GSB# 2018-0037; 2018-0040, 2018-0041; 2018-0042, 2018-0043, 2018-0044

UNION# 2017-0727-0011; 2017-0727-0014; 2017-0727-0015; 2017-0727-0016; 2017-0727-0017; 2017-0727-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Clark et al)

Union

• and -

The Crown in Right of Ontario (The Ministry of Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayke

Arbitrator

FOR THE UNION FOR THE EMPLOYER

Alex Zamfir Ontario Public Service Employees Union Grievance Officer Carly Jones Treasury Board Secretariat Employee Relations Advisor

HEARING

November 22, 2018

Preliminary Decision

1Six individual grievances filed in September 2017 by Water Bomber Pilots in the employer’s fire program came before me for mediation-arbitration under article 22.16 of the collective agreement. The parties had agreed that all of the grievances should be heard together as a group.

2When the Board convened, the parties requested that the Board hear and rule on a motion by the employer that the grievances should be dismissed on the grounds that they were referred to arbitration beyond the time limits set out in the collective agreement.

3The union stated that the grievances are about two aspects of distribution of overtime. First, the union would be submitting that on specific dates the grievors were denied overtime opportunities in contravention of the employer’s obligation to do so in a fair and equitable manner. As a result one particular employee received overtime opportunities far in excess of opportunities offered to the grievors. The union would be arguing that this resulted from the employer’s failure to develop methods of distributing overtime at the local workplace as required by article UN 8.2.1. Alternatively, if it had a system it was not a fair and equitable one.

4Ms. Jones for the employer pointed out that the grievances had been referred to arbitration 16 work days beyond the time limit in article 22.6.1 of the collective agreement, which she submitted was mandatory. She also pointed out that article 22.14.1 provides that where a grievance is not processed within the time limits, it is deemed to have been withdrawn. While article 22.14.3 provides that time limits may be extended by agreement in writing, the union made no request for an extension.

5Ms. Jones reviewed Re Becker Milk Company Ltd. (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) and Re Greater Niagara General Hospital, (1981) 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff) which discuss the criteria arbitrators apply in exercising the discretion to extend time limits under s. 48(16) of the Labour Relation Act. It was submitted that on the facts of this case the Board should find that the requirements of s. 48(16), namely that there are reasonable grounds for an extension or that the employer would not be prejudiced by an extension are not met.

6The employer asserted the following:

1. The issue at stake in the grievance, denial of overtime opportunities, is not a significant or serious one, unlike for example, an alleged termination without just cause.

2. The failure to meet time limits occurred not at the filing stage, but later in the process. Since the Stage 2 meeting was waived by the employer at the request of the union, the employer has no information as to the reason for the delay in referral.

3. The employer has no information as to whether the grievors were responsible for the delay.

4. The delay was 16 days, which is not insignificant.

5. There were reasonable grounds for the employer to assume that the union had abandoned the grievances because:

(a) At the request of the union the employer agreed to waive the stage 2 meeting and explicitly stated to the union in so agreeing, to the effect “You are welcome to file on to the GSB”. There was no response from the union until it referred the grievances to arbitration 16 days after the expiry of the time limit. This was a strong signal to the employer that the union did not intend to refer to the GSB.

(b) The union steward was experienced and would have been familiar with the time limits for referral to arbitration.

(c) Most of the grievors had filed grievances previously and had complied with the time limits. So they were also aware of time limits.

6. The union failed to exercise due diligence, and that was the reason for the delay in referral.

7. There is prejudice to the employer in that it was denied the opportunity to investigate the circumstances of the alleged violations due to the waiver of the stage 2 meeting at the union’s request, the delay in referral to arbitration and the late filing of the union’s particulars, following referral to arbitration.

7The union submitted that the issue in the grievances is not trivial. It is about entitlement to compensation. The delay of 16 days, compared to the cases relied on by the employer, is minimal. In Re Greater Niagara General Hospital, (supra) the union was allowed to proceed despite a delay of 10 weeks, and the grievance there was about compensation for sick time. It was submitted that there are no facts before the Board to suggest that the delay was in any way attributable to the grievors. It was a case of inadvertence on the part of the union. At the highest, it would amount to negligence on the part of a union representative. Arbitrators have held that negligence is not by itself grounds to deny an extension of time limits.

8It was further submitted that there could not have been any prejudice to the employer’s ability to prepare its defence of the grievances as a result of the 16 day delay in referral to arbitration. The grievances themselves clearly set out the alleged violations, as well as the specific dates on which the violations occurred. If the employer wanted to investigate, it had all relevant information needed. The fact that a stage 2 meeting did not take place or that the union’s particulars were not filed until October of 2018 could not deprive the employer of an opportunity to prepare its case.

DECISION

9In Re Chu, 2015-2559 (Petryshen), at paragraphs 10-12, the Board wrote:

10The effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party. The relevant factors for consideration when determining whether to exercise the discretion to extend time limits were canvassed in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2^nd) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3^rd) 1 (Schiff). Arbitrator Burkett identified the following factors:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

After identifying these factors, the arbitrator went on to state:

If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits.

11Arbitrator Schiff referred the following factors:

1. The nature of the grievance.

2. Whether the delay occurred in launching the grievance or at a later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the Employer could reasonably have assumed the grievance had been abandoned.

12The above decisions contain examples of how these factors are applied in different factual contexts and suggest that the various factors are not considered in isolation. In essence, the decisions illustrate that the extent of the delay and the reason for the delay will be considered in light of the seriousness of the subject matter grieved.

10There are no facts asserted from which I can even infer that any of the grievors were responsible for the delay. The delay occurred not at the filing stage. It was a delay in referral, a responsibility of union officials. Employer counsel seemed to recognize this when she referred to the experience of the union steward and the failure to exercise due diligence on the part of the union. I find that the union, and not the grievors, was responsible for the late referral of the grievances.

11Negligence on the part of the union, however, is not by itself fatal to the union’s request for an extension of time limits pursuant to S. 48(16). See, Re Greater Niagara General Hospital (supra) at para. 15. The Board must go on to assess all of the relevant factors before deciding whether there are reasonable grounds to extend time limits.

12As observed by the Board in Re Chu (supra) the test on the issue of prejudice is whether an extension of time would substantially prejudice the opposing party. Mere inconvenience is not enough. I have no hesitation concluding, especially in comparison to other cases where an extension of time limits was granted. (see, review at para. 18 of Re Greater Niagara General Hospital, (supra), that the delay of 16 days is minimal. I also conclude that the delay of 16 days could not have prejudiced the employer’s ability to investigate or prepare its case in defence of the allegations clearly set out in the grievances. While asserting “prejudice”, the employer did not specify how it was prejudiced due to the delay. For example, fading memories, lost documents, or that potential witnesses no longer available. (See, Re Royal Crest Lifecare Group, (2000) 2000 CanLII 50245 (ON LA), 91 L.A.C. (4^th) 389 (Craven) at para. 35.)

13I agree with the union that the waiver of the stage 2 meeting or the late filing of the union’s particulars has no bearing on the issue here which is about delay in referral to arbitration. I conclude that the employer had no reasonable basis in the circumstances to assume that the union had abandoned the grievances, when the union missed the time limit for referral to arbitration by 16 days.

14I agree with the employer that a claim of lost overtime opportunities is not as significant as a grievance alleging termination without just cause. However, it is a claim relating to compensation. The decision whether reasonable grounds exist for extension, under S. 48(16) must be made upon a consideration of all of the relevant factors, and balancing the interests of both parties.

15Having done so, I am satisfied that reasonable grounds exist for extension of the time limits in the exercise of my discretion pursuant to S. 48(16) of the Labour Relations Act. I am also satisfied that such extension would not result in prejudice to the employer.

16Therefore, this matter may proceed to hearing on the merits. The Registrar is directed to schedule the hearing in consultation with the parties. I remain seized in that regard.