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HomeMy WebLinkAbout2000-1353.McColgan.01-10-30 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB# 1353/00 UNION#OLB284/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Board Employees' Umon (McColgan) Grievor -and- The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Bram HerlIch Vice-Chair FOR THE GRIEVOR Graham WillIamson Counsel Koskie Minsky Bamsters & SOlICItorS FOR THE EMPLOYER Myfanwy Marshall Counsel LIqUor Control Board of Ontano HEARING October 16 2001 - 2 - AWARD The gnevor claims that the employer has vIOlated the collectIve agreement by refusIng to grant hIm the bereavement leave to whIch he claims he was entItled under ArtIcle 17 of the collectIve agreement. There were no prelImInary Issues and no dIspute that I have the JunsdlctIOn to hear and determIne thIS matter Further there were no factual dIsputes whIch separated the partIes The case turns on a narrow InterpretIve Issue ansIng out of the collectIve agreement and the sImple agreed facts The gnevor recently suffered the paSSIng of hIS great-grandmother and accordIngly made applIcatIOn for bereavement leave under the collectIve agreement whIch provIdes as follows 171 An employee shall be allowed three (3) consecutIve days of leave of absence wIth pay InclUSIVe of the day of the funeral In the event of the death of a member of hIs/her ImmedIate famIly and such leave shall not be charged agaInst attendance credIts 172 For the purpose of thIS ArtIcle, "ImmedIate famIly" shall Include the employee's spouse, mother father mother-In-law father-In- law son, daughter brother sIster brother-In-law sIster-In-law son-In-law daughter-In-law grandparents, spouse's grandparents, grandchIld, ward or guardIan. The employer demed the claim on the basIs that the death of a great-grandparent does not gIve nse to any entItlement to bereavement leave under the collectIve agreement. That was the only basIs for the demal and It was agreed, for example, that had the gnevor suffered the loss of a grandparent In CIrcumstances otherwIse IdentIcal to the ones In Issue, hIS entItlement to bereavement leave would have been undIsputed. - 3 - The posItIOns of the partIes are qUIte clear and straightforward. From the employer's perspectIve, the absence of any explIcIt mentIOn of great-grandparents In the collectIve agreement determInes the case The partIes have set out the famIlIal relatIOnshIps to whIch a nght to bereavement leave adheres They have not Included or contemplated great-grandparents There IS thus no such entItlement In the event of the death of such a famIly member The umon's posItIOn IS only slIghtly more complex. Its argument IS twofold, but each prong rests on the urgIng that I adopt the broad and purposIve InterpretIve approach embraced by many arbItrators dealIng wIth Issues related to bereavement leave FIrst, the umon asserts that the collectIve agreement defimtIOn of "ImmedIate famIly" IS not exhaustIve Thus, whIle great-grandparent IS not explIcItly Included In the lIst provIded, neIther IS It excluded. It IS therefore stIll open to me to Include great-grandparent wIthIn the realm of relatIOns contemplated by "ImmedIate famIly" Secondly and perhaps more sImply I ought to conclude that a great-grandparent IS a type of grandparent and therefore IS explIcItly Included In the collectIve agreement by vIrtue of the reference to the latter The partIes referred me to a number of cases In support of theIr respectIve posItIOns Re Dominion Glass Co Ltd and United Glass And Ceramic Workers, Local 235 (1973),4 L AC (2d) 345 (Johnston) Re Beer Precast Concrete Ltd and Labourers International Union, Local 506 (1984) 15 LAC (3d) 107 (Swan) Re North Cariboo Forest Labour Relations Association and International Woocbtorkers of America, Local 1-424 (1985) 19 LAC (3d) 115 (Hope) Re Associated Freezers of Canada and Teamsters Union, Local 419 (1987) 33 LAC (3d) 79 (KIlgour) Re Montfort Hospital and Ontario Nurses Association (1992), 28 LAC (4th) 325 (M.G Plcher) Re Fresmater Fish Marketing Corporation and United Steehwrkers of America, Local 561 (1995), 49 LAC (4th) 139 (lM. Chapman) Canadian Union of Postal Workers and Canada Post Corp [1996] C.L AD No 618 (T JollIffe) Re Times-Colonist and Communications Workers of America, Local 14003 (1997) 67 L.AC (4th) 340 - 4 - (GermaIne) Re Holyrood Manor and Hospital Employees Union (1999), 80 L.AC (4th) 200 (LaIng) and Council of Northern Interior Forest Employment Relations v Industrial Wood and Allied Workers Union of Canada, [2000] B C C AAA No 137 (Munroe) I have revIewed and consIdered all of these decIsIOns In comIng to my conclusIOn. The "broad purposIve" approach the umon urges has ItS genesIs In the earlIest of the cases filed wIth me In Dominion Glass arbItrator Johnston offered the folloWIng In a passage (at p 353) whIch has been embraced In many subsequent decIsIOns the purpose of bereavement leave IS to provIde an employee wIth tIme off wIthout loss of pay to gather together wIth relatIves at a tIme of personal tragedy for mutual comfort, to assIst In makIng arrangements for the funeral of the deceased and for the ImmedIate and after care of the deceased's SUrvIVorS, and to enable the employee to bear hIS gnef pnvately wIthout Immediate exposure to the comparatIve harshness of hIS workIng envIronment [W]elghIng the eqUItIes, the value of bereavement leave to the employee IS usually hIgh comIng at an unexpected tIme when personal trauma IS severe and the claims of famIly are preSSIng whereas the detnment to the employer whIle sIgmficant In terms of alteratIOns to work force schedules, IS not overwhelmIng In terms of costs or productIOn InterruptIOns or frequency of occurrence In that case the arbItrator went on, USIng what was descnbed as a broad InterpretatIOn of the collectIve agreement, to conclude that the gnevor's spouse's sIblIng's spouse was the gnevor's brother-In-law for the purposes of bereavement leave entItlement. The broad purpOSIve approach of the Dominion Glass case finds ItS counterpoInt In the folloWIng passage from the Montfort Hospital case (at p 334) ThIS board does not reJect or dlmlmsh the Importance of the lI[b ]eral and purposIve approach to bereavement leave provIsIOns espoused by counsel for the umon. In consldenng the use of such an approach, however It IS Important to recogmze that It has been resorted to for the - 5 - most part, by boards of arbItratIOn In those cases where the language of a bereavement clause on Its face, IS equally susceptIble of two InterpretatIons In every case, however the startIng pOInt must be the language of the collectIve agreement under consIderatIOn. Where a bereavement leave provIsIOn IS reasonably specIfic In ItS language, It IS not open to a board of arbItratIOn to depart from the IntentIOn of the partIes to fashIOn a purposIve InterpretatIOn that extends beyond what they agreed. Thus, In that case, where the collectIve agreement provIded an exhaustIve defimtIOn of "ImmedIate famIly" whIch IdentIfied grandparent but not a spouse's grandparent, the death of the latter was found to not gIve nse to bereavement leave entItlement. Of course the cases referred to each deal wIth partIcular facts measured agaInst the specIfic language of the collectIve agreement there In Issue And whIle there are many sImIlantles In the Issues or types of Issues as well as collectIve agreement language consIdered, none of these cases produces the partIcular matnx of fact and language wIth whIch we are currently concerned. In that context, rather than reVIeWIng each of them In detaIl, I prefer to offer a more general descnptIOn of some of the analytIcal tools whIch emerge from these cases It IS perhaps most useful to IdentIfy some of the vanous axes of delIberatIOn arbItrators have traversed In theIr consIderatIOns Of course, first and foremost IS a charactenzatIOn of the language of the collectIve agreement. Broadly speakIng, the collectIve agreement language In these cases falls Into three categones In the first and most specIfic, bereavement leave IS provIded In the case of the death of certaIn named classes of persons (as In the Beer Precast case) In such a case, arbItrators are loath to depart from the specIficIty of the agreement and to conclude, for example, that the collectIve agreement term "grandparent" ought to be read to Include the employee's spouse's grandparent. - 6 - In the second category of cases, the collectIve agreement contemplates bereavement leave entItlement In the event of the death of a member of a group of persons, tYPIcally descnbed as the "Immediate famIly" The agreement wIll then go on to explIcItly and specIfically define the members of that group In these cases arbItrators have demonstrated some reluctance (see the Montfort, Fresmater Fish, Canada Post, and Council of Northern Interior cases) when It comes to readIng the IdentIfied and enumerated members of the ImmedIate famIly or Indeed, the very concept of "ImmedIate famIly" In a lIberal fashIOn. But that retIcence IS by no means umform - for even In these sItuatIOns some arbItrators have stIll applIed a lIberal approach (see the North Cariboo and Associated Freezers cases) The final category dIffers from the second In but one matenal respect. The collectIve agreement defimtIOn of "ImmedIate famIly" IS presented In InclUSIVe rather than exhaustIve terms Rather than phrases tYPIcal of the precedIng category "ImmedIate famIly means " or "ImmedIate famIly IS defined as " one finds wordIng such as "ImmedIate famIly Includes " In thIS type of case arbItrators may feel less constraIned and not stnctly or lIterally lImIted to the lIst that follows, partIcularly where the relatIOn In questIOn mIght otherwIse be seen to be a member of the "ImmedIate famIly" Of the cases referred to above, but a sIngle one (Holyrood Manor) examIned language of the thIrd type (Although, In at least one case, Fresmater Fish the absence of InclUSIVe language was IdentIfied as sIgmficant In the analysIs) There can be no questIOn that (notwIthstandIng the use of the word "shall" In the phrase "shall Include") the language we are consldenng falls most squarely Into the thIrd category Perhaps another aXIS whIch defines some of the InqUIry In the cases pertaIns to the essentIal InterpretIve functIOn the arbItrator IS seen to be performIng The analysIs may dIffer dependIng upon whether the exerCIse IS seen as one to determIne the scope of a - 7 - partIcular relatIOn (e g. whether a reference to grandparent ought to Include a spouse's grandparent - a questIOn whIch appears to have ansen wIth some frequency In the lIsted cases) or whether It IS the scope of meamng and breadth to be attnbuted to "ImmedIate famIly" whIch IS central to the InqUIry Where the InterpretIve InqUIry focuses on the meamng of a specIfic IdentIfied relatIOn, the analysIs IS, of necessIty more restraIned than when It IS the meamng of a larger cumulatIve category such as "ImmedIate famIly" whIch IS at Issue Also of note In the cases revIewed IS the frequency wIth whIch the Issue Involves whether bereavement leave entItlement ought to be "extended" beyond the ObVIOUS and clearly IdentIfied famIly relatIOns to Include the loss of relatIOns In posItIOns "akIn" to tradItIOnal lInes of consangUImty set out In the agreement. (Should references to grandparents be taken to Include a spouse's grandparents? Does brother-In-law extend to Include a spouse's sIster's husband? Is the mother of a common law spouse a mother-In- law? Do grandchIldren/grandparents/parents-In-Iaw Include theIr "step" counterparts?) Indeed, all but one of the cases cIted fall Into thIS category whIch mIght be generally descnbed as one where evolvIng notIOns of expanded tradItIOnal famIlIes (increasIngly seen and accepted by socIety at large to Include the "In-law" "common- law" and "step" relatIOnshIps) need to be reconcIled wIth collectIve agreement language of varyIng degrees of exhaustIve specIficIty The only case filed before me whIch dId not fall Into thIS general category (Canada Post) Involved, cunously enough, a claim that a collectIve agreement reference to "grandparent" ought to Include great-grandparent. In that case, the claim was reJected because the collectIve agreement contaIned a specIfic and exhaustIve defimtIOn of "ImmedIate famIly" whIch Included grandparent but not great -grandparent. It IS WIthIn thIS general arbItral context that the meamng of the collectIve agreement language In the Instant case must be assessed. - 8 - FIrst, I must reJect the umon's second argument 1 e that great-grandparent ought to be seen as sImply Included wIthIn the term grandparent. The employer referred to the Oxford Dictionary's SUCCInct defimtIOn of the term "grandparent" as "parent of one's father or mother" Grandparent sImply cannot be seen, by everyday defimtIOn, to Include great-grandparent. If that were the case, a reference to aunt (of whIch there IS none In the current collectIve agreement - a pOInt to whIch I shall return) would have to be taken to Include a great-aunt, a result whIch IS at least equally less than ObVIOUS I find the umon's other argument, however to be much more compellIng and, ultImately for the reasons whIch follow persuaSIve If we follow the lInes of InqUIry IdentIfied earlIer we see that we are not dealIng wIth the first or the second category but wIth the thIrd. The collectIve agreement does not IdentIfy specIfic classes or gIve an exhaustIve defimtIOn of the term "famIly" or "ImmedIate famIly" Rather It Invokes the general term and then defines It In a fairly detaIled but not exhaustIve fashIOn. The resultIng Issue IS therefore not whether "grandparent" Includes "great- grandparent" but rather whether a great-grandparent IS a member of the "ImmedIate famIly" For two reasons, I have concluded that It IS FIrst, I note that the partIes have themselves taken an approach to the term "ImmedIate famIly" that lacks a certaIn Immediacy WhIle It perhaps comes as no surpnse that the partIes dId not refer to any dIctIOnary defimtIOns of the term, It IS clear that theIr concept of "ImmedIate famIly" IS not restncted, for example, to one's nuclear famIly Second, but related to the first pOInt, the partIes have taken a fairly expanSIve approach to the phrase at the "honzontal" level Included wIthIn the lIsted classes are persons whose claim to be members of the "ImmedIate famIly" mIght be descnbed as otherwIse somewhat dubIOus when compared to persons whose proxImIty would be - 9 - marked by clearer lInes of consangUImty To Include all of the vanous "In-law" verSIOns of parents, chIldren, sIblIngs and grandparents whIle excludIng the employee's own dIrect blood "ascendants" or for that matter descendants, IS, It seems to me, counter-IntUItIve Put somewhat dIfferently I have some dIfficulty ImagInIng that If the partIes had turned theIr mInds dIrectly to the questIOn of great-grandparents at the bargaInIng table - after havIng agreed to grandparents-In-law - that the answer would not have been ObVIOUS The absence of "great-grandparents" IS, In my vIew more lIkely a reflectIOn of the chances of ItS occurrence than It IS of the partIes' IntentIOn. With the already ImpreSSIve lIst of InclUSIOnS, the need to exclude a relatIOnshIp that Includes a dIrect parent/chIld dImensIOn - even to the extent of pnor ancestors (or subsequent dIrect progeny) - IS not ObVIOUS to me Thus, In lIght of the case that the partIes have themselves constructed, and my understandIng of the sIgmficance of such relatIOnshIps - whIch IS only magmfied by the chance of theIr occurrence - I have no hesItatIOn In IncludIng a great-grandparent wIthIn an employee's ImmedIate famIly In comIng to thIS concluSIOn, It should be ObVIOUS that I have not Ignored the employer's assertIOn that the umon here seeks to "expand" the defimtIOn of "ImmedIate famIly" "vertIcally" to Include members of a generatIOn more removed. WhIle there are graInS of truth to thIS submISSIOn, I note that It was presented to dIStIngUISh those plentIful cases where arguments have been advanced to "extend" the defimtIOn "honzontally" to Include "In-laws" "step" and other legal relatIOns I am not persuaded that dIstInctIOn assIsts the employer's case For the cases sought to be dIstIngUIshed are, wIthout exceptIOn, efforts to Include relatIOns otherwIse lacking In consangUImty In the present case, we are consldenng ImmedIate though denvatlve relatIOns of parent/chIld consangUImty I also note In concludIng that the Instant collectIve agreement does not specIfically IdentIfy aunts, uncles or COUSInS as members of the "ImmedIate famIly" Though I am not asked to determIne that questIOn, I merely observe that whIle sImIlar - 10 - arguments mIght be marshalled to support theIr InclUSIOn, the degree of dIrect consangUImty entaIled In such a relatIOnshIp could easIly be dIstIngUIshed from the relatIOn of a parent, grandparent or even great-grandparent. For all of the foregoIng reasons, I am satIsfied that "ImmedIate famIly" wIthIn the meamng of the collectIve agreement Includes a great-grandparent. The gnevance must therefore be and hereby IS allowed. The gnevor IS entItled to full compensatIOn for any and all losses occasIOned by the employer's breach In refusIng the requested bereavement leave In ItS opemng statement, the employer IndIcated that there mIght be an Issue as to what the appropnate remedy mIght be However as that Issue was not senously pursued In argument, I shall leave It to the partIes to determIne and shall remaIn seIzed In the event they are unable to do so Dated at Toronto thIS 30th day of October 2001 ~ ~)'L~~~~l: _. , ... .. r~ . :.. I .. :" Bram HerlIch, Vice-Chairperson.