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HomeMy WebLinkAboutUnion 98-07-27 q B 500- IN THE MAWR OF AN ARBIT~TION ~53~ - -and- O~TA~IO ~UBklC S~VIC~S ~M~kOY~S' U~IO~ GRIEVANCES RE VACATION ENTITLEMENT BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR JACQUELINE G. CAMPBELL COLLEGE NOMINEE MICHAEL J. SULLIVAN UNION NOMINEE BARRY J. BROWN, FOR THE COLLEGE GAVIN LEEB, FOR THE UNION OPSEU FII E NOS.' 98B517 98B526 98B533 988520 98B527 988534 988521 988528 988535 988522 98B529 988536 98B523 98B531 98B$37 98B524 988532 98B538 988525 HEARING DATE: MAY 14, 1999 This matter concems a Union grievance and a number of individual grievances which allege that in calculating vacation entitlement, the College has improperly failed to give credit for prior part-time service outside the bargaining unit. The relevant provisions of the 1992194 support staff collective agreement which remained in effect when the grievances were filed are as follows: 1. RECOGNITION 1.t Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during the College vacation periods; 11. VACATION 11 .1 Entitlement Effective June 30, 1991, employees on the active payroll of the College who have completed the years of continuous service, as of June 30th, shall be granted vacation with pay as follows: 1 - 6 years: 15 working days 7 years: 17 working days 6 years: 16 working days 9 years: 20 working days 10 years: 20 working days 2 11 years: 21 working days 12 years: 22 working days 13 years: 23 working days 14 years: 24 working days 1.5 years: 25 working days 16 years: 26 working days 17 years: 26 working days 18 years: 26 working days 19 years: 27 working days 20 years: 27 working days 21 years: 28 working days 22 years: 28 working days 25 years: 29 working days 24 years: 29 working days 25 or more: 30 working days 11.2 Calculation of Continuous Service In determining the period of continuous service of employees on the active payroll for the purpose of vacation entitlement: an employee's previous uninterrupted service with the College immediately prior to and consecutive with its establishment as a College of Applied Arts and Technology shall be included; an employee who, for any reason, has less than twelve (12) full months of active employment during the one (1) year period immediately prior to June 30, in any year, shall receive a lesser vacation with pay on a pro rata basis under the schedule of vacation set out in this Article, subject to any accumulation of service under Article 14.2. Active employment means actual attendance at the work place and the performance of work, but includes absence from work for vacations and holidays, or illness for up to six (6) months, or during pregnancy or parental leave or development leave. 14. JOB SECURITY 14.2 Accumulating Seniority Seniority and service shall accumulate for all purposes under the Collective Agreement for a pedod of up to, but not to exceed, six (6) calendar months during the term of this Agreement during any leave(s) of absence granted, with or without pay, pursuant to the provisions of this Agreement.  3 · ' Notwithstanding the foregoing, seniority and service shall accumulate for up to thirty-five (35) weeks in the case of combined pregnancy and parental leave, and during the length of developmental leave and during the first twelve (12) months of absence on Workers' Compensation and for any period of layoff pursuant to the Less Than 12 Month Positions Letter of Agreement. This provision shall not apply in the case of probationary employees who shall be required to complete six (6) months of active employment to attain seniority unless waived by the College. It is understood that seniority and service do not accumulate during periods of layoff under Artide 15. 14.3 Transfer Into Union A person employed by the College, who is transferred into the bargaining unit, will be accorded full seniority, upon completion of the probationary period, based on length of service, Part-time support staff employees transferred into the bargaining unit, after November 14, 1991, shall have their seniority prorated, upon completion of their probationary period, based on a proration of hours of the part time position to the hours of the full-time position using 1820 hours per year as constituting the hours of the full-time position. It is understood, however, that for the purposes of the application of Article 15.4, supervisory personnel and employees in the academic staff bargaining unit, who are transferred into the bargaining unit shall be entitled to exercise only that portion of their seniority, if any, accumulated as an employee in the bargaining unit or what formerly was the bargaining unit. 14.5 Proration of Part-Time Service for Probation Where a part-time employee is hired by the College into a full-time position in the bargaining unit, which is either the same position or, is sufficiently similar in nature, he/she shall be credited with service towards completion of the probationary period, based on a proration of the hours of the part- time position to the hours of the full-time position using 1820 hours per year as constituting the hours of the full-time position, to a maximum period of credit of three (3) months service towards the completion of the probationary period, and provided such service occurred within one (1) year of the date of hiring into the bargaining unit. (,-.,! 4 APPENDIX B INCLUSION PROCEDURES The following conditions are applicable to persons who are employed by a College of Applied Arts and Technology (hereinafter called "the College") in positions designated as Administrative Staff or otherwise excluded from the Support Staff Bargaining Unit and who are found to be bargaining unit employees as a result of specific decisions of the Ontario Labour Relations Board or by agreement of the Council/College and the Union: 6. Vacation (a) Employees will retain vacation entitlement earned as Administrative Staff or an otherwise exduded employee for the vacation year in which the date of indusion occurs and one (1) additional vacation year and vacation pay shall be in accordance with Articles 11.2, 11.3 and 11.4. ("~, (b) Effective June 30th of the vacation year thereafter and of each subsequent vacation year, there will be a reduction in vacation entitlement of one (1) day until such vacation entitlement coinddes with entitlement under the effective Collective Agreement for CAAT Support Staff and vacation pay shall be in accordance with Artides 11.2, 11.3 and 11.4. (c) For the purpose of calculating an employee's vacation entitlement under Article 11, it is agreed that the employee will receive credit for one hundred per cent (100%) of his/her continuous service in the College. 7. Basic Life Insurance, Extended Health Insurance, Dental Insurance, Supplemental Life Insurance, Dependent Life Insurance, Short Term Disability Plan, Long Term Disability Insurance, Vision and Hearing Care Plans. These Support Staff Plans are effective the first day of the third calendar month following the date of inclusion. 9. Union Dues Union dues deductions will commence from the date of inclusion. It was the submission of the Union that the language of Article 11 .I of the collective agreement is clear and unambiguous and specifies that vacation entitlement is based on years of continuous service. The Union maintained that such service includes service as a part-time employee and, in support of this submission, relied on Georgial~ College of Applied Arts and T~chnoloaj~y ~ Ontario Public Service EmDIovees Union (1997), 59 L.A.C.(4th) 129 (Schiff). It was the submission of the College that under Article 11, continuous service for purposes of vacation entitlement is limited to service within the ('"""hbargaining unit. Moreover, in the event that the Board were to find the collective agreement to be ambiguous, the College submitted that we ought to consider extrinsic evidence as an aid to interpretation. In the alternative, the College contended that the Union is estopped from claiming that continuous service includes part-time service outside the bargaining unit. By way of reply to these latter submissions, the Union submitted that the College failed to establish a proper basis for the use of extrinsic evidence, either as an aid to interpretation or in support of the application of the doctrine of estoppel. Before setting out the extrinsic evidence tendered by the College, which took the form of past practice and negotiating history, it should be noted that there are two prior awards dealing with the calculation of seniority under the f- support staff collective agreement. The first of these is an award of a Board chaired by Arbitrator Palmer in C..,~)13{~St0ga College of Aoolied Arts and Technoloav and the Ontario Public Service Fmolovees Union, January 10, 1986 (unreported). At the time of that award, Article 14.3 of the collective agreement provided as follows: 14.3 Transfer into Union A person employed by the College, who is transferred into the bargaining unit, will be accorded full seniority based on length of service. It is understood, however, that for the purposes of the application of Article 15.4, supervisory personnel and employees in the academic staff bargaining unit, who are transferred into the bargaining unit shall be entitled to exercise only that portion of their seniority, if any, accumulated as an employee in the bargaining unit or what formedy was the bargaining unit. Based on that provision, the Board determined that employees transferred into the bargaining unit were entitled to "full seniority" based on length of service, which included part-time service outside the bargaining unit. The same issue subsequently arose before a Board which included the present Chair in Mohawk College of Applied Arts and Technology and Ontario Public Service Emolovees Union, March 30, 1990 (unreported). Although the collective agreement had been amended subsequent to the Conestoaa Colleoe award to include Article 14.5 which provided credit, in some cases, for part-time service toward completion of the probationary period, the Board concluded that the issue turned on the interpretation of Article 14.3, to which no amendment had been made. Based on the language of that provision and the earlier Gonostoaa ¢olleae award, the majority of the Board found that employees transferred into the bargaining unit were entitled to full seniority based on length of service, which included part-time service. As to the evidence introduced in this case, Rosalie Spargo, a Labour Relations Specialist with the College, testified that for purposes of vacation entitlement, the College has never given credit for part-time service. Instead, service has always been calculated from the date the employee enters the bargaining unit. Ms. Spargo also testified that the College has a system of notifying employees of their vacation entitlement and, by way of example, she identified a memorandum dated February 23, 1996, which was forwarded to each employee setting out the current balance of his or her vacation entitlement, any new entitlement as of July 1, 1996 as well as any vacation days previously advanced. Ms. Spargo testified that similar memoranda have been forwarded to employees annually since prior to the time she joined the staff of the College in 1989. Ms. Spargo also testified that toward the end of 1995, it became C'" apparent that there would be a restructuring at the College which would result in '-'- significant displacement of employees. As a result, the members of the Union College Committee, which included Ms. Spar§o and Jay Jackson, the President of both the local and provincial bargaining units, derided that steps should be taken to ensure that the seniority of all employees was property calculated. Accordingly, in early February, 1996, a memorandum was forwarded to each member of the bargaining unit setting out his or her established seniority date and offering the employee an opportunity to provide further information to the College if he or she considered the date spedfied to be inaccurate. Attached to the memorandum were various provisions of the collective agreement, including Artides 14.2 and 14.3. Ms. Spargo testified that during this process, no employee requested any adjustment to his or her vacation entitlement based on service as a part-time employee. Among the employees to whom the memorandum of February, 1996 was forwarded were Susanna Mesich and Norma Pennington-Drabble. Both of these employees had worked for some period as part-time employees prior to their transfer into the bargaining unit. Letters forwarded to these employees at the time of their transfer (Ms. Mesich having been transferred into the bargaining unit in September, 1979 and Ms. Pennington-Drabble in November, 1985), made no explicit reference to vacation entitlement but indicated that the terms and conditions of employment were governed by the provisions of the collective agreement. Thereafter, by memoranda dated September, 1993 and May, 1994, the Union advised the College that both Ms. Mesich and Ms. Pennington-Drabble would be serving as Union Stewards. The evidence also indicates that in late 1995, Ms. Mesich and Ms. Pennington-Drabble contacted the Human Resources Department to inquire about an adjustment to their seniority dates in view of the fact that they had worked on a part-time basis prior to their transfer into the bargaining unit. Although in response to these inquiries, the seniority dates of both employees were adjusted by a number of months, Ms. Spargo testified that neither employee requested any adjustment to her vacation entitlement. In fact, according to Ms. Spargo, although from time to time, the Union raised issues with respect to matters such as vacation scheduling, no issue was raised regarding credit for part-time service for purposes of vacation entitlement until a Union Management Committee meeting in February, 1997, following the issuance of the Georaian College_ award. Inthat award, which was also decided under the 1992/94 collective agreement, the majority of the Board found (1) that under Article 11 .1, continuous service, which forms the basis for vacation entitlement, includes service as a part-time employee: (2) that with respect to the College's submission that the language of the collective agreement was ambiguous, one of the criteria for the use of extrinsic evidence as an aid to interpretation had not been satisfied; and (3) that the College had failed to make out a case for the application of the doctrine of estoppel. Based on the Georgian Colleae award, the Union maintained at the meeting in early February, 1997, that members of the bargaining unit ought to have their vacation entitlement adjusted to take into account periods of part-time service. The College, however, refused to accede to this request, as a result of which the present grievances were tiled. Apart from evidence of past practice, the College also introduced evidence of negotiating history. This evidence was given by Wallace Kenny, a partner in the law firm of Hicks Morley Hamilton Stewart and Storie and the spokesperson for the Council of Regents in bargaining with the Union for support staff employees. Mr. Kenny testified that the issue of part-time service for purposes of seniority was raised in negotiations for the 1991192 collective agreement following the issuance of the Mohawk College award. According to Mr. Kenny, that award was inconsistent with the Colleges' practice of calculating seniority from the date of an employee's transfer into the bargaining unit. In this regard, Mr. Kenny explained that the earlier (;;onestoga Colleae award (which was relied upon by the majority of the Board in the Mohawk Colleae award) was regarded as anomalous and had not caused any change in the Colleges' practice. In any event, as a result of discussions during negotiations, the parties agreed to amend Article 14.3 of the collective agreement such that employees transferred from part-time to full-time positions prior to the date of ratification (which was November 14, 1991) would have their seniority calculated in accordance with the Mohawk College award. However, the seniority of employees transferred subsequent to that date would be prorated based on the number of hours of the part-time position compared to those of the full-time position, which constituted 1820 hours per year. Mr. Kenny testified that there was no discussion during negotiations for the 1991192 collective agreement or during subsequent negotiations until those for the 1997/2000 collective agreement regarding credit for part-time service for purposes of vacation entitlement. Ms. Kenny also testified that at the time of negotiations for the 1991/92 collective agreement, both parties were aware the Colleges did not give credit for part-time service for any purpose and that had Union proposed that credit be given for such service for purposes of vacation entitlement, the Council of Regents would have resisted such a proposal. The Union, however, did not raise the matter and it was not Mr. Kenny's impression that the Union's failure to do so was attributable to an understanding on its part that the language of the collective agreement was being properly applied. Finally, Mr. Kenny testified that although some discussions took place between the parties at the time of expiry of the 1992/94 collective agreement, the Social Contract Act was in effect and the Union subsequently exercised its right under the Act to extend the terms of that agreement. Decision: As provided in Article 11 of the collective agreement, vacation entitlement for employees on the active payroll of the College is based on years ,,"-,,of continuous service. As noted previously, in the Georaian Colleae award, the majority of the Board found that the term "continuous service" includes service as a part-time employee outside the bargaining unit. The issue of continuous service for purposes of vacation entitlement under Article 11 was also considered in _¢on, estoga Colleae and OPSFU August 27, 1998 (Brent (unreported)) although, in that case, the Board did not find it necessary to come to any conclusion regarding the proper interpretation of Article 11 .1 as the majority found that the Union was estopped from claiming that continuous service included service as a part-time employee. In view of the Georaian Colle.qe award, it is apparent that the meaning to be given to the term "continuous service" in Article 11 .I of the 13 collective agreement is not a matter of first impression for this Board of Arbitration. In these circumstances, we are of the view that it would be inappropriate to depart from the interpretation adopted in Georaian Colleae unless we are convinced that the earlier award is clearly wrong. In fact, were it otherwise, parties would be encouraged to re-arbitrate issues in the hope that a differently constituted Board would adopt a different interpretation. Nevertheless, the College contended that no deference should be afforded to the Georoian Colleae award as that case was decided without regard to the provisions of Appendix B to the collective agreement. This Appendix specifies the terms and conditions of employment which are to apply to persons occupying positions excluded from the bargaining unit which are subsequently found to be properly induded in the unit. Paragraph 6(c) of the Appendix provides that for purposes of calculating vacation entitlement under Article 11, the employee is be credited with "100% of his/her continuous service with the College". It was the submission of Mr. Brown, on behalf of the College, that if "continuous service" in Artide 11.1 included service outside the bargaining unit, there would be no need for paragraph 6(c). In the Board's view, however, Appendix B would appear to constitute a complete code with respect to the terms and conditions of employment 14 applicable to those occupying excluded positions which are subsequently found to be included in the bargaining unit. Moreover, in paragraph 6, the parties have agreed that for a specified period, such employees will retain the vacation earned in excluded positions. In these circumstances, it is not surprising that they also addressed the issue of service for purposes of vacation entitlement, particularly as other provisions in Appendix B make reference to the date of inclusion. The Board notes that paragraph 6(c) also refers to "continuous service" and, therefore, contains precisely the same terminology which appears in Article 11 .1. In the result, the Board is not persuaded that the provisions of Appendix B are sufficient ~,,.,%, to cause us to depart from the interpretation of Article 11.1 adopted in the Georaian Colleg~ award. Moreover, although Mr. Brown submitted that the majority of the Board in that case placed undue reliance on the Conestoaa Colleae and Mohawk College_ awards, which dealt with seniority rather than service, it is not uncommon for Boards of Arbitration to consider the manner in which the parties have dealt with seniority when dealing with issues related to service. As to the College's alternate argument which is based on ambiguity, in the Georaian Colleae award, the majority of the Board found that the first criterion for the use of extrinsic evidence as an aid to interpretation had not been satisfied as there was a clear preponderance in favour of one meaning when the words were viewed in context: see Re John l~ertram & Sons Co. ltd. (1967), 18 L.A.C. 362 (Weiler). With respect to this issue as well, this Board is not prepared to depart from the conclusion reached in the Georaian College award. The final matter, therefore, concerns whether this is an appropriate case for the application of the doctrine of estoppel. This doctrine applies where one party, by its words or conduct, represents to the other that it does not intend to rely on its strict rights under the agreement. Where the other party relies on that representation to its detriment, the party that made the representation will not be permitted to revert to its strict rights as if the representation had never been made: Combe v. Combe [1951] 1 All E.R. 767 (C.A.) and Re Canadian National Railwav Co. et al. and Beattv et al. (1981), 128 D.L.R.(3d) 236 (Ont. Div. Ct.). There would appear to be no dispute that the representation relied on to support an estoppel must be clear and unambiguous and there must be an intention to affect legal relations between the parties. Such an intention, however, need not be express but may be inferred from a course of conduct: see Owen Sound Public Library Board v. Mial Developments Ltd. et al, (1979), 102 D.L.R.(3d)685 (Ont C.A.) and Travellers Indemnitv Co, of Canada v. Maracle (1991), 80 D.L.R.(4th) 652 (S.C.C.). 16 Although it has also been held that silence or inaction may constitute the necessary representation, this is only the case where the representor owes a legal duty to the other party to make a particular disdosure: see Scotsburn Co- operative Services Ltd. v. W.T. Goodwin I rd, (1985), 16 D.L.R.(4th) 161 (S.C.C.) and Georoian Colleae (_.supra). While in this latter award, it was suggested that a union owes no legal duty to an employer to indicate whether or not it agrees with the manner in which the collective agreement is being administered, other awards have taken a somewhat different view: see Re Corooration of the City of Penticton and Canadian Union of Public FmDIovees (1978), 18 LA.C.(2d) 307 (B.C.L.R.B.) and Conestooa College and OPSEU August 27, 1998 (supra). In the former award, the Board commented as follows: But a collective bargaining relationship is quite a different animal. The union and the employer deal with each other for years and years through successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to-day basis across the entire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the Union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union offidals are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on its face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of 17 the other side. In the words of the Board in District of Bumaby, cited above [at p. 103], "It is hard to imagine a better recipe for eroding the atmosphere of trust and co-operation which is required for good labour management relations, ultimately breeding industrial unrest in the relationship, all contrary to the objectives of the Labour Code": see also the observations of Mr. Justice Hutcheon in Larson et al. v. McMillan Bloedel (Albemi) Ltd., cited above at p. 764. To return to the metaphor which was used earlier, it is equally unacceptable to watch someone go out on the end of the limb, as it is to invite that person out on the limb - before sawing it off. To avoid any misconception about that conclusion, let me immediately add these two caveats. I am assuming in this analysis that responsible union offidals are aware of what the employer in fact is doing. In my view, there is no obligation on the part of the union to take affirmative action to find out how the employer is actually administering the collective agreement- e.g., how it is applying different monetary provisions in the contract to produce a final figure in the employees' pay-cheques: see Pilkington Bros. (Canada) Ltd. and United Glass & Ceramic Workers, Local 295 (1966), 17 L.A.C. 146 (Arthurs) at p. 155. In this case, suppose the union officials had not been aware that the employer had failed to put additional insurance coverage into effect. The union would not have been estopped from enforcing its contract position. When Sieg died, the union awakened to the problem, and it advanced its arguments under the collective agreement. But in a case such as this one, when the union does know how the employer has interpreted and applied a contract provision, then it is under an obligation to make its objections known within a reasonable period of time, in order to alert the employer to the risks in its own course of action. In this case, the union did not object. Then, for reasons stated above, if the employer can show that it went ahead and acted in reliance on this acquiescence by the union, the union is estopped from making its objection and pursuing its grievance ex post facto. VVhile the C.,itv of Penticton award suggests that an estoppel based on silence requires actual knowledge of the employer's practice on the part of the union, as pointed out by the College, other awards have suggested that it is sufficient if the un.~on ought reasonably to have known of the practice: see, by way of example, 18 Re Board of Commissioners of Police for the Citv of Owen Sound and Owen Sound Police Association (1984) 14 LA.C.(3d) 46 (M.G. Picher) and Re Domatas Inc, and Aluminum. Brick & Glassworkers intemational Union. Local 2602 (1994), 40 L.A.C.(4th) 398. In this case, Mr. Brown contended that, in fact, the Union was aware that no credit was given for part-time service for purposes of vacation entitlement: that the Union failed to object to this practice; and that the College and the Council of Regents relied on the Union's silence to its detriment by failing to deal with the matter in bargaining. It was the submission of Mr. Leeb, on behalf of the Union, however, that the evidence failed to demonstrate that the Union was aware of the practice in issue. As to the evidence, it is clear that while the parties discussed part- time service for purposes of seniority during negotiations for the 1991192 collective agreement, there was no discussion either during those negotiations or subsequent negotiations prior to 1997 regarding part-time service for purposes of vacation entitlement. Moreover, although Mr. Kenny's evidence indicates that at the time of negotiations for the 1991192 collective agreement, the Council of Regents was of the view that the Union was aware that the Colleges gave no C'"' credit for part-time service for purposes of vacation entitlement, no factual basis was offered from which we could draw such a conclusion. In fact, Mr. Kenny acknowledged that it was not his impression that the Union failed to raise the issue as it understood that the language of the agreement was being properly applied or, in other words, because it was unaware of the practice in question. In these circumstances, therefore, the Board is not prepared to draw an adverse inference from the Union's failure to call evidence in response to the evidence of Mr. Kenny as, without more, the Council of Regents' belief regarding the Union's knowledge of the practice is not sufficient to found an estoppel. In this regard, the Board is of the view that caution must be exercised when silence is relied upon to t,,,-,,,~ support an estoppel as estoppel effectively precludes a party from relying on its strict rights under the collective agreement. As to the knowledge of the local Union at Sheridan College, Mr. Brown pointed out that both Ms. Mesich and Ms. Pennington-Drabble, who were Union Stewards, had worked as part-time employees prior to their transfer into the bargaining unit. Accordingly, they were aware that they did not receive credit for this service for purposes of vacation entitlement. In late 1995, these employees also requested an adjustment to their seniority to take into account their part-time service but did not request any adjustment to their vacation entitlement. ---,,,! 2o Nevertheless, as pointed out by Mr. Leeb, there was no evidence to indicate that either Ms. Mesich or Ms. Pennington-Drabble served as Union stewards prior to the fall of 1993. Accordingly, there is no basis upon which we could attribute knowledge of the College's practice to the local Union prior to that time. Moreover, even if we were to find that the Union's silence or, in other words, its failure to object to the College's practice subsequent to the fall of 1993 could be construed as a representation of its intention not to rely on its strict rights under the collective agreement, by that point in time, negotiations for both the 1991/92 and 1992194 collective agreements had been concluded. Although [,,,.-,,, there were also some discussions between the parties at the time of expiry of the 1992/94 collective agreement, the Union exercised its right under the ~ Contract Act to extend that agreement. In these circumstances, therefore, it cannot be said that the College lost the opportunity to deal with the matter in bargaining. Accordingly, we find that the necessary detrimental reliance has not been established and, therefore, a case for the application of the doctrine of estoppel has not been made out. Finally, it should be noted that although we have reached the same conclusion on this issue as the majority of the Board in the Geo~ai~ln I e ge award, our finding is based entirely on the evidence introduced in this case. Indeed, this Board does not subscribe to all of the comments in the Georgian Colleoe award regarding the application of the doctrine of estoppel. Moreover, while a different conclusion regarding estoppel was reached in Conestoaa Colleae and OPSEU August 27, 1998 (,~upr~), it is apparent that the result also turned on the evidence introduced in that case. Moreover, although in support of an estoppel, the majority of the Board relied on discussions which took place between the parties in early 1996, the majority also found that as early as 1989, a member of the local Union executive had direct knowledge of the College's practice which did not involve credit for part-time service for part-time service for purposes of vacation entitlement. The Union, however, did not grieve the matter or raise it as an issue in central bargaining. As a result, it was found that "the College reasonably took the Union's failure to act at face value and did nothing to try to protect itself from any increased claims for vacation entitlement". In this case, in contrast, there was no evidence that the Union had knowledge of the College's practice until the fall of 1993 at which point, the Council of Regents could not have effectively dealt with the matter in bargaining. Accordingly, the necessary detrimental reliance has not been established. As to the matter of remedy, the Board was constituted under the 1992/94 collective agreement and, therefore, does not have jurisdiction to award relief under earlier agreements: see, by way of example, J~ Goodvear Canada Inc. and United Rubber Workers. Local 232 (1980), 28 L.A.C.(2d) 196 (M.G. Picher); Re F,B~, rljstillery Co. ltd. and Brewery. Ma It & Soft rJdnk Workers, local 304 (1987), 31 LA.C.(3d) 122 (H.D. Brown) and Re Northerrl College of Al~plied Arts & ']'echr~lggy and Ofltario Public Service Employees Union (1992), 27 L.A.C.(4th) 98 (H.D. Brown). Moreover, although an estoppel has not been made out, it is apparent that for some period subsequent to the fall of 1993, the Union acquiesced in the College's practice. In these circumstances, therefore, it was entitled to give notice to the College as it did in February, 1997 that it intended to rely on its stdct dghts under the agreement. The present grievances were subsequently tiled and, in the Board's view, in accordance with the collective agreement, relief must flow from the time of the filing of the grievances. In fact, daims to increased vacation entitlement prior thereto would appear to be untimely. In the result, the Board remits the matter of remedy to the parties and shall remain seized to deal with issue and for purposes of implementation of this award. DATED AT TORONTO, this 27th day of July, 1999. Chair "I dissent - Jacquel~ G. Camp]~ll" College Nominee "I conct/r -Mictmel J. Sullivan" Union Nominee