GSB# 2004-1312

UNION# OLB275/04

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)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Larry Steinberg Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

November 8, 2004.

Award

In this case the Union, represented by Mr. Larry Steinberg, alleges that the employer has failed to create the number of permanent full-time positions dictated by the terms of a Letter of Understanding between the Parties. The Letter in its original form, which is integral to the Collective Agreement, became effective approximately three contracts earlier. The Employer's practice in applying the Letter and the terms of the Collective Agreement relevant to the issue have been consistent since then. In the circumstances, the Union does not challenge the application retroactively, but, seeks a declaration for the future to take effect upon the renewal of the current Collective Agreement which going forward should take effect on or about January 1, 2005.

The central issue and critical to the Union's position is the assertion that night shift hours should be included rather than excluded from the calculation of casual hours worked during a year in order to determine the availability of those hours for the creation of a full-time position. To clarify, the parties have created a Labour Management Committee which sits annually to determine amongst other things the number of new permanent full-time positions which might be available. To determine whether or not one such position is available it must first be found that there were, for instance in the retail area, at least 1,700 hours of casual work performed in the previous year. Therefore, for the purposes of the existence of a regular full-time position in a retail store one year equals 1,700 hours worked. While that seems a simple matter, the parties have also agreed to exclude from the calculation those hours worked by casual employees which fall within certain designations. For instance, overtime hours and hours filling in for employees on vacation are excluded. So too are hours worked on temporary transfer/assignment. It is this latter category which is central to the issue at hand. It is the Employer's position that the hours worked on the night shift must be categorized as temporary by operation of provisions of the Collective Agreement. It is the Union's position that such an application of the collective agreement is incorrect and that the exclusion of night shift hours does violence to the purpose of the Letter of Understanding.

To put the issue in its simplest form, the question to be determined is whether or not hours worked by casual employees on night shift should be included or excluded from the calculation of the hours available to determine the number of full time positions to be created on a going forward basis.

To put more meat on the bones, the Union complains that the Employer is treating all night shift assignments as temporary pursuant to the permanent vacancy letter (the PVL). Accordingly, no night shift hours worked by casuals are counted in determining whether or not a permanent vacancy might exist. However, in at least two stores there have been regular night shifts running continuously for periods up to and perhaps in excess of two years. It is the Union's position that the continuity of night shift availability in those locations defy the designation of "temporary assignment". Where such continuity of night shift scheduling pertains, as arbitrator, I should require the Employer to comply with the purpose and spirit of the PVL Agreement and determine that hours worked on such continuous night shifts do not full within the exclusion of "temporary assignment".

On the other hand, Mr. Steinberg does not argue that night shift assignment of brief or temporary duration such as those established to cover the Christmas and other holiday seasons should be similarly treated. Those he concedes are legitimate temporary hours and might continue to be excluded from the calculation to determine permanent vacancy availability.

For the Employer, Mr. Fitzgerald does not disagree that in some stores night shifts have been scheduled on a continuous basis for extensive periods of time. However, provisions of the collective agreement itself do not allow for any permanency in the assignment of employees to those night shifts. Rather, the collective agreement specifically inhibits the Employer from requiring any employee to work more than 6 months on a night shift. By agreement of the Parties, night shift assignments are less than 6 months, and therefore, temporary in nature. Again, Mr. Fitzgerald does not dispute that in some cases it is the same casual employees who take the refreshed or repeated assignment to night shift, however, that is a consequence of the operation of the relevant provision of the Collective Agreement and not within the control of the Employer.

To put the matter in perspective the following is the Collective Agreement provision referred to and relied upon by the Employer:

"6.16 Except for employees which are currently working on a three (3) shift basis (VAX Operators, Security Guards, Maintenance and Console Operators) such work shall be offered in the following manner and sequence:

(a) Night shift requirements shall be posted within the applicable work-site. The posting shall specify that successful applicants shall not be required to remain on the night shift in excess of six (6) months. In the event that the requirement exceeds six (6) months, there shall be a subsequent posting and the incumbent employees will be entitled to re-apply should they be interested.

(b) Employees interested in the night shift shall apply to the posting and the night shift requirements shall be filled in order of seniority from qualified applicants.

In his rejoinder to that provision, Mr. Steinberg refers to Article 31.3 of the Collective Agreement which identifies specific articles of the Collective Agreement which do not apply to casual employees. Within that provision is the following:

"The application of Article 6 shall be limited to 6.6(b) exclusively."

Article 6.6(b) deals with overtime assignments. However, I do not intend to deal further with that contention since Article 6.16 itself is of general application and impacts equally upon casual employees as it does upon all others. Furthermore, Article 31.11 specifically contemplates the impact of Article 6.16 upon casual employees as follows:

"Casual employees shall only be scheduled on night shift (as defined in Article 6) on a voluntary basis however, if insufficient numbers of permanent full-time, permanent part-time, seasonal or casual employees volunteer for such shifts, casual employees may be assigned by reverse order of seniority commencing with the most junior qualified casual employee."

There remains only the permanent vacancy Letter of Agreement itself to be detailed. That Letter first deals with the reclassification of permanent part-time employees to permanent full-time employment. It then proceeds to deal with casual employees and the creation of permanent full-time vacancies based upon their hours of work. The following is the entirety of the provision with respect to those casual hours:

"Permanent Full-Time Vacancies

Following the determination of the number of PPT employees to be offered Permanent Full-Time employment, casual hours of work and in addition in the case of logistics, seasonal hours of work, shall be reviewed during the annual review by the Local Labour Management Committee. The purpose of this review shall be to determine if Permanent Full-Time vacancies exist. Specifically, a casual employee's work and in addition in the case of logistics, seasonal hours of work, shall be reviewed where he/she works in excess of:

(a) 1,600 hours or more in Warehousing

(b) 1,700 hours or more in Retail Stores

(c) 1,550 hours or more in Head Office

in the previous calendar year.

It is agreed that work resulting from the following shall be excluded from the review:

• hours worked on Sunday

• hours worked on a paid holiday as listed in Article 7.1

• sickness and/or accident

• vacation and leaves of absence including jury duty, bereavement, Union business, etc.

• temporary transfers/assignments

• modified work programs

• accommodation as required by legislation

• overtime

Following this review, there shall be a reimbursement of up to eighty (80) hours (Retail), seventy-five (75) hours (Logistics) and seventy-two and one-half (72 ½) hours (Head Office) for those hours that were excluded for vacation replacement. It is understood that to be reimbursed, said work must have been performed and excluded during the review.

Should a casual employee, and in addition in the case of logistics seasonal employee, work in the same position and Department/Store as per the hours listed above for reasons other than those listed above, a vacancy shall be declared and posted in accordance with the provisions of the Collective Agreement provided it is not already posted and/or there are no displaced permanent employees in his/her work area.

It is agreed by the parties that said positions shall be filled no later than June 30^th of the review year."

In keeping with that provision, the LCBO posts night time shifts for periods of approximately four months each, that is, something less than the six months allowed under the provision. The postings identify the number of positions required and the nature of those positions. Furthermore, the postings clarify that senior qualified employees enjoy preference for the posting and in the words of Article 6.16 itself stipulate that:

"Successful applicants shall not be required to remain on the night shift in excess of six (6) months. In the event that the requirement exceeds six (6) months, there shall be a subsequent posting."

The Employer has typically posted notices such as this in several stores during the Christmas holiday season where night shifts are required. Additionally, in at least two stores, that is Store #355 and Store #1 similar postings were made periodically throughout the year such that a number of night shift positions in each of those two stores were maintained throughout a continuous period of approximately two years. It is that practice which precipitated this grievance.

The decision I have considered the provisions of the collective agreement, the Letter of Understanding and the able submissions of counsel. It is my view that the Union's position cannot prevail in this case. The difficulty is as follows:

There is nothing in the Collective Agreement or the Letter of Understanding which would support my drawing the distinction suggested by Mr. Steinberg between temporary night shift assignments during the Christmas period, for instance, and regular night shift assignments which in some cases and in some stores carry on throughout the year. Instead, Article 6.16 itself dictates that the Employer may not schedule a night shift for a period in excess of six months regardless of its ongoing need to schedule a continuing night shift. No doubt the requirement to provide abbreviated posting periods was introduced for the benefit of employees so that they could have the convenience of choosing to work the night shift when it suited their lifestyle without the necessity of being required to do so on an on-going or extended period. The fact that it is the casual employees in many instances who end up working these shifts on a regular and sometimes continual basis cannot be regarded as a cynical ploy by the Employer. Rather, it is a consequence of the language of the Agreement which gives full-time and senior employees the option to take the shift if it pleases them but to leave it for casuals if inconvenient. As might be expected, it is casual employees who most often work the night shift and as often as not the same casual employees who do the work in those stores requiring a night shift.

In the circumstances, given the provisions of Article 6.16, the Company is not able to stipulate stores or night shift positions which are continuous and exceed the six month limitation in that Article. By agreement of the parties night shift assignments are, therefore, temporary.

Mr. Steinberg argued that the exclusions in the PVL letter contemplate hours and shifts which are irregular. Because of their inconsistent occurrence the Parties agreed that they would not constitute the basis for a regular position. However, he argued, the night shifts, at least in some stores such as store 355 and store 1, are regular and continuous and should, therefore, not be excluded.

I agree with Mr. Steinberg that, but for the periodic reposting of the night shift positions, the regularly scheduled night shift hours could not be considered temporary and excluded from the PVL calculation. However, in this case the Employer is not unilaterally gerrymandering the hours to avoid the implications of the PVL letter. Rather, it is complying with the agreement of the parties to create temporary assignments on night shift for the convenience of the employees at large.

In the circumstances, given the language of the Collective Agreement, in particular, Article 6.16, I am satisfied that there is no basis upon which to distinguish between night shift assignments as temporary and/or permanent. Rather, the parties themselves have dictated that night shift assignments are to be temporary in nature. A decision to the contrary, in particular one construing two different types of night shift assignments would be adding to the Collective Agreement a substantive change which is not supported by the language. Accordingly, a finding in favour of the Union would require a determination that none of the night shift assignments, whether over Christmas or otherwise, were temporary assignments such that none of the night shift hours would be excluded pursuant to the "temporary transfers/assignments" exclusion in the PVL letter. Such a finding would, in my view, also be untenable given the provisions of the collective agreement and the PVL letter itself.

In the circumstances, I find that the Employer's practice is consistent with the provisions of the PVL letter and the Collective Agreement. In the event the Union should wish to pursue a different result, some amendment either to the PVL letter or Article 6.16 itself will be required.

In view of my finding that there has been no violation of the Collective Agreement by the Employer, the grievance is dismissed.

Dated at Toronto this 7^th day of February, 2005