GSB# 2023-00169

UNION# 2023-0379-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (May)

Union

• and -

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

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Laura Chartrand, HR Manager Mark Mason Kevin Charlebois Liquor Control Board of Ontario

HEARING

October 11, 2023

Decision

1This matter proceeded as a mediation/arbitration, pursuant to s. 22.16 of the Collective Agreement. The parties agreed that this matter was properly referred for expedited mediation-arbitration and that, after a failed mediation effort, the Arbitrator should issue a written decision that is without prejudice or precedent.

2The Grievor alleged that she was improperly denied acting pay when the store was without a Product Consultant for an extended period. She was assigned many of the duties normally performed by the Product Consultant, including stocking, ordering, and serving customers in the Vintages section of the store. She did not attend tastings or other development opportunities offered exclusively to Product Consultants but completed many courses and tastings on her own initiative.

3Article 7.12(b) provides an hourly premium where an employee is designated by the Employer to replace another employee in a higher classification. The Grievor believes that she is entitled to premium pay in accordance with this provision of the collective agreement.

4The Employer maintained that it was entitled to assign duties to the Grievor in any location in the store, including the Vintages section, without designating her in an acting capacity. The role of Product Consultant is classified at a higher level to reflect elevated levels of education and experience, demonstrated by passing prescribed knowledge and palate tests. Because the classification is based on knowledge and experience, it was the Employer’s position that it never designates employees as acting Product Consultants.

5In any event, the Employer argued that Article 7.12 (b) does not and has never applied to the Product Consultant role. It referred me to an earlier decision, OPSEU (Gurin) v LCBO, GSB #2010-1491, (Devins), issued May 16, 2011, in which the Union and Employer agreed that Article 6.12 (b) (now 7.12(b)) does not apply to Retail stores.

6The Union confirmed that it has not changed its position and continues to accept that Article 7.12(b) does not apply in a retail setting. The Union reserved its right to amend its position in the future, with future grievances and/or at bargaining, should it be appropriate to do so.

7Based on the parties continued shared understanding of the restricted application of Article 7.12 (b), I find that the Employer has not violated any provision of the Collective Agreement. The grievance is therefore dismissed.

8Dated at Toronto, Ontario this 25^th day of October 2023.