hours. However, until January 1990, She did not become aware that a right under the collective agreement had in fact come into existence. To borrow from the Board's decision in Pierre, until January 1990, "the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the collective agreement". It is not in dispute that the grievor filed the grievance within ten days of becoming aware of the existence of a right under th~ collective agreement. 17 The Board sees me~it in the Employer's submissions that it does not make good sense policy wise to allow the grievor to plead what 'is akin to. a plea of "ignorance of the law". We also agree that the Union, particularly at the local store level, had not communicated effectively with its members as to their rights under the new collective agreement. This is particularly so because the zone representative was aware of the grievor's verbal agreement to share hours. Some diligence on the part of the Union and the grievor, would have prevented the delay in filing this grievance. However, the fact is that. this Board's mandate is not to make what it considers to be sensible o~ reasonable policy. Our jurisdiction is to determine grievances by applying the terms agreed upon by the parties. The Court has ruled on the meaning of the OPSEU agreement's provisions and we do not find the corresponding provisions in the LCBO agreement to be different in any material way. Therefore, the Board's obligation is to apply the intent of the collective agreement. For all those reasons, the Board finds that this grievance was filed in timely fashion. 18 Estoppel In the context of a collectfve agreement, one of the key requirements for the application of the doctrine is that one party, by words or conduct, has made a representation that its strict rights under the collective agreement will not be enforced, intending that the other party will rely on that representation. See, Re O.P.S.E.U. (1987~, 28 L.A.C. (3d) 10 (Saltman) and Re Southern Murray Printing (1986) 24 L.A.C. (3d) 76 (Swan). Article 32.7 confers certain rights on casual employees. Under. article 27.3(a) (i) the right to file an individual grievance is conferred on "an employee"° It follows that the onus of filing such grievance in a timely manner is also on the employee. In the circumstances, any estoppel must be established against the employee, in this case, the grievor. The grievor could not have made any representation about waiving a right, the existence of which was not even within her knowledge. Therefore the estoppel argument fails. Breach of article 32.7 Counsel for the Employer submits that the article merely requires that hours of work be allocated according to the seniority of the casual employees and does not specify that the more senior employee gets all 19 the available hours or some additional hours. Counsel submits that the article is meaningless or at least imprecise. Since hours were allocated according to an agreement with the grievor, Counsel submits that arti~l~ 32.7 was complied with. We see no merit in this argument. The words "according to seniority" are significant. It is an indication of priority to the senior employee in allocating hours. While the language used is not as specific or precise as may be desirable, its intent cannot be in doubt. If there is an ambiguity, the Picher award clarifies that. Moreover, the evidence clearly indicates what the LCBO management understood its obligation under article 32.7 to be. The directive dated December 8, 1988 from the District Manager to the Store Managers clearly states that "If there are still hours available they must then be offered to your most senior casual". The evidence indicates that this directive was followed by the Employer at other stores· There can be no doubt that the Employer at Store 302 failed to apply article 32. 7 to tha grievor. Proof of Loss The Union filed in evidence a record of hours worked by the grievor and the other casual employees at 20 Store 302 during the period April 1 to October 17, 1988. The griavor testified that she calculated on the basis of these records that she had lost a total of 316 hours as a result of the Employers' failure to apply article 32.7 to her. She did this by examining hours she worked each week and adding up the number of hours she would have worked to bring her to 40 'hours each week, where additional hours had been worked by other less senior casual employees. She testified that the loss of hours also affected her benefits entitlements such as vacation pay and holiday pay. Counsel for the Employer argues that the grievor has not adduced any proof of actual loss of any hours. He points to the evidence that the grievor was called by otker stores from time to'time to work. She did those additional hours. Therefore, Counsel argues that there is no proof that, had she been offered more hours at Store 302, she would have been willing or able to do any of those hours. He~ calculation, counsel submits, is based'on an ex-post facto r~tion~lization that she would have worked every hour offered up to 40 hours each week. He submits that there is no proof of that. The grievor testified as to her estimate of loss based on the record of hours worked by the various 21 casual employees. There was absoIutely no cross- examination of the grievor as to the number of hours or her ability to work those hours. The obligation on the Employer is to "allocate" or offer work hours' to the senior causal employee. It is after the offer is made that the employee can assess her personal circumstances to decide whether to accept the hours. Having denied the grievor that opportunity to make that decision through its breach, the Employer is not entitled to require that the grievor prove affirmatively, with respect to each work hour, that she would have worked it had she been offered. If the Employer was aware of any circumstances that would have put into question her availability or willingness to do those hours, it was incumbent upon the Employer to pursue ~hat through cross-examination or to lead its own evidence. The Employer did neither. In these circumstances, the Board accepts the grievor's evidence as to lost hours, subject only to the accuracy of the arithmetical calculations. Summary In summary, the Board: (1) Finds that the grievance is timely and therefore arbitrable. 22 (2) Finds that the doctrine of estoppel does not apply in the circumstances of this case° (3) Declares that the Employer contravened article 32.7 by failing to allocate hours to the grievor according to seniority. (4) Finds that as a result ~f the contravention the grievor lost hours, being the difference between 40 hours and the actual hours worked .by the grievor each week, provided such additional hours were worked by casual employees less senior to the grievor. By way of remedy, the Employer is directed: (1) to credit the grievor the hours lost as a result of the contravention, for all purposes under the collective agreement, including senlority. (2) to compensate the grievor for all monetary losses resulting from the contravention° The Board remains seized in the event the parties have difficulty in implementing this decision. 23 Dated this 10th day of danuary1991 at Hamilton, Ontario N. Dissanayake Vice-Chairperson ^ M. Vorster Member "I DISSENT'' (Dissent attached) D. Clark Member GSB# 48~/89 OLBEU (Gordon) and Liquor Control Board of Ontario DISSENT In my opinion, Article 27.3 (a)(i) of the LCBO agreement is very different from Article 27.2.1 of the OPSEU agreement. The OPSEU language states that "An employee who believes he has a complaint or difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint dr difference". In the Pierre case, that Board concluded that there had to be a knowledge or belief that the grievor's concerns were amenable to resolution under the collective- agreement. I see' no such requirement in the LCBO collective 'agreement. The LCBO language simply requires that "An employee who has a complaint or difference shall discuss the complaint or difference with his supervisor ... within ten (t0) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference" To me, circumstances giving rise to the complaint or difference (LCBO language) is quite different from believing you have a complaint or difference (OPSEU language). If the time limits are mandatory, when does the clock begin to run in the LCBO agreement? It seems to me that it is within 10 days of the employee first becoming aware of the circumstances giving rise to the complaint or difference. In this case it would be when the grievor first became aware that hours were being assigned to another casual employee with less seniority than her. This language does not speak of an employee's awareness or belief of any terms of the collective agreement alleged to be violated. In my opinion, the time starts when the employee first becomes aware of the facts giving rise to the matter. The language 'used in the LCBO agreement is, for whatever reason, different from the language used in the OPSEU agreement. As Vice-Chairperson 'Dissanayake pointed out in this award (page 17), our jurisdiction is to determine grievances by applying the terms agreed upon by the parties. Based on my reading of the LCBO language, I would have dismissed the g~ievance as being untimely. Don M. Clark, Member Dated this lO[h day of 3anuary199t at Hamilton, Ontario N. Dissanayako Vice-Chairperson M. Vorster Member "I DX$SEItT" (Dissent attached) D. clark Member