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Home My WebLink About1983-0482.Kalichuk.84-04-02IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OLBEU'(Wally Kalichuk) - And - Grievor The Crown in,Right of Ontario (Liquor Control Board of Ontario) Employer R.L. Verity, Q.C. Vice Chairman H. Simon Member G. Milley Member For the Griever: A.M. Heisey, Counsel Blake, Cassels & Graydon For the Employer: M.P. Moran, Counsel Hicks Morley Hamilton Stewart Storie Hearing: January 24, 1984 -2- DEC.ISION This matter relates to the issue of entitlement to a responsibility allowance pursuant to the provisions of Article 5.12(a) of the Collective Agreement. The Grievor is an Assistant Manager at Liquor Store No. 559 located at Brantford, Ontario. In a Grievance dated July 22, 1983 Wallace Kalichuk alleges that he was improperly denied "premium pay for managing store from 9 - 2 July a/83‘*:. The facts are not in dispute. Liquor Store No. 559 is a B level liquor store which normally employs 5 persons including a Store Manager and an Assistant Manager. The working hours for employees at Store 559 are 9:00 a.m. to 6:00 p.m. four days a week. On Thursday and Friday the working hours are from 9:00 a.m. to 9:00 p.m. On the latter two days there are two shifts each day, namely a day shift from 9:00 a.m. to 6:00 p.m. and a second shift from 2:oo p.m. to 9:00 p.m. in accordance with Article 5.2(a) of the Collective Agreement. On Friday, July 8, 1983, the Grievor worked the day shift and the Store Manager worked the second shift. The Grievor claims entitlement to the premium pay for the time worked on that day while he was acting for the Store Manager in his absence. -3- Article 5.12(a) reads as follows: '\. “5.12(a) The Boards agree to pay a premium of four dollars and fifty cents ($4.50) par day to an employee acting for the Store Manager in his absence, provided he is assigned to act for a mininnrm of three (3) consecutive hours. Such premium will not be paid to an Assistant Manager in charge of the second shift. Bowaver, it would be applicable to the parson desig' nated to act for the Assistant Manager in his absence while wxkinq the second shift." The main thrust of the Union's argument was that Article 5.12(a) is clear and unambiguous in its language and established the Griever's entitlement to premium pay. Mr. Heisey argued that although the Assistant Manager was specifically excluded from a responsibility allowance for the second shift, the wording of the Article contained no similar prohibition for the first shift. In addition, he relied upon the wording of a Letter of Agreement between the Parties entitled "Temporary Replacement of Store Manager". He argued that extrinsic evidence was inadmissible unless an ambiguity could be determined. The Employer's initial position was that Article 5.12(a) contained no ambiguity. It was argued that an Assistant Manager's job responsibilities and xamensurate pay did not contemplate entitlement to a responsibility allowance. In essence, the Employer stated that the Grievor was not actinq for the Store Manager in his absence, but was merely performing the responsibilities of his position as Assistant Manager. Alternatively, Mr. Moran argued that the doctrine of promissory estoppel was applicable in the instant Grievance and that the Board was ,, i -4 - not prohibited from hearing extrinsic evidence in that regard, and cited for that authority the Award of Re CN/CP Telecommunications and Canadian Telecommunications Union (1981) 4 L.A.C. (3) 205 (Beatty). The Beatty Award was upheld by the Divisional Court of the Supreme Court of Ontario in Re C.N.R. Co. et al and Heatty et al (1981), 128 D.L.R. (3d) 236, 34 O.R. (2d) 385. As a further alter- nati,ve, Mr. Moran argued that if the Article was found to be ambiqious, evidence of past practice adduced at the Hearing was consistent with a long standing and previously unchallenged practice of the Employer to deny responsibility allowances to Assistant Managers. The question for determination is a matter of interpretation of the Collective Agreement and in particular Article 5.12(a) of that Agreement. The function of this Board is to interpret the provisions of that Article and to apply its terms to the particular fact situation at hand. The Board is of the opinion that the wording of the Article is not ambiguous. The implication of the wording at first blush may be that the Grievor is entitled to premium pay: however,we are unable to agree that is the proper inference to be drawn. The Griever's classification is "Liquor Store Manager 2". That classification covers positions of Assistant Managers of a B level liquor store and Managers of a C level Liquor Store "with responsibilities to run or share in the running of a conventional or -5- self-serve store...". As the classification guide indicates (Exhibit 5) "duties include overseeing store management or sharing management tasks with a manager (where store is a B level) ". Under the heading "Typical Duties" the classification states in part as follows: "Assistant Manager takes full responsibility in absence of IGnager." i The evidence is clear that management of a Liquor Store is a shared responsibility between a Manager and an Assistant Manager. The terminology Manager and Assistant Manager are merely L.C.B.O. designations and are not classifications per se. Under the Article in question an Assistant.Manager is not "designated" to act for a Manager. We are fortified in that position by the wording of the last sentence of the Article which reads as follows: "Bxever, it mid be applicable to a person~designated to act for the Assistant Manager in his absence while wxking the second shift." (Our enphasis) In our view, the wages received by an Assistant Manager as set out in the Collective Agreement take into account the job respon- sibilities of the position. -6- For the purposes of Article 5.12(a) ati Assistant Manager is not acting for a Manager in his absence, but rather he is acting in his own capacity as an Assistant Manager in the exercise of his managerial responsibilities. Inevitably, an Assistant Manager works in the absence of the Manager on numerous occasions during any given week, i.e. during a Manager's day off; during a Manager's lunch break: and as is the case here, where the Manager works a separate shift. Accordingly, we must find that Assistant Managers are not entitled to'premium pay or responsibility allowances pursuant to Article 5.12(a). The Union's reliance on the Letter of Understanding which is also printed in the L.C.B.O. 's procedural 'manual is of no 1 assistance to the Grievor on the instant facts. That letter reads: "TeqoraryReplacem3ntof Store Manager Where it is decided that it is necessary to make a temporary appointma& to replace the absent Store Manager, it is the @icy of the Ward to appoint+& ntxt senior person in the next lomst classification who is qualified and available to perform the Store IQnager's jab." Although the Board reserved its decision at the Hearing on the issue of the admissibility of past practice, we find that this is not the type of case where past practice is relevant. - I - I In the result, this Grievance must be dismissed. R.L. Verity, Q.C. Vice Chairman ~"1 ~dis'sen~t~" ~(~s~e'e att'ache~d) H. Simon Member "I concur" G. Milley Member -8- DISSENT I regret that I am unable to agree with the vice-chairman’s award in this matter. I agree that past practice is not relevant in this case. The collective agreement is clear and unambiguous. Article 512 (a) reads: “The Boards agree to pay a premioum of four dollars and fifty cents.per day to an employee acting for the store manager in his absence, provided he is assigned to act for a minimum of three (3) consecutive hours. Such premium will not be paid to an assistant manager in charge of the second shift. HOW*V*r, it would be applicable to the person designated to act for the assistant manager in his absence while working the second shift”. This clause is in no way inconsistant with any of the other clauses in the agreement. Article 5.12 (b).and (c) provide for premium payments to other store employees when replac ing employees in higher classifications. Furthermore, the letter of agreement provides “where it is necessary to make temporary appointment to replace the absent store manager, it is the policy of the Board to appoint the most senior person in the next lowest classification who is qualified and available to perform the store manager’s job”. In our case the griever was the most senior person in the store and he was requested to perform the store manager’s job. It is clear from the evidence that the duties and responsibilities of a store manager are much greater than those of assistant store manager. The parties must have had good reason to agree to a special premium payment to the assistant manager when replac ing the store manager on certain occasions. As stated above the agreement is clear and unambiguous on this issue before us. I would allow the grievance to succeed. A--e&== marry Simbn, Board Member