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HomeMy WebLinkAbout1978-0044.Frolack.81-10-05r GRIEVANCE ;EWbEMENT IN THE MATTER,OF AN ARBITRATION Under The Betwekn: -- CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Griever: Ebr the Employer: Hearings: - Mr. Michael Frolack Griever - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer ..~.,_. _. Mr. E. B...J.olliffe, Q.C. Vice Chairman Ms. M. Gibb Member Mr. S. R. Hennessy Member MT. A. M. Heisey, Counsel Blake, Cassels & Graydon Mr. M. P. Moran, Counsel Hicks, Morley, Hamilton! Stewart G Storie March 27, 1981 April 30, 1981 May 27, 1981 DECISION 1. I Mr. Michael Frolack, an employee of the Liquor Control Board of Ontario, grieved in December, 1977;‘~against. . .~ a denial of promotion to a Grade 4 position at the Toronto International' Airport. He referred to Articles 21 and 16 of ,the applicable collecti~ve agreement between the employer and the L.C.B.O. Employees Union, and also referred to the job posting of May.10, 1977. The griever relied on his seniority, which was greater than that of successful candidates. His case did not come to an arbitration hearing until March 27, 1981, kor reasons of which we were not informed. At protracted hearings on three different days in March, April and May, the griever's counsel called'four witnesses; the employer called four. The parties tendered 24 Exhibits,+most of which related to L.C.B.O. forms and procedures. Two areas'of controversy clearly emerged. The ~first is the ,nature of work at three outlets.in the Toronto International Airport, -and whether it is signific.antly different from work done at other L.C.B.O. stores; secondly, we are asked to consider the griever's qual,i- fications, including what the employer suggests is an unsatis- factory record, 'at least in the years prior to 1967. We need not set out in detail the very full evidence placed before us, but an attempt will be made to clarify the two areas in which there was much disputation at the hearings. The 'applicable provision in the collective agreement is 'a follows: is.7 Whereemployees are being consideredfor promotion, length of service from appointment date will bethe determining factor provided the employee is qualified to performthe job. The case for the grievor, as stated by his counsel is simple: the griever was entitled to appointment in 1977 because he had become qualified to perform the job of a Clerk $.~,.and (after almost 16 years of service) he had more seniority than others pro- \ moted to Clerk 4 at the Airport. The employer's case is\that Mr. Frolack was not qualified on the.basis of his record and performance .to become a'Clerk 4; further, that he was not qualified to.fill a position at the Airport, putting the emphasis on the concluding words in 16.7: "Provided the employee is qualified to perform the job." ,,The,' employer maintains that the Airport "job" (as distingui~shed from the classification) is' very different from Clerk 4 jobs at other stores operated by the L1C.B.O. throughout the province. : ,. I The Airport Jobs There is no special classifica,tion for any of the positions in the so-called "duty-free" shops at the Airport. The official description we have been given for the Grade 4 classification is as follows: LIQUOR STORE CLERK GRADE 4 LEVEL OF WORK The duties and responsibilities identified with the following positions relate to this classification. Bookkeeper in a Class "A" or "B" store provided he is also qualified and has progressed through rhe 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 mar&& of a liquor~store in a small community.- TYPICAL DUTIES Assists in the management of a Grade "C" liquor store, an3 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, ard operates cash register ss required-. May be required to assume responsibility of managing store in the absence of the manager and assistant manager. Participates in ~a11 other .store duties as assigned. ABILITIES, KNOWLEDGES, AND SKILLS Ability to serve customers promptly and courteously, and 50 use tact ard good judgement'in handling~&stomers 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 arithmetic calculations. Considersbis knowledge of the stock carried, brand numbers, 1 sizes: retail m-ices, etc. EXPERIENCE & EDUCATION Knowledge of Store Operation, Board circulars, the Liquor Control Act and the regulations governing sale and use of liquor in the province. Experience as Liquor.Store Clerk 1, 2, and 3. Completion of the 11th school grade; or an equivalent combination of education and experience. There is no mention above of the Airport. Never- theless, it isapparent from Exhibit 20, setting out the results of job posting Number 290, that all the appointments 0. ,made at that time, November 16, 1977, were from and to posts at the Airport. There were 10 promotions, three to the level of assistant manager and seven to the level of Clerk 4. Two of those appointed Clerk 4 had less seniority than Mr. Frolack. It .became obvious from this and other evidence that the policy of management, concurred in by the area Supervisor, was to promote from within the stores ant the Airport. That policy was based on the belief that "outsiders" (whose experience was limited to work in other stores) would have difficulty fitting in to the peculiar operations at the Airport. 'The griever's counsel had two witnesses testify about the nature of the work. The first was Mr. Gary .Harper, now a Clerk 4 at the Albion Mall store, who worked at the Airport from 1978 until December, 1980. After an objection he was asked to limit his testimony to conditions in November 19~7 7. He said the work .was no more difficult than that in conventional stores. In his opinion it was actually somewhat .easier because there were no banquet permits and the like to be issued. There. were difficulties three or four times ayear. when flights were cancelled. In his experience there was little. difference 'between the work of a Clerk 3 and that of a Clerk 4: "they both do the same work." In cross-examination he said that for.three hours a day there was no assistant manager in his outlet and a Clerk 3 or a Clerk 4 would be in charge of deliv- ering liquor to the departure lounges. He conceded that a Clerk 4 often helped the assistant manager, did some super- visory work and also spent time on "book work." In re- examination, Mr. Harper said that in con.ventional stores he had n'bticed only one case where a Clerk 4 was "in charge." The second witness on the issue was Mr. Gord Gerrard, the union.representa'cive or business agent in the Airport district, a post he occupied in 1977. However, he is himself a Clerk 4 now, after several years of experience at lower levels. He testified that the manager or assistant manager and a Clerk 4 in conventional stores have to do more paper work than at the Airport. Moreover, they spend time handling banquet permits and licences and they have many more brands to sell -than at the Airport. None of his experience had been in an Airport' store, but he frequently visited the Airport'.'as part of his union responsibilities and often discussed its problems with members who, according to him, are "good at attending meetings." The ,employer's ~counsel called Mr. Bruce Cudney to testify. in detail about the organization of Airport facilities. He had worked there most of the time since 1971, recently as Manager -in- charge of all three,outlets. In 1971 he was assis- tant manager at Terminal 2, the manager being then quartered at Terminal 1. According to Mr. Cudney, a Clerk 4 at the Airport has "some additional responsibilities." There is less book work than at other stores, partly because fewer products are sold. The stores are regularly open from 6 a.m. until midnight, so that there.must be three shifts, f'rom 6 a.m. to 1 p.m., from 1 p.m. to 8 p.m. and from 4 p.m. until 11 p.m. or later. There is an assistant manager in each store from~the opening until 1 p.m., but for the next three hours supervision is given by a Clerk 4; another assistant manager does not arrive until 4 p-m: sales close 30 or sometimes 40 minutes before flight timcst~ When traffic is heavy the lounges get crowded and there may be stresses and strains in delive~ring orders to the lounges on time.. Argumen~ts ~may arise at the sales counter when customers are told "the flight is closed." There can also be trouble in the lounges at delivery-time. Failure to deliver 'would have unpleasant consequences, since. the liquor has been paid for and the customer is going abroad. In 1977 traffic out of Terminal 2 became so heavy that one outlet w,as closed and.two new outlets were opened.., This led to a review of the work-load Boeing carried by. employees with a.Clerk 3 classification. Since .they occasionally had to open and close a store, it had been neces,sary to give some of them substantial "adjustments." It was clear that many were performing at .the Grade 4 level rather than at the Grade 3 'level. The result was‘the appoint- ments made in December, 1977. Mr. Cudney confirmed that all promotions were from among employees already at the Airport. To illustrate the unique character of Airport work, Mr. Cudney cited the following examples. Airport clerks as a rule~deal with .strangers, not regular customers. The customer and 'the clerk are always in a hurry; no time can be wast,ed in leisurely conversation. A clerk must be pre- pared to deal with airline officials, with airport personnel with~U.S. Customs and also with Canadian officers; from time to time problems arise in those relations. At the Airport, said Mr. Cudney, there are fewer forms to be completed and fewer products to be sold, but clerks must not only make deliveries to the lounges on time; they must a.ttempt to recover liquor if a flight .is~called back, as sometimes happens. Thus Mr. Cudney asserted that tact a.nd an understanding pf public relations were of high impor- tance. In a~ city store the lunch-break may be planned, but i .,this could not be done with any certainty at the Airport. An Airport Clerk 4 might haves to take decisions affecting working conditions of other employees. Some.work is done at the counter, some in a separate packaging room; but when a clerk is away to make deliveries in the lounges, he acts alone and in effect supervises himself. There may be a dispute in'al+nge concerning a delivery; the clerk is responsible for settling the dispute then and there --- before I the flight leaves. Mr. Cudney said "employees sometimes get frazzled nerves," and that occasionally they miss flights~ due to overcrowding and schedules that prove impossible to meet. In cross-examination, Mr. Cudney said he could not think of any case where a Clerk 4 had b~een promoted to that level from outside the Airport. All those promoted had en- joyed some AA ratings. He receives eight or more letters a week from all over the world, decides how to reply and then gives the correspondence to a Clerk 4 for processing. He conceded that there could be real stress in working at any store during the busy season, but added that the Airport facil.ities are overcrowded, overloaded and "inadequate." The grievor could not give any meaningful testimony' about Airport work because the had never been employed there. He had earlier applied unsuccessfully for transfer to an Airport position. Indeed-,~ he testified-he had made many applications for transfers or promotions. On the evidence summarized1 above, this Board is sat isfied that the work of sales clerks at the Toronto International Airport is substantially different from work at other L.C.B.O. stores. We need not recapitulate~the differences, most of which are obvious. Perhaps the most important distinction is that although liquor is purchased at the duty-free counter, the customer isnot allowed to take delivery there. Clerks are responsible for taking the liquor to an airport lounge, finding'the customer and closing the trans~action just prior to the departure of an international flight. This means a short trip or often a long trip and meeting a deadline which must be met to fulfill the L.C.B.O. obligation to the purchaser. Failure can lead to problems, not only with the customer but with the paper-work which would necessarily ensue. These are responsibiltiies not imposed on clerks. at'other stores, where liquor is sold ,for cash over the counter in what is seldom a transaction of~great urgency.. In short, while the classification may be the same, the job of .$ Clerk 4 at the Airport is not really the same job as that of a Clerk 4 at the. Toronto stores where Mr. Frolack has worked since 1961. II The Grievor's Qualifications In his testimony, Mr. Frolack explained in detail ' '~ and at length the operations within his experience, including both self-serve,stores and conventional stores. He did so slowly but clearly. It was apparent that he understands the work very well. This is confirmed by the series of annual rating reports by his managers from 1974 to 1977. .In the first report the grievor's manager said that he "is neat, has good public relations, a steady worker? District Supervisor E.T. Gibson added that: "Mr. Frolack has a good knowledge of store operations procedures but has a belligerent attitude toward all management. I recommend no change at this time." In the 1975 report his manager, Mr.' C. Jeffers, stated: "Since arriving at this store Mr. Frolack has been placed in charge of a shift when needed. I am satisfied with his work and deportment. He is presently at his maximum salary. Due to the very short time he has been ..b at this store, I cannot make a comprehensible (4iC) assess- ment. Recommend no change at this time.; Supervisor Gibson commented: "Mr. Frolack is an average employee, doing ~a satisfactory job ins his present classification. Recommend no change.".' In the i976 report Mr. Jeffers said: "Mr. Frolack is an average employee. In the past has handled all jobs assigned to him..... Recommend no change.". Mr. Gibson added: "Mr. Frolack._is an average employee receiving maximum salary. Recommend no change at this time.!' In the 1977 report Mr. Jeffers said: “Mr. Frolack knows all phases of the Operations in this store. Averages employee....." ,... Mr. Gibson's comment Was:' "Average employee. At maximums salary. Recommend no change at this time." This last report was made in September, 1977, about the same time as the so- called "competition" held'for prbmotions at the Airport. With two exceptions, Mr. Frolack was rated in all the above mentioned reports as "A", which means average. The exceptions were in 1974 when he was rated "AA" (meaning above averag~e) for "Appearance" and also "Public Relations and Service." Under all the other 11 headings, he was rated A, or average. There w,as a somewhat half-hearted attempt to show Jo that the grievor had an unsatisfactory record, but it is not really supported by the rating reports or other documentary evidence. -What seems to have told against him is that over a 16-year period he was involved in several arguments with superiors --- and won at least two of his grievances. The grievor himself said that in 1962 he had an -acrimonious exchange with a manager named Jennings. This was many years before the 1977 promotions and is rather remote from the issue here. In1977 he had an argu~ment with manager Jeffers, when he,objected to taking responsibility for a $1,500 "float;" anything more than $300, he thought, should be in the safe. On an earlier occasion he was disciplined because he absented himself to see his lawyer. Another argument occurred when he took a day off for the Ukrainian Christmas, which he said had'been authoriz~ed bya management bul letin. Refused leave by his manager, he was suspended. At Christmas of 1971.. there was another argument about a shortage of $11 which.he refused to pay on the ground that another clerk was $11 over and they were working on the same .shift but with a separate, till. Suspended for three 'weeks he was subsequently reim- bursed after complaining to senior management. On another occasion the grievor volunteered to do landscaping and painting outside his store; he took the liberty of foregoing his lunch-break and then going:home early. For this,.he was rebuked because other employees complained i-- whereupon he abandoned the fence-painting. In 1976 there was an adverse comment in hisratings'report .by manager Jeffers: he objected, as a result of which one line was deleted from that report. In cross-examination Mr. Frolack said that.there were only two superiors for whom he had any respect, Mr..Gibson and one manager. Later, he explained that he knew very few superiors but did know Mr. Gibson. He was no.t sure .whether he had had two or three suspensions during his'career with the L.C;B.O. but he had won all his grievances. There was considerable evidence regarding the griever's ability to perform the. so-called book-keeping work required by the employer. This consists in the main of completing the forms required to maintain in good order records of stock received and sold as well as cash received. This work is done by a Clerk 3 (in rotation with other Clerk 3's) as well as by a Clerk 4. We think that from his wide experience in at least nine different stores Mr. Fro.lack's knowledge of such work was probably adequate. Generally speaking the evidence of the grievor and other witnesses is to .the effect that there is much in common between the work of a Clerk 3 and the work of a Clerk 4, so that after some years at the former level an employee of average intelligence or better should have no difficulty assuming the responsibil- ities of a Clerk 4. The Board is'not taking into account Mr. Frolack's experience since 1977, although he.has con- tinued to work for the L.C.B.O.' as a Clerk 3. ~The real issue here is whether he was "qualified" for promotion to the Grade 4 level in November, 1977. It is perhaps significant that Mr. C.'Jeffers was the only store manager called as a witness who ,had actually. supervised Mr. Frolack. He had worked under at least a dozen other managers who were not called. Mr. Jeffers made clear that he did not find Mr. Frolack sufficiently co-operative and said'flatly:' "1 would not recommqnd him for promotion." However, he did concede that the grievor had shown considerable initiative in per- forming outside work at the store and in bringing paintings which improved the interior appearance of the store. Mr. Jeffers said he rates a fully satisfactory employee as A --- rarely AA. Mr. '~Jeffers gave the impression that he considered. the grievor to be a little too independent and not sufficiently conformist or submissive to merit a high recommendation. Some : of his disparag~ing remarks were not convincing. For example he said that the store book-work is not difficult and he thought the grievor knew the "theory, maybe not the practice." And also that the griever had "errors" (which is probably true' of most employees anywhere) but that his shortages and.over- ages were "average." Mr. James Lea1 had been manager at the Airport when the first store was opened and continued in that capacity until July, 1975, when he became supervisor of District 17, which includes.the territory between Oshawa and Scarborough and also the Airport. He had been involved in'a series of promotion decisions, which would be taken when the area manager called a meeting of supervisors for the purpose,of filling vacancies. At these meetings were copies of job postings and also lists of employees showing their seniority. It was not the type of competition in. which candidates appeared before a selection board. Mr. Lea1 said that in going down the list the supervisors would consider a man's suitability for a particular job. He could recall 5 everal meetings where-there were discussions about the grievor although he-could not recall exactly what had happened in the summer of 1977. At one meeting Mr. Frolack had been discussed at great length and supervisor Gibson always said that Mr. Frolack was not qualified to become a Clerk 4 or to receive a promotion. Mr. Lea1 also said that it was he who recommended changes in the airport structure because he knew that several clerks at'the Grade 3 level were doing Grade 4 work, and he ~~ z also recommended an increase in the staff. He confirmed that on the seniority list, Exhibit 19, there were two appointees who had less seniority than the grievor. These .were the two named in ~Mr. Frolack's two grievances, which is ~really one grievance.. He could not recall any "outsider" getting a promotion to an Airport store prior.to November, 1977. It had been the policy from the outset to,~,:~promote from within ~. :r the store, although in 1973 or 1974 it was decided that people could be transferred in and out. ~Mr. R.M. MacDougall, staff relations officer, presented Exhibit 14, a list o.f the adverse comments on file in respect of- Mr. Frolack. There are 15 in all,'but nine of these were dated before.1967 and only six since in, January 5, 1972. Most of the matters recorded are rather innocuous with statements such as:~ "'June 3, 1966 --- report. from supervisor (employee being troublemaker.") Such early _ entries are rather remote from the situation in November, 1977. Only. two suspensions are recorded on Exhibit 14. The first, April 23, 1965, reads: "Suspen,ded 2 days (failure to return to work on time)" The second is January 5, 1972: "Suspended 5 days (refused to adhere to Manager'sxdirect order re cash shortages) Subsequently withdrawn --- warning substituted;" Other entries in Exhibit 14 are of a trivial nature, e.g. the last item, which .is "September, 1975, --- Annual Performance Report (improvement --- average.")~'.'.-As a "disciplinary record" Exhibit 14 is less than overwhelming<. It is worthy of note that the only witness with any experience in directly supervising the griever was Mr. Jeffers. ~ This was for about three years .and Mr. Jeffers authored the rating reports of 1975, 1976 and 1977. It is clear that he thought Mr. Frolack to be a satisfactory employee in that he did his work well, but was difficult to get along with. Mr. Gibson, a senior supervisor, had some knowledge of the grievor but mbst of their contacts arose out of Mr. Frolack's complaints, which occurred when Mr. Frolack had a difference of some kind with his manager. The resulting impression of the employee was that he made an issue of small things. He was insistent, for example, on taking a holiday for the Ukrainians Christmas. According to Mr. Frolack, the management attitude on such matters was too rigid but there has been, he said, an improvement in recent .,.~ years; in his words, it is now more "human." The fact remains that at management meetings Mr. .Gibson opposed the promotion _,l 0 of the griever, probably because of his experience with Mr. ,Frolack's complaints and grievances. The only employee who had actually worked side by side with Mr. Frolack was Mr. Alfred Warwick who said that he is himself a Clerk 4 now, although (in getting~ there) he found it necessary to grieve "because others with less seniority _ jumped over me.." He had worked with the grievor for 18 months 'or more at the Jane and Dundas store,which he described as a busy class A outlet with 19 full-time employees. Testifying \ under.subpoena, he said that the grievor is a "perfectionist" and rated him as -"average." He said that in some.stores a Clerk.4,is called on to act- as manager. He himself is now . . . functioning in a class C store with only four full-time employees and no:;;assistant manager. In argument, Mr. Heisey, the griever's counsel, suggested that Article 16.11 (now 16.10) of the collective agreement is applicable. .It provides: 16.11 In the event an employee who has been promoted is unable to p2rfor-m the requirements of ttra position in a satisfactory manner within a pried not exceeding 3 months from date of appointment,~the employee shall be reclassified by the Board to the employee's previous classification. We do not think that Arti to Mr. Frolack's case. It refers cle 16.11 had aqr+application ,Y expressly to "an employee who has been promoted." Mr. Frolack was not promoted in 1977, so that the provision does not. come into play. Clearly what the provision means is that if, after the promotion,an employee seems unable to meet the' requirements of the position, then he has three months to prove otherwise. The main thrust of Mr. Heisey's argument was that ~ the grievor had been passed over because it was management policy to fill the Grade 4 positions at the Airport from among the employees already working there. Th.is , he said was contrary to the requirements of Article 16.7 (now 16.6(a )) the provision quoted at the outset of this Decision. On the other hand Mr. Moran, counsel for the employer, submitted that '- the grievor had failed to show he was qualified in 1977 for = a Grade 4~'position, and even if he were it does not follow that he could qualify as a Clerk 4 at the Airport, because the promotion involved not merely a new classification,.but a new "job. " He contended.that since there were additional responsibplities at the Airport, including some. supervision,. the "attitude" of the candidate was very important: the record indicated, like the testimony of the grievor himself, that his attitude to management was critical and uncooperative. By consent, Mr. Heisey submitted his reply in written form, a very able and lengthy argument. In it he analysed the testimony of all witnesses as exhaustively as Mr. Moran had done in oral argument. E . As Mr. Moran has properly pointed out, the issues in this case are almost purely factual. There is a factual.. issue about the qualifications of the grievor in 1977. There is a factual issue about the differences and the simi.larities between work at the Airport and work in other stores. On these two issues this Board has reached clear conclusions. On balance, we are satisfied that Mr. Frolack did ' in fact possess the necessary qualifications to function as a Clerk 4 in most stores. He had many years of experience and's detailed knowledge of the Board's proceedures and requirements for efficient operation, so much so that he was able to explain them lucidly. The points which could count against him were a few disagreements with several managers over a period of many years. We do not consider these sufficiently weighty to justify the employer's belief that his "attitude" was too negative to be acceptable. On more than one occasion when he differed with management, it turned out he had some justification for doing so. We find it singularly inconsistent on the part of Mr. Jeffers that he should say in his reports that the griever "knows all phases of the operations in. this store," and "has handled all jobs assigned -to him" and also "has been placed in charge of a shift when needed" --- and testify some years later that 3 "I would not recommend him for promotion." The meaning of Article 16.7 is clear: an employee with ample experience .>~- .~' and thorough knowledge is entitled to a promotion on the -basis of seniority unless there is clear proof on othdr grounds that he must be disqualified. On the other hand, the Board is also satisfied thst there are substantial and important differences between jobs at the Airport and jobs in other stores; At 58, Mr. Frblack ,.. is no longer a young man: he appears to be, as one witness said, a "perfectionist' and one who would carry out all his duties very de~liberately and carefully, perhaps because of experience in his younger years as a journeyman carpenter During the first two~days of hearings he testified at great length, and was vigorously cross-examined. Our view is that he would not be suited to the hectic and demanding pace of z..: ,y .' work atthe Airport in an atmosphere of tension which causes some employees to suffer ~(as Mr. Cudney said) "frazzled nerves." It seems clear to us that Mr. Frolack would not be at his best in the Airport, but that he could perform very well in a relatively: small store where an air of haste and tension does not exist. In the result,._this-grievance must fail: the griever was not really qualified in 1977.to fill one of the demanding ? : Grade 4 positions at the Airport. On the other .hand,- in view of our conclusion that he was qualified for'promotion at that time, if not to the Airport job then to another more *. suitable job at the'Grade R level, it follows that the L.C.B.O. should review and reconsider its assumption that Mr. Frolack could not be promoted by reason of his record and so-called "attitude." In our view, the assumption was based on subjec- tive rather than objective considerations and.largely because of Mr. Frol'ack's habit of asserting whathe believed~ to be his rights and stating his position emphatically. By'way of an example, we do not think it should be held against him. that. he insists on celebrating Christmas at the Ukrainian Dante rather than on December 25. fin a multi-cultural society such concessions must sometimes be made by an enlightened management. DATED at Rockwood, Ontario this 5th day of October, 1981. E.B. Jolliffe.0.C. Vice-Chairman M. Gibb Member "I dissent" (dissent to follow) S. R. Hennessy Member EBJ:jce