HomeMy WebLinkAboutGroup 98-08-27 IN THE MATTER OF AN ARBITRATION
BETWEEN:
CONESTOGA COLLEGE
(Hereinafter referred to as the College)
AND
OPSEU
(Hereinafter referred to as the Union)
AND IN THE MATTER OF GROUP GRIEVANCE OPSEU FILE 97D629 (SUPPORT)
BOARD OF ARBITRATION: Gail Brent
David Guptill, College Nominee
Pauline Seville, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Barry Brown, Counsel
Linda Krotz
Delores Smith
FOR THE UNION: M. Margaret Froh, Counsel
Ann Wallace, Local President
Jay Jackson, OPSEU Central Negotiator
Sherry Johnston, Local Vice-President
Hearing held in Kitchener, Ontario on April 27, 1998
Written submissions received on May 11 and May 25, 1998.
Executive Session held on May 27, 1998.
DECISION
The grievance (Ex. 1) alleges a violation of Article 11 because the College has not given
certain employees their proper vacation entitlement. There were no preliminary objections raised
concerning jurisdiction or arbitrability.
2
This matter involves the calculation of vacation entitlement for support staff employees in the
bargaining unit who had previously been excluded from the bargaining unit because they were part-
time employees. There is no dispute between the parties conceming the practice which the College
has always followed. No part-time employee who became a bargaining unit employee was given
credit for service outside the bargaining unit for vacation entitlement purposes under the collective
agreement or any of its predecessors.
In 1986 there was an arbitration award between these same parties rendered by Arbitrator
Palmer which dealt with seniority creditfor part-time service and which did not lead the College to
change its practice of not recognizing part-time service for seniority credit. In 1990 Arbitrator
Devlin dealt with the issue of seniority credit for part-time service in a decision involving Mohawk
College. Following that award the parties negotiated Article 14.3 dealing with seniority when
College employees transfer into the bargaining unit, in which they agreed that 'all those who
tranSferred into the unit after November 14,. 1991 "shall have their seniority prorated upon
completion of their probationary period".
On January 22, 1996 there was a Support Staff Agreement Committee meeting attended by
members of management and the local Union executive. The minutes of that meeting (Ex. 4)
indicate that the parties discussed the matter of part-time employees as follows:
Seniority for Part Time Employees Hired Prior to November 15, 1991
The Union tabled a memorandum from Sandi Johnson (Council of Regents) that Management
had not yet seen. This is in reference to a grievance awarded at Mohawk College. Conestoga
has 104 employees hired prior to November 15, 1991 who had previous part time work.
Conestoga has computerized part time work history only since 1982. In addition, both Human
Resources and Payroll have purged older records.
3
The Union understand that full seniority is to be given for part time work for employees hired'
prior to November 15, 1991, and pro-rated seniority for employees hired since November 15,
1991. No specific definition of"full seniority" is available.
Leave Replacement (Appendix D) contracts were confirmed as those contracts for which the
employee works more than 24 hours per week. Conestoga's records indicate 23 employees
hired since November t5, 1991 have had Appendix D seniority credited to them. Any weeks
which have more than 24 hours/week will be deducted, thereby' reducing seniority dates for
those employees.
An agreement must be reached by both parties as to how 'previous part time work history
(prior to computerized records of 1982) should be confirmed for applicable employees. The
Union suggested a joint letter be submitted to E/ERC outlining our situation prior to 1982 and
asking for direction/guidance.
Management to contact Council of Regents and advise.
The same group met again on February 22, 1996 and the minutes of that meeting(Ex. 5) show
that they again discussed the matter of part time employees as follows:
01/96/04 Seniority for Part Time Employees Hired Prior to November 15, 1991
The Union questioned the status of this item. The Union believe there should be an agreement
between Management and Union, but not necessarily at the local level. The Union understand
E/ERC are discussing this subject.
Management are working on this project. When completed, Management will post new
seniority lists and ail individuals will be written to advise them their seniority date has/has not
changed as applicable.
The Union asked if vacation entitlement credits for the applicable part time seniority changes
would be given. Management advised no college is applying this credit towards vacatiOn
entitlement.
On March 14, 1996 the same group met again and the' minutes (Ex. 6) disclose that they
reached the following agreement regarding seniority:
Seniority
Management asked for Union interpretation of the OPSEU February 26/96 opinion/letter to
Sandi Johnson, CofR.
'4
It was agreed that:
1. For part time employees who transferred into the bargaining unit prior to November 15,
1991, Management have credited full seniority for days worked within the term of a part time
contract, i.e. 7 hours ~ 1 day
2. Forpart time employees who transferred into the bargaining unit after November 14, 1991,
Management have credited pro-rated seniority based on length of service as a part time
employee.
3. It was agreed a part time employee is not an Appendix D leave replacement, nor someone
working in a Project of an Non-Recurring Nature.
4. Prior to 1981, Conestoga has no computerized nor financial part time work history records
that would prove hours were actually worked against a part time contract. It was agreed that
in these cases, seniority would be calculated using the start and end dates of the part time
contracts.
5. For part time contracts with working hours recorded against them, seniority would be
calculated based on the actual hours worked within each contract (either full or pro-rated, as
applicable).
6. It was agreed that item//3 in the OPSEU correspondence was not a complete statement.
7. It was agreed that Appendix D contracts do not attract seniority accrual. However, if for
some reason, the employee's hours were reduced in a week to 24 or less, by definition that
week's work becomes part time work and does then attract seniority accrual.
8. It was agreed to use a [illegible handwritten words omitted] 13 week break in service as part
of the calculation method as this is the figure used in conjunction with a) Less Than 12 Month
Positions - this is the maximum amount of time that the full time employee can be laid off
annually b) this is the amount of time defined in the Employment Standards Act re: separate
periods of employment for calculating termination notice.
Management requested the Union co-sign the joint interpretation.memo to be distributed to
all support staff concerning this issue. The Union reserved their agreement pending review
of the memo contents.
Both Ruth Jensen and Sherry Johnston were members of the committee representing the
Union, and both of them attended all three meetings where the above matters were discussed. Jensen
had been either Unit Steward or in a similar position since at least the mid 90's. Johnston was the
local Vice-President and had been on the local executive since at least 1989. Both of them were
employees whose seniority would be affected by 'the change. Both of them heard the College
indicate that there would be no change in vacation entitlement.
As agreed to at the meeting of March 14t~, all full time employees received a letter fi.om
Delores Smith, Manager, Employee Relations & Classifications and Ann Wallace, President OPSEU
Local 238, which was in fact co-signed by Smith and Johnston. The following is the portion of the
letter which everyone received on or after April 3, 1996 (see Exs 7 & 8):
The issue of the application of seniority has been raised provincially. At a recent local
Support Staff Agreement Committee meeting, members were able to come to an agreement
as to how seniority should be applied. This has resulted in a number of changes to the
seniority list. A new seniority list has been produced and is posted.
A person employed bythe College, who transferred into the bargaining unit has been accorded
full seniority, based on length of service. As well, pan-time support staff employees
transferred into the bargaining unit, prior to November 15, 1991 have received full seniority.
After November 14, 1991, their seniority has been prorated, 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. Reference Article 14.3 of the current Support
Staff Collective Agreement.
For your information, no time records are available prior to 1981; full seniority has been
accorded to all employees based on the part-time contracts found within their human resources
file.
Article 14.3 does not apply to ApPendix D employees as they are deemed to be in the
bargaining unit and therefore cannot be transferred in; their rights are outlined exclusively in
Appendix D of the collective agreement.
A break in service of greater than thirteen (13) weeks in' length results in an employee not
qualifying for transfer of seniority. The rationale being that this is the maximum length of
time allowed for a temporary layoff as identified in the Less Than 12 Month Positions Letter
of Intent in the current Support Staff Collective Agreement as well as the definition found in
the Employment Standards Act related to separate periods of employment and termination
notice.
6
It should also be noted that for purposes of the application of Article 15.4, supervisory
personnel, and employees in the academic staff bargaining unit,' who transfer into the
bargaining unit are 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.
The newly posted seniority list shall be considered correct for all purposes unless an
employee disputes its accuracy by providing the Human Resources Department with
written notice by April 26, 1996.
If you have any questions regarding the interpretation of implementation of this article, please
contact wither of the writers.
· Both Jensen and Johnston received that letter. In addition, individual employees received
notice of their new seniority dates and the Union did not see those individual-notices. Jensen
received notice that her previous seniority date was September 15, 1989 and that her new seniority
date was April 21, 1989 (Ex. 7). Johnston received notice that her preVious seniority date was
December 14, 1982 and her new seniority date was February 11, 1981.
In the letter hiring Johnston as a bargaining unit employee, dated December 14, 1982 (Ex. 9),
the College stated the following regarding her vacation entitlement:
Vacation - The vacation year for College Support Staff is from July 1 to June 30 of the
following year. Annual vacation entitlement is fifteen (15) working' days after one full year
of employment; Your vacation entitlement based on your service up to next June 30, 1983
is 8 days.
She was given no credit for any previous nOn-bargaining unit service upOn becoming a bargaining
unit employee in 1982. The College's records (Ex. 8) show that she had begun pan-time.
employment in September 1980.
In the letter hiring Jensen as a bargaining unit employee, dated July 31, 1989 (Ex. 10), the
College stated the following regarding her vacation entitlement:
VACATION - The vacation year for College Support Staff is from July 1 to June 30 of the
following year. Annual vacation entitlement is fifteen working days after one full year of
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employment. Your vacation entitlement based on your service up to next June 30, 1990, will
be 13.5 day(s). After seven years' continuous service, an employee will be granted 16 days
vacation, 17 days after eight years and 20 days for nine to eleven years' service. Employees
with 12 or more years of service will receive an additional vacation for each additional year
of service to a maximum of 25 days after 16 years.
She was given no credit for any previous non-bargaining unit service upon becoming a bargaining
unit employee in 1989. The College's records (Ex. 7) show that she had begun part-time.
employment in January, 1989. Further, in 1991 Jensen's seniority, vacation entitlements, and
anniversary date had been adjusted because she had been on long tenn. disability from August 23,
1991 to September 30, 1991. She received a notice to that effect (Ex. 11) on or after November 19,
1991 indicating the following:
Vacation entitlement for the 91/92 accrual year is now 13.5 days.
Seniority dates (sic) has been moved to September 15, 1989
Anniversary date has been adjusted to October 18, 1989
The College never received any indication from those two employees that an error had been
made regarding their vacation entitlements. We have no evidence of any grievances having been
filed concerning the calculation of Vacation entitlements from any employee who had previOus part-
time service.
It is clear from the evidence of Ann Wallace, the Local President, that the Union knew on
February 22, 1996 that the College was denying its request to alter vacation entitlement credits for
those employees whose seniority dates were being affected by previous part-time service. It is also
clear that both Jensen and Johnston, two employees who would have been affected by the denial,
were at the meeting and did not pursue the issue further.
8
The matter of vacation entitlements next arose in the February 26, 1997 Support Staff
Agreement Committee meeting. The minutes of that meeting (Ex. 12) show the following:
Vacation Entitlement/Previous Part Time Work
(Georgian Award)
Management have received and are reviewing the copy of a Georgian College arbitration
award. Management indicated an arbitration award does not mean the decision is to be
applied at every college. The Union are preparing a letter to their membership, advising that
some members may be entitled to extra vacation entitlement as a result of this award.
Management will indicate their position in terms of this award by the end of the week.
The College indicated to the Union that vacation entitlements would not be adjusted on the basis of
the Georgian College arbitration. The grievance (Ex. 1 ) was filed on March 7, 1997 with Johnston-
signing both on behalf of the grievors and as Steward.
It was Wallace's evidence that she did not know whether any members who had previous part-
time service got credit for vacation entitlement rjr not. She did say, though, that she understood in
1996 that there would not be credit for seniority and service, although she did not agree that it would
be fair to assume that the Union knew that the College was not giving credit for previous part-time
service in relation to vacation entitlement.
Those are the facts that relate to this particular grievance..We also heard evidence, regarding
the negotiations which led up to the 1991-92 and 1992-94 collective agreements and received
language from agreements spanning the period 1984 to 1992 (Exs. 2A to 2E inclusive). Both
Wallace Kenny, who negotiated on behalf of the Council of Regents and who has been involved in
negotiations since 1987, and Jay Jackson, who has been on the Union's provincial negotiating team
since the 1984-85 agreement, testified.
9
Based on the evidence we heard fi.om both Kenny and Jackson we conclude that neither part-
time seniority nor service was an issue between the parties until the round of negotiations following
Arbitrator Devlin's award in the 1991 Mohawk College case. Prior to that, part-time service had not
been credited for any purpose other than the probationary period when an employee transferred into
the bargaining unit. It would appear that both the Council of Regents and the Union were concerned
about the equity of the situation if transferring employees were granted seniority which recognized
full credit for their pre-bargaining unit part-time employment. The inequity would have resulted
because part-time employees would have accumulated seniority at a faster rate than full-time
employees who had been in the bargaining unit throughout their employment. The Council of
Regents proposed pro-rating service. The Union proposed pro-rating service as of the-date of
ratification onwards and not retroactively, changing the effect of the Mohawk award. The parties
agreed on that and the resultant amendment to Article 14.3. That article from the 1991-92 collective
agreement (Ex. 2E) is reproduced below with the amendments underlined:
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 the date
of ratification of this Agreement. 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.
During the negotiations for the 1991-92 collective agreement there was no discussion about
giving credit for past part-time service for vacation entitlement. Kenny said that had the matter been
10
raised by the Union the parties would have had to negotiate the matter because it was contrary to the
understanding of both parties that there would be such credit. Jackson confm'ned that the Union had
not turned its mind to the issue of vacation entitlement and past part-time service, and that the entire
focus of the discussion was-concerning seniority. He also said that he did not believe that the Union
took any steps to see what was occurring at any of the colleges in relation to other part-time issues.
During the negotiations for the 1992-94 collective' agreement (Ex. 3) Article 14.3 was
unchanged save for inserting the actual date of ratification (November 14, '1991) into the provision.
The issue of credit for pan-time service for vacation entitlement was not raised during those
negotiations. During the negotiations in 1994 the issue of vacation entitlement fOr previous part-
time service was also not raised.
Clearly the Council of Regents did not believe that the Union thought it had the right under
any of the collective agreements to have vacation entitlement based on previous pan-time servicel
Jackson said that the issue of pan-time service and seniority was dormant until it became clear
in late 1995 or early 1996 that there would be downsizing. It then became known that many of the
colleges had not made the appropriate seniority adjustments for part-time service. Following that,
the central Union raised the matter formally at the E/ERC along with the issue of vacation
entitlements..The central Union learned then that there was no disagreement between it and the
Council of Regents concerning seniority, but that they had different views about crediting past part-
time service for vacation entitlement. The central Union then advised the locals that they should deal
with their own colleges on seniority and service issues. This advice would have been given in late
1995 or early 1996. It was his understanding 'that a number of locals had launched grievances
following discussions at their colleges.
It was Jackson's evidence that the Union head office only became aware of the part-time
service issue in relation to vacation entitlements in late 1995 or early 1996 following the query fi.om
George Brown College which led to the formal E/ERC discussions.
On January 20, 1997 an award was issued in the matter of an arbitration between Georgian
College and the Union dealing with credit for previous part-time service for vacation entitlements.
The majority of that board of arbitration, chaired by Arbitrator Schiff, awarded that "vacation
entitlement as of June 30, 1996 shall be determined under art. 11.1 by including in the 'years of
continuous service' the employee's period of time, if any, in a part-time job back to the date of hire
into that job" (page 13). That grievance was launched on February 8, 1996 (see page 3 of award)
at around the same time that the local Union in this case was told by the College that its request for
crediting part-time service for vacation entitlement .was being ·denied. As already noted, the
grievance here was launched following the Georgian College award.
We heard very able and thorough submissions fi.om counsel on a number of issues. We were
asked to determine whether Article 11.1 of the collective agreement provided for part-time service
to be taken into account when determining vacation entitlements, and as a subsidiary point whether
the Georgian College deCision was wrong. If we found that there was any ambiguity in
Article 11. l's use of the term "continuous service", we were asked to determine whether past practice
should be used to resolve that ambiguity in favour of the College. We were also asked, if we found
the Union's interpretation to be correct, to determine whether in any and all of the circumstances of
this. case the Union should be estopped from asserting its position until after the next round of
negotiations. For the sake of brevity, we will not summarize the positions of the parties but will deal
with the arguments in the course of rendering our decision.
12
In addition to Article 14.3, which has been reproduced above, the parties also referred us to
the following provisions in the collective agreement:
1.1 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;
11.1 Entitlement
Effective June 30, 1991, employees on the active payroll of the College who have completed
the years of continuous service specified, as of June 30t~, shall be granted vacation with pay
as follows:
1-6 years: 15 working days
7 years 17 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, inany 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 developmental leave.
14.2 Accumulating Seniority
Seniority and service shall accumulate for all purposes under the Collective Agreement for
a period 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
13
Agreement. 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 the periods of layoff under Article 15.
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.
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:
5. Seniority
Employees will be accorded full seniority based on length of service with a College
calculated in accordance with Articles 14.1 and 14.2.
6. Vacation
(a) Employees will retain vacation entitlement earned as Administrative Staff Or an
otherwise excluded employee for the Vacation year in which the date of inclusion
occurs and one (1) additional vacation year and vacation pay shall be in
accordance with Articles 11.2, 11.3 and'l 1.4.
(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 coincides with the entitlement under the effective
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Collective Agreement for CAAT Support Staff and vacation pay shall be in
accordance with Articles 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.
The parties also referred us to the following authorities: Georgian College of Applied Arts
and Technology and Ontario Public Service Employees Union, (1997) unreported (Schif0;
Re Scarborough General Hospital and Ontario Nurses' Association, Local 111 (1977), 16
L.A.C.(2d) 213 (H. D: Brown); Re St. Catharines General Hospital and Ontario Nurses'
Association (1978), i9 L.A.C.(2d) 65 (Beck); Re Women's Christian Association of London and
London and District Building Service Workers Union, Local 220 (1979), 24 L.A.C.(2d) 409
(H. D. Brown); Hanover and District Hospital and London and District Service Workers' Union,
Local 220, (1988) unreported (Samuels); Re Canadian National Railway Co. et al. and Beatty et
al. (1981), 128 D.L.R.(3d) 236 (Ont. H. C. J., Div'l Ct); Travellers Indemnity Co. of Canada v.
Maracle (1991), 80 D.L.R.(4th) 652 (Can. S.C.); Scotsburn Co-Operative Services Ltd. v. W. T.
Goodwin 'Ltd. (1985), 16 D.L.R.(4th) 161 (Can. S.C.); Re Corporation of the City of Penticton and
Canadian Union of Public Employees, Local 608 (1978), 18 L.A.C.(2d) 307 (B.C.L.R.B., Weiler);
Re Consolidated-BathurSt Packaging Ltd. and International Woodworkers of America, Local 2-
242 (1982), 6 L.A.C.(3d) 30 (MacDowell); Re Board of Commissioners of Police for the City of
Owen Sound and Owen Sound Police. Association (1984), 14 L.A.C.(3d) 46 (M. G. Picher); Owen
Sound Public Library Board v. Mial Developments Ltd. et al. (1979), 102 D.L.R.(3d) 685
(Ont. C.A.); Re Domglas Inc. and Aluminum, Brick & Glassworkers International Union,
Local 2602 (1994), 40 L.A.C.(4th) 398 (Keller); Re Board of Governors of Ryerson Polytechnical
Institute and Ryerson Faculty Association (1980), 27 L.A.C.(2d) 378 (MacDowell); Fanshawe
15
.College and Ontario Public Services Employees Union (O'Brien Grievance), (1998)unreported
(Devlin); Conestoga College of Applied Arts and Technology and The Ontario Public Service
Employees Union (For Support Staff Employees), (1986) unreported (Palmer); Mohawk College
of ~lpplied Arts and Technology and Ontario Public Service Employees Union (For Support Staff
Employees) (Union Grievance), (1990) unreported (Devlin); Canadian Superior Oil Ltd. and Kerr-
McGee Corporation (formerly Kerr-McGee Oil Industries Inc.) and The Paddon-Hughes
Development Co. Ltd. and Ralph Hambly, [1970] s.C.R. 932; Re Monarch Fine Foods Co. Ltd.
and Milk and Bread Drivers, Local 647 (1985), 18 L.A.C.(3d) 257 (Schiff); The Law of Contracts
(Third Edition), Waddams, Canada Law Book 1993; and Halsbury's Laws of England
(4tn Edition), Hailsham of St. Marlybone, Butterworths 1992.
'In reaching our decision we have considered only the evidence presented to us, the collective
agreement, the submissions of counsel and the authorities cited. In addition we have held an
executive session where we discussed how to deal with this matter.
The relevant langUage in Article 11.1 has already been interpreted by Arbitrator Schiff in
Georgian College, where "continUOus service" was found to include previous part-time service
outside the bargaining unit. Therefore, we are not in the position of a board of arbitration lOoking
at language for the first time. It may well be that we could reach a different conclusion on the
interpretation of Article 11.1; however, in our view it is not necessary.for us to consider whether
Arbitrator Schiff's interpretation was clearly wrong or was correct. There is no doubt that the
College's consistent practice here has been to interpret "continuous service" as not including
previous part-time service for the purpose of calculating vacation entitlement under Article 11.1.
16
Two members of the local executive were both former part-time employees who transferred
into the bargaining unit. On the occasion of their transfer it was made known to them that the
College was not crediting them with any past service in calculating their vacation entitlements.
Shortly after joining the bargaining unit both of those employees became members of the local
executive. Thus, as early as 1989 there was a member of the local'Union executive who had direct
and recent knowledge of how the College was interpreting "continuous service" under Article 11.1
for the purposes of vacation entitlement. Neither jensen nor Johnston testified in these proceedings;
therefore, it is reasonable to conclude, that they had actual knowledge of the College's practice.
In early 1996 when the College began to adjust seniority dates the local Union specifically
asked the College if it was going t° adjust vacation credits as well as seniority. The College said no.
In the words of Wallace, the College "denied our request". Both Jensen and Johnston were present
at the meetings where the adjustments were discussed. The Union did nothing following that
meeting to pursue any claim for vacation credits based on previous part-time service. The Union
jointly signed the letter to all employees which only indicated that seniority was being adjusted. In
view of the specific knowledge which at least two members of the local executive had regarding the
College's practice, and in view of the discussions about vacation' entitlement which occurred, the
Union must be taken to have known what the College's practice was and to have known that it was
not going to adjust vacation entitlements along with seniority.
In the face of this knowledge the Union did nothing locally to grieve the College's action or
to make it an issue for central bargaining. From all of the foregoing it is our conclusion that it is fair
to infer and find as a fact that the Union either acquiesced in'the College's interpretation or led the
College to believe that it so acquiesced. As a result the College reasonably took the Union's failure
17
to act at face value and did nothing to try to protect itself from any increased claims for vacation
entitlement.
This case is significantly different from Georgian College because there there was no evidence
of any such local knowledge of the employer's position, and the parties had not specifically
discussed the issUe a year prior to the grievance being launched. The only evidence regarding ·
estoppel which was heard by that board appears to have been the evidence concerning negotiating
history.
We believe that in the case before us thc College has made out a case for estoppel. We find
that this case fits squarely within Chairman Weiler's remarks in City of Penticton at pages 320 and
321:.
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 officials 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 on 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 the other side. In the words of the Board in'District of
Burnaby ... "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. MacMillan Bloedel (~llberni)
Ltd ... To remm to the metaphor which was used earlier, its 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.
18
To avoid any misconception about that conclusion, let me immediately add these two caveats.
I am assuming in this analysis that responsible union officials 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 affh'mative
action to find out how the employer is actually administering the collective agreement -- e.g.,
how it is applying the different monetary provisions in the contract to produce a final figure
in the employees' pay-cheques .... 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, 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 the 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 expostfacto.
In our view that describes the situation before us. Responsible local Union officials knew of
the College's interpretation and application of the collective agreement and did nothing to alert the
College to the fact that it did not agree with the interpretation and application. If it had an objection,
then the local Union was under an obligation to notify the College of that objection within a
reasonable period of time so that the College could take steps to protect itself. The local Union's
silence allows the College to conclude that there has been acquiescence in its position. The College
then cannot be penalized for continuing to act in accordance with its original interpretation and the
Union is estopped from bringing the grievance forward ex post facto.
For all of the reasons set out above, the grievance is dismissed.
DATED AT LONDON, ONTARIO THIS ~,?~DAY OF~, 1998.
19
I concur /
David Guptill, College r~ominee
I c°~a~r~t dissent Vc~.%,~ % ~j~ ~
~ ~ ~e~ Pauline Seville, Union Nominee~.~