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HomeMy WebLinkAbout1991-0462.Croghan et al.92-09-15 ONTAR/O EMPL 0 YES DE LA COURONNE CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;~80 DUNDAS STREET WEST, SUITE 2'100, TORONTO, ONTARIO, M5G 1Z8 TELEPt'~ONE/TELEPHoNE. (4 16) 326~ 1388 ~80, RUE DUNDAS OUEST, BUREAU 2 TOO, TORONTO (ONTARIOJ. M5G '1Z8 FACSI~'.,.flLE/TLSL~COPlE : (4 16) 326-1396 462/91, 463/91, 464/91, 465/91, 466/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV~NC~ SETTLEMENT BOARD BETWEEN OLBEU (Croghan et al) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: M. Gorsky Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE S. Gleave EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 3, 1991 March 6, 1992 June 12, 1992 1 DECISION The Grievors, Linda Croghan, Corinne Jolliffe and Michael Pigeau, were at all material times employed by the Employer in stores located in District 24 of the Northern Region (#1) of the Liquor Control Board of Ontario, which covers an area between Huntsville in the south and Temagami in the north, and between Verner in the west and Mattawa in the east; the District headquarters being located in North Bay. The Employer operates 20 stores within District 24 and the District Manager is Robert Sasso, who is responsible, along with his other duties, for the appointment of Acting Store Managers and Summer Store Managers. In 1991, in the cas~ of the stores with which the grievances before us are concerned, when appointing employees to temporary vacancies as Acting Store Managers or Summer Store Managers, the Employer appointed the most senior qualified employee who worked in the store where the vacancy existed. The Employer did not offer the positions to regular part-time or fUll-time employees, wherever they might be working within the District, before offering such positions to the most senior casual employee working in the stores with which we are concerned. In the cases with which we are concerned, there were only casual employees employed in the stores when the appointments complained of were made. 2 The Grievor, Linda Croghan, was at all material times a permanent full-time employee and worked in Store ~ 363 located in North Bay. Her seniority dates from July 3, 19~4, when she became a permanent employee. The Grievor, Michael Pigeau, was at all material t~mes employed as a permanent full-time employee at St.o~e ~ 54 in North Bay. His ~eniority dates from May 5, 1980, when he became a permanent employee. The Grievor, Corinne Jolliffe, was at all material times employed as a casual employee at Store no. 159 in South River, Ontario. Ms. Jolliffe was Shown to have accumulated 6,844 hours of seniority as a casual employee on Exhibit 8, which is entitled "Liquor Control Board of Ontario Casual Seniority Report from January 1, 1980 to Present." The "run date" shown on Exhibit 8 is February 28, i991. There are five grievances before us: 1. Ms. Croghan filed a grievance (Exhibit 1) dated March 19, 1991, where the "Statement of Grievance" provides: Letter of agreement. (Re) Tempi replacement of Store Manager. Page 129. Sec.21.5(c) & any other provisions that may apply. Under "Settlement Desired" the Grievor stated: For the collective agreement 'to be adher~d to ax written. It was acknowledged that the above grievance arose as a result of a temporary vacancy created when George Wilson, the Store Manager at Store ~ 235, Powassan, Ontario, was promoted to the position of "C" Store Manager, Store % 464, Schreiber, OntarJ. o, effective January 14, 1991 (Exhibit 3). As a result of Mr. Witsom's promotion, a position posting (Exhibit 4) took place on January 3, 1991 in order to fill the position which was that of Store Manager, classified as Liquor Store Manage~ 1. The successful candidate, Tom O'Connor, was appointed to the posit~on effective February 25, 1991. This grievance concerns Ms. Croghan's claim that she was entitled to fill the position of Manager' on an acting basis for the approximate five week period during which no permanent appointment had been made. Instead, the Employer appointed a casual employee, Ms. Latour, to fill the posit~on. Store # 235 has a normal complement of one permanent full-time employee (the Manager) and two casual employees, who were Ms. Latour and a Ms. Williams, with MS. Latour having greater seniority. 2. Ms. Croghan also filed a grievance (Exhibit 6) on April 15, 1991, the "Statement of Grievance" being the same as in the above grievance with the "Settlement Desired" also being the same except for the addition of the words "monetary~ settlement." 4 It was agreed that this grievance conceraed the Employer's alleged violation of the collective agreement in failing to appoint Ms. Croghan to the position of Summer Store Manager for the period April 9, 1991 to December 31, 1991 at Store # 613, Sundridge, Ontario. Summer stores operates on a seasonal basis, and it is within the discretion of the Employer to decide whether a store will be opened. When the Sundridge store is opened on a seasonal basis it operates with one employee as Acting Manager along with two employees from the casual classification. In 1991, the Employer appointed as Acting Manager a casual employee, Rhoda McCabe, who was present and participated in the hearing, after receiving notification of her right to do so. Ms. McCabe was the most senior casual employee assigned to Store ~ 613 and had been employed there for many years. Three casual employees were assigned to work at Store ~ 613, there being no permanent full- or part-time employees so assigned, with one of them serving as Manager. The seniority list filed with respect to casual employees (Exhibit 8) indicated that Ms. Jolliffe had approximately 2,000 more credited hours than did Ms. McCabe. The appointment of Ms. McCabe was announced on March 27~ 1991 in a circular to all store managers and staff (Exhibit 9). The notice states that the duration of the appointment as Acting Manager at Store # 613, Sundridge, would be from April 9, 1991 to December 31, 1991. 5 3. Mr. Pigeau, also grieved the appointment of Ms. ?lcCabe, his grievance (Exhibit 10) being filed on April i5, 199!, w~th the "Statement of Grievance" and "Settlement Desired" being in essentially the same form as that in Ms. Croghan's grievance. 4. Ms. Jolliffe, also filed a grievance with respect to her not being given the temporary appointment as Summer Store Manager in Store i 613, Sundridge, her gr£evance (Exhibit 12) being dated April 8, 1991, which grievance is essentially in the same form as those of Ms. Croghan and Mr. Pigeau. Ms. Jolliffe's grievance is based on her having greater seniority than Ms. McCabe. It was acknowledged that there was one other casual employee who had greater seniority than Ms. Jolliffe, Who did not grieve. In the case of Ms. Jolliffe, the Union's position was that if the E~ployer could award the position to a casual employee, which right the Union did not accept, then it had to do so by first offering the position to the most senior qualified and available casual employee in the District, who was Ms. Jolliffe. 5. On April 15, 1991, Ms. Croghan als° filed a grievance (Exhibit 15) similar to that filed by her with respect to the temporary a~pointment of the Summer S~ore Manager in Store i 613, Sundridge, Ontario. The grievance related to the S~nmer Store Manager position . at Store ~ 595, Dunchurch, Ontario, where the appointment ~as for the period May 6, 1991 to November 16, 1991. The staffing at the Dunchurch store was the same as that of the Sundridge store. The 6 person appointed as Acting Manager for the period in dispute was a casual employee, Donna Arthurs, who was present at and participated in the hearing upon notice having been given to her of her right to do so. Ms. Arthurs' seniority was shown as being 9,200 hours at the time the seniority list with respect to casuals was made up (Exhibit 14). Ms. Arthurs had worked as a casual employee in the Dunchureh store in previous years and had also served in the capacity as Acting Manager. Mr. Pigeau had more seniority than Ms. Croghan. The Union's position was that Mr. Pigeau, being more senior to Ms. Croghan, was entitled to appointment to the Sundridge store and Ms. Croghan was entitled, if the position of Mr. Pegeau was accepted, to appointment to the Dunchurch store. At the relevant times there was no requirement to post temporary vacancies and there was no formal application procedure applicable where such pos. itions were to be filled. It was also acknowledged that casual employees work in the capacity of Acting Store Managers for as little as three hours in the absence of the Store Manager. Counsel for the Union relied upon the provisions of art. 21.5(c) of the collective agreement: (c) In filing temporary vacancies (includin9 summer stores) which will last five {5) working days or more, the Employer shall appoint the most senior employee in the department or section involved, provided the employee is qualified and available to perform the work. However, the minimum requirements of five (5) days shall not apply in the case of stores. It was her position: (1) that the only employees to whom art. 21.5(c) applied were members of the permanent staff, tk. at is, permanent full- time and permanent part-time employees, which limitation would preclude the Employer from appointing casual employees to fill temporary vacancies without first offering the position to permanent employees in order of seniority. (2') That "department or section" referred to in art. 21,5(c) encompassed all of District 24. It was the further position of counsel for the Union that rights of casual employees under the collective agreement were limited, and that in the absence of a specific reference in a provision that,it applied to casual employees, it did not do so. Counsel for the Union referred to the three categories of employees recognized in the collective agreement; Permanent full-time, whose seniority under art.4.1{a) is calculated "from his first day of work of his most recent appointment to the permanent full-time staff of the Employers." 8 2. Permanent part-time, who, pursuant to art. 36.1(a) of the collective agreement, accumulate seniority upon completion of a probationary period calculated from "his first day of work of his most recent appointment to the permanent part-time staff of the Employers." Pursuant to art. 36.1(b) "seniority based rights under the Collective Agreement ... for Permanent Part-Time employees will be calculated'on hours worked .... " 3. Casuals, who accumulate seniority, pursuant to art. 31.5(a): "on the basis of total hours worked." Seniority is "calculated from his first day of work of his most recent date of hire." Counsel for ~the Onion argued that the collective .agreement did not afford any seniority rights to casual employees under art. 21.5(e). This was said to be because the collective agreement is specific about the application of seniority in the case of casus1 employees, how it is accumulated and for what purposes. Counsel for the Union also relied upon the provisions of art. 29.1 of the collective agreement. 29.1 The EmpLoyers agree not to utilize permanent part- time employees or casuals to replace permanent full-time employees. Nor will the Employers utilize casuals to replace permanent part-time employees. Any utilization as referred to in this article will not adversely affect job training opportunities for permanent full-time or permanent part-time employees. 9 Counsel for the union argued thlt this article prohibited the use of casual employees to replace permanent employees and to interfere with the job training opportunities. It was argued that the opportunity for a permanent employee to act as a manager represented a training opportunity for advancement to a more responsible position. Counsel for the Union also relied on a letter of agreement found at p.129 of the collective agreement entitled, "Temporary Replacement of Store Manager" which is as follows: Where it is decided that 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. Counsel for the Employer regarded the language of art. 21.5(c) as being clear and as indicating that: "A store is just another department." He regarded the last sentence of art. 21.5(c): "However, the minimum requirements of five (5) days shall not apply in the case of stores" as indicating that the article assumed that a single store represented a department. Counsel for the Union undertook a :painstaking and meticulous review of the collective agreement in an attempt to demonstrate how~ it limited the application of seniority rights in the case of casual employees with a view to supporting her position that art. i0 21.5(c) did not apply to casual employees. Some of the articles referred to by her were: art. 1, art. 2, art. 3, arts. 4-18, art. 21, art. 31. Counsel for the Union made extensive reference to art. 31 of the collective agreement dealing with "casuals." That article has a form of preamble: The provisions of this Collective Agreement shall apply to casuals except with respect to the following modifications and exceptions listed in Article 31.3. Article 31.3 of the collective agreement provides: The following Articles shall not apply to casuals: Articles 4 to 18 inclusive, 20, 22, 24, 26, 30, and 33 to 48 inclusive. The application of Article 21, Assignments & Job Postings is limited by the provisions of Article 31.4, below. Article 31.4, which limits the application of art. 21 in the case of casuals, provides: (a) Casuals shall have the right to apply for certain permanent part-time positions in accordance with the provisions of Article 21, Assignments & Job Postings. However, except as noted in Article 21.5(b) (special merit promotion), they shall only be eligible to apply for vacancies within their geographic areas if there is no permanent part-time employee promoted in accordance with Article 21.5(a). (b) The Employer agrees to give consideration to the qualifications and ability of Casuals for Permanent Full-Time vacancies at the entry level in their geographic area, provided that no Permanent Part- time employees have applied. Where qualifications and ability are relatively equal, seniority shal! be the determining factor. Art~ 31.5(a) of the collective agreement provides: For the purpose of Articles 3t.4, 31.7 and 21.5(b), the seniority of a casual employee shall be calculated from his first day of work of ~sis most recent date of hire on the basis of total hours worked, but no seniority shall accumulate, in any calendar year in which a casual works less than 400 hours. A seniority list of the casual employees assigned to work unit or department shall he posted twice a year. Art. 1.1(b) states: (b) Solely for the matters dealt with in Article 31, Casuals, the Employers recognize the Union as the exclusive bargaining agent for employees employed as casuals. Counsel for the Union argued that the latter article reinforced the intention in the agreement to restrict the rights of casual employees to those instances where rights were specifically granted, and was consistent with the provisions of many of the other articles relied ugo~ hy her which did not recognize the seniority rights of casuals. We would observe that art. 31. states that the provisions of the collective agreement apply to casual employees "except with respect to the,following modifications and exceptions listed in art. 31.3." We are therefore left to conclude that the parties meant all of the provisions of the agreement to apply to casuals unless there was some specific indication to the contrary. Although art. 31 makes the application of th~ collective agreement to casuals subject to the "modifications and exceptions" listed in Article 31.3, we can examine the other articles of the collective agreement to see if they have also made the application of the agreement to casuals subject ~o them. In the absence of clear language to the contrary, we must follow the requirement of art. 31 to which we are directed by aft t.1 (b). Article 21 is, by art. 31.3, made subject to the limitations set out in the provisions of art. 31.4. Article 31.4, while it limits the application of art. 21 in certain respects, does not do so with respect to the application of art. 21.5(c). Art. 31.3 does not say that the application of art. 21 is limited to certain rights spelled out in art. 31.4. Rather, it provides that the application of art. 21 is limited by the provisions of art. 3t.4. Accordingly, art. 21.5(c) must be found to apply to casuals unless there is some other clear indication, elsewhere in the collective agreement, that this is not the case. As noted above, counsel for the Union made a very detailed argument based on a careful analysis of many of the provisions of the collective agreement, with a view to establishing that casual employees only have seniority rights where such rights are specifically granted. For the reasons given above, we find that art. 21.5(c) also 'applies to casual employees. Where the application to a particular group of employees is unclear from a reading of an article, it may be necessary to rely on various rules of interpretation for the purpose of finding the existence of an inference supporting a particular meaning. Notwithstanding counsel for the Union's most impressive a~gument: (1} as the provisions of art. 21.5{c) have been specifically made applicable to casual 13 employees by art. 31; (2) as art. 21 was not made inapplicable by art. 31.3; and (3) as the limited application of art. 21, provided for in art. 31.3, did not include art. 21.5(c), we are unable to accept her conclusion. Counsel for the Union relied upon Re Hotel Dieu of St. Joseph's Hospitals Windsor and Service Employees' Union, Local 210 (1990), 11 L.A.C. (4d) 151 (Rose). In the Hotel Dieu case, the union claimed that the employer violated a provision of the collective agreement when it awarded the position in dispute to & part-time employee outside of the bargaining unit. The union argued that the employer was required 'to consider barqaini~g unit members first when filling job vacancies and only if a suitable candidate was not available could it cOnsider employees outside the unit. The majority of the board concluded, at p.t57, that in the absence of an express provision they were unable to agree that it was implicit in the article dealing with promotions that e~ployees outside the bargaining unit, whether union employees in another bargaining unit or non-union employees,'"have been given equivalent job rights to the employees in the bargaining unit covered by the ... collective agreement .... " For the reasons above given, we cannot regard the casual employees as being similarly situated to the employees referred to in the Hotel Dieu case for the reasons above given. 14 Counsel for the Employer referred to the Reference Index in the document containing the collective agreement, which Index is found at pp.i48-9. In the Reference Index the articles of the collective agreement are listed followed by a statement of the subject. On the right hand side of the page are the words "full- time," "part-time," and "casual." X's are placed opposite a particular article under either "full-time," "part-time" or "casual" when the parties intend that article to apply to the class of employee, whether full-time, part-time or casual. In the case of art. 21, X's are placed in the space provided for "full-time", "part-time" and "casual" employees. While the Reference Index cannot alter the meaning of the language agreed to by the parties, where the IanguaBe is equivocal, or unclear, the Index furnishes some indication that the parties, in placing an X under "casual" opposite art. 21, intended to clarify any ambiguity or lack of clarity that might exist in interpreting any part of that article and its application to casuals. There was no dispute between the parties that art. 21.5(c) was the relevant article affecting all of the grievances, and that its application was not limited merely to temporary vacancies in summer stores. It was also agreed that the vacancies with which we were concerned were temporary vacancies and therefore covered by that article. 15 AS we have found that casual employees are not excluded from the provisions of art. 21.5(c), the next question to be decided is what is the meaning of the words, "the department or section involved." Because the Board is required to substitute words for the reality of the day-to-day operations of the Employer, ~here is a danger that in using words we will lose sight of reality. Accordingly, we must endeavor, throughout our decision, to test the words chosen by us to reflect reality against that reality. When the parties negotiated the collective' agreement, they must have been aware that there are districts, such as District 24, which cover a large geographic area where !the distance between some stores can be.considerable. This realitY must have been in their minds when they drafted art, 21.5(c). ! in the absence of a clear indication within that article as to the meaning of "department or section," we can examine the purpose behind the article. It was to enable the Employer to fill temporary vacancies, sometimes for very short periods of time. Any interpretation that would, in many cases, make the realisation of that purpose unlikely ought to be rejected unless the language of the agreement makes it clear that the parties had agreed to it. We note that "the minimum requirement of five days [does] not apply in the case of stores," and it was acknowledged by the parties that article 21.5(c) could apply, for example, to a store where there was a temporary vacancy of as little as three hours. This would mean, if the Un~on's 16 interpretation was accepted, that the Employer would have 'to offer the temporary vacancy in a store to the "most senior [permanent] employee" in District 24 who was qualified and who might be available. This would place .the burden on the Employer to conduct a search for the most senior employee in the District, communicating with that employee and then, if she was not interested in accepting the temporary appointment, going to the next qualified and possibly available employee within the District, and so on. There was nothing to stop the parties from agreeing to such a provision, and they can still do so. However, to accept the interpretation of the Union would create a situation that would border on the unworkable. It might work in some cases, but it is evident that it could create chaos in others. There is also some support for the Employer's position found in the collective agreement. In art. 21.5(c) there is some indication that a store is a department. This is seen from the last line of art. 21.5(c) which states: "However, the minimum requirements of five (5) days shall not apply in the case of stores." It is difficult to interpret a store as being a department or section and, at the same time, interpret the district where the store is located as also being a department or section. It would appear that a department might encompass other establishments operated by the Employer within a district, but it 17 is inconsistent, having employed the language found in the article, to then argue that department also means district. Article 3.7 of the collective agreement provides: The Union shall supply to the Employer a list ccntaining the names of Zone Representatives, Stewards, and Employee Representatives, their store or department numbers and the numbers and locations of the stores or departments for which they are responsible. Changes to this list shall be in writing as they occur. In this article the parties have used the term department in such a way as to make it inconsistent with its being regarded as encompassing the entire district. Art. 6.2(a) provides: (a) The Employers shall prescribe the number of hours in each working day not exceeding eight (8) hours for the various departments or establishments of the Employers. Normal hours of work will be as follows: (i) Stores: 9:00 a.m. to 6:001p.m. (day shift) 2:00 p.m. to 9:00 p.m. (second shift - 9, p.m. closing) 3:00 p.m. to 10:00 p.m. (second shift - 10:00 p.m. to closing) +5:30 p.m. to 12 midnight (second shift-midnight closing) +No fifteen (15) minute rest periods (ii) Warehouses: 8:00 a.m. to 4:00 p.m. (day shift) No fifteen (15) minute rest periods during the afternoon 4:00 p.m. to 10:30 p.m. (night shift) No fifteen (15) minute rest periods (iii) LCBO/LLBO Head Office and Warehouse Offices (Monday through Fjiday, inclusive): Between 7:30 a.m. ~and 9:30 a,m. to between 3:30 p,m. and 5:30 p.m. 18 (iv) Toronto Airport Stores: 6:00 a.m. to 1:00 p.m. 8:00 a.m. to 4:30 p,m. 1:00 p.m. to 8:00 p.m. 2':00 p.m, to 9:00 p.m. 4:00 p.m. to ii:00 p.m. The use of the word "departments" in that article is inconsistent with equating it with all of a district. The use of the word "dEpartments" is restricted to various places ("establishments") where the Employer carries on business within a district. Art. 31.7 provides: Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department. It appears from the above article that department, being equated with a work unit, would cover such work units as stores, warehouses, head office and warehouse offices. We do not regard the letter of agreement, above quoted from p.129 of the collective agreement, as affecting our interpretation of art. 21.5(c). The letter must be read in the light of art. 21.5{c) and its restriction to the "department or section involved." We also believe that art. 29.1 can be harmonized with our interpretation of the provisions of art. 21.5(c). We regard art. 29.1 as representing a general provision, whereas art. 21.5(c) is concerned with the rights of employees within a particular store or 19 other establishment or work unit. There is room for art. 29.1 to apply where the Grievors and the casual employees selected, work within the same "department or section." The parties may have employed both too many and too few words to clearly express their intentions, but those chosen by them can be interpreted so as to include an individual store with a "department or section." An attempt to interpret "department or section" to mean district is not supported by any provision of the collective agreement. A store is one of a number of establishments or units of the Employer within a district, and the context points toward the intention of the parties to restrictthe operation of art. 21.5(c) to the particular store, warehouse or office in the District where the vacancy had to be filled. I~ it was intended to have the article apply to every store,,,, etc. in the Distr:~ct, it .i would have been a very simple matter to say so. By our decision we do not intend to ignore or devalue the importance of seniority or to alter' the relationship between regular and casual employees. If we had a serious doubt as ~o the application of article 21.5 (c), in a context where the seniority of casual employees counted for less or, did not count at ali, this might tip the balance in favour of interpreting the article as we were requested to do by counsel for the Union. However, where, as in the case before us, the provision indicates that in its operation it applies to casual employees and that its operation is 20 to be restricted to individual operations within a district, such a~ a store, we must interpret the provision as it is written. To the extent that the provision can be regarded as ambiguous, a purposive and contextual reading supports the position of the Employer. If the Union wishes to enlarge the operation of art. 21.5(c) in favour of permanent employees, wherever they may work within a district, the collective agreement will have'tob~hanF, ed-to more clearly reflect this intention. Accordingly, for the above reasons, the grievance is denied. Dated at Toronto this 2~th day of October,1992. M. Gorsky - vice Chairperson "i Dissent" (disse~t attached) E. Seymour - Member ONTARIO LIQUOR 80ARD EMPLOYEES' UNION L. CROGHAN et al -Griever - and - CROWN IN RIGHT OF ONTARIO (LIQUOR CONTROL 80ARD OF ONTARIO) DISSENT Edward E. Seymour I have read the Majority Award and I find that I must, with respect, dissent from the conclusions Contained therein. I cannot accept the Majority's conclusion that "ART. 21.5(e) must be found to apply to Casuais unless there is some .other clear indication elsewhere in the Collective 'Agreement .... " Admittedly, Article 31.3 sets out a number of other articles ~hich, in their entirety, do not apply 5o Casuals; however, ArLicie 21 is aiso limited by the provisions of Article 31.4, which state that "Casuals shall have the right to apply for certain permanent part- time positions in accordance with Article 21 .... " There are only two places where Casuals.are expressly mentioned in Article 21; they are in Article 21.4 (b') (iv) and 21.5 (b). Article 21.4 (b)(iv) says that the assignment of a permanent part- time employee must De in accorda~.ce with the provisions of 31.4, which limit the Casuals~ fights to apply:for vacancies within their geographical areas only if no permanent part-time employee applies. Article 2t.5 (b) refers to situations w'hich must be deemed merit promo%ions to be a~arded to bargaining unit employees only, and the ~mployer , in fiilin9 these positions, mus~ give consideration to ~n,~ quaiif[cat~.on:_~ and ao'~l.'~t~es of permanent pa~-z-r~lme empL::/ee:,~ an~:J Casuals. Aruicle 31.4 A speoif~ca%ly states %hat ,~ith, the e×cepUio~ ?,o%ed in 2t.5 (~], Casl~ais ~4i~' o¢~lF c.e permi5%ec to apply for vacancies '~itbin %i~e~r ,~eogrsDh~cai areas if no permanen% pars-time Der. sot: ~s ~romoLed~: .~, acco?~auce ~i%n ~rt~.'-1~ .... '3~,_~.5 .,r ~- ~ . ~ur~her~ , ~rL~,cLe 31.4 B ~ermits the Employer to give considera%io~ 50 c_.?:e ~ualifications ot Casuals for permanent fuil-time vacancies - Droviced no ~ermanent Dart-time employees apply. In their Award, %ne Majority state that they are "....left to con- clude that the parties meant all of the provisions of the Agreement5 to apply to Casuals unless there was some specific indication to the contrary." I agree, that is what the parties did in Article 31.3, where there is a list of several articles which do not apply to Casuals. In the same Article, limitations were placed on Article 21, .which i take to mean that Article 21 does not aDDi¥ to Casuai~ except in those situations ~hich are expressly ~entioneO. if t. his were not so, there ~ouio be absolutely no reason to mention Article 21 in Article 31.3 and subsequently in ~rticle 31.4. My interpretation of Article 31.3 is that these situations do not aD~ly to Casuals, and neither does Dart of Article 21; therefore, what Article 21 must do is refer to those situations which speclfi- cally do address Casuals, i.e. 21.4 (b) (iv) and 21.5 (b). Those are the only situations to which Casuals have any rights ~ith~;~ Article 21. In every other situation referred to within that Article, they are excluded. ~ather than beimg mentioned to be excluded fro~ bavin~ a particular rigbt~ tbe~ must be mentioneo to be included to attain that right. The Majority justify their argument to some extent by addressin9 their attention to the Reference index, which lists the Articles o1: the Collective Agreement, follo~ed by the sta%ememt of subject. The Majo:-£ty accurately assert, that on the r~ght-han~] side .c,f page *~here are the words, "fui~-ti~'~e," '~ar~-Zime' and 8eca{_se ~here is an "x" under "Casuals" for Article 2~, the ~alority make the assumption tha~ the entire ~rticle applies Casuals and that ~he para,es "~ngended to c~ariFy any ambisuity er lack of clarity that might ex~st in interpretin~ any part oF the Articie eno i}_s application to Casuals.': I disagree. The Index is not so precise as to break the ~rticle down into clauses and sub-clauses. It refers to the Article broadest sense; therefore, it isn't necessary for all sections to refer Lo Casuals, one reference is ample. In Article 21, there are ten sections, and ~ithin those sections are several sub-sections; throughout it all, Casuals are mentioned only twice. To have Casuals recorded in the Reference Index, there needs to be only one reference to them. ~ith regard to the meaning o~ the words, "department'or section," the Majority mistakenly, I believe, interpreted the Union's argu- ment to mean that "department" could only refer to the entire district. That is not ho~ t interpret' the Union's argument.. The Union merely argued that for it to be successful, the term "department" needed to mean something more than a single store~ therefore, it does not require this panel to find that the Employer has %o offer the temporary vacancy to the most senior employee in the entire district, it oniy requires that the term "department" or "section" be regarded as something more than a single store. In conclusion, this ruling places a. severe limitation ,an the abiii%y of permanent part-time and permanent full-time employees to advance. There is no question that these summer store and temporary vacancy jobs provide employees ~ith an excellent opportunity to display %he managerial skills learned at these ~ork locations. I% is, as the Union emphasized, ludicrous to exmect that Casuals Houid have ~he' fi~ ~ y y ~..~ 'n ~ ,s,. oppo tunib ~'~ aCca~ these posit£ons. Et ~:s especially so ~hen one conm~de~s zna~ Casual employees are excluded from c~a. uses coverfn9 seniority rights, job security and overtime, among others. For ~hese reasons, I find thaC CasuaZs ~ere no% eZ~gible to f~Zi these posLt£ons until it ~as determined that no peTmanenb or para- time employees ~ere £nberested. Dated at Hamilton this :St( day o¢ d~/4~ , 19e2 opei u: 343