[1982] OLRB Rep. May 707
2622-81-M Corporation of the City of Sarnia Marshall Gowland Manor, Employer, v. London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Trade Union
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W.F. Rutherford and W.H. Wightman.
APPEARANCES: F. G. Hamilton, J.A. Barker and P. Jarvis for the employer; J. Hayes and D. Starkman for the trade union.
DECISION OF THE BOARD: May 5, 1982
I. This is a reference under section 107 of the Labour Relations Act concerning the authority of the Minister of Labour to appoint an arbitrator under section 45 to hear the discharge grievance of Ms. C. Mills, a member of the trade union. The reference raises an issue of first impression, namely: whether the expedited arbitration procedure prescribed by section 45 is only available to the grieving party (i.e. the party initiating a grievance alleging a breach of a collective agreement) or whether, once such grievance is filed, either party to the collective agreement can invoke section 45. The relevant portion of section 45 reads as follows:
"45(1) Notwithstanding the arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement may request the Minister to refer to a single arbitrator, to be appointed by the Minister, any difference between the parties to the collective agreement arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
(2) Subject to subsection (3), a request under subsection (1) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after thirty days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.
(3) Notwithstanding subsection (2), where a difference between the parties to a collective agreement is a difference respecting discharge from or other termination of employment, a request under subsection (1) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after fourteen days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration."
(emphasis added)
The arbitration procedure now set in section 45 became part of the Labour Relations Act in 1979. Before turning to its interpretation, it may be useful to refer briefly to the "problem" or "mischief' to which it is directed.
Arbitration of grievances alleging a breach of a collective agreement is an integral part of the labour relations system in this Province. Parties are compelled by statute to resort to arbitration for the resolution of all such disputes. There can be no strike or lock-out during the currency of a collective agreement. The collective agreement is a "peace pact" for its term of operation.
As originally envisaged, arbitration was to be an expeditious, inexpensive, and relatively informal alternative to both industrial conflict, and the more cumbersome process of civil litigation. But over the years, the arbitral jurisprudence became increasingly complex. Grievance arbitration became a highly specialized aspect of labour relations law. And as the process became more refined and sophisticated, it also became more expensive and time consuming.
The expense and delay in the arbitration of grievances was of particular concern to trade-unionists, who were usually cast in the role of the grieving party, seeking modification of an employer action alleged to be a breach of the agreement. Union discontent took a variety of forms. In the construction industry, where employer-employee relationships are transitory, it not infrequently resulted in "wild cat" strikes. Such strikes were illegal, of course, but reflected an employee concern that the arbitration process was simply too slow. In the special circumstances of the construction industry, an arbitration award, several months after the precipitating event, would be entirely academic. To meet this problem, the Legislature enacted what is now section 124 of the Labour Relations Act providing access to this Board for the resolution of construction industry grievances, and providing that a hearing can be obtained within 14 days.
Discontent about the cost and delay seemingly inherent in the arbitration process was not restricted to unions in the construction industry. In the mid-1970's, the Labour Council of Metropolitan Toronto published a study entitled "Justice Delayed — The Arbitration Process in Ontario" which was sharply critical of the existing system and urged legislative change. In 1977, Mr. Justice Arthur Kelly was appointed by the Minister of Labour to conduct an inquiry into the working and possible reform of the grievance arbitration porcess; and after the release of his Report, the discussion and debate continued. Section 45 was the legislative response. (See Report of the Industrial Inquiry Commissioner Concerning Grievance Arbitration under the Labour Relations Act and the Hospital Labour Disputes Arbitrations Act, 1978).)
The thrust of section 45 is obvious. It provides a speedy and less expensive method of resolving disputes between the parties, while preserving and encouraging the prospect of a settlement short of arbitration. When called upon, the Minister of Labour can appoint a single arbitrator to hear a grievance within 21 days after the exhaustion of the grievance procedure, or 30 days from the filling of the grievance, whichever first occurs. In the case of a grievance involving a termination of employment, the arbitration hearing can come on even more quickly. The issue then is whether this streamlined procedure is available in any grievance to both parties to the collective agreement; or whether it is only the grieving party which can take the benefit of section 45.
The trade union argues that only the grieving party should be entitled to invoke section 45 since, in its submission, section 45 was intended to minimize the prejudice to grievors (usually the union or employees) associated with delay. In the union's submission, the "respondent" or "defendent" should not have a right to divert the grievance into the expedited route. The union contends that if that option were open to a "respondent" employer, the union might be put at a procedural disadvantage if the evidence requires more thorough preparation than could be done within the tight time limits prescribed by section 45. Under that section, a hearing could come on within weeks of the event precipitating the grievance; and in some cases, that is simply too fast to permit adequate investigation and preparation. The union asserts that it should not be pressured to go to arbitration with cases that could be settled if it were given a little more time to evaluate its position. An expeditious hearing should not be purchased at the expense of a more thoughtful consideration of the underlying labour relations problems.
On a practical (or tactical) level, counsel expressed concern about the financial implications to a grieving party (again, usually the union) if the other party were in a position to obtain a speedy hearing. The apparent practice of arbitrators appointed is to fix a hearing date immediately and to charge a cancellation fee even if the case is settled (as it often is) without proceeding to a hearing. The union's concern is that it can incur a financial liability almost automatically, whenever the Minister of Labour appoints an arbitrator under section 45. The union argues that if such liability is to follow so swiftly upon the filing of the grievance, it should at least be the grieving party who decides whether it should be incurred. Otherwise, in the union's submission, an employer could "penalize" the union and discourage grievances by simply opting in every case for the expedited process. In so doing, it would generate a deterrent cost which might not be applicable if the grievance followed the usual and more leisurely route. Finally, the union notes that the principal issue between the parties is the propriety of the employer's "call-in" policy, and that this issue is already before another Board of Arbitration constituted pursuant to the terms of the parties' collective agreement. The grievor Claudia Mills was disciplined and subsequently discharged for failing to abide by that policy, and in the union's submission, it would needlessly multiply proceedings and create a possibility of inconsistent findings if the cases were "split" — with one panel seized with the policy and discipline matters, and another seized with the ultimate discharge.
The employer argues that section 45 should not be construed so narrowly. Expedition is not solely the concern of the grieving party. It is in the interest of both parties that disputes b~ settled quickly. The accumulation of unresolved grievances can poison a collective bargaining relationship, contribute to friction in the workplace, and cast an added burden upon the collective bargaining process. Nor are the grieving employee's interests the only ones potentially affected by a complaint. Until the complaint is resolved, the employer faces the prospect of mounting liability and other employees in similar circumstances may also be affected. In the case of seniority grievances, (i.e. promotions, lay-offs, transfers, etc.) the rights of a variety of other employees may be contingent upon those of the grievor. The employer acknowledges that both parties should have an adequate opportunity to investigate a problem, evaluate the situation, and pursue settlement efforts; but there is also some merit in considering a case while the evidence is fresh. And on a more general level, grievances should not be filed at all unless there is an arguable basis that there has been a contractual violation. It is not unreasonable in most cases to expect a grieving party to investigate and prepare its case within the time limit prescribed by section 45, and in unusual cases where the complexity of the evidence or the availability of witnesses makes this difficult, the matter of an adjournment can be considered b', the arbitrator and granted in such circumstances, and on such terms, as he considers appropriate. In response, to the union's contention that resort to expedited arbitration may occasionally give an employer a procedural advantage, the employer notes that, from time to time, the union itself seeks to utilize the grievance procedure as a means of harassing an employer. (See for example: Bell Canada 1980 CanLII 4094 (CA LA), 27 LAC (2d) 104, and Inco 1979 CanLII 3941 (ON LA), 23 LAC (2d) 424.) The option of referring such vexatious grievances to arbitration was characterized as a useful antidote which discourages such frivolous conduct and preserves the integrity of the grievance-arbitration procedure.
While the union s concerns are sincere, and not entirely without foundation, we find that the employer's submissions are much more compelling. We see little justification on policy grounds for limiting access to the expedited arbitration procedure or the settlement officer appointed pursuant to section 45(6). Nor, in our view, does a review of the background to section 45 support such proposition. There may be tactical advantages or problems for one party or the other in particular cases, but in our view, an arbitrator has ample authority to ensure that both parties receive a fair hearing, and we do not think the hypothetical problems posed by counsel for the union should obscure the obvious legislative intent of section 45: that arbitration cases should be heard quickly. Such expedition is beneficial to both the parties and the affected grievor(s); and we would be reluctant to restrict access to that procedure in the absence of clear statutory language to support that position. Indeed, the facts of this case illustrate the problem that can arise if a matter of general concern to employees is not settled quickly. the underlying dispute between the parties involves the propriety of an employer policy which the trade union challenged by a "policy grievance" on February 5, 1981 . The case did not come on for a hearing until February 3, 1982. Meanwhile, the employees were faced with the dilemma of complying with a policy alleged to be illegal, or refusing to comply (as the grievor C. Mills appears to have done on several occasions) and face the possible imposition of discipline. It appears to the Board that this is the very mischief that section 45 was designed to avoid; and had either party wished to clarify the matter by referring the problem to expedited arbitration, we see no reason why it should not have been able to do so. The union argues that the reference of the Mills discharge grievance to a single arbitrator under section 45 creates an additional proceeding involving similar issues; but it might equally be observed that the failure to resolve the underlying problem in the expeditious fashion which section 45 makes possible has resulted in the latest grievance.
Subsection 1 of section 45 creates the substantive right to invoke the expedited arbitration process. That subsection is clear and unequivocal. The right of referral is accorded to "a party to a collective agreement". Looking solely at section 45(1), the meaning is plain: either party may invoke the speedy procedure. Moreover, as we have already noted, it is our view that this is entirely consistent with the legislative intent.
The thrust of section 45(3) is equally clear. That section envisages an even faster arbitration process for discharge cases which work a special hardship on the discharged employee who remains unemployed and without income while his case is pending, yet is unable to seriously seek alternative employment until his right to reinstatement is settled. Under section 45(3) a "difference respecting discharge from or other termination of employment" will only be brought at the instance of a trade union (or sometimes an employee); yet the language is the same as in section 45(l). It accords the right of referral to the expedited process to "a party to the collective agreement". Once again, this suggests that it is open to either party. It would have been easy for the Legislature to refer to "the grieving party" or "the union" if that were its intention. The latter term is used liberally throughout the statute, and could easily have been used in section 45(3) if it were intended that only the union (which we repeat will necessarily be the grieving party in discharge cases) could invoke section 45(3). But the words "a party to the collective agreement" are not qualified in any way which might be construed as restricting them to the trade union party to the collective agreement.
The only possible confusion that arises involves the words "to the attention of the other party" which appear in both sections 45(2) and 45(3). These words are used in what might be described as the "secondary" time limit, applicable in the event that the grievance procedure is not exhausted within 30 days. The union argues that the words "other party" must be read to limit the general words "a party" in the first line of section 45(1). Thus, in this case, it is the union as initiating party which brought the grievance to the attention of "the other party" — here the employer. By juxtaposing "a party" in line 1, and "the other party" in line 5, the union argues that the former must be limited in meaning to the grieving party — here the union.
The employer argues that the limitation period in section 45(2) should not be construed as restricting the substantive right created by section 45(1). The limitation in section 45(2) must be read in light of its purpose: to mark time either in relation to the grievance procedure, or with reference to the initiation of the grievance itself. To do the latter, the Legislature has adopted a bench-mark established by the "time at which the grievance was first brought to the attention of the other party". This verbal formulation was not intended to define or restrict the parties' rights, but merely to identify the time frame in which they were to be exercised. In the instant case, time started running when the grievance was brought to the attention of the employer; but subject to this procedural limitation, the employer argues that either party to the collective agreement could avail itself of section 45(1).
The statutory language is not as clear as it might be, but on balance, the Board favors the interpretation advanced by the employer. The employer's proposed interpretation is a reasonable construction of the language of section 45, and in our view, it is much more consistent with the intention of the section than the alternative proposed by the union. We see no reason why the right to obtain a speedy resolution of contract disputes should be vested solely in the party initially raising the problem. We conclude therefore that (subject to the above-mentioned time limitation) either party is entitled to resort to the expedited arbitration procedure prescribed in section 45.
Having regard to the foregoing, the Board respectfully advises the Minister of Labour that, in Its opinion, he has the authority to appoint an arbitrator pursuant to section 45 upon the request of either the trade union or employer party to the agreement upon which a grievance is based.
During the course of argument, the parties raised an additional question: whether having appointed an arbitrator under section 45, the Minister can revoke that appointment while his jurisdiction is being considered by the Board. In this case, the purported revocation came after the arbitrator accepted the appointment and convened a hearing (which was adjourned sine die on the agreement of the parties). The employer argues that the arbitrator was properly appointed in the first instance and that once he is "seized" of the case, the Minister has no authority to revoke his appointment.
This subsidiary question raises issues of some difficulty. It would be odd if an arbitration proceeding could be truncated by the revocation of an arbitrator's appointment after a hearing had been convened; but it would be equally undesirable if the Minister could not act to preserve the status quo pending resolution of a question concerning his jurisdiction, or act to rectify the administrative or other errors which occasionally occur. And is an arbitrator who merely accepts the parties' agreement to adjourn a matter sine die irrevocably "seized" with their dispute? What if for one reason or another he were unable to act? There are sound practical and labour relations reasons why revocation and reappointment powers should be implicit in the power of appointment itself, so that the statutory objective may be appropriately accomplished. (For an example of the problems which can arise subsequent to a Minister's appointment, and the need for some flexibility in the exercise of his powers, see: Stanley Steel Company Limited [1977] OLRB Rep. April 233.) However, the question of the Minister's power to revoke, suspend or reappoint was not referred to this Board for its opinion. Any expression of opinion by the Board would not only be gratuitous, but could easily be academic as well. It is by no means clear that either party would object if the original arbitrator, (who in our opinion was properly appointed) continued with the hearing pursuant to the original appointment if the Minister's power is irrevocable, or pursuant to a new appointment if it is not. Accordingly, the Board declines to address the matter further.
DECISION OF BOARD MEMBER W.F. RUTHERFORD;
- I agree with the result reached by the majority in this matter and, in general, with its reasoning. I am concerned however, about one aspect of the union's submissions: that arbitrators are charging substantial fees even if the case is settled and never proceeds to a hearing. If one of the objects is to settle the case before arbitration, it seems to me that it is not very helpful if a grievor has to incur the cost of arbitration whether he goes to arbitration or not. It does not seem consistent with the purpose of the section if the parties have to pay for settlements. I can also see how this practice of arbitrators could be abused, and could deter employees from filing valid grievances. It might be noted that the Labour Relations Board does not charge parties in the construction industry unless the case actually proceeds, and it should also be remembered that resort to arbitration is compulsory under the Act. A worker has no other choice. It would be unfortunate if employees were discouraged from filing valid grievances because the cost of arbitration will be incurred even if it is not resorted to. However, none of this has anything to do with the Minister's power of appointment under section 45. If cancellation fees are too high, it is a matter which can be regulated under section 45(10).