Sinclair Welding Limited v. International Union of Operating Engineers, Local 793, 1981 CanLII 977

Ontario Labour Relations Board

[1981] OLRB Rep. March 343

1421-80-M Sinclair Welding Limited, Applicant, v. International Union of Operating Engineers, Local 793, Respondent.

BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: K. W. Kort and Frank Wiles for the applicant; S. B. D. Wahl, P. Gauthier and G. Steers for the respondent.

DECISION OF IAN C. A. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBERS H. J. F. ADE; March 16, 1981

Decision

1. This is a referral of a grievance to the Board pursuant to section 112a of The Labour Relations Act. For ease of reference the applicant will henceforth be referred to as "the company" and the respondent as "the union".

2. The company and the union are both bound by the terms of the current Operating Engineers provincial agreement, which runs from May 1, 1980 to April 30, 1982. The parties were also bound by the terms of the previous provincial agreement which ran from June 19, 1978 to April 30, 1980.

3. The grievance, which is dated May 23, 1980, stipulates that it covers the period of "September 19, 1979 and continuing", that is for a period of time which spanned the two provincial agreements. Counsel for the union contends that insofar as the grievance purports to relate to the expired collective agreement, the grievance is inarbitrable and not properly before the Board.

4. A similar issue came before the Board in Genstar Chemical Limited, [1978] OLRB Rep. Sept. 835. In that case the Minister of Labour referred to the Board the question as to whether he had authority under section 37(4) of the Act to appoint a person to constitute a board of arbitration under an expired collective agreement. The Board concluded that the Minister did have the authority to do so. In reaching this conclusion, the Board reasoned as follows:

5. The Board's role under section 96(1) is to determine whether the arbitration process is available to the parties. It is clear that in this case the events giving rise to the grievance arose during the term of the collective agreement between the employer and Local 721. The issue is whether the filing of the grievance, after the termination of that collective agreement, restricts the union's recourse to the arbitration procedure.

6. A fundamental policy of The Labour Relations Act is that all grievances arising during the term of a collective agreement are to be settled without stoppage of work. To ensure the achievement of that policy, the Legislature had mandated in section 37(1) a procedure for the peaceful resolution of all such differences. Section 37(1) requires that:

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

Here, the Board is dealing with a difference between the parties arising from a collective agreement even though the grievance was filed following the agreement's termination. That being the case, the Statute requires that the arbitration procedure provided for in the collective agreement be available to the parties. The Board does not consider that the legislative policy set out in section 37 was intended to be limited by reference to the time at which the grievance was filed. While the time of filing is a factor which may be taken into account by a board of arbitration - in deciding whether to arbitrate a grievance which is not filed within the time limits specified in the grievance procedure - it cannot preclude the establishment of an arbitration board to deal with a grievance arising during the term of a collective agreement.

9. This fundamental policy of compulsory arbitration of all contract grievances has been recognized by a number of arbitrators. See, for example, Re International Chemical Workers, LocalS64 and Cyanamid of Canada Ltd., 1969 CanLII 1455 (ON LA), 20 L.A.C. 111 (Palmer), where the board of arbitration, relying on section 37(1) of the Act, assumed jurisdiction to deal with a grievance after the expiry of the collective agreement in question. Although the grievance in Cyanamid had been filed while the agreement was still in effect, that was clearly not the basis for the board's assumption of jurisdiction. In deciding that the grievance was arbitrable, the board in Cyanamid explicitly rejected the argument of the employer that its jurisdiction derived from the existence of a collective agreement. In conclusion, the Board stated:

As it is quite possible to have rights determined by arbitration after the agreement which gave rise to those rights ceases to exist where the specific right involved crystallized before the expiry of that agreement … this board is of the opinion that this matter is arbitrable.

See also Re Truck Crane Ltd. and International Union of Operating Engineers, Local 793, 1973 CanLII 2053 (ON LA), 4 L.A.C. (2d) 250 (O'Shea) where the board of arbitration decided that it had jurisdiction to deal with a grievance which had been filed after the expiry of the statutory freeze period but before the expiry of the time limits set out in the collective agreement. The board in Truck Crane stated:

The right to file a grievance for a breach of the collective agreement which takes place during the eleventh hour of the operation of the collective agreement is not extinguished until after the expiration of any mandatory time limits referred to in the grievance procedure of the collective agreement...

See also Hartz Mountain Pet Supplies Limited, March 2, 1978 (Egan), as yet unreported, where the arbitrator assumed jurisdiction, albeit with the consent of the parties, to deal with a grievance in circumstances closely paralleling the circumstances here, and The City of Kelowna and Canadian Union of Public Employees, Local 338, November 12, 1975 (unreported), where the British Columbia Labour Relations Board acting under the authority of section 96(1) of the British Columbia Labour Code, (the section which allows it to inquire into collective agreement differences and make orders for their final and conclusive settlement) assumed, over the employer's objection, jurisdiction to deal with a grievance which had not been filed until after the agreement had expired. The Board's ruling was based on its finding that the rights of the union had "crystallized" before the agreement had expired. Although doubt has been expressed on the matter, the Board is unaware of any case in which a board of arbitration has refused jurisdiction to deal with a grievance simply because the collective agreement under which the grievance arose had expired before the date of filing. In International Nickel, the case referred to by counsel for the employer, an employee was attempting to bring a claim for entitlement under an existing collective agreement which related to a claim arising under an expired one. In deciding that the employee's claim was not arbitrable, the board quite properly concluded that the claim could only be raised (if at all) under the old agreement and that it could not be decided by a board of arbitration appointed under the new one.

10. Our conclusion is that the policy mandated by section 37 of the Act requires that all grievances which relate to events arising during the term of a collective agreement may be submitted to arbitration, even though the grievance is not filed until after the agreement has expired. In the Board's view, rights which accrue to a party during the life of a collective agreement are in the nature of vested rights which are not automatically extinguished by the termination or expiry of the collective agreement under which they arose. To hold otherwise would be to, in effect, give both employers and unions a licence to violate the terms of collective agreements in the period immediately preceding their expiration.

It should be noted that the Supreme Court of the United States reached a similar conclusion in Nolde Bros. v. Local 358, Bakery & Confectionery Workers Union (1977), 94 L.R.R.M. 2753.

5. We adopt the reasoning of the Board in the Genstar case, supra, and are satisfied that the right of the company to grieve under the expired provincial agreement was not extinguished by the expiry of the agreement.

6. At the hearing, counsel for the union relied on the decision of the board of arbitration in Re United Steelworkers and International Nickel Co. of Canada Ltd. 1970 CanLII 1612 (ON LA), 22 L.A.C. 286 (Weatherill). As the Board noted in the Genstar case, however, the International Nickel case goes no further than to say that a grievance under an expired agreement cannot be decided by a board of arbitration appointed under a new one. The Ontario Labour Relations Board is not established or appointed pursuant to the provisions of any one collective agreement. Instead, it is a permanent tribunal established by statute with an ongoing authority to determine grievances arising in the construction industry. Accordingly, we see no difficulty in this Board dealing with the grievance insofar as it applies to both the current and expired provincial agreements.

7. The matter is to be re-listed for hearing.

8. The decision of Board Member C. A. Ballentine will be forthcoming at a later date.