GSB # 1425/98
OLBEU # OLB115/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union (Pizzolato)
Grievor
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE Owen V. Gray Vice Chair
FOR THE Ms. Julia Noble GRIEVOR Counsel Ontario Liquor Boards Employees Union
FOR THE Ms. Alison Renton EMPLOYER Counsel Liquor Control Board of Ontario
HEARING March 23, 1999 July 12, 13, 1999 September 9, 16, 1999 October 21, 29, 1999 November 25, 1999 February 7, 2000 April 4, 5, 2000 May 1, 2, 2000
DECISION
1Sometimes an LCBO store is open at a time when neither its store manager nor its assistant manager is scheduled to be at work. On those occasions, another store employee is assigned to be in charge of the store, and is paid a premium for that shift. On 13 occasions between April 10 and August 4, 1997 a store employee junior to the grievor was paid that premium on an afternoon shift at store 505, where the grievor worked as a full-time Customer Service Representative (“CSR”). The grievor says she should have been scheduled to work the afternoon shift and assigned to be in charge of the store on each of those occasions, because of her greater seniority. The remedy claimed is payment of the $8.50 per shift premium that the grievor would have been paid, had she been scheduled to work and selected to be in charge on each of the 13 afternoon shifts in issue. For some of the shifts in issue, there is a dispute about whether the grievor was offered and declined an opportunity to work it. The larger issue of principle in dispute is whether in 1997 the employer was obliged to make these “in charge” assignments in accordance with seniority, as the union claims it was.
2The employer designates each of its liquor stores as an “A”, “B”, “C” or “D” store in accordance with the store’s size and volume of sales. Store 505 was an “A” store during the period in issue. The store managers of the larger “A” and “B” stores are managerial personnel excluded from the bargaining unit covered by the collective agreement, but store managers of the smaller “C” and “D” stores are not excluded. “A” and “B” stores also have a “Store Assistant” or assistant manager, a position that falls within the bargaining unit. Indeed, at one time larger “double shift” stores — stores at which a day’s hours of operation are covered by two shifts of employees — each had two assistant managers who rotated between the day and afternoon shifts.
3In 1991 the employer announced that it would reduce the number of assistant managers in each double shift store to one, and require that assistant managers work steady afternoon shifts while store manager worked steady day shifts. The union grieved that the permanent assignment of an assistant manager to the afternoon shift was contrary to the collective agreement. When that grievance came on for hearing, the parties were in dispute about whether it had been settled. The majority of the panel assigned to hear the grievance found (GSB File #860/91, decision dated February 14, 1992, at pages 5 and 6) that the parties had settled it on the following terms:
(1) The terms of the settlement shall become effective November 1,1991.
(2) Assistant managers in double shift stores shall be assigned to work the afternoon (second) shifts on a weekly or biweekly rotational basis. The assistant manager shall not normally be required to work more than half of the scheduled second shifts within the one or two ‑week cycle.
(3) Assistant managers may elect to be scheduled to work more than half of the afternoon shifts on a voluntary basis. It is understood however that the assistant manager has the right to revert to rotational scheduling. Scheduling preferences must be indicated before store staff schedules are completed.
(4) When the assistant manager has not been assigned to work the afternoon shift, this assignment will be offered to the most senior employee in the next lowest classification in the store who is qualified to perform said assignment.
(5) When assigning employees to the second shift, the Store Manager will make every reasonable effort to balance the needs of the staff with operational requirements of the store.
4Until the last day of hearing in this matter, the union’s claim that the employer was obliged to make the “in charge” assignment on the basis of seniority was based primarily on paragraph 4 of this 1991 grievance settlement and, in the alternative, on Article 25.1(c) of the parties’ collective agreement. The collective agreement in effect at the time of the 1991 settlement (“the 1991 collective agreement”) remained in effect until the parties came to agreement on the terms of the collective agreement covering the period April 1, 1996 to March 31, 1998 (“the 1996-98 collective agreement”). The precise date on which they did that is not clear from the evidence and submissions before me. It was common ground, however, that the 1996-1998 collective agreement was in effect throughout the period in which the grievor’s claims arose. During her closing submissions, union counsel said that the union was abandoning its claim that the terms of the 1991 settlement had still been in effect when grievor’s claims arose in 1997, and would rely only on its alternative arguments based on Article 25.1(c) of the parties’ collective agreement
5The relevant provisions of the 1996-1998 collective agreement are Article 6.12 and paragraph (c) of Article 25.1:
6.12 (a) The Employer agrees to pay a premium of eight dollars and fifty cents ($8.50) per day to an employee acting for the Store Manager in his/her absence, provided he/she 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. However, it would be applicable to other employees in charge of the store during the Manager's absence, while working the second shift.
(b) An employee (other than those in (a) above) designated by the Employers to replace another employee in a higher classification shall receive a premium of one dollar and twenty cents ($1.20) per hour for each hour such duties are performed provided he/she works a minimum of two (2) continuous days in the higher classification. Acting pay shall not exceed the maximum of the salary range of the higher classification.
21.5 …
(c) Where it is decided that it is necessary to make a temporary appointment to fill a temporary vacancy, including summer stores, which will last five (5) working days or more, or one day in the case of stores, the Employer shall appoint the most senior employee in the next lowest classification in the department, section or store involved, who is qualified and available to perform the work.
Article 6.12(a) of the 1991 collective agreement provided for an $8.00 premium, increasing to $8.50 in July 1992. In all other respects, the language of both Article 6.12 and paragraph (c) of Article 25.1 of the 1996-1998 was identical to what it had been in the collective agreement that was in effect when the parties negotiated the 1991 settlement.
6The union argued that when the employer assigns an employee other than the store manager or assistant manager to be in charge of a store during an afternoon shift, it is making “a temporary appointment to fill a temporary vacancy” and is, therefore, obliged by paragraph 21.5(c) to appoint the “most senior employee in the next lowest classification in the … store involved, who is qualified and available to perform the work.”
7The union submited that the “temporary vacancy” being filled is in the position of store manager. In answer to the employer’s argument that paragraph 21.5 does not govern appointments to managerial positions outside the bargaining unit, the union argued that an employee “acting for the Store Manager in his/her absence” in an “A” store does not have all of the duties and responsibilities of an “A” store manager and the assignment does not take the assigned individual out of the bargaining unit. In the alternative, the union argued that the “temporary vacancy” being filled is in the position of assistant manager. In the further alternative, the union submitted that the “temporary vacancy” being filled is in a position that might be described as “acting for the Store Manager” or “shift supervisor” but is not set out in the classification schedule of the collective agreement. The union argues that in both of these alternatives article 6.12(a) still applies.
8The parties agreed at the outset that while a CSR or assistant manager is performing an “acting assignment” (that is, “acting for the Store Manager in his/her absence”)
the employee continues to pay union dues, and these dues are duly remitted by the Employer to the Union,
the employee’s bargaining unit seniority continues to run,
the employee does not have the authority to hire or fire other employees,
the employee has the protection of and access to the grievance procedure while on the acting assignment,
the employee continues to make pension trust contributions, and
the employee is for all intents and purposes a bargaining unit member.
They further agreed that “acting for the Store Manager” in article 6.12(a) is a phrase that in practice and effect refers to an employee’s being in charge of a shift, regardless of the size of the store. The employer later argued, however, that “Store Manager” refers only to store managers in the bargaining unit.
9The grievor testified that while performing an “in charge” assignment she would spend about 90 percent of her time performing her normal CSR duties, and that her additional duties involved opening and closing the store and setting the alarms, setting up cashiers who were working on her shift, assigning duties to the other employees on the shift and balancing the store safe.
10Employer witness Mr. Gary Leigh testified that as an A store manager he had been involved in hiring processes on several occasions as a member of competition panels interviewing and assessing candidates, had completed performance appraisals for employees who reported to him, had made decisions about issuing discipline, had issued notices of intended discipline and on one occasion may have recommended discharge, received management training and was responsible for preparing the store’s budget. There was no evidence that bargaining unit employees performed any of these functions while performing the acting function contemplated by article 6.12(a).
11During her opening statement, counsel for the union asserted that an assistant manager has more duties and responsibilities than a CSR in charge of a shift does. The evidence established that, as of 1997, the functions of an assistant manager were similar to those of a CSR in charge of a shift except that the assistant manager is generally responsible for preparing work schedules and may also have some delegated duties of the manager in relation to preparation of budgets, monitoring of worker’s compensation claims and return to work programs, approving health and safety reports. There is no suggestion that these are insignificant or minor functions. The assistant manager also has authority to spend small amounts of money for store purposes, while a CSR in charge of a shift does not.
12It is apparent that, as used in article 21.5 and the other parts of article 21, “vacancy” refers to a vacant job or position, not to a work assignment that might be made to the incumbent of one position or another. “Temporary vacancy” must have a corresponding meaning. The reference in paragraph 21.5(c) to “the next lowest classification” implies that the temporarily vacant position has an associated classification. In their collective agreement, the parties have established classifications for positions covered by that agreement. From the perspective of the collective agreement, it is not meaningful to speak of the classification of a position to which the agreement does not apply.
13In Sheridan, 2299/93 (Briggs), another Vice-Chair of this board concluded that paragraph 25.1(c) of the parties’ 1991 collective agreement did not apply to appointments to temporary vacancies in positions not covered by that collective agreement. I see no reason to come to a different conclusion with respect to the identical provision of the 1996-98 agreement.
14It does not follow, however, that every reference in the collective agreement to a position must be read as though the words “bargaining unit” preceded it so that, as employer counsel argues, “an employee acting for the Store Manager in his/her absence” is only entitled to the premium provided for in Article 6.12(a) if the absent store manager is a bargaining unit employee. Although the employer has for years paid the premium contemplated by that article to employees put in charge of larger “A” stores in the absence of store managers excluded from the bargaining unit, employer counsel argues that this was not required by the collective agreement and has been done gratuitously.
15In Kalinchuk, 482/83 (Draper), the Board found that Article 5.12(a) of the parties’ then collective agreement (which provided for a $4.50 per day premium but was otherwise identical to Article 6.12(a) of the 1996-98 agreement) applied to an assistant manager in charge of the first shift in a “B” store in the absence of the store manager. There appears to have been no suggestion by the employer there that the provision was inapplicable when the absent store manager was not in the bargaining unit although, as employer counsel notes, there is no indication in the award whether “B” Store Manager was a bargaining unit position at that time.
16In Policy Grievance, 597/86 (Samuels), the Union sought a declaration that all employees, including Clerk 4’s and Assistant Managers, were entitled to premium pay under Article 6.12(a) of both the collective agreement in force in June 1986 and the 1987/88 agreement (which were both identical to Article 6.12(a) of the 1996-98 agreement except for the amount of the premium) when assigned to act on the Store Manager’s day off, subject to the qualification in the second sentence of the article. One would have thought that the distinction now being raised by the employer would have been asserted then, if the employer believed that “Store Manager” meant “bargaining unit Store Manager.” Evidently, it was not.
17Article 6.13 of the collective agreement provides as follows:
6.13 There shall be one (1) fifteen (15) minute rest period during each half (1/2) shift or each half (1/2) work day. Such rest period shall be at times designated by the Store Manager or Department Head (except with respect to rest periods referred to in Article 6.2).
Employer counsel was unable to explain why the parties should be imagined to have meant “bargaining unit Store Manager” when they used the phrase “Store Manager” in this provision. I cannot imagine that they did. Equally, I cannot imagine that the parties intended such a qualification when they used the same phrase in Article 6.12(a). Accordingly, I find that “Store Manager” has its ordinary, unqualified meaning in Article 6.12(a). That article bears application whenever an employee is assigned to be in charge in a store manager’s absence, whether or not the absent store manager is a bargaining unit employee.
18Returning to the issue of the applicability of paragraph 21.5(c), the premise of the employer’s argument was that when someone is assigned to be in charge of a shift in the absence of the store manager in an “A” store, they have been appointed temporarily to the position of “A” store manager, and that paragraph 21.5(c) is inapplicable for that reason. The union argued that
… arbitration cases concerning the issue of bargaining unit employees being assigned to temporarily fill a vacancy which has arisen in a non-bargaining unit position … show that it is common practice in labour relations for bargaining unit employees to temporarily fill non-bargaining unit positions, and that normally the acting employee is not working in an excluded position when they are performing the acting function.
The awards cited for this proposition are Re United Automobile Workers, Local 195 and Duplate Ltd. (1957), 6 L.A.C. 335 (MacRae), Re Red Deer Regional Hospital and United Nurses Of Alberta, Local 2 (1992), 1992 CanLII 14559 (AB GAA), 28 L.A.C. (4th) 415 (Ponak), Re Newfoundland Processing Ltd. and United Steelworkers of America, Local 9316 (1993), 1993 CanLII 16784 (NL LA), 35 L.A.C. (4th) 244 (Alcock), and Re Custom Pharmaceuticals and International Association of Machinists and Aerospace Workers, Lodge 171 (1998), 1998 CanLII 30139 (ON LA), 74 L.A.C. (4th) 73 (Petryshen). None of those awards concerned an employee “assigned to temporarily fill a vacancy which has arisen in a non-bargaining unit position.” They all deal, from one perspective or other, with situations in which bargaining unit personnel have been given some supervisory duties but not appointed, temporarily or otherwise, to an excluded management position. They illustrate that the assignment to and performance of some supervisory duties by a bargaining unit employee does not necessarily transform him or her into an excluded manager.
19As follows from the conclusion expressed in paragraph 13 of this decision, I accept that paragraph 21.5(c) would not apply to the temporary appointment of an employee as an “A” store manager. Notwithstanding the employer’s assertion to that effect, however, I have considerable doubt that making an assignment of the sort contemplated by article 6.12(a) in an “A” store amounts to temporarily appointing someone as an “A” store manager. The union makes a strong case that “acting for” the store manager in an “A” store does not amount to “acting as” an “A” store manager. What would follow from that, however, is that contrary to the union’s submission the employer’s making an assignment of the sort contemplated by article 6.12(a) in an “A” store does not amount to filling a temporary vacancy in the position of “A” store manager.
20In order to demonstrate that an assignment of the sort contemplated by article 6.12(a) must be made on the basis of seniority by reason of paragraph 21.5(c), the union must show (at least) that such an assignment amounts to a temporary appointment to a temporarily vacant bargaining unit position with a classification under the collective agreement that is higher than the grievor’s Liquor Store Clerk Grade 3 classification as a CSR. The only bargaining unit positions in store 505 that had higher classifications than CSR at the times in issue in this grievance were a Product Consultant position and the Assistant Manager’s position. The union did not argue that making an assignment of the sort contemplated by article 6.12(a) amounted to filling a temporary vacancy in a Product Consultant position.
21The union argued that because the second sentence of article 6.12(a) treats being in charge of a second shift as part of the job for which an assistant manager is paid, assigning another employee to be in charge of a second shift amounts to filling a temporary vacancy in the assistant manager’s position. This argument suffers from a defect similar to the one the union attacked in the employer’s argument that assigning an employee to be in charge of an “A” store amounts to appointing the employee as an “A” store manager. Assigning an employee in one position some of the duties regularly performed by an employee in another position does not amount to appointing the former to a vacancy in the latter’s position. It might be otherwise if (among other things) the duties in question are the only ones that distinguished the two positions. As union counsel asserted in opening and demonstrated in evidence, however, the additional duties assumed by a CSR while in charge of a shift are not the only ones that distinguish a CSR’s position from that of an assistant manager.
22There is no distinct classification defined in the collective agreement for a position of “shift supervisor” or “employee in charge” or “employee acting for the store manager” or whatever label one might apply to a person while performing the “in charge” function contemplated by article 6.12(a). It is difficult to characterize temporarily assigning an employee additional duties as amounting to appointing the employee to a position not provided for in the collective agreement when that collective agreement expressly contemplates the making of such an assignment and provides for premium pay for the assignee. Even if it is properly so characterized, however, paragraph 25.1(c) cannot sensibly apply when this notional position has no associated classification under the collective agreement.
23Accordingly, none of the union’s arguments persuades me that paragraph 25.1(c) of the 1996-98 collective agreement applied to an assignment of the sort contemplated by article 6.12(a) in an “A” store like store 505 in 1997 when the assignments in dispute took place. For that reason, it is unnecessary for me to deal with a number of the factual issues raised during the hearing. It would not serve any useful purpose to recite the extensive evidence and argument put before me on those issues and on the factual and legal issues that became moot when the union abandoned its reliance on the 1991 settlement. This grievance is dismissed.
Dated at Toronto this 12th day of June, 2000.