[1981] OLRB Rep. June 683
2668-80-M The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Applicant, v. Hurlenco Limited, Respondent, v. The Association of Millwrighting Contractors of Ontario, Intervener.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and J. Wilson.
APPEARANCES: David McKee, John Williams and Ted Koosel for the applicant; G. Weir, Jorunn H. Hurlen and Lars A. Hurlen for the respondent; G. Weir and Fred Beldham for the intervener.
DECISION OF THE BOARD; June 11, 1981
The name of the respondent is amended to read: "Hurlenco Limited".
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 112a of The Labour Relations Act. At the hearing into this matter held June 9th, 1981, in Thunder Bay, Ontario, the Board rendered the following decision orally.
(a) The respondent has raised two preliminary objections to the hearing of this referral. Its objections are that the referral is untimely and, in any event, the applicant is estopped from making the referral because the parties had reached an agreed settlement of this matter.
(b) The Board will deal first with the allegation that the referral is untimely and certain facts in that respect are agreed by the parties. These are:
(i) At all material times they were bound to the provincial agreement between the Association of Millwrighting Contractors of Ontario and the applicant which expires April 30, 1982.
(b) The grievor, John Williams, was hired by Hurlenco Limited on September 23, 1980 by referral from the hiring hall of Local Union 1669, a constituent local union of the applicant.
(iii) Williams was dismissed by Hurlenco Limited on Friday, September 26, 1980.
(iv) The project for which Williams was hired was completed insofar as Hurlenco Limited's work was concerned by December 14, 1980.
(v) No formal grievance was filed by the applicant or its agents until February 19, 1981.
(vi) The referral to the Board was made March 6, 1981.
(c) Having regard to the evidence of the witnesses called by the parties at the hearing into this matter the Board finds the following additional facts:
(i) Ted Koosel, who was office supervisor for Local Union 1669 at the time of Williams' discharge, was advised on September 26, 1980 of the discharge. On or about September 30th, Koosel advised Flurlenco Limited that the discharge was not justified.
(ii) Between September 30th and October 7th there was discussions between Koosel and Hurlenco Limited which Hurlenco Limited contends led to an agreed settlement of the dispute and the applicant contends did not because there were certain contingent events which did not transpire.
(iii) On October 7th, 1980 Koosel wrote a letter to Ted Ryan, Secretary Treasurer of the applicant, reporting to him the circumstances of the dispute as Koosel saw them. Koosel testified that by this action he was referring the grievance to Ryan and that he, Koosel, had acted within the limits of his authority to attempt settlement of the dispute at Step One of Article 11 — Grievance Procedure of the provincial agreement by means of his discussions with Hurlenco Limited between September 30th and October 7th.
(iv) Koosel did not consider that he had authority to progress the grievance any further and that it was the applicant's responsibility to determine whether to progress it further. In the absence of any evidence from any representative of the applicant, the Board accepts Koosel's view of his authority.
(v) On and after October 7th until February 19, 1981, no action was taken to determine this matter by Koosel, Ryan or by anyone else on behalf of the applicant.
(vi) Step Two of the grievance procedure in the provincial agreement is equivocal as to who, on behalf of the applicant, has responsibility or authority for the carriage of grievances of that step.
(d) Subsection 3 of section 1 12a of the Act which reads as follows sets out the Board's jurisdiction for hearing and determining the difference or allegation raised in the grievance referred to it.
Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 37, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.
This jurisdiction clearly empowers the Board to deal with any question as to whether the matter is arbitrable.
(e) Section 37(Sa) of the Act, which is also set out below, gives to the Board the same authority as an arbitration board to exercise discretion to extend the time limits under a collective agreement.
Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.
The effect of this section allows the Board to adopt the time limits as set out in the provincial agreement in this case and to exercise its discretion to extend those time limits. While the parties hereto are not agreed as to when those limits expired in this matter, they are agreed that they did expire. The applicant's best position is that the October 7th letter activated Step Two of the grievance procedure and that the time limits thereunder expired on or about October 23rd by the applicant's failure to take any further action under the agreement to pursue the grievance. The respondent takes the position that no action has been taken to progress the grievance beyond Step One and that the time limits expired, at the latest, by October 7th. Whichever position the Board adopts, there is a clear need for it to exercise its discretion under section 37(5a).
(f) In order to exercise its discretion to extend the time limits, the Board must be". . . satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.". In the Board's view this requires a careful balancing by it of the two elements of delay and prejudice.
(g) In so doing it is essential for the Board to keep in mind the purpose of the remedial relief available under section 1 12a to trade unions and employers in the construction industry. This purpose has been set out clearly by the Board in its decision in The Lummus Company Canada Limited, [1976] OLRB Rep. Jan. 980, to be"... to provide a speedy process for resolving disputes arising out of the interpretation of collective agreements negotiated in the construction industry.". As the Board in that case observed, it is "[not] consistent with the aims of the Legislation, however, that a grievor may malinger with impunity in bringing its dispute to a resolve.".
(h) In the case at hand, there can be no doubt that the minimal delay has been from October 23, 1980 to February 19, 1981. There can be no doubt also that neither Local Union 1669 nor the applicant has taken any steps since the October 7th letter until February 19, 1981 to pursue the grievance.
Nor has the applicant, in these circumstances, come forward with any reasons whatsoever for its inaction between those dates. Insofar as prejudice to the respondent is concerned, it would not be reasonable in the ]3oard's view to see the respondent's liability, were the grievance upheld, to extend beyond October 23rd, the date when the applicant contends the time limits under the provincial agreement expired. By itself, this might not be substantial prejudice in the sense contemplated by section 37(5a) of the Act. When, however, the Board weighs both elements together, i.e. delay and prejudice, and having regard for the remedial purpose of section 112a of the Act, the Board is not satisfied that it should exercise its discretion to extend the time limits of the grievance procedure in the provincial agreement and it declines to do so.
(i) In the result the Board finds that the grievance referred to it in this application is not arbitrable.
(j) It is unnecessary, therefore, for the Board to determine the issue of whether the parties had settled this matter by agreement.
(k) This application is dismissed.