GSB# GSB# 2017-0462; 2021-1624; 2021-1626
UNION# 2017-0378-0014; 2021-0378-0046; 2021-0378-0048
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Trainor 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
Michael MacLellan Crawford Chondon & Partners LLP Counsel
HEARING
June 2, 2025
Decision
1There are numerous grievances and issues pending in this matter between the LCBO and OPSEU. They arise within the LCBO’s Durham Warehouse and involve employees there engaged as Operations Clerks and/or Warehouse Workers. The disputes here essentially arise under situations in which the Union claims the Employer has been wrongly assigning Seasonal Warehouse Workers to backfill shortages created by Operations Clerks who are absent from work.
2The Parties have agreed on a series of sample issues and/or situations to identify the various issues at stake and to have those sample issues determined here as precedents to be referred to by the Parties in resolving the various grievances coming within the terms of the described issues in dispute.
3In the circumstances, the Parties have also agreed to bifurcate the questions on the merits from the potential remedy or remedies. In that way liability, if any, can be determined first and the question, if any, of damages be remitted to the Parties for resolution. Failing agreement with respect to remedy, my jurisdiction will be retained to resolve any disputes of that nature.
4Counsel here have devoted significant time and effort from the inception of this matter to prepare several documents as follows:
A. A list of Collective Agreement Interpretation Issues in Dispute;
B. A comprehensive Agreed Statement of Facts inclusive of provisions from the collective agreement between the parties which relate to the scheduling of hours of work and overtime that are relevant to the various issues;
C. A Flow Chart representing the Memorandum of Agreement between the parties regarding Overtime Equalization for Logistic Facilities.
5To begin the process, counsel have agreed to divide the issues in dispute so that some of those issues would be the first to be argued while the others would be held in abeyance pending determination of the first several issues. I commend counsel and the Parties for the excellent results they had in producing the documents referred to above and which I will be duplicating here beginning with the entire list of issues in dispute. Following the introduction of that document below, I will identify those several issues on that list which are to be the subject of this decision.
A. Collective Agreement Interpretation Issues in Dispute
The Union grieves that the Employer has breached the collective agreement in the following three ways:
- By assigning a Seasonal Warehouse Worker to perform the work of an absent Clerk where the work is performed on an overtime basis, including:
a. where all other permanent, full-time employees in the Clerk classifications have been offered and have declined the overtime work.
b. where the permanent full-time employees in the Clerk classifications were not offered the overtime work.
- When the employer assigns a Seasonal Warehouse worker to perform the work of an absent clerk, and then assigns overtime to a Warehouse Worker (any status) on the same shift or a subsequent shift in the same week. For example:
a. A Seasonal Warehouse Worker backfills a 7.5 hour shift on straight time for an absent Clerk. The Employer then asks that same Seasonal Warehouse Worker to continue to work in the Clerk role beyond their 7.5 hour shift, which results in overtime worked by that Seasonal Warehouse Worker; or
b. A Seasonal Warehouse Worker backfills a shift on straight time for an absent Clerk. That Seasonal Warehouse worker then returns to their usual Warehouse shifts, and ultimately works in excess of 37.5 hours that week, thus incurring overtime; or
c. Seasonal Warehouse Worker A is assigned to perform the work of an absent Clerk on a straight-time basis. Seasonal Warehouse Worker B is then called to back-fill for the Warehouse shift of Seasonal Warehouse Worker A and incurs overtime for that shift.
- By assigning Seasonal Warehouse Workers to perform the work of a Clerk when the Clerk is absent for five days or more:
a. Where the Warehouse Workers and Clerks are in the same department; and
b. Where the Warehouse Workers and Clerks are in different departments.
Note: Clerk = Clerk Grade 3, Clerk Grade 4, Seasonal Clerk or Casual Clerk
Issues to be Determined in this Decision
6Of the issues outlined in the foregoing document, counsel have agreed that the following issue numbers will be addressed by me in this first decision: 1.a., 1.b., 2.a., 2.b. and finally 2.c..
7While the Employer does not challenge the Union’s interpretation or application of the collective agreement with respect to those issues described in 1.a., 1.b., and 2.a. above, they have agreed to address them in their submissions so the appropriate application of the collective agreement to those issues might be formalized here.
8On the other hand, the Employer does challenge those issues described in 2.b. and 2.c. above and counsel’s submissions will be addressed later in this decision.
9Having identified the issues to be addressed, counsel and the parties prepared a relatively comprehensive Agreed Statement of Facts. Some of those facts may be relevant only to item #3 of the issues in dispute which is not to be addressed here at this stage. However, I have included the Agreed Statement of Facts in their totality now as a contextual basis for issues to be addressed in this decision as well as for those to be addressed later. The following facts are inclusive of relevant extracts from the parties collective agreement:
B. Agreed Statement of Facts
OPSEU (Trainor et al) v. LCBO
OPSEU File No. 2017-0378-0014 etc.
GSB 2017-0462
The Employer and the Union have been parties to a series of collective Agreements. The relevant collective Agreement for the purpose of this grievance is the collective agreement that was in force between April 1, 2017 and March 31, 2021 (the “Collective Agreement”).
The Liquor Control Board of Ontario (“LCBO”) operates a number of different types of facilities in its enterprise. These include the LCBO’s warehouses, which are known alternatively as Operations or Logistics facilities.
The Grievances at issue arise out of the LCBO’s Durham Warehouse. The Grievances concern two separate types of employees: Operations Clerks and Warehouse Workers. The Grievances dispute the Employer’s assignment of Seasonal Warehouse Workers to backfill shortages by Operations Clerks who are absent from work.
Casual & Seasonal Workers
Casual Workers
The Collective Agreement between the parties provides for a status of workers employed as Casual employees. The rights of Casual employees are as defined in Article 32 of the Collective Agreement; however, the Collective Agreement does not provide a definition for a Casual worker.
Casual employees do not accrue seniority pursuant to the provisions of Article 5 of the Collective Agreement. They do, however, accrue Casual seniority pursuant to the provisions of Article 32.5 after having worked for six months within which they have completed over 400 hours of work.
Seasonal Workers
- LCBO Casual employees who are assigned to work in any logistics facility are eligible to become seasonal employees where they meet the threshold requirements set out in Appendix 4, Section4-4.1 of the Collective Agreement. This Article defines the circumstances under which Casual employees can achieve seasonal status as follows:
Casual employees who work for seven hundred (700) hours or more, exclusive of overtime, in any consecutive twenty-six (26) weeks shall thereafter be considered to be seasonal employees.
- Seasonal status employees have benefits not available to casual status employees as outlined in Appendix 4.
Classifications of Operations Clerks & Warehouse Workers
- Appendix A of the Collective Agreement, which is titled “Definition of Departments and Classifications”, identifies three classifications of bargaining unit employees who work in the “Operations (#969) Department”, as follows:
a. Clerks;
b. Forepersons; and
c. Warehouse Worker 3 and Warehouse Workers 4.
- The Salary and Classification Schedule of the Collective Agreement between the parties designates the negotiated job class titles that the parties have agreed to, the class series to which the class title belongs, together with the wage grid and class code for each of those jobs.
Operations Clerks
Operations Clerks, also known as “Logistics Clerks” or simply “Clerks”, are responsible for providing administrative and clerical support in shipping, receiving and the processing of orders in the LCBO’s warehouses.
There are two types of permanent full-time Operations Clerks, identified in the Collective Agreement: Clerk Grade 3, Class Code 056 and Clerk Grade 4, Class Code 055.
The Employer also has a history of occasionally employing Casual and Seasonal Operations Clerks.
The Parties disagree on the appropriate Class Code for Casual Clerks. There is no distinct Class Code provided for Seasonal Clerks in the Collective Agreement. The Employer has assigned class code 0667 to Seasonal Clerks for payroll purposes.
Warehouse Workers
The duties of Warehouse Workers include unloading and loading containers and trailers; moving product to and from storage; palletizing and assembling store orders for shipment; and inspecting Material Handling equipment.
Each permanent, full-time Warehouse Worker employed at the Durham Logistics facility is classified as a Warehouse Worker 3 upon hire and is assigned Class Code 717 pursuant to the Collective Agreement. In accordance with an agreement between the parties, a Warehouse Worker 3 will subsequently progress to become a Warehouse Worker 4, Class Code 716.
The Warehouse Workers at issue in this matter are Warehouse Workers with either status as either Casual or Seasonal workers. Casual Warehouse Workers are classified as Logistics, Class Code 053 (assuming they are hired after Jun5, 2013), and are paid according to the corresponding wage grid.
There is no class code for Seasonal Warehouse Workers specified in the Collective Agreement, however their employee records reflect the class code 0667.
Operations Clerks & Warehouse Workers at Durham Logistics Facility
- There are relatively few Operations Clerks in the Durham logistics facility, as contrasted with Warehouse Workers of all statuses, of which there are many.
19 Historically, until approximately November of 2018, the Operations Clerks worked within a single department with the Warehouse Workers. In or about November of 2018, the LCBO decided to separate the Operations Clerks and the Warehouse Workers into separate departments; the Operations Clerks were then assigned to Department #1959. They continued working in two separate departments until December 13, 2021, when the LCBO once again combined the Operations Clerks and the Warehouse Workers into a single department (The Operations Department, #969).
- The Employer has a practice of allowing Seasonal and Casual Warehouse Workers to volunteer to be trained to perform Clerical Work. A small number of Casual and Seasonal warehouse workers have received this training.
Casual & Seasonal Warehouse Workers
Warehouse Workers are typically first hired externally as casual status employees. They then progress to seasonal status automatically after working 700 hours or more, exclusive of overtime, in any consecutive twenty-six-week period in accordance with Appendix 4 of the Collective Agreement.
Eventually, most Seasonal Warehouse Workers progress to become permanent full-time employees of the LCBO.
There are currently approximately 32 Warehouse Workers in the Casual or Seasonal classifications employed at the Durham logistics facility.
Casual & Seasonal Operations Clerks
- There are currently no Casual Operations Clerks employed at the Durham Logistics facility. The Employer has, however, employed Casual and Seasonal Operations Clerks at the Durham Logistics facility in the past, including the following employees:
a. Heather Diment (2022 to 2024)
b. Kaffi Goodridge (2020 to 2023); and
c. Meghan Stacey (2003 to 2008).
Heather Diment
Heather Diment was first hired by the Employer as a Fixed-term Temporary Warehouse Worker on or around April 4, 2022. She was later Casual Warehouse Worker (Class Code 053) at the Durham logistics facility, having been offered the position on September 23, 2022. She began working in that position on October 11, 2022.
Ms. Diment later advanced to become a Seasonal Warehouse Worker.
On March 10, 2023, the Employer released a job posting for a Casual Logistics Operations Clerk position at the Durham logistics facility. The competition for the position closed on March 25, 2023.
Ms. Diment expressed interest to the Employer in moving to the Casual Operations Clerk position. Ms. Diment asserted that the Employer advised her she would have to resign from her position as a Seasonal Warehouse Worker before she could accept the Casual Operations Clerk position. She further asserted that the Employer informed her that she would have the opportunity to becomes a Seasonal Operations Clerk after working the requisite hours as a Casual Operations Clerk. The Employer disagrees with these assertions.
Ms. Diment then resigned from her position as a Seasonal Warehouse Worker. Ms. Diment asserts that she did so in reliance on the Employer’s representations described above. The Employer disagrees with this assertion.
On September 22, 2022, the Employer offered Ms. Diment the Casual Operations Clerk position, which she accepted (Class Code 021). Ms. Diment alleged that after she began working in the Casual Operations Clerk position, the Employer informed her that it was not possible to become a Seasonal Operations Clerk.
Ms. Diment subsequently filed two grievances with respect to this matter: OPSEU Grievance 2023-0378-0259 and 2023-0378-0276. Pursuant to a settlement to these grievances that was negotiated by the parties and agreed to on November 29, 2023, Ms. Diment was reinstated to her position as a Seasonal Warehouse Worker effective as of that date.
The Settlement of those grievances stated explicitly:
“Without any admission of wrongdoing by any party or the Grievor and without prejudice to the respective positions of the parties and without precedent to any future and/or similar matter(s) between them”.
Kaffi Goodridge
Kaffi Goodridge was hired by the Employer as a Casual Operations Clerk, (class code 053), at the Durham Logistics Facility on July 20, 2020.
Ms. Goodridge subsequently advanced to become a Seasonal Operations Clerk (class code 0667), on November 28, 2020. The Employer later offered her a full-time Operations Clerk position on November 9, 2023, which she accepted. She ultimately became a full-time Operations Clerk (class code 056), effective November 12, 2023.
Meghan Stacey
Meghan Stacey was hired by the Employer as a Casual Operations Clerk, at the Durham Logistics Facility on June 2, 2003. The Employer’s offer letter to Ms. Stacey identified her “wage rates for Casual (0091)”. The wage rates specified in the offer letter correspond to wage rates for all three classifications of casual workers specified in the Letter of Agreement re: Schedule of Casual Hourly Wage Rates that was included in the 2002-2005 Collective Agreement.
Ms. Stacey subsequently advanced to become a Seasonal Operations Clerk on September 8, 2003. The Employer later offered her a full-time Operations Clerk Grade 3 position, which she accepted, and she ultimately became a full-time Operations Clerk effective October 27, 2008.
Collective Agreement Provisions
- The Collective Agreement between the parties includes the following provisions regarding the scheduling of hours of work and overtime that are relevant to this matter.
ARTICLE 1 – Recognition
(Applicable to Permanent Full-time, Permanent Part-time, Seasonal, Casual)
1.1
(c) The Union acknowledges that it is the exclusive function of management to:
maintain order, discipline and efficiency
hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff, recall, suspend or otherwise discipline employees subject to the right to grieve as provided for in this Agreement;
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.
ARTICLE 7 – Hours of Work and Overtime
(Applicable to Permanent Full-Time, Seasonal and Casual; with applicability limited in respect of Seasonal and Casual employees to 7.6(b) exclusively)
7.6 - Overtime
(a) Authorized work performed in excess of the employee’s normal work day shall be paid at the rate of one and one half (1 ½) time the normal hourly rate of the employee unless otherwise provided in this Agreement. All work performed on any second consecutive day of overtime shall be paid at double the employee’s normal rate of pay. It is understood that an employee is to receive double rates when the employee works on the employee’s second scheduled day off.
(b) Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees or in logistics facilities to seasonal employees and then to Casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee.
(applicable to Casual and Seasonal employees)
ARTICLE 22 – Assignments and Job Postings
(Applicable to Permanent Full-Time, Permanent Part-Time, Seasonal; applicability limited by Appendix 4 – Section 3; Casual; applicability limited by the provisions of 32.4)
22.5
(b) Where it is decided that it is necessary to make a temporary appointment to fill a temporary vacancy, including summer stores, which will last five (5) working days or more, or one (1) day in the case of stores, the Employer shall appoint the most senior employee in the next lowest classification in the same class series in the department, section or store involved, who is qualified and available to perform the work.
ARTICLE 32 – Casual Employees
(Applicable to Seasonal as limited by Appendix 4 – Section 4-4.1 and Casual)
32.1(d)(i) - Authorized work performed by a Casual in excess of:
(a) Eight (8) hours per day or forty (40) hours per week for employees paid as Casual in Retail – Stores and Depots or
(b) Seven and one-half (7 ½) hours per day or thirty-seven and one half (37 ½) hours per week for employees paid as Casuals – Logistics; or
(c) Seven and one quarter (7 ¼) hours per day or thirty-six and one quarter (36 ¼) hours per week for employees classified in the Schedule of Casual Hourly Wage Rate, excluding (a) and (b) above shall be paid at the rate of one and one half (1 ½) times the employee’s regular rate of pay.
(note: pursuant to Appendix 4, Article 15.1, Article 32.1(d) applies to Seasonal employees as well as to Casuals)
Salary and Classification Schedule
April 1, 2017 – March 31, 2021
Wage grids are reflective of the following general wage adjustments:
April 1, 2017 1%
October 1, 2017 0.5%
April 1, 2018 1%
October 1, 2018 1%
April 2019 1%
October 1, 2019 1%
April 1, 2020 1%
October 1, 2020 1%
NOTE: 1. Semi-annual and annual increases are dependent upon satisfactory performance and recommendation from supervisor.
For the purpose of job security, job class series are separated by dotted line.
Dividing lines designate class series
OPSEU (Trainor et al) v. LCBO
OPSEU File No. 2017-0378-0014 etc.
GSB 2017-0462
713 WAREHOUSE FOREMAN/WOMAN 1 37.5
(Annual Increases)
4/1/2017
Hourly
$30.18
$31.11
$31.84
Annual
$59,053
$60,873
$62,301
10/1/2017
Hourly
$30.33
$31.27
$32.00
Annual
$59,347
$61,186
$62,614
4/1/2018
Hourly
$30.63
$31.58
$32.32
Annual
$59,934
$61,792
$63,240
10/1/2018
Hourly
$30.94
$31.90
$32.64
Annual
$60,540
$62,419
$63,867
4/1/2019
Hourly
$31.25
$32.22
$32.97
Annual
$61,147
$63,045
$64,512
10/1/2019
Hourly
$31.56
$32.54
$33.30
Annual
$61,753
$63,671
$65,158
4/1/2020
Hourly
$31.88
$32.87
$33.63
Annual
$62,379
$64,317
$65,804
10/1/2020
Hourly
$32.20
$33.20
$33.97
Annual
$63,006
$64,962
$66,469
716 WAREHOUSE WORKER 4 37.5
(Annual Increases)
4/1/2017
Hourly
$26.78
$27.65
$28.46
$29.35
$30.20
Annual
$52,400
$54,103
$55,688
$57,429
$59,092
10/1/2017
Hourly
$26.91
$27.79
$28.60
$29.50
$30.35
Annual
$52,655
$54,377
$55,962
$57,723
$59,386
4/1/2018
Hourly
$27.18
$28.07
$28.89
$29.80
$30.65
Annual
$53,183
$54,924
$56,529
$58,310
$59,973
10/1/2018
Hourly
$27.45
$28.35
$29.18
$30.10
$30.96
Annual
$53,711
$55,472
$57,096
$58,897
$60,579
4/1/2019
Hourly
$27.73
$28.63
$29.47
$30.40
$31.27
Annual
$54,259
$56,020
$57,664
$59,484
$61,186
10/1/2019
Hourly
$28.01
$28.92
$29.77
$30.70
$31.58
Annual
$54,807
$56,588
$58,251
$60,071
$61,792
4/1/2020
Hourly
$28.29
$29.21
$30.07
$31.01
$31.90
Annual
$55,355
$57,155
$58,838
$60,677
$62,419
10/1/2020
Hourly
$28.57
$29.50
$30.37
$31.32
$32.22
Annual
$55,903
$57,723
$59,425
$61,284
$63,045
154
717 WAREHOUSE WORKER 3 37.5
(Annual Increases)
4/1/2017
Hourly
$25.80
$26.67
$27.51
Annual
$50,483
$52,185
$53,829
10/1/2017
Hourly
$25.93
$26.80
$27.65
Annual
$50,737
$52,439
$54,103
4/1/2018
Hourly
$26.19
$27.07
$27.93
Annual
$51,246
$52,968
$54,651
10/1/2018
Hourly
$26.45
$27.34
$28.21
Annual
$51,755
$53,496
$55,198
4/1/2019
Hourly
$26.72
$27.61
$28.49
Annual
$52,283
$54,024
$55,746
10/1/2019
Hourly
$26.99
$27.89
$28.78
Annual
$52,811
$54,572
$56,314
4/1/2020
Hourly
$27.26
$28.17
$29.07
Annual
$53,340
$55,120
$56,881
10/1/2020
Hourly
$27.53
$28.45
$29.36
Annual
$53,868
$55,668
$57,449
718 UTILITIES PERSON 37.5
4/1/2017 Hourly $25.80
Annual
$50,483
10/1/2017
Hourly
$25.93
Annual
$50,737
4/1/2018
Hourly
$26.19
Annual
$51,246
10/1/2018
Hourly
$26.45
Annual
$51,755
4/1/2019
Hourly
$26.72
Annual
$52,283
10/1/2019
Hourly
$26.99
Annual
$52,811
4/1/2020
Hourly
$27.26
Annual
$53,340
10/1/2020
Hourly
$27.53
Annual
$53,868
155
NOTE: The final wage step shall apply to positions located at Durham, Toronto, Ottawa, Thunder Bay and London Warehouses. Qualified personnel shall progress to this step after completion of one year at previous step if so recommended by supervisor.
OPSEU (Trainor et al) v. LCBO
OPSEU File No. 2017-0378-0014 etc.
GSB 2017-0462
055
CLERK GRADE 4 (Logistics Operations Clerks Only)
37.5
(Annual Increases)
4/1/2017
Hourly
$28.62
$29.42
$30.25
$31.12
Annual
$56,001
$57,566
$59,190
$60,892
10/1/2017
Hourly
$28.76
$29.57
$30.40
$31.28
Annual
$56,275
$57,860
$59,484
$61,205
4/1/2018
Hourly
$29.05
$29.87
$30.70
$31.59
Annual
$56,842
$58,447
$60,071
$61,812
10/1/2018
Hourly
$29.34
$30.17
$31.01
$31.91
Annual
$57,409
$59,034
$60,677
$62,438
4/1/2019
Hourly
$29.63
$30.47
$31.32
$32.23
Annual
$57,977
$59,621
$61,284
$63,064
10/1/2019
Hourly
$29.93
$30.78
$31.63
$32.55
Annual
$58,564
$60,227
$61,890
$63,690
4/1/2020
Hourly
$30.23
$31.09
$31.95
$32.88
Annual
$59,151
$60,834
$62,516
$64,336
10/1/2020
Hourly
$30.53
$31.40
$32.27
$33.21
Annual
$59,738
$61,440
$63,143
$64,982
605
CLERK GRADE 5
36.25
(Annual Increases)
4/1/2017
Hourly
$32.30
$33.25
$34.25
$35.33
Annual
$61,095
$62,891
$64,783
$66,826
10/1/2017
Hourly
$32.46
$33.42
$34.42
$35.51
Annual
$61,397
$63,213
$65,105
$67,166
4/1/2018
Hourly
$32.79
$33.75
$34.76
$35.87
Annual
$62,021
$63,837
$65,748
$67,847
10/1/2018
Hourly
$33.12
$34.09
$35.11
$36.23
Annual
$62,646
$64,480
$66,410
$68,528
4/1/2019
Hourly
$33.45
$34.43
$35.46
$36.59
Annual
$63,270
$65,123
$67,072
$69,209
10/1/2019
Hourly
$33.79
$34.77
$35.82
$36.96
Annual
$63,913
$65,767
$67,753
$69,909
4/1/2020
Hourly
$34.13
$35.12
$36.18
$37.33
Annual
$64,556
$66,429
$68,433
$70,609
10/1/2020
Hourly
$34.47
$35.47
$36.54
$37.70
Annual
$65,199
$67,091
$69,114
$71,309
056
CLERK GRADE 3 (Logistics Operations Clerks Only)
37.5
(Annual increases)
4/1/2017
Hourly
$26.40
$27.11
$27.83
$28.55
Annual
$51,657
$53,046
$54,455
$55,864
10/1/2017
Hourly
$26.53
$27.25
$27.97
$28.69
Annual
$51,911
$53,320
$54,729
$56,138
4/1/2018
Hourly
$26.80
$27.52
$28.25
$28.98
Annual
$52,439
$53,848
$55,277
$56,705
10/1/2018
Hourly
$27.07
$27.80
$28.53
$29.27
Annual
$52,968
$54,396
$55,825
$57,273
4/1/2019
Hourly
$27.34
$28.08
$28.82
$29.56
Annual
$53,496
$54,944
$56,392
$57,840
10/1/2019
Hourly
$27.61
$28.36
$29.11
$29.86
Annual
$54,024
$55,492
$56,959
$58,427
4/1/2020
Hourly
$27.89
$28.64
$29.40
$30.16
Annual
$54,572
$56,040
$57,527
$59,014
10/1/2020
Hourly
$28.17
$28.93
$29.69
$30.46
Annual
$55,120
$56,607
$58,094
$59,60
607
CLERK GRADE 4
36.25
(Annual Increases)
4/1/2017
Hourly
$28.62
$29.42
$30.25
$31.12
Annual
$54,134
$55,647
$57,217
$58,863
10/1/2017
Hourly
$28.76
$29.57
$30.40
$31.28
Annual
$54,399
$55,931
$57,501
$59,165
4/1/2018
Hourly
$29.05
$29.87
$30.70
$31.59
Annual
$54,947
$56,498
$58,068
$59,752
10/1/2018
Hourly
$29.34
$30.17
$31.01
$31.91
Annual
$55,496
$57,066
$58,655
$60,357
4/1/2019
Hourly
$29.63
$30.47
$31.32
$32.23
Annual
$56,044
$57,633
$59,241
$60,962
10/1/2019
Hourly
$29.93
$30.78
$31.63
$32.55
Annual
$56,612
$58,220
$59,827
$61,567
4/1/2020
Hourly
$30.23
$31.09
$31.95
$32.88
Annual
$57,179
$58,806
$60,433
$62,192
10/1/2020
Hourly
$30.53
$31.40
$32.27
$33.21
Annual
$57,747
$59,392
$61,038
$62,816
APPENDIX 4 – Seasonal Employees
Section 2 – Scheduling of Hours of Work
4-2.1 In Logistics facilities, hours of work will be assigned by Department in the following order:
first to employees who have attained seasonal status commencing with the seasonal employee with the earliest seasonal attainment date, and then
to Casual employees in order of seniority
Provided they are qualified to perform the work, and no overtime is incurred.
4-2.2 It is understood that these available hours of work are hours of work required after hours of work for permanent full-time employees have been scheduled.
4-3.1 Promotion of a Seasonal employee to a permanent full-time vacancy, at the entry level, shall be in accordance with Article 22.5(a). An employee assigned to such position shall also be covered by Articles 22.8(a) and (b).
4-3.2 A seasonal employee may also be required to fill a temporary vacancy provided that he/she is qualified to do such work and he/she works within the department in which the temporary vacancy exists. Seasonal employee(s) shall not be assigned such temporary vacancy until eligible permanent full-time employees have first been considered in accordance with Article 22.5(b).
Memorandum of Agreement – Re: Overtime Equalization for Logistics Facilities
This proposal is applicable to permanent full-time employees working in Durham, London, Toronto, Ottawa and Thunder Bay logistics facilities only and is intended to replace Article 7.6(b) of the Collective Agreement for Logistics employees only.
Overtime will be distributed under the terms of this agreement to permanent full-time employees by classification that normally performs the work, except for Warehouse Worker 3 and Warehouse Worker 4 classifications which will be deemed to be one classification for the purpose of overtime distribution.
- Where there is a requirement for overtime, work shall be offered on a voluntary basis in the following manner and sequence.
(a) Overtime shall be offered first to permanent full-time employees with the least number of accumulated overtime hours in the department, at work, by shift, by the classification that normally performs the work for which such overtime is required based on the employer’s most recent list.
(b) Where sufficient full-time personnel do not volunteer, such overtime will be offered to seasonal employees in accordance with Appendix 4 Section 2 of the Collective Agreement.
(c) Where sufficient Seasonal personnel do not volunteer such overtime will be offered to Casual employees in order of seniority in the department, at work, by shift, by the classification that normally performs the work for which such overtime is required.
(d) Failing sufficient volunteers, overtime shall be assigned to the least senior qualified employee beginning with Casual employees, then Seasonal employees and then permanent full-time employees.
APPENDIX A – Definition of Departments and Classifications
Department
Classification
Operations (#969)
- Clerks
- Forepersons
- Warehouse Worker 3 and Warehouse Worker 4
It is understood that where there is more than one shift for a classification, then each shift will be considered separate for equalization purposes.
Collective Bargaining Proposal re Article 22.5(b)
- The parties engaged in collective bargaining for a new collective agreement in 2024. In the course of that bargaining, the Employer proposed a revision to the language of Article 22.5(b). The Employer’s proposal would have amended the collective agreement language as follows:
Article 22 – Assignments and Job Postings
22.5
Where it is decided that it is necessary to make a temporary appointment to fill a temporary vacancy, including summer stores, which will last five (5) working days or more, or one (1) day in the case of retail stores and Logistics Facilities, the Employer shall appoint the most senior employee in the next lowest classification in the same class series or in the same department, section or store involved, who is qualified and available to perform the work.
- This proposal was not agreed to by the Union and was not adopted in the Collective Agreement.
Minutes of Settlement Between the Parties
On February 6, 2001 the Parties entered into a Settlement Agreement in GSB File No. 0513/00. That settlement between the parties contained the following relevant language:
The Union acknowledges and agrees that the LCBO may, in its sole discretion, assign any trained warehouseperson on duty during the afternoon shift at the Durham warehouse to perform any clerical functions that he/she is trained and qualified to perform, whether in Shipping, Receiving, or Order Processing Departments, for any portion of the trained warehouseperson’s scheduled afternoon shift, without violating the collective agreement.
The Union’s acknowledgement in paragraph 2 is limited to the assignment of clerical work in those particular circumstances described in that paragraph and does not affect other rights in the collective agreement, such as requirements for acting pay, and the clerks’ rights to overtime opportunities by seniority when there is an overtime opportunity to be worked, nor does it affect any employees’ current rights with respect to weekend shifts.
This agreement and acknowledgement can be relied on as evidence of the acknowledgment contained herein if necessary, in any future proceedings.
10In addition to the Agreed Statement of Facts, counsel also prepared a flow chart representing the Parties outline of the manner in which overtime equalization within logistics facilities is agreed to apply pursuant to the Memorandum of Agreement referenced in the Parties’ Agreed Statement of Facts set out above. Below is a reproduction of that flow chart prepared by counsel:
C. Flowchart
THE SUBMISSIONS OF THE PARTIES
Union Submissions
11On behalf of Union members within the logistics facilities Laura Johnson identified those issues the Union was firstly addressing as 1.a. and 1.b. together with issue number 2.a..
12For the Employer, counsel Michael MacLellan addressed those same three issues in dispute. In doing so, he confirmed that the Employer substantially agreed with the application of those provisions referred to in the Union’s submissions with respect to those issues.
13By way of introduction, Ms. Johnson, referring to the contract and supplementary agreements, clarified the following:
Article 7.6(b) which was originally designed to deal with the distribution of available overtime throughout the LCBO facilities including those “in logistics facilities” was replaced or refined in the subsequent Memorandum of Agreement for Overtime Equalization for Logistics Facilities.
There are two principal classes of employees which are relevant to the matters before me:
(1) Warehouse Workers – for the purposes of the overtime equalization the two Logistic classes of Warehouse Worker 3 and Warehouse Worker 4 are to be treated as one class.
(2) Clerks – there are two classes of Clerks that is Clerk Grade 3 and Clerk Grade 4.
In both cases, the higher Grade 4 carries the higher pay rate than Grade 3.
14Additionally, beyond those specific classes of permanent full-time employees the collective agreement recognizes two other groups the first being Seasonal Employees and second being Casual Employees. There is provision in the Parties’ contract for casual employees to reach the status of Seasonal Employee after having completed a designated number of hours of work.
15It is also relevant that the Clerk and Warehouse Worker classifications fall within the Operations (969) Department within the LCBO.
16Again, by way of introduction, Ms. Johnson referred to the Overtime Equalization Memorandum together with the Flow Chart to demonstrate that whenever overtime is required in the Durham logistics facility initially it is to be offered on a voluntary basis:
Section 2.a - to permanent full-time employees in the classification that normally perform the work etc.;
Section 2.b - to seasonal employees as described in that provision;
Section 2.c - to casual employees as described in that provision.
Section 2.d - failing sufficient volunteers, required overtime shall be assigned in reverse order that is starting with the least senior classified Casual employees and so on up to permanent full-time employees.
UNION SUBMISSISSIONS REGARDING DISPUTED ISSUES 1.a., 1.b. and 2.a.
17Referring finally to the interpretation issues in dispute and in particular 1.a., the Union complains:
1.a. - that whenever the Employer has assigned or assigns a Seasonal Warehouse Worker to perform the work of an absent Clerk on an overtime basis having canvassed only on a voluntary basis “all other permanent full-time employees in the Clerk classifications” without success, it has violated the collective agreement.
18In particular, by assigning the work to a Seasonal Warehouse Worker without first having followed the voluntary progression through Seasonal Employees and others as in provisions 2(b), 2(c), etc. of the Overtime Equalization Agreement, the Employer has failed to follow the progression of offering the overtime to the next lower group. Here, the Employer has failed to follow the appropriate flow through the seasonal clerks, if any and so on. It will then have breached section 2(b) of the Overtime Equalization Progression.
19With respect to dispute number 1.b., it is the Union’s position that whenever overtime is required and a Seasonal Warehouse Worker is assigned to perform the work of an absent Clerk on an overtime basis and it was not first offered to permanent full-time Clerks the Employer will have violated the Overtime Equalization protocol by failing to consider and apply the agreed upon protocol. In this case provision 2(a) of the protocol itself has been violated in that no offer was made in the first instance to permanent full-time Clerks. In effect the protocol has been entirely disregarded in the scenario described in 1.b..
20In the dispute described in paragraph 2.a., a Seasonal Warehouse Worker is assigned to fill in for an absent Clerk on a straight time shift of seven and one-half (7 ½) hours. Subsequently, the same Seasonal Warehouse Worker is offered the opportunity to continue working beyond the seven and one-half (7 ½) hour shift in the Clerk roll. The result is that the Seasonal Warehouse Worker has taken on overtime work in the Clerk position without that overtime first being offered to a permanent full-time Clerk in accordance with provision 2(a) of the Overtime Equalization Protocol.
21It is the Union’s position that this is again a violation of the protocol in that the flow chart and the protocol specifically required overtime in the Clerk classification be offered first to permanent full-time employees, in this case a permanent full-time Clerk.
THE EMPLOYER RESPONSE REGARDING DISPUTE SCENARIOS DESCRIBED IN PARAGRAPH 1.a., 1.b. and 2.a.
22Mr. MacLellan first clarified that the issue of potential liability in the described disputes have been bifurcated from the question of remedy or damages. To put it another way, even if the findings here with respect to the various issues in dispute determines that the facts there would constitute a violation of the Parties’ contract, it is still incumbent on the Union to show that the facts forming the basis of one or more of the various individual grievances fall squarely within the facts outlined within the disputed issue which is found to constitute such a violation.
23With that premise in mind Mr. MacLellan outlined the Employer’s position with respect to dispute 1.a., 1.b. and 2.a. as below.
24With respect to 1.a., the Employer does not disagree that it would be inappropriate for the Employer to assign the overtime clerk work to a Seasonal Warehouse Worker without first having canvassed Seasonal Employees, as required by 2(b) of the Equalization Agreement and also “in accordance with Appendix 4, section 2 of the Collective Agreement”. That provision would make the overtime which had been declined by permanent full-time Clerks available to be offered to Seasonal Employees in the order of their seasonal achievement date(s) and “provided they are qualified to perform the work”.
25In all three scenarios, 1.a., 1.b. and 2.a., where the Employer failed to follow the flow chart by canvassing first such Seasonal Clerks as might have been qualified to perform the work, a violation would have occurred.
26In making that concession for the Employer, Mr. MacLellan clarified the Employer’s view and position that within the permanent full-time Clerk classification there are two positions entailing two different job specifications and pay rates designated as Clerk 3 and Clerk 4.
27Taking that distinction into consideration, Mr. MacLellan contended that where the overtime work to be performed was that of a Clerk 3 for instance, it would not be necessary to canvass permanent full-time Clerk 4 employees as that work is normally performed by employees designated as Class 3 Clerks.
28Assuming then that sufficient permanent full-time Clerk 3 employees have not volunteered for the overtime, the opportunity should then be offered to Seasonal Clerks who would normally perform work within the Clerk 3 designation.
29Regardless of the distinction between Clerk 3 and Clerk 4, since there is no such distinction identified in dispute issues 1.a.,1.b. and 2.a., the failure to canvass the appropriate group of employees pursuant to the flow chart is apparent. In the circumstances the Employer concedes that the examples or scenarios in 1.a. and 1.b. are not contested.
30With respect to the disputed scenario described in 2.a., the Employer’s view is the same as noted with respect to issues 1.a. and 1.b.. Briefly, there is no issue raised or identified by the Union with respect to the Seasonal Warehouse Worker having taken on the absent Clerks 7.5 hour shift on straight time. Rather, the issue in this scenario is that the ensuing overtime in the Clerk role beyond the seven and one-half (7 ½) hour shift was offered to that Warehouse Worker without canvassing permanent full-time Clerks pursuant to the Memorandum of Agreement which requires in paragraph 2(a) of the Equalization Provisions that it be “offered first to permanent full-time employees...that normally performs the work”, that is to Clerks. Briefly, if the Employer did not exhaust the Overtime Equalization process before offering it to the Seasonal Warehouse Worker, the equalization provisions were breached.
31Before confirming my decision regarding the disputed scenarios described in 1.a., 1.b. and 2.a. of the interpretation issues in dispute, I should point out that in making his reply submissions Mr. MacLellan described the Clerk 3 and Clerk 4 positions as individual classes within the Clerk class itself. In outlining those submissions, I attempted to refrain from referring to Class 3 and Class 4 Clerks as individual classes unto themselves. I refrained from making that class distinction in consideration of Ms. Johnson’s subsequent reply that to do so with respect to Seasonal Clerks was to confuse the Seasonal Employees status with classification. In her submission a Seasonal Employee may enjoy Clerk 3 status or Clerk 4 status when trained and regularly performing the work normally performed by a Clerk 3 or Clerk 4 as the case may be.
32They are not in the Union’s view designated Seasonal Clerk 3’s or Seasonal Clerk 4’s as suggested by Mr. MacLellan.
33Regardless of the appropriate nomenclature regarding Seasonal Employees, it did not appear relevant with respect to the positions taken by the Parties with respect to the initial disputed issues in 1.a., 1.b. and 2.a..
THE DETERMINATION WITH RESPECT TO COLLECTIVE AGREEMENT INTERPRETATION ISSUES IN DISUPTE NUMBERS 1.a., 1.b. and 2.a.
34Having heard the mutual submissions of the Parties with respect to the first three scenarios describing the issues in dispute in connection with suggested potential breaches of the collective agreement, I conclude that whenever the facts match any one of the three issues described in those disputes numbered 1.a., 1.b. and 2.a., the provisions of the Parties’ collective agreement will have been breached with respect to the appropriate application of the Memorandum of Agreement regarding overtime equalization in logistics operations in the Durham facility.
INTERPRETATION ISSUES IN DISPUTE AS DESCRIBED IN PARAGRAPHS 2.b. and 2.c.
35Before addressing the Union’s position with respect to issues 2.b. and 2.c., it is noteworthy that Ms. Johnson on several occasions remarked that with respect to all issues in dispute it is the Union’s position that the provisions in the Appendices and the Memorandum of Agreement for logistics facilities regarding overtime provided a complete code demonstrating the clear intent of the Parties to prioritize work assignments to permanent full-time employees before Seasonals and Casual and that in the Union’s submission that applies for both overtime shifts as well as regular shifts. With respect to the assignment of regular shifts or hours of work the Union refers to Appendix 4, Section 2 – Scheduling of Hours of Work and in particular to the last or closing provision of Appendix 4, Section 2, 4-2.1 which stipulates that available hours will be assigned by department:
first to employees who have attained Seasonal status
to Casual employees.
provided they are qualified to perform the work, and no overtime is incurred” (emphasis added)
36With that premise in mind, the Union described its position with respect to the issues in 2.b. and 2.c..
UNION SUBMISSIONS RESPECTING ISSUES NO. 2.b.and 2.c.
37In 2.b. a Seasonal Warehouse Worker has been assigned to backfill a shift on regular straight time hours for an absent Clerk. On completion of the shift the Warehouse Worker returns to his regular work which together with the shift on which he acted as a Clerk resulted in excess of 37 ½ hours for the week. The assignment of the Clerk shift therefore resulted in overtime for the Seasonal Warehouse Worker contrary to Appendix 4, Section 2, 4-2.1 of the Hours of Work provision.
38Similarly, in issue 2.c., when the Seasonal Warehouse Worker A is assigned to cover for an absent Clerk on straight time and another Seasonal Warehouse Worker B backfills Worker A’s shift, overtime was performed by Worker B. Since there was overtime required to be performed in a scenario precipitated by the absence of a Clerk, the overtime performed by Seasonal Warehouse Worker B ought to have been offered to a Clerk. Section 2, provision 4-2.1 of Appendix 4 is violated when Worker B’s entire shift results in overtime. The overtime was “incurred” as a result of the employer’s choice of assignments.
39It is the Union’s position that the Employer could as easily have called in a permanent full-time Clerk to perform the regular hours of the absent Clerk. Having chosen instead to assign that shift to a Seasonal Warehouse Worker, it deprived a Clerk of a full shift. That first shift might have been at overtime for a permanent full-time Clerk. However, by assigning Seasonal A to cover the first vacant Clerk shift and Seasonal B to cover Worker A’s shift on overtime, the resulting overtime wrongly went to the benefit of a Seasonal worker rather than a Clerk. In the circumstances, it is the Union’s position that the overtime assignment ought to have been anticipated by the Employer so that it fell to be offered as overtime “required” pursuant to the Equalization Provisions in the Memorandum of Agreement.
40Therefore, in disputed issues 2.b. and 2.c., the anticipated overtime ought to have been offered in the first instance to permanent full-time Clerks and thereafter in accordance with the flow chart. Having failed to follow the flow chart in these scenarios, the Employer was in violation of the Equalization Agreement between the Parties.
41In support of the Union’s contention reference was made to the following authorities:
Air Canada v. Air Canada Pilots Assn, (2012] O.L.A.A. No. 164 (Burkett)
Cancoil Thermal Corp and UFCS Local 175, Re [2017] 284 L.A.C. (4th) 76 (Gee)
Brantford (City) and CUPE Local 18104 (Martin), 2019 Carswell Ont 11266 (Albertyn)
Labatt Breweries v. SEIU, Local 2, 2013 CarswellOnt 14106 (Steinberg)
42Those authorities essentially speak to the principles of interpretation. Among those principles is the proviso that when considering specific words or provisions within a contract, in this case a collective agreement, the arbitrator should not simply consider the words as they appear in the provision. Rather, the provision should be considered in the context of the collective agreement or contract as a whole. It is the objective meaning of the provisions in the context of the totality of the contract which is to be considered in that determination.
43Here, the Union submits that within the Logistics facility, the Parties have gone to great lengths to ensure that wherever Clerk overtime is available, Clerks should be offered the first opportunity to perform that work on an overtime basis. In disputes 2.b. and 2.c., the Employer has done indirectly what it could not do directly. In effect, by assigning a regular Clerk shift to a Warehouse Worker, the overtime which ultimately accrues results in a benefit to the Warehouse Worker rather than a permanent full-time Clerk.
44In dispute 2.b., the backfill Clerk shift assignment to the Warehouse employee resulted in his having exceeded his regular weekly Warehouse Worker hours during the week in question. Overtime was therefore “incurred” because of the original backfill assignment. In context, that was contrary to the Seasonal Hours of Work Provision 4-2.1. That is, hours he might have otherwise performed at his regular job as Warehouse Worker remained available to him on overtime because he was first given the Clerk’s shift. Indirectly the permanent full-time Clerk classification was deprived of the opportunity to work overtime during and due to the initial assignment. Overtime was wrongly “incurred” and resulted in a benefit to a Seasonal Worker rather than a Clerk.
45Similarly in scenario 2.c., Warehouse Worker B benefits from the assignment to backfill his co-worker on an overtime basis. Had the original assignment been made available to a permanent full-time Clerk, Warehouse Worker B would not have benefited from the overtime which became available.
46It is the Union’s position that the Memorandum of Agreement respecting Equalization demonstrates the intent of the Parties to prioritize for permanent full-time employees, Clerks here, the first opportunity to work overtime in their classification before overtime opportunities are made available to Seasonal or Casual Workers.
47On the other hand it was acknowledged by the Union that, had neither of the Warehouse Workers in dispute issue 2.b. or 2.c. been provided with the overtime opportunity they did receive, there would have been no violation of the Hours of Work Appendix 4, Section 2, 4-2.1 or the Overtime Equalization Agreement. Simply put, there would have been no redistribution of an overtime opportunity from the Clerk classification to Seasonals or Casuals. In that case, there would be no violation of the collective agreement.
SUBMISSIONS OF THE EMPLOYER RESPECTING DISPUTE 2.b. AND 2.c.
48For the Employer, Mr. Mike MacLennan submitted that the Union had been unable to point to any provisions of the collective agreement which were violated by reason of the assignments or actions of the Employer as described in issues 2.b. and 2.c. In 2.b., the overtime work being performed was that of a Warehouse Worker by a Warehouse Worker. That in itself cannot constitute a violation of the collective agreement.
49The Employer did not dispute that once the Employer determined that overtime work was required it was obliged to follow the Memorandum of Agreement in respect of Equalization. According to that agreement if the Employer determines that the work to be done or the duties to be performed will incur overtime then the agreement stipulates in the first instance that it should be assigned to the class where it is required. In both instances described in 2.b. and 2.c., the work required on an overtime basis was that of a Warehouse Worker. Accordingly, the scenarios within those two disputes do not give rise to a violation of the Memorandum of Agreement.
50With respect to the assignment of regular hours of work within Logistic facilities Section 2, 4-2.1 of Appendix 4 is permissive allowing for the assignment of “available hours” first to Seasonal employees and then Casuals “provided they are qualified to perform the work and no overtime is incurred”. Section 4-2.2 describes “available hours of work” as those required “after hours of work for permanent full-time employees have been scheduled”.
51Therefore, it is the Employer’s position that “available” Clerk work may be assigned to Seasonal employees or failing that Casual employees on a straight time basis provided they are qualified to perform that work. The only restriction is that the hours offered to Seasonals are “available” that is “after hours of work for permanent full-time employees have been scheduled”. More importantly, it does not say that those “available hours” must first be offered to the Clerk classification whether on overtime or otherwise.
52Aside from the Appendix provisions allowing the assignment of available regular hours of work to Seasonal and Casual employees, there is nothing in the Overtime Equalization Agreement prohibiting a Seasonal Warehouse Worker from carrying on that work beyond his regular hours into overtime so long as those additional hours are indeed within the Warehouse Worker classification.
53In the circumstances the Collective Agreement language including the Appendices and Memorandum of Agreement regarding equalization do not support the Union’s contention of potential violation of the Parties’ contract in scenarios 2.b. and 2.c. of the issues in dispute.
54In support of the Employer’s position reference was made to the following authorities:
Canadian Labour Arbitration Fifth Edition – Chapters 5:42 – 5:44
Valhalla Inn v. UFCW Local 175, 2021 CanLII 20913 (ONLA) (Carrier)
University of Guelph v. United Steelworkers, Local 4120, 2014 CanLII 7717 (ONLA) (Picher)
Unifor Local 672 v. SGS Canada Inc., 2017 Can LII 60979 (ONLA) (MacDowell)
Cargill Foods v. UFCW, Local 633, CanLII 93314 (ONLA) (Shime)
55In particular, the Employer referred to the principles regarding overtime outlined in that authority in the field generally referred to as Brown & Beatty. In chapter 5:44 under the heading Propriety Rights to Overtime Assignments the authors are cited as follows:
Legislative enactments aside, it is generally agreed that unless there are specific provisions in the agreement to the contrary, or the assignment to a particular employee would be unsafe, or where an estoppel operates, employees do not have any right to have overtime work assigned to them, or to determine the amount of such overtime hours.
Rather, overtime is perceived as simply one manner in which management may have its work performed. Thus, unless the agreement provides otherwise, it is assumed that management is free to have such work performed by reallocating it, or by rescheduling operations, recalling employees, or by instituting temporary transfers or promotions of personnel. Indeed, there appears to be a general consensus that management’s ability to assign the work in such ways, rather than have it performed on an overtime basis, is not restricted by a provision in the agreement requiring it to distribute overtime equitably amongst the employees who normally perform the work. Arbitrators have insisted however, that the reorganization of work not be carried out arbitrarily or in bad faith.
56In this case it was submitted that the provisions requiring an equitable distribution of overtime amongst employees normally performing the work does not fetter management’s right to have that work performed in a more efficient manner that may not entail the assignment of that work on an overtime basis.
57By way of example reference was made to a decision by this arbitrator in a case between Valhalla Inn and UFCW, Local 175 (supra). In the Valhalla Inn case at pages 10 and 11 of the decision the Arbitrator described the issue there together with the principles relevant to that decision as follows:
To return then to the central question, it is whether or not the Employer violated its obligation pursuant to Articles 16.05 and/or Article 16.11 by failing to call-in classified Laundry Attendants to perform available work within their class rather than assigning that work to Housekeeping Attendants who were available to perform that work on regular time.
Without reproducing the entirety of the reasoning and authorities cited by Arbitrator Pamela Picher in the Guelph University case (Supra), I note her reference at page 9 of her award to the principles adopted in those cases and “summarized as follows in Canadian Labour Arbitration, third edition, 2005 Donald Brown and David Beatty (Canada Law Book, Inc.) at paragraph 5:3220:
...It is generally agreed that unless there are specific provisions in the agreement to the contrary...employees do not have any right to have overtime work assigned to them...Rather, overtime is perceived as simply one manner in which management may have its work performed. Thus, unless the agreement provides otherwise, it is assumed that management is free to have such work performed by reallocating it, or by rescheduling operations, recalling employees, or by instituting temporary transfers or promotions of personnel. Indeed, there appears to be a general consensus that management’s ability to assign the work in such ways, rather than have it performed on an overtime basis, is not restricted by a provision in the agreement requiring it to distribute overtime equitably amongst the employees who normally perform the work. Arbitrators have insisted, however, that the reorganization of work not be carried out arbitrarily or in bad faith.
To put it another way, available work is not overtime unless and until it is assigned to an employee for whom it would be time worked within the parameters of the overtime provisions set out in the Collective Agreement. Available work is not ipso facto overtime work simply because it falls outside of the regular hours of work for some employees, in this case, Laundry Attendants who were not otherwise scheduled to work.
As noted earlier, management here has the right to run its operation with “efficiency”. Generally, such rights are subject to the caveat that they not be exercised arbitrarily or in bad faith.
There is no allegation here by the Union that the assignment to the Housekeeper in question of available work was done in bad faith or arbitrarily.
Accordingly, consistent with the principles summarized above in the excerpt from Brown and Beatty, the Employer, in this time involving significant COVID related restrictions and reduced personnel, minimized its labour costs by assigning the work to employees who were available to perform it on regular time. It did so rather than calling in Laundry Attendants for whom the time worked would have constituted overtime.
58Based upon those principles Mr. MacLennan submitted that there was nothing in the Collective Agreement before me to prohibit the Employer from allocating regular hours within the Clerk classification to Seasonal Warehouse Workers rather than referring those hours to be worked by permanent Clerks on an overtime basis. The Seasonal Employees Appendix 4, Section 2, 4-2.1 specifically allows for such assignment to Seasonal Employees and then Casual “provided they are qualified to perform the work and no overtime is incurred”. Of course, Appendix 4, Section 2, provision 4-2.2 clarifies that “hours of work available to be assigned to other than permanent full-time employees are only those hours required after permanent full-time employees have been scheduled”.
59In the disputed issue 2.b., the initial assignment of the Seasonal Warehouse Worker to cover for an absent Clerk is a legitimate assignment pursuant to those provisions. It is absurd to consider that any subsequent overtime worked by the Seasonal Warehouse Worker within his normal duties that week would represent an overtime opportunity for a Clerk pursuant to the Equalization Agreement. Rather, where the Seasonal Warehouse Worker subsequently performs within his own classification on an overtime basis, those hours according to the overtime Equalization Agreement must follow the flow described in that Agreement. Those hours do not become overtime hours until they are required by the Employer as overtime after which the Memorandum must be followed which in this case would direct that it be first offered to Warehouse Workers in accordance with provision 2(a) of that Memorandum. Mr. MacLellan submitted that the Union’s contentions could result in an absurd situation. For instance, a Seasonal Warehouse Worker having backfilled for an absent Clerk on Monday and later in the week on Friday worked an extra two hours could then be considered to have worked those overtime hours which rightly belonged to the Clerk classification pursuant to the Memorandum of Agreement. That would create an absurd situation where the Employer would be unaware of the potential violation until several days after it had occurred.
60With respect to issue 2.c., Mr. MacLennan pointed out that the assignment of Seasonal Warehouse Worker A to cover for an absent Clerk is a legitimate exercise of the Employer’s rights and indeed is permissible to provision 4-2.1 of the Seasonal Employee Appendix. As in most collective agreements paragraph 1.1(c) of the Parties’ contract here “the Union acknowledges that it is the exclusive function of management to:
- Maintain order, discipline and efficiency”.
61Accordingly, the initial assignment is a legitimate exercise of the Employer’s rights to fill in for the absence with the more economical Seasonal Warehouse Worker rather than a permanent full-time Clerk on overtime. With respect to Warehouse Worker B the overtime required by the Employer clearly arises within the Warehouse classification. Accordingly, the overtime required by the Employer must be offered on a voluntary basis according with the Memorandum of Agreement which in this case would first entail an offer of the work to Warehouse Workers.
THE DECISION
62I have considered the issues in dispute 2(b) and 2(c) in the context of the Agreed Facts, the Collective Agreement provisions and the submissions of counsel. Having done so I am satisfied that the Employer’s position with respect to each of those scenarios must prevail for the reasons which follow.
Regarding both issues 2.b. and 2.c.
63Consistent with the principles set out in Brown & Beatty respecting overtime, absent specific provisions in a collective agreement, management has a right to have work performed in an efficient manner which may entail any number of reallocations and/or assignments of that work in such a way as to have it performed by employees on regular time rather than on an overtime basis. Furthermore, provisions in contracts requiring the equitable distribution of overtime does not in itself restrict management’s ability to assign that work in such a way that it does not constitute overtime for a particular class of employee.
64There are however provisions in the collective agreement for the Logistics Division here which provide some significant degree of priority to permanent full-time employees. In particular, while Section 4-2.1 of the Logistics Appendix regarding Seasonal employees specifically permits the assignment of Seasonal employees to perform work of classified full-time employees, however, the hours of work available to them are only those required after hours of work for permanent full-time employees have been scheduled. That is a significant priority enjoyed by permanent full-time employees.
65Secondly, the employees must be qualified to perform the work; and thirdly, the assignment ought not to be one in which overtime is incurred.
66Accordingly, in LCBO Logistics in Durham, permanent full-time employees have priority over Seasonals to be scheduled regular hours before Seasonals are considered. As between permanent full-time Clerks and Seasonal employees, the Clerks enjoy priority for their regularly scheduled hours.
67On the other hand, that provision specifically excludes the assignment of work on overtime referable to or incurred as part of such an assignment of “available hours”. Overtime within their own class is the second priority that Permanent Full-time employees enjoy over Seasonals and Casuals.
68It is my view that the exclusion of overtime in Appendix 4, Section 2, 4-2.1 of Seasonal assignments incurring overtime is present to ensure that the permissive aspects of this provision do not conflict with the Overtime Equalization provisions. In context, it is clear this restriction regarding overtime applies to that assignment within that class itself or any concurrent extension of it into overtime hours. The restriction simply ensures that any required overtime follows the dictates and flow of the Overtime Equalization Agreement.
69Consequently, if a Seasonal Warehouse Worker was assigned to backfill for a Clerk that assignment could only be on straight time for seven and one-half (7 ½) hours. Any excess beyond those “available hours” on that assignment whether of Clerk work or another class would not be permissible pursuant to the Appendix regarding the scheduling of hours of work for Seasonal employees. The restriction that the assignment does not incur overtime relates, in my view, only to that assignment. It could not itself engage the Seasonal Worker in overtime hours within that Clerk Class. Rather, the hours required to be worked as overtime must follow the Equalization Agreement. As in scenarios 1.a., 1.b. and 2.a. which were not disputed, the overtime ought to have been offered in accordance with the Equalization Agreement and flow chart.
70However, in scenarios 2.b. and 2.c., the Union contends that the overtime which the Seasonal Workers subsequently perform whether that day or during the ensuing week within their own classification constitutes overtime which ought first to have been offered to Clerks pursuant to the Equalization Memorandum.
71As argued by the Employer and as noted by me in the previous paragraphs, hours of work which the Employer requires to be performed on an overtime basis must be offered to employees in accordance with the Memorandum of Agreement. However, before hours of work constitute overtime, they must be hours required by the Employer to be worked by an employee for whom they would represent overtime hours pursuant to the Collective Agreement. If so, then Overtime Equalization applies. Determination of priority with respect to the first group of employees to be canvassed depends on the nature of the work itself. If the nature of the work is Clerks work, then the permanent full-time Clerks would be the first group to be canvassed and so on.
72On the other hand, if the work the Employer requires to be performed falls within the class of Warehouse Workers work then the Memorandum requires it be offered first within the Warehouse Worker Classification. Accordingly, with respect to dispute 2.b., employees within the Clerk classification have no prior claim to the overtime hours worked or to be performed within the Warehouse Worker classification itself.
73Similarly, in the case of dispute 2.c., there is no violation of the Seasonal Employee Appendix when Warehouse Worker A was assigned to perform the work of an absent Clerk on a straight time basis. Indeed, there is no assertion in 2.c. that overtime was incurred within the Clerk classification pursuant to that assignment. With respect to the second assignment of Warehouse Worker B to cover the vacated regular shift of Warehouse Worker A, again there is no violation. The work required to be performed falls within the Warehouse Worker classification and since it comprises overtime hours must be first offered in accordance with the priorities set out in the Memorandum of Agreement for overtime equalization. In this case, the overtime falls within the Warehouse classification and the Clerks have no priority with respect to a first right of refusal within the Warehouse Worker classification.
74For there to be a finding pursuant to dispute 2.b. or 2.c. in favour of the Union, it would be necessary to determine that Clerks enjoy an exclusive priority to all work within their classification. Appendix 4 to the Agreement respecting Seasonals clearly protects their priority up to the point where their regular hours of work have been scheduled in accordance with provision 4-2.2. However, “available hours of work required” after those have been scheduled are available to Seasonal and Casual employees and, to that extent, Clerks do not enjoy priority to all work arising within their own classification.
75These determinations are consistent with the authorities referred to by the Employer in its submissions.
76I trust these findings will be helpful to the Parties in assessing and determining which of the outstanding or pending grievances may be resolved and/or withdrawn.
77I remain seized, of course, to deal with those issues as well as the others stipulated in the “Collective Agreement Interpretation Issues in Dispute” which have not been determined here.
Dated at Toronto, Ontario this 12th day of August 2025.