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HomeMy WebLinkAbout1991-0394.Nicol.95-10-04 i ~ GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 'l * .. I/t~r.:t3~t/~D~.~~, ~,iTE 2100, TORONTO, ONTAR~. M5G 1Z8 TELEPHONE/T~L~PHO~E: (4~ 326-~388 ~a~ ~~~~=.~ ' '~= ~=~'~ GSB ~ 394/91 OPSEU ~ 9tC661 IN THE ~TTER OF ~ ~RBIT~TION , ,~ ~ Under AF?5~- EOAROS THE CRO~ EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV~CE SETTLEMENT BOARD BETWEEN OPSEU (Nicol) Grievor - and The Crown in Right of Ontario (Ministry of Co.unity & Social Se~ices) Employer BEFORE J. McCamus Vice-Chairperson M. Lyons Me.er D. Montrose Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING August 22, 1991 2 This Grievance concerns an alleged violation of' Articles 19.4 and 19.5 of' the Collective Agreement which deal with the matter of entitlement to and the scheduling of lieu days in situations where a statutory holiday covered by Article 48 of the Collective Agreement coincides with an employee's scheduled day off. Articles 19.4 and 19.5 provide as follows: 19.4 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that daY, the employee shall be entitled to receive another day off. 19.5 Any compensating leave accumulated under sections 19.2 and 19.4 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off', it' requested one (I) month in advance. Article 48 deals with statutory holidays in the following fashion: 48.1 An employee shall be entitled to the following paid holidays each year: New Year's Day Good Friday Easter Monday Victoria Day Canada Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor. 48.2 Except as provided in section 48.3 when a holiday specified in section 48.1 falls on a Saturday or Sunday or when any two of them fail on a successive Saturday and Sunday, the regular Working day or days nex': following is a holiday or are holidays, as the case may be, in lieu thereof, but When such next following regular working day is also a holiday the next regular working day thereafter is in lieu thereof a holiday. Those employees whose work schedules are subject to rotating work weeks which include scheduled weekend work on a regular or recurring basis shall have the: Canada Day, Remembrance Day, Christmas Day, Boxing Day and New Year's Day holidays designated as July 1st, November 1 lth, December 25th, December' 26th and January 1st, respectively, and section 48.2 shall have no application tO these employees in respect of these holidays. Under Articles 19.4 and 19.5 then, where an Article 48 holiday coincides with an employee's scheduled day off, the employee will receive a lieu day to be taken at a time to be agreed or, failing agreement, in conjunction with his or her vacation or regular days off. Article 48.2, however, sets forth an arrangement which will avoid most such conflicts for employees who work the typical Monday to Friday work week. The next regular working day will invariably be substituted as the day off in lieu of the holiday. Employees who work on rotating schedules which includes weekend work, are exempt from this scheme. They al:spear to have, instead, some entitlement to an involvement in the scheduling of the lieu day secured by Article 19.5. 4 The present dispute arises in a workplace in which weekend work is scheduled on a regular or recurring basis. The Grievor is a Cleaner 2 at the Muskoka Centre, a residential adult facility operated by the Employer in Gravenhurst, Ontario. The facility is a continuous residential operation and cleaning staff are required to be present in some numbers every day of the year. There are two shifts of cleaners and they are scheduled on a rotating schedule. The normal work week runs from Monday through Friday with Saturday and Sunday as days off. A smaller staff works on the weekends. In order to cover weekend assignments, each cleaner on the Grievor's shift is required to work weekends, typically once every six weeks. It is alleged that the practice adopted by the Employer with respect to this feature of the schedule over several years has been that staff who are assigned to work on Saturday and Sunday are assigned the preceding Thursday and Friday as their days offwith the result that they take those two days off and then work seven days in a row. Counsel for the Employer did not dissent from the proposition that this is the continuing practice of the Employer . with respect to its regular scheduling. The particular facts giving rise to the present Grievance were as follows. The holiday in issue was Good Friday, March 29th. The Grievor had originally been scheduled so as to have days off on Saturday the 30th and Sunday the 31st. According to the Grievor, the Grievor was informed by her supervisor, on Tuesday, 5 March 26th that her schedule was to be changed in order to accommodate another employee's situation and that rather than having the 30th and 31st off she would have to work the weekend. She was also told that she was to take Wednesday the 27th and Thursday the 28th as days off. The result of the latter decision was that the Grievor would have a holiday on a Good Friday, rather than a regular day off, with the result that she would gain no entitlement to a lieu day which would be scheduled pursuant to Article 19.5. Counsel for the Employer :submitted that although the facts recounted by Counsel for the Union were substamially correct, the schedule for March 25th to the 31 st would have been posted the previous week. so that the Grievor might be said to have had informal notice of the schedule change by this means. Counsel for the Employer conceded, however, that official and direct communication of the change to the Grievor did not occur until the 26th, that is, the day before the first of the rescheduled days off. In essence then, the position advanced on behalf of the Grievor is that according to the regular scheduling practice, the Grievor's scheduled days offwould have been Thursday and Friday, the 28th and 29th, thus creating an overlap with Good Friday and that the Employer, by scheduling Wednesday and Thursday as the days off, improperly deprived the Grievor of the advantage, held out in Article 19.5, of being able to take a lieu day at an agreed point in time or in conjunction with a vacation leave or regular days off.' The remedy sought by the Union is the 6 granting to the Grievor of such a lieu day. The Employer responds by asserting the proposition that the scheduling of days off is a matter reserved to the Employer by Section 18 of the Crown Employees' Collective Bargaining Act, R.S.O. 1990 Ch. C.50 (the "Act") as one of the functions reserved.to the Employer in the following terms by Section 18(1): Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the fight to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of. equipment and classification, of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer-with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. In the Employer's submission, the ability of the Employer to schedule work, secured by Section 18, is untrammelled by the provisions of the Collective Agreement. More particularly, it is the Employer's submission that it is acting well within its authority in scheduling days off in such a way as to minimize or, indeed, 7 eliminate conflict between days off and stalutory holidays. The Grievor's scheduled days off, in the week in question, were Wednesday and Thursday. That is, in the Employer's view at least, simply the end of the matter. The Employer's position, in effect, is that the Employer is entitled to schedule a day off whenever it likes and, this being so, Article 19.4 would apply only in a situation where the Employer has allowed a conflict between a scheduled day off and an Article 48 holiday to occur. The employee's right to a lieu day scheduled in accordance with Article 19.5 would arise, then, only in a case where the Employer had determined to confer that right by permitting a conflict between a day off and an Article 48 holiday to occur. The Union's response to this line or argument, as one might expect, is that the Employer's view renders Articles 19.4 and 19.5 essentially meaningless, from a practical point of view. According to the Union, if the Employer's interpretation of the Collective Agreement is adopted, the Employer Can avoid granting to employees the benefits apparently conferred by Articles 19.4 and 19.5 by simply rescheduling scheduled days offin such a way as to avoid any conflict with Article 48 holidays. It is common to the position of the Employer and the position of the Union, of course, that the employee is entitled to an additional day offwith respect to the 8 statutory holiday. That is to say, both the Employer and the Union agree that on facts such as those in the present dispute, the employee is entitled to three days off, one day of holiday and two scheduled days off. The point of difference between the parties is that the Union asserts on the Grievor's behalf that the employee ought to have some involvement, pursuant to Article 19.5, in scheduling the additional day off whereas the Employer's view is that the choice of which day it will be is simply a matter of Employer discretion unless the Employer allows the employee to have an Article 19.4 lieu day by scheduling a conflict between a day offand the Article 48 holiday. The Employer seeks to draw support for this position from a line of previous decisions of this Board relating to the application of Articles 19.1 and 19.2, which deal in the following fashion with premium payment for work on a holiday. 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours wo?ked with,a minimum credit of seven and one-quarter (71/4), eight (8), or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee who works on the holiday shall receive either seven and one-quarter (71/4) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7I/4) or eight (8)hours as applicable, provided the employee opts for compensating leave prior to the holiday. 9 In Ferguson 78/82, the Grievor had originally been scheduled to work on a statutory holiday. Although timely notice was given of a schedule change which would not require the Grievor to work on the holiday in question., the Grievor challenged the rescheduling on the basis that the Employer's abilit3' to re$chedule was being improperly used as a device for depriving the Orievor of ibis entitlement to the advantages secured by Article 19 with respect to holiday pay. It was further alleged that the schedule was inconsistent with past practice in matters of this kind. The Board held that nothing in the Agreement conferred upon employees a right to work on a statutory holiday and that the alleged past practice was not sufficient, in the Board's view, to create an estoppel by conduct. In reaching this conclusion, the Board made the following observations with respect to the purposes of Articles 48 and I9 (at p. 8): "It is perhaps superfluous to add that the obvious purpose of Articles 47 (now 48) and 19 in the applicable agreement (and of similar provisions in many other agreements) is.to enable employees (a) to enjoy a statutory'holiday, if possible, without financial loss, and (b) if it is not possible to take the day off, then to be compensated by way of premium pay and another day off or the equivalent thereof. It was never the design of such provisions to guarantee that work and premium pay would always be available on a holiday. In Birse 338/83, 339/83, the Grievor challenged a last minute change of a work assignment relating to statutory holidays. On the initial schedule, the Grievor 10 was to work on April 1st (Good Friday), 2nd, 3rd and 4th (Easter Monday). The Grievor had been ill and returned to work on March 31 st. His supervisor indicated that he should simply take offApril 1st as a statutory holiday. He then worked on April 2nd and 3rd, but at some point during these two days he was told to take off April 4th as a statutory holiday. It appeared that his services were r~ot needed on either on the 1st or the 4th. The Grievor sought premium compensation under Article 19.1 as if he had worked on April 1st and 4th. The Grievance was denied. The Board placed emphasis on the Employer's right to schedule work under Section 18(1) of the Act in reaching the conclusion that the Employer is within its rights in altering the Grievor's work schedule in this way. Further, the Board concluded that compensation under Article 19. I is available only where the individual has, in fact, worked on a statutory holiday. The Board affirmed that the purpose of the. Article 19.1 scheme in compensating the Employee for work on statutory holidays at a premium level is to discourage the Employer from demanding such work unless it is either necessary or important to do so. Interestingly, the Board in Birse indicated that it viewed the Employer's conduct on these facts as a violation of the spirit of the scheme set forth in Article 19.1. The Board commented as follows (at p. 6): In sum, the grievance is denied. But it is necessary to express our feeling that the Ministry has violated the spirit of Article 19.1, though not its letter. The il grievor's long weekend was mined by thc short notice that his services were not needed on April 1 and April 4. And there appears to be no reason whatsoever for this short notice. The grievor could not plan to do anything on April 1 until March 31, when he was told not to work the next day. And then, management waited until April 2 or 3 to tell the grievor not to work on April 4. Unfortunately, the collective agreement cannot prevent this sort of last minute assignment, nor is it adequate to provide for premium compensation to someone in the grievor's s{tuation. Similar grievances were dismissed by the Board in McCormick 386/81, Sim 1293/87 and Bowes 701/85, 540/85. In our view, this line of authority is of limited assistance in the 'present circumstances. Although these decisions serve to emphasize ~e Employer's statutory right to schedule work under Section 18 of the Act, there is a significant difference between the entitlement asserted in those cases and that asserted in the present case. The entitlement asserted in those cases - a right to work on statutory holidays - is nowhere guaranteed in the Collective Agreement. In the present case, however, the right asserted - employee participation in the scheduling of a lieu day where a scheduled day off and a statutory day holiday coincides - has such a foundation in Article t9.5. Employees may well wish to work on statutory holidays. As these cases indicate, however, the Collective Agreement does not purport to confer the entitlement to do so. In the present case, however, the 12 understandable desire of employees to participate in the scheduling of lieu days does appear to be the subject of an entitlement of some kind in Article 19.5. The main thrust of the Employer's argument, however, is that the employees' rights under Article 19.5 are not engaged until the Employer has exhausted its right to schedule days offunder Section 18 of the Act and that this right is not exhausted in the present circumstances. That is to say, the Employer argues that Article 19 has no impact whatsoever on the Employer's right to schedule days off. Provided the Employer has complied with the notice provisions in the Collective Agreement relating to the changing of a schedule, there is nothing to prevent the Employer from scheduling or rescheduling a day off in such a way as to avoid a conflict between a day off and a statutory holiday. In short, the Employer argues that it is acting entirely within its rights, under Section 18 of the Act, in rescheduling a day off, even at a rather late point in time, in order to avoid a conflict between a day off and a statutory holiday. Hence, on the present facts, the employee's entitlement under Articles I9.4 and 19.5 does not arise. Just as there is no right conferred by the Collective Agreement to work on statutory holidays, neither is there any right conferred to particular days off. The Collective Agreement, cannot, in the Employer's view, be properly interpreted in such a way as to restrain the Employer's ability to schedule days off under Section 18 of the Act. 13 The Union's response to this line of argument is to argue that the Section 18 capacity of the Employer to schedule days off is not completeIy untrammelled. More particularly, the Union submits that in exercising the discretion to schedule days off, the Employer is limited by a duty to act in good faith and that further, this standard of good faith requires that' the Employer not exercise its Section 18 rights in such a way as to defeat the evident purpose of particular provisions in the Collective Agreement. The possibility of arbitral review, on the basis of a good faith standard, of the exercise of the Employer's rights under Section 18 of the Act is, indeed, supported by a line of previous decisions of this Board. Thus, in Reitsma 93/89, a majority of the Board stated (at pp. 13-15): The Employer has further argued, in support of its preliminary objection, that the Board lacks jurisdiction to deal with the grievance as argued at this stage by the Union on the basis that it touches upon a question of' reorganization, this being an area of discretion secured to the Employer under Section 18(1)(a) of the Crown Employees Collective Bargaining Act ... The Employer submits that this legislation has the effect of prohibiting this Board from assuming jurisdiction to investigate the Employer's reasons for reorganizing the work place and reassigning work. While we are persuadedl that this is an area of management discretion which is normally beyond the purview of review in proceedings of this kind, we note that it is well established in the arbitral jurisprudence that "there is a general arbitral presumption that the right to reorganize the work force must not be carried out in bad faith, arbitrarily, or discriminatorily" (See Brown and Beatty, Carmdian l,abour Arbitratio~ 3rd ed., 1988 p. 5-25. Section 18(1)(a) of the Act, by 14 stipulating that a provision concerning management rights in this and in other areas shall be deemed to be included in every collective agreement covered by the statute, does not appear to preclude the application of jurisprudence of this kind. Indeed, it would be surprising if the intention of the legislature was to exclude review on such grounds. Accordingly, one would wish to find explicit language in the statute to that effect in' order to reach such a conclusion. For purposes of dealing with this preliminary objection, of course, it must be assumed that there is merit in the allegations of bad faith made by the Union. If, indeed, it were the case that an alleged reorganization were undertaken not for legitimate reasons but for the very purpose of denying an individual recall fights otherwise secured to an employee by Article 3.20.1 of the Collective Agreement, we are prepared to assume that this would be sufficient evidence of bad faith that it would confer jurisdiction on this Board to consider the grievance in question. See also Bousquet 541/90, 542/90, 543/90, to the same effect. It is urged on behalf of the Grievor that this proposition captures the present case. The Employer is exercising its Section 18 right in such a way as to defeat an advantage secured to employees by the terms of the Collective Agreement. Indeed, it is exercising its discretion in this way, or so it is alleged, solely for the purpose of defeating those rights. This, the Union argues, constitutes bad faith of a kind which, under the Re#sma test, is grievable. On the present facts, then, the Grievor argues that it is clear that the Employer's fight to schedule days off has been used for the exclusive purpose of t5 defeating employee rights under Articles 19.4 and 19.5. The Grievor argues that in the Muskoka Centre, the regularly scheduled days off for someone in the Grievor's situation would be Thursday and Friday. The rescheduling of the days off was plainly undertaken with a view to avoiding a conflict. No other explanation for the change has been offered by the Employer. The Grievor concedes that the Employer could reschedule a day off in order to avoid a conflict with a statutory holiday if the Employer was doing so for a reason, other than a desire to defeat the employee's entitlement under Articles 19.4 and 19.5. Thus, for 2', example, the Employer could reschedule for f'mancial reasons or to accommodate its needs for manpower, etc. In sum, the Union gives content to the notion that the Employer must exercise the Section 18 right to schedule in good faith by suggesting that it can only be exercised, consistent with Article 19, if it is exercised for some reason other than avoiding a conflict between what would otherwise, in the normal course of events, have been a regularly scheduled day off and a statutory holiday. The Employer cannot, in the Grievor's view, reschedule a day off solely for the purpose of avoiding such a conflict and the resulting involvement of the employee in scheduling a lieu day. We agree with the submission made on the Grievor's behalf, based on 16 Reitsma and Bousquet, that the Employer is subject to a good faith standard in the exercise of its Section 18 right to reschedule. And we further agree that some content can be given to the notion of "good faith" by examining Articles 19.4 and 19.5. We do not agree, however, with the Grievor's submission that any scheduling by the Employer which is designed to avoid a conflict between what would normally be a day off and a statutory holiday is, by definition, bad faith and therefore grievable. It is urged on behalf of the Grievor, in effect, that if there is to be any variation of regularly scheduled days off in order to avoid such conflicts, the Employer cannot arbitrarily or unilaterally determine what the variation will be. The normal schedule can be varied only with the employee's involvement or consent under Article 19.5. In our view, this interpretation represents an indefensibly large intrusion on the Employer's Section 18 right to schedule and cannot be sustained. In reaching this conclusion, it is of some importance to note that the Collective Agreement itself does not manifest a general hostility to the notion that a conflict between what would normally be a regularly scheduled day off and a statutory holiday can be resolved in an arbitrary manner. On the contrary, Article 48 plainly adopts an arbitrary solution to the pOtential for conflict between regularly scheduled Saturday and Sunday days off and statutory holidays by stipulating that in such cases the next regular working day will be taken as a day 17 off in lieu of the statutory holiday. No participation by the employee in reaching a decision as to when the lieu day should occur is envisaged by this arrangement. Although the choice of lieu day is arbitrary and fixed, the employee has plenty of advance notice of this arrangement .and can make appropriate plans to enjoy the resulting three day weekend. The existence of this feature of Article 48 strongly suggests that the evil named at by Articles 19.4 and 19.5 is not a lack ofemployee involvement in the scheduling of lieu days as a general matter, but, rather, lack of employee involvement in the scheduling of lieu days where they arise on an ad hoc basis with very little notice. The problem which Articles 19.4 and 19.5 appear to be designed to resolve, then, is not the general problem of Employer scheduling of days off so as to .avoid conflict with holidays, but, rather, the problem of ad hoc and short term scheduling of what are, in effect, lieu days in a way .which does not take into account employee preferences. Against this background, .the proper interpretation of the scope.' of Articles 19.4 and 19.5 and their relationship to theiEmployer rights secured by Section 18 of the Act appears to be as follows. The right of the Employer to schedule and reschedule employee days off is an established feature of the rights conferred upon the Employer by Section 18 of the Act. The Union does not question the Employer's right to reschedule in good faith for reasons other than the avoidance of a conflict between a day off and a statutory holiday. Further, it is our view that 18 in principle, the scheduling of days off in such a way as to avoid conflict between scheduled days off and statutory holidays is an exercise the Employer can properly undertake in the exercise of its Section 18 rights conceming scheduling. On the other hand, where the Employer wishes to reschedule a day off, on an ad hoc basis and on the basis of unreasonably short notice, in order to avoid such a conflict, it can in our view only do so on the basis of the scheme set out in Articles 19.4 and 19.5. Quite understandably, the Agreement attempts to ensure either that the Employer organizes its schedule in such a way as to avoid conflict in circumstances where the employee has reasonable advance notice of this arrangement or, if the Employer decides to reschedule on relatively short notice in order to avoid such a conflict, that the rescheduling is done in a way which complies with Articles 19.4 and 19.5. In this way, the Agreement attempts to ensure that employees will be able to derive the advantages which normally flow from advance notice of the existence of a sequential combination of days off and a statutory holiday. In short, the evil aimed at by Articles 19.4 and 19.5 in our view, is the rescheduling of days off by the Employer in a way which frustrates the employee's ability to plan to take full enjoyment from the cheerful circumstance that-the employee's scheduled days off are coupled with a statutory holiday. 19 It is neither necessary nor desirable in our view, to interpret Articles 19.4 and 19.5 as leading to the conclusion that the Employer can never schedule or reschedute days off in such a way to minimize conflict between such days off and statutory holidays. Articles 19.4 and 19.5 are not, in our view, designed to prevent the Employer from scheduling or, indeed, rescheduting days off in such a way as to avoid conflict. Again, the apparent purpose of these Articles is to ensure that where the Employer does so on an ad hoc and short-term basis, the e. mptoyee will have some involvement in the selection of an appropriate lieu day. The interpretation contended for by the Employer ~ to the effect that Articles 19.4 and 19.5 are applicable only where the Employer has not rescheduled so as to avoid a conflict - is unacceptable, in our view, because it leads inescapably to the conclusion that Articles 19.4 and 19'.5 have little or no application, from a practical point of view. The employee would have a fight to be involved in scheduling a lieu day only in a case where the Employer decided t0 confer that benefit by intentionally scheduling a conflict between a day off and a ihotiday. We prefer an interpretation of these Articles which gives them some: content or practical impact. It must be asked, then, whether the facts of the present grievance give rise to a violation of what we understand to be the proper interpretation of the scope 20 of Articles 19.4 and 19.5. In our view, they do. This is a situation in which the employee was employed in circumstances where there was a stable understanding of which days were regularly scheduled as days off. In the normal course of events, Saturday and Sunday were the regular days off. In the event that one was scheduled to work on the weekend, Thursday and Friday were the regular days off. In such circumstances, where an employee is advised the day before, or, indeed, the week before that what would otherwise be a day off has been moved in order to avoid conflict with a statutory holiday, Articles 19.4 and 19.5 have been violated. On the present facts, it appears obvious that the Grievor's days off were scheduled for Wednesday and Thursday for the sole purpose of avoiding a coincidence of a day off and the Good Friday holiday. Both the spirit and, in our view, the letter of Articles 19.4 and I9.5 require that, in such circumstances, the Employer collaborate with the employee in determining an appropriate lieu day, failing which the employee can exercise rights under Article 19.5 to select an appropriate day. It may be objected, by the Employer, that our interpretation of Articles 19.4 and 19.5 appears to envisage that greater notice is required for this type of rescheduling change than for other types of rescheduling changes. This, in our view, is not a defect of our interpretation but rather the necessary implication of the scheme set forth in these Articles. 21 It may be furthered objected by the Employer that neither the Article, nor our interpretation of it, offers clear guidance as to how much advance notice for this kind of rescheduling must take place. In our view, the only answer to this objection can be that the rescheduling will be caught by Articles 19.4 and 19.5 only if the notice is unreasonably short. Whether or not the notice of rescheduling is unreasonably short will depend on the !particular employment context and the expectations generated by the Employer's scheduling practices as a more general matter. We are satisfied, however, that .in the present context, where there is a stable expectation with respect to the scheduling of days off, notice of one day or one week of a rescheduling change for this purpose is not notice of reasonable length. It is indeed, in our view, difficult to image circumstances where notice of at least two weeks of such a rescheduling ,would not be necessary in order to avoid the application of Articles 19.4 and 19.5.! One further point taken by the Employer should be considered. In the Employer's view, it is of considerable significance that Article 19.5 refers specifically to the notion of "regular day(s) off", whereas Article 19.4 refers simply to the concept of a "scheduled day oW'. The absence of a reference to "regularly" scheduled days off in Article 19.4 leads, in the Employer':; submission, to the conclusion that Article 19.4 is deliberately drafted in such a way as to preserve the Employer's right to irregularly reschedule days off in such a way as 22 to avoid a conflict between days off and statutory holidays. We do not find this submission persuasive. In the first place, Article 19.4 needs to be drafted in such a way as to avoid reference to "regularly" scheduled days off for other reasons. If Article 19.4 were not drafted in this fashion, it could not apply in a case where a conflict arose between a day off which had not been regularly scheduled and a statutory holiday. If it is to apply in such a case - as surely would be the intention of the parties - the word "regular" could not appear in Article 19.4 Hence, we do not find the absence of the term "regular" in 19.4 to have the significance contended for by the Employer. More importantly, for present purposes, when one reads Article 19.4 together with 19.5, the scheme in its totality does appear, to impose, in our view, some limitation on the ability of the Employer to reschedule days off so as tO avoid a conflict.. As we have indicated, the limitation is that the Employer cannot reschedule on unreasonably short notice for the sole purpose of avoiding the possibility of the employee exercising rights under Article 19.5. For the foregoing reasons, then, the present Grievance enjoys success. The employee is entitled to the relief sought, the granting of a lieu day in substitution for the rescheduled day off imposed by the Employer. 23 The Board remains seized of this matter to deal with any difficulties encountered by the parties in the implementation of this Award. Dated at Toronto, this 4t:hday of Oct. oher, !995. 'J. Mc~us, Vi e~2hairpe..rson · I concur/fl M. Lyons, Member D. Montrose, Member