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HomeMy WebLinkAbout2004-1312.Policy Grievance.05-02-07 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-1312 UNION# OLB275/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (PolIcy Gnevance) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Joseph D Carner Vice-Chair FOR THE UNION Larry SteInberg Koskie Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING November 8 2004 2 Award In thIS case the Umon, represented by Mr Larry SteInberg, alleges that the employer has faIled to create the number of permanent full-tIme posItIOns dIctated by the terms of a Letter of UnderstandIng between the PartIes The Letter In ItS ongInal form, whIch IS Integral to the CollectIve Agreement, became effectIve approxImately three contracts earlIer The Employer's practIce In applYIng the Letter and the terms of the CollectIve Agreement relevant to the Issue have been consIstent sInce then. In the cIrcumstances, the Umon does not challenge the applIcatIOn retroactIvely but, seeks a declaratIOn for the future to take effect upon the renewal of the current CollectIve Agreement whIch gOIng forward should take effect on or about January 1 2005 The central Issue and cntIcal to the Umon's posItIOn IS the assertIOn that mght shIft hours should be Included rather than excluded from the calculatIOn of casual hours worked dunng a year In order to determIne the avaIlabIlIty of those hours for the creatIOn of a full-tIme posItIOn. To clanfy the partIes have created a Labour Management CommIttee whIch SItS annually to determIne amongst other thIngs the number of new permanent full-tIme posItIOns whIch mIght be avaIlable To determIne whether or not one such posItIOn IS avaIlable It must first be found that there were for Instance In the retaIl area, at least 1 700 hours of casual work performed In the prevIOUS year Therefore, for the purposes of the eXIstence of a regular full-tIme posItIOn In a retaIl store one year equals 1 700 hours worked. WhIle that seems a sImple matter the partIes have also agreed to exclude from the calculatIOn those hours worked by casual employees whIch fall wIthIn certaIn desIgnatIOns For Instance, overtIme hours and hours fillIng In for employees on vacatIOn are excluded. So too are hours worked on temporary transfer/assIgnment. It IS thIS 3 latter category whIch IS central to the Issue at hand. It IS the Employer's posItIOn that the hours worked on the mght ShIft must be categonzed as temporary by operatIOn of provIsIOns of the CollectIve Agreement. It IS the Umon's posItIOn that such an applIcatIOn of the collectIve agreement IS Incorrect and that the exclusIOn of mght ShIft hours does vIOlence to the purpose of the Letter of UnderstandIng. To put the Issue In ItS sImplest form, the questIOn to be determIned IS whether or not hours worked by casual employees on mght ShIft should be Included or excluded from the calculatIOn of the hours avaIlable to determIne the number of full tIme posItIOns to be created on a gOIng forward basIs To put more meat on the bones, the Umon complaIns that the Employer IS treatIng all mght shIft assIgnments as temporary pursuant to the permanent vacancy letter (the PVL) AccordIngly no mght shIft hours worked by casuals are counted In determInIng whether or not a permanent vacancy mIght eXIst. However In at least two stores there have been regular mght ShIftS runmng contInuously for penods up to and perhaps In excess of two years It IS the Umon's posItIOn that the contInUIty of mght ShIft avaIlabIlIty In those locatIOns defy the desIgnatIOn of "temporary assIgnment" Where such contInUIty of mght ShIft schedulIng pertaIns, as arbItrator I should reqUIre the Employer to comply wIth the purpose and spmt of the PVL Agreement and determIne that hours worked on such contInUOUS mght shIfts do not full wIthIn the exclusIOn of "temporary assIgnment" On the other hand, Mr SteInberg does not argue that mght ShIft assIgnment ofbnef or temporary duratIOn such as those establIshed to cover the Chnstmas and other holIday seasons should be 4 sImIlarly treated. Those he concedes are legItImate temporary hours and mIght contInue to be excluded from the calculatIOn to determIne permanent vacancy avaIlabIlIty For the Employer Mr FItzgerald does not dIsagree that In some stores mght shIfts have been scheduled on a contInUOUS basIs for extensIve pen ods of tIme However provIsIOns of the collectIve agreement Itself do not allow for any permanency In the assIgnment of employees to those mght ShIftS Rather the collectIve agreement specIfically InhIbIts the Employer from requmng any employee to work more than 6 months on a mght shIft. By agreement of the PartIes, mght shIft assIgnments are less than 6 months, and therefore, temporary In nature AgaIn, Mr FItzgerald does not dIspute that In some cases It IS the same casual employees who take the refreshed or repeated assIgnment to mght shIft, however that IS a consequence of the operatIOn of the relevant provIsIOn of the CollectIve Agreement and not wIthIn the control of the Employer To put the matter In perspectIve the folloWIng IS the CollectIve Agreement provIsIOn referred to and relIed upon by the Employer "616 Exceptfor emplovees which are currenth working on a three (3) shift basis (T eLl Operators, ,,'ecurin Guards, Alaintenance and Console Operators) such work shall be offered in the following manner and sequence (a) 'vight shift requirements shall be posted within the applicable work-site The posting shall specifi that successfitl applicants shall not be required to remain on the night shift in excess of six (6) months. In the event that the requirement exceeds six (6) months, there shall be a subsequent posting and the incumbent emplovees will be entitled to re-apph should thn be interested. (b) Emplovees interested in the night shift shall apph to the posting and the night shift requirements shall be filled in order of seniorin from qualified applicants. 5 In hIS reJoInder to that provIsIOn, Mr SteInberg refers to ArtIcle 31 3 of the CollectIve Agreement whIch IdentIfies specIfic artIcles of the CollectIve Agreement whIch do not apply to casual employees WithIn that provIsIOn IS the folloWIng "The application of 4.rticle 6 shall he limited to 6 6(h) exclusiveh " ArtIcle 6 6(b) deals wIth overtIme assIgnments However I do not Intend to deal further wIth that contentIOn SInce ArtIcle 6 16 Itself IS of general applIcatIOn and Impacts equally upon casual employees as It does upon all others Furthermore, ArtIcle 31 11 specIfically contemplates the Impact of ArtIcle 6 16 upon casual employees as follows "Casual emplovees shall onh he scheduled on night shift (as defined in 4.rticle 6) on a voluntan hasis however if insufficient numhers of permanent full-time, permanent part-time, seasonal or casual emplovees volunteer for such shifts, casual emplovees ma, he assigned h, reverse order of seniorin commencing with the most junior qualified casual emplovee. " There remaInS only the permanent vacancy Letter of Agreement Itself to be detaIled That Letter first deals wIth the reclassIficatIOn of permanent part-tIme employees to permanent full-tIme employment. It then proceeds to deal wIth casual employees and the creatIOn of permanent full- tIme vacancIes based upon theIr hours of work. The folloWIng IS the entIrety of the provIsIOn WIth respect to those casual hours "Permanent Full- Time T acancies Following the determination of the numher ofPPT emplovees to he offered Permanent Full-Time emplovment, casual hours of work and in addition in the case of logistics, seasonal hours of work, shall be reviewed during the annual review b, the Local Labour Alanagement Committee The purpose of this review shall be to determine if Permanent Full- Time vacancies exist. "'pecificalh a casual emplovee's work and in addition in the case of logistics, seasonal hours of work, shall be reviewed where he she works in excess of (a) 1 600 hours or more in Warehousing (b) 1 700 hours or more in Retail "'tores (c) 1 550 hours or more in Head Office in the previous calendar vear It is agreed that work resulting from the following shall be excluded from the review 6 - hours worked on ')unda, - hours worked on a paid holida, as listed in 4.rticle 7 1 - siclmess and or accident - vacation and leaves of absence including jun dun bereavement, [Tn ion business, etc. - temporan transfers assignments - modified work programs - accommodation as required b, legislation - overtime Following this review there shall be a reimbursement of up to eighn (80) hours (Retail) seven tv- five (75) hours (Logistics) and seventv-trlJo and one-half (72 1 ) hours (Head Office) for those hours that were excluded for vacation replacement. It is understood that to be reimbursed, said work must have been performed and excluded during the review ,,'hould a casual emplovee, and in addition in the case of logistics seasonal emplovee, work in the same position and Department ',)tore as per the hours listed ahove for reasons other than those listed ahove, a vacanc, shall he declared and posted in accordance with the provisions of the Collective 4.greement provided it is not alreach posted and or there are no displaced permanent emplovees in his, her work area. It is agreed h, the parties that said positions shall he filled no later than June 3(jh of the review vear" In keepIng wIth that provIsIOn, the LCBO posts mght tIme ShIfts for pen ods of approxImately four months each, that IS, somethIng less than the SIX months allowed under the provISIOn. The postIngs IdentIfy the number of posItIOns reqUIred and the nature of those posItIOns Furthermore, the postIngs clanfy that semor qualIfied employees enJoy preference for the postIng and In the words of ArtIcle 6 16 Itself stIpulate that ",,'uccessfitl applicants shall not be required to remain on the night shift in excess of six (6) months. In the event that the requirement exceeds six (6) months, there shall be a subsequent posting " The Employer has tYPIcally posted notIces such as thIS In several stores dunng the Chnstmas holIday season where mght ShIftS are reqUIred. AddItIOnally In at least two stores, that IS Store #355 and Store #1 sImIlar postIngs were made penodIcally throughout the year such that a number of mght ShIft posItIOns In each of those two stores were maIntaIned throughout a contInUOUS penod of approxImately two years It IS that practIce whIch precIpItated thIS gnevance 7 The decision I have consIdered the provIsIOns of the collectIve agreement, the Letter of UnderstandIng and the able submIssIOns of counsel It IS my VIew that the Umon's posItIOn cannot prevaIl In thIS case The dIfficulty IS as follows There IS nothIng In the CollectIve Agreement or the Letter of UnderstandIng whIch would support my drawIng the dIstInctIOn suggested by Mr SteInberg between temporary mght ShIft assIgnments dunng the Chnstmas penod, for Instance, and regular mght ShIft assIgnments whIch In some cases and In some stores carry on throughout the year Instead, ArtIcle 6 16 Itself dIctates that the Employer may not schedule a mght ShIft for a penod In excess of SIX months regardless of ItS ongoIng need to schedule a contInuIng mght shIft. No doubt the reqUIrement to provIde abbrevIated postIng penods was Introduced for the benefit of employees so that they could have the convemence of choOSIng to work the mght ShIft when It sUIted theIr lIfestyle wIthout the necessIty of beIng reqUIred to do so on an on-gOIng or extended penod. The fact that It IS the casual employees In many Instances who end up workIng these ShIftS on a regular and sometImes contInual basIs cannot be regarded as a cymcal ploy by the Employer Rather It IS a consequence of the language of the Agreement whIch gIves full-tIme and semor employees the optIOn to take the shIft If It pleases them but to leave It for casuals If Inconvement. As mIght be expected, It IS casual employees who most often work the mght ShIft and as often as not the same casual employees who do the work In those stores requmng a mght shIft. In the cIrcumstances, gIven the provIsIOns of ArtIcle 6 16 the Company IS not able to stIpulate stores or mght ShIft posItIOns whIch are contInUOUS and exceed the SIX month lImItatIOn In that ArtIcle By agreement of the partIes mght shIft assIgnments are, therefore temporary 8 Mr SteInberg argued that the exclusIOns In the PVL letter contemplate hours and ShIftS whIch are Irregular Because of theIr InCOnsIstent occurrence the PartIes agreed that they would not constItute the basIs for a regular posItIOn. However he argued, the mght ShIftS, at least In some stores such as store 355 and store 1 are regular and contInUOUS and should, therefore, not be excluded. I agree wIth Mr SteInberg that, but for the penodIc repostIng of the mght ShIft posItIOns, the regularly scheduled mght ShIft hours could not be consIdered temporary and excluded from the PVL calculatIOn. However In thIS case the Employer IS not umlaterally gerrymandenng the hours to aVOId the ImplIcatIOns of the PVL letter Rather It IS complYIng wIth the agreement of the partIes to create temporary assIgnments on mght shIft for the convemence of the employees at large In the cIrcumstances, gIven the language of the CollectIve Agreement, In partIcular ArtIcle 6 16 I am satIsfied that there IS no basIs upon whIch to dIStIngUISh between mght ShIft assIgnments as temporary and/or permanent. Rather the partIes themselves have dIctated that mght ShIft assIgnments are to be temporary In nature A decIsIOn to the contrary In partIcular one construIng two dIfferent types of mght ShIft assIgnments would be addIng to the CollectIve Agreement a substantIve change whIch IS not supported by the language AccordIngly a findIng In favour of the Umon would reqUIre a determInatIOn that none of the mght ShIft assIgnments, whether over Chnstmas or otherwIse, were temporary assIgnments such that none of the mght ShIft hours would be excluded pursuant to the "temporary transfers/assIgnments" exclusIOn In the PVL letter Such a findIng would, In my VIew also be untenable gIven the provIsIOns of the collectIve agreement and the PVL letter Itself 9 In the CIrcumstances, I find that the Employer's practIce IS consIstent WIth the provISIons of the PVL letter and the CollectIve Agreement. In the event the Umon should wIsh to pursue a dIfferent result, some amendment eIther to the PVL letter or ArtIcle 6 16 Itself wIll be reqUIred. In VIew of my findIng that there has been no vIOlatIOn of the CollectIve Agreement by the Employer the gnevance IS dIsmIssed. Dated at Toronto thIS ih day of February 2005 . CARRIER ::r Gnevance Settlement