[1984] OLRB Rep. June 862
0017-84-M St. Raphael's Nursing Home (Kitchener), 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: Arthur Schelter for the employer; Randy Levinson for the trade union.
DECISION OF THE BOARD; June 29, 1984
- This is a reference under section 107 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.
Section 45 was introduced into the Act in 1979. Its purposes were threefold: to expedite the hearing of unresolved grievances, to provide third party assistance to aid in the settlement of those grievances (see section 45(6)), and to reduce the cost of the arbitration process by substituting the statutory alternative of a single arbitrator for the more cumbersome tripartite board envisaged by section 44(2) of the Act and frequently found in the parties' collective agreements.
The structure of section 45 is quite straightforward. A party is entitled 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 of the receipt of the request for arbitration. Grievances involving discharges are dealt with even more expeditiously. The section 45 mechanism is, by statute, available "notwithstanding the arbitration provision in [the parties'] collective agreement".
But access to expedited arbitration under section 45 is not unlimited. Section 45(2) creates what might be described metaphorically as a "time window" which opens upon the exhaustion of the grievance procedure or after thirty days have elapsed from the filing of the grievance, whichever first occurs, but closes with the expiry of the time, if any, stipulated under the collective agreement for referring the grievance to arbitration. A section 45 reference must be made within these temporal parameters, or it cannot be made at all. Moreover, 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, the Divisional Court held that these time limits must be strictly construed.
The relevant provisions of the collective agreement in this case are as follows:
ARTICLE 7 — GRIEVANCE PROCEDURE
7.01 Definition
For the purposes of this Agreement "Grievance" is defined as a dispute claim or complaint involving the interpretation, application, administration or alleged violation of the Agreement including any question as to whether a matter is arbitrable.
7.02 Step 1
The aggrieved employee shall present his/her grievance in writing on the Union's standard form, completed as indicated on the form, any amendment to the form itself, if of substance, to be approved by the Employer to his/her immediate supervisor. The steward of the aggrieved employee may also be present when the grievance is presented to the immediate supervisor. If a settlement satisfactory to the employee concerned is not reached within three (3) working days of any longer period which may be mutually agreed upon at the time (such extension to be given in writing) the grievance may be presented as follows at any time within three (3) working days thereafter.
Step 2
Failing a satisfactory settlement in Step 1, the aggrieved employee, accompanied by a Union representative may present his/her grievance to the Administrator or in the Administrator's absence his designated representative who shall consider it in their presence. Should no settlement satisfactory to the employee be reached within three (3) working days the next step in the grievance procedure may be taken at any time within three (3) working days thereafter.
Step 3
Failing a satisfactory settlement in Step 2, the aggrieved employee may submit his/her grievance in writing to the Employer for discussion at a special meeting of the Union Committee and the Employer. The decision of the Employer shall be given in writing within five (5) working days following the meeting. Should the Employer fail to render its decision as required in Step 2 or if the reply of the Employer is not satisfactory to the employee, the grievance may then be referred to arbitration if the request is made in writing within ten (10) days after the grievance has been dealt with at such special meeting. If no written request for arbitration is received within ten (10) working days after the decision under Step 3 is given or within fifteen (15) working days following the meeting under Step 3 of the Grievance Procedure, the grievance shall be deemed to have been settled.
7.03 No grievance shall be considered which has not been carried through the steps of the grievance procedure within the various time limits any of which may be extended by mutual consent in writing of the parties.
7.04A Saturday, a Sunday, a Paid Holiday within the meaning of this Agreement shall be excluded in computing the time limits within which a step is taken under the Grievance Procedure of this Agreement.
The facts in the present case are not in dispute. On or about November 21, 1983, the union filed a grievance alleging that the employer had contravened the job posting procedures set out in the collective agreement. On November 24, 1983, the employer replied, denying that there had been any breach of the agreement. On December 12, 1983, the parties held the so-called step 3 meeting to canvass their positions. No formal employer response was forthcoming, soon December 21, 1983, the union wrote to the employer to reiterate its position, noting that it was still awaiting a formal reply. On January 23, 1984, the employer wrote to the union indicating that it was not prepared to accept the validity of the grievance, and would refer the matter to arbitration under section 45 if the union did not withdraw it within ten days.
On February 2, 1984, the trade union submitted the grievance to arbitration pursuant to Article 8.01 of the collective agreement by advising the employer in writing and naming the union's nominee to a board of arbitration. On February 7, 1984, following receipt of the union's submission, the employer drafted a referral to arbitration under section 45. That referral was mailed to the Minister by registered mail on February 8, 1984, and was received on February 10, 1984. It is interesting to note that in the referral itself, the employer acknowledges that the time stipulated under the collective agreement for referring the grievance to arbitration expires on February 6, 1984 — two days before the employer made its referral under section 45. By letter dated February 16, 1984, the union objected to the appointment of a single arbitrator on the ground that the employer's section 45 referral was untimely.
Article 7.02 of the parties' agreement marks time in several ways. It is unnecessary to consider its alternative constructions. It suffices to say that on the interpretation most favourable to the employer, step 3 was concluded and the grievance finally dealt with at that stage, by January 23, 1984, when the employer indicated its rejection of the union's position. The employer warned that it would refer the matter to arbitration under section 45 if the grievance were not withdrawn within ten days. That ten-day period, it might be noted, is the one contemplated by Article 7.02 for referring a case to arbitration. Taking into account Article 7.04 dealing with how "days off' are counted, February 6th is the tenth and last day for making a section 45 referral. The employer had not launched its section 45 referral by that time. Accordingly, its subsequent effort to invoke section 45 was untimely. It is unnecessary to consider the union's alternative submission that even if a timely request under section 45 had been made, it would be pre-empted by an earlier resort to arbitration under the terms of the collective agreement.
For the foregoing reasons the Board is of the opinion that:
(a) in light of the Court's decision in Royal York Hotel, supra, the time limits in section 45 must be strictly construed; and
(b) the employer in this case has failed to make a timely reference under section 45 of the Act.
We therefore respectfully advise the Minister of Labour that, in our opinion, he has no authority to accede to the employer's request, and appoint an arbitrator under section 45 of the Act.