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HomeMy WebLinkAbout1985-0332.Union.87-12-02IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: For the Grievor: For the Employer: Hearings: Before THE GRIEVANCE SETTLENENT BOARD OPSEU (Union Grievance) Grievers and The Crown in Right of Ontario (Ministry of Citizenship and Culture) Employer K. P. Swan Vic~e Chairman F. D. Collom fiember E. A.'Maclean Member P. A. Sheppard Counsel Sheppard Barristers and Solicitors S. L. Moate .' Messrs. Hicks, Morley, Hamilton, Stewart and Scorie Barristers and Solicitors Dec~embrr 9, 1985 April 3, 1986 DECISION This case has a considerable history, and involves a difficult question of contractual interpretation in the context of that history. It is also a case which is representative of a large number of other grievances pending, and the outcome-of which will have a significant effect into the future. The matter arises before us by way of a policy grie- vance, although it originates in certain individual grievances. The exact fact situation from which the grievance arises is not so important as the central issue between the parties, which is whether a witness attending hearings of this Board or of the Public Service Labour Relations Tribunal, under summons duly issued by one or the other of these bodies at the instance of the Union, is entitled to be paid for the time absent from work by the Employer as if he or she were on duty. This issue involves an interpretation of the material provision of the Working Condi- tions and Employee Benefits Collective Agreement, Article 32. That article is as follows: ARTICLE 32 - LEAVE - JURY DUTY 32.1 Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a witness, ~the employee may, at his option: ,(a) treat the absence as leave without pay and retain any fee he receives as a juror or as a witness: or .- (b) 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 he has received as a juror or as a witness. This provision has been in the Working Conditions and Employee Benefits Collective Agreement between these parties since the first collective agreement negotiated between them under the Crown Employees Collective Bargaining Act, which was signed January 28, 1976. A certain amount of evidence was adduced relating to the negotiations leading'to the incorporation of this provision under the collective agreement in the first place, and more evidence was adduced relating to the practice under the provision in the decade since its first inclusion. Assuming, without deciding, that the..collective agreement provision is ambiguous so as to permit us-to consider extrinsic evidence as an aid to its interpretation, we propose to review briefly the extrinsic evidence offered before turning to the language of the clause itself. Both this Board and the Tribunal are creatures of the Crown Employees Collective Bargaining Act, the Tribunal having - been -created by the 1972 legislation, S.O. 1972, 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 March 21, 1974, the Grievance Settlement Board did not exist. At that time, the - 3 - grievance arbitration function was handled by the Public Service Grievance Board, a body established under the Public 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, discus- sions took place between the Civil Service Association of Ontario, which was the predecessor organization 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 least to the attendance of grievors and witnesses before the PubMc 'Service Grievance Board and its associated tribunal, the Clas- sification Rating Committee. ~That agreement was outlined by W.A.B. Anderson, then Chairman of then Civil Service Commission, in a letter to all Deputy Ministers dated August 16, 1973. Since that letter constitutes the background against which the original negotiations took place, it is helpful to set it out here in its entirety: : i An agreement between the Province of Ontario and the Civil Service Association of Ontario on behalf of bargaining unit employ- ees provides for the allocation of certain costs relative to the appearance of a grievor, or a witness for a grievor, before fhe Public Service Grievance Board or the Classification Rating Committee. ------I - 4 - In accordance with the agreement, the grievor will be granted time-off duty, without loss of pay or attendance credits, to attend a hearing of his grievance by the Public Service Grievance Board or the Classification Rating Committee. Such time- off shall, if necessary, include 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 mce by the Public Service Grievance Board or- the Classification Ratinq 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 paid during such time-off. Effective July 1, 1973, the travel and accommodation expenses of a'witness appearing for the grievor shall be a matter between 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 authority of Section 17 subsection 4(a) -of O.Reg. 749, R.R.O. 1970 and be recorded on Commissi,pn Form CS-66 and forwarded. to the Staff Relations Branch Civil Service Commis- sion for recovery to the "Province" of any salary paid during such leave-of-absence. In -accordance .with 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 place of employment shall not entail any loss of pay or accumulation of credits. Such absence should be treated as if the grievor, his representative or witness were on duty. Any time spent at a hearing that does not fall within the scheduled hours of workfor a grievor, his representative, or a witness, shall not constitute duty time, call-inor overtime. An employee of the'"Province" elected or appointed as a grievance steward for the - 5 - Association shall, to the extent possible, conduct any investigation of a complaint or grievance, or prepare for a grievance hearing in his own time. In the event that cir- cumstances preclude the proper investigation in his own time a grievance steward may request permission from his supervisor to be absent from this place of duty and, cir- cumstances permitting, no reasonable request shall be denied. A grievance steward required to appear before the Public Service Grievance Board or the Classification Rating Committee in support of a grievor shall be treated as if he were. a witness for the grievor and the terms and conditions ap- plicable to a witness shall apply to the grievance steward. It' is of interest that the Civil Service Commission had negotiated informally with the C.S.A.O. since 1962, and that the outcome of those negotiations had'produced "agreements" which were amended from time to time, and which were implemented by inclusion in Regulations made under the Public Services Thus . . the reference in Mr. Anderson's letter is to the authority of a Regulation, rather than to the provisions of the agreement itself, since the informal agreements had no independent life apart from being enacted by Regulation. .p fact, there was a Regulation in effkct at the time ; of the Anderson letter in 1973, "and inimediately before the commencement of negotiations on March 21, 1974, that was in iden- tical terms to the present Article 32 of the col~lective 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 _-.., - 6 - Anderson letter [R.R.O. 1970, ,O. Reg. 749, section 17(4) (a)] does not refer to jury and witness leave, but to "special or compas- sionate leave with pay". Moreover, the jury and ~witness leave provision had been in the Regu,lations 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 as it had been in the informal agreement and in the Regulation, and, it appears.,. the Employer i: agre~ed to that proposition. There were, however, other provisions requested by the. Union as a part of 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 4 2 i15.1 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 neces- sary for the efficient operation of the Board. The employer shall continue to stipulate the honorarium 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-pocket expenses incurred by the Chairman or member of the Board. Any employee who makes"application for a hearinq be'fore the Board or Committee and is the incumbent of~a position, the classifica- tion of which is deemed to be in the Bargain- - 7 - ing Unit, shall be allowed time-off duty 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 the grievor being located at some distant part of 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 and accommodation shall be a matter between the grievor and the Union. 42.15.2 Any employee required as a witness by the gsievor in the matter of's 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 grievance. Any leave of absence granted under 'this section shall include reasonable travel time where neces- sary and such travel time shall be subject to the reimbursement provisions specified in this section. The employer shall notify the Union quarterly of any'leave of absence granted under this section together with the total of any~salary paid during such leave of absence. .The travel and accommodation expenses incurred by 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 representa- tive or a witness at a meeting arranged to explore his grievance' or to conduct the mandatory hearing of such grievance at the l,~ocal 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. re.presen- tative or witness is not on duty at the time i ‘) - 8 - of a meeting arranged for the purpose of exploring a grievance or conducting a hearing relative 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 agreed provisions already settled by the 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 exis- tence) 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. It appears,' from a comparisons of the provisions agreed between the parties in advance 'of the arbitration and the arbitration award itself, that these provisions relating to qrievors or complainants were added by the'board'of arbitration rather than by agreement of the parties; there~is no specific ~. rationale set out in th,e award for the inclusion of these provisions. It is of interest that the grievance procedure was agreed between the parties; without the proposals.advanced by the Union quoted above, and that the provision inserted by the board of arbitration appears'in the article entitled "Union Leave" - 9 - rather than in-the grievance procedure. The evidence as to negotiating history was provided to us in documentary form, and also in the form of the oral tes- timony of Mr. Wally Gorchinsky, who was the chief negotiator for the Crown in the first negotiations, and has been connected with ~. negotiations in capacities of increasinq.responsibility ever since. It was Mr. Gorchinsky's recollection that nothing was included in the 1976'77 collective agreement about any payment for attendance by grievors or complainants at hearings of the Board or the Tribunal, but we were not provided with a complete copy of the collective agreement in evidence to permit us to satisfy ourselves that all reference was omitted, On the face of the Brown award, however, if there was such an omission it must have been in error, since the Brown award clearly inserted such a clause as Article 36.3. It was Mr. Gorchinsky's recollection that the agreement to pay grievors and complainants was not placed into the agreement until the 1977-78 agreement, when it was added~ as clause 27.7.1, which was made applicable to union stewards representing the grievor-by 27.7.3.~ It appears either .~ that Mr. Gorchinsky's recollection is in error, or that the parties themselves only belatedly inserted the provision into-the 1977-78 collective agreement which had been awarded by the Brown arbitration for the 1976-77 agreement. In any case, by 1977-78 the provision appears in the grievance procedure, Article 27, rather than in the Union Leave section. Mr. Gorchinsky testified that, while he was unable to : - 10 - say what was in the mind of the Union during these negotiations, it.was perfectly clear to him that the intention of all of this was to preclude witnesses summoned at the instan~ce of the Union from being paid, either under the witness duty provision or elsewhere in the collective agreement. He insisted that he would never have signed a collective agreement which provided for-such payment. Mr. Andrew Todd, Chief Negotiator for the 1Jnion both.:in the first negotiations and now, was not called as a witness, but . . the parties ~stipulated that his recollection of intention would run exactly counter to Mr. Gorchinsky's. The~'Employer argues that this negotiating history illustrates clear intention by the parties to exclude payments of the sort sought by this grievance. The Union, on the other hand, insists that the negotiating history~ in fact demonstrates a precise intention to pay for leave of this kind: simply In our view, the evidence of negotiating history is '. insufficient to permit us to draw an absolute conclus ion as to the intention of either party, 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 1973, was not based on the language as now found in the collective agreement and here under dispute. Moreover; the somewhat cryptic references to reimbursement in the third paragraph are, we were .informed in evidence at the hearing! in relation to an arrangement by which the Unionwould reimburse the Crown. for salaries paid to witnesses. Therefore, the Anderson - 11 - letter cannot stand, as argued for the Union, as a definitive interpretation of the language here at issue. On the other hand, the withdrawal of language reproduc- ing 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 system. .It is our view, based upon all,of the evidence before us, that the evidence of negotiating history simply does not answer the question of the original inten'tion 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 resolvinqC;the present matter. The second kind of extrinsic evidence adduced before us related. to the past practice of the parties in applying this agreement, both in the present Ministry and, across the system. The practice in this Ministry appears to have been, at least from January 1982 until April 1985, the only period for which a search was made in preparation for this hearing, to pay employees who were under summons as Union witnesses .before the Grievance Settlement Board. The sample is not particularly large: three case were identified in which'employees could be clearly seen to - 12 - have been at the Grievance Settlement Board, and two of those employees were paid. The third employee was a contract employee, who would therefore not have been entitled to the protection of the collective agreement. After some employees attended at the Grievance Settlement Board on April 3, 1985 in response to a summons, however, the Employer indicated that they would not be paid. After some discussion, the employees were ultimately paid for April 3, but without prejudice to the Employer's position that in fact they were not entitled Tao pay in such circumstances. The present policy grievance was filed in response to a flurry of notices from the Employer immediately after this event indicating that, in the future, it would follow the policy for which the Employer now argues in this case. As to the rest of the public service, the evidence which is available arises from an interim award in another Grievance Settlement Board case, Watson and McHattie, 585/85 and 516184. A search of the Board's records was undertaken for the period January 1, 1982 to October 4, 1984 to see'what witnesses were summoned to the Board, at whose instance they were summoned, i:: . and how they were treated in respect of pay. The outcome of this inquiry was summarized in a letter from counsel for the Employer to counsel for. the Union in the present matter dated March 27, 1986, and may be briefly noted here. There were 396 names on the list of witnesses summoned. About 42 of those, no information was available. A further 37 -were either management or other excluded personnel, and 58 were .~ - 13 - non-employees. One was a member of a different bargaining unit. Of the remaining employees, 78 could not be categorised for the purposes of this case because of the absence of ~records or because the records were inconclusive. One name was simply not accounted for. This leaves 179 names of individuals who appeared at the Grievance Settlement Board under summons, and who are covered by the present collective agreement. Of those, three were being paid at the time on short-term sickness plan, and two were on long-term income protection plan. Two apparently did not attend, despite having been the subject of a summons, while 18 were on a regular day off at the time of the hearing. Four employees were paid as ,union stewards under the provisions of clause 27.7.3, while one was paid under Article 28 as on leave for Union activities. Of the remainder, 116 were paid for duty assignment, without any indication whether or not they attended the hearing, having been treated as if they were not absent at all, 17 employees were paid pursuant to Article 13 as on jury or witness leave, and 14 employees were given leave without pay. It will 'beg obvious that the practice under this clause,. even across the system, is of essentially no value in interpret- ing it one way or the other. While the large number of employees paid~as if they were on duty might be conclusive if it could be demon-strated that some or all of them were under summons at the instance of the Union and all actually attended the hearing, no. such evidence is available to us. The .,split between the number - 14 2 of employees paid pursuant to Article 32, and thus directly supporting the Union's interpretation, and those granted leave without pay, and thus supporting the Employer's interpretation, is' so nearly even as to lead to the conclusion that the parties have simply disagreed as to what this provision actually requires. Remarkably, the disagreement does not~seem to have been pushed to an impasse.before, although there have been rumblings. In Ralph, 212178, the present Vice Chairman recorded a dispute between the parties relating to payment of Union witnesses, but concluded that that panel of the'Board had no jurisdiction to deal with it. In Lenahan, 424/81, the issue of payment of incumbents attending a hearing on the validity of promqtion proceedingsin which they were successful was raised, but there is no suggestion there of a summons issuing. The failure of the Union to grieve before this might have some"significance to .support one side or the other in the present dispute, but we have no evidence to indicate that signi?icance. We are therefore thrown back upon the language of the provision itself, and interpretation of that language in light of the context of the entire collective agreement. The essence of the Union's position is that Article 32 is broad enough to cover attendance at the Grievance Settlement Board under summons, no matter at whose instance, and that in the absence of any specific restrictions, employees in this situation should be entitled to :the protection of that Article. The essence of the Employer's - 15 - position is that the Article is intended,only to cover appear- ances in court, and that extending its application to the Grievance Settlement Board and Tribunal would require specific language. We begin by observing that, insofar as witness duty is concerned, there are only two elements to then Article. An employee must be absent, and that absence must be "by reason of . . . a subpoena as a witness". The language itself does not suggest that there is any limitation to be placed on the nature of the tribunal before which the employee is summoned as a witness, and we think that we can reasonably take notice that, leaving,aside matters of labour relations, Crown employees are liable to be summoned before the entire gamu.t of courts and quasi-judicial boards and agencies, whether from events arising in the course of performing their duties or otherwise. One would .- have expected that, if this provision was intended to protect an employee appearing as a witness before, say, the Provincial Court (Criminal Division) as a witness in a Highway Traffic Act offence case, but not to protect an employee summoned before the Ontario Municipal Board, the Ontario Securities Commission or a public inquiry, the parties would have chosen language apt to express that clear intention. They have not done so, and we do not think that the mere fact that the two tribunals here at issue are involved in labour relations between the present parties really alters the nature of the present proceedings to make. them different in anyway from proceedings before any other quasi- - 16 - judicial board or agency. The Employer~argues, however, that the use of the word "subpoena" in Article 32, as opposed to the word "summons", connotes an intention to exclude from the operation of Article 32 all tribunals except the courts. We were referred to a vast array of statutory provisions in which, the Employer argued, the word "subpoena" was used to describe the process' used by a court to compel the attendance of a witness, while the word "summons" was used to describe the process used by other tribunals. Thus, the Provincial Offences Act, R.S.O. 1980, c. 400, section 40, the Crown Witnesses Act, R.S.O. 1980, c. 110, section 3, the Evidence Act, R.S.O. 1980, c. 145, section 19, the interprovincial Subpoenas Act, R.S.O. 1980, c. 220, passim, and-the Juries Act, R.S.O. 1980, c. 226, section 3(2), among others, all refer to a subpoena as being the. .appropriate process for a court. On the other hand, the Public Inquiries Act, R.S.O. 1980, c. 412, section 7, ~for example, permits a commission to require atten- ., dance "by summons". Labour relations legislation, such as the Labour Relations Act, R.S.O. 1980, c. 228, section 44(8) and the Colleges Collective Barqaining Act, R.S.O. 1980, c. 74, section 28 (1) , typically does not use the noun "summons", but in verb form permits tribunals."to summon" witnesses as required. As to the two tribunals whose powers are here atissue, the Grievance Settlement Board, buy a combination of section 19(2) and section lO(11) of the Crown Employees Collective Bargaining Act, R.S.O:'1980, c. 108, has all the powers of the Tribunal "to - 17 - summon and enforce the attendance of witnesses". The Tribunal's authority to do SO does not come from this Act itself, but from the Statutory Powers Procedure Act, R.S.O. 1980, c.~484, section. 12, which refers to requiring a person to attend "by summons". This argument might be irresistible were it to appear to have any foundation whatsoever in law. The Union, however, suggests that "subpoena" is merely an old form of usage, and that "summons" is the more modern form, the only form found, for example, in the Rules of Civil Procedure issued under the Courts of Justice Act, 1984: see, e.g., Rule 53. The Employer did not refer us to any specific authority for this proposition, inviting us instead simply to infer it from the statutory usages set out above. With respect, we are simply unable to do so. We have searched in such usual places as Halsbury's Laws of England, The Canadian Abridgement, and various law dictionaries for any suggestion of the distinct,ion argued for by the Employer, and we have been able to find no such sugqes- tion. The only intelligence which emerges from this search is ~, that the word "subpoena" appears, strictly speaking, to apply to the common law writ of subpoena ad testificandum, While the word "sgmmons" appears to apply rather to the statutory replacements for that common flaw process. Even though, under the former Rules of Practice, the method used by the .courts to compel attendance of a witness was called a subpoena, the document actually used was not in the form of the ancient writ, but rather was .a: statutory replacement therefor: see Rule 212. - 18 - We observe that a similar argument was made to this Board in Pelletier, 136/84, in the course of a parallel dispute under a different collective .agreement with materially different language, and the Board concluded that "for all practical purposes the distinction between a summons to a witness and a subpoena'i~i~sGone without a difference". The argument based on statutory usage does not appear to have been made in that case. In the absence, therefore, of any~ support whatsoever for the distinction argued for by the Employer as a term of art, 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 before all tribunals which have been given by statute the power to compel witnesses to attend and testify. As we have already observed, Article 32 would be very narrow protection indeed for Crown employees if it applied 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, however, 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 party at whose instance the Crown employee is required to appear. In the result, the present policy grievance must be : - 19 - upheld, and we therefore declare that Article 32 applies to members of the bargaining unit who are summoned to attend before .this aboard or the Tribunal, regardless of the party which requires their attendance. Since no,other relief than a declara- I -?., tion 1s requested, there is no need for us to retain any juris- diction in this matter. DATED AT TORONTO, Ontario this 2nd day of December. 1987. "I dissent" (Dissent attached) E.A. MacLean, Member .: DISSENT I have read the panel chairman's decision in this matter and must respectfully dissent. It is my opinion that the evidence, negotiating history and behaviour of the parties clearly established that the present Article 32 of the collective agreement was never intended to oblige the employer to grant leave with pay to a witness for the grievor. The chairman finds that."remarkably, the disagreement does not seem to have been pushed to an impasse before". I do not find it remarkable. Until this grievance the parties conducted themselves on the basis of their under- standing that each was responsible for the salary and expenses of its.respective witnesses and therefore there was no disagreement to be pushed to an impasse. The evidence contained in Anderson's letter of August 16; 1973 is that the Union and its predecessor, the Civil Service Association of Ontario, knew that the salary of a witness for the grievor was the responsibility of the Union. Apparently to assist in expedious payment, the witnesses were paid as if at work and the employer reimbursed directly by the Union. In the first round of formal negotiations, the union demand'on this issue contained in the grievance procedure section; was not for the employer to provide paid leave for witnesses for the grievor, but rather to confirm the admin- istrative arrangement for the union to reimburse the employer. The evidence indicates that the terms of Article 32 (Leave - Jury Duty) had been settled by the parties and, as observed by the chairman, the collective agreement as resolved by the Howard Brown arbitration "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". ~-But why would it? The only reason for such an inClUSiOn would be to grant a right that in my opinion did not exist before or following the Brown arbitration. The simple fact is both parties knew they were responsible for the salary and expenses of their respective witnessesand nothing was done in bargaining to change that fact. AC i - 2 - The chairman seems concerned that "Crown employees are liable to be summoned before the entire gamut of courts and quasi-judicial boards and agencies" and that the intent of Article 32 must be broad enough to take these possibilities into account. I agree. The only exclusion agreed to by the parties, based on the evidence, is the dispute resolution mechanism contained in the collective agreement. To find otherwise would lead to the absurd conclusion that the union would have the exclusive right, by summoning witnesses, to bind the employer to salary expenses that neither the employer or any other authority would be able to control: I find nothing in this collective agreement that requires the employer to grant leave with pay to witnesses summoned for the grievor and it is my respectful opinion that Article 32 ~-~does not apply in such instance. ,.. Edward A. McLean