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HomeMy WebLinkAbout1985-0118.Avery.88-06-29Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPsEU (Karen Avery) Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: P. Knopf Vice Chairman J. D. McManus Member W. Lobraico Member For the Grievor: P.A. Sheppard COUllSel Sheppard Barrister and Solicitor For rhe Employer: R. J. Atkinson COUllSC.21 Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearing: May 18, 1988 F DECISION This is a grievance by the Union on behalf oE Karen Avery claiming that she has been denied benefits under Article 32 of the Collective Agreement. Article 32 provides: ARTICLE 32 - LEAVE - JURY DUTY 32.1 Where an ern?loyee is absent by reason of a summons to. serve as a juror or a subpoena as a vi tness , the employee may, at his option: (a) treat the absence as leave without ?ay and retain any fee he raceives as a juror or as a witness; or (5) deduct the period of absence from his vacation leave-of-absence credits or his overtime credits and retain any fee he receives as a juror or as a witness: or (c) treat the absence as leave with pay and pay to the Treasurer of Ontario any fee ha has received as a juror or as a witness. There is no dispute over the fat ts concerning Mrs. Avery’s particular claim. She has been an employee of the Ministry since 1981. She lives in. the City of North 3ay. Her husband was also a Ministry employee, but his employment status became subject to Grievance Settlement Board proceedings in 1985. He was the grievor in a disciplinary suspension case heard on January 7, 1985 and a dismissal cas2 heard on January 8, 1985. Mrs. Avery had relevant evidence to give to the GSB concerning the suspension case on January 7. She was aware of this beforehand .and advised he: supervisor that she was seeking a leave of absence for January 7 and 8. She did not state, nor was she asked to give the reason for her request. She came to Toronto dn.i attendee the GSB proceedings with her husband. On the morning of January 7, Union counsel gave her a’ standard GS9 -2- summons to attend on that day “and so from day to day until the he,aring is concluded or the Board otherwise orders.” She was given no conduct money. She did testify at the January 7 hearing. The January 8 hearing was a separate case involving a separate grievance. She was not called as a witness, but she did attend throughout. She is claiming that she should be able to treat the two days of attendance before the GSB as leave with pay under Arti%le 32.1 (cl of the collective agreement. Mrs. Avery’s case is important and of particular importance to her. But the key issue in this case for the parties is whether a witness summoned by the GSB at the request of the Union is en ti tled to bendfi ts under Article 32. At the outset of the case’, the Union pointed out that at the time Mrs. Avery’s grievance arose, the GSB had before it cases concerning the applicability to Article 32 to attendances before the GSB by government employees. T!?e parties agreed to hold Mrs. Avery’s grievance off until the other cases were resolved. Then, on December 2, 1987, the Board issued a decision of a panel chaired by Ken Swan in Union Grievances vs. the Ministry of Ci tizenshi? and Culture, GSB File 0332/85 (hereinafter referred to as the Swan sane1 Award). The bunion argues that the Swan panel award resolved the essential issue raised by the Avery case in favour of the Union and that an onus has shifted co the Employer to establish why the Board should overrule a decision of an earlier panel on an identical issue. On this point, the Union relies on the decision in Blake and the ------ Amalgamated Transit Union and the Toronto Area Transit serating Authority, GSB File 1276/87 et al. issued by a sane1 chaired by Chairman Shime. The Employer disputed that it had an onus to bear in this case. The Employer put forth Wally Gorchinsky to gitiz evidence on negotiating history in Support of the Employer's argument that tile cl:ear intention of the parties was that Article 32 would not apply to witnesses called by the union or the grievor before the GSB. Mr. Gorchinsky had also gi,Jen evidence regardin. negotiating history and this article before the panel chaired by Mr. Swan. This panel of the Board noted that Mr. Gorchinsky had given similar evidence earlier and so we asked counsel for the Employer if we would be hearing any new evidence which. had not been offered to the . Swan panel. We were assured that Yr. Gorchinsky would off?i new evidence and so we agreed to hear the evidence on that understanding. In fact, almost all the evidence that this panel heard from Mr. Gorchinsky was later conceded to be exactly as set out in the Swan panel award on pages 2 to 8 of their decision. We therefore quote from the earlier recital of the same fat ts. Both this Board and the Tribunal are cred turss of the Crown Employees Collective Bargaining, the TriEnal having been created by the 1972 legislation, s:o. i972, c. 67, and restructured by S.O. 1974, c. 135. The Grievance Settlement Board is a creature of the 1974 legislation, which was proclaimed in force on July 21, 1975. Therefore, at the time of the opening of negotiations for the first collective agreement by the submission of proposals by the Association .on Yarch 21, .1974, the Grievance Settlement BOdrd did not exist. At that time, the grievance arbitration function was handled by the Public Service Grievance Board, a body established under the Puolic Service Act which --- continues to provide that function now for non-bargaining unit employees. Against this statutory background, a brief review of the negotiating history is appropriate. Some time between the proclamation of the 1972 Act on June 23, 1972 and the beginning of negotiations for a new collective agreement in 1974, discussions took place between the Civil Service Association of Ontario, which was the predecessor organizstion to the present Union, and the Civil Service Commission. The precise nature of those discussions is not now available, but they culminated in “an agreement” between the two parties relating at the very le~ast to the attendance of grievors and witnesses beEore the - 4 - Public Service Grievance Board and its associate;i tribunal, the Classification Rating Committee. That agreement was outlined by’ W.A.B. Anderson, then Chairman of the Civil Service Commission, in a letter to all Deputy Ministers dated August 16, 1973. Since that le ttar cons ti tutes the background against which the original negotiations took slate, it is helpful to set it out here in its entirety: An agreement between the Province of Ontario and the Civil Service Association of Ontario on behalf of bargaining unit employees provides for the allocation of certain costs relative to the appearance of a grievor, or a witness for a grievor, before the Public Service Grievance Board or the Classification Rating Committee. In accordance with the agreement, the grievor will be granted time-qff duty, without loss of pay or attendance credits, to attend a hearing of his grievance by the Public Service CrieVanCe Board or the Classification Rating Committee. Such time-off shall, if necessary, i.nclude travel time. Effective July 1, 1973, the travel and accommodation expenses of the grievor will be a matter between the grievor and the Civil Service Association of Ontario. Any employee of the Province who is required to appear as a witness for the grievor at any hearing of a grievance by the Public Service Grievance Board or the Classification Rating Committee shall be granted time-off duty to attend a hearing before the “Board” or “Committee” without loss of pay or accumulation of credits. Such time-off shall, if necessary., include travel time. The Province is reimbursed for any salary paij during such time-off . Effective July 1, 1973, the travel and accommodation expenses of a witness appearing for the grievor shall be a matter oe tween the witness and the Civil Service Association of Ontario (Inc.). Time-off duty granted an employee to be a witness for a grievor Shall be granted.under authoricy of Section 17 subsection 4(a) of O.Reg. 749, R.R.O. 1970 and be recorded on CornmisSion Form CS-66 and forwarded to i - 5 - the Staff Relations aranch Civil Service Commission for recovery to the "Province" of 'any salary paid during such leave-of- absence. In accordance wit!4 the terms of the agreement any mandatory hearing relative to a grievance, that requires the grievor, his representative, or witness to be. absent from the normal p,lace of employment shall not entail any loss of say or accumulation of credits. Such absence should be treated as if the grievor, his representative or witness were on duty. Any time spent at d hearing that does not fall within the scheduled hours of work for a grievor, his representative, or a witness, shall not constitute duty time, call-in or overtime. An employee of the "Province" elected or appointed as a grievance steward for the Association shall, to the extent possible, conduct any investigation or a complaint or grievance, or prepare for a grievance hearing in his own time. In the event that circumstances preclude the proper investigation in his own time a grievance steward may request permission from his supervisor to be absent from his place of duty and, circumstances permitting, no reasonable request shall be denied. A grievance steward re,quired to appear before the Puslic Service Grievance Board or the Classification Rating Committee in support of a grievor shall be treated as if he Ward a Witness for the grievor and the terms and conditions applicable to a witness shall apply to the grievance steward. It is of interest thdt the Civil Service Commission had negotiated informally with the C.S.A.O. since 1962, and that the outcome of those negotiations had produce3 "agreements" which werd amended from time to time, and which were :.molementad bv inclusion in Requlations made under tile Public Se;vice Act. Thus the reference in Mr'. -- Anderson‘s letter is to the authority of a Regulation, rather than to the provisions of t;he agr:ement i,tself, since .the informal agreements had no independent life apart from being enacted by Regul.ation. - G - In fact, there was a Regulation in effect at the time of the Anderson letter in 1973, and immediately before the commencement of negotiations on March 21, 1974, that was in i.dentical terms to the present Article 32 of the collective agreement. However, although the Anderson letter was presented to us by the Union as an interpretation of the jury and witness leave regulation, and the Employer did not directly challenge that assertion, it appears that the Regulation referred to in the Anderson letter [R.R.O. 1970, 0. Reg. 749, section 17(4)(a)] does not refer to jury and witness leave, but to “special or compassionate leave with pay”. Moreover, the jury and witness leave provision had been in the Regulations since 1961, and so clearly did not originate with the informal negotiations. It appears that section 17(4)(a) was chosen simply as a handy administrative authority to implement the “agreement’. In the first round of formal negotiations, the Union’s initial position in relation to the question of jury or witness leave was to leave it exactly ds it had been i.n the informal agreement and in the Regulation, and, it appears, the Employer agreed to that proposition. There were, however, other provisions reques tad by the Union as a part oft Article 42, which was to be the grievance procedure section of the Union’s proposed agreement. The Union’s proposal, insofar as it is here.material, was as follows: 42.15 The Public Service Grievance Board -- The Board shall continue in accordance with Article’ 42.2. The employer shall continue to supply accommodation for meetings of the Board and provide staff and supplies necessary for the efficient operations of the Board. The employer shall continue to stipulate the nonorarium that shall be paid to a member of the Board and to reimburse such member of the Board accordingly. The employer Shall continue to honour any travel or out-of-pocks t expenses incur’red by the Chairman or members of the BxoarJ. - 7 - 42.15.1 Any employee who makes application for a hearing before the Board or Committee and is the incumbent of a position, the classification of which is deemed to be in the Bargaining Unit, shall be allowed time-off du ty where necessary, without the loss of pay or credits, to appear before the Board or Committee for the hearing of his grievance. Any meeting between the grievor and his representative, arranged for the purpose of preparing for the presentation of his grievance, shall not normally require that the grievor be absent from his place of duty. In the event that such absence is unavoidable due to then grievor being located at some distant part 02 the Province, a request for permission to be absent from duty may be made and no reasonable request shall be refused. Any expenses incurred by a grievor under the provision of this clause relative to travel an3 accommodation shall be a matter between the grievor and the Union. 42.15.2 Any employee required as a witness by the grievor in the matter of a hearing before the Board, shall, upon proper notification to the Chairman by the Union be granted a leave of absence with pay from his place of employment to attend the hearing of such grievance. The Union will .reimburse the employer for the salary paid an employee during any leave of absence granted to facilitate attendance at the hearing of the grievane. Any leave of absence granted under this section shall include reasonaole travel time where necessary and such travel time shall be subject to the reimbursement provisions specified in this section. The employer shall notify the Union quartarly of any leave of absence granted under this section together wi th the total of any salary paid during such leave of absence. The travel and accommodation expenses incurred by i - 3 - the witness by reason of attendance before the Board or Committee shall be a matter between the witness and the Union. 42.15.3 The attendance of a grievor, his representative or a witness at a meeting arranged to explore his grievance or to conduct the mandatory hearing of such grievance at the local level shall, if any absence from duty is required, be treated as if the grievor, his representative or witness were on duty. In the event that the grievor, his. re2resen ta tive or witness is not on duty at the time of a meeting arranged for the purpose of exploring a grievance or conducting a hearing rela-tive to a grievance, the time spent at such meeting shall not constitute duty time, call-in or overtime. These negotiations were unsuccessful, and the matter was referred to a board of arbitration chaired by Mr. Howard D. Brown for resolution of the matters in dispute. In the award, a provision in the terms of Article 32 was included by adopting a number of agreeed provisions already settled by t!!e parties. There was also a provision, then numbered Article 36.3, which provided for an employee who is a grievor or complainant before the Grievance Settlement Board (which had now come into existence) or the Tribunal to attend hearings. without loss of pay or credits. The collective agreement as finally signed, however, contained no specific reference to the status of witnesses who were summoned to a hearing of the Grievance Settlement Board or the Tribunal as ~witnesses at ’ the instance of the Union. At the outset of the cross-examination, Union counsel asked Mr. Gorchinsky to state what was new or different in the evidence that he presented to this panel as opposed t.2 that which was set out in the Swan panel’s award. Mr. Gorchinsky pointed out that the Swan panel did not have tabled before it the full firsr collective agraemant netwuen the parties which was tssled before this panel. Thus, i - 9 - Mr . Gorchinsky said that the Swan sane1 had made an drroneoUs assumption that not!ling in the collective ayreement dealt with attendances by grievors or vitnesses before the GSB. This conclusion had been on the basis of Mr. Gorchinsky’s recollection as re1ate.d to the Swan panel. But in fact, tne entire collective agreement reveals that the issue had been addressed in a leave for union activities portion of the collective agreement under Article 24.4.1 dealing with attendances by grievors or complainants. Mr. Gorchinsky also pointed out in re;examination that the provisions in the collective agreement dealin) w.ith attendances of griavors and complainants were in fact drafted by Mr. Gorchinsky in the course of negotiations and adopted as acceptable to the Union. This had not been made clear to the Swan panel and was not reflected in their award. Mr. Gorchinsky and the Employer argued that the adoption of this Smployer’s proposal had, by implication, meant that the Union had withdrawn any claim for compensation for attendances of witnesses before the GSB. The last distinction of any significance in the evidence before this panel and the Swan panel is that while Mr. Gorchinsky told both panels that he would never have signed a collective agreement which provided for Gayment to witnesses summoned by the Union before the GS3, the Swan panel had been told that Andrew Todd’s, the Chief Negotiator for the Union, recollection of intentioh was exactly counter to Mr. Gorchinsky’s. Our panel received no evidence regarding Union officials’ recollec cion or intention. Any other disagreements Mr. Gorchinsky voiced over the Swan ?anel’s award were regarding its analysis, assumptions and conclusions rather than the fat ts recited. . - 10 - The Employer asks this panel to accept the position that it was never intended that Article 32 would apply to a witness summoned by the grievor or the Union to the Grievance Settlement Board. Indeed it was said that the negotiating history reveals that the parties agreed that that Article would not apply to that situation. The Employer stressed that all the Union ever sought~ in negotiations was the terms of the Anderson memo. By those terms, the Union would have reimbursed the Employer for any compensation paid to witnesses summoned to the GSB at the request of the Union. But in negotiations, the. Union agreed to Mr. Gorchinsky's counter proposal which dealt only with the attendances of.the grievor or the complainant. The Employer emphasized that if the Union were to succeed in this case, it would gain m.ore than it initially appeared to seek in negotiations because its witnesses would be compensated without,any corresponding contribution by the Union. But it was conceded that the issue of payment of witnesses before the GSB was never directly raised in the context of Article 32 itself. We were urged to conclude that the Union withdrew its claim for .witness payments and thus never intended to create a contractual obligation for their payment in Article 32. We are asked to decide this case in a manner different than the Swan panel on the basis that the Swan panel either did not appreciate or was not told,clearly that the Union had agreed to management's proposal regarding leave for Union business and attendances of the grievors and complainants beEore this tribunal. It was conceded that the Board should act "carefully" when addressing an issue in Ghe second instance, but should consider itself free to take a fresh look in appropriate circumstances, such as when the first decision is not correc t. Counsel also mentioned a concern that if the Union were to succeed, the Ministry could be subjected to abuse of Article 32 by having entire work places disrupted by subpoenaing too many witnesses at the Employer’s expense. - 11 - The Union refe-rred us to the c.ase of Xoranda Metal Industries __-- Ltd., Ferqus Division and International Brotherhood of ------- Electrical Workers, Local 2345 et al. (1983) 44 O.R. (2d) 529 --- (C.A.) and Canadian Pacific Airlines Ltd. and International Association of Machinists 6 Aerospace Workers, Lodge 764 (19861, 23 L.A.C. (3d) 116 (Munroe). The Union urged the Board to conclude that the Employer must show “exceptional circumstances” before the Board should deviate from its recent conclusions on the same issue. See Blake, supra. It was said that even if the Swan panel’s decision was wrong, that would not amount to the exceptional circumstances required for the Board to reverse itself, especially in a matter of contract interpretation. Counsel for the Union submitted that we were simply being asked to make different conclusions than the Swan panel on the basis of evidence that was virtually identical on all substantial matters. We were also asked to note that the Swan Award was not made the sujject of judicial raview and that we should not sit in an appeal of another panel’s ruling. The Decision Let us state at the outset that although we have considered Mr. Gorchinsky’s evidence as presented to us very carefully, we see nothing of significance in any of the additional evidence produced to us than was put before the Swan panel. On the basis of Mr. Gorchinsky’s evidence to us, we can see no evidence of clear intention, nor can we make any inescapable inference that the parties never intended the collective agreement to read as the Union is now seeking us to cone lude . The evidence of negotiating history is simply illustrative of the Employer’s intentions and assumptions. Bu f if does not force us to conclude that the Union shared - 12 - that intention. Therefor?, as the Swan panel concluded, the evidence of negotiating history is insufficient to allow us to draw a compelling conclusion as to the intention of the parties. In our view, the evidence of negotiating history is simply insufficient to permit us to draw an absolute conclusion as to the intention of either ?arty, in the corporate sense, whatever might be the recollections of their principals at the bargaining table. It may be observed that the . Anderson letter, written in 1373, was not based on the language as now found in the collective asgreement and here under dispute. Moreover, the somewhat cryptic references to reimbursernt in the third paragraph are, we were informed in evidence at the hearing, in relation to an arrangement by which the Union would reimburse the Crown for salaries paid to witnesses. Therefore, the Anderson letter cannot stand, as argued for the Union, as a definitive interpretation of the language here at issue. 3n the other hand, the withdrawal of language reproducing the Anderson letter, which required the Union to reimburse the Employer for witnesses at the Public Service Grievance Board, language which like the Anderson letter makes no reference at all to the witnesses being compelled to attend under summons or subpoena, is not conclusive that the Union was not relying on the provisions of what is now Article 32 as a replacement for the previous sys tern. It is our view, based upon all of the evidence before us, chat the evidence of negotiating his tory simply does not answer the question of the original intention of the parties in including the language which is now in dispute. That evidence, therefore, whether or not it is admissible as a matter of law, is not of sufficient cogency to permit us to rely upon it in resolving the present matter. Therefore, whether Mr. Gorchinsky’s extrinsic evidence was admissible or not, it does not have the degree of cogency require:l to permit us to rely upon it to resolve this issue. - 13 - . That leaves us with the language of the collective agreement itself. The Employer ;lid not argue that the Swan oanel’s analysis of the language.was flawed. Further, we find that the Swan panel’s analysis is compelling and we adopt it in its entirety. The Swan panel concluded: . . . we have concluded that the word “subpoena” in Article 32 must be read as including all of the statutory forms of summons for a witness not only before the courts, but also bafore all tribunals which have been given by statute the power to comae1 witnesses to attend and testify. As we have already observed, Article 32 would be very narrow protection indeed for Crown emQloyess if it ao?lied only to the requirement to testify’ before the courts, given the broad range of legal processes to which Crown employees can be exposed by reason of their employment, leaving aside matters before this Board or the Tribunal. Once the broader meaning is given to Article 32, howevsr, there is simply no justification for excluding from its operation a summons to attend before ,this Board or the Tribunal as a witness, and there certainly is nothing in the section which limits entitlement under Article 32 on the basis of the identity of the Qarty at whose instance the Crown employee is required to aagear. Thus the Board has clearly stated that an employee can avail himself or herself of the provisions oE Article 32 when summoned to attend before this Board at the instance of the Union. Before we turn to the facts of Mrs. Avery’s pa,r titular case, we wish to address the policy issue raissd by this case. As is clear from the facts set out above, the same issue arose seEore this Board earlier in the grievance before the Swan panel. It is apaaren t that the Employer disagrees with the Swan panel’s decision and that it has sought to have this panel essentially overturn the earlier decision. The Chairman of the Grievance Sa ttlemment 3oard has dealt strongly with this tyoe of matter in the Blake --- decision. Bis words bear quoting in full: - 14 - . . . In the pr.ivate sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but diEEerent, decisions on the same point or issue may creata confusion, arbitrators have balanced the interests oE individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions lunless such decisions are manifestly in error. But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under Set tion 20( 1) of The Crown Emnoloyees CoLlectiveBarqaining Act thers is “a Grievance Settlement aoard’-= that is, one 3oard. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20th) a decision of the majority of a panel- is “the decision” of the Grievance Settlement 3oard. Thus each decision by a Ganel becomes a decision of the Board and in our opinion the error which is appropriate for the private sector is not a?progria te for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel ore to sit on appeal on the decisions of an earlier panel. Also, given tha volume oE cases that are currently administered by this board, the continuous attempts to persuade one\ panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative dif f icul tl in, handling the case load. We are mindful, however, that there is no ~rovlsion for appeal and there are limits to judicial review. While it is our view that the “manifest error” theory is too lax a standard, we racognize that there may be exceo tionai circumstances whera an earlier decisTon of this board might be reviewed. At this point we are not arepared to delineate what constitutes exceptional circumstances and the fleshing out oE that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exception& circumstances. -___--_-- [Emphasis added1 ‘Thus, the Board has stated as clearly as possible that while we may be aske.3 to review eariier decisions of this Soard, it - 15 - is only when zxceptlonal ci rcumstanc3s can be Icmonstr3 rel that we can he s2rsuade-J that the earlier decision shou1.i not stand. Fur the r , it is not the Eunction of the Bbard to .sl t in review or appeal of its eat-lier decisions. That is tli’z function of the Divisional Court when grcun4s for judicial review axis t. While the Employer relies upon the C? Airlines casd __----- to try’ (LO persuade us to overturn our earlier jurisprudenca, we find chat case to be quite discinguishabla from our facLs. In the CP Airlines case, a secorld board of arbitration in a ------ priJate collective agreement content was ?ersuadeJ ta hear extrinsic evidence of negotiating history that had ?ot ‘%?;Y offered at all to the first board. The second board rzvars?!i the conclusion of the original board and. axplainej itself Sy saying: 3n the whole of the evidence, we have reached these three fundaman ta1 conclusions. First, therz can be no doubt that in 1362, the true intent of the parties was precisely as the company would have us find to be the correct in terpr2 ta tion of art. 12.12. That much is crystal clear from the extrinsic evidence of negotiation history. Second, nothing has happened in the intervening years which would justify a conclusion that the original intent had been stood on its head. Indeed, there was no suggestion from the trade union that such was the case. Finally, we ara confident that had tha Hope board had the benefit of the extrinsic evidence to which we have referred, its conclusion about the meaning of art. 12.12 would have been entirely different. In the case at hand, the original panel had the benefit of rnos t, if not all, the significant evidence before us. 3ur extrinsic evidence was, and is not, conclusive of intent. Further, nothing indicates an error by t!le original panel. Therefore, we are not persuaded that the CP Airlines casd is ---------- applicable or that it suggests that we c,jn or sb.0~13 ov?rtz.‘l earlier jurisprudence. c .4 - 15 - We are not persuaded that the Swan Ganel made any significant errors of fact. We are persuaded that the Swan panel made no errors of law or analysis. By any standard, be it manifest error or exceptional circumstances, we ar<e convinced that absolutely no grounds were shown to have us reverse , let alone review, the Swan panel's decision. Essentially, this case boils down to an attempt by the Employer to present the same case in a more complete manner to a new panel of the Board in the hope of being more persuasive. This panel recognizes the importance of flexibility and adaptability and cha hngers of being too rigid in an adherence to outmoded precedent. We also recognize that this must be tempered and balanced with a need to have consistency, predictabilit;r and.finality in contractual interpretation of this collective agreement which covers so many employees. But whatever "exceptional circumstanhces" may exist to persuade a panel to review and rdverse an earlier decision, those circumstances cannot be simply that one party attempts to present a hotter argument or more thorough evidence than was aresented to an earlier panel even though it was all available before. We believe that this is all that happened before us. A second policy issue that should be addressed is the concern that if the Union were to succeed, it could or would lead to abuse of the 2rovsions oE Article 32. This concern seems to be one of the underlying reasons for the En?loyer's rigorous opposition to this grievance. While this concern may be honestly held, we do net see any justification for the concern. First, it is ao?arent from the facts set out in the Swan Award and some of the evidence presented to us, that some facets of the Ministry have in fact been compensating witnesses yho have been summoned by the Union before the GSB. This has not been 'a consistent practice within the Ministry, but it has been done. There was no suggestion that where the 5 - 17 - Union and employees have had the benefit of the application of Article 32 that there has been any abuse to date. Secondly, " If an abuse were to be created, there are procedures available, either before this Board or the Courts, have the Board police its is suspected, the Employer to have the summonses quashed or own process. Thus, where abuse has recourse. We now turn to the facts of Mrs. Avery's grievance. On the~basis of the Swan Award and on the basis of our own independent conclusion that the analysis in the Swan Award is correct, we adopt its findings and analysis in its entirety. Thus, as an employee, Mrs. Avery is entitled to avail herself of Article 32 once having been summoned before the GSB. But as the Employer pointed out, the summons which she was served agplied only to January 7, 1985. It did .not reEer to January S. The January 8 hearLng was for a separate, albeit related grievance. She was not compelled to attend January 8 nor did she testify. Nor was the January 7 subpoena extended by the Board to cover January 8. Therefore, her claim for leave of absence for January 8 cannot succeed. The Employer also argued that since she did not receive any conduct money for January 7, the summons is unenforceable and also means that she does not fit within the language of Artice 32.1(c) under which she claims. But we agree with the Union's submission that the absence of the receipt of conduct money affects only the comgellability of the witness. The language of the Article refers to being served with a subpoena, rather than being compelled to attend. If the service was not sufficient to compel her attendance because of the absence of conduct money, it does not void her entitlement to elect to i - 18 - treat the absence as a leave with pay. She does cornsly WL th Article 32 in that she has been subpoenaed as a wi tndss because she did receive tne subpoena. Finally, we do not accept the Employer ‘s argument that the summons must be presented to management prior to taking the leave in order to qualify under Article 32. Such a requirement is certainly fair and makes good administrative sense, but it is not a provision of the collective agreement. The requirement is not contained in Article 32 and can therefore not be enforced by this Board against the em?Loyee. Therefore, on the basis of ‘the conclusions set out above and the fat ts of this case, the grievance succeeds in part. Mrs. Avery is entitled to traat January 7 as J leave wi th pay. Her employment record should be amended to reflect the leave of absence on January 7. Her claim with regard to January 8 is disallowed. The grievor is enti tied to payment of any salary and benefits owing as a result oE our declaration that she is entitled to treat January 7, 1935 as a leave of absence with pay. The Board remains seized with jurisdiction to deal vi th the implementation of the award. should our further assistance be required. .DATED at Toronto, Ontario this 29th day of June, 13as. A?&-- - VicF-Chairman --- ________ John i<c:,lanu.j - :,amber File # 118185 ADDENDLIM Negotiating history and practice indicates the parties obviously had agreed initially to share costs and pay salaries of their own witnesses. UnEortunately this agreement was not incorporated into the Collective Agreement and past practice was apparently not consistent. This Board must abide by the terms of the Collective Agreement and where necessary provide interpretation. Based on the foregoing, the interpret- ation of the relevant article is not unreasonable and I do not believe that any abuse will result from the Boards decision.