Can a unionized employee continue to take vacation entitlement to LOU #4 of the union while a challenge is being heard at arbitration?

96. The Union referred to City of Vancouver v. CUPE Local 15 (Vacation Prorating Grievance), [2018] B.C.C.A.A.A. No. 112 (McPhillips), where the facts were somewhat analogous. The union grieved alleging that prorated vacation provisions for employees on maternity, parental and sick leave were discriminatory, contrary to the Human Rights Code. The grievance was filed just as collective bargaining commenced and the parties tried to resolve the issues at the table, without success. The impugned provisions remained in the agreement during bargaining and the arbitration was conducted afterwards. The union was successful, and prorating was found to be a human rights violation. Thus, said the Union, there was nothing untoward in the present case about the continuation of LOU #4 while a challenge proceeded through the arbitral process.