Ontario Labour Relations Board

[1986] OLRB Rep. July 1014

2527-85-M Ontario Allied Construction Trades Council and L.I.U.N.A., Local 597, Applicant, V. The Electrical Power Systems Construction Association and Ontario Hydro-Darlington G.S., Respondent

BEFORE: M. G. Mitch nick, Vice-Chairman, and Board Members J. Wilson and B. L. Armstrong.

APPEARANCES: David Strang, W. Fairservice and Don Little for the applicant; C. C. White, Ivar Starasts, J. P. Bennett and S. Goldsworthy for the respondent.

DECISION OF THE BOARD; July 3, 1986

1. This is a referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act.

2. The grievor, Bruce Lynch, has been working for Hydro at its Darlington construction project since August of 1982. He lives in Huntsville (which, the material point is, is more than 97 kilometres from the project) and is claiming room-and-board allowance for the period August 4, 1982 to January 16, 1984. Article 19.2 of the collective agreement provides as follows:

ROOM AND BOARD

19.2 The following conditions will apply

REV for employees whose regular residence* is more than 97 radius

kilometers from the project:

(a)An Employer may supply either:

(i) free room and board in camp or a good standard of board and lodging within a reasonable distance of a project; or

(ii) a subsistence allowance.

(b) An employee may exercise his option not to stay in a camp or accept free room and board. An employee who exercises this option shall receive a subsistence allowance as follows, subject to 19.2(c) below:

(i) When an employee's regular residence is between 97 and 161 radius kilom­eters from the project, he shall be paid a subsistence allowance of $28.00 per day for each day worked or reported for and $10.00 per day for non-work days and Statutory Holidays,

3. The grievor at the time of his hiring was first contacted by the union to come in for a referral slip. He then proceeded to the Hydro employment office to complete the necessary papers. On the question of eligibility for employment, the collective agreement provides:

Article 12

EMPLOYMENT

12.1 (a) For purposes of this Article, a geographic area will be estab­lished for each Project and geographic areas for each Lines and Stations Zone. The size of these geographic areas will be depend­ent upon the location of the work and the trade concerned.

(b) The boundaries of the geographic areas will be jointly established at prejob conferences.

12.6 The employment of tradesmen and apprentices, excluding key tradesmen, shall be carried out on the following basis and sequence:

(a) The EPSCA office will request the appropriate local union office for tradesmen and apprentices required. The request will include a description of the work, the number of tradesmen and apprentices required, and the name of the Employer for whom the tradesmen and apprentices will be working.

(b) The Union members who are resident in the designated geographic area will be referred by the Union for employment through the EPSCA office. As much as their out-of-work lists will permit, the Unions will supply mem­bers on a fan-out basis from the project or work location.

The Employers will either hire such persons or substantiate their reasons in writing for not doing so.

An employee who maintained a regular residence within the geographic area for the purposes of employment and who relocates outside the geo­graphic area will not be entitled to an increase in travel or room and board allowance entitlement as a result of this relocation.

(c) If, after a request has been made, the Union is unable to supply sufficient tradesmen and apprentices to meet the manpower requirements of the Employers, the Employers may employ tradesmen and apprentices who are resident within the geographic area....

It was Hydro's belief that the geographic area for the project had in fact been established at the pre-job conference which took place in 1977, as contemplated by Article 12.01(b), and that that geographic area was limited to the area around Bowmanville (and the project). Accordingly, shortly after Mr. Lynch began work, he was advised by Hydro that he was not eligible for employ­ment, unless he found a place to live in Bowmanville and came back with a Bowmanville address. Mr. Lynch did that, and his employment was allowed to continue.

4. Mr. Lynch's real residence continued to be Huntsville, however, and he was disgruntled over the fact that he was not receiving what he refers to as "travel allowance" (it is agreed the claim is for "room-and-board allowance"). He accordingly went to the employment office several times through the remainder of 1982, but each time was told that he was not entitled. Mr. Lynch testified that he discussed the matter with a number of other unhappy employees in the same situa­tion, as well as with a steward, but decided not to formally grieve the matter because "it wouldn't do any good". Throughout 1983 Mr. Lynch continued to grumble over the allowance, but still chose to do nothing about it.

5. In the spring of 1984 Mr. Lynch states that he and another employee came across a piece of paper lying on the floor, and read it. It was a copy of Article 19.2 of the collective agree­ment, as set out above. Armed with this piece of information, Mr. Lynch went to see the Hydro Personnel Manager, Mr. Ella. As it happens, Hydro had in January of that year come to an agree­ment with the Union to treat the "geographic area" of the project as extending to an area that encompassed Huntsville, and to pay board allowance from January 16, 1984 forward to anyone residing within that extended area but more than 97 kilometres from the project. On that basis, the grievor could claim a Huntsville residence and qualify both for employment and for board allow­ance.

6. Pursuant to Hydro's agreement with the union, Mr. Ella offered to pay the grievor board allowance from that time forward, and also retroactive to January 16, 1984, and the grievor accepted the payment. That was in the summer of 1984. Two or three months later, the grievor asked Mr. Ella for further retroactive board allowance, back to August 4,1982. Mr. Ella told the grievor he had gotten all that he was entitled to. Several more months later the grievor was discuss­ing the matter with others at the Union Hall, and someone told him he ought to grieve. So he did. By then it was June of 1985. Asked in cross-examination why he waited almost a year from the time of the initial payment to launch a grievance for the balance, the grievor replied: "What was the difference - I'd waited since 1982 anyway."

7. The respondent by way of defence raises two preliminary grounds of objection: laches and estoppel. It also maintains that, on the merits, Hydro properly viewed the "geographic area" as having been agreed to be confined to the Bowmanville area, and that the grievor therefore had no entitlement to employment and a board allowance prior to the extension of the geographic area in January of 1984.

8. Were we to go on to inquire into this matter, we are persuaded that we would have to hear the evidence of the parties going back to 1977, if only to determine whether Hydro itself was correct in advising the grievor in 1982 that residing in Bowmanville was a necessary condition to being rightfully employed. While the union argued that Hydro should have simply refused to hire the grievor and let him grieve, rather than give him the advice of taking up residence in Bowman­ville, it is not clear that that argument by the union would be accepted by the Board, and the accu­racy of Hydro's advice would, in any event, still be a relevant consideration, in fully assessing the conduct of the parties. The Board would have to further determine, in that regard, whether the grievor is estopped from claiming Huntsville as his residence for the purpose of board allowance, once he had claimed Bowmanville as his residence for the purpose of maintaining his employment. And beyond that, we would have to determine whether the union is estopped from bringing this grievance for pre-January 1984 allowance by virtue of the overall agreement acceded to by Hydro at that time, and as a result of which the grievor was paid the money that he was.

9. But we are not going to go into that. Rather, we are persuaded that this is an appro­priate case for the application of the doctrine of laches. As the arbitrator in Algoma Steel, (1973) 2 L.A.C. (2d) 230 (Andrews) put it, at page 250:

That the equitable doctrine of laches does apply to arbitration cases is settled law. See: Re Ottawa Newspaper Guild, Local 205, and Ottawa Citizen (1965), 1965 CanLII 164 (ON HCJ), 55 D.L.R. (2d) 26, [1966] OR. 669; Re Ottawa Newspaper Guild and The Saanich Firefighters Union, Local 967, and Dis­trict of Saanich (1971), 1971 CanLII 1016 (BC SC), 22 D.L.R. (3d) 577, [197212 W.W.R. 134.

There is always some element of prejudice to a party having to put in a defence after a delay of this magnitude, and there is simply no justification whatever for the delay which occurred here. The grievor was not, as found in Canadian Westinghouse, (1961) 12 L.A.C. 120 (Hanrahan), lulled into believing certain facts on the basis of the employer's representation. Rather, the grievor continued to challenge the employer's assertions throughout - he simply never got around to filing a grievance (until June of 1985). No new fact came to his attention in the "paper" that he found on the floor in the spring of 1984; that was merely an extract from the collective agreement, which was something that was readily available to him from the beginning. Considerable attention has been given in this province to the question of expediting the handling of grievances, especially in construction, and we think fairness here demands that the grievor would have pursued his perceived entitlement to board allowance a good deal less haphazardly than he did. As we are not, in the circumstances, of the view that the grievor ought now to be permitted to claim compensation for this stale grievance, we are all of the view that the grievance ought to be dismissed.

10. The grievance is accordingly dismissed.