Rantex Brushes Inc. v. United Electrical, Radio & Machine Workers of America, Local 542

[1983] OLRB Rep. July 1195

0068-83-M Rantex Brushes Inc., Employer, v. United Electrical, Radio & Machine Workers of America, Local 542, Trade Union.

BEFORE: Ian Springate, Vice-Chairman, and Board Members W. G. Donnelly and P.J. O’Keeffe.

APPEARANCES: William S. Challis and Hugo Maltarp for thef6r the employer; A. J. Peters and J. Losell or the Trade Union.

DECISION OF THE BOARD; July 28, 1983

1. Pursuant to the provisions of section 107 of the Labour Relations Act, the Minister has referred to the Board the question as to whether he has authority to appoint a single arbitrator under section 45 of the Act.

2. On November 25. 1980, the trade union was certified as the bargaining agent of certain of the employer's employees. On April 7, 1981 the parties entered into) a memorandum of settlement which provided as follows:

"MEMORANDUM OF SETTLEMENT”

The term of the collective agreement shall be from April 1. 1981 to October 31, 1982.

All matters previously settled and agreed to) by the parties shall be incorporated.

Effective date of ratification. Schedule "A" Wage Scales and Classifications referred to in Article23 of the collective agreement and appended hereto shall form part of the collective agreement and be incorporated into these minutes of settlement. The parties agree to incorporate into Schedule "A" language to the effect that the positions of Lead Hand shall not be subject to the job posting provisions of article 18. The parties also agree to incorporate into Schedule "A" language to the effect that the position of Crimper Operator 1 may only be filled on a progression basis from the position of Crimper Operator 11. The parties also agree to incorporate into Schedule "A" language to the effect that the company reserves the right to transfer employees from job to job as is currently its practice.

DATED at Barrie this 7th day of April, 1981

Hugo Maltarp Marie Peters

FOR THE COMPANY FOR THE UNION"

3. Although the issue was not addressed at the hearing, we gather from the conduct of the parties that the memorandum of settlement was properly ratified. Subsequent to the signing of the memorandum of settlement, the trade union put together a booklet containing its version of the collective agreement. The employer takes no objection to the correctness of most of the booklet. The employer does not, however, accept as correct the final Schedule "A" as drafted by the union, and in particular a provision in the schedule which provides as follows:

"July 1, 1981 - pay out safety &attendance bonus — and every three months thereafter."

4. By the terms of the memorandum of settlement, the first collective agreement between the parties was due to expire on October 31, 1982. On or about October 18, 1982 the union requested that the Minister of Labour appoint a conciliation officer to assist the parties to negotiate a new collective agreement. A conciliation officer was appointed, but proved unsuccessful in helping the parties to reach a new agreement. On December 14, 1982 the Minister of Labour issued a report indicating that he would not be appointing a conciliation board.

5. On or after January 6, 1983 the trade union filed a grievance with the employer which read as follows:

"REGISTERED

UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA

GRIEVANCE REPORT

Name UF Local 54

Date January 6 83

Address ________________________________________

Department __________ Operation _________ Clock No.

Shop Rantex Brushes Inc..

Nature of Grievance ______________________________________

The company has violated schedule "A" of the collective agreement by not paying the employees their pay out Safety & Attendance Bonus for the period of October 1, 1982 until the time of their layoff December 17, 1982, due them December 31, 1982.

We request the company pay the monies owing immediately.

This grievance is filed under Article 7:03 of the collective agreement, since the company is refusing the employees entrance into the plant.

A list of the employees affected is attached.

On behalf of the union

(A. J. Peters)

A. J. Peters, UE National

Co-ordinator

(Ron Bruce)

Ron Bruce, Chief Steward

(Dave Maxwell)

Dave Maxwell, Steward"

6. On or about January 26, 1983, the trade union requested that the Minister appoint a sole arbitrator to adjudicate the grievance pursuant to the provisions of section 45 of the Act. The applicable portions of section 45 read as follows:

"45.-(l) Notwithstanding the arbitration provision 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 of 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.

(4) Where a request is received under subsection (1), the Minister shall appoint a single arbitrator who shall have exclusive jurisdiction to) hear and determine the matter referred to him, including any question as to whether a matter is arbitrable and any question as to) whether the request was timely."

7. On January 28, 1983 counsel for the employer wrote to the Director of the Office of Arbitration objecting to the appointment an arbitrator by the Minister in the following terms:

"1 am the solicitor for Rantex Brushes Inc., the employer in the above noted Request for Appointment of Arbitrator under Section 45 of the Act.

The employer respectfully submits that the Minister has no jurisdic­tion to appoint an arbitrator under Section 45 and that the Union's request for same must therefore be denied. The basis for this objection is as follows.

On October 18, 1982, the Union applied for conciliation in respect of bargaining for renewal of a collective agreement between the parties due to expire on October 31, 1982. Following conciliation, the Minister released a "no board" report to the parties on December 14, 1982, (a copy of which is enclosed) and the strike/lockout deadline fell at midnight on December 30, 1982. The parties had met in mediation on December 30 and, following a breakdown in negotiations, the Union was advised that a lockout would commence at 12:01 a.m. on December 31. This advice was confirmed to the Union by telegram and registered letter, copies of which are also enclosed.

As you can see from the face of the grievance (dated January 6, 1983 and received by my client on January 12, 1983), it relates to a Safety and Attendance Bonus which the Union has alleged was due employees on December 31, 1982. Accordingly, both the alleged violation and the purported filing of a grievance occurred subsequent to the expiry of the freeze period under Section 79 of the Act. In these circumstances, the Union cannot be said to be "a party to a collective agreement", nor can there be 'any difference between the parties to a collective agreement arising out of... [an] alleged violation of the agreement." The issue herein is not simply one of arbitrability, but goes to the jurisdiction of the Minister to make any appointment at all where the preconditions to) the exercise of his authority under Section 45 are not met.

I wish to point out that the issue of a safety and attendance bonus has been the subject of negotiation between the parties. Prior to the lockout, both parties had been negotiating for a renewal agreement effective commencing November 1, 1982 and had discussed elimination of any bonus. Now that negotiations have broken down, it wouId appear that the Union is seeking to achieve an unfair advantage in bargaining through the back door of a spurious grievance.

Certain other irregularities appear on the face of the Request, relating to the nature of the grievance at paragraph 1(h) the steps taken in the grievance procedure at paragraphs 4 and S and the certificate of service. At no time was the Request personally delivered to the named recipient, Hugo Maltarp, as attested to by Mr. Peters. I would assume that proper service is also a factor in your consideration of the Request.

This objection is taken without prejudice to any other defences available to my client, including the arbitrability of the grievance."

The trade union wrote a response to this letter claiming that the Minister had authority to appoint an arbitrator. In its letter, the trade union contended that "the grievance in question deals with monies earned and owing between the period of October 1. 1982 and December 17, 1982, to be paid to employees on or after January 1, 1983".

8. Following certain further correspondence between the parties and the office of Arbitration, the Minister made his reference to the Board. The issues referred to the Board were set out in the reference as follows:

"6. Specifically, the questions are:

i) Whether the incident which gave rise to the grievance occurred during either the term of the collective agreement or the statutory freeze period established by section 79(1) of the Labour Relations Act.

ii) if the answer to (i) is negative and the incident occurred after the expiry o)f the statutory freeze period, does the Minister have the authority to make the requested appointment.

7. The Minister hereby refers these questions concerning his authority to the Ontario Labour Relations Board pursuant to section 107 of the Labour Relations Act."

8. At a hearing before the Board, counsel for the employer contended that the Minister lacked jurisdiction to appoint an arbitrator for three reasons. Namely:

I) There was not, and had not been, any collective agreement between the parties containing a provision requiring the payment of a safety and attendance bonus.

2. The events giving rise to the grievance occurred after the expiry of the collective agreement and after the expiry of the section 79 statutory 'freeze period".

3. The grievance was, in any event, improperly filed as a policy grievance and the grievance procedure was not properly followed.

10. In dealing with these issues, it should be noted that in this type of proceeding it is not the function of the Board to rule on ultimate correctness of the positions adopted by the parties, but only to advise the Minister with respect to his authority to appoint an arbitrator. Further, it is to be noted that pursuant to both subsections (1) and (4) of section 45, an arbitrator once appointed has the authority to deal with "any question as to whether a matter is arbitrable".

11. We turn first to deal with the employer's contention that there never was an applicable collective agreement containing the provision which the union contends the employer violated .Section 45 of the Act states that "a party to a collective agreement" may request the appointment of an arbitrator. Lacking an applicable collective agreement, it would appear that the Minister lacks authority to appoint an arbitrator, and in any event such an appointment would serve no useful purpose. Notwithstanding the April 7, 1981 memorandum of settlement, counsel for the employer did not acknowledge that a collective agreement was ever in force between the parties. Employer counsel strongly contended that if there had in fact been such a collective agreement, the agreement had not contained a provision respecting the payment of a safety and attendance bonus. On the material before us, we are satisfied that when the parties entered into the memorandum of settlement, incorporating as it did certain wage rates and other matters agreed to between the parties, they were entering into an agreement which met the definition of a "collective agreement" in section l(1)(e) of the Act. In this regard see: Windsor Table and Metal Inc. [1978] OLRB Rep. Sept. 882 and Coulter Cooper & Brass Limited [1981] OLRB Rep. May 519. Accordingly, we are satisfied that the employer and the trade union were parties to a collective agreement. A separate question is whether the collective agreement contained a provision respecting the payment of a safety and attendance bonus. In our view, this question, involving as it does the interpretation of the collective agreement, falls within the authority of a section 45 arbitrator to decide. Accordingly, the fact that the parties disagree as to whether the collective agreement contains a clause respecting a safety and attendance bonus does not deprive the Minister of the right to appoint an arbitrator under section 45.

12. We turn now to consider the contention of the employer that the events being grieved about occurred after the expiry of the collective agreement and the statutory freeze period. Pursuant to the memorandum of settlement, the collective agreement was to) expire on October 31, 1982. Pursuant to section 79(1) of the Act, the terms and conditions of this agreement were "frozen" until fourteen days had elapsed after the Minister had released to the parties a notice that he did not consider it advisable to appoint a conciliation board. As already noted, the Minister issued such a notice on December 14, 1982. Pursuant to section 113(3) of the Act, the notice was deemed to have been released two days after this date, namely, December 16, 1982. Fourteen days later would have been December 30, 1982. Accordingly, the section 79(1) statutory freeze period would have come to an end on December 30, 1982. The employer accepts as correct the Board's conclusion in the Hamilton Civic Hospital case [19831 OLRB Rep. March 371 to the effect that under section 45 the Minister "...has the authority to appoint (an arbitrator) where the incident or event giving rise to the grievance occurs …during the section 79(1) statutory freeze period'. However, the employer contends that the incident giving rise to the grievance, that is, the alleged non-payment of a safety and attendance bonus, occurred after the expiry of the freeze period on December 30, 1982.

13. At the hearing, the trade union acknowledged that any bonus, if payable, would have been payable on or after December 31, 1982, that is after the expiry of the freeze period. The trade union submits, however, that the right of employees to a bonus accrued over a period between October 1, 1982 and December 17, 1982, that is during both the term of the collective agreement and during the freeze period, and that it is now simply seeking the payment of the monies owing.

14. As already indicated, we are satisfied that no collective agreement, or statutory extension of the terms of the collective agreement, was in place on or after December 31, 1982. As a matter of law, we are further satisfied that no event occurring on or after December 31, 1982 could give rise to a proper grievance and that the Minister has no authority to appoint an arbitrator to deal with a grievance arising out of events on or after December 31, 1982. The trade union, however, contends that its claim is based on events prior to December 31, 1982. This, in our view, is acclaim that can properly be adjudicated by an arbitrator appointed under section 45. Such an arbitrator would have the authority to interpret the collective agreement and rule on the correctness of the union's allegation that the terms of the collective agreement had been breached.

15. As for the employer's contention that the grievance was improperly filed as a policy grievance and that the union had failed to follow the grievance procedure set out in the collective agreement, these are matters which turn on the interpretation to be given to the relevant provisions in the collective agreement. Interpreting the collective agreement is a matter for an arbitrator, not this Board in the context of a referral from the Minister. Further, as already noted, section 45(4) of the Act, expressly provides that an arbitrator appointed by the Minister shall determine "any question as to whether a matter is arbitrable and any question as to whether the request (under section 45(1)) was timely". Given these considerations, we are satisfied that the employer's allegations do not deprive the Minister of the jurisdiction to appoint an arbitrator, but rather that the allegations are matters which can be placed before such an arbitrator for determination.

16. Quite apart from the employer's contention that the Ministers lacks authority to appoint an arbitrator, the employer contends that even if he has such authority the Minister should not make the appointment. In the employer's view, it would be more appropriate for this Board to deal with the merits of the dispute between the parties rather than an arbitrator. In support of this contention, the employer's counsel correctly noted that rather than taking an alleged violation of the terms of a collective agreement during the freeze period to arbitration, a party can instead file a complaint with this Board under section 89 of the Act alleging a violation of the statutory freeze. It is to be noted, however, that in the instant case the union contends that its grievance relates in part a period prior to the statutory freeze period when the collective agreement was still in operation. This part of the union's claim could not be dealt with by this Board under a section 89 complaint. More importantly, no complaint under section 89 is before the Board. There is before the Board only a reference from the Minister relating to) his authority to appoint an arbitrator, and in the circumstances we feel it appropriate to reply to) the question posed by the Minister.

17. The question posed by the Minister was as follows:

"i) Whether the incident which gave rise to the grievance occurred during either the term of the collective agreement or the statutory freeze period established by section 79(1) of the Labour Relations Act.

ii) If the answer to (i) is negative and the incident occurred after the expiry of the statutory freeze period, does the Minister have the authority to make the requested appointment."

In answer to) this question, we would refer to the trade unions contention that the grievance relates to events which occurred both during the term of the collective agreement and the statutory freeze period. While we express no opinion with respect to the merits of the trade union's claim, we are satisfied that an arbitrator would have the jurisdiction to determine the issue and to decide on whether the trade union's claim is, in the circumstances, a valid one.

18. In light of the above, the Board is satisfied that the Minister has the authority to appoint an arbitrator under section 45 of the Act to deal with the matters arising out of the grievance filed by the trade union.