GSB# 2017-0551; 2017-3477; 2018-1099

UNION# 2017-0379-0009; 2017-0681-0018; 2018-0163-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Valade et al)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Lauri Reesor Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING DATE

November 16, 2022

Decision

1Before me on this matter on the first day of hearing is a dismissal motion by the Employer represented by Counsel, Lauri Reesor, with respect to the three individual grievances filed by OPSEU Union members Lillian Valade, William (Bill) Ranich, Patti Morden.

2The Union represented here by Counsel, Laura Johnson, opposes that motion.

3The underlying issue which precipitated this motion is the Employer’s contention that a previous Policy Grievance which raised this identical issue was withdrawn by the Union in circumstances in which the Employer maintains must be considered to have been with prejudice. The Union on the other hand has taken the position that the withdrawal of the Policy Grievance was not with prejudice to these individual grievances, nor with respect to other grievances filed by individual employees which have been held in abeyance for the time being. There was no objection by the Union to the assertion by the Employer that approximately 47 other grievances had been held in abeyance pending a decision on the policy matter.

4The key issue to be determined then is whether or not the withdrawal of the Policy Grievance was such that, in the circumstances, it must be considered to have been withdrawn on a with prejudice basis such that the Union is estopped from pursuing these individual grievances. There is the added issue as to whether or not the Union’s failure during ensuing collective bargaining discussions to advise the Employer of its intention to pursue the individual grievances and the issue underlying those grievances. It is the Employer’s position that the Union’s failure to give notice before or during bargaining of its intention to pursue the issue through the individual grievances represents a secondary basis upon which the doctrine of estoppel should apply.

5The crux of the issue on the merits is the Union’s claim that casual employees are entitled to the severance payments described in Article 12 of the parties’ collective agreement when they leave their employment in the circumstances described in that provision.

6My special thanks to Counsel here not only for their assistance in their presentation on behalf of their respective clients but also for the preparation of the Agreed Statement of Facts for this preliminary Motion which is attached as Schedule “A” to this decision.

7For the reasons which follow I have concluded that, in the circumstances, the Union’s withdrawal of the Policy Grievance with respect to the same issue identified in the individual grievances before me reasonably led to the inference that the Union conceded that the issue grieved was without merit or, put another way, that the Company’s interpretation and practice was consistent with the terms of the collective agreement. In the circumstances, the withdrawal of the Policy Grievance must be considered to have been on a with prejudice basis such that it constitutes a bar to the individual grievances before me. Furthermore, although I cannot make a determination with respect to the 47 other employees who have filed grievances with respect to the same issue, I would expect that the rationale here would equally apply to those matters assuming, of course, that they too raise the same issue with respect to the provisions of the collective agreement.

8In the following numbered paragraphs I will try to itemize in summary form those critical facts distilled from the parties’ Agreed Facts which led to the conclusion identified above and which will be more fully clarified later in this decision:

1. Two of the three individual grievances were filed in 2017 that is the grievance of Lilian Valade, (LV) and that of Bill Ranich, (BR), the third filed by Patti Morden, (PM) was dated April 17, 2018.

2. The Policy Grievance itself was filed on January 9, 2018.

3. In the meantime, approximately 47 other individual grievances for a total of 50 on the same issue and, on the agreement of the parties, where held in abeyance pending the outcome of the Policy Grievance.

4. The Policy Grievance was referred to the Grievance Settlement Board for resolution. The parties met before Arbitrator Ian Anderson on January 30, 2020 (May 21, 2020 was adjourned) when they engaged in Mediation and Case Management. Presentation on the merits was scheduled to commence on December 9, 2020.

5. The following paragraphs 14 through 18 (in part) are as set out in the parties’ Agreed Facts:

6. On October 28 2020. the LCBO provided OPSEU with a statement of its particulars, including the full bargaining history for Article 12, its predecessor Article 11, and the LCBO’s supporting productions with respect to the Policy Grievance.

7. On November 3, 2020, OPSEU withdrew the Policy Grievance by email to the Grievance Settlement Board, attached as Tab D.

16 OPSEU did not give notice of an estoppel for the negotiation of the 2021 to 2024 renewal agreement.

17. During negotiations for the current 2021-2024 collective agreement, OPSEU did make proposals for language changes to Articles 6 and 12. Those proposals were withdrawn during bargaining and are not reflected in the ratified Collective Agreement for 2021 to 2024…

18. The Severance/Termination Payment provision applicable to PFT employees in Issue in this Grievance (originally Article 11 and as of 2013, Article 12) has appeared in the Collective Agreement since 1971 as set out in the following agreements between the parties:

(A list of 17 Collective Agreements commencing July 1971 ending March 31, 2017 were set out here.)

6. The withdrawal of the Policy Grievance was sent by then Union Counsel, Jorge Hurtado of the firm Morrison Watts on November 3, 2020 to GSB Staff Representative, Ruben Trancoso, with copies to arbitrator Anderson and Employer Counsel, Lauri Reesor, in the following terms:

Good Afternoon Ruben,

The Union has withdrawn this grievance and as such requests that the hearing on the 9^th^ of December before Ian Anderson be cancelled. Employer Counsel is copied on this.

Yours truly,

Jorge Hurtado

Barrister and Solicitor

7. It is noteworthy that the withdrawal followed only a few short days after Mr. Hurtado and the Union had received the Employer’s productions and particulars.

8. It is also noteworthy that the withdrawal did not assert that the Union was withdrawing on a without prejudice basis.

Submissions and Discussion

9As noted earlier in this Award, Ms. Reesor on behalf of the Company argues that the Union having abandoned the Policy Grievance with respect to the identical issue as raised in the grievances now before and relating to the same provisions of the Collective Agreement, in the circumstances and upon the facts before me, must be taken to have withdrawn that grievance on a with prejudice basis. It is the Employer position that the Union’s withdrawal in the circumstances before me represented a concession by the Union to the Employer’s interpretation of the Collective Agreement and the issue described in the Policy Grievance and which was identical to that in the individual grievances now before me. Additionally, Ms. Reesor argued that the three grievances existed simultaneously with the Policy Grievance and were held in abeyance pending an arbitral determination on the issue at stake. It must be inferred in the circumstances that the withdrawal was a concession on the issue which equally impacted the individual grievances here.

10Additionally, the parties went on to bargain a renewal of their Collective Agreement during which time there was no assertion by the Union that it disputed the Employer’s interpretation or application of the relevant provisions of the Collective Agreement. Rather, it made proposals that would incorporate changes to the contract which would crystalize or confirm the entitlement of casual employees to severance payments for all their years of employment in that capacity. Those proposals were withdrawn during bargaining. In the circumstances, it is the Employer’s position that the failure of the Union to provide notice prior to or during bargaining that it had not acquiesced in the Employer’s interpretation of the relevant provisions and of equal importance, had withdrawn proposals on the same issue during bargaining, had misled the Company with respect to the Union’s position on the issue. In the circumstances the Employer relied to its detriment in not seeking to amend the contract language so as to reinforce its interpretation.

11In support of her submissions, Ms. Reesor referred to the following Authorities:

1. C.U.P.E, Local 207 v. Sudbury (City), 1965 CanLII 991 (ON LA), 1965 CarswellOnt 626, [1965] O.L.A.A. No. 7, 15 L.A.C. 403 (Reville)

2. Saint – Gobain Abrasives v. C.E.P., Local 12, 2003 CanLII 89556 (ON LA), 2003 CarswellOnt 4415, [2003] L.V.I. 3411-7, [2003] O.L.A.A. No. 495, 120 L.A.C. (4^th^) 73, 74 C.L.A.S. 218 (Burkett)

3. Acme Strapping Co. v. U.S.W.A., Local 6572, 1991 CanLII 13320 (ON LA), 1991 CarswellOnt 6488, 22 L.A.C. (4^th^) 400, 24 C.L.A.S. 608 (Baum)

4. Turning Point Youth Services and CUPE, Local 3501 (Assignment of job duties), 2019 CarswellOnt 1716, 138 C.L.A.S. 271 (Lorne Slotnick)

5. Conway v. Irving Tissue Co., 2010 CarswellNB 53, 2010 CarswellNB 53, 2010 NBCA 9, 185 A.C.W.S. (3d) 466, 190 L.A.C. (4^th^) 289, 2010 C.L.L.C. 220-021, 354 N.B.R. (2d) 154, 913 A.P.R. 154, (NBC of A)

6. Toromont Industries Ltd. v. I.A.M. & A.W., Thunder Bay Lodge 1120, 2010 CarswellOnt 5788, 101 C.L.A.S. 2, 192 L.A.C. (4^th^) 1 (George T. Surdykowski)

7. City of Penticton and C.U.P.E., Local 608, (1978), 1978 CanLII 3523 (BC LA), 18 L.A.C. (2d) 307 (Weiler)

8. Child and Family Services of Timmins and District and CUPE, Local 2196 (Doctor’s Certificate), 2009 CarswellOnt 10928, 97 C.L.A.S. 256 (P. Knopf)

9. NOR-MAN Regional Health v. MAHCP, 2011 SCC 59, [2011] 3 S.C.R., 616 (S.C.C.)

10. Centre Manufacturing Inc. v. CAW-Canada, Local 222 1999, CarswellOnt 2277, [1999] L.V.I. 3032-6, 1999 CanLII 35936 (ON LA), 57 C.L.A.S. 87, 81 L.A.C. (4^th^) 281 (Knopf)

12On behalf of the Union Laura Johnson argued that the withdrawal or abandonment of the Policy Grievance was not a representation that the Union had accepted the Employer’s position on the issue of severance pay for casual employees. Rather, the withdrawal should be seen in light of the following elements:

1. The withdrawal of the Policy Grievance rather than being understood as a concession to the Employer’s position might have equally been based upon some other reason or reasons. For instance, it might well have felt the issue on the merits would be more favorably viewed if presented as an individual grievance rather than on a policy basis.

2. The Union withdrew the Policy Grievance at a time when the matter had not yet reached the technical stage of litigation. Rather the parties had only discussed the matter during attempts at mediation and then Case Management. It was not yet formally before Arbitrator Anderson as a litigation matter. It was, therefore, open to the Union to unilaterally withdraw the grievance without concession as to the withdrawal being with or without prejudice.

3. The Employer at the time of withdrawal was aware of the existence of the individual grievances which was also the case while negotiations for the renewal of the Collective Agreement were taking place. In the circumstances, had there been any doubt whatsoever, it was incumbent upon the Employer to inquire as to the status or intention of the Union with respect to the individual grievances both at the time of the withdrawal of the Policy Grievance as well as during negotiations for the renewal of the contract.

4. The Policy Grievance and the individual Grievances were distinct matters. In the absence of a reference to withdrawal of the individual grievances, the Employer ought not to have assumed that they too would follow suit.

5. The proposals of the Union during bargaining with respect to severance pay for casual employees did not mirror the issue identified in either the Policy or the individual grievances. Rather, the proposal on the table would entitle casual employees to credit for all years worked as casual employees. The grievances on the other hand sought only to provide recognition with respect to the years not covered by the Employer’s prior practice with respect to the issue. In that regard, where an employee had worked for a number of years as a casual employee and then several as a regular employee, credit would be given for only those years spent as regular full time employee and not for those spent as a casual or seasonal employee.

6. Even if the Union’s actions in the withdrawal of the Policy Grievance and/or the withdrawal of the proposals at the bargaining table could be considered to have been a representation by the Union, there was no prejudice to the Employer and no evidence that it had relied on that representation to its detriment.

13In support of her submissions, Ms. Johnson referred to the following Authorities:

1. Acme Strapping Co. v. USWA Local 6572, 1991 CanLII 13320 (ON LA), 1991 CarswellOnt 6488; 22 L.A.C. (4^th^) 400; 24 C.L.A.S. 608 (Baum)

2. St. Lawrence Lodge and CUPE, Local 2107, 2013 CanLII 75618, 238 L.A.C. (4^th^) 263, 2013 CarswellOnt 16532 (Luborsky)

3. CAW-Canada, Local 462 v. Commercial Bakeries Corp., 2004 CanLII 94788, 126 LAC (4^th^) 298, 2004 CarswellOnt 3434 (Brunner)

4. Windsor (City) and CUPE, Local 543 (28/11), Re, 2012 CarswellOnt 14815 (Etherington)

5. York (City) and CUPE, Local 10, 1997 CarswellOnt 7230 (Goodfellow)

The Discussion and Decision

14With respect to the legal issues to be determined in this matter, I take my lead from the decision of Arbitrator Burkett in the St.-Gobain Abrasives decision (supra). While the merits of that case differed from those presently before me, the preliminary issues dealt with by Arbitrator Burkett were almost identical as described in paragraph 8 of that decision as follows:

The Company argues in the alternative that the Union is estopped from taking the position that it now does, having abandoned an identical grievance based on identical contract language on a with prejudice basis in 1996. The Company asserts that it relied to its detriment upon the Union’s with prejudice abandonment of the 1996 grievance in not seeking to amend the relevant language. The Company relies upon (numerous awards are cited here)… in support of its position that the with prejudice abandonment of an identical grievance on identical contract language constitutes a representation that the Union accepts its interpretation and application of the language which, coupled with its detrimental reliance, gives rise to an estoppel.

15The Union’s reply to that contention is set out succinctly in paragraph 9 of the decision as follows:

In reply, the Union disputes that the abandonment of a grievance gives rise to an estoppel. This is especially so, it is argued, where the grievance is an individual grievance and the compensation sought is less than $150. The Union argues that there could have been any number of reasons for the abandonment, including the infrequency with which this convergence of facts might arise in the future. In so far as the Company asserts detriment by reason of a lost opportunity to bargain, the Union submits that the loss, if there was one, of so few dollars is inconsequential. The prejudice, it maintains, is not sufficient to bar the Union from pursuing and relying upon its rights under the collective agreement some seven years after the abandonment of the prior grievance.

16Arbitrator Burkett in paragraph 14 after identifying several “awards that support the automatic rejection of a grievance giving rise to the same issue and seeking the same remedy as a prior grievance that has been withdrawn or abandoned… “. Goes on to clarify his view as follows:

However, I am of the view that there ought not to be a blank rule that the withdrawal of any prior grievance automatically bars the filing of a subsequent grievance that raises the same issue. This is so because a grievance may be withdrawn for reasons other than an acceptance of the other side’s interpretation. However, there are certain indicia that may be relied upon in making the determination as to whether the withdrawal constitutes a representation by the party withdrawing the grievance that it is content to be governed by the other side’s interpretation. These indicators must be considered in light of the reality that at the very least the grieving party, who has moved to challenge the other side’s interpretation or application of the collective agreement, and is now withdrawing or abandoning its grievance, has reconsidered its position. Where this reconsideration occurs in the later stages of the grievance procedure after a discussion of the issue, the withdrawal is in writing, signed by a responsible Union official or otherwise sanctioned by the Union and where the withdrawal is not made on a without prejudice basis, it can reasonably be inferred, without compelling evidence to the contrary, that the grieving party agrees with the other side’s interpretation and is content to be bound by that interpretation going forward.

17I have considered and agree with Arbitrator Burkett’s view that a simple withdrawal does not always indicate a concession to the other party’s interpretation. I also agree with his contention that “certain indicia may be relied upon to make that determination”. Indeed, the facts before me are consistent with the analysis suggested by Arbitrator Burkett and indicate that the Union had reconsidered its position and accepted the Employer’s interpretation. On the facts at hand:

a) Not only did the Union withdraw during the latter stages of the grievance procedure but after the matter had gone through mediation and case management. Furthermore, it had already been set for hearing early in the next month.

b) The Employer here had provided full disclosure not only of its position but all productions in support of its interpretation of the contract provisions together with a history of application of those provisions allegedly consistent with that interpretation. The withdrawal was provided within only a few days of Union Counsel receiving the Employer’s advice concerning the case the Union would have to meet.

c) The withdrawal was in writing and was signed not only by a responsible Union official but by a skilled and experienced independent legal Counsel retained by the Union to present and argue the Union’s position at arbitration.

d) The withdrawal by legal Counsel was not stated to be on a without prejudice basis. Had Counsel intended it to be otherwise, one would have expected it to have been so stated.

e) In conclusion, as arbitrator Burkett suggested in his opinion, it can reasonably be inferred that the Union on the facts before me agreed with the Employer’s interpretation and understood it would be bound by that interpretation going forward.

f) While Ms. Johnson suggested that the Union might have reasons other than acquiescence to the Employer’s interpretation, those reasons here would be speculative only. Such speculation does not even begin to satisfy the need to satisfy “compelling evidence to the contrary” in order to surmount or contradict the reasonable inference on the facts before me. For instance, Ms. Johnson suggested that the withdrawal by the Union of the Policy Grievance might well be considered a strategic withdrawal on the basis that pursuing a grievance or grievances on behalf of the individual employees might garner more sympathy than would a Union Policy Grievance. However, the facts belie even that speculation since the individual grievances were held in abeyance by the parties pending the outcome or a determination with respect to the Policy Grievance. It might in the circumstances be reasonably inferred that the parties intended the Policy Grievance to set a precedent with respect to the interpretation of the contract and would thereby impact the pending individual grievances.

g) In paragraph 16 of his award Arbitrator Burkett refers to three decisions in which arbitrators proceeded to hear the grievances before them even though a prior grievance raising the same issue had been withdrawn. In paragraph 16 of his decision, Arbitrator Burkett goes on to consider that proposition and in particular the result in the Ault Dairies case as follows:

The Union relies on Ault Dairies and Milk & Bread Drivers (1998), 24 L.A.C. (3d) 42 (Ont. Arb.) (Barrett), Ontario Liquor Board Employees’ Union and Ontario Liquor Control Board (Cheng grievance) unreported, dated August 3, 2001 (Ambramsky) and Longyear Canada Inc. v. A.A.M., Local 2412 (1981), 1981 CanLII 4522 (ON LA), 2 L.A.C. (3d) 72 Ont. Arb.) (P.C. Picher). In each of these awards, the decision was made to proceed to hear the grievance even though a prior grievance raising the same issue had been withdrawn. However, none of these grievances undermine the framework set out herein for deciding whether or not the withdrawal of a prior grievance that raises the same issue on the same language as a subsequently filed grievance, gives rise to a rebuttable presumption that the withdrawing party has accepted the other side’s interpretation of the collective agreement. In Ault Dairies (supra), “two previous individual grievances (had been) filed with respect to this very issue…each was denied and not take to arbitration by the union.” The company in that case took the position that the Policy Grievance that was before arbitrator Barrett was the same as the two earlier grievances and, therefore, should not be heard. Arbitrator Barrett found that the withdrawal of the two prior individual grievances constituted a representation by the union that it accepted the lack of notice of change of scheduled days off in a layoff situation, which was the same issue raised by the subsequent Policy Grievance. She further confirmed that the company relied upon this representation when it failed to place the issue on the bargaining table in the subsequent round of bargaining. However, she decided that the withdrawal of the two prior individual grievances that raised the same issue and gave rise to a representation as to the union’s understanding of the applicable collective agreement language ought not to bar the hearing of a subsequent Policy Grievance that affected all the employees in the bargaining unit. With all due respect, the distinction that she draws between individual grievances and Policy Grievances that raise the same issue on the same language is flawed. If the withdrawal of the two prior individual grievances gives rise to a representation that the union is content with the employer’s interpretation of the particular clause at issue, as the award confirms, the representation must be for all purposes. It cannot be that the representation can somehow be in respect of individual members of the bargaining unit but not for the bargaining unit as a whole.

18There are important aspects of the Burkett decision which I too find compelling here:

i) He disagreed with the arbitrator in the Ault Dairies case, who having found that the withdrawal of individual grievances constituted a representation by the Union that it accepted the Employer’s position on the matter, determined that the earlier withdrawal was not a bar to a subsequent Policy Grievance. Arbitrator Burkett was clear in pointing out that the distinction the arbitrator drew between individual and Policy Grievances was in error. He concludes in his reasoning that “it cannot be that the representation can somehow be in respect of individual members of the bargaining unit but not for the bargaining unit as a whole”. I agree with his reasoning there and, more emphatically or a fortiori, where the Union or its Counsel has represented that as a matter of policy it concurs with the Employer’s interpretation of a provision in the Collective Agreement, it must follow that such a representation will impact the entire bargaining unit and all of the members in it. Accordingly, I am satisfied that the withdrawal of the Policy Grievance here equally impacts the three individual grievances presently before me.

ii) The second matter referred to the in Ault Dairies case which has importance to the issues before me relates to the finding in that case by the Arbitrator that the Company had relied upon the representation of the Union there “when it failed to place the issue on the bargaining table in the subsequent round of bargaining”. On the facts before me, the Union at the bargaining table proposed language to amend the Collective Agreement such that casual and seasonal employees would in all circumstances of employment in those capacities receive severance credit for years served as casual or seasonal employees. Clearly it was an attempt by the Union to achieve at the bargaining table the benefit it had abandoned in the withdrawal of the Policy Grievance. While the provision or changes the Union provided might have been broader than what was sought in the grievance, it clearly sought the same benefit if not more for those groups of employees. Again, having sought at the bargaining table to achieve a result similar to that which they had abandoned in the withdrawal of the Policy Grievance again leads to the inference that the Union had in that withdrawal conceded or acquiesced in the Employer’s interpretation in the pre-existing Collective Agreement language. A fortiori the proposal and withdrawal of that language at the bargaining table in my view leads to the inference that the Union had earlier acquiesced in the Employer’s interpretation of the existing contract language. There is no doubt and I find that the withdrawal of the Policy Grievance was on a with prejudice basis.

iii) Furthermore, the proposal to add language to the Collective Agreement to provide the severance benefit to casual employees was I find, in itself, a representation that the existing contract did not provide that benefit to the casual employees. I am satisfied in the circumstances that the Company relied on that representation first when it did not seek clarification from the Union when the Policy Grievance was withdrawn that the individual grievances would follow suit and secondly that during bargaining the Company itself did not seek to further clarify the language of the Collective Agreement to support its interpretation and application.

iv) Standing alone, the Union’s proposals and withdrawal at the bargaining table to extend the severance benefits to casual employees can in itself be considered a representation of acceptance by the Union to the contrary which was relied upon by the Company.

v) As noted I have found that the withdrawal of the Policy Grievance here in those circumstances where the issue had been fully canvassed with particulars and productions just a short time prior to the arbitration hearing led to the reasonable inference that it was made on a with prejudice basis pursuant to which the Union acquiesced in the Employer’s interpretation and application of the Collective Agreement language. The Union is therefore estopped from pursuing that same issue in the individual grievances before me.

19I might note that the argument in these cases is often expressed in terms of estoppel which I find applies here. However, one might also consider a withdrawal in such circumstances to lead to an alternative characterization of the situation without the need for a full blown estoppel analysis. Such a characterization is referred in paragraph 19 of Arbitrator Burkett’s decision as follows:

Finally, if the language in dispute gives rise to a latent ambiguity, as in most cases where two competing interpretations are genuinely advanced, a full-blown estoppel analysis, with the determination dependent upon proof of detriment, as in Longyear (supra), may not be required. Rather, if the issue and the language are identical and the prior withdrawal occurs after a full discussion within the grievance procedure and is sanctioned by a responsible official of the withdrawing party and not made on a without prejudice basis, the withdrawal, absent compelling evidence to the contrary by the withdrawing party, constitutes extrinsic evidence of a shared intention and may be relied upon as such.

20I agree with the proposition presented in that paragraph by Arbitrator Burkett to the effect that a withdrawal with prejudice in the circumstances described “constitutes extrinsic evidence of a shared intention and may be relied upon as such”. In effect, the resulting shared intention may be considered in the same way as an arbitration decision between parties where an attempt is made to relitigate the identical issue. In those circumstances the matter is typically referred to as res judicata. Although technically not issued as a judicial decision on the issue, it may be considered to have the same force and effect and be binding on those parties. That intention would pertain between the parties at least until the expiry of the then current Collective Agreement.

21In any event and for the foregoing reasons, I confirm that the withdrawal of the prior Policy Grievance was made on a with prejudice basis by the Union with respect to the issue of severance entitlement for casual employees. The withdrawal was, in effect, a Union acceptance of the Employer’s interpretation and application of the contract provisions. Accordingly, that withdrawal constitutes a bar to the individual grievances before me.

22I recognize that this decision will seem disappointing to casual employees, especially those who have served in that capacity for many years. However, it is clear from the facts presented before me that the Employer’s interpretation and application of the contract which did not extend the severance benefit in Article 12 to casual employees had been accepted by the Union when it withdrew the Policy Grievance.

23In the circumstances, the Employer’s Motion succeeds and the three individual grievances are hereby dismissed.

Dated at Toronto, Ontario this 20^th^ day of December, 2022.

Schedule A

GSB Nos. 2017-0551

2017-3477

2018-1099

OPSEU Nos. 2017-0379-0009

2017-0681-0018

2018-0163-0012

In the matter of an arbitration before the Grievance Settlement Board

BETWEEN:

LIQUOR CONTROL BOARD OF ONTARIO

("the Employer/LCBO")

And

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

("the Union/OPSEU")

(RE VALADE, LILLIAN ET AL SEVERANCE GRIEVANCE)

AGREED STATEMENT OF FACTS FOR

LCBO PRELIMINARY OBJECTION

Introduction

1. The LCBO is incorporated pursuant to the Liquor Control Act, R.S.O. 1990, c.L.18, as amended, and commenced operations in 1927. The LCBO is governed by a Board of Directors appointed by the Lieutenant Governor in Council and is accountable to the Ministry of Finance. The LCBO's net revenues are transferred to the Ontario Government where they are used to fund public services.

2. Currently, the LCBO operates approximately 674 retail stores and five (5) logistics warehouses across Ontario.

3. All of the LCBO's approximately 8500 unionized employees (exclusive of fixed term unionized employees) are members of a single bargaining unit represented by the Ontario Public Service Employees Union ("OPSEU" or the "Union"). Of the 8500 bargaining unit members, approximately 7800 are employed in retail stores.

4. The LCBO and OPSEU are parties to a Collective agreement, whose term at the time of that the grievances were filed extended from April 1, 2017 up to and including March 31, 2021 (the "Collective Agreement"). The Collective Agreement is attached as Tab A.

Categories of Unionized Employees

5. There are currently five (5) categories of unionized employees that are recognized in the Collective Agreement:

(a) Permanent full-time employees (PFT);

(b) Permanent part-time employees (PPT);

(c) Casual employees;

(d) Seasonal employees; and,

(e) Fixed term (ie. "contract") employees.

The Grievances In Dispute

6. The three grievances at issue in this matter concern whether service in classifications other than PFT ought to be included in the calculation of Severance or Termination payments (used interchangeably herein). Severance or Termination payments first appeared in the 1971 collective agreement in what was then Article 11 prior to the 2000- 2002 collective agreement. There is no dispute that the LCBO has only included PFT service for the calculation of service pursuant to then Article 11, now Article 12. As detailed below, the individual grievers argue that the payments ought to be calculated based on all years of service (ie. including PPT and casual service).

7. By Grievances dated June 6, 2017 (Ranich) and April 28, 2018 (Morden and Valade) the Union filed individual grievances on behalf of Lillian Valade, William Ranich and Patti Morden (attached at Tab B) stating:

Valade:

I grieve that my severance pay was not correctly calculated violating articles 12.1 specifically and article 1.1c misuse management rights but not exclusively as well as any other articles, policies or statutes or legislation that may apply...Full redress to be made whole or any other remedy that is deemed appropriate by an arbitrator.

Morden:

Grieving under articles 1.1c), 12.1(a)(ii), 12.2(ii) and any and all other articles, letters, statutes and laws applicable. The LCBO has incorrectly calculated my severance payment... To be compensated for all years of service, including but

not limited to casual service and permanent full time service and to be made whole in all regards to status and pay.

The Collective Agreement

ARTICLE 12-Termination Payments

Ranich:

Employer is in breach of article 1.1(c), 2.1(b), 12.1(ii) and any other article, policy, act or legislation that applies... Full redress/made whole and any other award the arbitrator deems necessary.·

8. The LCBO alleges that the Grievors' Severance entitlements were properly calculated based on their service as PFT Employees alone.

9. In addition to the above-noted three grievances before the Grievance Settlement Board, the Union filed approximately forty seven other individual grievances making the same allegations for a total of fifty grievances on the same issue (47 plus the three in issue in this case). The Individual Grievances were held in abeyance pending the outcome of a Policy Grievance filed on January 9, 2018, which was later withdrawn, as detailed below. The withdrawal of the grievance took place during the Grievance Settlement Board proceedings, after the parties had engaged in two days of mediation and case management before the Board but prior to a continuation hearing date when the merits portion of the hearing was expected to begin.

The Collective Agreement

10. Central to the grievance are the below Collective Agreement provisions:

(Applicable to Permanent Full-time)

12.1 Preamble

(a) For the purposes of this Article,

(i) "Attendance Gratuity" is an amount computed by multiplying one-half (1/2) of the number of days of an employee's accumulated attendance credits by the annual salary to which he/she was entitled at the date he/she ceased to be an employee and dividing the product by 260.8928.

(ii) "Severance Pay" is an amount computed by multiplying the total number of years of service of an employee by the weekly salary to which he/she was entitled at the date he/she ceased to be an employee.

(b) The total amount paid to an employee in respect of an Attendance Gratuity or Severance Pay shall not exceed the annual salary of the employee at the date when he/she ceased to be an employee.

(c) Any Severance Pay to which an employee is entitled shall be reduced by an amount equal to any payment to which the employee is entitled under Article 25.1(b).

(d) Employees who are terminated for cause or who abandon their positions are not eligible for severance pay.

12.2 An employee who has completed one (1) year of continuous service and who ceases to be an employee by reason of:

(i) death;

(ii) retirement with eligibility for a pension pursuant to the Ontario Public Service Employees Union (OPSEU) Pension Plan;

(iii) termination due to inability to perform his/her duties by reason of mental or physical incapacity with eligibility for a disability pension under the OPSEU Pension Plan;

(iv) layoff;

is entitled to receive Severance Pay or an Attendance Gratuity, whichever is greater.

Policy Grievance

11. On January 9, 2018, OPSEU filed a policy grievance (the "Policy Grievance"), attached at

Tab C. The Policy Grievance alleged as follows:

The Union grieves that the Employer's policy and practice regarding the calculation of severance pay, wherein only years spent as a full-time employee are considered years of service and years spent as a casual, seasonal or other classification are excluded from said calculation, violates the collective agreement, specifically but without limitation to, articles 12, 32.9 and any statutes, laws or legal principles that may also apply.

12. The Union sought to the following remedies to the Policy Grievance:

1. An order that the Employer cease and desist;

2. For the Employer to make whole any employee who suffered a loss pursuant to this policy; and

3. Any other remedy required to achieve full redress.

13. The Policy Grievance was referred to arbitration and proceeded at the Grievance Settlement Board on January 30 and May 21, 2020 before Vice Chair Ian Anderson when the parties engaged in mediation and case management. It was further scheduled for a continuation date for hearing at the Grievance Settlement Board on December 9, 2020 when merits portion of the hearing was expected to begin.

14. On October 28 2020, the LCBO provided OPSEU with a statement of its particulars, including the full bargaining history for Article 12, its predecessor Article 11, and the LCBO's supporting productions with respect to the Policy Grievance.

15. On November 3, 2020, OPSEU withdrew the Policy Grievance by email to the Grievance Settlement Board, attached as Tab D.

16. OPSEU did not give notice of an estoppel for the negotiation of the 2021 to 2024 renewal agreement.

17. During negotiations for the current 2021-2024 collective agreement, OPSEU did make proposals for language changes to Articles 6 and 12. Those proposals were withdrawn during· bargaining and are not reflected in the ratified Collective Agreement for 2021 to 2024.

OPSEU Proposal UNE1 March 29, 2021 10:00am (attached as Tab E OPSEU Proposal UNE1 - May 6, 2021 9:30pm (attached as Tab F) April 1, 2021 to March 31, 2024 Collective Agreement (attached as Tab G)

18. The Severance/Termination Payment provision applicable to PFT employees in issue in this Grievance (originally Article 11 and as of 2013, Article 12) has appeared in the Collective Agreement since 1971 as set out in the following agreements between the parties:

July 1, 1971 to June 30, 1973 Collective Agreement (Tab H )

July 1, 1973 to June 30, 1975 Collective Agreement (Tab I)

July 1, 1975 to June 30, 1977 Collective Agreement (Tab J)

July 1, 1978 to June 30, 1980 Collective Agreement (Tab K)

July 1, 1980 to June 30, 1982 Collective Agreement (Tab L)

July 1, 1982 to June 30, 1985 Collective Agreement (Tab M)

July 1, 1985 to December 31, 1986 Collective Agreement (Tab N)

January 1, 1987 to December 31, 1988 Collective Agreement (Tab 0)

January 1, 1989 to December 31, 1990 Collective Agreement (Tab P)

January 1, 1991 Collective Agreement (Tab Q)

April 1, 1996 to March 31, 1998 Collective Agreement (Tab R)

April 1, 1998 to March 31, 2000 Collective Agreement (Tab S)

April 1, 2000 to March 31, 2002 Collective Agreement (Tab T)

April 1, 2002 to March 31, 2005 Collective Agreement (Tab U)

April 1, 2005 to March 31, 2009 Collective Agreement (Tab V)

April 1, 2009 to March 31, 2013 Collective Agreement (Tab W)

April 1, 2013 to March 31, 2017 Collective Agreement (Tab X)

19. Severance Payments were first included for PPT employees in the 1987 Collective (see Tab O above). Severance Payments were first included for casual employees in Article 32.9 of the 2000 to 2002 Collective Agreement (see Tab T above).