GSB#2013-3431

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587

(Policy)

Union

• and -

The Crown in Right of Ontario

(Metrolinx - GO Transit)

Employer

BEFORE

Mary Lou Tims

Vice-Chair

FOR THE UNION

Katherine Rowen

Ursel Phillips Fellows Hopkinson LLP

Counsel

FOR THE EMPLOYER

Amanda Hunter

Hicks Morley Hamilton Stewart Storie LLP

Counsel

HEARING

February 19, 2014

Decision

1I have before me a policy grievance dated January 16, 2014 alleging that the Employer violated the parties’ collective agreement and the Labour Relations Act, 1995 (“the Act”) in denying the Union’s request for unpaid leave for members “to participate in 2014 contract negotiations.”

2There were no objections regarding my jurisdiction or the arbitrability of the grievance.

3Union Counsel advised by way of background that the Union initially filed an unfair labour practice complaint under the Act. Such complaint was withdrawn and the parties agreed that the present dispute would be determined through an expedited arbitration process.

4The grievance arises under the parties’ 2011 – 2014 collective agreement. Article 5.6 is the key provision and states as follows:

ARTICLE 5 – LEAVE – UNION ACTIVITIES

5.6 Leave of absence shall be granted to a member of the Union (exclusive of all full-time union officials) with no loss of pay, vacation credits, seniority or benefits subject to the following conditions:

(a) Not more than three (3) employees at any one time for any one set of negotiations.

Not more than two (2) employees are absent on such leave (i.e. negotiations) at the same time from a section;

(b) Not more than one (1) employee shall be permitted such leave for any one set of interest arbitration or Union/Management meetings;

(c) a request must be made in writing and approved at least two (2) weeks prior to the commencement of the date or dates for which leave is requested, if possible.

The Employer may, in its discretion, grant a leave of absence without pay to three (3) additional members of the Union for the purpose of participating in negotiations (emphasis added) provided such leave does not interfere with the continuance of efficient operations of the Employer. Any such leave shall be subject to the conditions hereinbefore set out.

Any leaves of absence granted hereunder shall be without loss of vacation credits, seniority or other benefits to the employees granted such leaves.

5The parties disagree on the proper interpretation of the words “participating in negotiations” and specifically whether preparation for negotiations is encompassed therein.

6The Union asks me to find that “participating in negotiations” includes “preparing” for negotiations.

7In the Employer’s submission, I should reject such assertion and should find that “participating in negotiations” includes only attendance at “face to face” negotiation meetings between the parties after formal notice to bargain has been given.

8In addition to addressing the issues necessary to determine the grievance before me, the parties both also invited me to offer “guidance” to assist them in applying the disputed language on a “go forward” basis.

9The parties did not call viva voce evidence, but agreed on the relevant facts underlying the grievance. They filed and relied upon an Agreed Statement of Facts from which I quote as follows:

1. Background and the Parties

1. The Applicant, Amalgamated Transit Union, Local 1587 (“Local 1587”) is a trade union pursuant to the Labour Relations Act, 1995 and is the exclusive bargaining agent for, amongst other groups, a bargaining unit of employees of GO Transit (“GO Transit”). GO Transit, which is a division of Metrolinx, provides regional public transit service in the Greater Toronto and Hamilton areas.

2. Local 1587’s bargaining unit at GO Transit is composed of approximately 1,856 employees, who work in a wide range of different positions and at various facilities throughout the region.

3. Local 1587 and GO Transit have a mature bargaining relationship, and have concluded collective agreements over numerous successive rounds of bargaining. The term of the parties’ current collective agreement runs from June 2, 2011 to June 1, 2014.

2. The Union’s Preparations for Bargaining

4. The bargaining of a collective agreement with advantageous terms and conditions of employment is one of the primary means by which Local 1587 represents its members. In light of the size and complexity of the employer’s operations, as well as the size of the bargaining unit, collective bargaining between the parties is a complicated, detailed and time-consuming process.

5. In order to ensure appropriate representation of its members, through meaningful and productive bargaining with the employer, Local 1587 typically undertakes extensive preparations for contract negotiations. This preparation may include communication with the membership, meetings of the bargaining committee to determine bargaining priorities and strategy, and a variety of other confidential union activities.

6. Local 1587 has already begun preparations for negotiations for a renewal collective agreement, which will likely commence in Spring 2014.

3. The Collective Agreement Union Leave Provisions Regarding Negotiations

4. Specific Facts Leading to the Dispute Between the Parties

8. On Friday October 18, 2013, Local 1587 President Dan Harris emailed David Doherty, Human Resources Consultant at Metrolinx, with the following request:

Subject: PLURS – Catherine Borrens & Lesley Witt – UNION BUSINESS

Please make the necessary arrangements to have Catherine Borrens and Lesley Witt taken off their work for October 30th and 31st, 2013.

9. Ms. Borrens and Ms. Witt are both Union Stewards. . . .

10. The acronym “PLUR” stands for “Paid Leave Union Reimbursed,” which means that the employer will pay the member directly, and then bill the Union, which in turn reimburses the employer for the union leave.

11. On the same day, October 18th, 2013, Mr. Doherty responded as follows:

“What is the nature of the union business? How does it fit within Article 5?”

12. In response to Mr. Doherty’s email, Mr. Harris responded that:

“The Union requires Ms. Borrens and Ms. Witt for contract preparations.”

13. On or about October 25, 2013, Local 1587 Vice-President Jim Boyd spoke to David Doherty who advised that the employer was denying the leave request.

14. On or about October 28, 2013, Dan Harris spoke to Mr. Doherty on the telephone and advised that on October 30th and 31st, 2013, Ms. Borrens and Ms. Witt would be undertaking tasks related to bargaining preparation.

15. Mr. Doherty advised that he was denying the request for leave on the basis that such leave was not for “actual negotiations” and was, therefore, not covered by article 5.6 of the collective agreement.

16. Mr. Doherty did not indicate that workload, staffing or other operational demands precluded the granting of the request.

17. Following the conversation, Mr. Harris phoned Catherine Borrens to advise that the company would not release her from work on October 30th and 31st, 2013. Ms. Borrens called Mr. Harris back on October 29, 2013 to advise him that her shift for October 30, 2013 had already been covered by management. Nonetheless, based on his conversation with Mr. Doherty, Mr. Harris advised Ms. Borrens that she should work her shift on October 30th, 2013 as originally scheduled.

10The parties stipulated as an additional fact that there are three members excused from their duties to serve as full-time Union officials for this bargaining unit.

11Before turning to the submissions of the parties, I note two points. First, although the Union characterized the leave in issue here as “unpaid” by the Employer, Employer Counsel noted that article 5.6 provides that such leave is “without loss of vacation credits, seniority or other benefits.” Subject to the Union’s objection that there was no evidentiary basis upon which to base such assertion, the Employer also suggested that overtime costs could be incurred in granting such leave. While Counsel did not regard this as material for purposes of deciding the issue before me here, she clarified that the Employer does not view the granting of leave as cost neutral.

12Second, although the Agreed Statement of Facts suggests that the Union understood the leave requested to be “Paid Leave Union Reimbursed,” the Employer noted that article 5.6, unlike certain other provisions of article 5, does not state that the Union will “reimburse the Employer . . . for such employees’ wages.” Again, Counsel were both clear, however, that any difference between the parties on this point need not be addressed here.

13The parties referred to the following provisions of the collective agreement in addition to article 5.6 here in dispute:

ARTICLE 4 – GRIEVANCE PROCEDURE

4.11 Time spent during their normal working hours by Union representatives and grievors in processing grievances in accordance with the terms of this Article shall be without loss of regular wages or benefits up to and including Step 2 of the grievance procedure. . . .

ARTICLE 5 – LEAVE – UNION ACTIVITIES

5.1 The Union shall notify the Employer in writing on or before July 1st in each election year or whenever changes take place of the names of its representatives as follows: officers, Bargaining Committee members, Union Management Committee members, stewards, and health and safety representatives.

5.3 The Union/Management Committee shall meet once every two months. . . . Should such meetings go beyond the employees’ normal paid hours, such further time will be without pay.

5.4 (a) The Union shall have the use of bulletin boards . . . for the purpose of posting notices relating to the Union’s business. . . .

5.7 Leave of absence without pay to attend Union conventions, seminars, grievance arbitration, or mediation shall be granted to a member of the Union who actually participates in such conventions, seminars, grievance arbitration, or mediation provided that such leave does not unduly interfere with the continuance of efficient operations by the Employer. However, any leaves of absence granted hereunder shall be compensated by the Employer and shall be without loss of vacation credits, seniority, or other benefits to the employee granted such leave. The Union agrees to reimburse the Employer every two pay periods for such employees’ wages.

Such leave shall be subject to the following conditions:

(a) not more than three (3) employees at any one time shall be permitted such leave;

(b) no one such leave shall extend beyond ten (10) working days;

(c) the maximum number of days granted hereunder shall not exceed sixty (60) for each year of the contract, not including mediation or grievance arbitration;

(d) not more than two (2) employees are absent on any such leave at the same time from a section;

(e) not more than one (1) employee for mediation or grievance arbitration; and

(f) a request must be made in writing and approved. . . . Such request shall state the particulars of the function to be attended. . . .

5.8 Leave of absence without pay to attend Executive Board meetings shall be granted to a member of the Union who actually participates in such Executive Board meetings, provided that such leave does not unduly interfere with the continuance of efficient operations by the Employer. . . .

Such leave shall be subject to the following conditions:

(i) No more than one (1) meeting per month;

(ii) no more than six (6) board members at any one time shall be permitted such leave;

(iii) in January of each year, the Union shall provide the Employee Relations Consultant with the schedule of such meetings. . . .

5.9 . . .

Specifically, while the Union Contract does not address access to facilities, the grievance procedure . . . does allow for attendance of ‘a member of the Local Union Executive or Union Steward at each step of the grievance procedure.’ Irrespective the full-time Union incumbents will have other business to conduct from time to time and it is agreed that such representative may have reasonable access to facilities and Union members. However, it is expected that even such pre-determined access to GO Transit premises will normally be preceded by notification of same. . . .

5.10 (a) Local 1587 Union Officers elected to occupy full-time Union positions acting solely for Local 1587 shall be granted leaves of absence . . . .

(b) Where a Union official is elected or appointed to a Union term of office, a leave of absence shall be granted without loss of seniority and without pay or benefits subject to the aforementioned paragraph. . . .

ARTICLE 9 – CLASSIFICATION AND JOB EVALUATION PROCEDURE

9.4(2) Composition and Roles of Technical Committee

4. Leave of Absence

4.1 While representing the Union or Management at Technical Committee meetings, employees shall be considered on an approved leave of absence with pay, provided that meetings are held during their normal scheduled work day or hours on that day. Members will not be on paid leave for any reason, if attendance is on their day off. No payment of premiums or overtime shall be paid which would normally have been paid if it had not been for the member’s attendance at the Technical Committee.

9.4(3) Composition & Roles of Steering Committee

5. Leave of Absence

5.1 While representing the Union or Management at Steering Committee Meetings, employees shall be considered to be on an approved leave of absence with pay, provided that meetings are held during their normal scheduled work day or hours on that day. Members will not be on paid leave for any reason if attendance is on their off day. No payment of premiums or overtime shall be paid which would normally have been paid if it had not been for the member’s attendance at the Steering Committee Meeting.

ARTICLE 11 – HEALTH AND SAFETY

11.13 . . .

PAYMENT FOR COMMITTEE MEMBERS

A member of the JHSC shall be deemed to be at work while performing JHSC duties prescribed herein . . . and shall be paid by the Employer . . . .

MEETING AGENDA

4. Worker Members of the JHSC shall be provided a minimum of one (1) hour preparation time prior to each regularly scheduled meeting of the JHSC. . . .

ARTICLE 43 – TERM OF AGREEMENT

43.1 This agreement shall commence on the 2nd day of June 2011 and shall end at midnight on the 1st day of June 2014 and shall continue thereafter from year to year unless either party gives notice in writing to the other party during the last one hundred and two (120) (sic) days of the term of this agreement of that party’s intention to terminate or negotiate revisions thereto. . . .

14Union Counsel suggested that two issues must be addressed here. First, she argued that article 5.6 should be interpreted in such a manner as to encompass preparation for negotiations. Second, Counsel asked me to conclude that, on the evidence before me, the Employer failed to exercise its discretion as required by the collective agreement.

15Turning to the first of the two issues, the Union took the position that the Employer’s interpretation of the disputed language is unduly restrictive, unreasonable and incorrect at law, and is intended to or has the effect of interfering with the Union’s ability to represent its members.

16The Union relied upon the evidence that the bargaining of a collective agreement with advantageous terms and conditions of employment is one of the “primary means” by which the Union represents its members. It noted that this is a large bargaining unit and that collective bargaining between the parties is “a complicated, detailed and time-consuming process.” Counsel emphasized the evidence that the Union “typically undertakes extensive preparations” for bargaining and that such preparation may encompass communication with members, meetings of the bargaining committee and a variety of other “confidential union activities.” In the Union’s submission, there can be no meaningful negotiations without such preparation.

17The Union argued that arbitrators generally favour a broad, liberal and purposive construction of Union leave contractual provisions and that there is a general arbitral “reluctance” to interpret such language in a manner that interferes with the Union’s ability to fulfill its representational functions. In the Union’s submission, the broad approach that it urges upon me is particularly warranted where the leave in issue is paid by the Union.

18Union Counsel reviewed and relied upon a number of authorities which she suggested reflect the generally accepted arbitral approach to the interpretation of contractual provisions for Union leave: United Automotive Workers and Kelvinator of Canada Ltd. (1968), 1968 CanLII 1231 (CA LA), 19 L.A.C. 307; International Union of Machinists, Local 1246 and Franklin Manufacturing Co. (Canada) Ltd. (1971), 1971 CanLII 1935 (ON LA), 23 L.A.C. 230; Leamington District Memorial Hospital and Service Employees’ Union, Local 210, 1976 CanLII 2160 (ON LA), [1976] 13 L.A.C. (2d) 30; Children’s Aid Society of Huron County and Canadian Union of Public Employees, Local 1427, [2003] O.L.A.A. No. 157; Kelowna (City) and Canadian Union of Public Employees, Local 338, [1982] B.C.C.A.A.A. No. 2; ATCO Lumber Ltd. and Industrial Wood and Allied Workers of Canada, Local 1-405, [2001] B.C.C. A.A.A. No. 231; and Corporation of the Borough of Etobicoke and Canadian Union of Public Employees, Local 185, 1981 CanLII 4433 (ON LA), [1981] 30 L.A.C. (2d) 289.

19Union Counsel acknowledged that the contractual language considered in such cited authorities differs from that before me, in that it provides for Union leave “with respect to a Grievance,” or for such purposes as the “processing” or “handling” of grievances,” or “to attend Union meetings and Union conventions.”

20Counsel argued, however, that what she characterized as a broad and liberal interpretative approach applied by arbitrators therein is equally fitting in the circumstances before me. In the Union’s submission, arbitrators recognize that Union representation of members through the “handling” or “processing” of grievances is a “core Union function” and that contractual leave provisions negotiated by the parties in relation to such role should be broadly construed. In the Union’s further submission, when assessing the scope of contractual Union leave language related to such Union activity, arbitrators “look at the whole activity” and refuse to draw rigid distinctions between segments or phases of the activity involved. Counsel argued that the negotiation of a collective agreement is also a “core Union function” and that leave provisions associated with that role, should be similarly construed in a broad and purposive manner, accepting that participation in negotiations necessarily encompasses preparation for negotiations.

21Counsel further suggested that the arbitrator in Leamington District Memorial Hospital, supra, articulated a lower threshold for the Union to meet insofar as he upheld the grievance before him on the basis that a Union official’s attendance at arbitration was “an aspect” of “handling grievances” ( para 7). Although Counsel argued that article 5.6 construed in the broad purposive manner which she suggested is reflected in the authorities supports the Union’s position here, she asserted that preparation for negotiations must at the very least be properly viewed as “an aspect” of “participating in negotiations.”

22While the Union suggested that the arbitral authorities addressed above are instructive in setting out the accepted approach to assessing the scope of Union leave language, Counsel also relied upon the decision in 544 Holdings Ltd. and United Food & Commercial Workers International Union Local 1518, [2001] B.C.C.A.A.A. No. 277, a case which she suggested is “on all fours” with the case before me. Article 19 (a) of the collective agreement there provided in part that “employees . . . shall be given time off without pay in order to . . . participate in negotiations involving the Employer.” The grievor was a member of the Union’s bargaining committee. Bargaining between the parties commenced in April 2001, and further bargaining sessions were scheduled for June and July 2001. The Union requested leave for the grievor to attend the negotiation sessions scheduled for June, and such request was granted and booked. The June bargaining dates were then cancelled, but the Union maintained its request for leave for the grievor for those dates. The Employer denied such request, giving rise to the grievance. The arbitrator found that “the union was entitled to persist in its request for time off, in order to have the grievor assist in tasks reasonably related to negotiations.” (para 61)

23The arbitrator further commented as follows:

In summary, what happened was that Dean Jesperson (the grievor) was scheduled to be off work for negotiations, pursuant to a request of the union. Leave was granted and his time off was booked. Negotiations were then cancelled, but the union continued to make its request for the leave. I find that this was a request for leave which prima facie, still fell within the parameters of Section 19 (a) of the collective agreement. While negotiations were cancelled, this was the time during which bargaining had already started, and further dates were scheduled in July. It was not unreasonable for the union to continue to wish to have the assistance of Mr. Jesperson with respect to the task of negotiating with the employer, and as Mr. Archibald [Employer Counsel] conceded, there are a number of activities which could fall broadly within the activities described as ‘participating in negotiations involving the employer’ other than actual attendance at the bargaining sessions. (para 52)

24The Union asked me to follow this decision, noting that the language in issue there incorporated a qualifier not before me, that time off was to be granted to participate in negotiations “involving the Employer.” Counsel urged me to construe article 5.6 in the same broad and purposive manner adopted by the arbitrator in 544 Holdings Ltd. and to find that participating in negotiations encompasses preparing for same within the meaning of the language before me.

25Union Counsel referred as well to the decision in Newfoundland and Labrador Health Boards Assn. and Newfoundland Association of Public Employees, [2004] N.L.L.A.A. No. 42, suggesting that the contrast between the contractual language in issue there and that before me here is instructive. The collective agreement considered in Newfoundland and Labrador Health provided that “leave with pay shall be awarded to employees who are members of the Negotiating Committee while they are attending actual negotiating sessions….” In the Union’s submission, this is the very sort of language required before the “rigid and narrow” interpretation of the contractual language urged upon me by the Employer is justified.

26Turning to the second issue raised by the Union, Counsel argued that once the Union has established that the “activity claimed” comes within the scope of article 5.6, the evidentiary onus then shifts to the Employer to provide an explanation as to why the requested leaves were denied and to demonstrate that such denial was reasonable. In the circumstances before me, I am asked to find that the Employer failed to exercise its discretion in the manner required by the collective agreement.

27The Union referred to and relied upon the following authorities: Sault Ste. Marie General Hospital and S.E.I.U., Loc. 268, 1993 CanLII 16816 (ON LA), [1993] 36 L.A.C. (4th) 154; British Columbia (Workers’ Compensation Board) and Compensation Employees’ Union, [1997] B.C.C.A.A.A. No. 451; and Board of Health of the Haliburton, Kawartha, Pine Ridge District Health Unit and Ontario Nurses’ Association, Local 106, [1998] O.L.A.A. No. 83.

28It asserted that it is incumbent on the Employer in the exercise of its discretion under article 5.6 to address and consider individually each application for leave. Relying on the decision in Board of Health, supra, it argued that the Employer cannot act “perfunctorily and without the required diligence to permit an informed conclusion” as to whether granting a requested leave would “interfere with the continuance of efficient operations of the Employer.”

29The Union commented as well on balancing of interests in the context of a request for Union leave pursuant to the collective agreement. It urged me to accept and follow the decision in Sault Ste. Marie General Hospital, supra, where the arbitrator stated as follows:

The case-law makes clear that an employer must deal with each application for a leave of absence individually, and balance its interest in efficient operation against the specific interest of the grievor. . . . Under general leave provisions found in many collective agreements, this balancing must take into account the reasons asserted by the grievor for needing the leave. However, under specific union leave provisions . . ., the purpose of the leave of absence need not be weighed in the balance since the parties have already found attendance at designated union functions to be a valid purpose. . . . (para 29)

30In the Union’s submission, once accepted that preparation for negotiations is included within the scope of article 5.6, it is not open to the Employer to inquire into the specifics of the Union’s intended preparation. The Union noted the evidence that preparation for negotiations may include “a variety of confidential Union activities,” and relied upon the cited authorities as recognizing the importance of the confidentiality of the Union’s work. While the Union accepted that the Employer’s inquiry to the Union in the circumstances before me as referenced in paragraph 11 of the Agreed Statement of Facts was appropriate, it emphasized that the Employer is limited to seeking such confirmation that the requested leave is for the purpose set out in the relevant contractual provision.

31Applying such principles to the present case, the Union noted that article 5.6 is a discretionary provision, subject to the Employer’s right to preserve efficient operations. What is key here, in the Union’s submission, is that there is no evidence of operational reasons being advanced by the Employer in denying the requested leaves, and nor is there evidence of abuse of the provision by the Union. The Union urged me to conclude that the denial of the requested leaves here was clearly arbitrary and thus unacceptable. The Union asked me to find that the Employer did not meet its evidentiary burden to provide an explanation as to why the requested leaves were denied.

32The Union therefore asked me to declare that the Employer violated the collective agreement in denying the Union’s October 2013 requests for leave for Ms. Borrens and Ms. Witt, and to order the Employer to grant leaves requested by the Union for all members participating in 2014 negotiations. Counsel stated that the Union did not seek a finding here that the Employer violated the Act, although such remedial claim is set out in the grievance.

33On the evidence before me, leaves of absence were requested for two dates in October 2013 to prepare for negotiations which “will commence in Spring 2014.” In 554 Holdings Ltd., supra, the arbitrator considered whether store visits could be regarded as participating in negotiations, and commented as follows:

I think it could, especially if the dates of the visits coincide with the period when negotiations are either about to commence or are ongoing. (para 78)

34The question of timing was raised in these proceedings although the Employer was clear that the timing of the leaves sought was not a factor in its denial of such request. The Union acknowledged the theoretical possibility that a request for leave to prepare for negotiations not taking place until a point far into the future could raise issues that the parties would need to address. Counsel was clear, however, that this is not the case here where bargaining was to take place “in fairly short order” and where timing did not enter into the Employer’s decision to deny the requested leaves. In the Union’s view, any potential issue regarding timing would be more appropriately addressed if and when it should arise.

35The Employer was clear that it denied the leaves of absence requested in October 2013 because, in its view, the Union failed to meet its burden of proving entitlement to such leaves under the collective agreement. In the Employer’s submission, “participating in negotiations” as referenced in article 5.6 does not encompass preparation for negotiations. Accordingly, given what Counsel characterized as such “good faith difference in opinion” between the parties as to what article 5.6 means, it did not proceed to “the next step” contemplated by article 5.6 and did not exercise its discretion and consider the Union’s request which it viewed as falling outside the scope of the language in issue.

36Accordingly, while the Employer stated that it did not disagree with the general legal principles articulated by the Union regarding the parties’ rights and obligations in dealing with a request for leave within the scope of article 5.6, Counsel did not address these in detail.

37The Employer stated that the Union’s right to engage in Union activity on Employer time is a negotiated right and that ultimately, I must determine whether the parties agreed through article 5.6 that a leave of absence may, subject to the terms of the provision, be granted for the purpose of preparing for negotiations.

38Counsel emphasized that article 5.6 must be construed in the context of the parties’ collective agreement in its entirety, and she suggested that such contextual consideration of the disputed provision should lead me to reject the broad interpretation of “participating in negotiations” urged upon me by the Union.

39Counsel noted and reviewed in some detail a number of contractual provisions negotiated by these parties, including those set out above. She suggested as a general proposition that the parties have clearly addressed specific entitlements for Union leaves and for access to Employer property, and have delineated in express terms, their agreement regarding the parameters of such entitlements.

40The Employer further emphasized three points. First, pursuant to article 5.6, there are three full-time Union officials dedicated to serving this bargaining unit.

41Second, review of contractual provisions reflects that performance of Union business is not always paid, and indeed, is not paid by the Employer unless this is negotiated. By way of example, article 5.3 provides that where Union/Management Committee meetings extend beyond an employee’s normal paid hours, “such further time will be without pay.”

42Further, the Employer asserted that the parties have turned their minds to the specific scope of entitlements negotiated. It referred to article 11.13 which provides in part that “Worker Members of the JHSC shall be provided a minimum of one (1) hour preparation time prior to each regularly scheduled meeting of the JHSC.” In the Employer’s submission, where the parties have agreed that leave will be provided not only for attendance at meetings of the Joint Health and Safety Committee but also for purposes of preparing for such meetings, they have specifically so stated. The failure to so provide in article 5.6 is therefore notable in this light in the Employer’s submission.

43When considering the disputed language in the context of the collective agreement as a whole and more specifically in light of the fact that there are three persons excused from their duties to act as full-time Union officials, that performing work for the Union is in some instances unpaid, and that the parties have been specific in providing leave for preparation time, the Employer urged me to reject the Union’s argument that “participating in negotiations” contemplates anything beyond attendance at face to face bargaining meetings between the parties after formal notice to bargain has been given.

44Counsel addressed the arbitral authorities upon which the Union relies. She noted that a number of such cases address language relating to the “processing” or “handling” of grievances. While the Employer accepted that such “vague” words have been broadly interpreted by arbitrators, she argued that this does not assist the Union in advancing a liberal construction of the words “participating in negotiations” not otherwise justified in the context of the present collective agreement.

45The Employer commented specifically on the decision in 554 Holdings Ltd., supra., and noted that the leaves of absence in issue there were sought only after formal collective bargaining had in fact commenced, with further dates scheduled. The Employer emphasized as well that it does not concede here that “there are a number of activities which could fall broadly within the activities described as ‘participating in negotiations involving the employer’ other than actual attendance at the bargaining sessions” as did the employer there.

46The Employer emphatically disputed the Union’s assertion that the requested leaves here were denied arbitrarily and that such denial interfered with the Union’s ability to fulfill its representational functions. The Employer objected to any such inference being drawn from its denial of the requested leaves. In its submission, denial of requested Union leave based on a good faith difference in opinion as to the scope of article 5.6 cannot be equated with an effort to interfere with the Union’s representation of its members. On the evidence before me, the Employer argued that there is no basis upon which I can find any such intent or any actual interference with the Union’s ability to fulfill its responsibilities to its members through the denial of the requested leaves. Indeed, if Ms. Borrens and Ms. Witt wished to assist the Union in preparing for negotiations, the Employer did nothing to prevent them from doing so, but merely declined to release them from their duties based on its good faith interpretation of the governing contractual language.

47The Employer also addressed timing. Counsel was clear that this was not a factor in the denial of the leaves of absence giving rise to the grievance before me, and that, in the Employer’s view, preparation for negotiations, whenever it takes place, does not constitute “participating in negotiations” within the meaning of article 5.6. Counsel referred to article 43.1 of the collective agreement permitting either party to give notice to bargain during “the last one hundred and two (120) (sic) days of the term of this agreement.” As an alternative position only, the Employer suggested that if I accept the Union’s position that article 5.6 encompasses preparation for negotiations, that I should at the very least limit that finding to preparation in which the Union engages within the last 102 or 120 days of the collective agreement after formal notice to bargain has been given. On the facts before me, Counsel noted that the leaves sought by the Union were outside of this time and indeed before dates for bargaining were set, unlike the circumstances considered by the arbitrator in 554 Holdings Ltd..

48The Employer asked that I address this issue of timing, and if prepared to accept the contractual interpretation urged upon me by the Union, determine at the very least whether October 2013 preparation for bargaining was captured by article 5.6. The Employer noted the Union’s suggestion that any future issues related to timing should be addressed only if and when they arise. The Employer argued that such approach is flawed, however, insofar as the Union maintains that the Employer has no right to information as to the nature of the preparation engaged in, but can merely ask for confirmation that a given leave of absence is requested for reasons contemplated by article 5.6. In the Employer’s submission, therefore, it is not at all clear at what point on a “temporal continuum” the Employer might be able to deny a request for leave when the Employer is limited in the information and clarification that it can demand from the Union.

49The Union addressed in Reply the contractual provisions canvassed by the Employer and suggested that a fair inference to be drawn from such language, is that where the parties intend to limit or qualify entitlement to leave, they have specifically done so. In the Union’s submission, it is therefore notable that under article 5.6, entitlement to leave to participate in negotiations was not qualified so as to apply only to attendance at bargaining sessions with the Employer.

50The Union commented in particular on the parties’ agreement set out in article 11.13 that “worker members” of the Health and Safety Committee are to be provided with a minimum of one hour preparation time prior to Committee meetings. The Union suggested that such language relating to the Union’s participation on a joint committee is not aptly compared to article 5.6 which addresses a core function of the Union to represent its members in collective bargaining. Rather, in the Union’s submission, the arbitral authorities construing the scope of negotiated Union leave provisions associated with the performance of such core Union functions are more instructive in considering the disputed language before me.

51The fundamental dispute between the parties here relates to the scope of article 5.6 of the collective agreement, and specifically, to the meaning of the words “participating in negotiations.”

52Such language is properly construed in the context of the parties’ collective agreement as a whole. In considering the various contractual provisions relied upon before me, it is fair comment to note that the parties have addressed with some specificity Union leave of various types in a number of enumerated circumstances.

53As pointed out by the Employer, there are three full-time Union officials available to service the bargaining unit, pursuant to article 5.6. Further, it is clear from the collective agreement that performance of work for the Union is not in all instances paid. Most notable, in my view, however, is the fact that the parties have at least in article 11.13 expressly and specifically provided for leave for Union members of the Joint Health and Safety Committee for preparation prior to Committee meetings.

54Article 5.6, in contrast, does not expressly speak to preparation for negotiations. Notably in my view, however, neither does it expressly reference attendance at face to face meetings with the Employer or at “actual negotiation sessions” as was the case in Newfoundland and Labrador Health, supra..

55The arbitral authorities referred to by the Union are of assistance in considering the language in issue. I have considered in particular the decision in 544 Holdings Ltd., that the Union asserted is on “all fours” with the case before me here. The arbitrator there accepted that the Union was entitled “to persist in its request for time off in order to have the grievor assist in tasks reasonably related to negotiations” pursuant to contractual language providing for “time off in order to participate in negotiations.” I note, however, that the employer there conceded that there are “a number of activities which could fall broadly within the activities described as ‘participating in negotiations involving the employer’ other than actual attendance at the bargaining sessions.” The Employer before me makes no such concession, and indeed, it is this very issue upon which the parties disagree.

56I am nonetheless satisfied, based on the authorities before me, that arbitrators have broadly and liberally construed provisions for Union leave, at least when they have related to the “processing” and “handling” of grievances. While I note the Employer’s suggestion that such “vague” language invites a broad interpretation, I found persuasive the Union’s argument that arbitrators considering such language have found it appropriate to view such core Union activity broadly and not in a fragmented manner.

57I accept the Union’s submission that the negotiation of a collective agreement for its members must be similarly regarded as a critical and core Union function. The evidence before me establishes that the collective agreement in issue here covers a large bargaining unit, and that given the size of the bargaining unit, and the size and complexity of the Employer’s operations, collective bargaining between the parties is a “complicated, detailed and time-consuming process.” I further note the evidence that “in order to ensure appropriate representation of its members” in negotiations, the Union “typically undertakes extensive preparations.”

58Having considered such evidence, the submissions of Counsel, the language of the collective agreement before me, and the arbitral authorities relied upon by the parties, I am persuaded that the words “participating in negotiations” within article 5.6 should be broadly construed as encompassing not only attendance at face to face negotiation sessions between the parties, but preparation for such meetings as well.

59The Employer was clear in these proceedings that it did not so view article 5.6 and did not understand it to contemplate Union leave for the purpose of preparing for negotiations. It was on this basis that it denied the requests for leave giving rise to this grievance. This is reflected in the evidence before me that the Employer’s representative advised the Union that the request for Union leave was denied because such leave was not, in the Employer’s view, for “actual negotiations,” and did not in its view therefore come within the scope of article 5.6.

60I find that the grievance must be upheld on this basis, in that I accept the Union’s argument that preparation for negotiations is, in all of the circumstances before me, encompassed in the language of article 5.6 providing for leaves “for the purpose of participating in negotiations.” Insofar as the Employer acted on the basis of what I respectfully find to be an unjustifiably narrow reading of the applicable language, and denied the October 18, 2013 Union request for leave for Ms. Borrens and Ms. Witt, I find that it breached article 5.6 of the collective agreement.

61The Union argued that once it established that the activity for which it claimed leave came within the scope of article 5.6, that the Employer bore an evidentiary onus to then explain the basis upon which the requested leave was denied. The Employer was clear that because it did not view the Union’s request for leave as coming within article 5.6, it did not proceed to exercise its discretion to consider the request.

62The Union is correct in asserting that there is no evidence before me suggestive of abuse of Union leave under article 5.6. Further, there is no dispute that the Union was not advised that workload, staffing or other operational demands precluded the granting of the requested leave, and I acknowledge the evidence that Ms. Borrens understood that management had in fact covered her shift on one of the days for which leave was requested.

63The Union asked me to find that such absence of evidence of abuse or of operational difficulties underscores the arbitrariness of the Employer’s denial of the requested unpaid leaves which the arbitral authorities have indicated is unacceptable. It urged me to conclude that such denial was intended to or had the effect of interfering with the Union’s ability to represent its members.

[64]The Employer acknowledged that it did not exercise its discretion under article 5.6 to consider the leave request, but denied that it acted arbitrarily in doing so, asserting that its failure to address the requests was based on what I have found to be a misapprehension of the scope of the contractual language.

65I accept and find that once the Employer received a request for a leave of absence within the scope of article 5.6, it was required to exercise its discretion and to consider the request. I therefore find that the Employer breached article 5.6 in failing to do so when the Union requested October 2013 leaves for Ms. Borrens and Ms. Witt to engage in tasks “related to bargaining preparation.”

66I am not satisfied, however, that the Employer’s failure to exercise its discretion in accordance with article 5.6 is properly viewed as arbitrary, but rather, reflected what I have found to be its overly restrictive view of the scope of the contractual provision in issue.

67Further, in such circumstances and in the absence of evidence establishing an intention to interfere with the Union’s representation of its members or actual interference with the Union’s representational role, I am not prepared to find that the Employer intended to interfere or in fact interfered with the Union’s representation of its members through the denial of the Union’s request for leave.

68Accordingly, for all of these reasons, the grievance before me is upheld. I find that the Employer breached article 5.6 of the collective agreement in denying the Union’s October 18, 2013 requests for leave for Ms. Borrens and Ms. Witt for October 30 and 31, 2013, and I so declare. I order the Employer to apply article 5.6 in accordance with this decision.

69As noted, the parties invited me to also offer “guidance” extending beyond the findings necessary to determine the grievance, to assist in the future application of article 5.6. It is on such basis that I offer the following comments which are not part of my Order herein. The Employer was clear that it did not consider preparation for negotiations as encompassed within the scope of “participating in negotiations” as contemplated by the said provision. The timing of the leaves requested did not factor into the Employer’s decision to deny the Union’s request. That said, the parties acknowledged a certain “temporal continuum” and addressed in some measure whether work performed beyond a certain time period would be regarded as preparation for bargaining. The Employer advanced as an alternate position in these proceedings that work done prior to notice to bargain and outside of the time period contemplated in article 43 cannot be characterized as “preparation for negotiations.” It asked me to specifically address whether October 2013 Union preparation for expected but unscheduled Spring 2014 bargaining was properly regarded as falling within the scope of article 5.6. I accept the Union’s position that it would not be appropriate for me to purport to address with specificity what, if any, temporal considerations may be relevant in the application of article 5.6 and I would not be inclined in any event to presume to set a “hard and fast rule” absent consideration of relevant surrounding circumstances. I note the evidence before me that collective bargaining between the parties is complicated, and that the Union engages in extensive preparations for it. Even if I were to assume, without finding, that there could be a temporal limitation on preparation for negotiations within the scope of article 5.6, I would not in the circumstances before me view the leaves requested in October 2013 as falling outside the scope of article 5.6 on such basis.

70The Union addressed in some detail its view of the parties’ respective rights and obligations in the application of article 5.6 once Union leave within the scope of that provision is requested. In further response to the parties’ mutual request for “guidance,” I note my agreement with the general principles articulated by the Union. Specifically, a request for leave within the scope of article 5.6 must be individually addressed and considered by the Employer with what the arbitrator in Board of Health, supra, described as “the required diligence to permit an informed conclusion” as to whether such leave would “interfere with the continuance of efficient operations of the Employer.” In considering a request for Union leave, it should be noted that the parties have, through the language of article 5.6, recognized participation in negotiations as a valid purpose for such leave. The validity of leave for the purpose contemplated by the said provision need not therefore be considered in a balancing exercise by the Employer. I further note the evidence before me that “a variety of confidential union activities” may form part of the Union’s preparation for bargaining and accept as a general proposition that a request for Union leave for purposes of preparing for bargaining does not open the door for the Employer to demand details of the Union’s confidential bargaining preparation.

71I thank Counsel for their very helpful submissions and for their cooperation in ensuring that this grievance would be addressed and determined in an efficient and expeditious manner.