GSB# 2003-1610, 2003-2460, 2003-2461, 2003-2462, 2003-2463

UNION# OLB339/03, OLB480/03, OLB481/03, OLB482/03, OLB483/03

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smyth et al.)

Union

• and -

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

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Larry Steinberg Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

March 29, 2006

SUBMISSIONS

July 13, 2006.

Decision

The instant grievances in essence allege that the employer has adversely affected the right of casual employees to be converted to seasonal status by an unreasonable exercise of its management right to schedule and assign work. The union claims that the collective agreement gives rise to an implied requirement that the employer exercise its management right to schedule and assign work reasonably, either through specific provisions of the collective agreement or from a reading of the collective agreement as a whole in a labour relations context. Counsel submitted that in the circumstances of this case, the employer’s exercise of that right was unreasonable. The union sought an order that the grievors’ entitlement to seasonal status be recalculated and that they be compensated for their losses.

At the hearing on March 29, 2006, the parties filed documentary evidence on consent, and also filed an agreed statement of fact. Subsequently, submissions were made by way of written briefs in accordance with an agreed upon timetable.

The agreed statement of facts, (with the appendices omitted) is as follows:

AGREED STATEMENT OF FACTS

The Employer and the Union (hereinafter “the Parties”) agree to the following facts for the purposes of the hearing and without prejudice or precedent to positions taken or arguments made in other grievances and/or hearings. The Parties agree that additional information may be presented at the hearing by viva voce evidence.

1. The Grievor Dan Smyth filed a group grievance at Stage 2 dated June 10, 2003 (OLB 339/03) which is the subject matter of GSB # 1610/03. The grievance alleges, “Fixed term employees being used before casuals have a full work week (37 ½ hours) scheduled; casuals being scheduled ½ days for stock taking once per month. Letter of Agmt [sic] p. 189 of C.A. This prevents any more casuals attaining seasonal status. Schedule casuals full work week before any fixed terms are used. To be made whole in all respects”. A copy of grievance is appended hereto as Appendix “1”.

2. The Grievor Patrick Gagnon filed an individual grievance at Stage 2 dated August 13, 2003 (OLB # 480/03) which is the subject matter of GSB # 2460/03. The grievance alleges, “Letter of agrmt. On page 188 of CA; casuals only scheduled 35 hrs for week of Aug. 11/03; fixed terms scheduled 30 hrs; “stock taking” says mgr; this affects seasonal attainment. To be made whole again in all respects; top up all part weeks to whole weeks for seasonal attainment where fixed terms were utilized”. A copy of the grievance is appended hereto as Appendix “2”.

3. The Grievor Sebastien Lanthier filed an individual grievance at Stage 2 which is date stamped as received September 30/03 (OLB #481/03) which is the subject matter of GSB #2461/03. The grievance alleges, “Letter of agreement on page 188 of CA; casuals only scheduled 24 hrs. for week of Aug. 11/03; fixed terms scheduled 30 hrs.; “stock taking” says manager; this affects/retards seasonal attainment. To be made whole again in all respects + top up all part weeks to whole weeks for seasonal attainment where fixed terms were utilized”. A copy of the grievance is appended hereto as Appendix “3_”.

4. The Grievor James Agmaliw filed an individual grievance at Stage 2 on August 21, 2003 (OLB #482/03) which is the subject matter of GSB #2462/03. The grievance alleges, “Page 188 of CA – letter of agreement; casuals only scheduled 34 hrs. week of Aug. 11/03; fixed terms scheduled 30 hrs.; “stock taking” says manager; this affects/retards seasonal attainment. To be made whole again in all respects; top up all part weeks to whole weeks for seasonal attainment where fixed terms were utilized”. A copy of the grievance is appended hereto as Appendix “4”.

5. The Grievor Oliver Tibbles filed an individual grievance at Stage 2 which is date stamped as received September 30, 2002 (OLB #483/03) which is the subject matter of GSB #2463/03. The grievance alleges “Letter of Agreement on page 188 of C.A.; casuals only scheduled 34 hrs. for week of Aug. 11/03; fixed terms scheduled 30 hrs.; “stock taking” says manager; this affects/regards seasonal attainment. To be made whole again in all respects + top up all part weeks to whole weeks for seasonal attainment where fixed terms were utilized”. A copy of the grievance is appended hereto as Appendix “5”.

6. At the time of filing the grievances, the Grievors were employed as casual employees at the Ottawa Retail Service Centre (“the Ottawa warehouse”) which is one of five warehouses within the Logistics Division of the Employer. The other warehouses are: Durham (located in Whitby), London, Thunder Bay and Toronto (collectively “the warehouses”).

7. There are different classifications of employees within the warehouses. For those employees who work on the operations side of the warehouses, and which are relevant for the purposes of this hearing, those employees include (ranked from the highest to the lowest classification): Warehouse Worker 4; Warehouse Worker 3; Seasonal; and Casual. For the period from the first Monday in May until Labour Day, the warehouses can also employ Fixed Term employees (“Fixed Terms”) in accordance with the Letter of Agreement found at pages 188 – 189 of the 2002 – 2005 Collective Agreement (“Collective Agreement”).

8. Warehouse Workers 4’s and Warehouse Workers 3’s (collectively “the full timers”) are guaranteed hours of work on a weekly basis. They are scheduled for 37.5 hours per week.

9. Seasonals and Casuals are not guaranteed hours of work and therefore their weekly hours of work can fluctuate. They are scheduled according to the operational requirements of the warehouse and based upon their seniority. Seasonals are scheduled after the full timers are scheduled and before Casuals are scheduled. Casuals are scheduled after Seasonals and, during the period from the first Monday in May until Labour Day, before Fixed Terms.

10. In or around May 2000, an interest arbitration panel, chaired by Paula Knopf, issued an interest arbitration award (“the Seasonal Award”) that introduced the category of employees called Seasonals and defined their terms and conditions of employment. Subsequent interest arbitration decisions, chaired by Paula Knopf, set out further terms and conditions or addressed outstanding issues pertaining to Seasonals (collectively “the Seasonal Awards”) with the last decision dated May 21, 2004.

11. The terms and conditions for Seasonals, as set out in the Seasonal Awards, became incorporated into the Collective Agreement as Appendix 4 – Applicable to Seasonal Employees (LCBO Logistics Facilities) found at pages 158 – 177 of the Collective Agreement (“Appendix 4”).

12. Appendix 4 sets out how Seasonals and Casuals are to be scheduled at sections 4-2.1 and 4-2.2 which state:

4-2.1 In Logistics facilities, hours of work will be assigned by Department in the following order:

• First to employees who have attained seasonal status commencing with the seasonal employee with the earliest seasonal attainment date, and then

• To casual employees in order of seniority

Provided they are qualified to perform the work, and no overtime is incurred.

4-2.2 It is understood that these available hours of work are hours of work required after hours of work for permanent full-time employees have been scheduled.

13. Appendix 4 sets out how a Casual can attain seasonal status in sections 4-4.1 and 4-4.2 which state:

4-4.1 Casual employees who are scheduled or work for more than fourteen (14) consecutive weeks at thirty-five (35) hours or more per week shall thereafter be considered to be a “seasonal employee”. It is understood that the thirty-five (35) hours does not include overtime hours.

4-4.2 The following periods shall also be credited to an employee for the purposes of determining whether they achieve status as a seasonal employee:

• Where a paid holiday occurs on a day that would otherwise have been a regular working day for such casual employee, during one of the above weeks, he/she shall be credited with seven and one half (7-1/2) hours.

• Where an absence resulting from a handicap as defined within the Ontario Human Rights Code, or pregnancy leave occurs on a day that would otherwise have been a regular working day for such casual employee, during one of the above weeks, he/she shall be credited for any hours they would have otherwise worked.

14. Appendix 4 also sets out how a Seasonal can lose Seasonal status and become a Casual again. This is found at section 4 – 5.1.

15. Further, Casuals are allocated work according to Article 31.7 which states:

Casual hours of work shall be allocated according to the seniority of the casual employees assigned to the applicable work unit or department.

16. The Letter of Agreement for Fixed Terms, found at pages 188 – 189 (“the Letter of Agreement”) of the Collective Agreement, states:

No fixed term employee shall be scheduled for work until all permanent full-time, permanent part-time, seasonal and casual employees who are assigned to the work site have been scheduled in accordance with the collective agreement, including employees who may be eligible for work under Article 51 and the Memorandum of Agreement – Allocation of Additional Hours.

No fixed term employee shall be scheduled for work which has not been offered in accordance with seniority to any permanent full-time and/or permanent part-time employee, or seasonal employee who is laid off and on a recall list in the geographic posting area in which the need for fixed term help arises.

17. Copies of the schedules for Casuals for the period of April 7 to September 15, 2003 (“the Casual schedules”) are appended hereto as Appendix “6”. The Casual schedules list the Casuals in seniority order, with the most senior at the top and the most junior at the bottom.

18. Copies of the Absence Records for the grievors for calendar year 2003 are appended hereto as Appendix “7”.

19. Copies of the schedules for Fixed Terms for the period of May 12 to August 25, 2003 (“the Fixed Term schedules”) are appended hereto as Appendix “8_”. The Fixed Term schedules list the Fixed Terms in seniority order, with the most senior at the top and the most junior at the bottom.

20. Copies of the Absence Records for Fixed Terms for calendar year 2003 are appended hereto as Appendix ”9”.

21. The Grievors allege that each Casual should have been scheduled 37.5 hours per week before any Fixed Terms were scheduled.

22. The Grievors allege that the Employer, by introducing dates upon which inventory counts were done, prevented the Grievors from attaining Seasonal status at an earlier point in time. In particular, the Grievors allege that the Employer improperly scheduled and assigned only 4 hours of work for them on inventory days in order to prevent them from attaining seasonal status.

23. Although the Employer has conducted inventory counts over the years, in April 2002, the Senior Vice-President of Logistics received a memorandum from the Director of General Audit pertaining to stock discrepancies at the warehouses, including Ottawa, which was followed up by the President of the Employer. As a way of ensuring compliance with these directives, and to ensure more accurate inventories, the Ottawa warehouse conducted more frequent inventory counts.

24. In 2002, inventory counts were conducted on January 5 and 24; February 2 and 9; March 14; April 5, 22 and 29; May 10, 25 and 31; June 14; August 16; September 15; October 4 and 28; and November 4 and 29.

25. In 2002, although casual employees were scheduled to work, some casuals were scheduled for 4 hours. No grievance was filed by the Union or any of the casuals about this.

26. In 2003, and up to September, inventory counts were conducted on January 3 and 13; February 10; March 14; May 5; June 9; and August 11.

27. On dates on which the inventory counts took place and on which the Grievors were scheduled 4 hours, the Grievors were not generally scheduled to participate in the actual inventory count. Instead, the Grievors would be scheduled either before the inventory count took place in the afternoon, or after the inventory count took place in the morning and they would conduct their normal duties such as picking orders and de-stuffing containers.

28. Inventory counts that were conducted on the dates described above, require an employee or employees to physically count all the cases of product in an area in which the inventory was to be counted, and no new product would be received, brought or removed into the area which was being counted. In other words, the area was essentially “quarantined”. All full timers on that shift would either participate in the inventory count or be re-assigned.

29. It is the position of the Employer that it did not require all casuals, or sometimes any casuals, to participate in the inventory counts because, simply, not that many employees were required and there was no other work to which they could be assigned. The Parties request that the Grievance Settlement Board determine whether the Employer has improperly scheduled the Grievors and, if so, to order that their entitlement to seasonal status be recalculated and they be compensated accordingly. The Parties request that the Board remain seized.

Counsel for the union relied upon the following passage from O.L.B.E.U. and LCBO (Attendance Review Decision), 2001-0557 (Dissanayake) where, following a review of the case law, at para. 18 the Board observed:

In light of the two Court of Appeal decisions, the most sensible approach, and the one that I subscribe to, is that taken in Re Meadow Park Nursing Home (supra). The state of the law following the Toronto Police Com’rs and Printing Industries court decisions, as I read them, may be summarized as follows: An arbitrator has no jurisdiction to import into a collective agreement a general duty on an employer to exercise management rights reasonably. However, if on an application of the general law of implied terms in contract, the implication arises from the collective agreement itself that a particular management right must be exercised reasonably, the arbitrator is bound to make that implication since it arises from the collective agreement negotiated by the parties, from which the arbitrator draws his or her jurisdiction. Such an implied duty may arise from a specific provision of the collective agreement, or from a reading of the agreement as a whole in a labour relations context.

The union submits that in this case a duty to act reasonably arises implicitly through two specific provision in the collective agreement. Counsel points out that s. 4-4.1 of Appendix 4 provides that casual employees who are scheduled or work for more than 14 consecutive weeks at 35 hours or more per week are to be considered to be “Seasonal Employees”. In other words, in order to be “converted” to the higher rated “seasonal” status, a casual employee must work 35 hours or more per week for more than 14 consecutive weeks.

The second provision relied upon by the union is a provision in the Letter of Agreement re Fixed Term Help, which states:

No fixed term employee shall be scheduled for work until all permanent full-time, permanent part-time, seasonal and casual employees who are assigned to the work site have been scheduled in accordance with the collective agreement, including employees who may be eligible for work under Article 51 and the Memorandum of Agreement – Allocation of Additional Hours.

Counsel submits that the two foregoing provisions clearly attract an implied duty on the employer to reasonably exercise its right to schedule and assign employees.

Alternatively, the union submits that a duty to act reasonably can also be implied from a reading of the collective agreement as a whole in a labour relations context. Counsel relies on the preamble to the collective agreement which provides that the general purpose of the agreement is to establish and continue “harmonious relations”, and “to provide procedures for the prompt and just disposition of differences and grievances”. Counsel submits that permitting the employer to exercise its management right to schedule and assign work without subjecting it to a duty to act reasonably, would not be conducive to harmonious relations between the parties or the just disposition of differences or grievances. Counsel submits that permitting the employer to unreasonably exercise its right to schedule and assign work would seriously undermine the core values and purposes of collective bargaining, one of which is the removal of the possibility of capricious actions by either party.

Counsel submits that it was incumbent upon the employer to schedule the work and employees in a manner that did not prejudice the right of the grievors to attain seasonal status. Counsel points out that historically there had been no set rules as to the number of inventories to be done, or as to the interval between inventories. Counsel submits that the employer could have scheduled the inventories in such a manner so as not to affect the casual employees’ right to be converted to seasonal status. For example, inventories could have been scheduled every 15 weeks, so that casual employees would be able to work the required 14 consecutive weeks at more than 35 hours. Counsel suggested alternate ways the employer could have scheduled its employees and assigned work, which would have allowed casual employees to attains seasonal status.

Employer counsel points out that under the collective agreement, the obligation on the employer is to schedule employees in the following order, Full-time employees first, then seasonal employees, casual employees and finally fixed term employees. The full timers are guaranteed 37.5 hours per week and are scheduled 7.5 hours per day Monday to Friday. The full-timers have to be scheduled 37.5 hours per week before scheduling any seasonal, casual or fixed term employees.

Counsel points out that in direct contrast, seasonals, casuals and fixed terms are not guaranteed hours of work. They are scheduled according to the employer’s operational needs. Counsel submits that the union’s position is to the effect that casuals should be scheduled a minimum of 35 hours per week before the employer can schedule any fixed term employee. She points out that the collective agreement imposes no such requirement. She submits that article 31.7 and the Letter of Agreement envisages clearly that casuals are to be scheduled where work is available on a daily basis, before fixed terms are scheduled. She submits that this was precisely what the employer did. In other words, the employer has scheduled casual employees on a per shift basis before scheduling fixed terms.

Counsel referred to the following excerpt from the Attendance Review Grievance decision (supra)

In the instant case, the union has not pointed to anything in the collective agreement that could give rise to an implied term that management rights must be exercised reasonably. Nor is there anything in the collective agreement to justify an implied term that the particular exercise of the management right to create an attendance review policy must be reasonable. Therefore, the Board has no jurisdiction to review the reasonableness, of the employer’s exercise of management rights to create the policy, or of the policy itself.

Although union counsel asserted in his submissions that the employer’s exercise of its management right to schedule and assign work was “not in accordance with the provisions of the collective agreement”, the union was not asserting that the employer had contravened any particular provision of the collective agreement. If it was taking that position, the union could have simply grieved that the employer violated certain specific provision/s of the agreement. Rather, its allegation is about the unreasonableness of the manner in which the employer exercised its management rights. In any event, the agreed upon facts do not substantiate a violation of either provision of the collective agreement relied upon by the union. S. 4-4.1 of the Appendix 4 provides that if a certain threshold is reached, (i.e. a casual employee works or is scheduled to work, for fourteen consecutive weeks at more than 35 hours per week), certain consequences flow (i.e. such casual employee is considered to be a seasonal employee). There is no right per se to be converted to seasonal status. That status is granted only if the threshold is met. There is no evidence that any casual employee who met that threshold was denied seasonal status. Nor has the employer contravened the Letter of Agreement re Fixed Term Help. The only way in which a violation may be found is if the provision is interpreted to mean that the employer is required to ensure that all casual employees are scheduled for at least 35 hours per week before scheduling any fixed term employees. The Letter of Agreement does not impose such an obligation. Such an assertion would also be contradictory to the agreed upon fact that casual employees have no guaranteed hours. The agreed facts establish that the only category of employees with guaranteed hours is the category of full-time employees. All others – seasonals casuals and fixed terms – have no guaranteed hours. Therefore their weekly hours will necessarily fluctuate according to the employer’s operational needs.

Assuming, without finding, that the employer was under an obligation to exercise its management right to schedule and assign work in a reasonable manner, the Board cannot conclude that the employer acted unreasonably in this case. The evidence is that based on a directive from the Director of General Audit, the employer determined that more frequent inventories ought to be conducted to deal with concerns about stock discrepancies and to ensure more accurate inventories. The frequency of such inventories and the interval between inventories were determined based on those business considerations. The union has not alleged bad faith on the part of the employer in this regard.

At best, the union’s argument is to the effect that the employer may have been able to schedule inventories in alternate ways which would have allowed it to meet its legitimate business goals, while still allowing casual employees to work the necessary hours per week to attain seasonal status. The union suggested alternate ways in which the employer could have scheduled the inventories to produce that result. However, could it be said that the employer was exercising its rights unreasonably, because it opted to follow a schedule which it considered to be most efficient and responsive to its business goals, rather than opt for one that was most beneficial to the employees? I do not think so. In the Board’s view, to hold that an employer’s exercise of its management rights may be stuck down as unreasonable because it could have acted differently in a manner that would have conferred collective agreement rights or benefits on employees, would render the management rights meaningless and unduly hinder the employer’s ability to manage its operation. That would not be compatible with the uncontradicted fact that under the collective agreement, scheduling of employees and assignment of work are exclusive management functions.

In summary, the Board has not determined the issue of whether in this case a duty to act reasonably arises impliedly. However, assuming that such a duty did apply, it has determined that the employer did not, in the particular circumstances, exercise its management right unreasonably.

Accordingly, all of the grievances herein are hereby dismissed.

Dated this 4th day of August, 2006 at Toronto, Ontario