[1984] OLRB Rep. July 977
0018-84-M The Kitchener-Waterloo Catholic High School Board of Governors, Employer, v. London & District Service Workers Union, Local 220, Trade Union
BEFORE: R. O. MacDowell, Acting Alternate Chairman, and Board Members S. Cooke and J. A. Ronson.
APPEARANCES: M. Patrick Moran and Seb Englert for the employer; Randy Levinson for the union.
DECISION OF R. 0. MACDO WELL, ACTING ALTERNATE CHAIRMAN, AND BOARD MEMBER S. COOKE; July 18, 1984
- This is a reference under section 107(1) of the Labour Relations Act. The Minister of Labour has referred to the Board a question that relates to his authority to appoint an arbitrator under section 45 of the Act. The material provisions of section 45 read as follows:
45.-( 1) 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 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.
(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.
Section 45 is a relatively new addition to the Act. It was introduced in 1979 in the wake of widespread concern about the existing grievance-arbitration process, and the efficacy of the tripartite arbitration board model envisaged by section 44(2) of the Act. In July 1978, the Honourable Arthur Kelly, sitting as an industrial enquiry commissioner, tabled a report which was sharply critical of the cost and delays, seemingly inherent in the existing arbitration system. The legislative response was section 45 of the Act. It has three main purposes: to expedite the hearing of unresolved grievances, to provide third party assistance to aid in the settlement of such grievances (see section 4 5(6)), and to reduce the cost of arbitrating employer-employee disputes by substituting the statutory alternative of a single arbitrator, even though the parties' collective agreement might contemplate a tripartite board.
The amendments were simple but significant in their impact. They enable either party to apply to the Minister for the appointment of a single arbitrator thirty days after the grievance is filed or following the completion of the grievance procedure, whichever occurs first. On the receipt of such request, the Minister must appoint an arbitrator who is able to begin hearing the dispute within twenty-one days. Grievances involving the discharge of employees are dealt with even more quickly. And the statute makes the section 45 mechanism available notwithstanding the grievance-arbitration procedure provided in the parties' agreement. Section 45 is obviously remedial legislation which should be given a liberal construction.
Access to the new expedited arbitration process is governed by section 45(2), which defines and circumscribes the right to resort to the statutory alternative. Section 45(2) creates what might be described metaphorically as a "time window", which "opens" with the completion of the grievance procedure or the passage of thirty days, whichever occurs first, but "closes" again, upon the expiry of the time period (if any) stipulated in the agreement for referring a matter to arbitration. A reference to arbitration under section 45 can only be made within these time limits. A party wishing to use the section 45 option, must make its request while the "time window" is open. Upon receipt of a timely request, the Minister must appoint an arbitrator who under section 45(4) then has exclusive jurisdiction to hear and determine the matter.
The facts in the instant case are not really in dispute; but, in order to put them in context, it is necessary to first set out certain provisions of the parties' collective agreement:
ARTICLE 6 — COMPLAINT PROCEDURE
6:01 It is the mutual desire of the parties hereto that complaints of the Employer or of the employees will be adjusted as quickly as possible.
6:02 If an employee has a legitimate complaint, he shall refer the matter to his immediate Supervisor, within six (6) months of the day following the date of the incident which gave rise to the complaint.
6:03 If such complaint is not settled between the employee and his immediate Supervisor, it shall be reduced to writing and submitted to the Superintendent of Business and Finance within two (2) working dates of the Supervisor's reply.
6:04 The decision of the Superintendent of Business and Finance shall be communicated to the employee in writing within five (5) working days of the receipt of the written complaint from the employee.
ARTICLE 7 — GRIEVANCE PROCEDURE
7:01 If such complaint is not settled under the Complaint Procedure as provided, it shall be treated as a grievance and shall be discussed at a special meeting of the Board (or such sub-committee as the Board may from time to time designate for the purpose) and the Union Committee. It is agreed that a grievance may arise only from a dispute concerning the interpretation, application, administration, or alleged violations of this Agreement.
7:02 Such special meeting shall be held within fifteen (15) working days of receipt by the "Chairman of the Kitchener-Waterloo Catholic High School Board of Governors" of a written request from the Union Committee or within such further time as may be mutually agreed upon.
7:03 No matter other than the grievance in question shall be discussed except by mutual consent of the parties.
7:04 It is agreed that the Union Representative of Local 220, may be present with the Union Committee at the request of either the Union or the Board.
7:05 Whenever any grievance cannot be settled within fifteen (15) working days after it has been discussed at such special meeting between the Committees, it may be referred to arbitration.
7:06 Where differences arise between the parties concerning the interpretation or violation of this agreement which may be considered as policy matters, the differences between the parties shall be reduced to writing by the Union Committee and submitted to the Board.
7:07 If the matter of the policy grievance is not satisfactorily settled by the Board, it is understood that it may be carried through the balance of the Grievance Procedure.
7:08 It is agreed and understood that if the Employer has a grievance concerning the general conduct of the employees or of the Union, it may by letter addressed to the Union Committee or its Chairperson, request that a special meeting be held and the procedure as provided for in Article 7, Grievance Procedure would follow.
7:09 If an employee claims that he has been unjustly discharged he may, within five (5) working days of receiving written notification of discharge, a copy of such notification having been sent to the Chair-person of the Union Committee, have a written grievance submitted to the Chairman, Maintenance Committee by a member of the Union Committee. The Chairman, Maintenance Committee will call a special meeting as outlined in Clause 7:02 to discuss the grievance.
If the grievance is not satisfactorily settled, it will be carried forward to conclusion as outlined in subsequent clauses in the Grievance Procedure article.
ARTICLE 8 — ARBITRATION PROCEDURE
8:01 When either party requests that a grievance be submitted to arbitration the request shall be in writing addressed to the other party of the grievance and shall at the same time name one person as its appointee to the Arbitration Board.
8:02 The recipient of the notice shall, within fifteen (15) days of the receipt of same, name one person as its appointee to the Arbitration Board. If the recipient fails to name a nominee within the fifteen (15) days, the party requesting Arbitration shall apply to the Minister of Labour for the Province of Ontario, for the appointment of a nominee.
8:03 The two (2) appointees shall, within five (5) days of the appointment of the latter, meet or contact each other in an endeavour to agree upon a third person to act as Chairman. If the two (2) appointees fail to agree upon a Chairman within the said five (5) days, they shall request the Minister of Labour for the Province of Ontario to appoint a Chairman forthwith.
8:05 No matter may be submitted to arbitration which has not been properly carried through all previous steps of the grievance procedure.
It will be seen that under Article 7:05, grievances may be referred to arbitration if they cannot be settled within fifteen working days after discussion at the special meeting between the parties specified in Article 7:02. The date of the special meeting supplies the bench mark from which time runs. It will also be noted that the parties have provided that no matter may proceed to arbitration unless it has properly been carried through all of the previous steps of the grievance procedure. The obvious intention is that the dispute be fully aired prior to the resort to a more formal litigation process.
The dispute between the parties concerns the failure by the employer to employ one Mr. D. Weare in the position of "custodian". There were preliminary discussions between the parties about this problem on November 15 and November 29, 1983. Formal grievances were filed on December 29, 1983, claiming that Mr. Weare should have been given this job. On January 6, 1984, the employer gave its reply, denying the validity of Mr. Weare's individual grievance and requesting further particulars of the union's policy grievance arising from the same issue. On January 12, 1984, the union wrote to the employer advising that it did not consider the employer's response satisfactory, and that the union was referring the grievance to a tripartite board of arbitration established in accordance with Article 8 of the collective agreement. The union's letter of January 12th included the name of its nominee to such board of arbitration. On January 19, 1984, the employer objected to the submission of these grievances to arbitration, on the ground that such reference was premature. The grievances had not been carried through all previous steps of the grievance procedure, as contemplated by Article 8:05, nor had there been any request for a special meeting to deal with the grievances as envisaged by Article 7:02. The employer's position is that the language of Article 8:05 is clear: a dispute cannot proceed to arbitration under the agreement unless it has been properly processed through the previous steps of the grievance procedure. On February 16, 1984, the employer made a request for the appointment of an arbitrator under section 45 of the Act, which was stated to be "without prejudice" to its position that the union's request for a board of arbitration under the agreement was premature, because the required steps in the grievance procedure had not yet been completed.
The union's position is that when it embarked upon the arbitration route under the agreement, it foreclosed any resort to arbitration under section 45. Having initiated the "private mechanism", the statutory alternative is no longer available. The union relies on the following passage from the decision of the Divisional Court in Re Hotel, Restaurant and Cafeteria Employees Union, Local 75 and Royal York Hotel (1983), 1983 CanLII 1831 (ON HCJ), 42 O.R. (2d) 509:
It is the applicant's contention that the learned arbitrator was in error in his interpretation of the statute. It is submitted that art. 18 sets out the time-limit for submitting a grievance to arbitration and that time-limit had passed when the s. 45(1) request was made. It was further submitted that the arbitrator had extended the statutory time-limit into a period when the arbitration process had been initiated and was pending. It is the contention of the respondent that in order to give efficacy to the provisions of s. 45 (which both parties agree, was enacted for the purpose of providing an expeditious arbitration process), the time limitation for making the referral should receive a liberal construction and that a reference to arbitration should be interpreted to mean a reference to the body which will be dealing with the dispute. As that body had not been constituted when the s. 45 request was made there had not been in the submission of the respondent any referral to arbitration.
In my opinion, the Legislature intended to provide strict time-limits within which a party might make the request provided for in s. 45. In contrast to s. 44(6) of the Act which provides for extensions of time in grievance procedures there is no provision for the extension of the time-limits set out ins. 45(2). We have before us two possible interpretations of that time-limit. In my opinion, a submission to arbitration under either art. 18.6 or art. 18.19 of the collective agreement is a referral to arbitration within the meaning of s. 45(2) of the Act. It seems to me that the plain meaning of the word "referring" in the context of the legislation must be restricted to the initiation of the process by either party. The applicant invoked the arbitration process which in its normal course would continue with the appointment of a board of arbitration, the hearing and the eventual decision. Once the process was invoked by either party, it would appear to be the scheme of the legislation that each would have to abide by it until either settlement or decision. While an extension of time under art. 18 might have extended the time in s. 45(2), the extension under art. 19(2) was not part of the referral to arbitration, but was rather an extension of one of the steps in the arbitration process.
In my view the learned arbitrator was right in stating that s. 45 could not be invoked after the parties had lost the right "to go to arbitration" but he misapprehended the situation when he found that on July 2, 1982, the parties were contemplating going to arbitration. It would appear that he interpreted the section in the manner submitted by the respondent. In my view, the interpretation submitted by the applicant is more reasonable both on the meaning of the words and in the context of the legislation.
This is new legislation. It is important that other arbitrators appointed under s. 45 be certain of the limits which give them jurisdiction. It may be, as contended by the respondent, that this is not an efficacious result in terms of practical labour relations. If this is so, then statutory amendment would appear to be the only solution.
[emphasis added]
The union argues that if the arbitration process contemplated by the collective agreement is initiated prior to the reference under section 45, it is the "private" process which takes precedence — even though a section 45 application might otherwise or subsequently be timely. To put the matter colloquially: the party "first off the mark" in triggering the arbitration process, governs the institutional framework within which the grievance will be resolved. The first party to refer the matter to arbitration controls whether it will be dealt with by a single arbitrator appointed by the Minister under section 45, or a tripartite board appointed under the terms of the collective agreement. The union relies upon the emphasized words in the above-noted passage from the Royal York decision.
The employer takes the position that the Divisional Court decision has no application to the circumstances of this case, and notes, parenthetically, that if the union were right, in a case such as this, the remedial thrust of section 45 could be substantially blunted. A party could merely opt for the arbitration board structure prescribed in the agreement early in the grievance procedure, well before any reference under section 45 might arise or be timely in accordance with section 45(2). That is what the union has purportedly done here. In the employer's submission, if this gambit is successful, it would defeat the purpose of section 45 — which was to provide an expedited, inexpensive alternative to the arbitration procedure in the parties' collective agreement.
In the alternative, the employer argues that even if the union's interpretation of Royal York Hotel is the correct one, that case has no application here. The parties had not reached the stage where one or the other was entitled to make a reference to arbitration under the agreement. The agreement contemplates the holding of a special meeting and no such meeting was ever requested by the union. The purported referral to arbitration was untimely. The employer relies upon the decision of a board of arbitration in Re Consolidated-Bathurst Packaging Ltd. and international Woodworkers, Local 2-337 (1977), 1977 CanLII 2912 (ON LA), 15 L.A.C. (2d) 365 (Brunner) wherein the board of arbitration was unanimously of the opinion that language like that of Article 8:05 meant it was necessary to complete the steps in the grievance procedure before moving on to arbitration. The employer urges this Board to adopt that rationale in the instant case: the union must complete the grievance procedure before any question can arise as to the appropriate steps to be taken to bring the case to arbitration. The union's purported referral to arbitration is simply premature. It is of no effect at all, and cannot foreclose a timely reference under section 45.
The opinion of the Divisional Court obviously requires consideration; but, in our view, it must be read carefully, in light of the arguments made in that case, and the precise issue before the Court for its determination. Again, it may be helpful to review the facts and the terms of the collective agreement there in issue. The agreement language is set out in the Court decision itself, and reads as follows:
18.6 Failing settlement of the grievance at Step 3, the Union may submit the grievance to arbitration, within ten (10) working days from the date of the General Manager's reply at Step 3, as described in Article 19.
18.9 The other party shall give its written response within ten (10) working days from the receipt of the grievance. Failing settlement of the grievance the party filing the grievance may submit it to arbitration within ten (10) working days from the date of the reply to the grievance.
19.1 Written notification of an intent to arbitrate a grievance, by one party to this Agreement to the other party, shall contain that party's nominee to the board of arbitration. Within ten (10) working days thereafter, the other party shall nominate its member to the board of arbitration in response to the Union so doing.
In Royal York, the union filed a grievance concerning the reduction in working hours of certain employees. By March 22, 1982, the grievance had made its way to step 3 of the grievance procedure. The next step was arbitration. The terms of the collective agreement provided (in Article 18.6) that the union may submit a grievance to arbitration within ten working days, or, alternatively (under Article 18.9), that the party filing the grievance (again the union) may submit it to arbitration within ten working days. In either case, there was a ten-day time limit within which the union could proceed.
The union did refer the grievance to arbitration on April 21st, by appointing its nominee to a board of arbitration as required by Article 19 of the collective agreement. This appointment set in motion the tripartite arbitration mechanism. No objection was taken by the Hotel to the union's failure to observe the ten-day time limit. While the parties were pursuing settlement discussions, the union agreed to an extension of the time prescribed under Article 19 for the appointment of the Hotel's nominee to the arbitration board. At this stage, both parties appeared to be content with the arbitration board mechanism prescribed in their collective agreement. On July 2nd, however, the Hotel purported to make a referral under section 45. The union objected that the time for doing so — that is, the ten-day period prescribed in Article 18 — had long since past, and had not been waived or extended by agreement. The Court sustained the union's objection and found that by July 2nd, the Hotel did not have the right to invoke section 45. The "time window" had closed by then.
The Divisional Court's oral decision is fairly brief, and does not disclose the full argument of the parties to which the Court was responding. However, in our view, the Court was dealing only with a time limit question: whether or not the section 45(2) "time window" should be strictly construed, and whether a referral by the Hotel beyond that time limit would be a valid one. In the passage cited above, the term time limit is mentioned numerous times. The Court opted for strict construction of the time window and found that the Hotel's reference was untimely. The Court rejected the arbitrator's opinion that the extension of the time accorded to the Hotel for appointing its nominee extended the time for making a section 45 reference. However, we do not think the Court was propounding a rule of institutional pre-emption: that the early initiation of the contractual arbitration process could foreclose a timely resort to the statutory alternative. In our view, that was simply not the issue before the Court, nor can this important conclusion reasonably be gleaned from the statement (itself tentative) upon which the union relies here.
We are reinforced in our view by a consideration of the underlying structure and purpose of section 45, which, as we have already noted, was intended to provide a cheaper and faster statutory alternative to the more cumbersome tripartite arbitration board contemplated by section 44(2) of the Act and embodied in many collective agreements. From a policy point of view, it is difficult to accept that the Legislature envisaged a "foot race" wherein the party who makes the first reference to arbitration can control the form of the arbitration mechanism — particularly if it involves a pre-emption of the designated statutory alternative. We can discern no policy reason why a timely resort to the expedited arbitration process in the statute should be short circuited by an action taken under the agreement. Indeed, the opening words of section 45 ("notwithstanding the arbitration provision in the collective agreement"), together with the exclusive jurisdiction accorded to the section 45 arbitrator, suggests precisely the opposite conclusion. The plain words of the statute suggest that a timely section 45 reference is available regardless of the arbitration procedure in the parties' collective agreement (with the possible proviso that if both parties have opted for the private route and have incurred the attendant expense, neither will be permitted to resile from the chosen path — see Spiers Bros. Ltd., [1978] OLRB Rep. Sept. 871). That is why the Legislature considered it necessary to spell out that the section 45 arbitrator would have exclusive jurisdiction to hear the grievance. The interpretation urged upon us by the union in this case could substantially undermine the efficacy of section 45 as a speedy and less expensive arbitration alternative, and requires that we ignore plain meaning of the statutory language. We would be reluctant to embrace an interpretation which flies so clearly in the face of the legislative intent.
It was unnecessary for the Court to consider these matters in Royal York and, in our view, it did not do so. It was dealing with a more narrow question of timeliness which was all that was necessary to resolve the case before it. In our opinion, the Royal York decision simply does not stand for the proposition urged upon us by the union in this case.
Even if the union's characterization of Royal York were correct (and for the foregoing reasons we do not think that it is), it could have no application in the circumstances of the instant case. It simply could not have been intended that an untimely referral to arbitration — a referral made contrary to the express terms of the collective agreement — could foreclose a timely reference under section 45. To accept that submission would extend the notion of a "foot race" to absurd lengths. One party or the other could simply invoke the "private" process (albeit prematurely) before the "time window" opened, thereby cutting off the section 45 option altogether. That result would be inconsistent with the intent of section 45 and merely reinforces our view that it was intended to be available notwithstanding the arbitration procedures contained in the parties' collective agreement. Accordingly, assuming, without finding, that the union is correct in its interpretation of the effect of Royal York, we do not think the union's premature reference to arbitration in this case can cut off the employer's access to section 45 — provided, of course, that the employer's application is itself made within the time limits prescribed in section 45.
Is the employer's section 45 referral timely in the instant case? In our view it is. By February 16, 1984 more than 30 days had passed since the filing of the grievance. The "time window" had opened. The agreement does not contain a limitation beyond which a grievance cannot proceed to arbitration and, in any event, as we have already noted, the grievance here never did make its way through the steps specified in the agreement prior to the arbitration stage. The "time window" had not closed. The employer's referral was timely and effective notwithstanding the arbitration procedure in the parties' collective agreement and the union's earlier but untimely attempt to initiate the arbitration process set out in the agreement.
For these reasons, the Board is of the view that a timely application by the employer under section 45 has been made, and that the Minister has jurisdiction to appoint an arbitrator under section 45 of the Act.
DECISION OF BOARD MEMBER JAMES A. RONSON;
I agree with my colleagues that a timely application under section 45 of the Act has been made by the employer. I do so on the basis that the union's previous application was untimely under the terms of the collective agreement.
I cannot agree with my colleagues when they seek to distinguish the reasoning of the Divisional Court in Re Hotel, Restaurant and Cafeteria Employees, Union, Local 75, and Royal York Hotel (1983), 43 O.R. (2nd) 509. It seems to me that the Court has spoken to a point of law in that case which binds this Board, and no matter how unhappy we may be with the results that follow, we are bound to apply it. The effect is that once the arbitration procedures under the collective agreement are validly initiated, then section 45 of the Act cannot be used by either party.