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HomeMy WebLinkAbout1977-0035.Tiller et al.78-04-24Ontario x/77 CROWN EMPLOYEES :' 416/m 0688 Suite 2100. GRIEVANCE SETTLEMENT BOAR0 l's0 Dundas Street West TORONTO, Ontario M5G 128 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: L.C.B.O. & L.L.B.O. Employees' (The Griever) Association (Tiller et al) And The Crown in Right of Ontario Liquor Cpntrol Board of Ontario (The Employer) Professor G. W. Adams - Chairman Mr. Andre Fortier - Member Mr. Harry Simon Member For the Grievor: Maurice A. Green, Esq. Barrister & Solicitor, Golden-Levinson Suite 1908 101 Richmond St. W. Toronto, Ontario For the Employer: Mr. C. Morley Hicks, Morley, Hamilton P.O. BOX 371, Royal Trust Tower Toronto, Ontario Hearing: Suite 2100, 180 Dundas St. West Toronto, Ontario March 30, 1978 . /G 2 $ -2- In this case the Association grieves that the Liquor Store Clerk Grade 4 (thereinafter "the Clerk 4) in "C" Stores should receive a premium of 94.00 per day when he or she acts for the Store Manager on the second shift. The principal provision of the collective agreement reads: 5.12 The Boards agree to pay a premium of $4.00 per day to an employee acting for the Store Manager in his/her absence, such premium~will not be paid to an Assistant Manager in charge of the second shift. However, it would be applicable to the parson designated to act for the Assistant Manager in his/her absence while working the second shift. Liquor Stores are graded "A", "B", "C" or "D" Stores by their size and volume of trade with "A" Stores being the largest and "0" Stores the smallest. The complement of a "C" Store is usually two or three employees. There is always a Store Manager (Liquor Store Manager Grade 2) and a Clerk 4 and sometimes there is also a Clerk 3 or 2. The parties are agreed that the Clerk 4 acts for the Store Manager in his absence but the Board takes the position that a Clerk 4 in a "C" Store is the Assistant Manager within the exception of art. 5.12 and that therefore the $4.00 is not to be paid. The relevant provisions of Schedule "A" to the agreement entitled "Liquor Store Salary and Classification Schedule" appear in the following form. SCHEDULE “A” LIQUOR STORE SALARY AND CLASSIFICATION SCHEDULE (1) Effective July 1, 1975 (a) Effective February 25, 1976 (2) Effective July 1, 1976 Liquor Store Manager 3 *Liquor Store Manager 2 Liquor Store Manager 1 Liquor Store Clerk Grade 4 Liquor Store Clerk Grade 3 **Liquor Store Clerk Grade 2 41) C.7) (1) (2) il., (2) (1) (21 (1) (2) (1) (a) (2) $ 14,320 15,752 13,461 14,807 12,520 13,772 11,644 12,808 10,766 11,843 9,085 $ $ 14,749 15,178 16,224 16,696 13,892 14,318 15,281 15,750 12,976 13,385 14,274 14,724 12,082 12,520 13,290 13,772 11,206 11,644 12,327 12,808 9,809 10,688 9,809 ***lo,688 10,790 ***11,757 $ $ 14,749 16,224 13,892 15,281 12,976 14,274 *Note: Employees classified as Liquor Store Manager 2, acting as an AsSiStant to a "B" Liquor Store Manager, will not progress beyond the step below the maximum of their range. **Note: The interval of progression from the minimum to the maximum of the range will be six (6) tinths provided the incumbent is so recommended. Note: Qualified clerks in two men "C" stores may progress to one step below the maximum of the Clerk Grade 4 range if so recommended. ***Note: Qualified personnel may progress to the next level if so recommended after six (6) mOnths at the maximum of the current range. (1) Effective July 1, 1975 (a) Effective February 25, 1976 (2) Effective July 1, 1976 -4- The Association argues that the managerial functions of employees are found within the 3 grades of Liquor Store Managers and that a Clerk 4 is not so continuously employed. For example the'Association points out that in a higher volume "A" or "B" Store where seven or eight people are employed the Clerk 4 functions as a bookkeeper and a Store Manager 2 is designated as the Assistant Manager. And when the Clerk 4 is in charge of the Store on the second shift in such stores he is paid the $4.00 premium. Similarly in a two man "D" Store where the complement is a Manager and a Clerk 3, the Clerk 3 receives the $4.00 premium when acting on behalf of the Store Manager during the second shift. Indeed, argues the union, for those Clerk 4 employees who filed grievances, the Board had paid the $4.00 premium from the time art. 5.12, as it is now worded, was agreed to (in the July 1, 1975 to June 30, 1977 agreement) until some- ' time around October 1977. Prior to July 1, 1975 the problem could not have arisen because of the wording of art. 5.12 at that time. The Board submits that if the premium was paid to a handful of employees it was paid by mistake. There are some two hundred "C" Stores operating in the Province and mistakes of this kind are bound to occur. It pointed out that Assistant Manager is not a job classi- fication contained in the collective agreement although the parties have recognized that employees will perform the job duties of an Assistant Manager by the wording of art. 5.12 and the notes to Schedule "A". The Board submits that it has always considered the Clerk 4 to be functioning as the Assistant Manager in a "C" Store and that this managerial responsibility is reflected in the Clerk -5- 4's basic wage rate. It is the Board's position that Clerk 4's either function as a bookkeeper in an "A" or "B" Store or as an Assistant Manager in a "C" Store. Therefore if a Clerk 4 replaces the Store Manager or Assistant Manager in an A or B Store the $4.00 premium is paid because he is performing both responsibilities. However in a "C" Store the Clerk 4 is acting exclusively as an Assistant Store Manager and the compensation for that function is built into the wage rate. To pay the $4.00 premium as well would result in over-compensation. In a two man D Store the Clerk 3 does not have the same responsibility as the Clerk 4 in a "C" Store because "D" Stores by definition have a lesser volume of trade. The Clerk 3 performs a purely clerk-like function except when replacing the Store Manager and on such occasions the $4.00 premium is paid. However the Board also points out that the salary of a Clerk 3 is less that than that of a Clerk 4. The Board further submits that art. 5.12, on its face, is ambiguous because the collective agreement contains no Assistant Manager classification and that therefore extrinsic evidence to resolve this ambiguity should be entertained by the Board. The Board reserved its decision with respect to the ambiguity of the provision and admitted the evidence the Board wished to adduce conditionally. This evidence was of three types. Through Mr. W. J. Evans, Assistant General Manager, the Board submitted a document entitled "Specifications For Store Positions" and dated February 18, 1968. Mr. Evans testified that this document contains the specifications or descriptions of the classification -6- mentioned in the collective agreement and that these specifications have been posted and in effect since February 1965. The descriptions for Liquor Store Clerk Grade 3; Liquor Store Clerk Grade 4; and Liquor Store Manager 2 appear in the following form. LIQUOR STORE CLERK GRADE 3 LEVEL OF WORK The duties and responsibilities identified with the positions of Bookkeeper or Cashier fall at this level. Accordingly personnel receiving this classification will be qualified in, and required to perform the duties of one or the other of these positions. Also at this level is that position where duties are at a higher level of responsibility than those performed by Liquor Store Clerks 1 and 2, such as, assisting managers in class "D" stores or as Manager of a liquor store in a small connnunity. TYPICAL DUTIES Clears and resets cash registers; makes up cash trays and ensures that sufficient change is available before commence- ment of the day's business: ensures that customers purchase orders are correctly completed and operates cash register to receive payment and give change: counts and balances cash at the close of business or end of shift. As bookkeeper maintains stock and sales records by posting details to ledgers and prepares a variety of reports. May be required to assume responsibility for the store in the absence of Manager. Assists the Mana~lr of a Class "D" store by performing related duties assigned. Performs all other store duties as assigned. ABILITIES, KNOWLEDGES, AND SKILLS Ability to serve customers promptly and courteously, and to use tact and good judgement in handling customers queries and complaints. Ability to assign and supervise the work of store clerks. Ability to keep detailed records, prepare a variety of reports, and perform arithmetic calculations. Ability to operate a cash register with speed and accuracy. Considerable knowledge of the stock carried, brand numbers, sizes, retail prices, etc. -7- Knowledge of the store operations, Board circulars, the Liquor Control Act and the regulations governing sale and use of liquor in the province. EXPERIENCE & EDUCATION Experience as Liquor Store Clerk 1 and 2. Completion of the 11th school grade, or an equivalent combination of education and experience. LIQUOR STORE CLERK GRADE 4 LEVEL OF WORK The duties and responsibilities identified with the follow- ing positions relate to this classifications. Bookkeeper in a Class "A" or "B" store provided he is also qualified and has progressed through the level of cashier. Assistant to the Liquor Store Manager 2. Personnel qualified and assigned in a temporary capacity, responsibility for managing a store. Act as manager of a liquor store in a small community. TYPICAL DUTIES Assists in the management of a Grade "C" liquor store, and participates in all phases of the work, including the maintenance of sales and stock records. Relieves staff when necessary due to illness or vacations, and supervises the work of liquor store clerks in progress. Prepares a variety of reports and maintains sales and stock records, and operates cash register as required. May be required to assume responsibility of managing store in the absence of the manager and assistant manager. Participates in all other store duties as assigned. ABILITIES, KNOWLEDGES, AND SKILLS Ability to serve customers promptly and courteousiy, and to use tact and good judgement in handling customers queries and complaints. Ability to assign and supervise the work of store clerks. Ability to keep moderately complex records, prepare a variety of reports, and perform aritbmeti& calculations. Ability to operate d cash register with speed and accuracy. Considerable knowledge of the stock carried, brand numbers, sizes, retail prices, etc. Knowledge of Store Operation, Board circulars, the Liquor Con- trol Act and the regulations governing sale and use of liquor in the province. -8- EXPERIENCE & EDUCATION Experience as Liquor Store Clerk 1, 2, and 3. com- pletion of the 11th school grade‘; or an equivalent combination of education and experience. LIQUOR STORE MANAGER 2 LEVEL OF WORK Positions at this level are indicated below. Staff assigned to these positions will be classified accordingly. Manager Grade "C" Liquor Store. *Assistant to a Liquor Store Manager 3 *Progression in the salary range would not be beyond the third step in the range established for a Manager 2. The work is conducted in accordance with detailed instructions and work methods prescribed by senior administrative officials. The work is evaluated from audit reports and during supervisor's field trips. TYPICAL DUTIES Assigns and supervises the work of assistant and a small group of store clerks to ensure a high standard of customer service and store operation; ensures that subordinates maintain a high standard of appearance and deprtment and that they are fully trained in their duties. Balances and deposits daily receipts; supervises maintenance of sales and stock records and the preparation of various reports, takes inventory as required and prepares a report of stock on hand. Requisitions liquor, wine and/or beer stocks to maintain an adequate supply of brands, ensures that stock is correctly stored and handled. Ensures that the premises, stock and cash are secure at all times; reports malfunctioning of equipment , arranges for minor repairs; ensures that the premises and adjacent parking lot and sidewalks are cleaned regularly. Maintanins Petty Cash account for payment of items including, utilities, minor repairs or other expenditures, records dis- bursements and prepares statement for reimbursement. -9- Performs all store duties and related work as required. ABILITIES, KNOWLEDGES, AND SKILLS Ability to exercise considerable tact and judgment in handling customers' queries and complaints. Ability to assign and supervise the work of assistant managers and of store clerks. Ability to assume responsibility for stocks and cash. Ability to keep detailed store records, and perform arithmetic calculations. Thorough knowledge of the stock carried; brands, sizes, reference numbers and retail prices. Thorough knowledge of store operation, Board circulars and of the Liquor Control Act and the regulations governing sale and use of liquor in the province. EXPERIENCE AND EDUCATION Considerable experience in a supervisory capacity in a liquor store. Completion of school grade 11 or an equivalent combina- tion of experience and education. From these descriptions it can be seen that the Liquor Store Clerk Grade 4 is specifically designated as "Assistant to the Liquor Store Manager 2." This is similar to the description of other classi- fications containing managerial duties and quite unlike the descrip- tion for the Clerk 3. It was the Board's position that these parti- cular job duties of the Clerk 4 have been in effect at least since the posting of the specifications in 1965 and throughout the period of negotiations culminating in the insertion of art. 5.12. The second form of evidence submitted by the Board to resolve the agreement's ambiguity was a letter of agreement attached to the most recent memorandum of settlement between the parties. - 10 - The letter, undated, was said to record an agreement between the parties that Assistant Managers would no longer receive a $4.00 premium when replacing the Store Manager on his day off. This was agreed to sometime in October 1977. Following the agreement the Board discontinued paying that $4.00 premium to all Assistant Managers including Clerk 4's and Mr. Evans testified that no Clerk 4 has grieved the discontinuance of the premium pay for this day. Counsel for the Board argued this lack of protest was an indication that Clerk 4's in :C" Stores understood that they perform the duties of an Assistant Manager. On the other hand, however, at least a handful of Clerk 4's have continued to protest their treatment when acting for the Store Manager on the second shift~but the overwhelming silence with respect to the formal termination of the $4.00 premium related to the Store Manager's day off is certainly not irrelevant. Finally, the Board tendered a random selection of reports filed by employees classified as Clerk 4's but signed by them as "Assistant Manager". Indeed at least three of these documents were signed by one of the Clerk 4's who filed a grievance, Mr. William McCormick. Most of these documents do not appear to be standard forms but rather specific reports prepared by an employee in relation to an isolated subject matter. Mr. McCormick testified that nothing turned on the way he signed his name and that he had signed other documents as a Clerk 4. However, the Association did not call any reply evidence documenting this fact and Mr. McCormick admitted that when he was in this store no one else signed as Assistant Manager. - 11 - Mr. Edmunds, on behalf of the Association, testified that during negotiations over, at least, the last few years the Association had asked the Board to agree to the addition of an Assistant Manager classification in the agreement for "C" and "D" stores. Thus in a two man "C" store the complement would become a Store Manager and an Assistant Store Manager. When the Chairman of this Board asked him for the Association's rationale supporting this demand he replied that currently the second person in a "C" store plays the role of Assistant Manager and the Association doesn’t feel he is being rewarded enough for it. DECISION We are of the opinion that this grievance should be dismis- sed. We find that the Liquor Store Clerk Grade 4 in a "C" Store is employed as the Assistant Manager of that store within the meaning of the exception contained in art. 5.12. Assistant Manager is not a job classification in this collective agreement. Rather it appears to be a reference to a spec- ific range of job duties. The question then is whether these job duties properly fall within the Clerk 4 classification in a "C" Store.. In our own view, they do. While, prima facie, one might expect that such managerial duties would only fall within one of the classifications explicitly if? 3% - 12 - designated by the term "Manager" , evidence of the actual job duties performed by employees classified as Clerk 4 rebuts this presumption. We are satisfied that the extrinsic evidence, in its totality, establishes that Clerk 4's are employed as Assistant Managers in "C" Stores. The employer has drafted classification specifications to this effect and the employees so classified appear to understand this to be the case. Indeed, we see the Association's proposal that the Assistant Manager job duties be recognized in a new classification as an explicit admission that Clerk 4's in "C" Stores perform in that capacity. We would also note that this is not the first time job classifications contained overlapping job duties. (See me U.S.W. and Alqoma Steel Corp. (1968), 19 L.A.C. 236 (Weiler); Re Windsor Public Utilities Comnission and International Brotherhood of ElecTtri- cal Workers, Local 911 (1974), 7 L.A.C. (2d) 380 (Adams)). Towards the end of the hearing the Board's attention was directed to the word- ing of the notes to Schedule A. The Association submitted that if the parties believed the second person in a two man "C" store to be perform- ing in the capacity of an Assistant Manager they would have said SO as they did for the Liquor Store Manager 2, acting as an Assistant to a "B" Liquor Store Manager. The Board was concerned over the way these notes were drafted but we have come to the conclusion that this concern is insufficient to rebut the extrinsic evidence adduced by the employer and the stance taken by the Association on this topic during past negoti- ations. Moreover the notes do not contain specific language pre- cluding the role of Assistant Manager for a Clerk 4. For all of these reasons the grievance is dismissed. Dated at Toronto this 24th day of .qpril 1978. George W. Adams Chairman Andre Fortier Member I concur Harry Simon