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HomeMy WebLinkAbout1992-0814.Elford&Sabourin.94-01-14 'i< ( ( ONTARIO EMPLOYES DE LA COURONNE (..'. CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT !;SOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIM~E/TE~ECO~E (416) 326-1396 814/92, 815/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Elford/Sabourin)' Grievor - and - The Crown in Right of ontario (Liquor Control Board of Ontario) Employer BEFORE: W Kaplan Vice-Chairperson J C Laniel Member M O'Toole Member FOR THE G Caroline GRIEVOR Counsel Caroline, Engelmann, Gottheil & Lynk Barristers & Solicitors FOR THE S Bird EMPLOYER Counsel Emond Harnden Barristers & Solicitors HEARING November 4, 1993 December 8, 1993 ~ 2 t.~ Introduction This case concerns the April 16, 1992 grievance of Michel Sabourin and Gary Elford, two long-serving LCBO employees The grievors allege a violation of Articles 8 10 and 8 11 of the Collective Agreement. The case proceeded to a heanng in Ottawa at which time evidence and argument were heard It is useful to set out the Collective Agreement provisions at issue in this case 810 Provided the Employers' operation are not disrupted approval will be given to the preference of employees in scheduling of vacation and no change will be made in such vacation schedule except by mutual agreement between the Employers and the employee. 8 11 On the basis of seniority, approval will be given to employee's request to observe at least two (2) consecutive weeks of vacation which may occur during the period from the Monday nearest May 1 st to the first Saturday in October, provided the Employers operations are not disrupted Requests made after March 31 st Will be considered on a first come, first served basis This section applies for vacation purposes only and store managers within the bargaining unit are excluded from the seniority requirements in this section only Background to the Dispute A number of facts are not in dispute The grievors work at the Ottawa warehouse There are three main warehouses across the province, located in Ottawa, Durham and London. Each of the grievors has more than twenty I years seniority and each is entitled to five weeks of vacation Both grievors have children and want to take their vacations during the summertime At the Ottawa warehouse, a system has developed, about which more will be said below, pursuant to which employees bid for their summer vacations in two week blocks based on seniority Each spring each t' 3 ~ employee chooses two weeks of summer vacation Once all employees have had the opportunity to do so, ,employees entitled to additional weeks of vacation, again on the basis of seniority, bid for those additional weeks. Until the spring of 1992, both grievors, in conformity with this system, obtained the summer vacation weeks they wished When the grievors failed to obtain the summer vacation weeks they wished in the spring of 1992, the instant grievance was filed The Union's Case Evidence of Michel Sabourin Mr Sabourin began to work at the Ottawa warehouse in 1970 as a casual employee, in 1974 he joined the permanent ranks He is currently classified as a Warehouseperson 4 There are approximately forty employees in the warehouse bargaining unit.~ With the exception of one Warehouseperson 3 and various fore persons, all of the employees are classified as Warehouseperson 4's. There are also- a number of casual employees, and their numbers vary depending on season and other factors. Mr Sabourin testified about the nature of his job, and his evidence was to the effect that his duties and responsibilities could be performed by any of the other employees and, in fact, when Mr Sabourin is away, either off sick or on holidays, this is,exactly what takes place While the Ottawa warehouse does not service as many liquor stores as it has in the past, Mr Sabourin is not aware of any layoffs or of any reduction in the use of casual staff \ In 1992, Mr Sabourin was eligible for five weeks of vacation As already ) indicated, summer vacation weeks were allotted in rotation with the most senior employee choosing two weeks first. The summer vacation weeks are indicated on a large sheet covering the vacation period which begins in May ----- ~ ) I 4 ~ and ends in October Mr Sabourin testified that until the March 1992 selection for the 1992 summer vacation he generally obtained the vacation wee~s he wished On at least one occasion he obtalOed four weeks of vacation in July and August. According to Mr Sabourin, one reason why he always got the weeks he wanted was because the employer allowed between five ~nd eight employees to be away at the same time, and, in practice, this meant that there were sufficient slots available on the vacation sheet for him to exercise his seniority in order to obtain his vacation preferences When Mr Sabourin first began work at the warehouse he did not get any holidays in July or August even though he was entitled to three weeks of' vacation after becoming a permanent employee It took some years for Mr Sabourin to build up enough seniority to obtain vacation entitlement in July or August, although he could, from the outset! take his vacations between May and October Mr Sabourin testified about a meeting which took place in the lunch room, around 1 985 The exact date of the meeting is not material Suffice it to say that there was an agreement between the employees and the employer that all employees, regardless of seniority, should be entitled to at least two weeks vacation in July or August. July and August, for obvious reasons, are the preferred vacation months for many employees Mr Sabourin testified that he felt that vacations should be allotted according to seniority, but since sufficient numbers of employees, usually eight, were allowed off at the same time, the system did not negatively effect him. Mr Sabourin testified that he has two children aged four and five It costs I~ 5 .. $200 00 per week to pay for their childcare when they are not in school, and in order to avoid this expense, Mr Sabourin wishes to exercise his senionty rights to take- all of his vacation in July and August. In 1992, he attempted on the first round to choose four vacation weeks at once, but the employer would not allow him to do so Instead, Mr Sabourin choose two weeks of ..vacation in July On the second round, he sought to select the first week of September, but that week was filled as was all of July and August. In the end, Mr Sabourin chose one week in May He testified that all the spots were filled because the employer was only allowing four employees off at anyone tIme Mr SabQunn told the Board that employees junior in seniority to him ended up with vacation weeks he wished and that that had never happened before. - Cross-Examination of Mr. Sabourin In cross-examination, Mr Sabourin agreed that he had tried in the past to choose four weeks of summer vacation on the first round, but that the employer had never allowed him to do so He also agreed that the practice, as described above, of each employee being limited to two weeks on the first round, was well-known to all employees and some of these employees were union stewards~ Mr Sabourin agreed that the number of casual employees has decreased in recent years, and that several permanent employees have retired and have not been replaced Mr Sabourin was asked some questions about his early years at the warehouse, and he reiterated his earlier evidence that he initially was I unable to take his vacation when he wished He agreed that in recent years, while he was able to get the vacation weeks he wished, junior employees also would take their vacations at the same time The reason why this " 6 .. could occur was because of the number of people the employer allowed to take vacations at any given time Mr Sabourin was not involved in any of the employer's planning or production decisions Evidence of Gary Elford Mr Elford is one of four or five forepersons in the bargaining unit. When Mr Elford is away sick or on vacation, his duties are performed by one of the other forepersons or by a warehouseperson 4 When Mr Elford first began work at the warehouse he was eligible for three weeks annual vacation Mr Elford testifi~d that vacation weeks were chosen on the basis of seniority, i and there was no guarantee that any employee would obtain two weeks of vacation in the ~rime summer months as the senior employees would select all of their vacation at once Mr Elford worked for several years before he was able to obtain summer vacation in July or August. According to Mr Elford, in the mid-1980s an employee meeting took place and an arrangement was reached whereby every employee would obtain at least two weeks of vacation in July or August, Mr Elford testified that this suggestion was made by members of management and the employees generally agreed to go along with it. Mr Elford did not have any quarrel with this new system as he was relatively senior by that time Moreover, when introduced, eight employees were allowed off at once, and this meant, in practice, that he was able to obtain the vacation weeks he wished Mr Elford testified( that no one in management has ever approached the employees about changing the system. In 1992, Mr Elford chose two weeks of summer vacation on the first round I However, on the second round there was only one week left open in July and I August, and it was not one of the two weeks that Mr Elford wished " I ~ I 7 I ... Cross-Examination of Mr. Elford r In cross-exammation, Mr Elford was asked about an apparent discrepancy between his evidence and that of Mr Sabourin In brief, Mr Elford testified that prior to the 1985 employee meeting, senior employees selected all of their vacation at once, while Mr Sabourin testified that employees were restricted to two weeks on each round Mr Elford maintained the selection was as he indicated, and he reiterated his evidence that the two week restriction was introduced in 1985 on the suggestion of the employer Mr I Elford agreed that as a result of that meeting, everyone who wanted two weeks vacation in July or August was to be accommodated He also agreed that since at least the time of that meeting, there has been a consistent , practice of restricting vacation selections to two weeks on the first round The Employer's Case Evidence of Ken Smyth Mr Smyth testified on behalf of the employer He is the warehouse manager and has occupied that position since February 1987 He has been an LCBO employee for more than twenty-five years He testified that from at least 1 980 on, employees were limited to taking two weeks of vacation between May and October on their first bid, and that employees bid on the basis of seniority According to Mr Smyth, an internal LCBO report was published in 1 984 and this report identified a serious problem in employee morale One of the reasons why morale was low was because junior employees were not obtaining vacations in the prime summer months After this problem was identified, a meeting with employees at the Ottawa warehouse was held and , it was agreed that as many employees as possible would be given (at least two weeks of vacation in July and August. If, after the first round, some vacation slots remained open, employees with outstanding vacation ----- ------- , 8 " entitlement could bid for fhem on the basis of senionty in a second round Mr Smyth testified that he has discussed this practice with his ( counterparts at the other warehouses, and he has been advised that they too allocate vacations in this way Mr Smyth is of the view that this practice is both fair and consistent with the Collective Agreement. Insofar as the present grievance is concerned, Mr Smyth advised the Board that beginning around the winter of 1991-1992 certain administrative changes occurred at the Ottawa warehouse Mr Smyth submitted a budget, ~but it was returned to him with the instruction to further reduce costs It was decided, among other things, to reduce the use of casual employees by approximately 30% and to allow the permanent staff to decline through attrition Overtime was completely eliminated. In the result, when it came time to schedule summer vacations, Mr Smyth could not, as in 1985 and subsequent years, allow eight employees to be off at anyone time The number of employees allowed off was reduced to four, and as indicated above, this reduced the number of available vacation slots and led ultimately to the grievance in this case Mr Smyth testified that he would have gone over budget if he had allowed more people to be away at one time during the summer month as additional staffing would have been required Cross-Examination of Mr. Smyth In cross-examination, Mr Smyth insisted that between 1980 and 1985 employees were limited to two weeks vacation in the prime summer months on the first round. Mr Smyth identified recent budget cuts as the cause of the problems in this case, and he testified that because there were previously fewer budget constraints he could allow more people to take 9 "', vacations at the same time and simply use casual help, if necessary, to fill the breach. In the result, the grievors could, as they had testified, obtain what vacation weeks they wished That was no longer possible, and this is why the grievors did not, in March 1992, obtain their desired vacation weeks' While Mr Smyth had identified in his examination-in-chief the management changes introduced in 1991-1992 as the proximate cause of the reduction in the number of employees allowed to take their vacations at anyone time, in cross-examination he testified that he became increasingly accountable for his budget as early as 1989 or 1990, and that the arrangement whereby all employees received at least two weeks of vacation in July or August was effectively discontinued at that time He noted, however, that because of attrition and because not all employees take summer vacations, a reduction in the number of employees allowed off did not necessarily or immediately result in the grievors and other employees not obtaining the vacation weeks that they wished Indeed, the grievors continued to obtam their preferred vacation weeks until 1992 Mr Smyth testified that he was not aware of any employee complaints with respect to vacation entitlement until the instant grievance was filed. He told the Board that the only information employees are given is how many employees are to be allowed to take vacations at any given time during the summer season Mr Smyth agreed that the reduction in the number of employees permitted to be absent on vacation at anyone time was not accompanied by any meeting, consultation or vote of all of the employees with respect to the implications of this change Moreover, no consideration was given to the implementation of any alternative system 10 .' .Re-examination of Mr. Smyth In re-examination, Mr Smyth was asked why management held a meeting with employees in 1985 but did not do so with respect to the changes introduced between 1989-1992 He testified that, the employees were effectively advised of these changes through notification of the number of employees who were to be allowed off at anyone time Evidence of John Crupi Mr Crupi testified He told the Board that he has worked at the warehouse ) since 1974 and is currently the General Foreman Although no longer a member of the bargaining unit, he was one from 1974 to 1990 Mr Crupi \ testified that it was his recollection that beginning in 1975, employees selected their vacation in two week blocks between May and October This selection was made by seniority and employees who still had vacation entitlement after the first round would exercise their entitlement, again on the basis of seniority, in a second round Mr Crupi testified that all employees were aware of this practice, and he identified a number of union zone representatives and stewards who were personally familiar with it. He also testified that it is, his understanding that vacations are allocated at the other warehouses in the s~e manner as at the Ottawa warehouse Cross-Examination of Mr. Crupi In cross-examination, Mr Crupi testified that on one occasion,because of a special request, he got four weeks off in a row in July and August. On two or perhaps three other occasions he has received two or three weeks vacation in the prime period Mr Crupi was at the 1985 meeting at which vacation entitlement was discussed He testified that a problem with employee morale was identified and it was agreed that all employees could ..J 1 1 >- have, if, they wished, two weeks of vacation in July or August as a means of alleviating that problem Mr Crupi then had about ten years seniority,and he testified that he thought that the junior employees should get two week$ off in July or August, but that in agreeing to this he was not undermining his own entitlement given his seniority at that time The evidence having been completed, the case proceeded to argument. Union Argument Union counsel began his submissions with a review of the evidence It is not necessary to rehearse this evidence in detail Suffice it to say, that whether employees were allowed to pick all of their vacation weeks on the first round prior to the 1985 meeting, after that meeting the evidence established that they were limited to two weeks in July or August on the first round In the union's view, one key element of the 1985 arrangement was that eight employees were to be allowed off at any,one time, and this was necessary so that the seniority rights of the more senior employees could be protected. It also explains, union counsel suggested, why the senior employees agreed to it, and he noted that the evidence of at least one grievor and Mr Crupi was to this effect. Union counsel argued that the evidence clearly establishes that no other arrangement has ever been put to the employees and that until 1992 the grievors were able to obtain the vacation weeks they wished and in that way take advantage of their seniority Whatever the explanation, (and union counsel referred in passing to some evidence of declining numbers of employees and whether certain classifications of employees were considered in the number of employees to be allowed off at anyone time) I 1 12 the fact of the matter Wps that no problem presented itself until 1992 when the grievors CQuld not obtain the vacation weeks they wished, and a / grievance was filed in the result, While the employer's evidence was to the effect that it ceased "guaranteeing" employees two weeks vacation in July or August in 1989, union counsel pointed out that the employees were never advised of this, nor did they become aware of any change to their preexisting entitlements. No meeting or vote was held to discuss the changes to either the policy - itself or to the number of employees who were to be allowed off on vacation at anyone time Nor were any alternatives explored However, as already noted, no matter when the changes took place, or what the explanation for them is, no issue between the parties arose until 1992 At that time the, issue was squarely joined because it was at that point that the grievors could not take advantage of their seniority In the union's submission, the grievors are entitled to take all of their vacation when they wish subject to two limitations set out in the Collective Agreement. First, that their selections, and those of other senior employees, do not deprive other bargaining unit members of their Collective Agreement entitlement to , at least two weeks vacation in the May through October vacation period And second, that there are no valid operational reasons precluding employees from taking their vacation (it a time preferred by them. Counsel argued that Articles 8 1 0 and 8 11 must be read together as they \ set up a scheme the thrust of which is to accommodate employee wishes. In counsel's view, these provisions not only protect the interests of Junior employees by guaranteeing them at least two weeks vacation during the, I " 13 < summer vacation period provided that the employer's operations are not disrupted, they also recognize -the interests of more senior employees by establishing a scheme whereby their wishes are given preference provided, once again, that the employer's operations are not disrupted Counsel took the position that by restricting the employees to choosing two weeks vacation in July and August on the first round when the Collective Agreement sets out a much longer vacation period, the employer was amending and violating that agreement. The union did not dispute that it was within the employer's management rights to determine the method of implementing vacation scheduling, but argued that that method must conform to the basic requirements of the Collective Agreement. In the instant case, that meant it could not interfere, as it was doing at the Ottawa warehouse, with seniority rights Counsel argued that the employer must establish a method which aI/owed employees to provisionally choose all of their vacation on the basis of seniority, following which the schedule would be reviewed so as to ensure that all employees ended up with at least two weeks of vacation between May and October provided, of course, that operational requirements did not dictate otherwise In counsel's view, the employer's refusal to allow senior employees to choose more than two weeks of vacation at a time had nothing to do with ensuring that the employer's operations were not disrupted and something to do with its sense of what was fair to junior employees In counsel's submission, and various cases were cited in support of these propositions, if the employer wishes to rely on its operational requirements so as to interfere with employees selecting their vacations on the basis of seniority ~ 14 > and preference, it was in9umbent upon it to show some substantial operational impact. Counsel submitted that there was no evidence of operational disruption adduced in this case Moreover, the fact that the employer neither considered nor explored any alternative systems was, in the union's opini9n, further evidence that operational considerations were not at issue Counsel argued that the employer in this case was eroding the grievors' seniority rights, and doing so in a manner inconsistent with the Collective Agreement This erosion was established by the fact that junior employees ended up obtaining vacation allotments desired by senior employees thus depriving them of the opportunity to exercise their seniority rights. While the employer may want to treat employees equally insofar as vacations are concerned, that wish, counsel argued, cannot be allowed to result in a violation of the Collective Agre~ment and its negotiated terms which give benefits to senior employees. In anticipation of an employer argument that the provisions in question were ambiguous and that the past practice of the parties provided assistance in their interpretation, counsel argued that the conditions for the reception and use of evidence of past practice set out in Re Int'l Assoc. of Machinists. Local 1740 and John Bertram & Sons Co. Ltd, (1967) 18 L.A.C. 362 (Weiler) and other cases had not been met, Counsel pointed out firstly that the articles at issue do not lend themselves to two or more interpretations, secondly, that the eVIdence made it clear that the employer and the employees were working under different assumptions as to the terms and duration of the agreement reached at the 1 985 meeting, thirdly, that there was no acquiescence by the employees because they were ": 15 ~ agreeing to different things and were, moreover, unaware of the changing employer practices, and fourthly, that the agreement itself was a side deal that did not involve the knowledge or acquiescence of appropriately senior trade union officials although individual union members were involved In all of these circumstances, the union argued that Articles 8 10 and 8 11 should be given their plain and clear meaning With respect to an anticipated employer estoppel argument, the union took the position that the evidence clearly established that the grievors and other employees never acquiesced in any practice or agreement that denIed them the benefit of their seniority It was significant, in this regard, that the grievors agreed to the changes proposed by management only because eight employees were to be allowed off at once This ensured that they could take advantage of their seniority rights and obtain their preferred vacation entitlements When that result changed, a grievance was immediately filed and this was further evidence, in the union's view, that the conditions precedent for an estoppel were not present. The union argued that practices which conflict with the clear meaning of a collective agreement cannot be relied upon unless they give nse to an estoppel, and there was no evidence establishing an estoppel in thiS case Indeed, union counsel suggested that the only possible estoppel present in this case was against the employer and to the effect that the 1985 agreement required the employer to allow eight employees to take their vacations at anyone time However, even assuming the Board found that an estoppel did at one time exist, by 1989 at the earliest and 1992 at the latest, any claim to an estopp~1 would have expired, union counsel suggested, because that ~ 16 .. estoppel was based on an agreement between the employer andl the employees, one of the terms of which was that at least eight employees would be allowed to take their vacations at the same time The- evidence \ was crystal clear, from both union and management witnesses, that senior employees only went along with the arrangement because sufficient employees were to be allowed off on vacation at the same time with the result that those senior employees still obtained the advantage of their seniority When the employer unilaterally breached that agreement, any claim to an estoppel, union counsel argued, was over and even if the employer could at one time rely on the agreement to prevent the grievors and employees from taking advantage of the terms of the Collective Agreement, that was no longer so As soon as the employer changed ,its practice, the employees were entitled to revoke their acquiescence and thereby avoid the consequences of the application of the estoppel doctrine Moreover, union counsel argued that there was no prejudice in bringing the ) practice to an end as there was plenty of time between the date of the , hearing and next summer to allow the employer to devise a new method of allocating vacations that was in conformity with the Collective Agreement. \ In conclusion, union counsel asked the Board to Issue a declaration to the effect that the Collective Agreement had been breached and requiring the '~ employer to devise a vacation allotment system that recognized the right of employees, on the basis of seniority, to select their preferred vacations during the summer vacation period subject only to the requirement that all employees obtain at least two weeks of vacation and that the employer's operations not be disrupted ~ ,0 .- 17 Employel Argu~ent Employer counsel began his submissions with the observation that he did not disagree with the general principles of law advanced by the union He did, however, disagree with the union's charactenzation of the facts and the application of generally accepted legal principles to those facts. Turning to the language of the Collective Agreement, counsel argued that Articles 8 10 and 8 11 must be read in tandem, and while Article 8 10 indicates that employee preferences m.ust be considered in scheduling vacations, those preferences are subject to the requirement that the employer grant each employee at least two weeks vacation in the vacation period These preferences, counsel argued, are further subject to an overriding proviso that vacations will only be scheduled subject to the employer's operations not being disrupted In counsel's view, the number of people the employer allowed off was clearly in the nature of an operational requirement. And that being so, there was, on the facts of the instant case, no Collective Agreement violation Assuming, however, that the language of the provision was found to be ambiguous, counsel argued that this was an appropriate case to consider evidence of past practice and, indeed, suggested that this evidence was of assistance both in identifying the ambiguity and as an aid, once that ambiguity was identified, in the interpretation of the Collective Agreement. Counsel argued that the past practice revealed the intention of the parties to administer these Collective Agreement provisions in t~e manner impugned by the union in this case Even if there was no ambiguity, however, the past practice established, in / ,. 'i 18 the employer's view, an estoppel which could be relied upon for the duration of the Collective 1 Agreement. Counsel noted that with the exception of Mr Elford, all of the witnesses testified that both before and after the 1985 meeting, employees were restricted to choosing two weeks of vacation on the first round, and that this practice was known to all employees, some of whom held positions in the local union In counsel's view, this evidence clearly established a practice that was arguably at variance with the Collective Agreement, and he pointed out that this practice persisted through the negotiation of successive Collective Agreements Counsel pointed out that the employer does not need the consent of the employees to schedule vacations in such a way so as to ensure that its operations are not disrupted, and argued that there was no dispute in the ( evidence that the reduction in numbers of employees allowed off on vacation at anyone time was perfectly legitimate The fact of the matter is that the budget would no longer permit the same number of employees to 1 take vacations in the prime summer months as had previously been the case In counsel's submission, the 1985 agreement ended in 1989 I Counsel agreed that in 1989 the union might have had an estoppel claim. It did not,~however, have an estoppel claim in 1992 It was the employer which had such a claim, counsel suggested, because the employer had been interpreting and applying the Collective Agreement in a particular way, and that way was known to every employee Very simply, in the employer's view, the practice of restncting employees to selecting two weeks / vacation on the first round has been in place since 1974 and has remained in place through the negotiation of several collective-, agreements Counsel I I pointed out that even the 1985 agreement, for whatever it was worth, did ~.. 19 . not change the fundamental practice known and acquiesced in by the employees to limit vacation selection to two weeks on the first round The employer did not take issue with the legal principle that a shop steward cannot bind a trade union on a matter of contract interpretation, but argued that that was not this case In this case, there was almost twenty years of uninterrupted practice, known to everyone, and the practices in the Ottawa warehouse were completely consistent, on the uncontradicted evidence, with the practices in the other warehouses. Counsel argued that the union cannot, in these circumstances disavow knowledge or acquiescence in the practice Counsel suggested that there has been detrimental reliance on the part of the employer, and pointed out that the morale issue was of importance to the employer This meant ensuring that all employees obtained at least two weeks vaca.tion, if they wished, in the prime summer months Had the employer not relied on this past practice it might very well have. bargained for such a provision in Collective Agreement negotiations It was now deprived of that opportunity for the duration of the Collective Agreement, and counsel argued that the , estoppel must run until the employer has an opportunity to renegotiate the provision at issue In the employer's view, smceall of the elements of an estoppel had been established, the employer should be allowed to continue \ with this practice until the end of the current Collective Agreement. In conclusion, counsel submitted that even if the employer's claim was not upheld on the basis of past practice or estoppel, the practice itself, along with the employer's on-going efforts to ensure that all employees obtained vacations in July and August if they wished, made good industrial relations sense and should be maintained as such as it was not inconsistent with the ; 4! .,' 20 Collective Agreement. Vacation selections, counsel noted, continued to be made on the basis of seniority, and so that vital interest, counsel concluded, continued to receive recognition and protection Counsel asked that the grievance be dismissed Union Reply In reply, union counsel suggested that the employer had effectively conceded that the language of the Collective Agreement does not support the interpretation that it had given or the practice that it had followed Referring to that language, counsel pointed out that it stated that employees will get "at least" two weeks vacation Moreover, counsel suggested that a review of successive collective agreements indicated that over the years the parties gave increasing recognition to vital seniority interests The 1977 Collective Agreement did not, for instance, refer to " seniority as a factor, while the instant Collective Agreement specifically referred to seniority illustrating the significance of that factor to the '- pa rties /- Counsel also took issue with the manner in which employer counsel had. I characterized the facts. It was, the union suggested, uncontradicted that in the early years the grievors had been denied vacations during the prime summer months It was equally uncontradicted that after the grievors's ( seniority increased they enjoyed, on occasion, more than two weeks of vacation in the prime summer months as had, for example, Mr Crupi when he ~ was a member of the bargaining unit. Counsel argued that whether they bid for their vacation in two week blocks was not the point - the point was whether they were able to exercise their seniority to obtain preferred vacation weeks And on the evidence, counsel suggested, they were able to ~ 21 .0 " do so until the summer of 1992 Accordingly, it could not be said that the ~ grievors' seniority rights had been violated and that they had acquiesced in that violation Finally, counsel suggested that the employer could not, on the one hand, play down the significance of the 1985 meeting by arguing that the employer ! need not have consulted with the employees and secured their agreement to the two week practice, while on the other hand use the conditions that gave rise to that meeting, namely problems with employee morale, as evidence of detriment as part of its estoppel claim Counsel reiterated his request that the grievance be dismissed Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the grievance should be upheld Virtually every collective agreement recognizes seniority and provides certain preferences to employees based on their length of service Employees with the longest service record usually enjoy the most benefits It is generally accepted that: Seniority is one of the most Important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few It follows, therefore, that an employee's seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective .. 22 - agreement with the utmost strictness wherever it is contended that an employee's seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement, See Tung-Sol of Canada Ltq. 1 5 L.A C 1 61 (Reville) In Re Stelco Inc.. Page-Hersey Works and United Electrical. Radio & Machine Workers. Local 523 11 L.A.C (4th) 300 (McLaren) the Board held: One of the most fundamental aspects of unionization is the accumulation of rights by employees through seniority thereby giving the employee a greater degree of worker control over a variety of circumstances including preference for vacation (at 31 7) In the instant case, both counsel suggested that Article 8 10 and 8 11 must be read together, and we completely concur with this assessment. While the drafting of these provisions leaves something to be desired, it is clear that they establish a scheme whereby employees will, on the basis of their seniority, indicate and obtain their summer vacation preferences There are only tw<;> caveats to the selection of vacation periods: First, that the employer's operations not be disrupted And second, that all employees \ receive at least two consecutive weeks of vacation between May and October The provision says nothing about the prime vacation months of July and August, nor does it limit the employees to choosing their vacations in two week blocks, nor does it restrict in any way the right of employees to take all or part of their vacations during this period except as set out in the two limitations indicated above Needless to say, l1luch of the evidence and legal argument we heard cohcerned the past practice of the parties While we are of the view that . " 23 ~ the provisions in question are clear and unambiguous, we allowed the eVidence of past practice in order to illustrate an ambiguity and then assist in interpreting the provisions in question In John Bertram & Sons Co. Ltd. supra, the Board held Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context, (2) conduct by one party which unambiguously is based on one meaning attrib!Jted to the relevant provision, (3) acquiescence in the conduct which IS either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection, (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agre~ment have acquiesced in the practice (at 367-8) In our view, not only are the provisions in question clear, none of the requirements set out in the Bertram and other cases for the receipt and use of evidence of past practice have been met in the instant case We cannot find that the provisions in question are such so as to admit two or more interpretations, and we certainly do not find that there is anything in the provision that would limit employees to bidding for their vacation in two week blocks While the evidence clearly establishes that since at least 1985, if not before, employees did bid on their vacations in this manner, what is important is not the process (which is up to the employer to deVise) but the result. The evidence clearly establishes that until the instant \ grievance was filed there was no interference with the benefits more senior employees enjoyed by virtue of their seOlonty There was, very ----------------..-- . ~ 24 f\ \ simply, no employee acquiescence in the employer's interpretation and this is illustrated by the fact that the first time seniority employees were denied one of the benefits of their seniority, they took issue with the denial and filed a grievance All that the employees agreed to in 1985 was a system that provided benefits to more junior employees but which did not erode the Collective Agreement entitlements of more senior employees The results of this system did not violate the Collective Agreement until the employer reduced the number of employees allowed off on vacation at anyone time It is true enough that everyone in the bargaining unit, including union zone representatives and stewards, were aware of the bidding system. But, as indicated above, in our view, that is not the point. Even if it could be said, for the sake of argument, that the practice was so notorious (and there was evidence of similar practices at the other warehouses) that members of the union hierarchy must be attributed with knowledge of it, we canno~ find that this knowledge constitutes acquiescence, because on the evidence there was no acquiescence in any practice that interfered with seniority rights because there was no interference with any seniority rights until 1992, and as soon as this interference occurred a grievance was filed Accordingly, we find on the i evidence and argument before us that the provisions in question are clear and unambiguous, and that the parties past practice is such that it neither reveals an ambiguity in the. Collective Agreement nor does it assist as ~n aid to interpretation of that agreement. Evidence was also led in this case for the purpose of establishing an estoppel As has been accepted in case after case, the essentials of an estoppel are a finding that there was a representatIon by words or conduct intended to be relied on ,by the party to which it was directed, some - .. . ~ 25 reliance in the form of action or inaction, and detriment resulting therefrom In the instant case, even if an estoppel was arguably established as a result of the 1985 agreement, when the employer unilaterally changed the basis of that agreement by reducing the number of employees allowed off on vacation at anyone time, the estoppel was over The fact that the grievors did not become aware of that unilateral change until 1992 is neither here nor there The employer cannot, in our view, undo a term of an agreement and then rely on that agreement for the purpose of ) estopping the union from relying on its strict legal rights It is worth observing that the employer can, by virtue of Articles 8 10 and 8 11, restrict vacation entitlement so as to ensure that Its operatIons are not disrupted In this case, we have found that past practice does not assist us in revealing an ambiguity and in interpreting the Collective Agreement. We have also found that the evidence does not establish an estoppel However, we have no doubt but that the employer can, as it has done here, avoid operational disruption by reducing the number of employees allowed off on vacation at anyone time What constitutes operational disruption will, of course, be a matter that will have to be determined on the facts of each case, but it surely includes avoiding wherever possible the payment of overtime and casual labour costs While the employer is entitled to restrict vacation entitlement so as to avoid operational disruption it must, at the same time, administer Articles 8 1 0 and 8 11 in a manner that respects the seniority interests of all employees. For an extended period of time, the system of bidding for vacations in two week blocks on the basis of seniority complied with the Collective Agreement. When fiscal restraint dictated a reduction in the . . 26 " ... , numbers of employees allow~d to take vacations at anyone time, the system, which continued unchanged, no lo.nger complied, and this is illustrated by the grievors' experiences in 1992 These changed circumstances require the employer to devise a new vacation allocation scheme that will give employees, on the basis of seniority, the opportunity to indicate their summer vacation preferences and which then allocates those preferences to th~ employees subject only to the requirement that all employees receive at least two weeks of consecutive summer vacation and that the employer's operations not be disrupted \.i We remain seized with respect to the implementation of this award DATED at Toronto this 14th day of January 1994 fvc-- ----------------- ) ~ l?l-:~~.QJZ1LL- M O'Toole Member ( ~