GSB#2009-1102, 2009-2334, 2009-2335, 2009-2391

UNION#2009-5107-0008, 2009-5107-0021, 2009-5107-0020, 2009-5107-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Borg)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Michael MacLellan Crawford Chondon & Partners LLP Counsel

HEARING

June 9, 2011.

DECISION

1These four grievances allege improper scheduling and “harassment.” The employer objects that some or all of them were not processed through the grievance procedure or to arbitration in a timely manner, and in any event denies the wrongdoing alleged. The improper scheduling claims involve issues about the interpretation of the parties’ collective agreement as well as some factual disputes. The parties have asked that I resolve the interpretation issues before hearing evidence and argument with respect to any other issues in these grievances, on the basis of facts that the parties agreed were true or could be assumed to be true for purposes of their arguments.

2The grievor is a permanent part-time (“PPT”) employee. Article 35.1 of the collective agreement defines a PPT position as one that has regular or “core” hours of work that are fewer, one way or other, than those of a Permanent Full-time (“PFT”) position in the classification to which the position in question is assigned. The regular hours of a PFT employee in the grievor’s classification would be 40 per week. The grievor’s core hours in the relevant period were Mondays 9:00 a.m. to 3:00 p.m., Fridays 9:00 a.m. to 5:00 p.m., and Saturdays 9:00 a.m. to 5:00 p.m. The parties agree that

13. By way of correspondence dated April 4, 2008, the LCBO confirmed that Ms. Borg was available to work additional hours as follows:

Wednesdays 9:00am to 5:00pm. Thursdays 9:00am to 5:00pm.

14. While her core hours remained the same, the Grievor’s available hours changed, and as of October 1, 2008 were:

Wednesdays 8:00am to 6:00pm. Thursdays 8:00am to 6:00pm.

The allocation of additional hours to PPT employees is addressed in a 2002 memorandum of agreement “Re: Allocation of Additional Hours” (“the 2002 MOA”) that forms part of the applicable collective agreement:

It should be understood that the allocation of additional hours will be assigned by store in order of seniority, to PPT employees first, then to Casual employees, provided they are qualified to perform the work and no overtime is incurred.

In stores with PPT employees, it is understood additional hours are hours of work available after PFT and PPT weekly core hours of work have been scheduled.

In stores without PPT employees it is understood additional hours are hours of work available after PFT hours of work have been scheduled.

3The questions that the parties have framed are as follows:

(a) Where there are available hours for work outside of a PPT employee’s recorded availability, must those hours be offered to the PPT employee before they can be scheduled to be worked by a casual employee?

(b) Where management determines that there is a requirement for a full shift to be worked, must that shift be modified such that a PPT employee is offered some additional hours for work, while a casual employee is scheduled for the remainder of the scheduled shift?

The position that the union takes on behalf of this grievor is that the answer to each question is “yes,” while the employer says that it is “no.” For reasons that follow, I find that the answer to both questions is “no.”

4Although the Board has not previously considered the meaning of the 2002 MOA, it has considered and determined the effect of Article 31.7:

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

5In Kruczaj, 1993-1359 (Briggs, March 25, 1996), the grievor was a casual employee whose availability was affected by his having a full-time job elsewhere. The Board noted (p. 2) that “Casual workers fill out availability sheets to let the Employer know when they are free to work.” The grievor’s availability sheets had indicated that on some days of the week he was available for part, but not all, of a 12 noon to 8 p.m. that the employer was assigning to a more junior Casual. On the grievor’s behalf, relying on the oft-quoted passage in Re Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville) concerning the importance of seniority rights, the union argued that Article 31.7 required that the employer assign the grievor the hours for which he had indicated he was available, and assign the balance of the 12 noon to 8 p.m. shift to another casual employee.

6The Board found that the language of article 31.7 was ambiguous (p. 14):

We are of the view that the language of the Collective Agreement as it relates to the instant matter is not a model of clarity. No doubt the parties knew their intentions at the time the agreement was negotiated. However, we are of the view that the language of Article 31 is ambiguous and unclear.

It concluded that it had to look to extrinsic evidence, including past practice, to determine what the parties intended. On the basis of such evidence, the Board found that the allocation process contemplated by Article 31.7 involved comparing a store employee’s stated availability with the hours of the shifts that the store’s management had already decided to staff, and did not require that those shifts then be altered to maximize the hours assigned to senior Casuals:

The evidence of all, including the grievor, was that the Employer has consistently allocated established blocks of time or shifts to the casual employees on the basis of their seniority, including the grievor. Casual employees fill out a form regarding their availability every year or as their availability changes. Where there is a match between the available hours of a casual employee and the block of time or shift that the Employer needed to staff, that casual employee was assigned the work. The Collective Agreement does restrict the scheduling of shifts for casual employees to the extent that shifts cannot be split and they cannot be scheduled to work for less than two hours.

We are of the view that if the Union were correct in its interpretation it would lead to an absurd result. It would require, in every store within the LCBO, the manager scheduling the most senior casual employees for every hour of their availability so long as that period of time is not less than two hours. We are of the view that this is not the intended result of Article 31.7. Given the documentary and viva voce evidence that the Board heard regarding the practice of scheduling hours of work to casual employees, we find that the Collective Agreement cannot be interpreted as suggested by the Union.

7The parties did not change Article 31.7 thereafter. The Board’s interpretation in Kruczaj continued, and continues, to govern. As the Board later noted in Goncalves, 1999-0134 (Brown, February 23, 2000):

The general principal emerging from the Kruczaj decision is that the collective agreement does not fetter the employer’s power to fix the start and finish times of the shifts to be allocated to casual employees. Article 31.7 comes into play only after those shifts have been established. This article requires management to distribute the predetermined shifts on the basis of seniority. For present purposes, the important point is that an employee has a seniority claim only to those shifts created by management for which he or she is available.

Thus, although Article 31.7 refers to the allocation of hours and does not use the word “shift,” the Board concluded in Kruczaj and Goncalves that the process contemplated by that article is, in effect, a process of allocating shifts.

8On behalf of this grievor, the union argues that the 2002 MOA requires that the start and finish times of the shifts the employer has decided to staff be adjusted as necessary to maximize the assignment to the senior PPT of hours that she is prepared to work. The argument is essentially the same argument that the Board rejected in Kruczaj when the union made it with respect to Article 31.7. Apart from the fact that the 2002 MOA refers to and applies to PPTs, while Article 31.7 does not, the argument advanced by the union on the grievor’s behalf does not identify any reason why the “allocation” process contemplated by the 2002 MOA would be different from the way hours are “allocated” pursuant to article 31.7.

9It is noteworthy that the 2002 MOA governs the allocation of hours to PPTs and Casuals. After any PPT employee’s entitlement is satisfied, the hours to be allocated to Casuals under the 2002 MOA are the hours to which Article 31.7 also applies. The parties left Article 31.7 in the collective agreement when they added the 2002 MOA. They obviously thought that the two provisions could co-exist. They must have intended that both provisions would have the same outcome for Casuals after the entitlements of any PPT employees were satisfied. It is not reasonable to interpret the language of the 2002 MOA as requiring a process of allocation to PPT’s that is different from the process that that same language requires in its application to Casuals.

10For those reasons I am persuaded that the observations that the Board made about Article 31.7 in Kruczaj and Goncalves apply equally to the 2002 MOA: it does not fetter the employer’s power to fix the start and finish times of the shifts to be allocated, and allocation by seniority comes into play only after those shifts have been established. Accordingly, the answer to the question quoted in paragraph 3 above is “no.”

11Turning to the question quoted in paragraph 3, I note that the employer asked the grievor to say what hours in the week (in addition to her core hours) she would be available to work, and recorded her answer. On at least one occasion she changed the recorded answer. My impression from the parties’ “Partial Agreed Statement of Fact” is that there may have been (or there may be a dispute about whether there were) other representations by the grievor from time to time, either solicited or unsolicited by the employer, that modified those answers with respect to particular days or periods of time. I do not have to address those details at this stage.

12For purposes of answering the question quoted in paragraph 3, I assume that “recorded availability” refers to the answer that the employee most recently gave the employer to a standing question that asks “during what hours in the week (in addition to your core hours) will you be ready and willing to work, if scheduled,” or words to that effect. I also assume that nothing precludes a PPT employee from answering “I will be ready and willing to work any hours available at the store,” and that there is no limitation on a PPT employee’s changing her or his previous answer to this standing question from time to time (other than that a change is prospective only and cannot be expected to affect the outcome of scheduling decisions already made). This is not to say that there cannot be any such limitations, but only that any argument that they affect this analysis would have to be addressed separately.

13The union argued on the grievor’s behalf that the allocation and assignment of hours contemplated by the 2002 MOA involves first offering hours to employees in order of seniority without regard to “recorded availability,” and then assigning any hours for which there are no volunteers. A similar argument was made with respect to Article 31.7 in Bissonnette, 2007-1870 (March 30, 2010, Gray), 2010 CanLII 18869 (ON GSB) on the basis of obiter dicta in Costa, 2286/97 (August 9, 1999, Brown). The problem with that argument here is the same one identified in Bissonnette at paragraph 119: the parties clearly and expressly adopted a “first offer, then assign” approach in Article 31.11 and in the appendix relating to Sunday Openings, so their failure to expressly describe such an approach in article 31.7 and in the 2002 MOA suggests that it was not intended in those provisions. I am not persuaded that the 2002 MOA requires that the employer engage in a “first offer, then assign” process.

14The process contemplated by both article 31.7 and the 2002 MOA is one of assigning available shifts on the basis of information on hand when the assignment is made. In administering a process of this sort it is not unreasonable to require that employees provide information about the hours in the week when they will be ready and willing to work if scheduled. When a PPT employee has had the opportunity to identify to the employer the additional hours in the week that she would be available and willing to work if scheduled, it makes no sense to say that the employer would be obliged to schedule her for a shift that includes hours that she has not said she would be available and willing to work. Accordingly, for these reasons and on the assumptions identified in paragraph [12], the answer to the question quoted in paragraph 3 above is “no.”

15The 2002 MOA did no more than confirm that PPT employees can participate in the allocation process described in Kruczaj and Goncalves, and do so in priority to the Casuals in the stores where they work. The 2002 MOA did not alter that allocation process in so far as it involves the employer’s first determining the start and end times of shifts to be staffed in a store and then comparing the hours of those shifts with the hours that store employees have told it they are available and willing to work if scheduled.

16I retain jurisdiction to decide any issue in these grievances that is not resolved by this decision, including any issue concerning the disposition of the grievor’s allegations of improper scheduling in accordance with this decision.