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HomeMy WebLinkAbout1995-1946.Madden.96-11-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ",- 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41(S) 32(j-13~ GSB # 1946/95 CUPE # 94-30 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Madden) Grievor - and - The Crown in Right of Ontario (Workers' Compensation Board) Employer BEFORE: O.V Gray Vice-Chairperson FOR THE R. Carnovale GRIEVOR National Representative Canadian Union of Public Employees FOR THE E Kosmidis EMPLOYER Counsel Workers' Compensation Board HEARING October 15, 1996 DECISION John Madden's gnevance dated May 30, 1994 concerns the calculation of his vacation entitlement. Under Article 11 of the partIes' collective agreement, the number of weeks of paid vacation to whICh a permanent employee is entitled depends on lus or her number of years of "contmuous servIce from hIS most recent date of hire." The bargainmg unit covered by the current and all previous collective agreements between the parties includes all employees of the employer, wIth exceptIOns not relevant here. The collectIve agreement, however, distinguishes between and makes dIfferent provisions for "part-time and temporary employees" on the one hand and "permanent" and "probatIOnary" employees on the other Mr Madden was lured as a temporary employee on April 1, 1986 and has worked for the employer WIthout interruption ever since. He became a perma- nent employee effectIve Apnl 10, 1987 The union says that April 1, 1986 is the gnevor's "his most recent date of lure" for purposes of Article 11 The employer says that April 10, 1987 is the relevant date. The employer also says that even If the umon's mterpretation of ArtIcle 11 IS correct, the doctrme of estoppel should r be applied to prevent the union from enforcing that interpretatIOn until the end \ of the term of the current collective agreement. , I r. ! At the openmg of the hearing the partIes agreed on the followmg: f f [ 1 ThIS grievance involves the mterpretation of Article 11 of the Collective , ! Agreement and how the Employer has calculated vacation entItlement f for ItS employees. t, , 2, Under Article 11, an employee having one year of servIce but less than t r eIght years, IS entItled to vacatIOn WIth pay accumulated at the rate of ~ one and one quarter days for each month, to a total of 15 days annually ! 3. After eIght years of servIce but less than 15 years, an employee is entI- f ! tIed to vacatIon WIth pay accumulated at the rate of one and two thIrds I days for each month, to a total of 20 days annually , ~ f ~ f I , - 2 - 4. Mter 15 years of selVIce, an employee is entitled to 25 days of vacation annually Mter 25 or more years of selVice, an employee is entitled to 30 days vacation annually 5. The Umon's positIOn is that Article 11, when calculatmg selVice for de- termining vacatIOn entitlement, provides that temporary selVice should be taken into account, Specifically, if an employee is hired by way of a contract, on a temporary basis, and subsequently hired as a permanent employee, without any break in selVice, the temporary selVice should be taken into account when determining length of selVice and calculatmg vacatIOn entItlement. 6. The Employer's position IS that, in accordance with the provisions of Ar ticle 11, It need only consider permanent employment in determining when an employee attains eight years of service thereby qualifying for 20 days of vacation per year Therefore, there has been no violation of the Collective Agreement. 7 Vacation entItlement for employees was set out in Article 11 of the ongI nal Collective Agreement which was in effect from October 3, 1975 to September 30, 1976. 8. The hIStory of ArtIcle 11, as contamed m the vanous CollectIve Agree- ments between the parties, is traced m Tab 1 9. Since the very fIrst CollectIve Agreement, the employer has consistently conSIdered permanent selVIce only when calculatmg an employee's vaca tion entItlement. The Union acknowledges that it was aware of this prac- tIce as of April 5, 1991 10 The last CollectIve Agreement was negotiated effectIve January 1, 1993 to December 31, 1993. ThIS agreement has been extended for two years and will expire on December 31, 1996 (sic). 11 By agreement between the parties, the outcome WIth respect to this grievance will apply to Grievance 94.30, the Pohcy GrIevance, dated May 30, 1994, WIthout the need for a separate hearing. 12. The parties agree that any Issue as to the appropriate remedy if a breach f' is established, mcluding any issue about the time penod(s) for which , there should be a remedy, IS deferred until after the arbitrator deter f mines whether there has been a breach for which there should be a rem r. l edy If the time when the Union fIrst became aware of the employer's I ~ practice is relevant to any Issue about the nature or extent of a remedy, , the employer may seek to estabhsh that the Umon knew of ItS eXIstence " r t earlier than April 5, 1991 f The material referred to m paragraph 8 shows that the perIOds covered by the I' t ~ parties' last 4 collective agreements, mcludmg the extension referred to In para r ! graph 10, were October 1, 1990 to September 30, 1991, October 1, 1991 to De- ~ cember 31, 1992, January 1, 1993 to December 31, 1993 and January 1, 1994 to 1 December 31, 1996 i t f ~ f ! I' ~ I ~ I - 3 - ArtIcles 11 Oland 11 02 of the parties' collectIve agreement provide as follows: ARTICLE 11 VACATION 11 01 Calculation of Vacations The calculation of vacation leave and vacation pay entitlement, will be based on the employee's contmuous servIce from his most recent date of hire, and shall be computed as of his anniversary date and each anniversary date thereafter 11 02 Vacation Entitlement for Permanent Staff Employees (a) An employee of the Board having one (1) year of service, but less than eight (8) years is entitled to vacation with pay accumulated at the rate of one and a quarter (1 1/4) days for each month for whIch pay is receIved to a total of futeen (15) days annually Notwithstanding the above, an employee wIth less than one (1) year of service shall accumulate vacation at the rate of one and a quarter (1 1/4) days for each month of service, and may, after four (4) months of completed service, draw on his vacation enti tlement for a total of five (5) days of vacation which may be taken after the completion offour (4) months service, (b) Mter eight (8) years of service but less than fifteen (15) years, an employee is entitled to vacation with pay accumulated at the rate of one and two-thIrds (1 2/3) days for each month for whIch pay IS reCeIved to a total of twenty (20) days annually (c) Mter futeen (15) years of service but less than twenty-five (25) years, an employee is entitled to vacation with pay accumulated at the rate of two and one. twelfth (2 1/12) days for each month for which pay IS receIved to a total of twenty.five (25) days annu ally (d) Mter twenty.five (25) or more years of service, an employee IS entitled to vacatIon with pay accumulated at the rate of two and a half (2 1/2) days per month for whIch pay is receIved to a total of thIrty (30) days annually (e) Notwithstanding the above, accumulatIOn of vacatIOn entitlement shall not be earned for any unpaid continuous absence of twenty three (23) consecutive working days. Where intermittent return to work is less than five (5) working days, the absence shall be conSIdered contmuous for the purposes of these calculatIons. As its heading indIcates, ArtIcle 11.02 governs the vacatIOn entItlement of "Permanent Staff Employees." The vacation pay entItlement of ProbatIOnary employees on terminatIOn (whIch appears to be the only CIrcumstance 10 whIch an issue of vacatIOn entitlement would arise for someone still on probatIOn) is addressed in ArtIcle 11 05(b) In collective agreements prIor to the one whICh came 1Oto effect as of October 1, 1984, the vacation entitlement of "Employees - 4 - other than Permanent Staff' was addressed in another portion of Article 11. Commencing with that 1984 collective agreement, vacation entitlement and other entitlements of part-time and temporary employees have been addressed In Article 22 The term "service" IS not defined In the collective agreement. "SemorIty" IS defined in terms of servIce. ARTICLE 4 SENIORITY 4.01 Seniority DefmItion (a) For any employee appointed to a position in the bargaining unit after May 31, 1977, seniority as referred to in this Agreement, shall be defmed as the length of service from the most recent date of appointment to the bargaming umt. (b) Effective the Date of RatmcatIon of this Agreement, for all em ployees in the bargammg unit as of May 31, 1977, semority as re- ferred to in this Agreement, shall be based upon and shall mean length of continuous service of the employee with the Employer It is understood, however, that for the purposes of applicatIOn of this ArtIcle, any person who IS a non-bargaining unit employee and not a manager or above who is appomted to a posItion in the bargaming unit and who was employed m the bargammg umt as of May 31, 1977, shall be entItled to only that portIon of therr semority, if any accumulated as an employee in the bargaming unit or a position whIch would have been in the bargaming umt had the bargainmg unit existed at that tune. (c) On the successful completion of the probationary period, an em ployee will be credIted with seniority from the most recent date of employment into the bargammg unit, (d) Employees m posItIOns currently excluded from the collectIve bargammg umt will receive seniority credIt for all contmuous service should their positIon be deemed suitable for inclUSIon in the bargaming umt. 4.02 Probationary Employees A newly hrred employee shall be on probatIOn for a penod of SIX (6) months from the date ofhrring. 4,03 Loss of Seniority An employee will lose seniority and contmuous servIce if he (a) is discharged and the dIscharge IS not subsequently reversed (b) voluntarily terminates employment (c) retrres on superannuatIon or IS retIred at age 65 - 5 - (d) IS absent from work m excess of five (5) working days without reason acceptable to the Employer or without notuymg the Em ployer, unless such notice was not reasonably possible (e) fails to return to work following a layoff within seven (7) calen dar days of being notIfied to do so, by registered mail, without just cause. It shall be the responsibility of the employee to keep the Employer informed of hIS current address (f) is laid off for a period longer than twenty-four (24) months, or for a period longer than that of his semonty, in the event that hIs senionty at the time of layoff is less than twenty four (24) months. ArtIcle 22 deals with the entItlements of part-time and temporary em- ployees: ARTICLE 22 PART-TIME AND TEMPORARY EMPLOYEES Part time and temporary employees who are ordinarily requrred to work more than thrrteen (13) hours per week, and employees who work on a regular and continuing basIs are entitled to the followmg' (c) Vacation pay shall be based upon four percent (4) percent of total earn mgs in the twelve (12) months of employment for whIch the vacatIon is given, or part thereof for which no vacation pay has previously been given. (g) A part time or temporary employee who becomes a probationary em ployee, will for the purpose of hIS probationary period receive credIt for hIS part time or temporary service on the basis of tune worked in the previous twelve (12) months and subject to a maxunum credit of no more than one-half (112) of the probationary period, Under this section, the part-tune servIce to be credIted agamst the pro- bationary penod shall mean time on the same or similar work for which he became a probatIOnary employee. When a part time or temporary employee becomes a permanent em ployee he shall receIve semonty for all of hIS part tune or temporary em ployment immedIately prior to hIS full-time employment. (k) Temporary full tune bargaming unit employees who have applied for permanent bargainmg unit pOSItions posted m accordance With Article 5 shall be considered if there are no quahfied permanent bargaining umt apphcants. For purposes of Article 5.05 length of unbroken servIce WIth the Employer shall be conSIdered as "semonty" (1) This Article, together WIth Article 13 01(c), constitutes the entrre Agree- ment between the parties on thIS subject, except for the employee's right to gneve under Article 2 Gnevance Procedure. - 6 - (Article 505 provIdes that in makmg staff changes, transfers or promotIOns, senIority shall be the determmmg factor where qualifications and ability are relatively equal. ArtIcle 1301 concerns the documentation to be gIven to a newly hIred probationary or temporary employee ) Before the partIes agreed on the statement of facts quoted earher, there was some discuSSIOn about whether reference could be made to the without prejudice settlement m 1991 of an earher grIevance mvolvmg a large number of VocatIOnal Rehabihtation Caseworkers who had begun work as temporary em- ployees in 1989 and had subsequently become permanent employees. In the re- sult, the parties agreed that there would be no reference to that settlement. In addItIon to the agreed facts, the union relied on facts recIted m the Board's decision of August 29, 1991 m another proceeding between these parties. Stachl,w, 997/89 (Stewart) In particular, it argued that a statement made by the local UnIon presIdent in her testimony in that case would have put the employer on notice that the union was opposed to the practice in respect of whIch the em- ployer claims an estoppel here, thus bringmg any such estoppel to an end no later than the end of the period covered by the collective agreement then in ef- fect. Apart from that, neither party sought to estabhsh any other facts on whICh to base theIr respective pOSItions. The individ ual and UnIon grievances addressed in Stachl,w, were prompted by a letter that the individual grIevor, Ms. Stachiw, receIved from the employer in June 1989 The letter mformed her that her continuous service date had been changed from October 20, 1986 to May 27, 1987 and that tlus would delay the time when she would quahfy for vacatIOn entitlement at the next hIgher level. The employer had made the adjustment as a result of the grievor's havmg been absent from work for a lengthy period whIle receIvmg long term dis- abihty ("LTD") benefits. The employer's posItion was that such an adjustment was authorized by the language whIch now appears in article 11 02(e) of the col- lective agreement. The UnIon took the pOSItIOn that the adjustment was not authorIzed by that language because the grIevor's absence wlule receIvmg LTD benefits was not an "unpaid absence" The employer claImed m the alternative that If the unIon's interpretatIOn was rIght, the union should be estopped from enforcmg it because It had failed to challenge the employer's past practice of maklng such adjustments for employees m SImilar CIrcumstances - 7 - , At the hearing in Stach~w on April 5, 1991, the employer led evidence that until December 1988 it had adjusted both the seniority date and the continuous servIce date of employees who had been absent while m receIpt of L TD benefits. Pnor to 1986, adjustments had been reflected in seniority hsts that the employer posted. In and after 1986, affected employees had been sent letters hke the one received by Ms. Stachiw In 1978 the union had filed a grievance complammg about adjustment of an employee's semority date as a result of such an absence, but had not pursued the grievance. Another such grievance - the Cornet griev- ance - was filed in 1988 That grIevance was referred to arbitratIOn but then WIthdrawn by the UnIon without explanation. An employer witness who was re- sponsible for the admImstratIon of the collectIve agreement and had been a member of the employer's bargaimng committee testified that he took this as ac- quiescence in the employer's mterpretation, and would have raised the matter m bargaIning if he had been aware that the union was challengmg its practIce Mr Baldwin stated that by VIrtue of the fact that the Union did not pursue the matter of continuous service he concluded that the Union accepted the Employer's mterpretation of the CollectIve Agreement. He stated that if the Employer had been aware that the Union was challengmg the manner in which continuous service had been dealt with it would have raised the mat ter at negotiatIOns m order to preserve its position. The Stach~w deCIsion also refers to correspondence exchanged between the umon and employer after the Cornet grievance was WIthdrawn. Although this IS not entirely clear, it appears from the decIsion that the effect or result of that correspondence was that the employer agreed not to adjust an employee's senwr- ~ty for any period of time m whIch they receive L TD benefits, effective December 1988 With reference to this exchange of correspondence, the decision reCItes that "service was not addressed." AgaInst that background, the umon rehes in thIs case on the fact that m Stach~w the then presIdent of the local umon, Ms. Haffenden, testified as follows Ms. Haffenden testified that she was not aware of the grievances that were filed in 1978. She stated that the Cornet grIevance m 1988 was withdrawn because it was untimely by a few months and that it was the Umon's VIew that it was appropriate for the Issue of seniority to be dIscussed WIth the Employer Ms. Haffenden stated that from the Umon's perspective semority and service were "the same thmg" She stated that it was only m connectIOn with the present grIevances that the Union came to understand that the Employer Viewed them dIfferently and that the Employer's adjustments to contmuous servIce dates affected vacatIOn entitlement. - 8 - Argument The union argued that "servIce" and "semorIty" are, m effect, "the same thmg" under thIS collective agreement. ArtIcle 4 01 defines an employee's sen- IorIty as the length of his or her service in the bargaining unit. Employment as a temporary employee is employment in the bargaining umt. The employment of a temporary employee in the bargainmg unit contmues If he or she becomes a pro- batIOnary employee and then a permanent employee. The full penod smce last hiring constitutes that employee's service and, hence, his or her seniOrity ThIs IS confirmed by artIcle 22(g) An employee's "service" for purposes of Article 11.02 IS "the employee's continuous service from his most recent date of hIre" accordmg to Article 11 01 "Date of hIre" refers to the time when the employee last became an employee, not the date when he or she became a permanent employee. With reference to the employer's estoppel argument, the UnIon submItted that there can be no estoppel when the employer has not established detrimental reliance on some representation by the union. Moreover, even If the CIrcum- stances existing before the April 5, 1991 hearing in Stach~w gave rise to an es- toppel, Ms. Haffenden's testimony at that hearmg put the employer on notice that the union considered seniority and servIce to be the same. That brought any such estoppel to an end no later than the next opportumty thereafter to renego- tiate the collective agreement, which was later m 1991 In the alternative, if there was an estoppel thereafter the filing of this grievance brought it to an end effective the next OPPOrtunIty thereafter to renegotiate the collective agreement, which is at the end of 1996 In addItion to the deCISIon m Stach~w, the unIOn's representative referred in argument to Re St. Andrews Centenmal Manor and Ontarw Pubhc Serv~ce Employees Unwn, Local 328 (1991, 23 L.A.C (4th) 129 (T JollIffe), Re Brantford General Hosp~tal and Ontano Nurses Assoc~atwn (1989), 7 L.A.C (4th) 399, and Re CUPE 1750 (Pohcy Gnevance) and WCB, GSB FIlel035/90, deCISIon dated March 21, 1995 (Kirkwood) The employer submitted that "date of hIre" in Article 11 01 means date of hire as a permanent employee. In the last paragraph of Article 22(g), the parties expressly prOVIded that semorIty earned by a part-time or temporary employee would be carrIed over If and when he or she became a permanent employee The employer argued that the parties would have made a SImilar prOVISIOn WIth re- - 9 - spect to service if they had intended a permanent employee to be credIted with prior servIce as a part-time or temporary employee cIting OPSEU (Rmehart) and Thames Valley Ambulance Serv~ce, GSB FIle 904/91, decIsIon dated November 29, 1994 (Venty) In any event, the employer said, an estoppel anses from the umon's faIlure to challenge Its practice of calculatmg service m accordance WIth this interpretation. Re TRW Canada, Carr Dimswn and Canad~an Automob~le Workers, Local 197 (1989) 4 L.A.C (4th) 310 (Palmer), Re St. Mary's General Hospaal and London & Distnct Service Workers' Umon, Local 220 (1992), 26 L.A.C (4th) 189 (Stewart), Re Colomal Cook~es and United Food & Commercial Workers Internatwnal Umon, Local 617P (1993), 37 L.A.C (4th) 69 (Haefhng), Be Domglas Inc. and Aluminum, Bnck & Glassworkers Internatwnal Umon, Lo- cal 2602 (1994), 40 L.A.C (4th) 398 (Keller) The employer submitted that the Stach~w decision addressed an entirely dIfferent issue, and that the testimony m that case cannot be treated as notice that the union dIsagreed WIth the employer interpretation at Issue here. It contended that it is therefore entitled to the bene- fit of an estoppel until the end of the term of the collective agreement m effect at the time the grIevance here was filed. Decision Accordmg to Article 11 01 of the parties' collective agreement, the number of weeks' paid vacation to which a permanent employee is entitled under Article 11 02 depends on his number of years of "continuous service from his most recent date of hire." Ordinarily, when used without qualification, "service" describes the length of time that person had been an employee, and "date of hire" describes a date on which someone not then an employee became an employee. It IS apparent from the language of Article 4 of their collectIve agreement that the parties un- derstood those terms m those ways They used "contmuous service" m Article 4 01(d) to refer to the entire period of an indIVidual's employment, WIthout re- gard to whether that employment was in the bargammg unit or not. In the bal- ance of Article 4.01, the partIes were careful to use "most recent date of ap- pomtment to the bargammg umt" and "most recent date of employment into the bargaimng unit" to confine semorIty to service m the bargaming umt. One would have thought that parties who had used those phrases in those ways would have added SUItable quahfying words in ArtIcle 11 If they had mtended that the 10- "servIce" on which the vacation entItlement of a permanent employee IS based was to be hmited to servIce while employed as a permanent employee. While the parties did expressly provide m the thIrd paragraph of Article 22(g) for credIt for prior seniorIty upon a part-time or temporary employee's be- coming a permanent employee, the absence of a corresponding proviSIOn wIth re- spect to service does not persuade me that the parties did not mtend service as a part-time or temporary employee to be included in the service wIth whIch ArtIcle 11 is concerned. A part-time or temporary employee does not become a perma- nent employee wIthout first serving as a probationary employee. The first two paragraphs of ArtIcle 22(g) prOVIde that m determimng when such a probation- ary employee completes the probationary penod, he or she will only get partIal credIt for prior part-time or temporary service in the same or simIlar work. The thIrd paragraph serves to negative any argument that the first two paragraphs also limit the credit for prior part-time or temporary service in calculating sen- IOnty in the CIrcumstances that they address. It confirms that despite the con- tent of those paragraphs, in the circumstances they address semonty IS calcu- lated just as one would have thought from the more general language of ArtIcle 4 o 1 (a) The Rmehart decisIOn on whIch the employer rehes dealt wIth a vacation proviSIOn whIch based vacatIOn entitlement on numbers of "years" without ex- pressly saymg what sort of "years" were meant. Here, the partIes have expressly said that vacation entitlement is based on "years of service." I am not persuaded that "years of servIce" m ArtIcle 11 02 refers only to the period of a permanent employee's employment after he or she attains the status of permanent employee. Article 11 01 says, in effect, that "servIce" m Arti- cle 11 02 means an employee's perIOd of service as an employee since he or she last became an employee. For an employee who has gone from part-time or tem- porary status to probatIOnary status to permanent status WIthout any mterven- ing break m employment, the servIce on whIch hIS vacatIOn entitlement IS based mcludes his service as a part-time or temporary employee, his servIce as a proba- tIOnary employee and hIS service as a permanent employee Having determmed that the mterpretatIOn contended for by the umon is the correct one, I must now determme whether the umon is estopped from en- - 11 - forcing that interpretation for the life of the present collective agreement, which was the one in effect at the time these grievances were filed. To estabhsh an estoppel, the employer must show that by words or con- duct the umon made a representatIOn mtended to affect the legal relatIOns of the parties, that the employer acted m reliance on that representation, and that as a result of so acting, the employer would suffer detriment if the employer's rIghts and obligations were now assessed as though they were unqualified by its earlIer representation. (See generally Brown & Beatty, Canad~an Labour Arb~tratwn (3d) at paragraphs 2:2210 and 2.2220) A basis for the estoppel claImed by the employer must be found, If at all, in the statement of facts on which the partIes agreed. There is no express agree- ment that the umon made a representation intended to affect the legal relations of the partIes, nor that the employer acted to Its detrIment in reliance on any such representation. There is only the parties' agreement on the periods covered by the partIes' successive collective agreements and on the following statements of fact. Since the very first Collective Agreement, the employer has consIstently con sidered permanent service only when calculatmg an employee's vacation en titlement. The Union acknowledges that it was aware of this practice as of April 5, 1991 The employer says that the failure of the union to challenge Its calcula- tions at any time before the filIng of the grIevance(s) now before me amounted to a representatIOn that those calculatIOns were in accordance wIth the requIre- ments of the collective agreement. The employer's position with respect to detri- mental reliance appears to be that I can and should presume or infer from the surrounding circumstances that it relied on this alleged representatIOn m deter- mmmg whether to raIse the matter in collective bargaimng, that but for the al- leged representation it would have sought language that more clearly supported its mterpretatIOn. I note first that the agreed statement of fact says nothmg about whether the gnevance before me was the first to challenge a vacatIOn entitlement calcula- bon whIch ignored serVIce other than service as a permanent employee. It seems Implicit m the way the matter was argued, however, that thIS was the first grievance to focus directly and explicitly on that Issue. In any event, my deCISIOn ~- - 12 - does not turn on the employer's faIlure to either prove or secure agreement to that partIcular fact. The absence of gnevances would only be sigmficant, however, If in the relevant time frame there were occasions when the union could reasonably have been expected to file a grievance that took issue with a calculation of the sort in issue here. No such occasions have been identified pnor to AprIl of 1991, when the umon IS first saId to have been aware of the employer's method of calcula- tion. There is nothing to indIcate that the employer's misinterpretation materi- ally affected any such employee's enJoyment of the additional vacation prOVided for in paragraph (b) of Article 11 02 prIOr to April 1991, nor that the union was aware or should have been aware that any employee was so affected prior to April 1991 In short, there is nothing that would transform the absence of griev- ances into apparent acqUIescence prior to the time when the partIes agree the union was actually aware of the employer's mIsmterpretatIon. I do not have to deCIde whether, as cases CIted by the employer suggest, a party may be estopped by its failure to challenge conduct ofwhlCh it was not m fact aware if the conduct was so open and frequent that the party ought to have been aware of it. The facts before me do not support the proposItion that the unIOn ought to have been aware of the employer's mismterpretation earher than It was I am not told how the umon became aware of the employer's misinterpre- tation. There IS no mdication that this awareness arose out of the employer's haVing demed any particular employee paid vacatIOn to which he or she would have been entitled on the unIOn's mterpretatIOn of ArtIcle 11 Indeed, there IS nothing before me to indicate that any employee suffered any ill effect from the employer's mIsmterpretatIon before Mr Madden did in 1994 Moreover, there IS nothmg before me from whIch I could infer that It is lIkely that there were some such persons. In the absence of an mdividual aggneved by the adverse result of an em- ployer mterpretation with which the union dIsagreed, one would not necessarily expect the umon to make the mterpretatIOn the subJect of a pohcy grievance im- mediately on becoming aware of It. In those circumstances a umon mIght simply awaIt an occaSIOn when somethmg of substance turned on the resolution of ItS dIsagreement WIth the employer - 13 - ConsIdering only permanent servIce when calculatmg an employee's con- tinuous service date for purposes of vacation entitlement would result m employ- ees' haVing semonty dates different from (earher than) theIr continuous service dates. In April 1991, the union was engaged m a dIspute with the employer about the employer's having treated seniorIty and service dIfferently in other cir- cumstances In the context of that dispute, the employer heard from the local umon's president that the union consIdered that seniority and servIce were the same thing I recogmze that this was not an attack exphcItly focused on the m- terpretatIOn challenged here. It was, however, an assertion of a general pnncIple inconsistent wIth that interpretation. The union's having asserted that inconsIs- tent general prmcIple was part of the context whIch had to be taken mto account in assessmg the meaning of any contemporaneous or subsequent non-verbal un- Ion conduct on which the employer now seeks to rely m support of an estoppel. If an employer decIsIon maker had testified that he or she beheved after April 5, 1991 that the union agreed with the mterpretation advanced by the employer here, such a WItness might have been challenged to explam (among other things) how he or she persisted in that belief after learning of the local union president's testimony on AprIl 5, 1991 m Stach~w WhIle the question may not have been unanswerable, these observations illustrate the SIgnificance of the fact that no such testimony was offered. In short, the employer has offered no dIrect eVIdence of the elements which must be established to support the estoppel it claIms, and I am unable to infer the existence of those elements from the information put before me. The timing of this grievance and the companion polIcy gnevance may affect the pe- riod m respect of whIch any remedy may be gIven, but does not give nse to an estoppel. The grievance therefore succeeds. The union's interpretatIOn of ArtIcle 11 IS correct, and it is not estopped from enforcmg that interpretation in these pro- ceedmgs. I remam seIsed WIth the matter of remedy, as the partIes have re- quested. Dated at Toronto this 19th day of November, 1996 VJ/h (JiJu Owen V Gray, vice-Cha1