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
Ontario Liquor Board Employees’ Union
(McColgan)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Bram Herlich Vice-Chair
FOR THE GRIEVOR Graham Williamson Counsel Koskie Minsky Barristers & Solicitors
FOR THE EMPLOYER Myfanwy Marshall Counsel Liquor Control Board of Ontario
HEARING October 16, 2001.
AWARD
The grievor 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 jurisdiction to hear and determine this matter.
Further, there were no factual disputes which separated the parties. The case turns on a narrow interpretive issue arising out of the collective agreement and the simple agreed facts.
The grievor recently suffered the passing of his great-grandmother and accordingly made application for bereavement leave under the collective agreement which provides as follows:
17.1 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.
17.2 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 denied the claim on the basis that the death of a great-grandparent does not give rise to any entitlement to bereavement leave under the collective agreement. That was the only basis for the denial and it was agreed, for example, that had the grievor suffered the loss of a grandparent in circumstances otherwise identical to the ones in issue, his entitlement to bereavement leave would have been undisputed.
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 right 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 union’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 union asserts that the collective agreement definition 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), 1973 CanLII 2146 (ON LA), 4 L.A.C. (2d) 345 (Johnston); Re Beer Precast Concrete Ltd. and Labourers’ International Union, Local 506 (1984), 1984 CanLII 5160 (ON LA), 15 L.A.C. (3d) 107 (Swan); Re North Cariboo Forest Labour Relations Association and International Woodworkers of America, Local 1-424 (1985), 1985 CanLII 5452 (BC LA), 19 L.A.C. (3d) 115 (Hope); Re Associated Freezers of Canada and Teamsters Union, Local 419 (1987), 1987 CanLII 8867 (ON LA), 32 L.A.C. (3d) 79 (Kilgour); Re Montfort Hospital and Ontario Nurses’ Association (1992), 1992 CanLII 14490 (ON LA), 28 L.A.C. (4th) 326 (M.G. Picher); Re Freshwater Fish Marketing Corporation and United Steelworkers of America, Local 561 (1995), 1995 CanLII 18449 (CA LA), 49 L.A.C. (4th) 139 (J.M. Chapman); Canadian Union of Postal Workers and Canada Post Corp., [1996] C.L.A.D. No. 618 (T. Jolliffe); Re Times-Colonist and Communications Workers of America, Local 14003 (1997), 1997 CanLII 22644 (BC LA), 67 L.A.C. (4th) 340 (Germaine); Re Holyrood Manor and Hospital Employees’ Union (1999), 1999 CanLII 20290 (BC LA), 80 L.A.C. (4th) 200 (Laing); and Council of Northern Interior Forest Employment Relations v. Industrial Wood and Allied Workers Union of Canada, [2000] B.C.C.A.A.A. No. 137 (Munroe).
I have reviewed and considered all of these decisions in coming to my conclusion.
The “broad purposive” approach the union 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 grief privately without immediate exposure to the comparative harshness of his working environment… [W]eighing 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 detriment to the employer, while significant 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 described as a broad interpretation of the collective agreement, to conclude that the grievor’s spouse’s sibling’s spouse was the grievor’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 diminish the importance of the li[b]eral and purposive approach to bereavement leave provisions espoused by counsel for the union. In considering the use of such an approach, however, it is important to recognize that it has been resorted to, for the
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 definition of “immediate family” which identified grandparent but not a spouse’s grandparent, the death of the latter was found to not give rise 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 similarities in the issues or types of issues as well as collective agreement language considered, none of these cases produces the particular matrix 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 description of some of the analytical tools which emerge from these cases.
It is perhaps most useful to identify some of the various axes of deliberation arbitrators have traversed in their considerations.
Of course, first and foremost is a characterization of the language of the collective agreement. Broadly speaking, the collective agreement language in these cases falls into three categories.
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.
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 described 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, Freshwater 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 uniform – 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 material respect. The collective agreement definition 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 strictly 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, Freshwater Fish, the absence of inclusive language was identified as significant 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 considering 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 particular relation (e.g. whether a reference to grandparent ought to include a spouse’s grandparent – a question which appears to have arisen with some frequency in the listed cases) or whether it is the scope of meaning and breadth to be attributed to “immediate family” which is central to the inquiry. Where the interpretive inquiry focuses on the meaning of a specific identified relation, the analysis is, of necessity, more restrained than when it is the meaning 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 consanguinity 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-law include their “step” counterparts?)
Indeed, all but one of the cases cited fall into this category which might be generally described 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, curiously 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 definition of “immediate family” which included grandparent but not great-grandparent.
It is within this general arbitral context that the meaning of the collective agreement language in the instant case must be assessed.
First, I must reject the union’s second argument i.e. that great-grandparent ought to be seen as simply included within the term grandparent. The employer referred to the Oxford Dictionary’s succinct definition of the term “grandparent” as: “parent of one’s father or mother”. Grandparent simply cannot be seen, by everyday definition, 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 union’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 definition 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 surprise that the parties did not refer to any dictionary definitions of the term, it is clear that their concept of “immediate family” is not restricted, 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 “horizontal” level. Included within the listed classes are persons whose claim to be members of the “immediate family” might be described as otherwise somewhat dubious when compared to persons whose proximity would be marked by clearer lines of consanguinity. To include all of the various “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 prior 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 significance of such relationships – which is only magnified 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 union here seeks to “expand” the definition 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 definition “horizontally” 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 consanguinity. In the present case, we are considering immediate though derivative relations of parent/child consanguinity.
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 arguments might be marshalled to support their inclusion, the degree of direct consanguinity 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 meaning of the collective agreement includes a great-grandparent. The grievance must therefore be and hereby is allowed.
The grievor is entitled to full compensation for any and all losses occasioned by the employer’s breach in refusing the requested bereavement leave. In its opening statement, the employer indicated that there might be an issue as to what the appropriate remedy might be. However, as that issue was not seriously 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.