GSB# 2002-1189, 2002-2082

UNION# OLB362/00, OLB467/02

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union

(Hoy et al.)

Union

• and -

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Jackie Crawford

Koskie Minsky LLP

Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald

Counsel

Liquor Control Board of Ontario

HEARING

April 23, September 16, October 13 & 14, December 6 & 19, 2005.

Decision

This proceeding arises from a group grievance filed on behalf of a number of employees who, at the material time, were working as Clerks at the Employer’s Durham Warehouse in Whitby, Ontario. By way of Global Minutes Of Settlement, executed in the summer of 2004, the parties agreed to place the following issue before this Vice-Chair:

“Were the Grievors, by virtue of the positions they held at the time Grievance #OLB 362/00 was filed, on August 2, 2000, entitled to a uniform (i.e., two [2] clean shirts and two [2] clean pairs of trousers per week) pursuant to article 22.2 of the parties collective agreement, effective April 1, 1998 to March 31, 2000?”

The answer to the above question will determine whether the grievors were entitled to a uniform allowance, as initially provided for in the collective agreement effective April 1, 2000 to March 31, 2002.

Article 22.2 of the April 1, 1998 to March 31, 2000 collective agreement provided as follows:

22.2 Employees in the LCBO warehouses will be issued two (2) clean

shirts and two (2) clean pairs of trousers per week, the cost of which shall be the responsibility of the Employer.

This article was changed during the negotiations for the April 1, 2000 to March 31, 2002 collective agreement. The amended article provided as follows:

22.2(a) Maintenance employees, in LCBO Warehouses, will be issued two

(2) clean shirts and two (2) clean pairs of trousers per week, the

cost of which shall be the responsibility of the Employer.

(b) All other employees, in LCBO Warehouses, assigned to a

classification which was previously eligible for uniforms, shall be

issued a lump sum payment of four hundred dollars ($400.00)

payable on September 1, 2000 and no later than the first pay in the month of September annually thereafter.

This provision was continued in identical terms in the subsequent collective agreement which expired on March 31, 2005.

At the hearing of December 6, 2005, the parties filed the following Agreed Statement Of Facts:

1. The Parties have a long-term bargaining relationship and have entered into several collective agreements. For the purposes of this Arbitration, the Parties had a collective agreement covering the period of April 1, 1998 through March 31, 2000 (hereinafter, “the collective agreement”).

2. In January, 2000, the Parties commenced bargaining for the renewal of the collective agreement and ultimately entered into a collective agreement covering the period from April 1, 2000 through March 31, 2002 (hereinafter, “the renewed collective agreement”).

3. At the outset of the bargaining, the Employer proposed a change to Article 22.2 of the collective agreement. Prior to the change made in the renewed collective agreement, the language in Article 22.2 of the collective agreement had remained unchanged since at least 1973.

4. At the bargaining table on or about March 7, 2000, the Parties’ mutual understanding was that the language set out in Article 22.2 of the collective agreement did not mean that all employees in the LCBO warehouses were eligible for uniforms, and that the proposed monetary uniform allowance would be provided only to those warehouse employees who had previously been eligible for a uniform.

5. On or about March 9, 2000, the Parties agreed to the language set out in Article 22.2 (b) of the renewed collective agreement

The instant grievance was filed on August 2, 2000. At the time of filing, the parties were in the statutory freeze period and, as a consequence, were still governed by the provisions of the collective agreement which would otherwise have expired on March 31, 2000. The threshold issue in this case, simply stated, is whether any or all of the Clerks were “previously eligible for uniforms” under the April 1, 1998 to March 31, 2000 collective agreement. If they were, and assuming they continued to work in eligible classifications, the Clerks would be entitled to the uniform allowance provided by the successor agreements. During the course of the hearing, I was informed that the result in Grievance #OLB 362/00 would affect eight (8) employees. I was further told that the result would be dispositive for three (3) other employees whose grievance turns on the same question.

Counsel for the parties agreed that article 22.2 of the April 1, 1998 to March 31, 2000 collective agreement was ambiguous in that the provision did not clearly set out which employees in LCBO warehouses were entitled to a uniform thereunder. Counsel, therefore, further agreed that this was an appropriate case for the receipt of extrinsic evidence in aid of interpretation. The evidence led by the parties, generally, was focused on the following areas: the nature of the work performed by the grievors; the conditions existing in the workplace; and the past practice pertaining to the provision of uniforms.

Evidence for the Union was presented by Ms. Joanne Caldarola, Ms. Denise Davis and Ms. Pauline Graham. Ms. Caldarola commenced her employment with the LCBO in 1986 as a casual employee. She subsequently worked in the warehouse as a Warehouse Worker 3 for approximately twelve (12) years. Ms. Caldarola became a full-time Clerk in the Receiving Office in July, 2001. Ms. Caldarola filled in as a Clerk in the period 1993 to 2001, when the regular Clerks were off sick or on holidays. Ms. Davis started with the LCBO as a casual employee in 1983. She became a full-time Warehouse Worker 3 in 1986. In the years 1992 to 1994, Ms. Davis served as an Acting Stock Control Clerk and then as a Receptionist. Both of these positions were located in the Front Office. In 1995, Ms. Davis became a Pallet Control Clerk. This work was also initially performed out of the Front Office. Ms. Davis moved into the warehouse in 1997 and continued to work there as a Pallet Control Clerk until mid-2005, when the position was then moved back to the Front Office location. Ms. Graham’s initial employment with the LCBO was as a Data Entry Clerk in the Control Room commencing in 1985. In 1987, she moved into the Front Office for training purposes and was then later moved to the Exam Room to do data entry. After returning from a maternity leave in January, 1988, Ms. Graham worked as a Clerk in the Receiving Office. She has remained in that position to date.

Mr. Vic Araujo was the sole witness to present evidence on behalf of the Employer. Mr. Araujo is the General Manager of Operations at the Durham Warehouse. He has occupied the position on a permanent basis since April, 2001. Prior to that, he was acting in the position for one (1) year. As General Manager of Operations, Mr. Araujo is responsible for the day-to-day activities of all shifts. Between September, 1997 and 2000, Mr. Araujo served as the Manager of the Order Processing Department. From 1990 to the former date, he worked in a number of management positions, including the following: Supervisor of Order Processing, Supervisor of the Afternoon Shift, Acting Shipping Manager, Acting Receiving Manager and Receiving Manager. Clerks reported to Mr. Araujo in a number of these positions. Before joining management, Mr. Araujo held positions in the bargaining unit for fourteen (14) years. He has worked at the Durham Warehouse since it opened in or about 1985.

The Durham Warehouse is a large facility which is used by the Employer to receive, store and ship product. Through agreement of the parties, this Vice-Chair and counsel took a view of the facility on September 16, 2005. The inspection was helpful in that it provided me with a better understanding as to the physical layout of the warehouse, the conditions existing therein and the nature of the work performed by the grievors. During the course of the evidence, a sketch of the Floor Plan of the interior warehouse was filed as Exhibit #40. The exhibit is appended to this award.

There are one hundred and thirty-six (136) full-time employees working within the Operations Group at the Durham Warehouse. This number is supplemented by an additional complement of approximately ninety (90) seasonal and casual employees. At the time the grievance was filed, there were eight (8) full-time Operations Clerks, including Ms. Graham. As previously noted, Ms. Caldarola subsequently became an Operations Clerk in July, 2001. Mr. Araujo testified that there have always been between eight (8) and nine (9) such positions since the warehouse opened. There is also one (1) Pallet Control Clerk. Ms. Davis has been the only incumbent in this position.

At this juncture, it is necessary to briefly address the duties of the other positions referenced during the course of the hearing and their status vis a vis eligibility for a uniform. The evidence may be summarized as follows:

i) Warehouse Workers 3 and 4 spend the bulk of their day working on the warehouse floor. They unload containers by hand. I was told that this work is physically demanding and that a Warehouse Worker could unload up to two thousand (2,000) cases of product per day for placement on a conveyor or a pallet. Warehouse Workers also build pallets, handle, examine and repack broken cases of product, clear cases from jammed equipment, and operate forklift trucks and transporters;

ii) Warehouse Foremen/women supervise warehouse personnel. They also assist Warehouse Workers with clearing jams on the line, removing broken cases and fixing pallets that come apart;

iii) Maintenance employees fix broken equipment, replace motors underneath the conveyors, replace rollers and forklift truck batteries and, generally, troubleshoot on the warehouse floor;

iv) Warehouse Workers 3 and 4 and Warehouse Foremen/women were provided with uniforms until the final expiry of the 1998 to 2000 collective agreement. Thereafter, they received the uniform allowance initially provided for by article 22.2(b) of the 2000 to 2002 collective agreement. Maintenance employees were similarly provided with uniforms under the 1998 to 2000 collective agreement. They continued, however, to receive uniforms under article 22.2(a) of the successor agreement. Mr. Araujo explained that these employees were given a uniform or a uniform allowance because their regular duties brought them into contact with equipment and material that could cause their clothes to become damaged, dirty or stained. He specifically mentioned that the Warehouse Workers carry cases against their body and that they and the Warehouse Foremen/women and Maintenance employees could come into contact with grease, broken product and battery acid during the course of their duties. I note that Ms. Caldarola and Ms. Davis were issued uniforms during the period they worked as Warehouse Workers;

v) Vax System Operators and Control Console Operators work in the Control Room. Their duties focus on the operation of the computer system and are, generally, performed within the confines of the Control Room. I was informed that they rarely go out into the warehouse and that on those occasions when they do, it is for purposes of going to another Clerk’s office. Employees in these classifications do not come into contact with product;

vi) Front Office staff do not work in the interior of the Durham Warehouse. Their work area is separate and removed from the warehouse floor. It is fair to say that their working environment resembles that typically found in a more conventional office setting; and,

vii) Vax System Operators, Control Console Operators and Front Office staff have never received either a uniform or a uniform allowance under the provisions of the parties’ collective agreements.

Ms. Graham and Ms. Caldarola both described their responsibilities as Clerks in the Receiving Office. As mentioned above, Ms. Graham has worked in this capacity since January, 1988. Ms. Caldarola has performed this work since July, 2001. On the basis of their evidence, I think that the core duties of Clerks working in the Receiving Office may be fairly summarized as follows:

i) they prepare the necessary paperwork for the loads of product coming into the warehouse and, ultimately, post receipts in respect of such product;

ii) they receive paperwork and seals off the containers from drivers;

iii) they are responsible to reconcile the count of incoming product with the amount the LCBO is supposed to receive. This reconciliation function is performed, in part, through use of the computer;

iv) if there is a discrepancy in the count, in the form of a shortage of product, the Clerks may leave their office and walk up and down the docks in an effort to locate any missing cases. They may also search for broken product placed in bins or on a pallet close to the Receiving Office. The Clerks may use a scanner to assist with the search, if one is available in the area. Ms. Graham testified that she only comes into direct contact with cases or bottles of product, when she is looking for breakage. She estimated that she might engage in moving a case approximately twice a month. She added that she would only actually touch broken product in those instances in which she moved a case as part of her search. Ms. Caldarola testified that she would first attempt to get a Foreman/woman or Breakage Checker to look for missing product. She advised that if neither were available, then she would herself initiate the search. Ms. Caldarola stated that such a search could be done “as infrequently as once a week, or could be on a daily basis”. She indicated that any search engaged in would, generally, take between one (1) and three (3) minutes to complete. Ms. Caldarola further advised that, in this process, she might be required to move a case of product. On her account, this could occur between once a day and once a month. Both Ms. Graham and Ms. Caldarola agreed that the primary responsibility for moving cases and handling breakage rests with the Foreman/woman and the Breakage Checker. Ms. Caldarola denied, however, that Clerks are not supposed to leave their office to check for product. She commented as follows on this point: “My boss has never stopped me once. He wants the job done efficiently”;

v) they sign out drivers and engage in the filing of paperwork. With respect to the latter task, Ms. Graham advised that she boxes files for storage about once every two (2) months. She places the boxes on a skid near the Breakage Storage area. Ms. Graham noted that she may later search out these files in storage, if information contained therein is needed. She described this as a monthly, rather than a daily, function; and

vi) the Clerks in the Receiving Office go to the Dispatch Office once or twice each day. They do so to pick up and drop off paperwork, such as dock sheets and bills of lading, and to relieve Clerks working in the latter office for lunches and breaks and at the end of the day. Ms. Caldarola advised that she also works in the Shipping Office from time to time.

Ms. Caldarola, in cross-examination, agreed that Clerks do not work in or unload containers, do not operate equipment such as forklift trucks, and do not spend all of their shift working on the warehouse floor. She further agreed that Warehouse Workers have more exposure to broken glass.

It appears from the evidence that Ms. Graham and Ms. Caldarola spend the bulk of their day working in the Receiving Office. Ms. Graham stated that a majority of her time is spent there. More specifically, she advised that on “a regular day”, she is in her office for between ninety percent (90%) and ninety-five percent (95%) of the time. Ms. Graham indicated that on “non-regular days”, which could occur once or twice each week, she spends approximately seventy percent (70%) of her shift in the Receiving Office. I formed the impression from her testimony that on “non-regular days”, more of her time is spent working in the Dispatch Office. In this regard, it was suggested by counsel for the Employer that, apart from time spent in the Dispatch Office, Ms. Graham worked in the Receiving Office for between ninety percent (90%) and ninety-five percent (95%) of her day. I note that Ms. Graham agreed with counsel’s suggestion. Ms. Caldarola’s evidence was of similar effect. She testified that a large majority of her time is spent in the Receiving Office. When asked whether this equated with ninety-five percent (95%) of her time, Ms. Caldarola answered, “fair to accurate, yes”.

As mentioned, Ms. Davis worked in the warehouse as a Pallet Control Clerk between 1997 and 2005. Her office was positioned just to the south of the Receiving Office. On the basis of the evidence, I think that the job she performed as Pallet Control Clerk in this period may be summarized as follows:

i) Ms. Davis’ primary responsibility was to track pallets. This required her to handle and process up to five hundred (500) pallet bills of lading each day. This function involved a large amount of data entry. On Ms. Davis’ account, more than half of her daily time was spent on data entry;

ii) Ms. Davis had to collect the bills of lading from a desk at the end of the conveyors. To get to that location, it was necessary for her to leave her office. It was the thrust of Ms. Davis’ evidence that she did “rounds” in the warehouse to get the documents and to talk to individuals for the purpose of obtaining related information or resolving any discrepancies; and

iii) Ms. Davis advised that bills of lading and associated paperwork were stored in cardboard cases on racks in the Non-Conveyable Area or in the High Bay, if there was no room available in the former location. From time to time, she was required to go to the storage area in order to retrieve and review documents. The cases were there stored on three (3) levels. Ms. Davis first had to locate the actual case required. She then had to secure the assistance of a forklift truck operator to lower the skid on which the case was stored. The time spent on this retrieval function depended, in large measure, on how long it took to find the case. Ms. Davis asserted that it could take up to one and a-half (1 ½) hours to locate the needed material. In examination in-chief, Ms. Davis testified that she might have retrieved files from storage about twice per week. In cross-examination, she stated that she engaged in this task “maybe about once per week”. She added that the frequency of performing the task could increase at certain times of the year, such as year end. Ms. Davis indicated that she might lift a case of bills or documents during the retrieval process. In her words, the cases can be “quite heavy”. Ms. Davis further advised that she also stored material on a skid just outside of her office and that she periodically searched there for required paperwork.

During the course of cross-examination, Ms. Davis agreed that the “vast majority” of her time was spent in her office. She was not prepared, however, to accept the suggestion of counsel for the Employer that such time approximated ninety-five percent (95%) of the day. Ms. Davis further agreed with the following: (i) she did not lift two thousand (2,000) cases of product per day; (ii) she had no reason to enter the containers; (iii) she did not operate a forklift truck; and (iv) there is, generally, a significant difference between the job of a Pallet Control Clerk and a Warehouse Worker.

Ms. Graham, Ms. Caldarola and Ms. Davis all asserted that they were entitled to a uniform and that they should have received the uniform allowance after the change to the collective agreement in 2000. This claim was premised on the nature of their duties and on the conditions existing both in their offices and out on the warehouse floor. Their evidence on this aspect of the case may be summarized as follows:

i) Ms. Graham, Ms. Caldarola and Ms. Davis all advised that the paperwork received from highway drivers and other warehouse employees can be wet or dirty. A variety of reasons were offered to explain this possibility including, inclement weather outside of the warehouse, contact with spilled liquor, grease or blood, and the large number of persons who handle the documentation as part of the overall process within the warehouse;

ii) Ms. Graham and Ms. Caldarola expressed a similar complaint with respect to the seals which they receive from drivers. These seals, which are made of steel or hard plastic, are removed from the exterior of a container once the load arrives at the warehouse. The seal, which is intended to show that the load is intact on arrival, is kept in the Receiving Office until the load is fully reconciled against the corresponding bill of lading. At that juncture, the seal is discarded into a box on the floor pending its ultimate disposal. I was told that the seals, when first brought to the Receiving Office, may be dirty, muddy, greasy, oily, rusty or wet. Ms. Graham advised that she handles between forty (40) and fifty (50) of these seals each day;

iii) Ms. Graham, Ms. Caldarola and Ms. Davis each testified that they come into contact with wet cases and broken glass when performing their duties. In the case of the former two (2) employees such contact occurs when they are looking for missing or broken product. In the case of Ms. Davis, this exposure occurred when she retrieved stored material from the racks and from the skid close to her office;

iv) Ms. Caldarola testified that she accesses files in the Receiving Office on a daily basis. It was her evidence that the filing cabinets are not cleaned and that there is a collection of dust, particulate, bugs and paper clips at the bottom of the drawers and that the files, themselves, are dusty. Ms. Caldarola also advised that she stores daily paperwork in a box on the floor of the office. She observed that it too is “full of dust” and that it leaves a mark on both her desk and her clothes when she places it on her desk to access the contents. Ms. Davis, in a similar vein, testified that the cases she retrieved from storage were often covered by black soot and dust and that her clothes could get dirty as a result of contact with same;

v) Ms. Caldarola and Ms. Graham both described the Receiving Office as “filthy”. Ms. Caldarola testified that there is debris, dust and particulate on all surfaces. She assumed that the particulate matter results from the idling of diesel trucks in the Concourse area of the warehouse. She added that soot emanates from the vents and sticks to the walls. Ms. Graham similarly testified that black soot covers the walls, ceiling, desks, file cabinets and keyboards. Ms. Caldarola claimed that the offices she accesses have “a general air of neglect of not cleaned offices”;

vi) Ms. Caldarola and Ms. Graham testified that the situation is aggravated by the fact the Receiving Office and the Dispatch Office are high traffic areas. With respect to the former, I was told that drivers, shuntmen, foremen, dock receivers and other warehouse personnel enter the Receiving Office to drop off paperwork or to use office equipment, such as the photocopier, telephone or fax machine. Ms. Caldarola stated that there is a smell of diesel fuel in the office and that certain of the individuals coming into the office leave grease and dirt on everything they come in contact with. Ms. Graham made a similar observation during the course of her testimony;

vii) Ms. Caldarola, Ms. Graham and Ms. Davis all testified that the offices are not regularly cleaned and that when cleaning is performed, it is done in a cursory and superficial way. I was informed that the offices are supposed to be cleaned every Sunday on the midnight shift but that it is not uncommon for two (2) to three (3) weeks to pass between cleanings if the cleaner is away on holidays or unavailable due to illness. All of the Union’s witnesses suggested that the extent of the cleaning, when done, involves just the sweeping of the floor and the emptying of the garbage. They each advised that their desks are not wiped down. Ms. Caldarola and Ms. Graham stated that, as a consequence, they are required to clean their own desks of dirt and soot. Ms. Davis observed that, in contrast, the Front Office is cleaned on a regular basis;

viii) Ms. Caldarola took a series of photographs of the Central Supply Office, the Receiving Office, the Dispatch Office and adjacent areas. She stated that she did so out of a concern the Employer would have the offices cleaned just prior to the taking of the view on September 16, 2005. The photographs were filed as exhibits #18 to #39. I am generally satisfied that the photographs depict the condition and state of the offices as they are on a day-to-day basis. I accept Ms. Caldarola’s evidence that neither she nor other employees did anything to make the offices appear to be in a worse condition. I similarly accept Mr. Araujo’s statement that he did not instruct the cleaning staff or anyone else to clean up the areas in question just prior to the tour;

ix) the above-mentioned photographs show the following conditions in the Receiving Office: a dirty floor; papers scattered on the floor; a water stain on the floor from a leak in the warehouse; soot and dirt on the ceiling tiles; dust and particulate on the filing cabinets and the file folders contained therein; and dust and particulate on boxes used to store paperwork. The photographs illustrate the following conditions in the Dispatch Office: dirt embedded into the floor, walls and side of the desk; chipped and cracked floor tiles; soot and dirt on the ceiling tiles; the presence of a rodent trap; the presence of dead bugs on the window sill; and boxes on the floor. Another photograph showed that the paint on a railing on steps leading from the Dispatch Office to the Concourse area is chipped and peeling;

x) Ms. Caldarola testified about the routes she would take to get from the Receiving Office to the Dispatch Office, and return. She advised that, if in a hurry, she formerly took a ladder down to the Receiving Concourse and from there walked in front of the parked trucks to get to the Dispatch Office. Ms. Caldarola stated that she could get there within two (2) minutes through use of this route. It was her evidence that her Manager never told her not to take this route. I was left with the impression that she stopped utilizing this route during the course of this proceeding when she was told by another grievor that management did not want employees to travel between the offices in this fashion.

Ms. Caldarola acknowledged that the proper way to travel between the two (2) offices is to follow the walkway marked on the warehouse floor. This was referred to in the evidence as “the yellow brick road”. Ms. Caldarola noted that following this path takes approximately four (4) minutes each way. Ms. Caldarola expressed the following complaints and/or concerns about using this longer route: there is oil, spit, saw dust and liquor spills on the pathway; she has seen spills from the overhead conveyors behind the MPLS area and near the Jackpot area; she has been dripped on three (3) to four (4) times in the past year; there are a lot of forklift trucks moving in and around the MPLS area; and there is a lot of breakage stored on pallets along the route.

Ms. Davis testified that she uses this same route to get from her office to the Dispatch and Shipping Offices. Her complaints and/or concerns included the following: the dripping of wine and liquor around the MPLS area; she passes by a lot of forklift trucks and equipment near the Battery Storage area; there are a lot of forklift trucks operating near this same area; and there is black soot on the walls and on equipment along this route; and

xi) Ms. Caldarola, Ms. Graham and Ms. Davis all testified that their duties and working conditions causes their clothes to become dirty after a single shift. These grievors advised that they wear clothing such as jeans, track pants, sweat shirts and tee shirts that are exclusively used for work purposes and that they are not afraid of ruining. They further advised that, because of the extent of the dirt, these clothes must be washed after having been worn just once. Ms. Caldarola and Ms. Graham stated that they wear dark clothes to hide the dirt. The former indicated that the dirt leaves a dark ring around white socks by the end of the day.

Ms. Caldarola was a Warehouse Worker 3 for approximately twelve (12) years before she became a Clerk in July, 2001. It was her evidence that she wore a uniform while a Warehouse Worker. It was her further evidence that she wore the uniform in the period during which she filled in as a Clerk. It is clear, however, that she neither wore a uniform, nor was she given a uniform allowance, after she became a permanent Clerk. During her examination in-chief, Ms. Caldarola was asked why she believed she is entitled to a uniform allowance. In response, she referenced the lack of cleaning in the warehouse and the resulting dirty conditions. From her perspective, a uniform allowance would assist in covering the cost of the clothes she now purchases for work. I recorded her following comments on this aspect of the case: “Technically, I’m buying my own uniform right now” and “I have a set of clothes I consider work clothes, in essence my work uniform”.

As mentioned previously, Ms. Graham started working as a Clerk in the Receiving Office in January, 1988. She testified that she was then asked if she wanted a uniform. It was her recollection that the question was asked by Mr. Bob Kyle, the Receiving Manager, or by Mr. Bill McDowell, the Assistant Director. Neither of these gentlemen are now employed by the LCBO. Ms. Graham stated that she did not take a uniform in 1988 as she did not think she needed one. It was her evidence that she changed her mind after her first year of work in the Receiving Office. When Ms. Graham was asked why her opinion changed, she replied, “the dirt you came home with every day”. It is apparent, however, that Ms. Graham never asked for a uniform. She explained that there were two (2) reasons for this. First, she had previously “turned down” the offer of a uniform. Second, the uniform then available included men’s pants and, as a consequence, she preferred to wear her own clothing. Ms. Graham advised that when she learned there was to be a uniform allowance, she felt she would be entitled to it as well given the fact she bought her own clothes for work.

As previously noted, Ms. Davis worked in the warehouse as a Warehouse Worker between 1986 and 1992. She returned to the warehouse from the Front Office in 1997. From that point forward until 2005, her duties as the Pallet Control Clerk were performed out of an office in the warehouse.

Ms. Davis testified that she wore a uniform during the period of time she worked in the warehouse as a Warehouse Worker. She recalled that the uniform was green and that it had her name on it. Ms. Davis advised that she did not wear a uniform while stationed in the Front Office between 1992 and 1995. It is not entirely clear from her evidence, however, as to whether she wore a uniform between 1995 and 1997, when she performed the Pallet Control Clerk job out of the Front Office. What is material, for purposes of this case, is that this grievor asserted that a uniform was “available” to her after she returned to the warehouse in 1997 and that she actually wore it when she performed the duties of the Pallet Control Clerk position. Ms. Davis claimed that no one ever told her not to wear the uniform. Ms. Davis further testified that she wore a uniform from 1997 until they were no longer available to employees. She was unable to recall when the latter occurred. She remembered that, at some point, the colour of the uniform changed from green to blue, but was unsure of exactly when the transition occurred. It was the substance of Ms. Davis’ evidence that she was given a blue uniform and that she subsequently turned it in when the Employer asked employees to return all of the uniforms.

In cross-examination, Ms. Davis advised that she could not recall having been asked to return her uniform in 1998 because the Employer was changing suppliers. She repeated, however, that she did return her initial uniform. Ms. Davis was also unable to recall being measured for a new uniform in 1998. She indicated it was possible that she might then “have gone with” her old measurements. When it was suggested to her by counsel for the Employer that no Clerk was measured for, or received, a uniform in 1998, Ms. Davis reiterated that she received a blue uniform at the time the colour of the uniform changed. She added that the blue uniform was the last one she had and that after it was handed in, no other employees, other than those in Maintenance, wore a uniform. Ms. Davis could not recall when the blue uniform was returned. It was the substance of her evidence that she had a uniform for as long as the Warehouse Workers on the floor had them.

In reply, Ms. Davis maintained that she wore her blue uniform once she returned to the warehouse in 1997. She subsequently repeated that she and other employees wore blue uniforms in 1997. Ms. Davis also asserted that it was a blue uniform that she, ultimately, handed in for good.

I note, at this juncture, that Ms. Davis was the only Clerk who claimed she was provided with, and wore, a uniform. Counsel for the Employer referenced the wording of Grievance #OLB 362/00 in his cross-examination of this grievor. More specifically, he observed that the settlement desired therein was stated as follows: “Uniforms to be issued to the grievors as per collective agreement”. Counsel suggested to Ms. Davis that this wording was inconsistent with her claim that she had a uniform at all material times. Ms. Davis responded by noting that the grievance was filed on behalf of a group of Clerks some of whom, such as Ms. Sharyn Hoy, did not have a uniform. Ms. Davis was also asked about why a grievance was filed in August, 2000. She responded that there had been “a vague rumour” that uniforms were an issue at negotiations and that employees could lose them. Ms. Davis stated that the grievance was filed as a result of this concern. She denied the further suggestion that the grievance was submitted because she knew that an agreement had already been reached in negotiations for a uniform allowance which would be restricted to those employees previously eligible for a uniform. Ms. Davis testified that she did not know at the time that such an agreement had been reached and that she also, as a consequence, was unaware of the quantum of the allowance.

Mr. Araujo testified that no Clerk or Pallet Control Clerk has ever been issued a uniform at the Durham Warehouse. He further maintained that no employee in these positions ever asked for a uniform prior to the filing of the instant grievance. In this regard, Mr. Araujo made the following observations: (i) he dealt directly with the Clerks and would have noticed if any of them wore a uniform; (ii) if a Clerk had requested a uniform, his subordinates would have brought the request forward for his approval; and (iii) as the Manager of Order Processing, he was directly involved in the invoicing process with respect to uniforms and in authorizing payment to the suppliers.

In his evidence, Mr. Araujo outlined the history pertaining to the supply and provision of uniforms at the Durham Warehouse. He advised that between 1985 and 1998, uniforms were supplied by Workwear. The LCBO supplied this company with a list of employees to whom uniforms were to be issued, together with their shirt and pant size. I was told that the pants and shirts issued by Workwear were green in colour and that the colour was not changed in the period the uniforms were provided by this supplier.

Cintas Uniforms took over the supply of uniforms in the Fall of 1998. During the transition, employees were notified to return their Workwear uniforms to the Employer for ultimate return to the latter supplier. Not all employees complied with the request. As a consequence, the LCBO was subsequently invoiced for the missing uniforms. I was told that the invoice was paid at a significant cost to the Employer.

At the time of the change in suppliers, Cintas representatives attended at the Durham Warehouse to measure employees for uniforms. Mr. Araujo advised that he supplied Cintas with a list of the employees to be measured. It was his evidence that there were no Clerks on the list of names. A list of the employees who got new Cintas uniforms in December, 1998 was filed in support of this assertion (exhibit #41). The list confirms that no Clerk was issued a uniform at that time. Rather, uniforms were then issued to Warehouse Workers 3’s and 4’s, Foremen/women and Maintenance personnel. Mr. Araujo testified that he was “one hundred percent sure” that Clerks were not provided with Cintas uniforms, as he was the person who verified the names of employees who would get uniforms and it was he who authorized the payment for same on the basis of invoices received from the supplier. A typical invoice was filed in this proceeding as exhibit #42. The document lists the name of every employee who received a Cintas uniform. Mr. Araujo stated that these uniforms, comprised of shirts and pants, were blue in colour.

Mr. Araujo noted that Ms. Davis’ name did not appear on either exhibit #41 or exhibit #42. He added that she was not on the list of employees to be measured for a Cintas uniform. It was the substance of his evidence that Ms. Davis never received such a uniform. Mr. Araujo further testified that he never saw her wear a uniform as a Clerk. He readily acknowledged, however, that Ms. Davis wore a uniform when she worked as a Warehouse Worker. Mr. Araujo also acknowledged that he did not have written records, such as exhibits #41 and #42, with respect to the Workwear uniforms. He agreed, in cross-examination, that he was relying on his memory for the practice pre-1998. Mr. Araujo, nevertheless, reiterated that no Clerk or Pallet Control Clerk was ever issued a uniform from the opening of the Durham Warehouse in 1985 onwards.

The practice of providing uniforms was discontinued in the Fall of 2000 with respect to all warehouse employees, except Maintenance staff. At that juncture, uniforms were replaced by a uniform allowance as agreed to in the negotiations for the renewal collective agreement. Mr. Araujo advised that employees were then asked to return their uniforms. As was the case in 1998, not all employees complied and the Employer was ultimately invoiced for the cost of the missing uniforms.

Mr. Araujo testified about the various classifications of the employees working in the warehouse and the duties attached to same. Much of this has been previously referenced, in a general sense, in the body of this award. I note that Mr. Araujo did not agree that the grievors’ duties took them into the warehouse on a frequent basis. He described their time out in the warehouse as “minimal”. More specifically, this would capture instances where they were looking for a Manager or a Supervisor or were searching for paperwork stored outside of their office. Mr. Araujo also claimed that he has never been dripped on when walking in the MPLS area or elsewhere in the warehouse. Lastly, he stated that employees, such as the grievors, are permitted to clean their own work areas, as long as they secure authorized cleaning products from Maintenance.

Article 22.2 of the 1998 to 2000 collective agreement provided that, “Employees in the LCBO warehouses will be issued two (2) clean shirts and two (2) clean pairs of trousers per week, the cost of which shall be the responsibility of the Employer”. In opening argument, it was asserted by the Union that, pursuant to this language, all employees in the warehouse, including Clerks, were entitled to a uniform and, therefore, to a uniform allowance once the contractual provision was changed in the 2000 round of negotiations. During the course of this proceeding, however, the parties agreed that this interpretation was not intended when article 22.2 was first negotiated and incorporated into the collective agreement. As noted above, paragraph #4 of the Agreed Statement Of Facts dated December 6, 2005 reads as follows on this point:

“At the bargaining table on or about March 7, 2000, the Parties’ mutual understanding was that the language set out in Article 22.2 of the collective agreement did not mean that all employees in the LCBO warehouses were eligible for uniforms, and that the proposed monetary uniform allowance would be provided only to those warehouse employees who had previously been eligible for a uniform.”

Counsel for both parties observed that while article 22.2 addressed the type of uniform to be provided, it was silent on the question of which employees in the warehouse were actually entitled to the uniform. They, accordingly, agreed that this was an appropriate case to present extrinsic evidence in aid of interpretation. As a consequence, a considerable amount of such evidence was presented with respect to the following: (i) the past practice pertaining to the provision of uniforms; (ii) the nature of the work performed by the grievors; and (iii) the conditions existing in the workplace. Much of the evidence has been reproduced above. In closing argument, counsel for the Employer referenced the following authorities relating to the admissibility and use of extrinsic evidence: Re Northern Electric Co. Ltd. and United Automobile Workers, Local 1535 (1972), 1972 CanLII 2051 (ON LA), 1 L.A.C. (2d) 310 (Weatherill); Re Labatt’s Ontario Breweries Ltd. and United Brewery Workers, Local 304 (1973), 1973 CanLII 2096 (ON LA), 2 L.A.C. (2d) 119 (Shime); Re Bendix Home Systems Ltd. and United Brotherhood Of Carpenters And Joiners Of America, Local 3054 (1975), 1975 CanLII 2149 (ON LA), 10 L.A.C. (2d) 39 (Brent); Regina v. Barber et al., Ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419, 1968 CanLII 446 (ON CA), [1968] 2 O.R. 245 (Ont. C.A.); Re Teamsters Union and Motor Transport Industrial Relations Bureau Of Ontario (1969), 1969 CanLII 1449 (ON LA), 22 L.A.C. 57 (Weatherill); Re Motor Transport Industrial Relations Bureau Of Ontario and General Truck Drivers’ Union, Local 938 (1973), 1973 CanLII 2110 (ON LA), 2 L.A.C. (2d) 206 (Brown); Re Noranda Metal Industries Ltd., Fergus Division and International Brotherhood Of Electrical Workers, Local 2345 et al., 1983 CanLII 1690 (ON CA), [1983] 44 O.R. (2d) 529 (Ont. C.A.); Re Securitas (Canada) Ltd. and United Steelworkers Of America (2003), 2003 CanLII 89583 (CA LA), 114 L.A.C. (4th) 259 (Brown); Re Community Living Oakville and Ontario Public Service Employees Union, Local 249 (1997), 1997 CanLII 25139 (ON LA), 61 L.A.C. (4th) 289 (Tims); Re Izaak Walton Killam Hospital and Nova Scotia Government Employees Union, Local 22A (1992), 1992 CanLII 14514 (NS LA), 29 L.A.C. (4th) 332 (Christie); Re International Association Of Machinists, Local 1740 and John Bertram And Sons Co. Ltd. (1967), 1967 CanLII 1039 (ON LA), 18 L.A.C. 362 (Weiler); Re Toronto Harbour Commissioners and Canadian Union Of Public Employees, Local 186 (1973), 1973 CanLII 2124 (ON LA), 3 L.A.C. (2d) 145 (Hanrahan). It is unnecessary to address these authorities directly given the parties’ agreement that article 22.2 of the 1998 to 2000 collective agreement was ambiguous and that extrinsic evidence, as a consequence, was properly admissible to resolve the dispute.

Counsel for the Union observed that article 22.2 (b) of the 2000 to 2002 collective agreement employed the phrase “previously eligible for uniforms” to capture or describe those employees entitled to a uniform allowance. On her assessment of the evidence, the grievors satisfied this contractual criterion for entitlement. In this regard, counsel referenced Ms. Davis’ evidence that she wore a uniform while a Pallet Control Clerk and Ms. Graham’s evidence that she was offered a uniform when she started working as a Clerk in the Receiving Office. I was asked to prefer Ms. Davis’ evidence over that presented by Mr. Araujo. From counsel’s perspective, this grievor’s testimony was clear and consistent and served to establish that she wore a green, and later a blue, uniform while working as a Pallet Control Clerk between 1997 and 2000. In contrast, she submitted that the LCBO’s records were poor and inconclusive. She also noted that Mr. Araujo was testifying from memory with respect to the pre-1998 practice. In substance, it was the position of the Union that the grievors were eligible for uniforms prior to 2000 and, accordingly, were entitled to the uniform allowance thereafter.

Counsel for the Employer, relying on Mr. Araujo’s evidence, argued it was “crystal clear” that no Clerk or Pallet Control Clerk ever received, or asked for, a uniform from the opening of the Durham Warehouse in 1985 until the filing of the grievance in August, 2000. On his analysis, Mr. Araujo was well positioned to know whether any Clerk, including Ms. Davis, was issued, wore, or asked for a uniform in the period material to this case. I was urged to conclude that Mr. Araujo’s evidence, together with the Cintas documentation, provided firm support for the Employer’s position. Counsel suggested that the grievors were motivated to file the grievance after learning of the agreement to change to a uniform allowance. He described their claim to the allowance as an attempted “cash grab”.

Counsel for the Employer submitted that Ms. Graham’s evidence surrounding the offer of a uniform in 1988 was both dated and vague. He noted that her evidence was given some seventeen (17) years after the fact and that she was not even sure who made the offer. Counsel stressed that neither of the Managers named now work for the LCBO. He added that it was also unclear as to the context in which the alleged offer was made. Counsel suggested, by way of example, that any offer made could have been gratuitous, in the sense it was not required under the collective agreement. Additionally, he suggested that instead of being a firm offer, it may have simply been a statement that the Manager would inquire into the “possibility” of getting a uniform for Ms. Graham. In the circumstances, counsel argued that this grievor’s evidence on the point should be given no weight.

Counsel for the Employer submitted that Ms. Davis’ evidence with respect to the wearing of a uniform was vague, unreliable and, in certain instances, not credible. He advanced the following arguments, inter alia, on this aspect of the case:

i) the fact that Ms. Davis may have kept her uniform after moving from a Warehouse Worker position to the job of Pallet Control Clerk did not mean she was entitled to a uniform in the latter job;

ii) the evidence of Ms. Davis was “hazy” as to whether she was measured for a new uniform in 1998 and as to the return of the former uniform;

iii) the evidence of Ms. Davis that she wore a blue uniform from 1997 onwards should be viewed skeptically, as Cintas uniforms were not issued until 1998 and were not made available to any Clerk at that time. From the Employer’s perspective, if Ms. Davis turned in a uniform in 2000, it could not have been a blue Cintas uniform given the clear evidence of Mr. Araujo as to which employee classifications received those uniforms on the change in suppliers;

iv) if the decision not to issue uniforms to Clerks in 1998 was a change in practice, it is likely that employees would have grieved at that time. On the Employer’s account, what transpired in 1998 simply confirmed, and was consistent with, the pre-existing practice vis a vis the issuance of uniforms; and

v) the evidence of Ms. Davis as to why the grievance was filed was not credible. Counsel submitted it was more likely than not that Ms. Davis was aware of developments at the bargaining table given the long period of time between the agreement reached in March, 2000 to change to a uniform allowance and the filing of the grievance in August, 2000. He further argued that this grievor provided no real explanation as to why she would file a grievance if, in fact, she already had, and was wearing, a uniform.

Counsel for the Union reviewed the duties performed by Warehouse Workers. She concluded that this employee classification is eligible for a uniform allowance because the performance of their core duties can cause their clothes to become stained, dirty and damaged. Counsel contrasted this with the treatment of Vax System Operators and Control Console Operators. On her analysis, these classifications operate computer equipment in a segregated room within the warehouse and only rarely leave that area for the warehouse floor. She argued that these employees do not handle product, load or unload cases, or move or sort through files stored elsewhere in the warehouse. In short, counsel argued that Vax System Operators and Control Console Operators, generally, work in a clean environment and are, therefore, less likely to have their clothes damaged or stained or become dirty. Counsel suggested it is for this reason that these classifications do not receive a uniform allowance. Ultimately, I was asked to find that the duties and working conditions of the grievors more closely resemble those of the Warehouse Workers. In this regard, counsel for the Union referenced the following aspects of the grievors’ jobs: (i) somewhat atypically, these Clerks do not work in a clean area and do not exclusively process paper; (ii) their offices are in the body of the warehouse and the doors to the offices open out to the warehouse floor; (iii) the Shipping Office and the Dispatch Office are located next to the docks where trucks park, idle and emit fumes; (iv) the offices within which they work are dirty, with most surfaces covered by soot and particulate; (v) drivers and other warehouse personnel, who access their offices throughout the day, bring in dirty matter, such as seals and paperwork, and track in dirt from the warehouse floor; (vi) the grievors are required to search for missing product and stored paperwork which brings them into contact with breakage, dust and dirt and liquor spills; and (vii) the grievors are required to move between offices within the warehouse on a regular basis and are, consequently, exposed to warehouse conditions. Counsel acknowledged that Warehouse Workers handle more cases and boxes than do these grievors and that they spend more time out on the warehouse floor. She asserted, however, that the Clerks and the Pallet Control Clerk are exposed to the same types of things that cause Warehouse Workers’ clothes to become damaged, dirty or stained. For this reason, it was submitted that this group of grievors were “previously eligible for uniforms” and should have received the monetary uniform allowance following the new collective agreement in 2000.

Counsel for the Employer agreed that I could attempt to determine the parties’ intention with respect to eligibility for a uniform through an assessment of the duties performed by the grievors. He suggested, though, that this exercise would be unnecessary if I found the Employer’s past practice evidence to be persuasive. Counsel, nevertheless, observed that certain aspects of that evidence spoke to, or clarified, the true nature of the grievors’ work. More specifically, he noted that Mr. Araujo testified that no Clerk asked for, or received, a uniform between 1985 and 2000. It was his submission this record was consistent with a belief, on the part of the grievors, that they did not need or require a uniform. Counsel suggested that at least one (1) Clerk would have raised the issue, if their clothes were being damaged or stained in this period. He argued that the absence of any complaint, across a substantial number of years, should be treated as tantamount to an admission against interest or a prior inconsistent statement. Simply put, I was asked to find that the practice prior to 2000 served to rebut the grievors’ subsequent assertion that they needed a uniform.

Counsel for the Employer referenced the evidence of Ms. Caldarola, Ms. Graham and Ms. Davis at some length. He argued that an objective test should be applied to this evidence, namely, was there an inherent risk of significant wear and tear and/or stain damage to the grievors’ clothing flowing from the nature of their duties. It was counsel’s submission that this question should be answered in the negative. His reasons for urging this conclusion may be summarized as follows:

i) the condition of the floors, walls and ceilings of the various offices referred to in the evidence, and the presence of dust or soot therein, has no bearing on the need for a uniform. Rather, such need must be assessed on the basis of the nature of the duties performed. Counsel suggested that, in any event, the offices in question were “not all that dirty” and that the grievors were, in effect, exaggerating their claims of uncleanliness. In this regard, he observed that the walls were not “caked in black” and that any dirt ground or embedded into the floor would not likely get onto their clothing. Counsel also questioned how the proximity of the Dispatch Office and the Shipping Office to the receiving docks could result in damage to, or staining of, the grievors’ clothing;

ii) a uniform consisting of pants and shirt would not prevent socks from getting stained. Similarly, it would not prevent the grievors’ hands from possibly getting dirty through the handling of paperwork or seals. Counsel suggested that, on the evidence, if there was a need for anything it was for socks and gloves, not pants and shirt. He further claimed that the grievors could likely handle any dirty material or objects in such a way as to avoid any contact with their clothing;

iii) there was no solid evidence that the grievors’ clothing was actually stained by beer, wine or battery acid or that their clothes were ripped, damaged or subjected to excessive wear and tear. Counsel observed that dust on boxes or files in the offices, or out in the warehouse, would not likely cause permanent staining or damage as, in his words, “dust washes off”. It was the thrust of his submission that a uniform allowance is not intended to indemnify employees against the cost of wearing their clothes to work;

iv) unlike Warehouse Workers and Foremen/women, the grievors do not unload containers, retrieve cases from jams on the conveyor, or work around forklift trucks so as to be exposed to battery acid. Counsel further noted that the Clerks in the Receiving Office are not, strictly speaking, supposed to check for breakage. That task belongs to other classifications. Counsel asserted that to the extent these grievors do come in contact with breakage, such contact is not comparable to the exposure Warehouse Workers have to breakage in terms of both frequency and degree;

v) all of the Union’s witnesses testified that they spent a considerable portion of each day in their office. On counsel’s reading of the evidence, Ms. Caldarola testified that she spent ninety-five percent (95%) of her time in the Receiving Office; Ms. Graham agreed that she spent between ninety percent (90%) and ninety-five percent (95%) of her time in that same office when not in the Dispatch Office; and Ms. Davis agreed that the vast majority of her time was spent in her office. Counsel noted that Ms. Davis now performs her duties out of the Front Office. In a similar vein, he asserted that the grievors spent “minimal time out of their offices”. He referenced Ms. Caldarola’s evidence that she would spend no more than five (5) minutes out of the office looking for things and Ms. Davis’ evidence that she might go out into the warehouse once per week, for at most one and a-half (1 ½) hours, to look for stored material. Counsel emphasized that the boxes were retrieved for Ms. Davis by forklift truck operators; and

vi) the grievors are permitted to wear whatever clothes they like to work within reasonable limits.

Lastly, and in the alternative, counsel for the Employer relied on, what he described as, the “tie goes to the runner defence”. More particularly, he argued that in the circumstances of this case, the Union had failed to meet the onus of demonstrating entitlement to a monetary benefit under the terms of the collective agreement. From his perspective, it would be wrong to bestow a financial benefit to these grievors where the contractual language, as amplified by the extrinsic evidence, does not compel that arbitral response. Counsel referenced the following awards in support of this submission: Re Peterborough Utilities Commission and International Brotherhood Of Electrical Workers, Local 1964 (1973), 1973 CanLII 2056 (ON LA), 4 L.A.C. (2d) 383 (Palmer); Re Wexford Inc. and Canadian Union Of Public Employees, Local 3791 (2001), 2001 CanLII 33933 (ON LA), 96 L.A.C. (4th) 153 (Albertyn); Re Cardinal Transportation B.C. Inc. and Canadian Union Of Public Employees, Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4th) 230 (Devine); Quaker Oats Co. of Canada and Service Employees Union, Local 183 (Robichaud Grievance) (2000), 2000 CanLII 50238 (ON LA), 91 L.A.C. (4th) 1 (Emrich).

At the time the instant grievance was filed, Ms. Caldarola was working as a Warehouse Worker 3. She was, therefore, then entitled to a uniform. This explains why her name appears on exhibit #41 and exhibit #42, referenced above. Ms. Caldarola subsequently became a full-time Clerk as of July, 2001. The fact that she wore a uniform on the occasions she filled-in as a Clerk between 1993 and 2001 is irrelevant to the resolution of this dispute. It is clear that the uniform she may then have worn was provided to her because she was a Warehouse Worker, and not because she was performing Clerk duties on a fill-in basis.

Ms. Graham never wore a uniform from the time she started as a Clerk in January, 1988 to the date of the grievance. I find her evidence as to the offer of a uniform to be somewhat vague. Ms. Graham was unable to precisely recall who actually made the offer alleged. Additionally, there was no clear evidence presented as to the context in which the offer was made. In my judgment, Ms. Graham’s evidence on this point is insufficient to establish a past practice of providing uniforms to Clerks. Put another way, it does not establish a belief on the part of the Employer that it was contractually bound to do so. As an aside, I am inclined to conclude that if Ms. Graham actually felt she required a uniform after her first year of work as a Clerk in the Receiving Office, then she, more likely than not, would have requested one. I find her reasons for not making such request to be unpersuasive.

As is readily apparent, there is a conflict in the evidence of Ms. Davis and Mr. Araujo as to whether the former was issued and wore a uniform over the period 1997 to 2000 while she performed the job of Pallet Control Clerk out of an office in the warehouse. In summary, Ms. Davis testified that she was issued and wore a green, and then a blue, uniform over this period. In contrast, it was the thrust of Mr. Araujo’s evidence that no Clerk was ever issued, wore, or asked for a uniform from the opening of the Durham Warehouse in 1985 until the filing of this grievance in August, 2000. After reviewing all of the evidence and argument, I have been persuaded to accept the Employer’s version of the past practice as it relates to Ms. Davis. I do so for the following reasons:

i) Mr. Araujo was the person who identified the employees who would be measured for and receive a Cintas uniform on the change of suppliers in late 1998. He firmly asserted that the Clerks and the Pallet Control Clerk were not on the approved list. His oral evidence, on this aspect of the case, was corroborated by the documents filed as exhibit #41 and exhibit #42. Ms. Davis’ name, and the names of the other Clerks, did not appear on the list of employees who received uniforms from Cintas in December, 1998 nor did they appear on the subsequent invoice provided to the Employer;

ii) Mr. Araujo was unable to provide similar documentary evidence relating to the pre-1998 practice. He testified, however, that the practice of not providing uniforms to the Clerks and the Pallet Control Clerk was consistent between 1985 and 2000. I have, ultimately, been persuaded to accept Mr. Araujo’s evidence on this issue. I think it more likely than not that a grievance would have been filed if what occurred in 1998 with the Cintas uniforms constituted an abrupt change in practice. The lack of a grievance, or indeed any evidence of a complaint, suggests to me that the pre-1998 and post-1998 practice was consistent, in the sense that Clerks did not receive a uniform in either period;

iii) I accept that Ms. Davis may have had a green Workwear uniform prior to 1998. I am satisfied, however, that she received same in the period she was a Warehouse Worker. The fact that she may have chosen to continue wearing it, after moving to the warehouse as a Pallet Control Clerk in 1997, is not dispositive. For reasons set out above, I conclude that Ms. Davis did not receive a blue Cintas uniform in 1998, as alleged. I note, in this regard, that Ms. Davis testified she had a blue uniform in 1997. It is clear that Cintas uniforms had not been issued at that point in time, as this company only became the supplier in late 1998. In the circumstances, I must find that Ms. Davis’ recollection on this issue is faulty;

iv) In contrast to Mr. Araujo’s clear and consistent evidence, the evidence of Ms. Davis was, in many respects, vague, uncertain and imprecise. By way of example, I note that this grievor could not recall any of the following: the circumstances surrounding the Employer asking employees to return their Workwear uniforms; when, in fact, she returned the Workwear uniform; whether she was measured for a Cintas uniform in 1998; exactly when the change to a blue uniform occurred; and when the Cintas uniforms were returned to the LCBO; and,

v) Ms. Davis was the only grievor from the group to testify that she actually wore a uniform when working full-time in a clerical capacity. I think it more likely than not that other Clerks would have been able to confirm the practice if such practice was, in fact, in place.

In the final analysis, I must conclude that the extrinsic evidence presented is supportive of the Employer’s position that Clerks and the Pallet Control Clerk were not issued uniforms in the period prior to the change to the uniform allowance.

The parties seemed to agree that there is a continuum of duties within the Durham Warehouse. At one (1) extreme are the duties of the Vax System Operators and the Control Console Operators. Employees in these classifications perform the bulk of their duties in respect of the computer system from the confines of the Control Room. They rarely leave this office to go out to the warehouse floor. Vax System Operators and Control Console Operators were never issued a uniform and have not received a uniform allowance under the amended provision. At the other extreme are the Warehouse Workers, and to a lesser extent the Foremen/Women. The Warehouse Workers do physically demanding work on the warehouse floor. Their duties include the unloading by hand of large containers, clearing cases from jammed conveyors, repacking broken cases of product, and operating equipment, such as forklift trucks. Warehouse Workers were provided with uniforms prior to the expiry of the 1998 to 2000 collective agreement. Thereafter, they received the uniform allowance.

The parties differ as to where these grievors should be positioned along the continuum. It was the Union’s position that the grievors’ job duties are closer in nature to the duties of Warehouse Workers, in terms of the potential for their clothing being exposed to dirt, stain and damage and that, as a consequence, they were similarly entitled to a uniform and are now entitled to the uniform allowance. In response, the Employer claimed that the duties of the Clerks and the Pallet Control Clerk more closely resemble the duties engaged in by the Vax System Operators and Control Console Operators in respect of the potential exposure of their clothing to dirt, stain and damage. From the perspective of the Employer, this lower level of risk does not support the provision of the current uniform allowance to these grievors.

After considerable thought, I have been persuaded to accept the Employer’s position for the following reasons:

i) Warehouse Workers perform their duties out in the warehouse. These duties , which occupy virtually all of their day, are of the type that can naturally result in clothing becoming dirty, stained or damaged. By way of example, Warehouse Workers may have to handle up to two thousand (2,000) cases a day when unloading containers of product and routinely have to handle broken product. In contrast, the Clerks and the Pallet Control Clerk spend the vast majority of their day in their offices performing, what may be fairly described as, office and clerical functions. Ms. Caldarola agreed that approximately ninety-five percent (95%) of her time was spent in the Receiving Office and that she only left the office a few times each day. Similarly, Ms. Graham testified that on a regular day, she too spent about ninety percent (90%) to ninety-five percent (95%) of her time in the Receiving Office. She claimed that a lesser amount of time was spent therein on non-regular days. It seems from her evidence that the difference between the two (2) types of days was time spent in the Dispatch Office and not time spent working out on the warehouse floor. Ms. Davis also agreed that the “vast majority” of her time was spent in her office. I note her evidence that more than half of such time was devoted to data entry.

I conclude that the significant amount of time these grievors spent in their offices militates against acceptance of the argument that they required a uniform to perform their duties and that they are now entitled to payment of the uniform allowance. I have not been convinced that the handling of paperwork and seals, which may on occasion be dirty or wet, supports the benefit sought. I also have not been satisfied that this entitlement should flow from the fact the offices may be high traffic areas. Ultimately, I think there is a material difference between the warehouse duties performed by Warehouse Workers out on the warehouse floor and the office and clerical duties performed by these grievors in their offices. In my judgment, the former are significantly more exposed to the potential for their clothes to become dirty, stained or damaged through contact with product, breakage, spillage, equipment or acid and grease. The contact the grievors may have with these items is nowhere near as frequent or as intense; and

ii) I accept from the evidence that Ms. Caldarola, Ms. Graham and Ms. Davis may leave the confines of their office during the workday for reasons including the following: to retrieve bills of lading; to locate missing cases or broken product; to retrieve files from storage; or to go to the Dispatch Office or Shipping Office to pick up or drop off paperwork. I have not been satisfied that the amount of time spent out of their offices on these tasks, which are ancillary to the clerical function, is significant or that the nature of the tasks required the provision of a uniform or a uniform allowance. I note, in this regard, that the primary responsibility to locate and handle breakage rests with the Breakage Checker and Foremen/women classifications and not with these grievors. Additionally, I think that the grievors can readily avoid any hazards or unwanted contact with spillage, dirt or soot when traveling between offices along “the yellow brick road”.

I must conclude that the extrinsic evidence related to the grievors’ duties does not compel the conclusion that they were formerly entitled to a uniform under the 1998 to 2000 collective agreement and that, as a consequence, they are now entitled to a uniform allowance under the successor agreements.

The grievors’ complaints about the cleanliness of their offices and adjacent areas have been fully set out earlier in this award. As noted, I have also had the opportunity to put their evidence into context and to assess their concerns through the taking of a view on September 16, 2005. The offices I inspected on that day were, generally, not as clean as offices located in a more conventional office setting. Indeed, there was a difference in the level of cleanliness between the Dispatch and Receiving Offices and the Front Office, with the latter office being cleaner. This distinction is not surprising, however, given that the former offices are located within the actual warehouse and are there to support the receiving and shipping functions. While I think that the Employer could do better in terms of maintaining the cleanliness of the offices material to this dispute, I have not been persuaded that they are sufficiently dirty so as to require either the issuance of a uniform or the payment of a uniform allowance. I am also inclined to accept the general thrust of the Employer’s submission that entitlement to these benefits is premised more on the nature of the duties performed than on the condition of the workplace. In any event, I have not been convinced by all of the evidence, including the taking of the view, that the grievors’ concerns as to cleanliness are sufficient to justify an award of the remedy claimed in this proceeding.

For all of the above reasons, the question submitted to me by the parties is answered in the negative. The grievance is, accordingly, denied.

Dated at Toronto, Ontario this 8th day of March, 2006.

Exhibit 40