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HomeMy WebLinkAbout1984-0223.Kellogg.84-07-31IN THE MATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD BETWEEN: BEFORE FOR THE GRIEVOR: FOR THE ENPLOY'ER: HEAEING DATE: OPSEU (R. Kellogg) Grievor - and - The Crown in Right of Ontario (Kinistry of Correctional Services) Employer N. Gorsky Vice Chairman H. Simon Kember J. Korrow Member P. A. Sheppard Grievance Officer Ontario Public Service Employees Union J. F. Benedict !:anager Staff Relations Personnel Branch Kinistry of Correctional Services Kay 11, 1984 DECISION The Grievor, R. Kellogg, is a Correctional Officer 2, employed by the Ministry of Correctional Services at the Metro Toronto West Detention Centre ("M.T.W.D.C.") and has been employed by the Ministry for approximately six and one-half years. On March 8, 1983, he submitted anapplication for a lieu day request for Sunday, March 20, 1983, and noted on the applic- ation that he had lieu time banked for this purpose (Exhibit 6). The request was refused on March 9, 1983, on behalf of the Ministry, the reasons for the dismissal, as written on Exhibit 6, was "not 14 days notice - also cannot be granted on $3 shift." It was agreed that the Grievor would normally be working the number three shift from 11:OO p.m. to 7:00 a.m. on the lieu day requested. I am satisfied that the application was submitted on March 8, 1963 and not on March 9, 1983. The Griever'! recollection of the date was clearer than that of Mr. N.L. Jones, the representative of the Employer to,whom it was submitted, and who had the final say for the Employer on the matter. On Xarch 19, 1983, the Griever filed the two grievances which are now before this Soard. Gr-ievance 223/83 contains the following statement of yrievance: "Unjust procedural guidelines regarding lieu time." Grievance 224/84 contains t!le following StateIWnt of grievance: ~.__ -3- : + The Grievor testified that the application for the single lieu day was made by him (Exhibit 6), because he wished to have an additional day off, to be added to four days then due to him in order to enable him and his wife to visit the home in Groton, Connecticut, where they had originally met. The trip had a great deal of sentimental significance for them as the home was being sold by their friends, the present owners. The Grievor testified that, with travelling time, four days would furnish inadequate time to satisfactorily accomplish their purpose. The difficulty faced by the Grievor arose out of the existence of a memorandum dated January 6, 1982,to all correc- tional staff at the M.T.W.D.C., prepared by Mr. Jones, the then Senior Assistant Superintendent,which is part of Exhibit 6, and which the Grievor was aware of. The relevant portions of the memorandum state: "Time Off The procedural guidelines outlined below will apply as follows: 1. Time off requests regarding single lieu days and vacation days must be submitted no later than two weeks prior to requested time off date. 2. Time off requests regarding single lieu days or vacation days will be accepted no sooner than one month prior to time off date. 3. YOU will receive the answer to your request no later than one week prior to requested time off date." A clarification memorandum with respect to requests for time off \<‘a~ .issued by >ir. Jones on July 21, 1982, being part of Exhibit 6,and is as follows: - 4 - "The present system of requesting/receiving Vacation, single vacation days, lieu days or shift changes would 2 4 appear to have the desired degree of flexibility that the system was designed to give. However, problems have been experienced in the timing of such requests and in some areas a certain amount of manipulation of the system is occurring. This is resulting in an increasing number of denials and aqgrevation in attempting to administer the system in fairness to all concerned. Staff members are submitting requests for time off for weddings, family affairs etc. when they were fully aware of the impending affair months previously. However, staff are submitting their requests three days prior to the event expecting full consideration to be given to their request. "In an effort to give the system a greater degree of conform- ity and fairness the following system will go into effect on receipt of this,memo. I must remind all staff that in emergencies every consideration will be given and the following rules will not apply. "A new form has been designed which relieves the staff member from submitting separate memos for the desired time off. This form covers the three categories and only one need be submitted and re-submitted until the desired change is achieved. Therefore prior .to a shift change being granted as marked in area "D", areas "A" and "B" will have to be denied and recorded in area "C". “The following time limits have been set which it is,felt under normal circumstances will accommodate the requests. Lieu Day: Requests are to be submitted to the appropriate authority approximately two weeks prior to the day requested as time off. You will receive an answer at least one week prior to the requested day off. Lieu days will not be granted until ear-ned. Sinale Vacation Day: Requests are to be submitted at least two weeks prior to the requested day off to the appropriate authority. Single vacation days will only be qranted when the staff member has no lieu time banked. YOU will rscieve your answer one week prior to the requested day off." The Grievor testified that he submitted his application for a lieu date (Exhibit 6) to Xr. Jones, a 12roner i;,anaqement authority, and explained to him the reasons for the request, as above oiltlined. 5: r . hones indicated to the Griever that he would submit the apslication to T. O'Connell, i,:h0 b:as then the sche<ulinq officer xi%h the responsibility for vetting such applications. It is likely that Mr. O'Connel received the ; _~C application from Mr. Jones on March 9, 1983, however, I accept the Griever's evidence that he submitted it to the Employer on March 8th. As noted above, the Grievor was aware of the memorandum of Mr. Jones concerning time-off requests but concluded that he was entitled to favorable consideration under the elaboration on the guidelines of January 6, 1982, as contained in the memorandum of Mr. Jones of July 21, 1982, where, under the heading cf "Lieu Day", it was stated: "Requests are to be submitted to the appropriate authority approximately two weeks prior to the day requested as time off . ..." As weL1, the Grievor believed his application was entitled to favourable treatment because the memorandum of July 21, 1982, contained the following statement in paragraph two: "in an effort to give the system a greater degree of conformity and fairness the following system will go into effect on receipt of this memo. I must remind all staff that in emergencies every consideration will be given and the following rules Gill not apply." in the view of the Grievor, the distance between Toronto and his destination in Groton, Connecticut was so great that he was entitle< to favourable consideration in the light of the statements contained in the second paragraph of the memorandum of J,ly 21, 1982. If such guidelines were binding, I could not reqard the Griever's situation as constituting an emergency as ccnte:,olated in the guidelines. The Griever testified that he first received notification : 17. a ; 13 i 5 application had been rejected on Xarch 10, 1983, as he -6- ' wasicoming off shift. The copy of the rejection, as set out .n Exhibit 6, had been placed in his box. Upon learning of the rejection of his application, for the reasons endorsed on the form, as above set out, the Grievor immediately took the matter up with Mr. Jones. He said that he reviewed his reasons for the request with Nr. Jones in an effort to demonstrate that it had not been made frivolously. He also showed Mr. Jones a copy of an Award, dated Yarch 23, 1982, made by a Board, chaired by R. L. Verity, O.C., arising out of an arbitration under the Crown Employees Barqaining Act, between O.P.S.E.U. and.the Crowns in the Right of Ontario,' as represented by the Ministry of Correctional Services, Grievance of Douglas Tremblay. An application for Judicial Review of the Award was subsequently dismissed on September 2, 1983,by the Divisional Court of the Supreme Court of Ontario. The Tremblay case involved an alleged violation of Article 19.4 of the relevant collective agreement by the Employer,because of its failure to grant a requested statutory lieu day to the Grievor, in that case, Douglas Tremblay, on April 25, 1981. Articles 19.1 to 19.5 of the relevant agreement are as follows: ">ztticle 19 - Eolicay Papent 19.1 \r'here a~. emsloyee works on a h01iZ~y inclueed unher Article 47, F;olidays, (sic) he ~5211 be paid at the rate of *j-e L -.I, 2nd one-half (l-1/2) for a11 hOUrS ,gorked v,.-;lth a miniram credit of s5'ieE and one-cuarter (7-l/4) or eight (2) 'n0.x s , as applicable. - 7 - 3 i 19.3. When a h li ay included under %olidays?slSfincides with an ,m~,t~,C~ZS"" scheduled.day off and he does not work on that day, the emplovee shail be entitled to receive another Aay off. 19.4 Any compensating leave accumulated Under sections 19.2 and 19.3 may be taken OF+ at -- a time mutually agreed upon. Failing agree- ment , such time off may be taken in con;unction with the employee's vacation leave or regular day(s) off. 19.5 Any compensating leave accumulated under sections 19.2 and 19.3 5n a calendar year which is not used before Narch 31 of the following year shall be paid at the rate it was earned. Effective Xarch 1, 19i8, the xarch 31 date may be extended by agreement at the local or ministry level. The like provisions of th,e Current Collective agreement is the same except for Article 19.1, where "two (2). times" replaces “time and one-half (l-1/2)." The following r-elevant portions of the Treinblay Award are reproduced. "The material facts are not in dispute. T?.e Griever is --i ,zzs Lr'ied as a Corzecticna- -- 1 Officer 2 at the Waterloo Detenticn ; c E :: zza, ar!c Lx eat capacity he works on a rotatics shift basis. Tke criavor has 'bee2 er,?loyed at The Katerl00 Centre for soae :bmrfe years, and has been with ;be TCinistry fcr approxiynately .:i:e years. "Tbe ,=\r<de--ce i>+cr*f=s ch2.t Each ccrrecsiona1 Officer ;' c z :i: 5 s e -: e :. to eicl-.: scnsec~~zive Civs i;? cne cf c:qree rc:a:i=c ,s.:.I.:rs (3ay Shift -- 730 a.m. tc lrO0 3.a. ; .l.fter:ocr. Chif: -- 3 : : 0 ;. .Y. ;o 11:PO F.z.; ::ich: S?.ift -- li:OO 3-m. CO 7:00 a.m.). -a- / G. f :e‘T seven or eight consecutive days on one shift, the Officer xccld'be entitled to two davs o;f before rotating s:hifts, -- 5.21 -lterAatively four days off according to the scheduling. 10 Douglas Tremblay had been required to .wor:< cn stat-tory bclidays, and as of February of 1981 he had seven StatutOIy hciida:Js acc.mulated to his credit. " on February 5th, .the Griever silbmitted 2 r2queSt 12 qiritigg for days off work, a+mely Friday, April 24th and Sat..~rCaY, 2 2 r 11 25th, to be t&en as "lieu days". On rebruazy 1Oth, he ~-as atvised iti writing that April 24th had been granted, but AsrF1 25th :~as ndt acceptable. Gntil this point iA time, there was r.0 crel cc;;ir.unication between.the ?arties. Subsequently, on Februazry 12th, the Griever spoke wi'& Serkeant 2. C. Eolley who was in charge of staff scheduling L?d a PC. Mowle, the Shift Supervisor, 50~ ~-he :+guzposes of re iterating his request. The GrF.evor stated the reasoa for iis request, namely his desire to take lieu days to sartici=a>e ZT -.1 a bc%liqc tocrnL7ent and 5anGuet on the days in guestion. Ee 25cL2 2 t the aeetinq of ?ehr-uary 12, 1981, referred to: AS the differences between the parties could no t be esolved -9- a*.?. second meeting was held between the Grievor and Y!. xolley in the presence of the Unibn Representative,Steven ;~~-istrong, on. ?ebr.,iary 17th. At that meeting, the Grievor's evidence was to the eff ect that he relied upon the wording cf &;Lrticle 19.: 'of the Colleqtive Agreement to justify the request to take April 25th as a. I- iles day 1.1' '<The Union's argL;ent is that under 19.4, the Ziqloyee has the r ight to reTLest the lieu day for compensating leave accumulated under 19.2 and 15.2 s.&ject to a ;nutual agreement between the Parties. in the absence of 2. mut~dal agreement, the discretion reverts'back to the Zqloyee to 6etenir.e whether he will take time off in conjunction with his vacation or regular days off (19.4) or to allow them to accumulate to his credit and to be cashed out at the eD2 of the calendar year cneer 19.5. In the absence of a mutual agreement, it was the Uaion's 00sitrc,n that the 27plovee would have the unfettered right to deter- xnine the schelulinc of the lieu day or days 2rc3iding 5at these da.l;s are t+:<en in conjunction Fith the EmFloyee's vacation or regular cays Off. i n e55ence it was ',e Unicn's Fosition that in the abse:ce 12, a ~2rx;l agreement, the Sr.~loyer ' s denial was i.m?rc?er a22 t:-.a: t.'e r3,7!>loyee .?ad the sole discretion in scheduling 5he lien day in 2ccorc5arrce with the wording cf ;zticle 19.4. II . . . [I]t ~2s arcued [by the Employer] that if the Board found as a iact that the Employee was denied ,L.cril 25th as a lieu day, that it was !>ianacement's r;+t to do so and t:hat the 6ecision to deny was . e,:erc1seo reascnr.. -5lv, in coo6 faith, non-arbitrarily, ano \?ithout _ -;-?;Fatlon. C1SCI -11.-.1 In 5u:3:30rt of its contention, !Gr. Senedict cited the ?:anagenent Rich: ?ro\,ision in the crcwr. C~,plc\~ees Collective Zarz:aininc Act, R.S.O. 1980, 2nd in particular Section 18(l): - 10 - ?-E (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limitinc the generality of the foregoing, includes the right- to Eetemine, (2) employment, appointment, complement, organization, assignment, discipl-ine, dismissal, suspension, work methods and procedures, kinds and locations of eguiFment and classification of positions; and........... 2nd such matters will nOt.be the subiect 0: collecti\,e bargaining nor ccme within the jurisdicticn of a board.'. "T?.e Zm;7i=loyer argued that .Xanagement has tiie ezcl-si-be r 1 c '1 t _. t 0 schedule working and non-working days, except StEt*JtCrV - ihli~2YS, unless specifically restrained by the Collective Agreement. .e . 3enedict argued that the secork sentence of..lrticle 19.1 does :iace e resCL '-aint on Manage,ment's right to schedule lieu da.:s. Taiiiz= .- acreer?.ent between the Parties, the discretion remains vith Uanagerent as evidenced by the use of the word "r;.ay" in the seconc sentence of ;;ticle 19.4. Therefore, it was argued that if .".anagement deciEe5 to ~~:3ed-;le 2~. 3sployee's lieu cays, >!anagement nay sc:hedule them I7 ccnju.-!c,tio2 with the Employee's regular days Off or vacaticn. -_. t.?e event that .- . I 2 Xanagement ceclaec, for wlh'atever t:he ie250.1, :ot to SC:-;.e<cle them, >..rticle 19.5 would coze into effect, azd the 27,?loyee 2cul 6 :?,a.ve these days banked to his credit. on t h i 5 rationale, tr.ere - 11 - ant t.i.2: X+nacement ha< advised the %?lOyee to a?;ijr again at :, i. i. laze= date or alternztively to arrange a shift exchange. "The evidence indicates that Management has developed certain guidelines for the implementation of the wordinq cr the -- Lb ‘-i;cle which is unilateral in nature and which- apFears not to be well understood by the Employees. For exmple, the Zm-,lcyer's evidence was that lieu day 5 2re sometimes sranted and scmetimes refcsed, and when granted are normally tal<en cn a T::esday and "riday. The evidence of the Grievor indicates t!!at this guideline '*as nc: .unlerstood by him. '1 - lt tspeers to us that the wording of the first sentence of Article 19.4 indicates clearly that Nanacement doesn't ha-;e the unfett ered discretion in the schedulinlc of lieu days. The f i r s : sentence of that kticle spea!<s of a nutua1 a.creement. , 75 :.;azacezent's interzretation is correct, then the last =e-+=r-= of I . . . ..-..u- lg.4 would be virtually meaninqless. .Y+nacement 1s .alLecl,75 t:kt :-I the a-vent of -. failure to reach mutual agreement, Xanaseaent ;ioul< hzve total discretion to reSOit to the provisions of Prticle 19.5. 81 Ix.ocr view, the cse of the word "nry" is tke seconC se.gtesce cf 19. L zealis that neither !knaqament nor ;ne Em=lovee is joi13c ':y tee zc-x3;la of lieu Cay txae. . - The Eiscretisn t:~en ;everf tc the _ _ 3zlovee co select a lieu Czy ccnticuous wit:h the Ci2,lcvee's & - - -;ic+:ic: CT Ial's off (either ix7.ediately before 01 ir;-7eciztely after - -7 EiL:-.fr c~:e) CT a1tev--+'vely to bank _ .‘C LL the lie12 12~ ;*;rs;lnt tc '-,e .=:ovisicns of Article 19.5. (e.-??iasis added) - 12 - .c= @loye?'s evidence is that there was a ccxtizgency -7 -- &‘zS to pay classified staff overtine ?ay or alterzatively y e.mloy "casuals". It is our opinion that the Sm?loyer's contincenc\- - _ FLan should also e~ply to the schec?uling of lieu&ys where >utua: acreenent cannot be achieved under 19.4. !:anagenent's reluctance to so so, in this instance, is as a direct result of a :!inist=v d.irect,,-e ;o 2vciZ 32penc of overtime, 2s well as a concern icr the src;er 52lar.cinc. or' ces.c2l and classified staff. Ehile it :.a.' be s+i;_ t n 2 t 7 n 1 s rationale has ;nerit, in our view it has no releT:ance to ::?e interpretaticn of Article 19.4.” The Grievor expressed his view that inthe event of mutual agreement being impossible as to when he would take the lieu day (as it xas in the Tremblay case) the declaration made in the Tremblay case should apply and he was entitled to take the lieu day at the time reguested by him. The Tremblay declaration is as follows: ?Zan 2veil+ble in the event of illness dr enercency. The co3ti~ge~c~2 - - 13 - Mr. Jones then re-affirmed the position of the Employer and added that the Tremblay award was then in the process of being judicially reviewed. In response to the Griever's observation that the memorandum of July 21, 1982 had provided for a more flexible treatment of requests for time-off and that the lead time for lieu day requests was not fourteen days but "approximately two weeks," Mr. Jones is supposed to have reiterated the necessity of adhering to the original two week requirement which he said continued to be applicable to the Grievor's application. Thee matter remained unresolved and the Grievor and his wife left on their trip. According to the Grievor, this resulted.in consider- able inconvenience to himself as he had to drive to his destination without sleep. This latter fact can have no bearing on our decision. It was the Grievor's position that as he had earned the lieu date requested while on the third shift, he should be able to take it on that shift, pursuant to his understanding of Article 19.04. One of Hr. Jones' additional reasons for denying the Griever's request related to the fact that the Grievor was, at the time of the requested lieu date, scheduled to work the third or night shift. It was bir. Jones' position, as is confirmed by the notation opposite the indication of refusal of lieu day, that lieu days "cannot be granted on the third [night] shift." &;r. Jones explained that this lias a response to staffing pr-oblems experienced on that~ shift. The Grievor, while acknowledging the e,:istence of such prcbl~ms, took the pcsition that the problem had been created b) the Zm?lc):er and any perceived understaffing 3roblems could be easily ri-m*died by a par-t-time replacement. In further support of his position, the Grievor referred us to a number of examples where the lead time for lieu day requests .., were less than two weeks and the requests were, nevertheless, allowee See Exhibits 10 (4 days) and 11 (7 days). In the case of Exhibit 11, the request was by an employee on the third shift. In allowing the request the employee was, however, reminded: II . . . this does not signify any change in the present institutional policy Of not granting lieu day on the [third] shift. Again, may I remind you that section 18.1 of the Collective Bargaining Act (sic) R.S.O. 1980, states every Collective Agreement shall be deemed to provide that is (sic) the exclusive function of Management to manage." I do not regard the examples as helpful in this case, as they are all equivocal in indicating the reason for a change in the Employee's position. Mr. hones testified as to the practical necessity of maintaining the rule limiting the granting of lieu days to employees on shifts one and two. He also testified that the words "approximately two weeks" found in the memorandum of July 21, 1982, were inserted in error and should have remained as "no later than two weeks," as in the memorandum of January 6, 19S2. If this were the case I would have expected a written correction to have been issued or, at least, some formal communication liith re?resentatices of the Union, as appears to have jeen the case in t'ne development of the guidelines, as testified to by h:r. Jones. It t;as b;r. Jones' further testimony that the rule restrict- ing the taking of lieu days to shifts one and two was arrived.at after consultation wi th Union representatives, based on a trade- off,uhereby certain Vnion scheduling requests were approved. ~~ rezal-ded this Egreement as a "gentleman's agreement." The ";F:-".ny.~,?ts" ,ieL-e a;Jpa:-ently :?ver reduced to +;ritten form nor “, was the the alleged rule first two shifts - 15 - - 15 - concerning the restriction of lieu days 'to concerning the restriction of lieu days 'to contained in any minutes of the meetings. contained in any minutes of the meetings. Mr. Jones stated that he also verbally reaffirmed the fourteen day notice requirement to the Union representatives and received no complaint. In cross-examination he explained that the fourteen day notice requirement might be waived if extra staff were available so as to permit accommodation of the request. He stated that, in considering any request, his main consideration was meeting manpower needs and where he had available staff and the financial means to accommodate a request1 otherwise not meeting the guidelines, the guidelines might be waived. As this was not the case in the'matter beforehim, the request was denied. The position of the Employer is that the Tremblay award was wrongly decided and that this Panel of the Board shoul,,d not follow it. As in the Tremblay case, the Employer relied upon the provisions of Section 18(l) of the Crown Employees Collective Bargaining Act ( the Management Rights Provision) as furnishing it with the exclusive right to schedule lieu days and in all other respects incorporated the submissions of the Employer in the Tremblay case. In the case of X. BUSS, 341/83 (R. L. Kennedy) it was stated, at p.6: *‘the proper interpretation and application of Article 10.4 has already been considered by this Board in Tremblav, 185/81. An ;9plication for Judicirl ‘ieviev of that decision instituted by the 33piC~er ‘<CC tismnissed by the Divisional CCUZiT on SegtemSer 2, 1983. The interoretation issue vith res2ect to ,k,rtic!e 19.4 i;cu>d, therefore, a?peer to Se Settled . . . - 16 - by tl;fs Board, and for the purposes of this Arbitration, we accept the interpretation of the Article as set out in Tremblav. I would agree with this statement. In the Buss case it was also stated at ~~-6-7-8: “It wes the psition of the Union that in Artic-le 19.4 . there were only two ?rc-conditions to the right of the Employee, in essence to specify when compensating leave is to be taken. Firstly, there had to be no agreement between the parties 2s to when it would be taken. Secondly, the time specified had to be in conjunction with the employee’s vacation le2ve or’regular davs off. . It ~2s argued that those ore-conditions had been met by the Grievor on April 7th, and there was contained within the lzncuege of’Article 19.1 no qualification Or requirement for lead time with respect to the specifying of the dates for compenseting leave. It was further argued by the Union that in any event if it were necessary to determine what was re2sonable, same should be done only upon consideration of the feet that the Griever' s weekend h2d been rescheduled on April 5th 2nd chat vhat constituted a reasonable period of notice had to take into cchsider2tion the degree of notice which w2S given to the Griever with respect to the scheduling change. “Cocnsel for the Employer made reference to Section 18 (1) of i’he CrCcn s?loyees Collective fjargeining ;ct, X.S.O. -- 1980 c. 106, 2nd argued th2t unless an employee ,under Article is.3 i;ere req,uired to give reason2ble notice of the em.ployee’s , : intention to take manage. the operat compensating leave, the Employer’s right to on under Section 18.1 would in substance be abrogated. It was further argued that within the language of hrticle 19.4 and the specific holdings in the Tremblav decision a reasonable notice period *as clearly contemplated with respect to tt,e scheduling of that leave. Counsel fcr the’ Employer further argued that it would be unreasonable to interpret Article 19.4 on a basis that Gas not feasible in an . aomlnlstrative sense, and that for that reason also the Article should be interpreted as requiring a, reasonable period Of nOtiCe from the employee as to the scheduling of the compensating leave. it ‘was argued that the section becomes totally unworkable in practice without the requirement of reasonable , not ice, and that in substance a right on the part of the <employee unilaterally to schedule the compensating leave would orevent the Employer from keeoir ,g the Institution properly’ staffed. 11 It is the view cf this Board that consistent vith the language of Article 19.4 and with the practical realities of the administration and application of the Collective Agreement,’ the SnFloyer must have reesonable no tice of the exercise by en employee OS his rights under Article 19.4. In addition, it clear fro.m the language of Article 19.4 that the employee’s right to specify the timing of the’ compensating leave comes s nto effec* c only. at such time 2s there has not been an zgreement a’s to vhen such time is to be taken. it is our view that before i c2.n be considered that there has Seen a failure to agree on the timing, ‘;.?ere must be at leest some discussion between the ;a.r:ies i,~ an atter;$pt t0 rezch suC.5 2.n rgreenent. ” t , . - 18 - i. 4. In the case before us, I would find that there was such a meeting as was contemplated in the Buss case, and that it , involved the Grievor and Xr. Jones (in his cacacity as the .representative of management). In the circumstances I also find that the period of twelve days notice was reasonable notice. There was no evidence from the Employer that it was not. It was not the Employer's position that twelve days notice was unreasonable on the facts of this case, but that it could unilaterally create timeliness guidelines for giving notice. Even if the Employer could unilaterally impose a notice period, as it attempted to do, I would find that the period was "approximately two.weeks" as set out in the Employer's memorandum of June 21, 1982, and that the Griever had complied with this requirement. ,I would, however, agree with the further statements contained in the Buss case, - / at pp.8 and 9. "'on the evidence before US on this grievance, such effort at reaching agreement did not take place prior to April 7th, and therefore in determining Ghat is a reasonable period of notice, the starring point can be no earlier than April 7th. In the c:rcumstances of scheduling in prticclar problems of schedul outlined to us, ve cannot find notice was Given by the employ the Institution and the ng on ,deekends, xhich were on the evidence that reasonable e, and therefore we cannot find that there has been a-breach on the part of the Employer of its obligations cnder Article 19.4. /- We do not propose to enunciate any Guidelines or directions as t0 what vcu!d constitute ieESOnE!?le notice since, in cilr view, what is reasonable mcst be - 19 - determined in light of the particular circumstances of each individual case. We would further note that in the di&,-tive issued by Vice-Chairman Verity in the Tremblav c.ase, the . employee was required to exercise his discretion in the scheduling Oflieu days within a reasonable time after the failure to reach a mutual agreement. It iS our view that it i impiicit in that language that what constitutes "within a reasonable time" sets limitations both as to how much notice a, how little notice must be given in making the scheduling decision. " Inthis case, it was manifest that the Grievor had notified the Employer of his choice of the lieu date which he desired and I find he did it within a reasonable time, even as that time must be expressed in Mr. Jones' memorandum of July 21, 1982‘. It was also decided in the Tremblay case that the Employer cannot promulgate "guidelines for the implementation" of Article 19.4. In dealing with the rationale of the Employer for denying the employee's request, which rationale was seen to have merit, it was observed, at p.13: "...it has no relevance to the interpretation of Article 19.4." In accordance with the declaration in the Tremblay case, it was not open to the Employer to unilaterally impose eXClUSiOnS for employees on the third shift to the exercise of their rights under Article 19.4. The Union could (Article 7), and did, (Article 19.41, barGain for the right which the Grievor sought to exercise. As in the Tremblay case, after denial of the Grif\:or's request for a lieu day on March 20, 1983, the matter remaining unresolved after discussion, the discretion to choose . ,~ I: - 20 - ,.. 3, the lieu day reverted to the Grievor. The Grievor insisted upon his original request for March 20, 1983; as a lieu day and did so within a reasonable time and therefore was entitled to that date pursuant to the provisions of Article 19.4. In this regard, I agree with the.reasoninq in the Tremblay case. Mr. Jones may have believed he had a "gentleman's agreement" with the Union with respect to how Article 19.4 would operate. In the light of the evidence, I find this to have been a mistaken view which he chose not to properly verify. In any event, as was emphasized in the Tremblay case, it could not alter the clear language of the collective agreement. If that end was to be achieved, a more formal written agreement would have to have been entered into. Accordingly, and for the above reasons,our Award is that: 1. The order in the Tremblay case represents the,proper inter- pretation and application of Article 19.4. 2. Any unilaterally promulgated guidelines by the Employer which derogate from the rights of Employees under Article 19.04, as interpreted in the Tremblay case, are invalid. 3. In particular, the guideline attempting to limit the right to take a lieu date under Article 19.04 to employees on shifts one and two is invalid. 4. As to the validity of the guideline requiring that a request for a lieu date be made "appr-osimately two weeks prior to the day requested as time off, " such guideline need not be dealt with by US as this question is not in issue, the notice of the Grie\Tor havi!y been found to comply with this requirement. As this is an individual qrievance we ought not to encage in ; .5 .r - 21 - _ . - r an exercise leading to a declaration which is unnecessary to the resolution of the grievance. If the guideline was, as argued by the Employer, one requirinq.two week's notice, we would regard this, as in the case of the imposition of the guideline limiting the granting of lieu days to the shifts one and two,as being invalid as derogating from the meaning of Article 19.04. This does not mean, however, that in a proper case two weeks notice might not be reasonable. In conclusion, I would emphasize that I cannot fault the Employer for any of its concerns and I do not wish this Award to be interpreted, in any way, as representing a criticism of the Employer. Ne merely find that its view of Article 19.04 is incorrect and that, contrary to its perception, no binding aqreement had been arrived at with the Union to enable the Employer to depart from the limitations placed upon it under that Article. DATED AT London, Ontario this 31St day of July 1924. El . 3. Gorsky Vice Chairman H. Sirnor! J . I,lorrow i.Iember