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HomeMy WebLinkAbout1990-2017.Butters et al.94-09-22 ONT,~,,..dO EMPL OY~:$ DE LA COURON~_ ' CROWN EMPLOYEES /DE L'ONTARIO GRIEVANCE C,OMMISSION DE SEITLEMENT REGLEMENT BOARD DES GRIEFS '180 OUNDAS STREET VVEST, SUITE 2rGO, TO~ONTO, ONTARIO, M5G ;Z'8 TELEPHONE/7~L£PHONE: {,4 '16.l 326- ~38~_ 180, RUE ~UNDAS OUEST. I~UREA. U 2'100, TORONTO (ONTARIO). MISG 1Z8 FAC$1MILE/T~L~-COPiE .' (4:~6) 325-~396 2017/90, 2018/90, 2019/90, 2020/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Butters et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health)Port Colborne & District Amb. Serv. Employer BEFORE: B. Kirkwood Vice-Chairperson J. Carruthers Member ~-' F. Collict Member, FOR THE R. Wells UNION Counsel Gowlin~, Strathy & Henderson Barristers & Solicitors FOR THE P. Whalen EMPLOYER Counsel Barristers & Solicitors HEARING October 28, 1991 January 21, 1992 February 2, 1993 June 25, 1993 October 18, 1993 January 27, 28, 1994 .~..~' Page 2 '~' DECISION In April 1, 1986, 677700 Ontario Limitedl purchased the services of the Port Col~5orne and District Ambulance Service' from Mr. Twerdohlib (Farmer) and continued to carry on business under the name of Port Colborne and District Ambulance Service, as did the former owner. The new owner/operator was Mr. Roberts. The four grievors are ambulance officers, who were employed by the predecessor employer and continue.to be employed by the new owner. On November 2, 1990, Mr. Roberts advised Mr. Butters that the following employees had the following balance of sick leave credits for the period of April 1, 1986 to November 1, 1990: Mr. Young owes 38 hours. Mr. Fretz has 92 hours credit. Mr. Caldwell has 394 hours credit. ' Mr. Butters has 470 hours credit. On November 5, 1990, the grievors filed their,grievances contesting the amount in the sick leave bank as there was no recognition of sick leave credits accumulated prior to the p.Urchase of the service, for the period between January 1, 1977 and March 31, 1986. The union, on behalf of the grievors, sought a declaration of the status of their respective sick leave bank. We heard evidence and argument on certain preliminary matters including the timeliness of the grievances and found that in the circumstances that ,we had jurisdiction to hear the grievance and that the union should proceed with its case. Before considering the merits, this board must resolve certain other issues raised by the employer in its argument at the conclusion of' the evidence. Employer's counsel argued that this board has no jurisdiction to make an award that is based upon earlier expired agreements. He relied upon Brown and Beatty at p. 2:1200, Re Goodyear Canada Inc. and United Rubber Workers, Local 232, 28, L.A.C. (2d) 196 (l>icher); OPSEU(Clerks 6, General) and The Crown In Right of Ontario (Management Board of Cabinet) (Weatherill) (January 4, 1984); Parkwood Hospital and Ontario Nurses' Association 14 L.A.C. (3d) 215 (Weatherill); London 'raveen and International Beverage Dispensers' and Bartenders' Union, Local 280 2 L.A.C. (3d) 411. Page 3 '~ Employer's counsel further submitted that even if the board has jurisdiction to hear the grievance, the grievance is of a continuing nature; and any relief, if given, is limited to the relief as determined by the time limits in the collective agreement in effect at the time the grievances were filed. Employer's counsel relied on Brown and Beatty, Canadian Labour Arbitration paragraph 2:3128; Re Union Gas Co. of Canada Ltd. and International Chemical Workers, Local 474 2 L.A.C. (2d) 45 (Weatherill), Re Raphael's Nursing Homes Ltd. and London and District Service Workers' Union, Local 220 18 L.A.C. (3d) 430 (Roberts); Re Bendix Automotive of Canada Ltd. and United Automobile Workers, Local 1953 L.A.C. (2d) 21 (Weatherill), Re Regional Municipality of Haldimand- Norfolk (Grandview Lodge) and Health, Office & Professional 'Employees, Local 175 23 L.A.C. (4th) 282 (Rose). Union's counsel argued that the union is not claiming a breach of any of the earlier collective agreements, which it agreed the board has no jurisdiction to resolve. The union claimed that it is relying solely on a single breach of the collective agreement in effect at the time the grievances were filed. The single breach occurred when the employer failed to credit the grievors with their past sick leave credits, The union was however relying on the provisions in the earlier collective agreements to support their claim for inclusion of sick leave credits prior to April 1, 1986, in the grievors' sick leave banks. The collective agreement that was in force at the time the grievance was filed was no longer in existence. The parties agreed that for the purposes of this arbitration that the operative collective agreement at the time of the filing of the grievances covered the term from April 1, 1989 to December 31, 1991, (hereinafter referred to as the "1990 collective agreement") was the same as the.collective agreement coveting the period of April 1, 1987 to March 3i, 1988. Article 18.02 of the 1990 collective agreement states: Employees shall earn one and a half (ll/2),days of sick credit for each month of employment. A deduction shall be made from accumulated sick leave of all working days (exclusive of holidays) absent from sick leave. The unused portion of an employees sick leave shall accrue for his future benefits. Notification of accumulated sick leave credits shall be made not later than March of any year. There shall be an attached letter of clarification. The letter of attachment states: Page Re: Accumulation of Sick Leave In the Collective Agreement between the parties which expired on December 31, 1976, there was a sick leave provision 18.04 dealing with payment of sick leave to an employee's credit on an employee's retirement or severence (sic). In the Collective Agreement which succeeded such Agreement, this provision was deleted. However, the Company agreed to pay fifty per cent (50% of_.the value of accumulated sick leave credits as of December 31, I976, to all bargaining unit employees in the active service of the Company as of November 1, 1977. It was agreed the remaining value of such accumulated sick leave credits could be used by such employees in the event of future illness. However, it was agreed that there would be no salary grant to an employee on retirement or severence (sic) of any amount of accumulated sick leave that is to his credit as of the date of retirement or severence (sic), Our jurisdiction is determined by the collective agreement under which the grievances were filed, the 1990 collective agreement. We agree with the law as set out in Goodyear (supra) although the facts are different. In the Goodyear (supra) case, the .union was attempting to resolve grievances under earlier agreements. The grievance was for premium pay. The current collective agreement did not involve the earlier claims. Therefore the only way the grievors could recover earlier premium pay would have been in the context of the earlier grievances. The board did not take jurisdiction to hear grievances for premium pay which arose under earlier collective agreements on the basis that "a board of arbitration can have no jurisdiction beyond the collective agreement under which it is constituted.' However, ther~ is a distinction between attempting to revive o? assert a grievance arising from an earlier collective agreement which agree we do not have jurisdiction to rule on, and relying on events and earlier collective agreements to interpret the collective agreement before us. Vice-Chair Weatherill makes this distinction in OPSEU(Clerks 6, General) (supra_). In OPSEU(ClerI~s 6, General) (supra), the issue was one of wage rates. That board had previously found that the claim for wages was a continuing grievance, and then held that to the extent that the grievances asserted' violations of previous collective agreements and sought remedies for them they did not h~vejufisdiction to hear them. However, the Vice-Chair continued: ; ~It may well be that in the course of dealing with the grievances which we have '" found to be properly before us, it will be necessary to have recourse to events ':: which occurred during the terms of previous collective agreements, and to consider and interpret the terms of those agreements. That, however, would be for the purpose of interpreting and applying the current collective agreement and determining the issue before us. ~ The board further clarified its position and the distinction on page 15 of the award: Page 5 While the matter of entitlement to compensation for Mt. Van Pelt in respect of the years 1979 to 1981 [years under prior collective agreements] may now be moot, the determination of the proper rate for those years may be material to the determination of the rate payable under the current collective agreement. In the same way in the case before us, we have no jurisdiction to consider any grievances o~ claims based upon earlier collective agreements, and none have been made. Our jurisdiction limits us to interpreting article 18.02 of the 1990 collective agreement, which by its terms requires us to consider earlier events and earlier collective agreements. We find that as article 18.02 credits the employee with sick leave for "each month of employment" those words of the contract require a calculation and accumulation of the sick leave credits accrued before the term of the collective agreement begins, as the credits accrue from the date the employment commences. Therefore for any employee hired prior to the commencement of the collective agreement, the sick_ leave credits accumulate from the date of hire. There is a further qualification and limitation in the letter of clarification, which is incorporated into the I990 collechve agreement by reference in article 18.02 of the collective agreement. The letter of clarification limits the credits accumulated from December 31, 1976 to 50% ~of the credits accrued to that date. Therefore, to determine what was in the bank as of the date of the filing of the grievance requires an accounting of the credits arising from the payout on December 31, 1976 and the unused credits from January 1, 1977 to March 31, 1986. As the parties do not dispute the credits accumulated from April 1, I986 to November 1, 1990, we will not mention then but assume that they are pan of the grievors' entitlement or obligation as the case may be. · Employer's counsel submitted that Mr. Roberts laid the foundation which the union had to address, that the sick leave credits were finalized with the union at the time of purchase and there were no sick leave credits as of March I, i986. Employerrs counsel argued that as Mr. Roberts testified that Farmer had paid out the sick credits or ensured that the sick leave credits, statutory obligations, and vacation credits were cleared out when he purchased the service,, it was incumbent upon the union to present the documentation to support their claim or to summons Farmer to testify, as the union had undertaken to do during the grievance procedure. Furthermore, employer's counsel argued that arbitrators should be careful to' apply the best evidence rule. Employer's counsel argued that the union relied to a large extent on hearsay, such as on medical records. Employer's counsel relying on Re_ B.C. Rail LTD. and United Transportation Union Locals 1778 and 1923 17 L.A.C. (.3d) 402 (Munroe) case, which Page 6 held that hearsay should not be used to determine a pivotal, crucial and central fact, argued that on' this basis alone, the board ought to reject the union's claim. Union's counsel argued that as Mr. Roberts purchased the ambulance service he inherited the rights and obligations of the predecessor employer. The Employment Standards Act requires an employer to retain employment records. In this case the employer was misinfon'ned and he did not feel that he needed the records. The grievors ought not now be affected to their detriment. They could not protect themselves in any way in the transfer. This employer should be deemed to have the same special knowledge as had the predecessor. The union accepted that it has the burden of' proof, but argued that'once the grievors came forward with their best information, a secondary burden of proof or evidential burden arose, which could be discharged by the employer who had special knowledge of the information, bringing forward the records. (Sopinka, The Law of Evidence in Civil Cases, at p. 397/8 and page 400, and grown and Beatty, Canadian Law Arbitration, p. 3:2400). Any difficulty Mr. Roberts had in getting the records from Farmer was not caused in any way by the grievors. We recognize that this board has the ability to accept hearsay evidence, and consider its weight in reaching its conclusion. We do not dispute the B,C. Rail (supra) decision. We would strongly have preferred the best evidence, being the employment records, and the testimony by Farmer, neithei of which the employer presented. The board only had the benefit of hearing evidence from the grievors, their wives, a former employee, and from Mr. Roberts. In some cases there was documentation to support their evidence. We recognize that the memories and recollections of the grievors may not be accurate as the passage of time blurs events, let alone hurts or creates inaccuracies over events that were not significant in the general scheme of things, but it is not our view that the union's case be thwarted solely on the basis that the records and Farmer's testimony were not aVailable or produced by the employer. Under the terms of article 18.02 the employer has to notify the employee of the sick leave credits accumulated on his behalf. Inherent in the obligation to notify, is the duty to keep records, which is consistent with the role of the employer to identify the days the employee is present, on vacation leave, or otherwise, to determine the wages accumulated during each pay period. It is also consistent with employer obligations as set out in the Employment Standards Act. Therefore the employer has special knowledge of the days when the employee was at work or was absent. Although Mr. Roberts purchased the operating license or the business, the employer, who continued to carry on the business as the Port Colborne & District Ambulance Service has the duty to keep the records and must be deemed to have the special knowledge of the prior employer Page 7 under this collective agreement. Therefore it was incumbent upon the employer to produce records, or to produce Farmer to provide some evidence of the past. Even if we were supposed to consider what occurred during the grievance procedure, which is .not properly before us, the employer who had the advantage in this case of proceeding second saw that the union did not summons Farmer or the records and therefore bears the risk for failing to do so. Furthermore, the duty to nohfy annually provides the e?nployee with the opportunity to review the employer's determination in a timely manner and raise any differences the employee perceives. However, the failure to notify does not extinguish the right to the credits, or otherwise it would lead to employers,, and it is not alleged that Mr. Roberts has done So, to destroy, lose or otherwise not keep accurate records or not notify the employee so as to prevent employees from receiving such benefits. The employer's failure to do so does not guarantee success to the union..We must then consider on the evidence before us on the balance of probabilities the amount accumulated in each of the grievors' sick leave banks. Employer's counsel argued that the union did nor provide any basis for entitlement ' before January 1, 1975, and it was not known if there were any sick leave credits in the prior collective agreements. Employer's counsel argued further that we cannot accept the union's argument as not all the collective agreements~were filed with the board. In our view, these submissions are answered by the arguments and decision on the jurisdiction of the board. We are governed by the 1990 collective agreement and the letter of clarification. Mr. Bntters' Sick Leave Bank: Mr. Butters testified from his recollection and used a letter obtained from his doctor setting out his visits from September 15, 1972 to April 15, 1991, to refresh his memory. We did not consider the visits after the date of the grievance. Mr. Butters had been a full time employ,ce since May 13, 1972. He testified that his payout in I976 was 42 days, but accepted that 41.5 was the most that he could have been paid out. He could not recall taking any sick days prior to the payout. He testified that as he worked on shifts he was able to see his doctor without taking time off work. His practice today is to go to work even if he has a mild flu or cold. We accept that his balance on January-l, 1977 was 41.5 days. Page 8 The maximum number of sick leave credits that he could have accrued from January 1, 1977 to March 31, 1986 would be 148.5 days, (99 months at 1.5 days per month.) Mr. Butters testified that during that period of time he had two bouts of pneumonia, one in January I977, for which he estimates he lost four to five days off work, and one in 1983 wtien he was also hospitalized, he testified that he would have lost seven days. Mrs. Butters corroborated the tWo bouts of pneumonia. He knew that he also was absent for three other single days off, two days for a wedding, which he was allowed as sick days, and a day when his wife cut her hand and had to go to hospital and he stayed home to took after the children. Mr. Butters denied that any of the other ailments listed by the doctor other than that to which he testified resulted in loss of time. Although we recognize that Mr. Butters' wife who also testified has an indirect interest in Mr. Butters succeeding, we accept her evidence as she would also have direct knowledge of Mr. Butters' absences. It was also noteworthy, in that Employer's counsel asked Mrs. Butters if she had compared notes with her husband and she testified, that she did not know until the date of the heating that she was going to testify until the date of the hearing. Butters' evidence was corroborated in part by Lynn Marshall. Lynn Marshall worked rotating shifts and was only employed from September 1977 to January 1982, during which time she was absent from September 1980 to August 1981. She did not work through the entire time of Butters, she may have been employed for the first bout of pneumonia but not for the second. She generally knew how many sick days people took off and her estimate for Butters was 3-4 days, This was n6t inconsistent With Mr. Butters' testimony. Ms. Marshall would not be aware of all Mr. Butters' absencesl but her evidence is helpful and corroborative to the extent that she was not aware of any glaring absences. Although a person's current sick record does not necessarily reflect a person's health five years previous, we are find that the credits that had accrued to Mr. Butters after March 1, 1986 were consistent with his approach not to miss work unless it was absolutely necessary. Therefore we give credence to his testimony that he did not take time off for illnesses, prior to thepayout. We accept Mr. Butters' testimony that although he had an ulcer he was able to carry out his job and attend the doctor without missing work. Mr. Butters saw his doctor fairly frequently during the course of a year. With the exception of an entry dated April 17, 1973 for a diagnosis for second and third degree, burns necessitating being absent from work for four to six we. eks, there is nothing in the medical record that suggests that the visits to the doctor would be a reflection of days absent from work for illness. Page Mr. Butters. testified that as the bums were a result of a work related injury he received worker's compensation and did not take sick leave for the bum. This is consistent with the purpose of 'Workers' Compensation. We accept Mr. Butters' evidence that his motorcycle accident in March 1974 did not result in days off. There is only a notation of shoulder pain on the record. The hospitalization for pneumonia is noted in 1983 as occurring on January 24 to 26, 1983 and there is a further notation that Mr. Butters' visited the doctor on February 2, 1983. We accept his evidence on his use of work days and days off. Mr. Butters conceded that there could have been other days when he was absent and the Union submitted that it was reasonable for the Board to apply some factor and suggested between 5% to 10% to account for his concession, and in light of the board possibly finding that~ 42 days is an error in recollection. The sick bank on January 1, 1977 was ibossibly rounded up. On the evidence, we conclude that Mr. Butters had 41.5 days accumulated as of January 1, 1977. We find that as Mr. Butters testified to, fifteen days are to be deducted from the maximum days 148.5 days that he could have accumulated between January 1, 1977 and March 31, 1986. Therefore the maximum number of sick leave credits that Mr. Butters could have accrued was 175 days. The employer did not dispute an arbitrary deduction to account for memory discrepancies. Therefore in the absence of records to the contrary, we accept the union's submission, that 10% is a reasonable factor to account for discrepancies in Mr. Butters' memory had award him 157.5 sick leave days that were not recognized in the employer's calculation of sick leave credits in the employer's letter of November 2, 1990. Mr. Young's Sick Leave Bank: Mr. Young had a very poor memory and had no independent knowledge of his sick leave credits, however, he had retained his pay stubs since he began his employment in January 1971. Employer's counsel had the opportunity to review all his pay stubs. Even though some records may have been missing, as no records to the contrary were produced by the e. mployer, we are prepared to accept them in support of Mr. Young's position. We accept that Mr. Young produced as complete records as he could. He introduced into evidence all the pay stubs that indicated sick time. Employer's counsel also put further pay stubs to him in cross-examination, which he had produced and was able to show that there were inconsistencies in the way the authors set out hours of pay, sick days. Page Mr. Young testified that he was paid out for 9 sick days and this was supported by his November 10, 1977 pay stub. There were inconsistencies in the quantum to be included in the bank as of January 1, 1977. We are of the view that the pay stub of November 197"/reflects accumulated sick leave of 9 days paid and is the best evidence of what was to accrued as of January 1, I977. Union's counsel prepared a summary of the sick days taken by Mr. Young for the purposes of argument. After reviewing Mr. Young's summary, the pay stubs and the evidence of Mr. Young, and the summary prepared by Union counsel, we agree that the Union counsel's summary reflects the evidence with the exception that we find that four further days should be · included as sick days taken, from the pay stub of January 4, 1985. Therefore, 54 sick leave days were used between January I, 1977 to March 31, 1986 (.50 days as set out in the summary and 4 additional days). We have reviewed the additional pay stubs that were introduced by Employer's counsel. Even though the pay stubs had been written by different people and had used different methods, they are employer documents and cannot now be disregarded, as suggested by Employer's counsel. Ater reviewing the pay stubs and heating the testimony we are of the view that the inconsistencies in the pay stubs did not mean that sick days were given and not recorded, but involved calculations for statutory holidays, wage rate changes and such, for example the calculated payment reflectedincreases in wage rates (October 10, 1980, April 8, 1983), statutory holidays (June 4, 1982) (November 19, 1982). Therefore we find and award Mr. Young's sick leave bank 94.5 days for the period to March 1, '1986 (based on 148.5 - 54 days = 94.5 days + 9 prior to January 1, 1977). As his documentation was fairly complete, we do not think it appropriate to make a further deduction for unaccounted absences. Mr. Fretz's Sick Leave Bank: Mr. Fretz did not keep his pay stubs but obtained records from his doctor. Mr. Fretz recalled the times he was off by reviewing his medical records with his wife.. He then used the medical records to refresh his memory. He had little independent memory, and what"he recollected stemmed from the medical reports. Where there was no documentation, his position was that he rarely took time off as Farmer would not allow it and Farmer would go to .the extent of Page 11 " calling him while he was in hospital, to ask him to come in. His wife corroborated his significant absences, and agreed that Farmer would call him in even if he was ill as there was no one else to work. She added that he was ill for flu and a couple of colds. Mrs. Fretz admitted that Mr. Fretz had an alcohol problem around 1986, but testified that'he would nevertheless attend work. Mr. Fretz testified that although he had been employed since 1972, he exhausted his accumulated credits one summer. Both parties agreed that his balance a.t January 1, 1977 was zero. After cross-examination Mr. Fretz agreed that he had used between 62 days for illnesses that had taken him off work for a fall from a ladder, food poisoning, a kidney stone and for chest pains and a further period of hospitalization. Ms. Marshall whose evidence has/he same limitations as with respect to Mr. Butters' absences supported his absence for the food poisoning. - After reviewing Mr. Fretz' evidence We find that there were further absences of five days for hurting his finger, five additional days when he sprained his ankle and had to keep it elevated in 1980 and two further days for x-rays to his foot, a day for a different occasion of abdominal cramps in July 1979, two further days,for further kidney stone problems for a tota/of a 15 additional days. Mr. Fretz often took the position that he was off work when the absences occurred. We cannot accept that would be applicable in every instance. We accept the union's submission that as Mr. Fretz' memory was not as good as Mr. Butters, that 15% should be deducted from the total amount to account for memory loss as it related to absences for absences for colds and flu. We therefore find and award Mr. Fretz 60,7 sick leave days (based_ on 148.5 days - 62 days admitted - 1'5 further days found by 'this board = 71.5, less 15% for unaccounted absences for illnesses). Mr. Caldwell's Sick Leave Bank: Mr. Caldwell was employed from November 1, 1981 and therefore the maximum days that he could have accrued was 79.5 days (53 months at 1.5 days per month). Mr, Caldwell's position is that he had an excellent attendance record, but concedes that he had missed two to three days per year in addition to three to four days for tonsilitis. The Union submitted that he was likely to have between 66.5 days and 80.5 days in his sick leave bank. Page 12 On the balance of probabilities we find that Mr. Caldwell was likely to have been absent on occasions that did not ~-equire medical attendances two to three times a year for ~vhich we' deduct 2I days. We have not deducted a percentage from Mr. CaldwelI, ~ his evidence was related to the number of days that he was absent, and not to a percentage of the total days accumulated. We further deduct four days for tonsil/tis. We therefore award him 54.5 days in his sick leave bank. (79.5 days less 4 days for tonsilitis tess 21 days for unaccounted absences for illnesses). Therefore we uphold the grievances and declare that the employer breached article 18.02 of the 1990 in its calculation of the grievors sick leave banks. In summary we award Mr Butters 157.5 sick leave days, Mr. Young 94.5 sick leave days, Mr. Fretz, 60.7 sick leave days and Mr. Caldwell 54.5 sick leave days. We do not believe that there should be any difficulty with the implementation of this decision, but in the event that them is we will remain seized to resolve any difficulties in implementation provided that a request is made of the Registrar within two months of the issuance of the decision to return the matter for hearing. Dated at North York, this 22nd day of September, 1996~~tx ' Belinda A. Kirkwood, Vice-Chairperson .~'. ..~ ? . ,~~' /' ! :J. Carruther$, Member / / I Dissene "Dissent Aetached" F~ Collict, Member DISSENT G.S.B. # 2017/90 - BUTi'ERS ET AL 'This Member is in agreement with the majority in this case that the Employer has an obligation to recognize sick leave credits accumulated by the grievors between January 1/77 and March 31/86. However, this Member does not agree with the finding as to the extent of these sick leave credits. This difference of opinion is based upon the weakness and 'unsatisfactory quality of the evidence upon which the Board's finding is based. Th~ evidence from which the finding was determined was as follows: 1. The four grievors in 1993 and 1994 gave evidence concerning the state of their health and their recall of absence for the period 1977 to 1986 (~ going back over a period from 8 to 17 years approx.) 2. The wives of the grievors testified as to thei___Er respective recollections of the absence of the?__[r spouses (self serving). 3. The grievors and their wives refreshed their memories concerning possible absences from medical notes obtained from the grievors' doctors.. (hearsay) 4. The evidence was hazy. The recollections associated with doctors, and in one case, an emergency hospital visit, were poor, 5. Grievors Yot~ng and Fretz stated that they had poor memories. Mr. Butters agreed that he could be wrong relative to some of his recollections. 6, In a number of cases the grievors could not recall why they had visited the doctor on various dateS, and certainly denied that they might have been absent as a result (with a concomitant utilization of sick credits). 7. Mr. Young produced pay stubs for the period in question (the other grievors were unable to do so). However, there were a number of discrepancies, in' the pay stub data. It also was obvious that recoriding practices had varied, 2 dependant upon those who had recorded the information on the pay stubs. ("Betty", a number of part time employees, the owner's daughter, otc.). 8. Lynn Marshall testified that she had recalled that the grievors seemed to be at work on a regular basis, and that they had few absences. However, it was apparent that although Ms. Marshall was a bookkeeper for the owner and that she also recorded pay stub information, she atso was an Ambulance Attendant at the same time and she worked on a 3 shift rotation. As she Admitted, there was no way that she could see her colleagues (the grievors) on a regular basis to determine their attendance. in the opinion of this Member, the onus_ is upon the Union to prove what sick dredits were available to the grievors versus those that were used. The Union is the moving party in this case and accordingly, the responsibility to prove its case lies with the Union. Clearly this has not been done; or, if it has been done, the evidence is hazy, is fraught with hearsay, and is not entirely convincing. The award in this case takes the position that it is the responsibility of the Employer to provide the records to substantiate attendance and absence. However, the Employer states that it has no records in this respect for the period in question; and, most importantly, both t.he Union and the Employer aqree that '?armor"' (the prior owner) did_ not keep satisfact_ory records. Certainly it was open to either party to subpoena "Farmer", but neither did se. (presumably for obvious reasons.) The end result is that the Board is left with unsatisfactory evidence concerning the extent of the claims made by the grievors. _This Board has accepted this ,evidence and, essentially, the amount of the claim, including the various reductions for any discrepancies. Given the nature of this evidence~ this position by the 'Board is no_..~t acceptable. tn the opinion of this Member,' this award should have found for the Union, directed the parties to negotiate a settlement satisfactory to both, with the Board remaining seized the event of no settlement. In the event that the parties returned to the Beard for a decisior~,' this Member, given the unsatisfactory nature of the evidence concerning the claim, would have awarded no more than 50% of the claim .proposed by the Union. F.T. Coflict