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HomeMy WebLinkAbout1997-2163UPSHAW99_03_08 or OIVT ARlO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OIVTARJO , 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 128 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-1396 GSB # 2163/97 OPSEU # 98B 1 06 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc ServIce Emplovees Ulllon (Fred Upshaw) Grievor - and - The Crown m RIght of OntarIO (MIlllstry of Health) Employer BEFORE Randl H Abramsky V Ice-ChaIr FOR THE RIchard BlaIr GRIEVOR Counsel, Rvder Wnght Blalr &- Doyle BarrIsters &- SolICItors FOR THE DaVId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARINGS July 9, 1998 January 25, 1999 AWARD On December 29 1997 the former PresIdent of OPSEU, Fred Upshaw filed a gnevance allegmg that the Employer was denymg hIm hIS "accumulated vacatIOn credIts for the entIre penod of [hIS] leave of absence wIth pay whIle workmg at OPSEU " For an eleven year penod, from 1984 through mId-1995, Mr Upshaw was mItlally FIrst V Ice- PresIdent and then PresIdent of OPSEU Dunng that tIme the Employer annually deducted vacatIOn credIts so that no more than one year s credIts would accrue mto the next year At Issue IS whether the Employer s actIOns VIOlated the collectIve agreement. The Employer however, raIsed a prehmmary Issue regardmg the tImelmess of Mr Upshaw's gnevance Facts The Employer asserts that the gnevance IS untImely because Mr Upshaw learned m 1995, If not before, that the Employer had been deductmg hIS vacatIOn credIts and yet he dId not file hIS gnevance untIl December 1997 clearly beyond the thIrty (30) day tIme lImIt set out m ArtIcle 22.2 1 of the 1994-98 collectIve agreement. ArtIcle 22.2 1 states as follows It IS the mutual desIre of the partIes that complamts of employees be adJusted as qmckly as pOSSIble and It IS understood that If an employee has a complamt, the employee shall dISCUSS It WIth the employee s lITllnedIate supervIsor wIthm thIrty (30) davs after the CIrcumstances gIvmg nse to the complamt have occurred or have come or ought reasonably to have come to the attentIOn of the employee m order to gIve the Immediate supervIsor an OppOrtunIty of adJustmg the complamt. 1 ~ In support of Its posItIOn, the Employer presented the testImony of BonnIe Pearce a former Payroll Clerk at the WhItby Mental Health Centre Her responsIbIlItIes mcluded keepmg track of employees tlme, and entenng theIr varIOUS credIts and overtIme onto the computer She testIfied that part of her responsIbIhty was to reVIew the employees vacatIOn credIts and to adVIse theIr department heads whenever an employee had more credIts than they could carry over mto the next year under the collectIve agreement so that the employees would have an opportumty to use them before the end of the year ArtIcle 46 5 of the collectIVe agreement prOVIdes An employee may accumulate vacatIOn to a maXImum of tWIce hIS or her annual accrual but shall be reqmred to reduce hIS or her accumulatIOn to a maXImum of one (1) year s accrual by December 31 of each year A nearly Identical provISIOn (wIthout the words "or her") IS found m ArtIcle 47 5 of the 1992-93 collectIve agreement. Ms Pearce testIfied that Mr Upshaw s vacatIOn credIts m excess of one year's accrual were deducted smce he could not carry forward more than one year s vacatIOn credIts, but smce he was not workmg on SIte she was not aware of who contacted hIm or how he was contacted. The eVIdence shows that from 1984 through 1994 Mr Upshaw was gIven hIS annual vacatIOn credIts (whIch from 1984 through 1988 were 20 credIts per year, and from 1988 through 1994 were 25 credIts per year) and that each year vacatIOn credIts m excess of one vear s accrual were deducted by the Employer In total, between 1985 and 1995 228 5 vacatIOn credIts were deducted by the Employer 2 . - Ms Pearce also testIfied that an employee can, wIth permIssIon, accumulate more than one year s vacatIOn credIts The Employer's pohcy m thIS regard IS as follows Use of DIscretIOnary Leave to replace VacatIOn Lost at Year-end. Where an employee IS unable to reduce earned vacatIOn to one year s entItlement by the end of the year due to * SIckness * total dIsabIhty * mJurv resultmg m a Workers CompensatIOn award, or * an extraordmarv reqUIrement of the employer and submIts a wntten request, the deputy mImster shall grant dIscretIOnary leave WIth pay under ArtIcle 30 1 of the CollectIve Agreement for the number of days equal to the vacatIOn lost at the end of the year (Ref CSC Mmute December 4, 1980) Such dIscretIOnary leave may be used to supplement the Short Term SIckness Plan or a WCB award or as days off WIth pay but may not be converted to a cash payment upon termmatIOn or commencmg to receIve L TIP benefits Ms Pearce further testIfied that after Mr Upshaw ceased bemg Umon PreSIdent m 1995 there was some confuSIOn about hIS return to work and her manager Bev Bell, mformed her that he would be usmg hIS vacatIOn credIts for a couple of months and then would let them know after that, what would happen. Ms Pearce testIfied that she had a dIscussIOn WIth Mr Upshaw m whIch she went over the number of vacatIOn days he had and when he would be out of credIts When asked If Mr Upshaw made any comments, she stated that she dId not thmk he agreed WIth It, that he felt he should have more, and that he dId not agree WIth the carrymg over part. She was not certam when thIS dISCUSSIOn took place, but stated that It was before he used up hIS vacatIOn credIts. On cross- exammatIOn, she was asked whether she had a dISCUSSIOn WIth Mr Upshaw about hIS Social Contract or "Rae days but she dId not recall that. She acknowledged, however that It could have happened and that her conversatIOn WIth hIm took place a long tlme 3 - ago She further acknowledged that It was "possIble" that her recollectIOn that the dIscussIOn concerned vacatIOn credIts rather than Rae days was flawed or confused. On re-exammatIOn, she stated that Mr Upshaw was the only former PresIdent of OPSEU wIth whom she had ever spoken. Mr Upshaw testIfied that he had a dISCUSSIOn wIth Ms Pearce, but that It was about Rae days. He emphatIcally demed that they dIscussed the number of hIS vacatIOn credIts. Mr Upshaw whose bargammg unIt posItIOn IS Nurse 2, GeneraL testIfied that when he returned to work, he met wIth the DIrector of Nursmg at the WhItby Mental Health Centre She mformed hIm that because of hIS long absence he would need to take a refresher course before he could return. He volunteered to take vacatIOn tIme to check out varIOUS programs, and was adVIsed by the DIrector of Nursmg to mform Human Resources that he would be takmg vacatIOn tlme Human Resources, m turn, adVIsed hIm to mform Payroll He then mformed the Payroll Clerk, Ms Pearce that he would be takmg vacatIOn for a couple of months He testIfied that he then ask.ed her about the status of hIS Rae days - how many he had and whether they were stIll applIcable because he wanted to use them up before hIS vacatIOn tIme He stated that Ms Pearce could not answer Ius questIOn and so they went to speak to her supervIsor, Ms Bell, where he agam asked If the Rae days would affect hIm. He testIfied that he dId not dISCUSS the number of vacatIOn credIts he had WIth her, that she dId not tell hIm that mformatIOn and that the subJect of hIS accumulated vacatIOn credIts dId not come up He testIfied that had she done so he would have filed a gnevance 4 - Mr Upshaw explamed that he had no reason to check hIS vacatIOn credIts smce he had been accumulatmg vacatIOn days for eleven years, but he dId not know how the Rae days would be treated and so asked about them. He testIfied that he dId not ll1qmre about hIS vacatIOn credIts when he subsequently dId return to work, although he penodIcally used vacatIOn and other credIts m 1996 and 1997 Exactly how much he was at work versus bemg away on leaves or usmg credIts dunng that penod IS not m the record. Accordmg to Mr Upshaw he was not at work very much, havll1g remamed on the Umon ExecutIve and other responSIbIlItles What IS clear however, IS that he remamed on umon leave untIl June 30, 1995, then used vacatIOn and Rae days untll September 1, 1995 and then went on a SIX week unpaid leave of absence for a umon proJect and then returned to work. Mr Upshaw stated that he first thought to check on hIS vacatIOn credIts after readmg about an OntarIO FederatIOn of Labour (OFL) employee who had taken a leave of absence to chalr an agency and was gnevmg hIS accumulated vacatIOn tlme whIle on the leave of absence That tnggered the questIOn for hIm, and after a MImstry Employee RelatIOns CommIttee meetmg m November 1997 he Illformally asked the Management Co-Chair whether he thought, gIVen the fact that he had been first V Ice- PreSIdent and PreSIdent for eleven years, that would be an extenuatmg CIrcumstance msofar as accurnulatll1g vacatIOn credIts. The Management Co-Chalr thought that It would and that he should check mto It, whIch Mr Upshaw then proceeded to do On cross-exammatIOn, Mr Upshaw demed that ImphcIt III that questIOn was an awareness that hIS vacatIOn 5 . - credIts had not been allowed to accumulate for eleven years He dellIed havmg any knowledge that hIS vacatIOn credIts had not been accumulatmg. Mr Upshaw further testIfied that at no tIme durmg hIS eleven years mUllIon office dId the Employer mform hIm that It was deductmg vacatIOn days from hIS account, or mdeed, thereafter untll Mr Upshaw requested an accountmg 111 November 1997 The Employer, other than through the testlmony of Ms Pearce, presented no testImollIal or documentary eVIdence that Mr Upshaw was ever advIsed of the number of hIS vacatIOn credIts dunng that tIme penod or that hIS vacatIOn credIts were annually bemg deducted so that he was carrymg over no more than one year s credIts Smce at least 1992, however, the partIes' collectlve agreement has reqmred a quarterly accountmg be gIven to employees. ArtIcle 34 of the 1992-93 collectIve agreement and ArtIcle 45 of the 1994-98 collectIVe agreement provIde as follows LEA VE CREDIT REPORTS As soon as practIcable followmg the end of each quarter, every employee shall be adVIsed of the number of vacatIOn and attendance credIts to whIch he IS entItled. Mr Upshaw testIfied that he receIved no such reports and dId not mqmre as to why not, nor what the status of hIS credIts were He stated that after he receIved the accountmg of hIS vacatIOn credIts, he filed the gnevance The followmg prOVISIOns of the 1994-98 collectlve agreement are also relevant. ArtIcle 23 5 I whIch states 6 . - (a) Upon request by the Umon, confirmed m wntmg, and provIded that reasonable notIce IS gIVen, leave of absence wIth no loss of pay and wIth no loss of credIts shall be granted to employees elected as ExecutIve Board Members and ExecutIve Officers of the Umon, for the purpose of conductmg the lllternal busmess affaIrS of the Umon. (b) On the understandlllg that leave requested under (a) WIll be kept to a mmImum, It IS agreed that extended leave of absence wIll be granted to four (4) employees III any calendar year for the purpose of conductlllg the mternal busmess affaIrs of the Umon. Each leave WIll be for a penod of mnety (90) consecutIve calendar days and only one (1) such employee WIll be absent at one tIme The leave shall be wIth pay and wIthout loss of credIts and reImbursement to the mInIstry shall be made as set out m ArtIcle 23 6.2 ArtIcle 23 6 1 whIch states When an employee IS elected as the Umon s PresIdent or FIrst VIce- PresIdent, the Umon WIll, mllnedIately followmg such electIOn, advIse the Employer of the name and mmIstrv of the employee so elected. Leave of absence wIth pay shall be granted from the employee s place of employement for the duratIOn of the current term of office ArtIcle 23 6 2 Durmg the term of such leave of absence, the Umon WIll reImburse the mll1Istry for the salary pald to the emplovee on such leave of absence and contnbute the Emplover's share of contnbutIOns to the OPSEU PenSIOn Plan and the Canada PenSIOn Plan. The Umon WIll make the Employer s contributIOn to any prevaIlmg health or other plans apphcab1e to the elected employee and pay the costs of attendance credIts accumulated durmg the leave of absence The Umon WIll make the Employer's contnbutIOns for Unemployment Insurance Substantially SImIlar prOVIsIOns eXIsted m the 1992-93 collectIVe agreement. Pursuant to ArtIcle 23 6.2, and ItS predecessor, the MInIstry bIlled OPSEU on a quarterly baSIS for Mr Upshaw s salary, plus 21 % for benefits Throughout hIS tIme m Umon office, Mr Upshaw receIved a paycheque from the MmIstrv for hIS salary as a 7 - Nurse 2 In addItIOn, as FIrst VIce-PresIdent and then PresIdent of OPSEU Mr Upshaw was entItled to compensatIOn and benefits from OPSEU whIch exceeded hIS government pay Thus, m addItIOn to hIS paycheque from the Mimstry he receIved a 'top up" to hIS Umon salary from OPSEU Under hIS compensatIOn package from OPSEU, Mr Upshaw was entItled to four weeks vacatIOn per year When he left Umon office, Mr Upshaw receIVed a final cash payment from OPSEU whIch mcluded, among other thmgs, hIS accumulated vacatIOn. Dunng hIS eleven years m office, Mr Upshaw accumulated approxImately 240 vacatIOn days, for whIch he was compensated at hIS dally rate of pay Mr Upshaw teStlfied that he was able to accumulate so many days because he used lIeu days, whIch he receIved for workmg weekends and statutory holIdays for tlme off mstead of vacatIOn days Arguments of the Parties The Employer first asserts that the gnevance IS untImely It contends that the testImony of Ms Pearce clearly establIshes that the gnevor knew m 1995 that hIS vacatIOn credIts had not accumulated durmg hIS umon leave and that, accordmgly a gnevance should have been filed at that tlme not two years later It submIts that Mr Upshaw was speCIfically told by Ms. Pearce what hIS vacatIOn credIts were and that he dIsagreed WIth the numbers but dId not file a gnevance As between the testImony of Ms Pearce and Mr Upshaw the Employer submIts that Ms Pearce IS the more credIble WItness It pomts out that she no longer works for the government and has nothmg to gam by her testImony m contrast to Mr Upshaw who hopes to receIve over 200 vacatIOn days worth 8 I approxImatelv $40 000 from thIS gnevance It contends that Ms Pearce was not hkely to forget her only conversatIOn wIth the former PresIdent of OPSEU The Employer submIts that It IS patently mcredIble that Mr Upshaw dId not ask. about or dISCUSS hIS vacatIOn credIts wIth Ms. Pearce at the tlme he returned to work, or mqmre about hIS credIts at any tIme thereafter as he clalmed. It asserts that It IS hIghly unlIkely that he used vacatIOn credIts and other credIts for two years wIthout knowmg or ever mqumng about the number of credIts that he had aVallable to use Rather It submIts that he knew about It but chose not to gneve untIl he learned about a SImIlar sItuatIOn mvolvmg an OFL employee who gneved that hIS vacatIOn credIts should have accumulated whIle he was on a leave of absence That, m ItS submIssIOn, explams hIS questIOn to the Management Co-Chalr of MERC about whether hIS unusual sItuatIOn should constItute an extenuatmg cIrcumstance that would allow hIm to accumulate hIS vacatIOn tIme dunng hIS years m Umon office It submIts that the questIOn makes sense only If he already knew that the vacatIOn credIts had not accumulated and was 1l1qumng whether an exceptIOn for hIS unusual CIrcumstances mIght apply under the Emplover s polIcy Accordmgly the Employer submIts that tills gnevance arIses under the 1994-98 collectIve agreement and thus the thIrty day tIme penod for filmg a gnevance begms when "the CIrcumstances gIvmg nse to the complamt have occurred or have come or ought reasonably to have come to the attentIOn of the employee. " In ItS VIew Mr Upshaw - 9 knew m 1995 about hIS vacatIOn credIts, but If not, asserts that he reasonably should have known about them and thus should have filed a gnevance at that tIme It submIts that the 1994-98 collectIve agreement applIes even though a portIOn of the credIts clalm precede the agreement smce that was the agreement m place at the tIme he filed hIS gnevance In support of thIS contentIOn, the Employer cItes to Kzarnic and Ministry of CorrectIOnal Services GSB No 126/76 (Swan, 1977) The Employer further submIts, however that even If thIS gnevance arIses under the 1992-93 collectIVe agreement, whIch used a subJectIve standard of the employee "first becommg aware of the complamt or dIfference" for determmmg when a gnevance must be filed, the outcome IS the same It contends that the outcome IS the same because Mr Upshaw learned about hIS vacatIOn credIts m 1995 and If he had a dIspute, he should have filed then. The Employer also contends that If I find the gnevance untImely, r should not exerCIse my dIscretIOn to extend the tIme for filmg the gnevance under SectIOn 48(16) of the Labour Relations Act To allow a two year delay would be contrary to the partIes mtent of adJustmg gnevances m a qmck and expedItIOUS manner and would make a mockery of the tIme hmIts m the gnevance procedure The Employer further submIts that Mr Upshaw's lack of dIlIgence m ascertammg hIS vacatIOn credIts contnbuted to the delay whIch should be conSIdered bv the Board. In support of thIS VIew the Employer CItes to OPSEU (Jolv) and Minzstry of Solicitor General and Correctional Services GSB 10 No I 009/97 (Brown, 1998) Accordll1gly the Employer submIts that I should dIsmIss the gnevance as untimely On the ments, the Employer contends that Sll1ce Mr Upshaw s leave falls under 23 6 1 whIch states only that a "[l]eave of absence wIth pay shall be granted", rather than under 23 5 1 whIch states that the "leave shall be wIth pay and wIthout loss of credIts " that Mr Upshaw was not Immune from losmg credIts. It submIts that lIk.e every other employee on a leave wIth pay Mr Upshaw was subJect to ArtIcle 46 5 whIch allows an employee to carry forward only one year s vacatIOn credIts It further submIts that the dIfference m leave language IS based on the fact the leaves under ArtIcle 23 5 1 are temporary and the employees ll1volved may take theIr vacatIOn, whIle the leave under ArtIcle 23 6 1 IS for a two-year penod dunng whIch the employee camIOt take vacatIOn. The Employer further submIts that Mr Upshaw already receIved hIS eleven years of vacatIOn pay - from OPSEU - and now wants to collect vacatIOn credIts for the same eleven years from the Employer It contends that to allow the gnevance would award hIm a double benefit. The Employer also contends that ArtIcle 46 5 IS clear rf an employee has not used hIS vacatIOn, he IS reqmred to reduce It to a maxImum of one year's accrual by December 31 If not, the credIts WIll be reduced by the Employer and thIS, accordll1g to Ms Pearce IS regularly done In thIS regard, the MImstry acknowledges that Mr Upshaw, whIle on leave as Umon PreSIdent, could not be reqmred by the Employer to use hIS vacatIOn. As II . a result, It asserts that the MmIstrv properly reduced Mr Upshaw s vacatIOn credIts to the one year maXImum accrual and treated hIm hke all other employees The Employer submIts that by seekmg to be allowed to carry forward vacatIOn credIts of more than one year, Mr Upshaw IS seekmg a benefit to whIch he not entItled and the Board has no authonty to order In the Employer s VIew, Its mterpretatIOn of the collectIve agreement IS the only sensible one Fmally, the Employer submIts that the Umon has not paId for thIS vacatIOn benefit that Mr Upshaw now seeks. It contends that the Emplover pays an employee for 48 weeks of work (and four weeks of vacatIOn) or 47 weeks of work (and 5 weeks of yacatIOn) for a total of 52 weeks It does not pay for 52 weeks of work plus 4 or 5 weeks of vacatIOn. Accordmgly, It contends that Mr Upshaw was already pald for 52 weeks for each year he was on leave, and asserts that he IS not entItled to be pald for more It asserts that should I order thIS, I should also order Umon to reImburse the Employer The Umon submIts that the gnevance IS tImely under both the 1994-98 and 1992- 93 collectlve agreements It contends that the eVIdence estabhshes that Mr Upshaw dId not know nor reasonably should have known that the Employer had deducted vacatIOn credIts untIl he requested and obtamed an accountmg from the Emplover m November 1997, after whIch he promptly filed a gnevance It submIts that for the eleven years Mr Upshaw held umon office, the Employer never mformed hIm that It was deductmg hIS vacatIOn credIts, never mformed hIm that he had too much vacatIOn on the books and had to reduce It, nor proVIded hIm wIth a quarterly report as reqmred by the collectIve - 12 agreement. There was no reason, It submIts, for Mr Upshaw to be concerned about hIS vacatIOn credIts or about theIr accumulatIOn untll he heard about the sItuatIOn of the employee on leave from the OFL whIch led hIm to questIOn hIS own status The Umon also asserts that Mr Upshaw IS a credIble WItness Although It acknowledges that hIS vacatIOn entItlement IS at stake m thIS gnevance, It submIts that hIS reputatIOn IS also at stake, and that he would not nsk that reputatIOn before thIS Board. The Umon notes that Bev Bell could have been, but was not, called to refute Mr Upshaw's testImony Further the Umon asserts that the Mimstry cannot fault Mr Upshaw for not checkmg hIS vacatIOn credlts or contend that the gnevance IS untImely because he "ought" to have known when the Employer VIOlated Its contractual oblIgatIOn to mform hIm about those credIts It submits that an employee IS not oblIgated to request mformatIOn about hIS credIts, the MmIstry lS obl1gated to prOVIde It. Although the Umon asserts that the gnevance IS tlmely under both the 1994-98 and 1992-93 collectIve agreements, It submIts that It IS the 1992-93 standard should apply i i to thIS gnevance because It governs the penod at Issue To apply the latter collectIve , i I I I I agreement would, m ItS submIssIon, amount to a retroactIve applIcatIOn of the collectlve i i i I agreement whIch dId not become effectIve untIl March 31 1996 In support of ItS I i I I posItlon, the Umon CItes to Re Speczalty Foods Dzvision, Multifoods Inc and U F C W I I ! (1993) 38 L.A.C (4th) 396 (Knopf) Re Bell Canada and Communications Workers of I - ! ! ~ [ 13 ~. r i. i r . Canada (1984) 15 L.A C (3d) 27 (M. PIcher) OPSEU (Pierre) and Ministry of Correctional Services GSB No 0492/86 (Venty 1988) and Mznlstry of Correctional Services v OPSEU and the Grievance Settlement Board [1990] 74 O.R. (2d) 700 (H C) It submIts that the standard whlch applIed at the tIme the VIOlatIOn occurred should control The Umon also contends that Employer's deductIOn of Mr Upshaw's vacatIOn credIts constItutes a contmumg VIOlatIOn and that the gnevance should be conSIdered tImely on thIS basIs as well In support, the UnIon CItes OPSEU (Aubzn) and JvJinzstry of Correctional Services, GSB No 515/88 (Knopf) Further the UnIon contends that even If the gnevance IS deemed untlmely I should exerCIse my dIscretIOn under ArtIcle 48 (16) of the Labour Relations Act to extend the tlme lImIts III thIS case It submIts that there are good grounds for grantmg an extensIOn and that the Employer has suffered no preJudIce m ItS abIlIty to present ItS case rn support, the UnIon CItes OPSEU (Palazzo) and St. Lawrence District Ambulance Service Ltd GSB No 1455/97 et al (Abram sky 1998) On the ments, the UnIon asserts that Mr Upshaw s leave IS subJect to the protectIOns of "no loss of salary or loss of credIts" set forth m ArtIcle 23 5 1, smce he was, at all tImes, a member of the UnIon executIve. It submIts that the mtent of ArtIcle 23 IS to enable employees to seek Umon office wIthout loss of salary or benefits. It contends that Mr Upshaw as both FIrst-VIce PreSIdent and UnIon preSIdent, was entItled 14 to no less protectIOn than other executIVe officers In thIS regard, It asserts that ArtIcle 23 6 1 IS a subset of ArtIcle 23 5 1 and the protectIOn agamst "loss of credIts" IS equally applIcable Further the Umon contends that under a "leave wIth pay" an employee IS entltled to accrue vacatIOn credIts whIch the Employer annually dId, and the only questIOn IS whether under ArtIcle 46 5 the Employer was entItled umlaterally to deduct those vacatIOn m excess of one year s accumulatIOn. In Its vIew the answer IS "no" because that would mvolve a loss of credIts III vIOlatIOn of ArtIcle 23 5 1 It further submIts that where the employee, lIke Mr Upshaw has no OpportunIty to use hIS vacatIOn credIts, the Employer cannot umlaterally reduce them. rn ItS VIew there are other ways to "reduce" an employee s vacatIOn credIts such as through a buy-out, wIthout umlaterally deductmg them. Flllally the Umon submIts that allowmg the gnevance would not be gIVlllg Mr Upshaw a double benefit. It submIts that Mr Upshaw s entItlements under the collectIve agreement are completely separate from hIS entItlements WIth OPSEU Decision A. The Timeliness Issue Normally the first questIOn to be deCIded IS whIch standard applIes - the subJectlve standard set forth m the 1992-93 collectIve agreement or the obJectIve standard -. 15 . set out m the 1994-98 agreement. For the reasons set forth belo'A-, I conclude that I need not resolve that Issue because under eIther standard the gnevance IS tImelv Under the subJectIve standard, the Issue IS whether Mr Upshaw knew, m 1995 what hIS vacatIOn credIts were and should thus have gneved at that tIme. OPSEU (pzerre) and Minzstry of Correctional Services, supra ThIS Issue squarely raises the dIrectly opposmg testlmony ofMs Pearce and Mr Upshaw I certamly found Ms Pearce to be candId and credIble She testIfied honestly about her recollectiOn of the conversatIOn. She had no reason to lIe or fabncate her testImony But she also candIdly acknowledged that her recollectIOn could be flawed, gIven the passage of so much tlme - approxImately 3 1/2 years She acknowledged that It was possIble that she was confused about the subJect matter of theIr dIscussIOn - Rae days or vacatIOn credIts In contrast, Mr Upshaw was adamant that the v dId not dISCUSS the number of hIS vacatIOn credIts, but that he mqmred solely about hIS Rae days, first wIth Ms Pearce and then wIth Bev Bell. His recollectIOn was clear and defimte and I note that Ms. Bell could have been called to refute hIS testlmony but was not. Further, hIS explanatiOn that he dId not ask about hIS vacatiOn credIts or dISCUSS them because he belIeved he had been accumulatmg them for eleven years (and thus would have had m excess of 200 credIts) IS credible WhIle he stlll mIght have asked, Just to be sure, the fact that he dId not IS understandable gIven hIS umque sItuatiOn. - 16 . . It IS certamly true, as the Employer suggests, that Mr Upshaw has a motIve to he m tlus case There are 228 5 vacatIOn credIts at stake worth m excess of $40,000 Yet, as the Umon suggests, Mr Upshaw has hIS reputatIOn and credIbIlIty on the lme Further, I find It hard to beheve that Mr Upshaw would not have filed a gnevance had he been mformed of hIS credIts and vOIced dIsagreement about It, as Ms. Pearce stated. r find It far more lIkely that he dId not know than that he knew dIsagreed wIth what the Employer dId and stIll dId not file a gnevance Not gnevmg somethmg that he dIsagreed wIth sImply does not comcIde wIth hIS actIve support of Umon nghts and the collectIVe agreement throughout hIS career As he testIfied, had he known, he would have filed a gnevance then. Agam, It IS pOSSIble as the Employer pOSItS, that Mr Upshaw knew about hIS credIts and chose not to gneve because he dId not beheve the Employer s actIOn VIOlated the collectIVe agreement - untIl he heard about the OFL employee But under the umque facts of thIS case I find It more probable that he dId not know Consequently for the reasons stated, I credIt Mr Upshaw s recollectIOn of hIS conversatIOn WIth Ms Pearce and conclude that he was not mformed of hIS vacatIOn credIts m 1995 Nor IS there any eVIdence that he was mformed before or after that tIme, untll November 1997 Although, arguably, a concern that hIS vacatIOn credIts had not accumulated dunng hIS umon leave IS ImplICIt m Mr Upshaw's questIOn of the MERC - 17 . Co-Chair regardmg whether hIS umque cIrcumstances JustIfied an exceptIOn to the usual non-accrual pnncIple that alone does not estabhsh knowledge that hIS credIts had not accumulate Clearly, he was concerned based on the OFL employee sItuatIOn. But that does not estabhsh that he, III fact, knew that they had not accumulated over the eleven years he was on Umon leave Under the obJectIve standard set forth m the 1994-98 agreement, the Issue IS whether Mr Upshaw ought to have known about hIS vacatIOn credIts III 1995, or thereafter OPSEU (Joly) and Minzstrv of Solzcitor General and Correctional Services supra ThIs IS an even more dIfficult mqmry The eVIdence establIshes that Mr Upshaw dId not mqmre about hIS vacatIOn credIts long after he mIght have done so rndeed, arguably long after It was reasonable for hIm not to have done so But, as noted above hIS SItuatIOn was hIghly unusual rn hIS VIew he had accumulated hundreds of credIts and nothmg had happened to lead him to questIOn It. There was no eVIdence that he used up credIts m 1995, 1996 or thereafter More Importantly the Mimstry failed to notlfy hIm about hIS vacatIOn credIts even though It was contractually reqmred to do so Under ArtIcle 45 1 of the 1994-98 colleCtlve agreement and ArtIcle 34 of the 1992-93 agreement, the MmIstrv had an oblIgatIOn, quarterly to adVIse each employee "of the number of vacatIOn and attendance credIts to whIch he or she IS entItled." There was no testlmomal or documentary eVIdence that thIS was ever done rn mv VIew the MImstry cannot rely on Mr Upshaw s fallure to check hIS 18 vacatIOn credIts when the MmIstrv faIled to fulfill ItS contractual responsibIhtv to mform hIm. A somewhat sImIlar sItuatIOn arose III OPSEU (Aubin) and Jvfinistry of Correctzonal Services GSB No 515/88 (Knopf, 1988) In that case, the Issue was not one of tImelmess smce both SIdes agreed that the fallure to gIve the gnevor proper vacatIOn credIts amounted to a contmulllg gnevance Instead, It mvolved the "twenty day" rule m terms of relIef and whether It should be relaxed. The Board noted that the "twenty day" rule was developed to alleViate unfairness to the employer If an arbItratIOn board could Issue a remedy extendmg beyond the tlme that the employer realIzed (through the filmg of a gnevance) that ItS actIOns were belllg put lllto questIOn. The Board accepted that "there would be an unfairness to an employer to allow a contmumg breach to go unopposed and then to have the allegatIOn of VIOlatIOn spnng upon the employer by a long delayed gnevance "(p 6) But m the case before It, the Board decIded to relax the rule WhIle the employer dId not know that ItS deductIOn of the gnevor's vacatIOn credIts would be challenged, the gnevor was unaware that the Employer had been deductlllg hIS credIts The Board contlllued at p 6-7 Thus, neIther party seemed to know what the other was domg. However m a SItuatIOn where an employer has breached the collectIve agreement and the umon or the employee has no way of knowmg or bemg mformed that the breach took place the umon or the employee cannot be expected to i launch a challenge agamst the employer's Improper conduct. Nor can they be deemed to have lost or abandoned theIr nghts under the collectlve agreement. The gnevor had no way of knowmg that the Employer was Improperly fallmg to credIt hIm WIth vacatIOn credIts. The Employer's lllternal system of calculatmg vacatIOn credIts was not commumcated to the gnevor or the Umon. The gnevor cannot be held responSIble for not havmg mformed 19 I , hImself because he IS entItled to presume that the collectIve agreement IS bemg applIed correctly rn thIS case, whIle It IS certamly arguable that Mr Upshaw should have checked hIS credIts and thus reasonably ought to have known about the Employer s actIOn well before late 1997, the MinIstry s fallure to meet ItS contractual obhgatIOn to mform hIm, eIther dunng the eleven years he was on leave or thereafter that It had been deductmg hIS vacatIOn credIts, precludes that MmIstry from relymg on hIS fallure to check. Because the MinIstry was reqmred to mform the gnevor about hIS vacatIOn credIts and dId not do so, the gnevor cannot be held responsible for not havmg mformed hImself and the Mimstry cannot rely on that fallure to clalm that he reasonably ought to have known. Thus, for the reasons stated, I conclude that under eIther standard for estabhshmg when a gnevance must be filed - the subJectIve standard of the 1992-93 collectlve agreement or the obJectIve standard of the 1994-98 agreement - the gnevance IS tImely B. The Merits On the ments, the Issue IS whether the Employer may unIlaterally deduct vacatIOn credIts from the gnevor under ArtIcle 46 5 That proVISIOn states as follows An employee may accumulate vacatIOn to a maXImum of tWIce hIS or her annual accrual but shall be reqmred to reduce hIS or her accumulatIOn to a ma'CImum of one (I) year's accrual by December 31 of each year The Umon first contends that the deductIOn amounts to a "loss of credIts" prohIbIted by ArtIcle 23 5 I whIch states, m part, that "(a) leave of absence WIth no loss of pay and WIth no loss of credIts shall be granted to employees elected as ExecutIve 20 . . Board Members and ExecutIve Officers of the UnIon." The Employer contends that Mr Upshaw s leave was not based on ArtIcle 23 5 1, but based on ArtIcle 23 6 1 whlch specIfically deals wIth the SItuatIOn when an employee 'IS elected as the UnIon s PresIdent or FIrst VIce-PresIdent" and states that a "[l]eave of absence wIth pay shall be granted from the employee s place of employment for the duratIOn of the current term of office" After carefully revIewmg ArtIcle 23 m ItS entIrety I conclude that Mr Upshaw s leave IS governed by ArtIcle 23 6 I whIch deals wIth an employee "elected as the Umon s PresIdent or FIrst VIce-PresIdent" not ArtIcle 23 5 I whIch deals wIth the "employees elected as ExecutIve Board Members and ExecutIve Officers of the UnIOn." WhIle the Umon PresIdent and FIrst VIce-PresIdent are also ExecutIve Board Members and ExecutIve Officers, ArtIcle 23 5 1 clearly deals wIth the electIOn of four employees as Executlve Board Members or Officers and further states that "leaves requested under (a) WIll be kept to a mInImum" and that extended leaves of absence wIll be granted to four employees, each for a penod of nmety days, WIth only one employee absent at one tIme In contrast, the leave allowed under ArtIcle 23 6 1 for the Umon PreSIdent and FIrst VIce- PreSIdent IS "for the duratIOn of the current term of office" Consequently the leave enJoyed by Mr Upshaw IS governed by ArtIcle 23 6 1 and It IS a "leave wIth pay " It does not speCIfically guarantee "no loss of credIts rn so rulmg, I cannot agree wIth the Umon that ArtIcle 23 6 1 IS a subset of ArtIcle 23 SlIt IS not structured that way; It IS structured as an mdependent clause r have also conSIdered 21 . the Umon s argument that thIS would provIde the Umon PresIdent and FIrst VIce- PresIdent wIth less protectIOn from loss than ellJoved by other members of the Ul110n ExecutIve That may be true, but, as the Employer asserted, there may be reasons, gIven the length of the leave, that a dIfferent standard apphes. The language employed m ArtIcle 23 5 1 and 23 6 I IS dIfferent, and the dIfference means that the Ul110n PresIdent and FIrSt VIce-PresIdent enJoy no absolute protectIOn agamst loss of credIts But that conclusIOn does not mean that the Emplover properly deducted the gnevor s vacatIOn credIts Pursuant to ArtIcle 46.2, an employee IS "entItled to vacatIOn credIts m respect of a month or part thereof m whIch he or she IS at work or on leave wIth pay" As a result, at the commencement of each year Mr Upshaw was credIted wIth vacatIOn credIts In December of each year, the Employer deducted the vacatIOn credIts m excess of one year s accumulatIOn. Consequently, the Issue stlll remams as to whether the Employer could properly deduct Mr Upshaw s vacatIOn credIts under ArtIcle 46 5 In decIdmg thIS Issue, It IS Important to look at both ArtIcle 23 (Leave - Ul110n ActIvItles) and ArtIcle 46 5, and the purpose for each prOVISIOn. Accordmg to the Ul11on, the purpose of ArtIcle 23 IS to enable employees to seek and accept Umon office wIth no loss to themselves as provmcIal employees Thus, employees who are elected as FIrst VIce-PresIdent and PresIdent enJoy a "leave wIth pay" for the duratIOn of theIr term of office In addItIOn, It IS clear from ArtIcle 23 6.2 that thIS leave IS to be fully pald for by the Umon. The Umon pays the elected employee s mImstry for the employee's salary, the Employer s share of both the OPSEU PenSIOn Plan and the Canada PensIOn Plan, the 22 Employer s health benefit contnbutIOns and the costs of attendance credIts whIch accumulate dunng the leave of absence The Umon also pays the Mimstry s contnbutIOn for Unemployment Insurance Thus, the leave of absence provIded III ArtIcle 23 6 1 IS wIthout cost to the Employer The purpose of ArtIcle 46 5 IS to prevent large accumulatIOns of vacatIOn tlme It ensures that employees use theIr vacatIOn tIme, not accumulate It then take It causmg operatIOnal dIfficultIes for the Employer Employees, under ArtIcle 465, must use theIr vacatIOn by December 31 or lose It. The problem here IS that the gnevor whIle on umon leave, was not able to use hIS vacatIOn credIts Both partIes recogmze thIS. Dunng that leave, Mr Upshaw worked for OPSEU and could not return to work wIth the MlllIStry Just to use hIS vacatIOn credIts. But as the Umon suggested, there are other ways to "reduce" an employee s vacatIOn credIts such as through a buy-out. Another way IS through payment for the tlme In thIS case, Mr Upshaw was pald hIS full salary by the Mimstrv 52 weeks per year for the eleven years he was on umon leave Included m that sum was mItIally four weeks of vacatIOn, and later five weeks of vacatIOn. Consequently, although the gnevor dId not phYSIcally use hIS vacatIOn tIme, he was pald for It. In thIS regard, I agree WIth the Employer that an employee s annual salary lllcludes vacatIOn tlme An employee IS paid for 48 weeks of work and four weeks of vacatIOn, or 47 weeks of work and five weeks of vacatIOn. He IS not pald for 52 weeks of vacatIOn plus four or five weeks of vacatIOn. i 23 , Consequently smce the gnevor was pmd for hIS vacatIOn credIts, the Employer properly deducted hIS vacatIOn credIts to reflect that payment. To rule otherwIse would, III effect, grant Mr Upshaw a wmdfall It would, m effect, pay hIm for 52 weeks of work plus four or five weeks of vacatIOn for each year he was on leave ThIS would contravene the llltent of ArtIcle 23 6.2 of ensunng that the leave be wIthout cost to the Employer Further the rulmg IS conSIstent WIth the llltent of ArtIcle 23 to protect employees who seek Ulllon office from loss Because Mr Upshaw already receIved hIS vacatIOn tIme through receIpt of hIS salary, the Employer s deductIOn of hIS vacatIOn credIts could not constltute a "loss" to hIm. The deductIOn was a reflectIOn of the Employer s payment of hIS vacatIOn tIme Flllallv, the rulmg IS conSIstent WIth the llltent of ArtIcle 46 5 to aVOId large accumulatIOns of vacatIOn credIts My rulmg III thIS matter however IS lImIted to the speCIfic facts of thIS case ObVIOusly there are other tlmes when an employee cannot reduce hIS or her vacatIOn credIts The Employer s pohey "Use of DIscretIOnary Leave to Replace VacatIOn Lost at Year-end" deals WIth some of those SItuatIOns SpeCIfically, It deals WIth Illness, dIsabIlIty, mJury resultmg m a Workers' CompensatIOn award or an extraordmary reqmrement of the employer, and states that, upon wntten request, the "the deputy mlllIster shall grant dIscretIOnary leave WIth pay .for the number of days equal to the vacatIOn lost at the end of the year My rulmg should not be read to negate thIS pohcy 24 . Further It must be emphasIzed that, m general, there IS nothmg wrong wIth the Employer s deductIOn of vacatIOn credIts of employees who do not reduce theIr total accumulatIOn by year end The employee has some control over the sItuatIOn - they can plan and use theIr aVallable credIts throughout the year and they are on notIce that If they do not use them, they wIll be deducted. Consequently, If they do not reduce the credIts, the employer can properly deduct the excess Fmally m so rulmg, I dId not consIder It relevant that Mr Upshaw has already been pald a substantlal sum, by OPSEU, for hIS vacatIOn dunng the penod m questIOn. Mr Upshaw s entItlements under hIS agreement WIth OPSEU are separate from hIS entltlements under the collectlve agreement. The Umon s generosIty to Its leadershIp or lack thereof, does not affect the gnevor s nghts, as an employee, under the collectIve agreement. Conclusion For all the reasons set forth above r conclude that the gnevor s nghts under the collectlve agreement were not vIOlated when the Employer annually deducted vacatIOn credIts m excess of one year s accrual dunng the penod of hIS umon leave The Employer's payment to Mr Upshaw of hIS full salary each year mcluded hIS vacatIOn entItlements, and accordmgly the Employer's deductIOn of the vacatIOn credIts was proper The gnevance must therefore be dIsmIssed. 25 I ~ Dated III Toronto OntarIO thIS 8th day of March, 1999 alr 26