GSB# 2022-10650

UNION# 22-37

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Policy)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Ryan Culpepper Canadian Union of Public Employees - Local 1750 National Representative

FOR THE EMPLOYER

Ron LeClair LeClair and Associates Counsel

HEARING

December 22, 2022

Decision

1This Award addresses the issue of whether the Employer violated the collective agreement by not deeming September 30, 2022, the National Day for Truth and Reconciliation (NDTR), as a paid holiday for members of the Union's bargaining unit.

2The facts associated with the matter were not in dispute; accordingly, the parties were able to agree to the following Statement of Agreed Facts (SAF), which serves as the evidentiary record in this matter:

STATEMENT OF AGREED FACTS

1. The Employer is the Workplace Safety and Insurance Board. The Union is the Canadian Union of Public Employees, Local 1750. The Employer and the Union are parties to a current Collective Agreement, which is provided as evidence in these proceedings.

2. In 2021, the Parliament of Canada passed Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code, S.C. 2021, c.11, which created the National Day for Truth and Reconciliation as a new federal holiday to be recognized on September 30 of each year.

Bill C-5 amended three pieces of legislation to provide for recognition of NDTR:

• The Bills of Exchange Act;

• The Interpretation Act;

• The Canada Labour Code (CLC).

3. The Employer recognized the National Day for Truth and Reconciliation as a paid holiday in the workplace for September 30, 2021. The Employer granted members of the bargaining unit a paid holiday and/or holiday pay in accordance with the provisions of Article 10 of the Collective Agreement on the National Day for Truth and Reconciliation (September 30, 2021).

4. In February 2022, the Employer informed the Union that it had not yet made a determination whether to grant a paid holiday on the National Day for Truth and Reconciliation in 2022.

5. On February 10, 2022, the Union filed Grievance #22-07 based on the Union’s position that the Employer "failed to recognize the Truth and Reconciliation Day as a fixed paid holiday despite the fact the day has been proclaimed by the Governor General".

6. On June 13, 2022, the Employer’s representative in the grievance procedure, Mr. Garen Simmonds, wrote the following letter to the Union’s representatives in the grievance procedure, Mr. Tony DiNardo and Ms. Cynthia Ireland:

"Hi Tony and Cynthia,

I am writing to confirm that the WSIB will be recognizing September 30th ‘Truth and Reconciliation Day’ as a paid holiday in accordance with Article 10. I appreciate your patience with this file.

Can you please let me know if this is sufficient to resolve grievance #22-07 or whether further discussion is required.

Thanks,

Garen."

7. On June 14, 2022, the Chief Steward of the Union, Mr. Tony Maccarone, wrote the following letter to the Employer’s Director of Human Resources and Labour Relations, Ms. Lisa Dymond:

"Ms. Dymond,

Re: Grievance #22-07 Policy

This is to confirm that the Union is withdrawing the above noted grievance from any further proceeding without prejudice or precedent.

Should you require any further information please do not hesitate to contact me via the Union office.

Yours Truly,

Tony Maccarone."

8. Shortly after this exchange, the Employer’s internal web site, which provides announcements and workplace information to members of the bargaining unit, was updated to read:

"National Day for Truth and Reconciliation on September 30”

What’s happening?

• In 2021, the federal government introduced a new national statutory holiday designating September 30 as National Day for Truth and Reconciliation to commemorate the traumatic history and legacy of residential schools in Canada.

• All WSIB offices will be closed on Friday, September 30, 2022, in observance of the National Day for Truth and Reconciliation. Our offices will also be closed on this day in 2023.

What does this mean for you?

• This day is an opportunity for all of us to learn about and reflect on the history of residential schools and to honour the lives lost. You are encouraged to attend one of the ceremonies being held in communities across the province on September 30 and use the many resources to further explore and reflect on the historical importance of this day.

• You do not need to take any action in PeopleSoft. This is an additional paid statutory holiday and will not impact your accumulated vacation hours. If you have already booked the time off in PeopleSoft, the request will be cancelled automatically.

• If you are required to work on September 30 to ensure continuity of operations, you will be contacted directly by your manager and all provisions of our collective agreements and policy will apply."

9. On September 13, 2022, the Employer emailed all staff and subsequently posted on Connex (the Employer’s intranet) advising in part:

"The WSIB has further reflected on how the WSIB will observe the National Day for Truth and Reconciliation.

Since this day is not a statutory holiday in Ontario, and therefore most businesses and other Ontario government services will be open, the WSIB’s offices will remain open on September 30, 2022. The day will be treated as a regular working day for WSIB employees."

10. On September 13, 2022, the Union filed Grievance #22-37 regarding the Employer’s denial of the National Day for Truth and Reconciliation as a paid holiday under the Collective Agreement and regarding the Employer’s reversal of its position allowing Grievance #22-07 on the same topic.

11. In December 2022, the parties agreed that Grievance #22-37 be referred to the Grievance Settlement Board with Vice-Chair Brian Sheehan presiding as sole arbitrator. The parties agreed to a hearing date of December 22, 2022.

3The following is the relevant wording of the collective agreement:

The Employer recognizes the following days as paid holidays:

10.01 New Year's Day

Family Day

Good Friday Easter Monday Victoria Day Canada Day

Civic Holiday Labour Day

Thanksgiving Day Remembrance Day

Christmas Day

Boxing Day

and any special holidays as proclaimed by the Governor General or Lieutenant Governor.

(Emphasis Added)

Submissions of the Parties

4The primary position of the Union is that it is clear on the facts that the parties reached a binding settlement regarding a grievance filed by the Union; whereby, the Employer agreed that the NDTR is a paid holiday for the purposes of Article 10.01 of the collective agreement. In the alternative, it was submitted that even if it is determined that a binding settlement was not reached by the parties, that the wording of Article 10.01 of the collective agreement expressly dictates that the NDTR be treated as a paid holiday for the purposes of the collective agreement.

5In terms of the claim that the parties reached a settlement, Mr. Culpepper noted that notwithstanding the fact that the Employer recognized the NDTR in 2021 as a paid holiday, as is set out in the SAF, the Employer advised the Union in February 2022 that it had not yet made a determination as to whether it would treat the NDTR as a paid holiday that year. In response, the Union filed Grievance #22-07 on February 10, asserting that the Employer would be in violation of the collective agreement if it failed to recognize the NDTR as a paid holiday for the purposes of the collective agreement.

6Mr. Culpepper submitted there is no dispute that on June 13, 2022, Mr. Garen Simmonds, on behalf of the Employer, advised the Union by letter that the Employer would be recognizing the NDTR "as a paid holiday in accordance with Article 10" and asking whether that confirmation was "sufficient to resolve grievance #22-07 or whether further discussion is required". Mr. Culpepper asserted that in light of the representation by the Employer, Mr. Tony Maccarone, the Chief Steward for the Union, forwarded a letter the following day to Ms. Lisa Dymond, the Employer’s Director of Human Resources and Labour Relations, confirming that the Union would be withdrawing grievance #22-07. It was noted that on the same day, the Minutes of the parties’ monthly Labour Relations meeting under the subheading "Truth and Reconciliation Day" indicate that Mr. Simmonds would be contacting the Employer’s Communications Department "to clarify whether a communication will be issued to employees advising that this day is recognized as a paid holiday". Shortly thereafter, the Employer’s internal website advised employees that the Employer would be treating the NDTR as a holiday, and consequently, the Employer’s offices would be closed on September 30, 2022, and on this day in 2023.

7The Union asserted that the Employer abided by the agreed-to understanding that was reached until September 13, 2022, when it sent an email to staff and subsequently posted on the Employer's intranet that the Employer would not be treating the NDTR as a paid holiday, and the employees were expected to attend work.

8Mr. Culpepper submitted that the above-outlined narrative unequivocally establishes that a settlement had been reached confirming that the NDTR would be treated as a paid holiday for the purposes of Article 10.01 of the collective agreement. It was opined that the grievance procedure worked as designed, as the parties reached a resolution on the issue in dispute without the necessity of it proceeding to arbitration. It was further submitted that with a settlement being reached, it would not be appropriate to allow the Employer to resile from the agreed-to resolution. In the Union’s view, allowing a party to renege on a settlement reached during the grievance process would ostensibly cause havoc in terms of the parties’ ongoing labour relations, and it would justifiably lead to an accusation of bad faiththree pieces of legislation to provide for recognition of NDTR:

9In the alternative, the Union asserted that from a collective agreement interpretation basis, the wording of Article 10.01 is clear that the NDTR constituted a paid holiday. The NDTR was indisputably proclaimed a holiday by the Governor General, which was a sufficient basis to satisfy the requirement for constituting a paid holiday under Article 10.01. Mr. Culpepper further submitted that the language in dispute in Article 10.01 was similar to the language in a series of cases wherein arbitrators have held that the NDTR was a paid holiday.

10In support of it submissions, the Union relied upon the following authorities: Wheatland Industrial Park Joint Venture v. Soo 2020 BCSC 1400; Olympic Motors (WC1) Corp and National Association of Machinists and Aerospace Workers, Local 1857 2021 CarswellBC 3513 (Saunders); Alberta Union of Provincial Employees and Alberta Health Services 2023 CanLII 54527 (AB GAA), 2022 CarswellAlta 685 (Bartel); Corporation of the City of Windsor and Canadian Union of Public Employees, Local 543 2022 CarswellOnt 1649 (Steinberg); Labourers Union of North America, Local 1059 and London and District Concrete Formwork Contractors’ Association 2021 CanLII 94043 (ON LA) (Beatty) Infrastructure Health and Safety Association and Canadian Union of Public Employees and its Local 1750.01 2022 CanLII 101361 (ON LA) (Mitchnick); National Grocers Co. Ltd and United Food and Commercial Workers Local 1006A 2021 CanLII 105251 (ON LA) (Jesin); Labourers International Union of North America, Local 183 and Wuis Brothers Concrete Pumping 2021 CanLII 135982 (ON LRB) (Mitchell); The Professional Institute of the Public Service of Canada and Her Majesty, in Right of the Province of New Brunswick (Department of Finance and Treasury Board) 2022 CanLII 64148 (NB LA) (Filliter); PRT Growing Services Ltd. and BC General Employees Union 2022 CanLII 120454 (BC LA) (Rusen).

11The Employer did not dispute the manner in which the Union framed the nature of the dispute. With respect to the claim that the matter had been settled, the Employer acknowledged that it had initially advised the Union that it would recognize the NDTR as a paid holiday for 2022. The Employer, however, subsequently altered its position and relied upon the following factors for this decision: (1) that the provincial government did not recognize the NDTR as a "public holiday" for the purposes of the Employment Standards Act, 2000; and (2) the fact that the stakeholders that the Employer serves would be open for business as usual in light of the province not treating the NDTR as a statutory holiday, suggested that the Employer should likewise remain open for business.

12Mr. LeClair submitted that the Employer had an unfettered management right to change position with respect to the issue of the status of the NDTR. That is, there was no collective agreement language prohibiting the Employer from reconsidering its position. It was further suggested since the announcement of the change in the Employer’s position was announced before September 30, 2022, that this was not a case of the Union, or any member of the bargaining unit relying upon the Employer’s initial representation to their detriment.

13The Employer further argued that the parties’ discussions in June 2022 regarding the February 10, 2022, grievance filed by the Union did not have the traditional hallmarks associated with the settlement of a grievance. In this regard, it was noted that there were no Minutes of Settlement recording the purported agreement. It was further observed that the Union did not directly answer the question or query of Mr. Simmonds set out in his June 13 letter, as to whether what had been communicated in the letter was sufficient to resolve the grievance. For the Employer, all that subsequently transpired was an untethered decision of the Union to withdraw the grievance. Accordingly, it was submitted that the details regarding those discussions were "fuzzy" at best; the nature of which served an insufficient basis for concluding that a binding settlement had been reached.

14In terms of the proper interpretation of Article 10.01 of the collective agreement, Mr. LeClair submitted that the key question was the meaning to be attributed to the term "special holidays" in the pertinent phrase "and any special holidays as proclaimed by the Governor General or Lieutenant Governor". Further to this point, it was submitted that the normal rules associated with collective agreement interpretation should be applied to discern the intent of the parties. Specifically, all words utilized by the parties must be given meaning, and the utilization of different words by the parties should lead to the assumption that a different intention was meant. It was also suggested that it is a basic truism of collective agreement interpretation that a "rights" arbitrator is not empowered to add or alter the terms or language of the collective agreement.

15The Employer stipulated it was particularly noteworthy that the parties do not use the term "legal holiday", "general holiday", or "public holiday" but rather utilize the specific language of "special holidays". Mr. LeClair submitted that the term "special" must be given a meaning, and, in the Employer’s view, speaks to a "one-time" type of event, which is not a feature of the NDTR. Further to this point, it was submitted that the Union bears the onus of establishing that the NDTR is a "special holiday" for the purposes of the collective agreement. Moreover, it is an accepted principle of collective agreement interpretation that clear unequivocal language is needed to establish if it was the intention of the parties to confer a monetary benefit to employees.

16It was further noted that none of the cases cited by the Union involved language referring to "special holidays".

17The Employer also relied upon the fact that in September 2021, the Union sought to have the NDTR added to the list of paid holidays in Article 10.01 as part of finalizing negotiations in the last round of bargaining. It was submitted that tellingly, Article 10.01 was not amended to include the NDTR, and the Union should not be awarded something through arbitration that it failed to achieve at the bargaining table.

18In support of its submissions, the Employer relied upon the following authorities: Nova Scotia (Transportation & Communications) and Canadian Union of Public Employees 1990 CanLII 12000 (NS LA) (Venoit); The Corporation of the City of Belleville and Canadian Union of Public Employees and its Local 907 (July 18, 2022) unreported (Hayes).

Decision

19Upon reviewing the SAF, it is difficult to come to any determination other than the parties reached a binding settlement that the NDTR would be treated as a paid holiday for the purposes of Article 10.01 of the collective agreement.

20The Employer advised the Union in February 2022 that notwithstanding it had recognized the NDTR as a paid holiday in 2021, it was reviewing the status of the holiday for 2022. In response, the Union filed grievance #22-07 on February 10, 2022, claiming that the Employer had breached the collective agreement by failing to recognize the NDTR as a "fixed paid holiday". On June 13, 2022, Garen Simmonds, a representative of the Employer in the grievance procedure, wrote a letter to his counterparts in the Union which expressly and unequivocally stated that the Employer was confirming that the NDTR would be recognized as a paid holiday in accordance with Article 10. The stated position of the Employer at that time could not have been clearer. The letter went on to connect the declared position of the Employer with the resolution of the grievance as Mr. Simmonds asked the Union to "let them know if this is sufficient to resolve grievance #22-07 or whether further discussion is required".

21The Employer received its answer the following day when Tony Maccarone, Chief Steward of the Union, wrote to the Employer's Director of Human Resources and Labour Relations advising that the Union was withdrawing grievance #22-07. Could the response of the Union have been clearer in directly connecting the withdrawal of the grievance to the previous day’s correspondence from Garen Simmonds? Perhaps. However, any reasonable analysis with respect to the exchange of the correspondence in question can only lead to the conclusion that the withdrawal of the grievance was directly tied to the Employer’s confirmation that the NDTR was being recognized as a paid holiday for the employees in the bargaining unit.

22The constituent elements for finding a binding settlement were realized through the exchange of correspondence between the parties. Specifically, the Employer confirmed to the Union that it was accepting the position of the Union as outlined in the grievance. The Employer's offer to resolve the matter on that basis was accepted by the Union as evidenced by its withdrawal of the grievance.

23In terms of the suggestion that the agreed-to resolution did not have the "hallmarks" of a settlement, there is no requirement that grievance settlements need to be resolved by way of a formal execution of Minutes of Settlement, in order to prove that a binding resolution has been reached. It would be counterproductive to the goal of an expeditious resolution of disputes if parties were necessarily obligated to execute Minutes of Settlement regarding every resolution of a grievance. Moreover, rhetorically, it must be asked— what more would the Minutes of Settlement have provided in this case that was already abundantly clear through the exchange of correspondence between the parties? The Employer had unequivocally confirmed that it was accepting the Union’s position concerning the issue in dispute, and the Union responded that it was a sufficient resolution by withdrawing the grievance the following day.

24There was nothing prohibiting the Employer from subsequently changing its view as to whether the NDTR should be treated as a paid holiday under the collective agreement. In this regard, the rationale for the Employer’s change of view is recognized. However, such a change of position has no impact whatsoever as to whether the Employer was bound by the binding settlement it had reached with the Union regarding the issue in dispute. Parties may often have second thoughts or "buyer’s remorse" regarding a settlement into which they have entered. It is imperative, however, that the parties respect and adhere to the binding nature of a settlement reached during the grievance/arbitration process; and if they fail to do so, then the agreement becomes enforceable against them.

25The determination that a binding settlement had been reached confirming that the NDTR would be treated as a paid holiday is a sufficient basis for the purposes of resolving the grievance. It is my view, however, that in the circumstances it would be of assistance to the parties to also address the collective agreement interpretation dispute regarding Article 10.01 of the collective agreement.

26NDTR holiday was proclaimed by the Governor General, and as such, absent any other argument, is indisputably captured by the wording of Article 10.01. Further to this point, it is noted that the cases cited by the Union speak to arbitrators generally accepting that the NDTR qualifies as a paid holiday in the context of collective agreement wording referring to holidays proclaimed by the Federal or Provincial government. The Employer, however, relied upon the parties’ usage of the specific term "special holidays" in Article 10.01 to distinguish this case from the authorities the Union relied upon. On this point, the Employer is quite right that in terms of discerning the intent of the parties, consideration has to be given to the specific language utilized, and in keeping with the basic rules of collective agreement interpretation, meaning has to be attributed to the term "Special Holidays". However, the Employer's argument that the term "Special Holidays" was intended to relate only to "one-time" events is found not to be particularly persuasive. As the Union asserted in its Submissions in Reply, the Merriam-Webster dictionary definitions of "special" includes—"readily distinguishable from others of the same category" or "designed for a particular purpose or occasion". Moreover, given its purpose, one would be hard-pressed to suggest that the NDTR was not "special".

27Additionally, it would seem highly unlikely that the parties would have intended that Article 10.01 would be applicable to so-called "one-time" type of events proclaimed as holidays by the Governor General or Lieutenant Governor but would not be applicable to statutory holidays that are proclaimed by the Province to be observed on a yearly basis. To abide by this interpretation, it would have to be accepted that if the Provincial government had declared the NDTR a statutory holiday, it would not be captured by the wording of Article 10.01 because it did not relate to a "one-time" type of event.

28In light of the above reasoning, it is concluded that the Employer violated the collective agreement by not recognizing the NDTR as a "paid holiday" for the purpose of Article 10.01 of the collective agreement. Accordingly, the grievance is upheld, and the relevant employees are entitled to be made whole with respect to the Employer not treating September 30, 2022, as a paid holiday. I remain seized to address any dispute regarding the compensation owed to the affected employees and to any other issue pertaining to the interpretation and application of this Award.