HomeMy WebLinkAbout1985-0650.Scanlon et al.88-11-04 DecisionONTARIO EMPLOYE:;
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CROWN EMPLOYEES DEL ONTARIO
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SETTLEMENT REGLEMENT
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Between :
Before :
IN THE MATTER OF AN ARBITRATION
Under
the CROWN EMPLOYEES ACT
Before
THE GRIEVANCE SETTLEMEST BOARD
For the Grievors:
For the Union:
For the Employer:
OLBEU !Scanlon et ai)
and
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
M. V. Watters Vice Chairperson
J. Anderson Member
L. Turtle Member
D. A. Harris
Counsel
MacLean Gbercover
Barristers and Solicitors
C. Flood
L. Steinberg
Counsel
Koskie & Minsky
Barristers & Solicitors
Empl er
P. Moran
Counsel
Hicks, Morley., Hamilton, Stewart & Storie
Barristers & Solicitors
September 12, 1988
September 1 3 1988
DECISION
In an award dated March 8, 1988, a panel of this
by J. E. Emrich found that the grievances of T. Scanlon, G.
O'Flynn, P. Gregory and C. Wadsworth were arbitrable,
the purported withdrawal of same by the Ontario Liquor Boards
Employees' Union on July
30, 1986. This panel of the boar3
subsequently heard evidence and argument in respect
of Same
September 12th and 13th, 1988. The grievors elected to
interests through private counsel. While counsel
for the
attendance for the presentation of the evidence, they did
participate in the proceedings.
The grievances in question were all similarly worded.
claimed "that my position has been improperly classified
appraised contrary to the gove.rning principles and standards
Board". The relief requested was "to be made whole in all
Permanent Status and all monies lost". The facts surrounding
five grievances are virtually identical and may be stated
i) Each of the grievors at the material time served as
temporary employee at the Kipling warehouse of the
Liquor Control Board of Ontario (L.C.B.O.). Their
rsspective commencement dates at this facility varied
between May,
1983 and April, 1984. There is no doubt
that the grievors were hired as temporary employees
that they were aware of such status. Indeed, they
periodically completed fresh applications for perrnanent
positions with the L.C.B.O.
board chaired
Lang,
P.
notwithstanding
or,
pursue their
union was
in
not actively
Each
aad has been
of the
respects,
these
as follows:
a
and
all
-1-
ii) Prior to late March or early April, 1985, the grievors
did not regularly operate fork
lift trucks as part of
their daily responsibilities. They each testified that
temporary employees were not permitted to drive or
operate these vehicles in that such task was reserved
for permanent employees and, more specifically, for the
most senior Warehousepersons Grade
4. In such period,
the grievors generally worked with transporters and
assembled product for delivery to stores. Transporters
are battery powered vehicles with forks on the back.
These devices are employed in the movement of skids.
It would seem from the evidence presented that the
transporters are not designed to
lift to the same extent
as are the fork trucks. The grievors expressed the
opinion that in this initial period under consideration,
their responsibilities were similar to those that would
regularly be exercised by the permanent Warehousepersons
Grades
2 and 3.
iii The grievors each suggested that a material change occurred
with respect to the nature of their job as of late March
or early April, 1985. From that time onwards, they all
engaged in the operation of fork
lift trucks on a regular
and on-going basis. This work continued until they were
transferred to the new Durham Region Warehouse in March,
1986. In addition to the fork lift work, Mr. Lang and
Mr. Scanlon undertook tasks which they also believed had
been exclusively performed by permanent warehouse employees
at the Grade
4 level. In the case of the former, this
involved work in the "bond area". His responsibilities
there focused on the placement and storage
of imported
wines and liquors.
It required, further, that he maintain
current records as to the location
of this type of product.
In the case of Mr. Scanlon, he was responsible in a four
to six week period for the unloading of incoming product.
In this capacity, he was required to monitor breakage.
It would also appear from the evidence that several, if
not all, of the grievors were involved in this latter
period with the checking of assembled orders prior to
their delivery to L.C.B.O. stores. The grievors each
advanced the opinion that, in the latter phase of their
employment at the Kipling warehouse, their responsibilities
most closely approximated the job duties of the Warehouse-
person Grade
4. In so concluding, they placed considerable
emphasis on their assumption of fork lift responsibilities.
iv) The change in the job performed by these temporary
employees was occasioned by the gradual transfer of
permanent employees from the Kipling Warehouse to the new
Durham Regional Warehouse. This transfer commenced in
October, 1984 and by Christmas, 1985 approximately fifty
percent (50%) of the permanent staff had been relocated
to the new workplace. This process was completed by
mid-March,
1986 with the closing of the Kipling facility.
During this transitional period, many of the responsibilities
which had previously been performed by permanent employees
were assumed by the temporaries. In the context of this
case, this included the fork lifting and other tasks noted
above. There is little doubt that these grievors were
aware
of the transition plans of the L.C.B.O. They
clearly understood that it was the intent of their employer
to transfer all of its Kipling operations to Durham. They
were unaware, however, as to any meetings held between the
union and the employer vis a vis the use of temporary
employees in the change over period.
V) The grievors, with the exception of Mr. Wadsworth, were
made permanent in either December,
1985 or January, 1986.
They were then hired for the Durham Warehouse at the
classification of Warehouseperson Grade
2, but were
assigned on a temporary basis to Kipling until the
closure
of that facility. Mr. Wadsworth was not made
permanent until after his actual transfer to Durham.
These permanent positions were obtained in each instance
by the employee completing an Application for Permanent
Employment. All of the grievors were physically relocated
to the Durham Warehouse in the month of March, 1986.
The sole witness called on behalf of the employer was Mr. J.
Barker, Manager of Warehouse Operations. This gentleman assumed
responsibility in May, 1985 for the closure of the Kipling Warehouse.
His evidence may be summarized as follows:
i The Durham Warehouse was originally scheduled to open
in September,
1984. Its opening, however, was delayed
until March,
1986 as a consequence of numerous operational
problems. During the transitional period when permanent
employees were being transferred to Durham, temporary
staff were assigned to complete the tasks that would have
otherwise been performed by the permanents at the Kipling
Warehouse. During such period, the temporary employees
worked the same number of hours as the permanent staff.
Because of the on-going transfer of permanents to Durham,
temporary employees such as these grievors were not laid
off following the 1985 Christmas season, as would normally
have occurred. Rather, their presence and efforts were
required at Kipling to ensure that it could serve as the
"back-up" to Durham until the latter was fully operational
ii) Mr. Barker attended meetings of March 15, 1983; June 3,
1983; July 14, 1983 and May 3, 1984, together with other
representatives of both the union and the employer. These
meetings, as reflected in the Minutes provided, presented
both parties with an opportunity to discuss the relocation
of warehouse facilities. While much of the discussion
centered on the job classifications for Durham, the subject
of transfer of personnel was canvassed. More importantly,
at the second meeting noted above, the employer disclosed
that "casual and/or temporary employees
will be used for
an extended period
of time during the testing and conversion
period from Kipling to Durham". Mr. Barker recollected
that the union did not raise any objections to such intent.
He conceded, however, that there may have been other meetings
on point at which he did not attend.
iii) Mr. Barker reviewed the classifications of Warehousepersons
Grades 2, 3 and 4, which were provided to the board as
Exhibit
'7' and which are reproduced in their entirety
below. There is no dispute that these classifications
apply only to the permanent positions and that there are
no similar descriptions in respect of the temporary
warehouse employees. Mr. Barker agreed that the most
senior grade
of Warehousepersons were predominantly
responsible for fork lift truck operations. He stated
that the Warehousepersons Grades 2 and 3 would also
operate this machinery, albeit at a much lower frequency.
By the time of his arrival at Kipling, the temporary
employees were driving the fork lifts for the reasons
outlined above. Mr. Barker was aware that such staff
had not previously been permitted to engage in this task.
iv) Mr. Barker expressed the opinion that temporary employees,
such as these grievors, routinely engaged in the same
work as performed by the Warehousepersons Grades
2 and 3.
This statement was consistent with the grievors' assess-
ment of their work prior to March-April, 1985.
It was the position of the grievors that their claim should be
subjected to a "classical job classification analysis". Counsel
submitted that this board should declare as a "matter of fact" that
they had been made permanent as of April
1, 1985. While it was
conceded that we could not order such an appointment, we were urged to
declare that one had already occurred. This request was premised on
the grievors' full-time assumption of tasks previously performed by
the Warehousepersons Grade 4. Much emphasis was placed on their
operation
of the fork lift trucks after that date, It was submitted
in this regard that a "reclassification" was merited given the
fundamental change which had occurred in job duties. The declaration
requested would have significant effect on the compensation and
benefit entitlement of these grievors. We were therefore requested to
reserve our jurisdiction. Counsel relied on the Divisional Court
decision in OPSEU (C. Berry, et al.) and MCSS (released March 13,
1986) in support of this submission.
The response
of the employer, in brief, was four-fold.
Firstly, it was submitted that this case involved matters of
appointment and complement, rather than classification. As such, the
issue was beyond the jurisdiction of this board.
It was suggested
that to make the declaration requested would result in an infringement
upon the exclusive right
of management to appoint and determine the
numbers
of permanent employees. Secondly, it was submitted that at
all material times the grievors were "in fact" temporary employees in
that all parties treated their work at the Kipling Warehouse as being
time-limited. Thirdly, it was argued that the collective agreement
contemplated the assignment of "warehouse work" to temporary employees
and that the employer was not in any way precluded from requiring the
grievors to engage in fork lift duties. Simply put, counsel submitted
that any of the tasks or duties contained in Exhibit '7' could be
properly assigned to temporary employees. Lastly, it was argue? that
the union's failure to object to the employer's plans for the use of
-5-
temporary staff in the conversion period. as voiced at the June 3rd.
1983 meeting created an estoppel which now served to bind these
gr ievors.
The provisions of the collective agreement relevant to the
resolution of this dispute are as follows:
ARTICLE
1 RECOGNITION
1.1.(a) The Boards recognize the Union as the exclusive
bargaining agent for all employees in classifications
shown in Schedule "A" appended hereto.
(b) Solely for the matters dealt with in Article 32,
Part-Time Store Cashiers and Temporary Employees,
the Boards recognize the Union as the exclusive
bargaining agent for employees employed as part-time
store cashiers and temporary employees.
ARTICLE
6 HOURS OF WORK AND OVERTIME
6.12(b)
An employee (other than those in (a) above)
designated by the Board to replace another
employee in a higher classification shall receive
a premium
of seventy-one cents (71c) per hour for
each hour such duties are performed provided he
works minimum
of two (2) continuous days in the
higher classification. Effective July 1, 1986,
the premium under this provision shall be seventy-
five cents (75c) per hour.
ARTICLE 32 PART-TIME STORE CASHIERS AND TEMPORARY EMPLOYEES
The provisions of this Collective Agreement shall apply to part-time
store cashiers and temporary employees except with respect to the
following modifications and exceptions listed in Article 32.3.
32.l(a) .Hours of work shall be posted at least one
(1) full
week in advance
for each establishment and there shall
be no split shifts.
(b) Part-time store cashiers and temporary employees
when scheduled to work on any day shall not be
employed for less than three (3)hours.
-6-
(C) (i, Authorized work performed bv a Part-Time Stare
Cashier or Temporary Employee in excess of:
(a) eight (8) hours per day or forty (40) hours
per week for employees paid the rates established
for Part-Time Store Cashiers
or Temporary
Employees Stores; or
thirty seven and one half
(37-1/2) ho rs per
week for employees paid the rate esta lished
for Temporary Employees Warehouse;
r
(C) seven and one quarter (7-1/4) hours p r day or
thirty six and one quarter (36-1/4) h urs per
week for employees paid the rates est blished
for Temporary Employees Clerk/Typis Grade
1 & 2
(b) seven and one half (7-1/2) hours per ay or
shall be paid at the rate of one and one ha (l-l/2)
times the employee's regular rate of pay.
(ii) Section (C)(;) above does not apply to Par -Time Store
Cashiers
or Temporary Employees assigned to departments
whose employees are covered by variable wor day
or
variable work week arrangements under Article 6.16.
(d) There shall be one (1) fifteen (15) minute rest period for
(e) The Board agrees to pay a premium of four dolla s and fifty
cents
($4.50) per day to a part-time store cash er or
temporary employee assigned to act for a minimu of three
(3) consecutive hours for a Store Manager in hi absence.
with three (3) summer weight and three (3) wint r weight
smocks
of a design approved by the Board and su h attire
shall be cleaned as required by the Board at it expense.
each four (4) consecutive hours of work.
(f) The Board will provide female part-time store c shiers
(e) It is understood that temporary employees in warehouses
and Toronto and Windsor Distribution Depots sha
1 be
reimbursed the cost of safety boots/shoes after one
thousand
(1000) hours worked.
32.2(a) Eight percent (8%) of gross pay, not including acation
pay, shall be added to the regular pay of a par -time
store cashier or temporary employee to compensa e for
paid holidays in Article 7 and in lieu of benefits under
Article 20. Authorized work performed on any h liday
listed in Article 7.1 shall be paid at the
and one-half (1-1/2) times the employee's
of pay.
-7-
receive vacation pay at the rate of four percent
of gross pay during the first six (6) months and
rate of six percent
(6%) of gross pay thereafter,
calculated and paid each pay.
32.3
(4%)
the
32.4
observe up to three (3) weeks of vacation period
provided such period is taken at a time acceptabl
the Boards. The taking of such vacation itself
not be a reason to deny future work opportunity
otherwise would be available.
I
le to
will
that
The following Articles shall not apply to part-t
cashiers and temporary employees: Articles 4 to
inclusive,
20, 21, 22, 24, 26, 30 and 31.
The Boards agree to give consideration to the qu
tions and ability of part-time employees to perf
duties of a vacant full-time position and of cas
employees to perform the duties of a vacant perm
part-time position, before going outside the bar
unit to
fill such positions. Where in the opini
the Boards, two
(2) or more such employees are r
equal in qualifications and abilities, then seni
shall be the deciding factor
in allocation such
TEMPORARY EMPLOYEES AND PART-TIME STORE CASHIE
SCHEDULE
OF HOURLY WAGE RATES
Salary effective July 1, 1985
Salary effective January 1, 1986
Salary effective April 1, 1986
ClerkjTypist Grade 1 (a) $6.47
(b) $6.67
(C) $7.07
Clerk/Typist Grade 2
Warehouse
Stores
(a $7.40
(b) $7.60
(C) $8.00
(a $8.97
(b) $9.17
(C) $9.57
(a $8.97
(b) $9.17
(C) $9.57
Part-time Store Cashiers (a) $8.97
(b) $9.17
(C $9.57
-8-
Exhibit '7' which provides for the classification
Warehousepersons reads:
L.C.B.O. & L.L.B.O. CLASSIFICATION GUIDE
Februr
EVALUATION CLASSIFICATION
CRITERIA WAREHOUSEPERSON GRADE 2
SUMMARY OF This covers positions at the entrance an
RESPONSIBILITY level involved with straightforward assi
LEVEL pertaining to the operations, maintenanc
appearance of a Warehouse bottling and b
premises.
Generally, these positions are not requi
operate rideable equipment.
TYPICAL Duties may include: assisting with the a
DUTIES store orders in case loads on pallets at
ing to appropriate checker; loading and
liquor box cars and placing the cases
or
and other straightforward duties pertain
warehouse operations. Other duties may
cleaning designated locations with the i
machine for sweeping, vacuuming and. scr
performing the regular duties of an oper
the bottling line; performing maintenanc
under supervision; and performing duties
security guard/night watchperson
or othe
functions such as working the enquiry de
operating a freight elevator.
DECISION
No decisions called for, tasks will be o
MAKING/ nature with ample precedent or clearly d
COMPLEXITY procedures as guidance.
CONTACTS Contacts are limited to members of the
Requests for specific information or ass
are referred to the appropriate person.
SUPERVISION None. May provide general information t
GIVEN junior staff performing similar tasks.
SUPERVISION Work
is performed under close supervisico
RECEIVED ments are scheduled over a short time fr
Detailed instructions are provided and
guidance and direction is readily availa
ENTRANCE Completion of eight years of elementary
QUALIFICATIONS
or equivalent. For designated position:
a mechanical aptitude. Previous work ex
is not required.
-9-
of
ry 1 1978
d training
gnme nt
s
e, and
lending
red to
ssembly of
d deliver-
un 1 oad i ng
pa 1 lets;
ing to
include:
se
of a
bbing;
ator on
e tasks
of a
r similar
sk;
f routine
e f ined
ork unit.
is tance
o other
n. Assign-
eme.
ngoing
ble.
schooling
requires
perience
i i
EVALUATION
CLASSIFICATION
RESPONSIBILITY
LEVEL
operations.
QUAL
IF ICATIONS or equivalent. For designated positions
a mechanical. aptitude. A minimum of
experience as a Warehouseperson Grade
equivalent related experience.
departments.
SUPERVISION None. May be required to assist with the training
requires
one year's
2 or
GIVEN
of junior employees.
SUPERVISION Work
is performed under supervision. Established
RECEIVED procedures and instructions cover mos
the work. Guidance and classificatio
available, but each assignment is gen
completed independently due to famili
operations gained through repetitive experience
ENTRANCE Completion
of eight years of elementary schooling
February
EVALUATION
CRITERIA WAREHOUSEPERSON GRADE 4
SUMMARY OF This covers positions at the advanced
RESPONSIBILITY involved with any or all straightforward
LEVEL ments pertaining to the operations,
CLASS
I F ICAT ION
services and maintenance of a warehouse
and blending premises. Expected to know
1, 1978
working level
assign-
support
or bottling
how and
DUTIES assembled store orders; transporting
using a fork truck; assembling store
required; training junior warehousepersons
pallet loads
orders when
in
time pertaining to warehouse operations.
Other duties may include: performing
of an operator for the bottling line or
tanks; maintaining and repairing equipment
limited guidance; and performing other
major duties
blending
under
assigned
Making of routine nature with ample precedent
COMPLEX I
TY defined procedures as guidance. Typical
may include: requesting the correct
trucks
for unloading, correcting a
discrepancy
of a routine nature, putting
when prescribed location is full, planning
€or a routine maintenance assignment,
minor corrections to bottling line.
unit; contacts with other work units
information or assistance. May be
provide: assistance to outside work
incoming orders with suppliers'
review outgoing orders with customer
tives, and provide service or information
CONTACTS Contacts are not limited to members
of
or clearly
decisions
number of
fork
shipping order
away stock
the work
and making
the work
may be for
required to
units, review
representatives,
representa-
to other
-11-
departments.
SUPERVISION None. May be required to assist with the training
GIVEN or oversee the work of a junior employee.
SUPERVISION Work is performed under general
RECEIVED aspects of the work are covered by
procedures. The need for clarification
guidance is minimal due to familiarity
procedures and precedents gained through
experience.
supervision.
Most
established
and
with work
a mechanical aptitude and some related
A minimum of one years' experience as
Warehouseperson Grade 3 or equivalent
experience.
experience.
a
related
After considering the arguments presented, it is t conclusion
of the board that the collective agreement permits the em
assign warehouse work, including that regularly performed
Warehouseperson Grade 4, to temporary employees, as long
assignment is for a temporary period. The agreement befo
not provide for a classification system for temporary war
employees. This may be contrasted both with the treatmen
temporary clerk-typists, for which there are two grades,
permanent Warehousepersons, for which there are three gra
contained in Exhibit '7'. Additionally, the Schedule of
Rates for temporary warehouse employees provides for only
rate. This may similarly be contrasted with the two empl
just noted. We think that this reflects the parties' int
temporary employees in the warehouse may be assigned what
warehouse work" is required. It is significant in this
Article
32 does not provide for premium pay for temporary
employees. The sole reference to same is in Article 32.
to which a premium is paid to a part-time store cashier o
employee who is assigned to act for a Store Manager in th
Further, Article
32.3 renders Article 6 inapplicable to t
employees. This article in paragraph 12(b) requires the
premium to an employee designated by the Board to replace
employee in a higher classification. The absence of a si
provision for temporary warehouse employees reinforces ou
that it was intended that they engage in the broad spectr
warehouse work.
II
-12-
The grievors did not raise any serious objection with respect
to the assignment of work in the period prior to March-Apri , 1985.
As indicated above, in such period they primarily performed the tasks
engaged in by the Warehousepersons Grades 2 and 3. They did not
i
appear to contest the right of the employer to assign such
them. Their concern focused, instead,
on the fork lift wor
assigned to them thereafter. This board is unable to find
altering their prior status. It is our assessment that the
work assumed was simply part
of a larger group of warehouse
fork lift
duties
considerable overlap or similarity in the job duties of the
Warehousepersons.
For example, both Warehousepersons Grad s 3 and 4
may engage in checking, assembling and fork lift operation.
Additionally, the Summary of Responsibility Level in respe t of the
Warehousepersons Grade 2 does not entirely restrict such a employee
from operating rideable equipment.
It simply indicates th t generally
such is not expected.
e
a
In summary then, we have not been persuaded
grievors estimated that such training took only one and
-13-
one-half hours.
that the classification system for the permanent Warehouse ersons
serves to limit what may be assigned to temporary employee
employer's right to determine appointment and complement as
these grievors, subject to the caveat that any work assign d must be
of a temporary nature.
i
The board is of the opinion that the work engaged in by these
reserved
grievors in the "conversion period" was of temporary duration. As
stated earlier in this award, all of the employees in question
considered themselves to be temporary. More importantly, hey all
knew that their work would end in the near future with the opening
of
the Durham facility. While such opening took longer than as
originally contemplated, they could not realistically perc ive their
positions as permanent. Indeed,
for that reason they each applied for
a permanent position at the new Durham Warehouse.
i
For the above reasons, we are unable to find that t
acted as "permanent employees" or that they had "in fact"
As we do not consider this case to be one of classificatio , the
decision
in Berry is inapplicable. i
At the conclusion of the case, counsel for the grie ors stated
that they were arguably entitled to some relief for the period after
their permanent appointment during which they performed
the work of
I
the Warehousepersons Grade 4. Such issue is beyond the
grievance before
us in that the alleged contractual
occurred much later.
In view of our findings, it is unnecessary to determine the
issue of estoppel which
was raised by the employer. Noneth less, we
think that insufficient evidence was presented to support
it’s
application. The primary focus of the meetings referred to was the
classification of jobs at Durham rather than the use to be made of
temporary employees at Kipling. Further, it was acknowledged by Mr.
Barker that he may not have attended all the meetings between the
union and the employer which were held as a consequence of the
intended closure of the Kipling Warehouse. While he could not locate
any minutes taken at additional meetings,
Mr. Barker conceded that
such could have been held. Lastly, it was not made clear to us that
the union had been fully apprised of the employer's plans for the
temporaries other than that they would be employed on a more extended
basis than would otherwise have been the case.
For all of the above reasons, the grievances are denied.
DATED at Windsor, Ontario, this 4th day of November 1988.
Michael V. Watters, Chai person
i
J. Anderson, Member