GSB# 2012-1144

UNION# 2012-0286-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Butters)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Justin Diggle Liquor Control Board of Ontario Counsel

HEARINGS

October 2, 2014, August 27, 2015, June 29, September 1, December 6, 2016, January 12, 2017, October 16 17, 26, December 5, 2017, January 29, February 28, March 9, 2018

DECISION

1Before me is the grievance of Ms. Skye Butters, a member of the Ontario Public Service Employees Union who has been employed as a casual employee of the Liquor Control Board of Ontario (the LCBO or the Employer) since on or about 2001. Ms. Butters grievance, dated April 29, 2012, complained of her manager “doing bargaining unit work” such as “facing up stock, loading carts, setting up and taking down displays, stocking shelves etc.”. Ms. Butters had worked as a casual employee at store 252 in St. Catharines, Ontario (the Store) for several years during which time the Store Manager was Ms. Brenda Hookings. The Parties agreed that for the purposes of this matter the relevant time-frame would be considered as the six (6) month period from January to the end of June, 2012 inclusive. Ms. Butters, as a casual employee, most often worked weekends, in particular, on Saturdays during that period.

2Ms. Butters was concerned and grieved that, while she was working, her Manager, Ms. Hookings, often performed what Ms. Butters considered bargaining unit work during the relevant timeframe. It was Ms. Butters view that Ms. Hookings ought to have refrained from performing those tasks which were in the realm of bargaining unit work since there was an agreed restriction on management performing work that was typically work of the bargaining unit.

3It was the Union’s position that the details of the work performed by Ms. Hookings constituted a practice engaged in by the Manager contrary to a Letter of Understanding entered into between the Parties and integral to their Collective Agreement commencing April 1, 2009 and effective to March 31, 2013. The substance of that Letter reads as follows:

Letter of Agreement RE: Bargaining Unit Work

This letter shall serve to confirm that it is not the practice or the intention of Management to perform work that is typically performed by bargaining unit employees to avoid the scheduling of that work to bargaining unit employees.

However, Management reserves the right to perform such work as it deems necessary in the interest of customer service, operational efficiency, safety, emergency or other bona fide reasons.

4Also relevant to the matter before me is a provision within the Management Rights clause of the Collective Agreement as follows:

Article 1 Recognition

1.1 (c) The Union acknowledges that it is the exclusive function of

management to:

• manage the operation and without restricting the generality of the foregoing, the right to plan, direct and control operations, direct its employees, determine complement, methods and the number, location and class of employees as required from time to time, the scheduling and assignment of work, cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this agreement

The Employer agrees that these functions will be exercised in a manner consistent with the provisions of this Agreement.

Positions of the Parties

5The Union seeks a declaration that the Employer, through the activities of Store 252 Manager, Brenda Hookings, during a representative period from approximately January 14, 2012 to June 30, 2012 was in violation of the terms of the Letter of Understanding outlined above. That Letter was first agreed to by the Parties for their Collective Agreement which was effective from April 1, 2009 to March 31, 2013.

6Ms. Katherine Ferreira, counsel for the Union, took the position that the tasks alleged to be performed by Ms. Hookings were “typically” those assigned to bargaining unit members. The impugned activities need not be exclusively bargaining unit work but simply those which are typically performed by bargaining unit members. The provisions must be given some meaning and in the examples identified, in particular, on days during which the store was particularly busy, Ms. Hookings regularly performed tasks of that kind. Accordingly, those tasks performed by Ms. Hookings ought to have been scheduled for performance by members of the bargaining unit. In the circumstances Ms. Hookings engaged in a practice over the relevant time frame which was contrary to the terms of the Letter of Agreement.

7Mr. Justin Diggle for the Employer took the position that the activities identified as constituting a breach of the Letter:

1. Were not exclusively bargaining unit work;

2. Although typically performed by bargaining unit members, had for years and prior to the inclusion of the provisions in the 2009 contract, been performed by Store Managers on an incidental basis. Those tasks were consistent with the responsibilities of Store Managers to effectively manage their respective stores;

3. Even if the impugned activities were among those contemplated by the Letter as work “typically” performed by bargaining unit employees, the incidents referred to were brief in duration and irregular such that individually and/or taken together they could not be considered to have risen to the level of a “practice” or “intention … to avoid the scheduling of that work to bargaining unit employees”. In the circumstances the de minimis principle should be applied.

8Finally, Mr. Diggle asserted that the Letter did not constitute a restriction whereby the Employer had undertaken that its Managers would not perform work typically performed by members of the bargaining unit. Rather, it was a good faith expression or statement by the Employer to the effect that its Managers, while continuing to perform those overlapping tasks typically performed by bargaining unit members, would perform those tasks neither as a practice to avoid nor with the intention to avoid the scheduling of the work to or for bargaining unit members.

A Synopsis of the Evidence

9Ms. Ferreira and Mr. Diggle provided on mutual agreement a four page document outlining the basic facts as well as the testimony which otherwise would have been given by the Union’s primary witness, Ms. Skye Butters, the Grievor. Ms. Butters had, apparently, kept notes of those instances during which she had observed Ms. Hookings performing what she viewed as bargaining unit work. The relevant timeframe was approximately six months beginning in January of 2012 and ending in June of that year.

10Although most helpful to proceedings here, I do not propose to reproduce it within the body of this Award. The following, nonetheless, is a synopsis of some of the salient information set out in that document.

1. Paragraph 9 of that document identifies some of the relevant duties of bargaining unit employees as follows:

“The work performed by bargaining unit employees such as Ms. Butters, includes but is not limited to duties in relation to the following:

a) use of the hand held scanner

b) displays

c) inventory”

2. The following is a summary of the days, times and duration of the activities of Ms. Hookings which involved work observed and reported by Ms. Butters. Not surprisingly, Ms. Hookings, who later testified, was unable to recall her activities on the specific days in question. Notwithstanding that, she did not deny that she might well have performed the work as alleged incidental to and consistent with her managerial responsibilities.

3. The impugned work:

Saturday, January 14, 2012

15 minutes – facing up

Saturday night while the store was very busy Ms. Hookings, before leaving the store for the evening, was engaged in “facing up” bottles on shelves which entails moving at least one bottle to the front of the shelf and turning it so that labels face forward thus ensuring that the product in the row is displayed and identifiable.

Saturday, January 31, 2012

Approximately 110 minutes doing various task

From approximately 10:30 a.m. Ms. Hookings was engaged for approximately 45 minutes “bagging” customer purchases at the Grievor’s cash register.

At approximately 11:30 a.m. Ms. Hookings was engaged for approximately 15 minutes sweeping in the warehouse area and picking up cardboard from the floor to throw the baler.

At approximately 12:45 p.m. for approximately 15 minutes Ms. Hookings was again engaged in bagging at another employee’s cash register.

At approximately 4:40 p.m. for roughly 20 minutes was Ms. Hookings was “facing up” in the Spain section of the store.

At approximately 5:00 p.m. for 15 minutes Ms. Hookings was “bagging” for two other employees.

Typically, employees assigned to cash register duties bag customer products themselves. It is rare that a second employee is assigned to assist with that work.

Saturday, April 7, 2012

15 minutes facing up

For approximately 15 minutes at or about 12:45 p.m. Ms. Hookings “faced up” in the imported wines section of the Store.

Additionally, Ms. Hookings had at some time earlier moved product from the warehouse area into the store and which stock the Grievor was later assigned to place on shelves. The time Ms. Hookings spent transferring that product was unknown.

Saturday, April 28, 2012

Duration unknown – scanning activity

Ms. Hookings was observed travelling through the aisles in the Ontario wine section carrying a hand held scanner shortly after 1:30 p.m.

Saturday, May 5, 2012

Unspecified duration

The Grievor’s cash register had “crashed” near the start of her 3:00 p.m. shift. She busied herself with other tasks until about 5:00 p.m. when “Ms. Hookings manually took Ms. Butters” cash out and set her up on another “cash register”.

Saturday, June 23, 2012

Unspecified duration

Gathering carts

Ms. Hookings gathered carts from the aisle beyond the cash registers and moved them to the holding area on multiple occasions between 10 a.m. and 4 p.m.

Ms. Hookings had also engaged in rearranging package displays during a period of approximately 45 minutes at an unspecified time.

Monday, June 25, 2012

Unspecified duration

Facing up

Ms. Hookings was engaged in “facing up” in the Spirit section at approximately 4:30 p.m.

11Although there were insufficient particulars for some, the following is a summary of the impugned incidents and durations during the six month period in question:

January 14 – one incident – 15 minutes

January 21 – five incidents – 1 hour and 50 minutes

April 7 – two incidents – 15 minutes plus unspecified

April 28 – one incident – unknown duration

May 5 – one incident – brief duration

June 23 – three incidents – 45 minutes plus unspecified

June 25 – one incident – unspecified duration

The Ultimate Determination

12Having considered the totality of the evidence which will be outlined in more detail below, as well as the able submissions of counsel, I have concluded that the conduct of Ms. Hookings during the 6 month period in question did not constitute a violation of the Letter of Understanding.

The Employer’s Evidence

13While the evidence of the Grievor, Ms. Butters, was admitted upon agreement and without cross-examination, it was clear that those facts were in the nature of a “Will-Say” statement. Mr. Diggle for the Employer reserved the right to introduce evidence which would bear upon the conclusions, if any, to be drawn from those facts and where necessary to clarify that evidence. In the circumstances, testimony was received from two Employer witnesses, Ms. Barbara Chapple, who was District Manager of Quality Service for 30 LCBO Stores in the Western Region of the Province which, of course, included Store #252 in St. Catharines. Additionally, evidence was heard from Ms. Hookings herself who was the Store Manager for St. Catharines during the relevant period.

14Ms. Chapple had been with the LCBO in various capacities for over 30 years and had herself been a store manager for 10 years from 1999 through 2009 when she assumed the District Manager role. She held that position thereafter through the relevant timeframe in 2012 and continuing thereafter until 2016 when she retired. She was kind enough to offer her testimony in this matter to assist us in our deliberations.

15Ms. Chapple testified that she was familiar with Ms. Butters, the Grievor in this matter and of course Ms. Hookings who reported directly to her while she was District Manager for the Western Region. At or about the time she became District Manager the Letter of Understanding which is the subject matter of this grievance was entered into by the Parties during their bargaining for the 2009 to 2013 Collective Agreement. Subsequent to the ratification by the Parties of that contract together with the Letter of Understanding, a presentation was made to management personnel in an effort to explain the meaning of the Letter. Additionally, there was a typed outline of that presentation which included the relevant explanation. Ms. Chapple testified that she recalled the presentation and was familiar with the relevant extract. She gave her view of the meaning and application of the Letter of Understanding which view was consistent with the presentation and extract.

16While those views of Ms. Chapple and management regarding the meaning and application of the Letter of Understanding were interesting, it is my function to make that very determination in these proceedings. There was no evidence that the presentation of the Employer’s views was made directly to the Union at the bargaining table nor that Ms. Chapple was present and expressed her view to the Union during those negotiations. In the circumstances, neither her views nor management’s explanation of the letter are probative of the very issue or matter which I must decide here nor have I relied on those views in making the determinations I have made in this Award.

17Ms. Chapple also testified concerning her duties which in particular was to ensure that the Stores for which she was responsible reached the LCBO’s goals and objectives in terms of performance. She oversaw the execution and delivery of retail services in those stores and hence the performance of Managers of those stores. Store Managers are directly responsible to ensure that their respective stores meet the LCBO objectives. The LCBO is primarily a retail facility and as such customer service is paramount. It is the responsibility of the individual store managers to plan and direct operations in such a way as to satisfy such objective.

18Ms. Chapple reviewed in her testimony the job description for Managers. Broadly stated those duties were to ensure that the Store and its staff fulfilled the objective of the LCBO which is primarily customer service. In doing so Managers were to lead by example and Ms. Chapple confirmed her view that “customer service is for all of us”. In the circumstances, briefly speaking it was her view that the tasks which her Manager, Ms. Hookings were alleged to have performed were not only necessary to the Store but were expected of Ms. Hookings and consistent with her obligation to ensure customer service. In particular and more broadly, she identified numerous tasks which were within the expectation of Managers including:

1. Daily interaction with customers such as providing product knowledge and recommendations;

2. Ensuring appropriate store appearance including cleanliness, merchandising, inventory display and availability of products;

3. Fine tuning the display of product such as “facing up” of bottles on shelving;

4. Ensuring that chilled product was available;

5. Providing a welcome environment to customers including for instance appropriate music during the shopping experience;

6. Ensuring special programs and promotions of product are properly implemented.

19Although many of those functions or tasks are performed by bargaining unit members, it was her view that non-union personnel are not only responsible to see that those tasks are constantly fulfilled but when necessary to carry them out themselves as an element of customer service.

20In addition to those tasks noted above, Managers are responsible for inventory management. That function may entail walking through the aisles observing what products are selling and which are not. That function may include the use of the hand gun scanner to assist in evaluating product promotions and ensure that adequate product is available on displays. That information is necessary to check trends and make portfolio decisions such as discontinuing a product.

21Managers may take opportunities to chat with customers who may assist in assessing what’s hot and what’s not. That chat may affect the adjustment of product in displays and/or on shelves. Those readjustments may be implemented by Managers themselves especially where a promotion or display has been paid for by the trade.

22With respect to the appearance of the store for the customers, it is not unusual for Managers to clear the area of carts from behind the cash or check out area and move them to the corral for the use of new customers. With respect to bagging or boxing of product at the cash area, customarily cashiers will pack products at their own tills however when exceptionally busy it is not unusual for a Manager to speed the line up and take on the individual task of bagging product to assist the cashier. Additionally, the task provides the Manager with an opportunity to chat with customers and pick up information concerning their views with respect to product promotions and/or the operation of the store. It is on rare occasion that a second bargaining unit employee is assigned to assist with bagging product at check out. However, it can and does take place at the busiest times of year if extra staff is on hand. However, an assignment of that nature is not only occasional but brief in duration.

23In addition to those tasks which a Manager might take on him or herself, while walking through the aisles a Manager may pause to face up a shelf or two when the product appears to be in disarray. Facing up is not a task which is specifically assigned as a regular daytime task for any individual employee. Rather, it is expected that they themselves will undertake organizing shelves, for instance, while they are stocking shelves and/or not otherwise occupied or even while passing through the aisles as would a Manager.

24With respect to tidiness of the store including cleaning of debris and clutter from the cash area and even the warehouse, such tasks may be performed by Managers as well as bargaining unit employees. Indeed, as a matter of safety, a Manager may clear cartons or other clutter, in particular, from the floors around the cash areas for safety purposes. Similarly, where cartons or debris have been left loose on the floor in the warehouse area Managers as well as bargaining unit employees would be expected to clear the clutter for safety reasons and remove it either to the baler where appropriate or the waste bin in the alternative.

25Ms. Chapple confirmed that Managers have performed those duties and tasks described above throughout the 30 years she has been with the LCBO. They were doing so in 2009 when the Letter of Understanding was entered into and continued to do so on her watch through years thereafter.

26Of course, those duties and tasks that I have outlined above are generally performed by Managers only on an occasional basis and incidental to their fundamental duties which involve managing the store including in particular the flow of inventory into and out of the store as well as financial duties and the management and scheduling of staff to ensure customer service and satisfaction.

27Ms. Chapple also clarified that casual employees must be paid for a minimum of three hours if scheduled to work. Accordingly they are always scheduled to work for at least those three hours and often for more than that. With respect to Store #252 in St. Catharines, it is located adjacent to Brock University itself which makes for busy evenings especially on pub night as well as Friday or Saturday evenings especially at homecoming and/or on football weekends.

Brenda Hookings Testimony

28As indicated earlier, Ms. Brenda Hookings, Store 252 Manager in St. Catharines also testified. Her normal scheduled hours were 9 a.m. to 6 p.m. She did not challenge that she likely performed the various tasks identified by Ms. Butters. She confirmed the views of Ms. Chapple as to her responsibilities as a Manager with respect to the maintenance and operations of her store which entailed not only ensuring that the store as a retail outlet should meet the LCBO objective with respect to the paramountcy of customer service but also that she should lead by example and participate in the operation of the store when necessary. She had, during her many years as Manager, engaged directly in occasional tasks on the floor for brief durations. In so far as the specific duties identified by Ms. Butters as having been undertaken by her from time to time she did not disagree except to clarify that due to medical restrictions she would have been unable to engage in certain of the heavier tasks for more than five minutes at a time.

29With respect to those various tasks, for instance, she clarified that before leaving the store prior to 6 p.m. she would regularly walk the store to ensure that it was “ready for business” before it was handed off to the next shift leader. During that period she might well be engaged in facing up, moving carts and/or checking inventory with the use of a hand held scanner. Indeed, she might engage in those activities from time to time during store hours while she was travelling from one location to another within the store.

30In addition to the Parties’ evidence concerning the tasks performed within the store by members of the bargaining unit as well as those participated in by Managers and, in particular, Ms. Hookings, there was introduced into evidence copies of the final employee work schedules for Store 252 covering each of those several weeks which included the relevant Saturdays. Also introduced were copies of the sales for that store for the relevant Saturdays recorded on an hourly basis.

31There was no direct evidence from any bargaining unit employee whether full-time, part-time or casual that he or she was ready, willing and able to work during the relevant scheduled hours but had not been called upon to do so. Nonetheless, Ms. Hookings was examined in some detail with respect to these schedules as to who, when and how she had scheduled her workers during the relevant hours. It was clear that the days in question were busy shopping days for this store, however, there was no evidence that she failed to anticipate those volumes and/or failed to schedule or call upon casuals to serve the store as needed. While the evidence indicated that there were a couple of occasions on which she might have extended the hours of some employees beyond those for which they were scheduled, she could not recall specific circumstances from those situations and, in any event, to do so would in some instances have resulted in overtime for some of those employees which she considered unnecessary from a scheduling standpoint. In other instances, she believed she had probably asked certain employees if she could extend their hours beyond those scheduled but the offers had been declined or the employee accepted some but not all the offered hours. Similarly, she was of the view that she had sufficient worker resources within her store’s compliment and that it was unnecessary to borrow employees from other stores although she had considered and done so on other rare occasions.

32In the circumstances, in particular since there was no direct evidence that any employee who was ready, willing and able to work, had not been scheduled to do so, I do not propose to outline here the details of those schedules and which employees worked which hours beyond the outline I have provided in the foregoing paragraphs.

THE DISCUSSION AND DECISION

33As indicated early on in this Award I have not found a violation of the Parties’ Agreement respecting Ms. Hookings participation in bargaining unit work. Before providing my reasoning for that determination I would like to express my thanks to both counsel, Ms. Katherine Ferreira for the Union and Mr. Justin Diggle for the Employer for their helpful presentation of the evidence and thorough submissions concerning the issues.

The Meaning of the Letter of Understanding

34Before reviewing the factual scenarios presented I believe it will prove helpful to provide an overview of the meaning of the provisions in that Letter. It is important to note that there have been no prior decisions of this Board dealing with the meaning or application of that document. Furthermore, it is important to note that the meaning of such provisions must be viewed in their entirety and within the context of the Collective Agreement as a whole. With those considerations in mind, I have taken the liberty of restating below the provisions of that Letter as follows:

This letter shall serve to confirm that it is not the practice or the intention of Management to perform work that is typically performed by bargaining unit employees to avoid the scheduling of that work to bargaining unit employees.

However, Management reserves the right to perform such work as it deems necessary in the interest of customer service, operational efficiency, safety, emergency or other bona fide reasons.

35To begin, it is unnecessary to consider the reservations set out in the second paragraph of the Letter since, as I have found here, there has been no violation of the first provision. With respect to the first paragraph, it is my view that it is not an undertaking or a warranty that Managers will never perform work typically performed by bargaining unit employees. Rather, it is a good faith expression of Management at the time the Letter was entered into that its Managers were not in the practice of performing work typically performed by bargaining unit members to the extent that their performance of that work would deprive employees of being scheduled to work. Additionally, the Employer here expresses its intention not to alter its practices in that regard. If the provision were meant to be a restriction or undertaking going forward it would have been expressed in terms such as “shall not”, “will not” or “agree not” to rather than those used in this provision.

36Similar language concerning “intention” was dealt with in a contracting out case in Nova Scotia. In Re Highland Fisheries and CAW-Canada, Local 4622, 2003 Carswell N.S. 708, (2003), N.S. L.A.A. No. 19, 75 C.L.A.S. 323 (Ashley), the Arbitrator was dealing with a provision regarding contracting out referred to in paragraph 4 of her Award as follows:

21.02 It is not the intention of the company to contract out any work which is normally performed by bargaining unit employees during the term of this agreement.

37Dealing with that provision in contrast to a previous provision dealing with technological change which began with the word “agrees to notify…”, Arbitrator Ashley reasoned in paragraph 33 of her Award as follows:

33 By contrast with the Employer’s specific words of commitment in Article 21.01, Article 21.02 refers only to the Employer’s “intention” not to contract out certain work, which words do not appear to create an obligation. Throughout the agreement the words “shall”, “will” or “agree” appear when a right or obligation exists (eg. Article 4 – Union Security, Article 5 – Union Representative, Article 6 – No Strikes or Lockouts, Article 9 – Discipline and Discharge, and others). I can find no other provision in this collective agreement which has wording similar to that in Article 21.02, where only an “intention” is referenced.

34. The words “intention” and “work which is normally performed by bargaining unit employees” in Article 21.02 must have a meaning. In the context of Article 3.01 (d), these words appear to say that, even though the Employer can contract out most any work they want, their intent is not to contract out the normal work of the bargaining unit.

38Furthermore at paragraph 36, referring in part to Article 3.01(d) of the collective agreement before her where the Management Rights clause specifically stated the right to “determine whether and to what extent work shall be contracted out or done by independent contractors”, she expressed the view that:

36 The intention expressed in Article 21.02 is not binding on the Employer in the sense that it does not derogate from the rights granted under Article 3.01(d) (Re TRW Canada Ltd. (infra); Re Rogers Sugar Ltd. (infra). It merely articulates the Employer’s good faith intention to preserve bargaining unit work, despite the collective agreement’s broad contracting-out right.

39Additionally in paragraph 37, Arbitrator Ashley went on to note that:

37 …The Grievors were not laid off as a result of the outside contractor doing this work, and they did not lose their regular salary, which continued throughout. The contractors were not brought in to do the regular day-to-day work of the Grievors, as in Bendix-Eclipse (infra).

40As in the case before Arbitrator Ashley the letter before me is expressed as a matter of practice and intention rather than undertaking or warranty. In effect, the Employer maintains its usual rights to schedule work and manage the workforce. It does not specifically restrict the right of managers in their stores or derogate from management’s rights to continue performing typical bargaining unit work as was the practice. It was instead a good faith statement that it was not the intention of management to extend that practice so as to deprive bargaining unit members of work which might impact upon their schedules.

41On the other hand, that is not to say that the Employer’s statement of intent would have no consequence or legal effect if that proved to be a misrepresentation. In another contracting out matter decided by Arbitrator Richard Brown in Re Ivaco Rolling Mills and United Steelworkers of America, Local 7940, (2007) O.L.A.A. No. 446, 90 C.L.A.S. 280 (R. Brown), the Arbitrator was dealing with new contracting out language the first sentence of which read as follows:

While it is not the intent of the Company to utilize outside contractors in lieu of its own employees to perform normal production and maintenance work required to operate and maintain the Company’s equipment, the Company reserves the right to continue to use outside contractors…

42At paragraphs 13, 14, 15 and 16 Arbitrator Brown, having reviewed the Highland Fisheries Award set out above, reasoned as follows:

13 A common theme runs through all of the decisions reviewed above. A statement of employer “intention” does not have the same legal force as a provision saying the employer “agrees” to act in a certain way or one stating the company “shall” do something. The latter two types of provisions are legally enforceable promises about future conduct and they are binding for the duration of a collective agreement.

14 Statements of intention differ from contractual promises. In the words of Arbitrator Burkett, “an intention is no more than an objective or aim and when recorded speaks to the object or aim as of that time” (emphasis added). As the words in italics suggest, the intention of an employer acting in good faith can change over time. A statement of current intent does not preclude management from later changing its mind and acting in accordance with the contrary intention.

15 This does not mean there is no legal force to a statement of intention contained in a collective agreement. As Mr. Beattie noted in Vaughan Hydro-Electric, words in agreement “must have some meaning and be of some force and effect.” For example, an employer who claimed in a contract that it did not intend to do something, while at the same time actually harbouring an intention to do that very thing, would be subject to appropriate arbitral remedies for deliberately misrepresenting its present state of mind in the collective agreement.

16 Applying these principles to article 1.07(a), I conclude the statement of intent about normal production and maintenance work is not a legally enforceable promise, it is merely a representation about the employer’s intention at the time it was made. I remain seized to address any issue arising from the implementation of this award.

43With respect to the deliberate misrepresentation regarding management’s intentions, for reference purposes the decision of Mr. Beattie referred to by Arbitrator Brown was the Vaughan Hydro Electric case cited as Vaughan Hydro-Electric Commission and Canadian Union of Public Employees (1995), 1995 CanLII 18294 (ON LA), 51 L.A.C. (4th) 129 (Beattie).

44To reiterate, the provision is not a commitment that Managers will not perform typical bargaining unit work; rather it is a good faith expression that they would not perform that work where the intent or result would be to make the work unavailable for employees schedules. The key to the provision is the continued preservation of the status quo rather than an undertaking not to perform that work.

Application to the Factual Scenario

45It was clear from the testimony of both Ms. Chapple and Ms. Hookings that the tasks undertaken by Ms. Hookings and objected to by the Grievor were functions that had been performed by Managers for many years and had been carried on by Ms. Hookings throughout her tenure as Manager both before and after the introduction of the Letter of Understanding into the Collective Agreement. Among the factual issues to be determined is whether or not the various tasks complained of were “typically performed by bargaining unit employees”.

46As might be imagined, the nature of the work of the bargaining unit to be protected is described in several ways in different Collective Agreements. It often appears in contracting out provisions as well as in provisions such as that presently before me. Arbitrator Diane Brownlee was faced with a contracting out provisions in which the protected work was described as “work customarily carried out” as opposed to some other description such as we have in this case which is work “typically performed”. (See Brantford, City vs. A.T.U.), 2012 CarswellOnt 8891, (2012) L.V.I. 4012-1, 111 C.L.A.S. 281, 221 L.A.C. (4th) 381 (Brownlee). At paragraph 41 of her decision Arbitrator Brownlee referred to a decision between Central York Fire Service v. I.A.F.F., Local 2511 (2012), CarswellOnt 446 (Luborsky). Arbitrator Brownlee referred to that decision and the principles identified by Arbitrator Luborsky as well as the test he established for assessing whether work was “customarily performed” by bargaining unit members. At paragraphs 42 and 43 of her Award Arbitrator Brownlee reviews the findings made by Arbitrator Luborsky and the test he developed with respect to the issue as follows:

Arbitrator Luborsky did not find a distinction between the terms “work customarily performed” and work normally performed”. From his review of the cases provided to him, he summarized the test for assessing whether work was “customarily performed” by bargaining unit member(s), as follows:

…in making an assessment of whether the disputed work in issue is “customarily performed” by bargaining unit members, [I direct myself to] consider the frequency, volume or regularity of work in issue over a reasonable period, including the question of whether the work has been done on a consistent basis and if its removal or transfer would undermine the integrity of the bargaining unit.

Arbitrator Luborsky also set out a three-step analysis to determine whether there had been an improper contracting out of work customarily performed by bargaining unit members. The first step was to define the specific work that was being performed by a person outside the bargaining unit. The second step was to compare the work with the duties of the bargaining unit members claimed to normally or customarily perform the contracted out work. The third step was to apply the test that he distilled from the jurisprudence, that is, to assess whether the work in question was done by bargaining unit members with sufficient frequency, volume or regularity over a reasonable period of time, including whether the work was done on a consistent or constant basis and if its removal or transfer would undermine the integrity of the bargaining unit.

47Arbitrator Brownlee endorsed that test and went on to address her views flowing from earlier jurisprudence at paragraphs 45 and 46 of her Award as follows:

In this case, the restriction on the Employer’s right to contract out has been expressed in terms of “work customarily carried out”, as opposed to “work customarily performed”, or “work normally performed” or “work usually performed”. It is clear that arbitrators have not discerned a difference between work performed “customarily”, “normally” or “usually”. Rather, arbitrators have concluded that these words all imply that the work being protected is work that is done with sufficient frequency and volume and that it could be said to form the regular work that employees perform day in and day out.

I do not accept the Union’s submission that I should find that the term “customarily carried out” means something different from “customarily performed”. A basic principle of contract interpretation is that words should be given their ordinary meaning. The term “carried out” is synonymous with the term “performed”, especially in the context of work. To carry out work is to perform it. I do not accept that the term “work customarily carried out” refers to every task that bargaining unit members carry out, with regard to the usual tests regarding frequency, volume and regularity. I do not see any distinction between the terms “customarily carried out” and “customarily performed” that would lead me to conclude that the parties here intended to include every task, no matter how infrequently or irregularly performed by bargaining unit employees, as part of the work that is protected by Article 25.

48Having considered that analysis it is my view that the words “typically performed” in the provisions before me carry the same meaning as those before Arbitrator Brownlee and referred to by her in her decision such as “customarily performed”, “normally performed” and the like. Additionally, I am satisfied that in order to determine whether or not work is typically performed by bargaining unit members it is necessary to consider the disputed work with respect to its “frequency, volume or regularity…over a reasonable period, including the question of whether the work has been done on a consistent and constant basis and if its removal or transfer would undermine the integrity of the bargaining unit” as stated in the Luborsky Award cited earlier.

49As indicated earlier, I am satisfied that the use of the words “typically performed” make it clear that the provision does not relate only to duties exclusively performed by bargaining unit members. Rather, as I have noted, Managers are equally responsible to ensure and, when appropriate, to carry out most if not all those tasks themselves in furtherance of, at least, customer service. With one exception, having considered the allegations as well as the testimony of Ms. Chapple and Ms. Hookings, the majority of the tasks engaged in by Ms. Hookings during the relevant period can indeed be considered work “typically performed” by bargaining unit employees. That one exception is the bagging of customer purchases at checkout. It was quite clear from the evidence of the witnesses that the addition of a second person behind the cashier to bag or box product was infrequently an assignment given to a bargaining unit member. Typically, cashiers performed the bagging function on their own. It is only on rare occasions and for brief durations that a second member would be assigned that task and then only in the busiest of seasons and/or where a line up was significant. Furthermore, Ms. Hookings and Ms. Chapple both testified that Managers might assume that function themselves on occasion not only to assist the cashier but also to observe the cashier’s performance and/or to chat with customers for various reasons unrelated to the bagging itself. Taking into consideration the infrequency of the assignment and the duration of the work when assigned it would be difficult to consider it work typically performed by the bargaining unit. Notwithstanding that, even if one were to consider that it falls within the description of typical bargaining unit work, its inclusion on the facts here and its performance by Ms. Hookings did not establish that any inroads were made to the integrity of the bargaining unit or the work typically scheduled for them to perform as discussed below.

The Manager’s Activities

50I have determined that the majority of the activities engaged in by Ms. Hookings and objected to by the Grievor did indeed come within the rubric of work “typically performed by bargaining unit employees”. However it was clear that those activities or tasks were not exclusive to the bargaining unit but overlap with those of Ms. Hookings as a Manager. Further, there was no strict restriction on the Manager performing those duties. Rather, there was a good faith expression of practice and intention that Managers would not perform those tasks such as to interfere with the normal scheduling of work to the bargaining unit. This then takes me to a consideration of the frequency and duration of the typical bargaining unit work performed by Ms. Hookings over the 6 month period in question.

51The earlier summary of the events objected to over the relevant six month period identified only four days during which Ms. Hookings actions were clearly quantified and identified. Those events were as follows:

1. January 14 – 15 minutes facing up

2. January 21 – 1 hour and 50 minutes in total including 45 minutes bagging for the casher in the morning, 15 minutes bagging for another employee around 1 p.m. and another 15 minutes for two other employees around 5 p.m. The remaining 35 minutes involved 20 minutes facing up around 5:00 p.m. and 15 minutes cleaning up debris from the warehouse floor around lunch time, 12:45 p.m.

3. April 7 – 15 minutes – facing up.

4. June 23 – 45 minutes re-arranging a package display.

52On the other dates upon which allegations were raised, the particulars were incomplete either with respect to the nature of the allegation or the duration during which it occurred. Accordingly, there was insufficient evidence to include in my deliberations.

53Having considered the rare instances and the brief duration of each activity engaged in by Ms. Hookings during the 6 months in question, it is my view that, regardless of the extent, if any, of the restriction on management’s activities set out in the Letter of Understanding, those actions at her store in St. Catharines fall squarely within the de minimis principle expressed in arbitral jurisprudence going back at least to the 1980’s. It is a common sense principle espoused at that time and, I believe, a principle which continues to be good law today.

54Esteemed Arbitrator, David Beattie, expressed his views concerning the de minimis principle in Re Carling O’Keefe Breweries of Canada Ltd. v. Western Union of Brewery, Beverage, Winery & Distillery Workers, Local 287, 1987 (CarswellAlta 808), A.G.A.A. No. 13, 1987 CanLII 8783 (AB GAA), 31 L.A.C. (3d) 69, 7 C.L.A.S. 95 (Beattie). Arbitrator Beattie was considering the application of the following strict bargaining unit work provision:

No employee who is excluded from the bargaining unit shall perform the work of a member of the bargaining unit, except for reasonable purposes of training or in cases of extreme emergency…

55In addressing the facts before him, Arbitrator Beattie referred to the de minimis principle in the following terms at paragraph 47:

I am of the view, and I believe the view to be held generally by arbitrators, that in so interpreting and applying prescribed guidelines there must be some scope, albeit narrow, for common sense. Surely if a foreman provides momentary assistance to a bargaining unit employee no one should be heard to suggest that the integrity of the bargaining unit is being threatened. This common sense approach is the foundation for the principle in law of “de minimis non curat lex (the law does not care for, or take notice of, very small or trifling matters)”:Black’s Law Dictionary, 4th ed., p. 482. The principle was applied by the board in Thompson General Hosp. award, supra, where the article in the collective agreement prescribed specific exceptions of “instruction and cases of an emergency nature”. In that case a supervisor had helped for about ten minutes to pass out food trays. The board was of the view that the work was normally done by bargaining unit employees but at the time the ward was very busy and the supervisor was trying to be helpful. The board found [at p. 148] that “the evidence of any work done [by a supervisor] was so minimal and vague that the de minimis principle applied”; there was no consideration for the work done, no damages and no evidence of bad faith.

56It is my view that, although Ms. Hookings was not in all instances simply assisting a bargaining unit employee to perform his or her tasks as appears to have been the case in the Carling O’Keefe matter, she was, nonetheless, carrying out tasks which she had historically done and which coincidentally overlapped with those of the bargaining unit. As she performed them spontaneously on an irregular basis and for relatively short duration and on rare occasion during the six months in issue, it is my view that the de minimis principle applies as well here as it did before Arbitrator Beattie.

57With respect to the issue of overlapping duties and intrusion on work of the bargaining unit, I was referred to a decision of Arbitrator David Kates in Re C.U.P.E. Local 400 v. Ottawa Hospital, 1999 CarswellOnt 7166, [1999] O.L.A.A. No. 1019 (Kates). In that case the Arbitrator was faced with a grievance on behalf of the Registered Practical Nurses, members of C.U.P.E., objecting to a reassignment of a bundle of their duties to Registered Nurses who were members of the Ontario Nurses’ Association. At paragraph 14 of his Award Arbitrator Kates referred to the purpose attributed to the protection of bargaining unit work where overlapping duties existed in the following terms:

The work protection provision (to use a “trite” expression) is designed as a “shield” to protect status quo work assignments and thereby cannot be invoked as a “sword” to extend the work dominance of the one classification of employee (in this case RNs) over the other. It is this very significant principle of preserving the status quo of work assignments in instances where an overlap exists from upset by employer incursion that constitutes the very objective of the work protection clause. Where two job classifications “normally perform” the same work function, the employer is obliged not only to maintain the overlapping assignments but to sustain their quantum to the appropriate incumbents until a solution to the employer’s dilemma is achieved through the negotiation process. Only in that manner can the external pressures besetting the employer that precipitated the reassignment be resolved (see Re: Rideaucrest Home for the Aged and ONA (supra)

58As in the factual situation at hand, there are overlapping duties between the Manager and the bargaining unit which existed historically, were in place at the time the Letter of Agreement was entered into and continued at least through Ms. Hookings activities after the inclusion of the Letter of Agreement as part of the Parties’ Collective Agreement. As Arbitrator Kates determined in the matter before him, the provision before me, is in my view, intended to protect the work of the bargaining unit from inroads in degree or quantum with respect to the scheduling of that work. As noted earlier, there was no evidence that any bargaining unit employee, full-time, part-time or casual was not assigned to work on the days in question when he or she was ready, willing and able to do so. Furthermore, casual employees were normally scheduled for no less than the Collective Agreement minimum payment period of three hours. The longest continuous stretch of work performed by Ms. Hookings was 45 minutes on June 21st when she assisted a cashier by bagging customer purchases for approximately 45 minutes and later on June 23rd when she was re-arranging package displays for that same amount of time. Neither of those instances even taken together with other duties performed on those days was of sufficient duration to require the scheduling of an extra casual employee to perform those occasional and spontaneous tasks undertaken by Ms. Hookings during those two incidents.

59To reiterate, it is my view that the infrequency of the incidents identified over the period of six months and the brief duration of those incidents easily bring the matter within the application of the de minimis principle.

60In all the circumstances not only does the de minimis principle apply neither could it be said that the performance of bargaining unit work by Ms. Hookings amounted to a practice or was intended to avoid scheduling work for the bargaining unit. On the contrary it is my view that the spontaneous tasks performed by Ms. Hookings were consistent with the historical activities of Managers who performed overlapping duties with those typically performed by the bargaining unit. Furthermore, her activities were consistent with the good faith expression of management in the Letter of Understanding that it was neither her practice nor her intention as a member of management to perform work typically performed by members of the bargaining unit with the purpose of avoiding scheduling that work for bargaining unit members.

61Accordingly, there has been no breach of the Letter of Understanding and the grievance is dismissed.