The City of Mississauga (Transit Department) v. Amalgamated Transit Union, Local #1572, 1984 CanLII 969

[1984] OLRB Rep. June 851

2618-83-M The City of Mississauga (Transit Department), Employer, v. Amal­gamated Transit Union, Local #1572, Trade Union

BEFORE: R. O. MacDowell, Acting Alternate Chairman, and Board Members C. A. Ballen­tine and W. H. Wightman.

APPEARANCES: C. E. Humphrey, E. Draycott and R. Stehle for the employer; Paul Falzone, Terry Topps and Ron Whittingham for the trade union.

DECISION OF THE BOARD; June 28, 1984

1. 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 jurisdiction to appoint an arbitrator under section 45 of the Act. The material provisions of section 45 read as follows:

2. -(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 (I) 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.

For ease of reference, the parties in this case will be referred to simply as "the employer" and "the union".

2. Section 45 is a relatively new addition to the Act. It was introduced in 1979 in the wake of widespread concern about the functioning of the grievance-arbitration process, and the efficacy of the arbitration board model envisaged by section 44(2). In July, 1978, the Honourable Arthur Kelly, sitting as an industrial enquiry commissioner, tabled a report which was sharply critical of the cost and delay seemingly inherent in that model. The legislative response was section 45.

3. Section 45 has three main purposes: to expedite the hearing of unresolved grievances, to provide third party assistance in the settlement of grievances (see section 45(6)), and to reduce the cost of arbitrating disputes by making available the statutory alternative of a sole arbitrator, appointed by the Minister, even though the parties' collective agreement may contemplate a tripartite arbitration board. The amendment was simple, but significant in impact. It enables either party to apply to the Minister for the appointment of a single arbitrator thirty days after a 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 discharge are dealt with even more expeditiously. And the section 45 route is expressly made available "notwithstanding the arbitration provision in a collective agreement or deemed to be included in a collective agreement under section 44". The scheme of the Act also contemplates that either party to the agreement may resort to the expedited arbitration process (see Marshall Gowland Manor, [1982] OLRB Rep. May 707). The employer and the union may both take advantage of the expedited route.

4. Before reviewing the facts in the instant case, it may be useful to set out the relevant provisions of the parties' collective agreement:

6.04 In the event of any misunderstanding or difference of opinion as to the interpretation, application, administration, or alleged violation of this Agreement, including any question as to whether or not a matter is arbitrable, it shall be processed in the following manner:

Step 1

The aggrieved employee, with a Union Steward, and the employee's immediate Supervisor, or his designate, shall meet to discuss the griev­ance. Following this meeting, if the grievance is not satisfactorily re­solved within two (2) working days, it shall be reduced to writing on an approved form provided for that purpose, properly signed and com­pleted by the employee, and presented to the Department Manager or his designate, then:

Step 2

The aggrieved employee and a Union Steward shall, within a further two (2) working days of the Supervisor's reply, meet with the Depart­ment Manager or his designate. Following this meeting, within a further two (2) working days, the Department Manager, or his designate, shall give his reply in writing. If not satisfactorily adjusted, then:

Step 3

The Union Committee and the Personnel Manager, or his designate, within five (5) working days of the Department Manager's reply, togeth­er with such other representatives as the Company may designate, shall meet to discuss the grievance. At this meeting, an International District representative of the Union may be requested to attend. The Personnel Manager or his designate, shall reply, in writing, within five (5) working days of this meeting.

6.05 If a grievance is not settled to the satisfaction of either party to this Agreement by the procedure outlined above, then either party may within seven (7) working days, refer the grievance to arbitration in accordance with the provisions of Article 9.

6.06 Any reference to "working days" contained in this Article shall mean Monday to Friday inclusive, but shall not include Statutory or Designated Holidays.

ARTICLE 7 — Discharge Grievances

7.01 If a permanent employee is discharged, the matter may be submitted in writing as a special grievance, dated and signed, at Step 3 of the Grievance Procedure. Any such grievance must be submitted within three (3) working days after the employee is discharged. An answer to the grievance shall be given within a further three (3) working days. Thereafter, the arbitration procedure contained in Article 9 shall apply.

ARTICLE 9 — Arbitration

9.0 1(a) When either the Company or the Union requests that a grievance be submitted to arbitration, such request shall be in writing, ad­dressed to the other party to this Agreement, and at the same time shall advise the name of their nominee to the Arbitration. Within seven (7) working days, thereafter, the other party shall also advise in writing, the name of their nominee to the Arbitration.

(b) The two (2) nominees selected, in accordance with the above, shall attempt to select, by agreement, a Chairman and if they are unable to do so in seven (7) days, they shall then request the Minister of Labour for the Province of Ontario to assist in selecting a Chairman.

(c) Notwithstanding the provisions of 9.01(a) and (b) above, either party may request a single arbitrator in accordance with the Ontario

(d) Labour Relations Act, Revised Statutes of Ontario 1980, Chapter 228, Section 45.

5. The facts are not in dispute. On December 29, 1983, the respondent discharged Ralph Smith, one of its employees. The union claims that this discharge was "without just cause". A grievance to that effect was filed on January 9, 1984. After some initial discussions, the employer agreed to waive step 3 of the grievance procedure, and proceed straight to arbitration. At that point, the grievance procedure was exhausted and, in accordance with the terms of the collective agreement, each of the parties had seven working days (i.e. until January 18th) to refer the matter to arbitration. On January 11th, the union invoked the procedure prescribed in the collective agreement, by appointing its nominee to a tripartite arbitration board. On January 17th, the employer made a request for the appointment of a single arbitrator under section 45(3) — that is, after it had received notice of the union's appointment of its nominee, hut before the expiry of the period prescribed in the agreement for the referral of a grievance to arbitration.

6. The employer relies on what it asserts to be the combined effect of sections 45(1) and 45(3). The employer argues that section 45(3) creates what might be described as a "referral window" framed in time. A reference to a single arbitrator can be made no sooner than the end of the grievance procedure, or fourteen days, whichever occurs first, and no later than the time stipulated in the agreement for referring the matter to arbitration. The time window determines the availability of expedited arbitration. If a reference is made while the "time window" is "open" the Minister may appoint a single arbitrator to deal with the case, notwithstanding the arbitration procedures prescribed in the parties' collective agreement. Upon such appointment, section 45(4) vests that arbitrator with exclusive jurisdiction to hear and determine the matter referred to him. But if the time window has closed, the section 45 route is no longer available.

7. The union's position can also he simply stated. The union argues that when it embarked upon the arbitration route prescribed in the agreement, it automatically foreclosed the appointment of a single arbitrator under section 45. Having initiated the "private" mecha­nism, the statutory alternative is no longer available. The union relies upon 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 in s. 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.

8. The union submits that the critical words in the above-noted passage are these: "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". The union argues that if the arbitration process under the agreement is initiated prior to the reference under section 45, it is the private arbitration process which takes precedence — even though a section 45 reference might otherwise be timely. To put the matter colloquially: The party "first off the mark" at the completion of the grievance procedure, chooses the institutional framework for the resolution of grievances. The party that first opts to refer the matter to arbitration determines whether there will be a single arbitrator appointed by the Minister under section 45, or a tripartite board appointed under the terms of the collective agreement. A timely reference under section 45 can be aborted by a prior submission to arbitration pursuant to the arbitration provisions of the collective agreement.

9. The opinion of the Divisional Court obviously requires careful consideration; but, in the employer's submission, it must be read 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.

20. In Royal York, supra, the union filed a grievance concerning the reduction in working hours of certain employees. By March 22, 1982, it 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 had to proceed.

21. 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.

22. 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.

23. 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). Furthermore, 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. Finally, although it probably adds nothing to the employ­er's statutory rights, we note that Article 9.01(c) of the parties' agreement itself contemplates a section 45 reference, notwithstanding the availability of a tripartite board under Article 9.01(a). We would be reluctant to embrace an interpretation which flies so clearly in the face of the legislative intent.

24. 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.

25. For the foregoing reason, the Board is of the opinion that a timely application has been made within the terms of section 45(2) and that the Minister of Labour therefore has jurisdiction to appoint an arbitrator under section 45 of the Act to inquire into the Ralph Smith discharge. In our opinion, such appointment is available notwithstanding the steps taken by the union under the arbitration provisions of the collective agreement.

CONCURRING DECISION OF BOARD MEMBER W. H. WIGHTMAN;

I concur with the decision of my colleagues, particularly in view of the language in the parties' collective agreement. Section 45 has a dual purpose: expedition, and lower cost. Accordingly, a "foot race" of sorts was contemplated — although not the kind referred to in paragraph 13. Section 45 was intended to encourage the speedy resolution of disputes by whatever means, including providing an incentive to more expeditious consensual arbitration. However, if consensual arbitration has been adopted and proceeded with to the point where costs such as cancellation fees have been incurred, to make section 45 pre-emptive would be to defeat the collateral and equally important purpose of lowering the cost of the process.