Accustomed to scheduling his lieu days according to his preferences, a worker grieved when one of his selected days was refused. The union argued that a new vacation request form introduced by the employer gave employees an absolute right to select the dates for their lieu days.
Prior to 2007, selected dates for lieu days were the subject of negotiation between the parties, according to the Chief Union Steward.
In 2007 the employer introduced a new vacation request form. While the form provided a spot for the employer to indicate its acceptance of requested vacation dates, the manner of selecting lieu dates was apparently cut and dried.
Employees were simply asked to mark either yes or no to indicate their preference either to be paid for a paid holiday that fell on a day off (or during vacation) or if they wanted to take a lieu day instead. If they selected the lieu day option, workers were to provide a date for the lieu day. There was no adjacent space to indicate whether or not the employer approved the selected date.
Selected date refused
When V.B.’s request to take September 25, 2010 as a lieu day was refused, the union grieved. While V.B. and the employer ultimately settled on another date, the union filed a policy grievance alleging that the employer was violating the collective agreement by refusing to accept the lieu dates selected by the employees.
The union argued that V.B. was entitled to the date he had selected. His selection conformed to the notice requirements and should have been accepted. By removing the requirement that selected lieu dates must be “at a time mutually agreeable,” the parties had made the selection of lieu dates non-negotiable and purely a matter of employee discretion, the union said.
Language in the collective agreement made no reference to employees scheduling their own lieu days, the employer said. While employees have the absolute right to choose either to be paid or to take a lieu day, they do not have the absolute right to select the date of their lieu day. The omission of the reference to “a time mutually agreeable” cannot be read to mean that the parties conferred on employees an absolute right to select their lieu dates.
Management was within its rights to either accept or deny a proposed lieu date according to manpower availability and production needs, the employer said.
In this case, V.B.’s request was denied on justifiable business grounds.
Employees did not have an absolute right to select lieu days on their own, the Arbitrator said.
“[S]chedule “C” 1 (b) [of the collective agreement] does not confer upon an employee an absolute right to select their own lieu day. The Company has the discretion under its broader managerial rights to refuse an employee selected lieu date, if it considers the date to be in conflict with its powers to manage the business.”
Intention not an enforceable right
Indicating an “intention” to take a particular day as a lieu day does not amount to an enforceable right, the Arbitrator said. Similarly, submitting a date on a company form is — in this case — only a record of employee intentions. “It does not mean the selected lieu date, if recorded has to be accepted by the Company.”
Also, the language warning that a selection could not be altered was a reference not to the preferred date indicated by the worker, the Arbitrator said, but rather to the choice of either a lieu day or pay.
In fact, the agreement was silent on the issue of selecting lieu days, the Arbitrator said. “Where the language in the Collective Agreement is silent on the issue of scheduling, arbitrators have held that the employer retains the right to scheduling lieu days under its broader managerial right to manage its workforce.”
The grievance was denied.
