FPSLREB Decisions

File: 166-2-26681 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN BRUCE A. CORAM Grievor and TREASURY BOARD (Transport Canada)

Employer

Before: Muriel Korngold Wexler, Deputy Chairperson For the Grievor: Peter J. Barnacle, Counsel, Canadian Air Traffic Control Association

For the Employer: Roger Lafrenière, Counsel

Heard at Winnipeg, Manitoba, November 28, 1995 and April 10, 1996.

Decision Page 1 DECISION On March 30, 1994, Mr. Bruce Coram presented a grievance alleging that “the employer unilaterally assigned 15 days of vacation leave from March 6 to 28, 1994”. He requests that 15 days vacation leave credits be reimbursed. This grievance was duly referred to adjudication on July 26, 1995 and heard November 28, 1995 and April 10, 1996.

THE EVIDENCE Mr. Bruce Coram testified on his own behalf and Mr. Roger Lafrenière called Messrs. David Armishaw and Kenneth Yurick to testify. In addition, the parties filed 20 exhibits and I granted an order to exclude the witnesses.

Mr. Coram has been employed as an operational controller (A1-02) at the St. Andrews Tower in Manitoba since 1972. Mr. Coram has also been, since 1992, the Chair of the local branch of the Canadian Air Traffic Control Association (CATCA). Mr. Coram added that the Chair and Secretary-Treasurer of the local branch are also union stewards. Mr. Coram explained that consultation did take place between the CATCA local and the employer concerning vacation, book and lieu leave selections (Exhibit 4). This consultation took place pursuant to subclause 17.06(b) of the collective agreement between Treasury Board and CATCA (Code: 402/91) (Exhibit 1). By virtue of this consultation, the parties agreed that the leave year would be divided into three periods: 1) Spring - February 1 to May 31 2) Summer - June 1 to September 30 3) Fall - October 1 to January 31 Moreover, according to Mr. Coram the employer directed initially that all leave, annual and lieu, was to be used by December 14. Any unused leave would be scheduled by the Unit Manager (paragraph 12.5 of Exhibit 4). However, clause 17.06(c) of the collective agreement provides that an employee may elect, for vacation periods to be taken after October 2 to carry forward into the next vacation year up to a maximum of ten working days subject to certain conditions.

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Decision Page 2 Prior to December 1, 1993, Mr. Coram provided no information to his employer as to when he was going to use his vacation leave credits. According to Mr. Coram it was only on December 1, 1993 that Mr. Robert Legras, acting supervisor, asked Mr. Coram for his vacation plans. Consequently, Mr. Coram wrote that he planned to use 129.57 hours of leave credits in March 1994 (Exhibit 7). Mr. Coram explained that in January 1994, he carried over 55.32 hours and he did not recall having requested it. In his view, this carry over had been done automatically. The leave record for 1993/1994 shows that Mr. Coram carried over 55.32 hours from the 1992/1993 fiscal year and had an entitlement of 206.25 hours annual leave for the year 1993/1994 (Exhibit 6). He used some of these credits and, by January 1994, Mr. Coram had 123.75 hours vacation credits accrued for 1993/1994 and 5.82 hours carried over from 1992/1993 (Exhibit 6).

Mr. Coram indicated that in January and February 1994, his spouse was ill and was undergoing cancer prevention treatment at the Oncology Department of the St. Boniface Hospital. In December 1993, Mr. Coram learned about his wife's uncertainty concerning her health. On January 13, 1994, she underwent a medical procedure with respect to this cancer. Mrs. Coram's cancer situation caused Mr. Coram to be stressed and to take various days of sick leave. On January 18, 1994, Mr. Coram booked a tour to Palm Springs for his wife, three children and himself (Exhibit 8). When he booked this tour, no payment was yet required. The booking document indicates that the date of travel was March 5 (no year is provided) and it was for a duration of 21 nights (Exhibit 8).

On February 8, 1994, the employer posted the schedule for the month of March 1994. A copy of this schedule was provided to each air traffic controller. It is indicated on this schedule that Mr. Coram would be on annual leave as of Sunday, March 6 until Monday, March 28, 1994 inclusive. He was to return to work on Tuesday, March 29, 1994 (Exhibit 9). Mr. Coram's days off were March 3, 4 and 5, 1994. Mr. Coram declared that he was not surprised to see that he was scheduled on leave in March 1994. He had consented to it.

Mr. Coram testified that in February 1994, it came to his attention that once the trip was booked, its cancellation may be affected because of Mrs. Coram's pre-existing cancer condition. Mr. Coram added that this is the reason why he put no money down

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Decision Page 3 when he booked the trip on January 18, 1994. Thus, on February 25, 1994, Mr. Coram requested in writing that his vacation leave be cancelled. Mr. Coram wrote the following round-trip memorandum to Mr. Kenneth Yurick, Manager, St. Andrews Tower: Please be advised that due to family related and personal medical reasons I cancelled my March holiday travel plans. As I will not be requesting vacation casual leave in March, please post my March duty schedule.

(Exhibit 10) That same day, February 25, 1994, Mr. Yurick replied as follows: Unit records and conversation with the past manager (Bob Roos) indicate that management has attempted to schedule your unused leave credits during the past 93/94 fiscal year. As no viable attempt was evident on your part during the mentioned time period that met unit leave policies, you were asked when you'd like to use up your leave credits. Documentation from you indicated that your plan was to "Use these leave credits in March/94." Hence on mutual consent the March shift was posted accordingly to reflect your written & verbal request. Therefore since the fiscal year is about to terminate in thirty six days I am assigning the requested days off as posted.

(Exhibit 10) Mr. Coram testified that he was surprised by this reply because he had not been aware "that management had tried to schedule his leave credits". In cross- examination, Mr. Coram recognized that the employer expected him to provide his long range leave plans at the beginning of the fiscal year 1993/1994, and he did not recall preparing a specific or general plan to use the 206.25 hours. Mr. Coram knew that the employer expected him to use his vacation leave credits earned that year.

Mr. Coram explained that his intention in cancelling the leave for March 1994 was to enable him to carry it over to be used in the next fiscal year (1994-1995). However, Mr. Coram did not request the carry over of 55.32 hours because of the leave he wanted cancelled. Mr. Coram added that he did not make a request for carry over because in previous years the carry over had been automatic. However, in cross- examination, Mr. Coram recognized that he carried over zero from 1991 to 1992 (Exhibit 5). Mr. Coram was also aware that the employer frowned on the carry-over of Public Service Staff Relations Board

Decision Page 4 unused annual leave credits (Exhibit 4). He added that his plans for the 1994-1995 unused 129.57 hours were to have them paid out.

When the leave was assigned in March 1994, Mr. Coram was left with 5.82 hours of unused earned credits and he asked that they be paid out.

Mr. Coram declared that, in March 1994, there were nine air traffic controllers, including himself available to cover the requirements of seven controllers for the various shifts. At the St. Andrews Tower, there were a number of air traffic controllers who had come out of the Cornwall Training Centre There were no openings at the time for training at the Area Control Centre; these IFR in training were assigned VFR posts at various towers such as St. Andrews Tower. These IFR controllers in training would work at these towers until there were openings for IFR training at the Area Control Centre. They were part of the unit at the St. Andrews Tower.

Mr. Coram testified that the employer could have allowed his request to cancel the leave and put him back on the schedule without moving any of the other controllers. This would have required no change in the shift schedule.

Concerning his written request of February 25, 1994 to cancel the leave in question, Mr. Coram explained that he wrote that this request was "due to family related and personal medical reasons" and that he had cancelled his holiday travel plans. Mr. Coram declared that the reasons concerned both his wife and him. He added that "there were also [his] medical reasons". However, Mr. Coram did not elaborate further and he did not request leave for the period February 25 to March 31, 1994. He recognized that the time off for vacation would have relieved him from stress at work. During this period, Mr. Coram did not tell Mr. Yurick or anyone else that he had cancelled his trip because of possible insurance problems and he offered no other explanation to the employer as to why he wanted the leave cancelled other than what he wrote on Exhibit 10. Mr. Coram declared that he provided no information because "the reason was not asked". Mr. Coram did not work during the leave in question. He added that he did make every reasonable effort to schedule his leave but he did not communicate his leave plans to his employer during the period August to December 1993 (Exhibit 18). Mr. Coram presented his grievance on

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Decision Page 5 March 30, 1994 and his name and signature appear as the representative of the bargaining agent CATCA (Exhibit 11).

Mr. David Armishaw has been employed at Transport Canada since 1988. He was first a controller at the Brandon Tower for one year and at the St. Andrews Tower for three years. From 1990 to 1992, Mr. Armishaw was an operational controller and a manager. In 1992, he was promoted to Unit Operations Specialist. During the period 1992 to 1994, the complement of controllers ranged from eight to eleven.

Mr. Armishaw explained the policy concerning the use of vacation leave credits (Exhibit 4). The employees were expected to request leave and use the vacation leave credits throughout the fiscal year and there would be no carry over unless there was a shortage of staff.

When by early October 1993 Mr. Coram had not requested vacation leave and it appeared that he had a large number of unused vacation leave credits, Mr. Armishaw asked him what his plans were with respect to this leave. Mr. Coram gave him no dates when he planned to use the vacation leave credits. Finally, on December 1, 1993, Mr. Coram requested the leave in question here (Exhibit 7). The fact that he was one day late in requesting the leave did not cause any prejudice to the employer. He should have made his request by November 30.

In Mr. Armishaw’s opinion, Mr. Coram acted in a suspicious manner. Mr. Armishaw did not know that Mr. Coram's spouse had been ill and was taking cancer related treatment in December 1993 and January 1994. Mr. Armishaw did not ask Mr. Coram why he had asked to cancel his leave.

On January 16, 1994, Mr. Kenneth Yurick became the Manager of the St. Andrews Tower. He explained how the tower was overstaffed and this was caused by the shortage of training seats at the Area Control Centre. Messrs. Armishaw and Yurick discussed together the employer's plan to eradicate leave credits. Mr. Coram had a wealth of leave credits and some were carried over from the previous year (1992-1993). Furthermore, the end of the fiscal year (31 March 1994) was near and it would have been difficult to use these credits by that date. Mr. Yurick honored Mr. Coram's wish and request to use his vacation leave credits in March 1994. Thus, Mr. Coram was scheduled on leave during three cycles in March 1994 (Exhibit 9). The

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Decision Page 6 schedule was posted on February 8, 1994 and Mr. Coram received a copy of the schedule on or about February 10, 1994.

On February 25, 1994, Mr. Coram came to Mr. Yurick's office and gave him Exhibit 10, the note requesting the cancellation of the three cycles of leave. Mr. Coram told him that he was cancelling his travel plans. Mr. Coram's request to cancel the leave was made six days before he was to be off work. Mr. Yurick was boxed in; he was faced with all these unused vacation leave credits which could not be re-scheduled before the end of the fiscal year. Mr. Yurick could not put Mr. Coram back on the schedule because he had a surplus of employees. Mr. Coram did not ask to carry over the leave.

Mr. Yurick explained the above to Mr. Coram who gave no indication or explanation as to how to get around the problem of using the leave credits before the end of the fiscal year. Mr. Coram was non committal. Mr. Coram did not inform Mr. Yurick of his spouse's health problems and Mr. Yurick was not privy to Mr. Coram's personal family situation. Based on Exhibit 10, Mr. Yurick understood that Mr. Coram was referring to personal medical reasons. In his view, Mr. Coram was referring to himself. However, Mr. Coram did not ask for sick leave. Had he referred to his spouse, he might have been entitled to leave for family related matters. As a Manager, Mr. Yurick was not obliged to inquire into Mr. Coram's personal affairs. In Mr. Yurick's opinion, Mr. Coram had a legal obligation to advise him of the reasons for his request to cancel the leave. On 25 February 1994, when Mr. Yurick saw Mr. Coram, he observed no medical reason requiring the cancellation of the leave. Mr. Coram was at work and did not seem ill.

On 25 February 1994, Mr. Coram did not object to Mr. Yurick's decision not to grant the request to cancel the leave. He was non committal and said nothing further until he presented his grievance on March 30, 1994. Mr. Coram did go on the leave and Mr. Yurick was not aware that there was a problem until the grievance was presented. Thus, Mr. Yurick was not aware that Mr. Coram was contesting his decision to deny the request for cancellation of his leave until Mr. Yurick received the grievance.

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Decision Page 7 ARGUMENTS Mr. Peter Barnacle, counsel for the grievor, argued that Mr. Coram should have been entitled to retain the leave credits for the 1993-1994 fiscal year. He was entitled to carry over subject to any pay-out of credits already carried over from the 1992-1993 fiscal year. Pursuant to clause 17.06(c)(iv) of the collective agreement, the employer correctly paid out 55.32 hours which were carried over from the 1992-1993 fiscal year. Mr. Coram had to use up all his annual leave for 1993-1994 before he could use the 55.32 hours from the previous year. This is provided for under clause 17.06(c)(iii). Had his request to cancel the March leave been granted, he would have carried over into the 1994-1995 fiscal year 74.25 hours pursuant to clause 17.04 and clauses 17.06(b) and (c).

Mr. Barnacle explained that clause 17.04 provides that the unused portion of vacation leave shall be carried over. There is no choice in this regard and no election required. According to Mr. Barnacle, the unused portion must be carried over and there is no request required by the employee. Therefore, the employer had no choice but to carry over the 74.25 hours into the next fiscal year.

According to Mr. Barnacle, the employer relied on the wording of clause 17.04 to unilaterally assign or schedule the vacation leave leaving no unused vacation leave credits to carry over. It is the position of the grievor that the employer's rights under clause 17.04 are subject to clause 17.06(b) which obliges the employer to schedule vacation in a manner acceptable to the employee. Mr. Barnacle explained that this applies also when the employee cancels his request for vacation leave. Mr. Coram had an entitlement to carry over 74.25 hours under clause 17.06(c). This carry over was automatic; no election was required and this was the case for the 55.32 hours the grievor had carried over from the 1992-1993 fiscal year. Mr. Coram could have insisted on carrying over up to ten days under clause 17.06(c). Mr. Coram did not need to go through a convoluted process to request vacation leave and then cancel it because he could have simply requested the carry over of his credits. An amount of unused credits (138.8 hours) was automatically carried over under clause 17.04. Moreover, under clause 17.06, the grievor could have elected to carry over up to ten days. He had a right to do so.

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Decision Page 8 Pursuant to clause 17.04, the employer had an obligation to accommodate Mr. Coram's request for vacation in a manner acceptable to him. The employer could not rely on its own policy requiring that the vacation leave credits be used in the year they are earned (Exhibits 13 and 14). Such a desire may have some strong administrative rationale and may be a desirable goal but it is subject to the obligations of the provisions of the collective agreement. The employer had an obligation to respect Mr. Coram's wishes. There was no operational reason not to accommodate his request to cancel the vacation leave in question. There was a surplus of air traffic controllers and putting Mr. Coram back on the shift schedule would have created no difficulty. Moreover, the obligation to accommodate under clause 17.06(b) is not time limited. Mr. Coram could have cancelled his leave the day before he was to go on vacation.

In support of his argument, Mr. Barnacle cited the following decisions: Low and Duggan (Board file 168-2-56); Grant and Stoykewich (Board files 166-2-3323 and 3324); Stoykewich (Board file 166-2-14983); Darrien et al (Board files 166-2-13805 to 13807); Bourne (Board files 166-2-15136 and 15138); Anderson (Board files 166-2-9005 to 9008 and [1982] 1 F.C. 714); Jodozi (Board files 166-2-1584 to 1597, 1599 and 1602, overturned by 168-2-101); Richard (Board file 166-2-25897).

Mr. Barnacle submitted that the grievor was requesting the reinstatement of 74.25 hours of credits and the pay-out of 55.32 hours, recognizing that he has already received payment for 5.82 hours he had carried over from the previous fiscal year. Mr. Barnacle requested further that I reserve jurisdiction on the remedy to allow the parties to conclude this aspect of the corrective action.

Mr. Roger Lafrenière, counsel for the employer, referred to the evidence. He argued that there had been an attempt to set up the employer and try to make a case before me. Therefore, even if there is a case, this should disentitle Mr. Coram to a remedy. He added that the evidence demonstrates that the employer did observe the requirements under Article 17. Article 17 must be read in its entirety. The general principles provided under Article 17 are that employees are entitled to receive certain credits during a fiscal year and to insist that the employer schedule their vacation leave in that fiscal year. The intent of clause 17.06(c) is that the vacation leave earned be used in that fiscal year. At the end of the fiscal year, circumstances could be such

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Decision Page 9 that the employee has less choice or even no choice as to the scheduling of the unused vacation leave credits. Mr. Coram was the author of his situation. He frustrated the employer in providing no details on how he was going to use his vacation leave until the employer had no choice but to ask him in November 1993 to give his vacation leave plans. Mr. Coram provided these on December 1, 1993.

The grievance alleges that the employer unilaterally assigned 15 days of vacation leave (Exhibit 11). However, this is not the issue. The case to be decided is did the employer act properly in refusing the request to cancel the vacation leave. On December 1, 1993, Mr. Coram requested vacation leave for March, 1994 (Exhibit 11). This request was granted. On January 18, 1994, Mr. Coram made arrangements to go on a trip (Exhibit 8) which was done before the posting of the February 8, 1994 schedule (Exhibit 9). Thus, Mr. Coram knew when he was to be scheduled on leave. Mr. Coram was aware of the specific dates he was to be on leave. However, he waited until February 25, 1994, six days before the start of his vacation leave, to request that it be cancelled (Exhibit 10). Moreover, he provided very little detail for this request. At this time, the employer was caught; the schedule had already been posted and the end of the fiscal year was close. Mr. Coram offered no details for his request to cancel. No reasons were given as to why he could not enjoy his vacation at home and there is no provision in the collective agreement to provide leave just for a trip.

Mr. Lafrenière pointed out that we must take into account the work of an air traffic controller which causes stress. Thus, this is the reason why vacations are very important.

The burden of proof rested with the grievor to demonstrate a violation of the collective agreement. However, the evidence demonstrates that the employer fully complied with the provisions of the collective agreement. The employer was faced with the end of the fiscal year and the employer did schedule the vacation leave in accordance with Mr. Coram's wishes.

Moreover, and in the alternative, the grievor presented his grievance on March 30, 1994, after he had enjoyed his vacation. Clause 5.03 of the collective agreement is a limit on when the employee can present a grievance but is not an entitlement to wait the full 25 days. Mr. Coram should have presented his grievance

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Decision Page 10 forthwith in order for the employer to mitigate its losses. Therefore, at best, Mr. Coram is entitled to a declaration because the employer was ambushed with the grievance when Mr. Coram had already enjoyed his vacation. Mr. Lafrenière cited Stoykewich (supra) which in his view is strangely similar and he distinguished Richard (supra) because in that case the grievor became ill before the vacation began and adjudicator M.-M. Galipeau found that once the vacation leave was granted, the grievor did not have an absolute right to postponement of the leave.