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IN THE MATTER OF AN ARBITRATION
RAILWAY ASSOCIATION OF CANADA
RAILWAY EMPLOYEES’ DEPARTMENT DIVISION NO. 4
RE:INTENT OF RULE PROVIDING FOR BEREAVEMENT LEAVE
SOLE ARBITRATOR: J.F.W. Weatherill
APPEARING FOR THE UNION:
P. Cutler and others
APPEARING FOR THE ASSOCIATION:
J. S. Schmidt and others
A hearing in this matter was held in Montreal on March 11, 1970
AWARD OF THE ARBITRATOR
This matter is brought to arbitration at the instance of the Association, pursuant to Article VII of the agreement made between the parties on February 26, 1969. That article provides as follows:
Article Vii - Bereavement Leave
Effective January 1, 1969, the existing bereavement leave clause shall be amended to provide for the addition of mother-in-law and father-in-law. Suitable wording will be added to the existing rule to explain the intent of the rule for the guidance of all concerned. As the parties have failed to agree on such additional suitable wording, the matter will be submitted to final and binding arbitration prior to March 31, 1969.
The date for submission of the matter to arbitration was extended by agreement, and the matter is now properly before me for determination. The "existing bereavement clause", referred to in Article VII, is that set out in Article V of an agreement between the parties dated August 15, 1967. That article was as follows:
Article V – Bereavement Leave
1. Effective January 1, 1967, upon the death of an employee’s spouse, or any of his children, or either of his parents, the employee shall be entitled to three days’ bereavement leave without loss of pay provided he has not less than six months’ cumulative compensated service.
Subject to the addition of "suitable wording" to explain its intent, the governing provision of the agreement of the parties relating to bereavement leave must now, by virtue of the foregoing, be deemed to be as follows:
Upon the death of an employee’s spouse, or any of his children, or either of his parents, or his mother-in-law or father-in-law, the employee shall be entitled to three days’ bereavement leave without loss of pay provided he has not less than six months cumulated compensated service.
That is the rule to which the Arbitrator is called upon to add "suitable wording", to explain its intent for the guidance of all concerned. In the normal course, an Arbitrator has no jurisdiction to add to, amend or modify a Collective Agreement, but in the instant case the parties have expressly called for the exercise of such a jurisdiction. The terms of an agreement are fundamentally matters for negotiation, but here the parties have agreed to have a portion of this agreement written for them by an Arbitrator.
The rule, as above set out, is not in itself ambiguous, and it would seem that extrinsic evidence as to its intended effect would not be admissible in a case arising under the section. In the instant case, however, I am asked to add wording to the rule "to explain its intent", and for this purpose it is my view that evidence relating to the background of the rule may properly be considered. I have therefore considered certain material placed before me relating to what might be called the "legislative history" of the provision, and to the negotiations between the parties. Evidence as to the practice of the railroad companies in applying the provision seems to me of dubious value. It is to be noted that there is no evidence of any agreed upon "intent" which, existing as a matter of principle, needs only some appropriate articulation. It is the principle itself which is the subject of arbitration.
The railroad companies are bound by Collective Agreements covering a number of groups of employees. In many cases, but not all, these agreements contain provisions relating to bereavement leave. Most of the agreements in which such a clause is contained provide for the granting of leave of absence of "up to a maximum of three working days" in cases of bereavement to which the clause applies. The agreement in the instant case is not so worded, but provides for "three days bereavement leave without loss of pay". In my view, the provisions of other agreements ought not to be used as guides to the interpretation of the present agreement, particularly where the language is different. If anything, the difference in language would suggest that a different meaning was intended, but in any event it is my view that it is wrong to attempt to discern the meaning of one agreement by reading the provisions of another. As to the evidence that the companies have applied the provisions of all agreements in the same way, the "past practice" thus suggested loses some of its force with respect to the present agreement, since it is a practice generally justified by the provisions of others.
Provisions relating to bereavement leave were first demanded in 1965, when the Union sought the addition to the agreement of the following provision:
Effective January 1, 1966, Wage Agreement No. 15 shall be amended to provide for three (3) days bereavement leave without loss of wages when there is a death in the employee’s immediate family (husband, wife, son, daughter, brother, sister, mother, father, mother-In-law or father-in-law).
Negotiations on this and other issues were not successful, and a Conciliation Board was established of which Mr. Justice M. Craig Munroe was Chairman. The Board made the following recommendation on this issue (the same recommendation being made in the case of another group of employees whose case was separately heard):
Employees having one year or more of service shall be entitled once in each calendar year to three days bereavement leave without loss of pay, when the employee’s spouse, child or parent dies.
The report of the Conciliation Board was not accepted. A strike occurred in 1966, and legislation was enacted requiring the parties to submit to mediation and arbitration. Negotiations followed, and a Memorandum of Settlement was signed containing the following provision:
Effective January 1, 1967, an employee shall be entitled once during any service year in which the employee’s spouse, child or parent dies, to three days’ bereavement leave without loss of pay providing the employee has not less than one year of cumulative compensation service.
This settlement, however, was not ratified, and the matters in dispute were submitted to a board of arbitration of which the Honourable M.D. Roach was Chairman. In the part of the award dealing with this issue, the Board dealt with the matter of a limitation upon the number of bereavement leaves which might be allowed in any one year, and with the matter of a minimum of cumulative compensated service which was to be a condition of the granting of leave. The award appears otherwise to contain no discussion going to the "intent" of the provision then enunciated. The Board’s award on this aspect of the matter was as follows:
In our opinion, a fair and reasonable provision with respect to bereavement leave would be as follows:
Upon the death of an employee’s spouse, or any of his children, or either of his parents, the employee shall be entitled to three days’ bereavement leave without loss of pay provided he has not less than six months’ cumulative compensated service.
This demand is allowed to that extent.
The award of the board of arbitration was incorporated in the agreement of August 15, 1967, set out above. It remains in effect, as amended pursuant to the agreement of February 26, 1969, and subject to the addition of "suitable wording" as to its intent. In my view, having regard to the source of the provision, and all of the material circumstances, the "intent" of the rule, like the "intent" of legislation, is to be gathered primarily from reflection upon the terms of the provision itself.
I am not asked here to resolve any particular claim for bereavement leave, nor to determine any possible future claims.
The purpose of the wording to be added is the guidance of the parties. In my view, the general purpose or intent of the provision for bereavement leave is to allow the employee to be absent from work for the period prescribed, without loss of pay, on the occasion of bereavement. An employee’s entitlement to such leave arises where (a), there is a death of a person related to him in one of the enumerated categories, and (b), he has not less than six months’ cumulative compensated service. Where those conditions obtain, then the employee is "entitled" to three days’ bereavement leave. Counsel for the Association argued that the article was not intended to provide "an automatic three-day holiday", but In my view this is, with respect, an argumentative way of stating precisely what the effect of the article is – although it is scarcely precise, or appropriate, to describe the period of bereavement leave as a "holiday".
Nothing in the article requires the actual attendance of the employee at a funeral, or his involvement in any matters relating to the death. His entitlement is conditional only upon the death and his own length of service. It is not open to the employer to impose any other conditions, such as funeral attendance, nor would the employee’s personal reaction to the death be a matter of concern to the employer as such.
The leave to which the employee is entitled is of three days’ duration. I am unable to see any proper ground for reading into this agreement the qualifications which other parties have seen fit to include in other agreements. It is not a question of the employee’s being granted "up to" three days’ leave, or a "maximum" of three days’ leave, his entitlement under the agreement is three days’ leave.
The entitlement, however, is to three days’ leave without loss of pay. It is "bereavement leave", and entitlement to it arises upon the death of a person related to the employee as set out in the article. The purpose of the provision is to allow the employee time off work at such a time without loss of pay. It insures the employee against loss of earnings on such an occasion. Thus, where an employee is on vacation, and a death occurs which would otherwise entitle him to bereavement leave, no entitlement arises (except perhaps where the vacation is about to end). It may be more accurate to say that while the entitlement arises in a technical sense, the employer’s obligation is fulfilled, since the employee is already off work, and suffers no loss of earnings. The employer’s obligation is to ensure against loss of earnings, not against loss of enjoyment of holidays.
The entitlement to bereavement leave arises upon the death of someone in the categories listed in the agreement. It is at that time, in my view, that leave is to be taken, and it would probably not be open to an employee to continue working and then seek the three days’ leave at some much later date. There may, however, be cases where bereavement leave is indeed properly deferred for some time, and the determination of such cases must await the event. Again, subject to special circumstances, it would be my view that the "three days’ bereavement leave" means a period of three consecutive days, although "days" here refers to "working days" rather than calendar days.
For the foregoing reasons, it is my view that the wording to be added to the bereavement leave provision should serve to express the purpose of the provision as a form of insurance against loss of earnings. It is hoped that the expression of this purpose, while perhaps not resolving all the problems which might arise, will be of guidance to all concerned.
It is accordingly my award that there be added to the provision of the agreement relating to bereavement pay (which provision is set out earlier in this award), the following sentence:
It is the intent of this article to provide for the granting of leave from work on the occasion of a death as aforesaid, and for the payment of his regular wages for that period to the employee to whom leave is granted.
DATED AT TORONTO, THIS 31st DAY OF MARCH, 1970.
(sgd.) J. F. W. Weatherill