GSB# 1999-1684
UNION# OLB455/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union (Policy Grievance)
Grievor
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Craig Flood Koskie Minsky LLP Barristers and Solicitors
FOR THE EMPLOYER
Rhonda H. Shirreff Heenan Blaikie LLP Barristers and Solicitors
HEARING
July 22 & 23, 2004.
Decision
I was seized with three related grievances Re Sousa 2003-0119; Re Theodoropolous et al, 2003-2070; and Re Hackett et al, 2002-2833. The parties agreed to obtain a ruling from the Board on the appropriate interpretation of the relevant provisions of the collective agreement through the instant policy grievance before proceeding with those grievances.
The instant grievance was argued on the basis of the following Agreed Statement of Facts and Issues, supplemented by the vivo voce evidence of Mr. Fred Kemp called by the union.
I. FACTS AGREED UPON
In connection with the above-noted arbitration, the parties agree on the following facts. The parties agree that they may call additional evidence which does not contradict these facts. The parties also reserve their respective positions with respect to the relevance of these facts:
Canvassing for volunteers to Work Overtime
Because the Christmas and Boxing Day holidays fell on a weekend in 1999, Monday December 27th and Tuesday, December 28th were not normally working days for the Operations employees at the LCBO’s Durham warehouse facility (“Durham”). Any work on either of these days would be considered overtime for the purposes of Article 6.1(a)(ii).
On November 29, 1999 Mr. Bill Hicks, then Director at Durham, issued a memorandum to all staff stating that there was a possibility of overtime on December 27th and 28th (“Memorandum A”).
Memorandum A requested that employees indicate their interest in working overtime on December 27th and 28th by signing a posted list (“Sign Up List”) before 3:00 p.m. on Thursday, December 2nd.
Prior to this instance, Durham management canvassed FT employees’ interest in working overtime by approaching each FT employee in the overtime rotation one-by-one to determine whether he or she wanted to volunteer to work on a designated date. The LCBO had never previously used a sign up sheet for the purpose of canvassing.
The Sign Up List was posted on November 29th and remained posted until December 7th. During this period of time, it was signed by numerous full-time (“FT”) and casual employees (Casuals”), who indicated an interest in working overtime on December 27th and/or 28th. One FT employee, Ms. Mary-Lou Shepperdson put her name on the Sign Up List but did not check off either date. Instead, she wrote the statement, “Please ask me when you know for sure”.
Confirming Overtime
On December 8, 1999, Mr. Bruce Pizzolato, then General Manager Operations at Durham, issued a memorandum to all staff confirming that all FT employees who signed up for possible overtime on December 27th and/or 28th would be scheduled to work on these days (“Memorandum B”). Memorandum B also stated that Casuals who signed up would not be required to work overtime.
All FT employees who volunteered to work overtime on the Sign Up List were scheduled to work on December 27th and/or 28th as per their requests. Ms. Shepperdson was also scheduled to work overtime on both December 27th and 28th.
Mr. Randy Merrill, who signed up to work on December 28th, but was not subsequently scheduled to work overtime on that day, was a Casual employee at all material times.
Overtime Canvassing Guidelines
From July 16, 1999 to January 3, 2004, guidelines in respect of overtime canvassing were in effect at Durham (“1999 Overtime Guidelines”).
Effective January 4, 2004, revised overtime canvassing guidelines (2000 Overtime Guidelines”) came into effect at Durham.
The Grievance
On December 7, 1999 the Union filed a third stage policy grievance (“Policy Grievance”) alleging that the LCBO’s actions violated Article 6.6(a) and any other applicable articles in the collective agreement and the 1999 Overtime Guidelines.
The LCBO responded to the Policy Grievance in a letter to the union dated February 28, 2000 (“LCBO Response”), denying any violation of the collective agreement.
II. ISSUES IN DISPUTE
The parties state that the following legal issues are in dispute and remain to be resolved:
Did the manner in which the LCBO canvassed FT employees at Durham for overtime on December 27 and 28, 1999 violate Article 6.6 or any other provision of the collective agreement?
Were the 1999 Overtime Guidelines part of the collective agreement?
If Question 2 is answered in the affirmative, did the manner in which the LCBO canvassed FT employees at Durham for overtime on December 27 and 28, 1999 violate the 1999 overtime Guidelines?
Even if Question 2 is answered in the negative, was the LCBO estopped from using a sign up sheet to canvass the FT rotation for volunteers to work overtime on December 27 and 28, 1999?
Items 2 and 3 of the agreed issues in dispute are now moot since the union conceded at the hearing that Overtime Guidelines were not part of the collective agreement. Nevertheless, the union continued to rely on the guidelines as an aid to interpretation on the grounds that the collective agreement was ambiguous, and in support of its estoppel argument.
The dispute centres around article 6.6(b) of the collective agreement which reads:
Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee.
The union’s primary position is that the manner of offering overtime on December 27 and 28, 1999 by the employer, i.e. the use of sign-up sheets, contravened article 6.6(b). In the alternative, the union submits that the phrase “shall first be offered to