[1986] OLRB Rep. April 417
2864-85-M International Union of Operating Engineers Local 793, Applicant, v. Arlington Crane Service Limited, Respondent
BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. W. Murray and D. A. Patterson.
APPEARANCES: Bernard Fishbein and E. A. Ford for the applicant; Morris Manning for the respondent.
DECISION OF THE BOARD; April 25, 1986
[1]. This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act.
[2]. The hearing in this matter convened on April 21, 1986.
[3]. During the course of the hearing the Board delivered the following oral ruling:
This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. Counsel for the respondent made, by way of preliminary motions, objections to the Board's hearing the grievance on its merits.
Both counsel agreed with the Board's suggestion, after hearing Mr. Manning's opening argument, that as the first preliminary objection raised by the respondent might well require the resolution of a factual dispute, the Board would proceed with evidence and argument on that first issue.
Counsel for the respondent submitted that the applicant was required to prove that it had delivered the grievance that is the subject matter of this referral to the respondent prior to referring the matter to arbitration before the Board under section 124 of the Act.
The applicant called three witnesses to establish that the grievance had been delivered to the respondent well before February 21, 1986, the date the grievance was referred to arbitration by the Board.
William Pedder, a business agent of the applicant, testified that he instructed his secretary to type up the grievance form that is dated October 31, 1985 and the letter dated November 1, 1985, those two documents being exhibit #1 in this matter. He instructed her to mail those documents to the respondent by certified mail. Mr. Pedder recalled seeing a proof of delivery card attached to the grievance dated October 31, 1985. (Those two documents are exhibit #2 in this matter). The proof of delivery card makes reference to a grievance dated November 1, 1985.
Glenn McLeod, the area supervisor of the applicant, testified about the office procedure and identified the proof of delivery card as having been received by the applicant.
Mr. McLeod and Ernest Ford, the Labour Relations Manager of the respondent, both testified that they were familiar with the signature of Dolly Foran, a principal of the respondent and thought that Mrs. For-an's signature was on the card indicating that documents had been received by the respondent. We note that Mr. Ford had not seen Mrs. Foran actually sign any documents.
Counsel for the applicant submitted that the grievance was, in fact, delivered, as evidenced by exhibit #2, and also relies on section 113(1) of the Act. He also submitted that, in any event, even if the grievance had not been delivered prior to the referral being made to the Board, such failure was a mere technical irregularity. He argued that the respondent was not prejudiced and the Board could relieve against the failure to comply with the technical requirements of section 124(2) by exercising its jurisdiction under section 114 of the Act.
The Board did not ask counsel for the respondent to reply to the second, alternative argument made by counsel for the applicant.
Section 124(2) of the Act states:
"A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing."
In our view, it is not too onerous to require a party to a collective agreement to deliver a grievance to another party to that agreement before referring the grievance to arbitration before the Board. The failure to deliver the grievance before referring the grievance to the Board under section 124 of the Act is not a mere technicality, but rather prevents the Board from dealing with the merits of the matter. See Arthur G. McKee of Canada Ltd., [1978] OLRB Rep. April 351 at 353 paragraphs 6 and 7.
Therefore, the issue before the Board is whether delivery of the grievance was effected on the respondent before the matter was referred to the Board under section 124 of the Act. Counsel for the respondent argued that the applicant did not establish in evidence that the grievance had been mailed to the respondent. He submitted that no one testified that it had been mailed. The only evidence was that Mr. Pedder instructed his secretary to mail it. Furthermore, counsel submitted that exhibit #2 refers to a grievance dated November 1, 1985 whereas the grievance that is the subject matter of this referral was actually dated October 31, 1985. He also referred to the omission in paragraph 6 of Form 104 as further evidence that the grievance had not been delivered to the respondent.
Mr. Pedder's evidence satisfies us that he instructed his secretary to mail the original of exhibit #1 to the respondent shortly after he signed both documents. The proof of delivery card, although referring to a grievance dated November 1, 1985. was returned by the post office and is evidence that something was mailed. The card was attached to the grievance form. We heard evidence that those cards are ordinarily attached to the documents to which they relate for filing when they are returned by the post office to the applicant.
We can therefore draw the inference that the original of exhibit
#1 was mailed to the respondent on or before November 4, 1985, the post mark that is on the proof of delivery card.
Section 113(1) of the Act provides:
'For the purposes of this Act and of any proceedings taken under it. any notice or communication sent through Her Majesty's mails shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail".
Therefore, since we are satisfied that the original of exhibit #1 was mailed to the respondent, we presume and therefore find that it was delivered in the ordinary course of mail, which, in our view, was well before February 21, 1986.
We rely on section 113(1) of the Act since the respondent has not proved to the contrary. Indeed, we note that the respondent called no evidence on this issue.
Therefore, the respondent's first preliminary objection is
dismissed.
[4]. After the Board delivered the above oral ruling, the Board heard further submissions with respect to a second preliminary objection to this matter made by counsel for the respondent. After hearing those submissions, the Board delivered the following oral ruling:
Counsel for the respondent submits that the Board ought to exercise a discretion to refuse to decide the merits of the grievance in this matter because the applicant has not gone through the grievance procedure in the collective agreement that the applicant alleges the respondent has violated. Counsel submits that the Board ought not to permit the respondent to be deprived of its right under section 44 of the Act and the collective agreement to have a say in the creation and composition of an arbitration board.
Counsel also submits that the delay in the referral to the Board after delivering the grievance to the respondent requires the applicant to explain the delay, and in the absence of an explanation, the Board should dismiss the grievance.
We do not agree. The Act is quite clear in permitting a party to refer a grievance to arbitration under section 124 of the Act after the grievance has been delivered, notwithstanding the grievance and arbitration procedures under the collective agreement. Even assuming the Board has the discretion that counsel for the respondent suggests that we have, it seems to us that section 124 of the Act creates a distinct process to resolve grievances in the construction industry.
We adopt the Board's approach set out in Lummus, [1976] OLRB Rep. Jan. 980, that was approved by the Divisional Court in Ontario Erectors Association v. International Union of Operating Engineers, Local 793, unreported, February 19, 1980, per Osler J., where Mr. Justice Osler stated for the court:
"A preliminary point was raised before the Board as to whether it had to consider the stage to which the grievance procedure had reached, and the fact that the procedure within the agreement itself had not been concluded. The Board dealt with this point in paragraph 4 of its reasons in the following succinct paragraph:
'In the Lummus case the Board held that the effect of section 1 12a [now t241 of the Act is to establish a dispute settling mechanism separate and apart from any grievance and arbitration procedure set out in a collective agreement. In reaching this decision the Board stated that it was compelled to the result by the 'clear and simple wording of the legislation.' The Board also noted that its decision reflected the underlying objective of the legislation of providing for a speedy process by which to resolve disputes arising out of the interpretation of the collective agreements negotiated in the construction industry. With respect to the instant case, we similarly find that even if the applicant did fail to follow the grievance procedure set out in the collective agreement, that fact itself would not be fatal to this referral. Before leaving this point, it should be noted that the representative of the applicant at the hearing disputed the contention that the grievance procedure set forth in the collective agreement had not been adhered to.'
The reference to the Lummus case is a reference to an earlier decision of the Board, cited as (1976) O.L.R.B. Reports, January, t980. We find nothing that can be objected to in that paragraph. It was a decision the Board was authorized to make. It reflects a common sense interpretation of the words of section 1 12a and if it were for us to decide we would agree with that interpretation. It was, however, one for the Board and one with which we cannot interfere."
As for the argument about delay, we find that it is not incumbent upon the applicant in this case, as a preliminary matter, to explain or justify the amount of time that elapsed between delivering the grievance to the respondent and referring it to arbitration before this Board. In our opinion, that argument may be raised by the respondent should the Board ultimately be required to determine what remedy is appropriate if a violation is made out.
For these reasons, the respondent's second preliminary
objection is hereby dismissed.
[5]. Following the Boards oral ruling, the Board began receiving submissions from counsel for the respondent with respect to the ability of any panel of the Ontario Labour Relations Board, including this panel, to deal with the matter before it on the grounds that the process violates both the common law and the Canadian Charter of Rights and Freedoms. That argument was not completed. During the course of argument, the parties and the Board agreed that counsel for the respondent could renew the argument from the beginning with respect to the challenge to the Board's ability to hear the matter at the next day of hearing.
[6]. The Board then entertained submissions from counsel for the respondent with respect to the scope of the grievance filed in this matter. While counsel for the respondent finished his argument in chief, the argument made by counsel for the applicant was not concluded by the end of the day. However, during the course of the argument, counsel for the applicant agreed to provide to counsel for the respondent further particulars with respect to alleged continuing violations of the agreement by the respondent by April 25, 1986. Counsel for the respondent undertook to advise counsel for the applicant and the Registrar of the Board not later than May the 9th, 1986 whether the respondent would agree to the additional particulars filed by the applicant to form part of this proceeding.
[7]. The Board hereby directs the Registrar to fix four more days of hearing before this panel of the Board in consultation with counsel for the parties.