Ontario Labour Relations Board

[1987] OLRB Rep. April 574

0717-86-M International Association of Bridge, Structural and Ornamental Iron Workers, Applicant v. The Electrical Power Systems Construction Association and Ontario Hydro, Respondents

BEFORE: Owen V. Gray, Vice-Chair, and Board Members I. M. Stamp and D. Patterson.

APPEARANCES: L. Steinberg and I. Phair for the applicant; D.K. Gray and I. Starasts for the res­pondents.

DECISION OF THE BOARD; April 6, 1987

1. Since May 1, 1978, the International Association of Bridge, Structural and Ornamental Iron Workers ("the union") and the Electrical Power Systems Construction Association ("EPS­CA") have been parties to a succession of two year collective agreements covering the employment of iron workers by members of EPSCA in the electrical power systems sector of the construction industry. On June 6, 1986, the union grieved that Ontario Hydro ("Hydro"), a member of EPSCA bound by each of the agreements, had since May 1, 1978 breached each of those agreements by failing to make direct payment of the correct amounts of pension, welfare and Ironworker Trade Improvement Plan ("TIP") contributions on behalf of those of its iron worker employees who were entitled to a "shift differential" with respect to their work on the second shift of two shift operations. That grievance has been referred to this Board for arbitration pursuant to section 124 of the Labour Relations Act ("the Act"). By agreement of the parties, the issues we are to arbi­trate also include the alleged failure of Hydro during the same period to deduct the correct amount of union dues from the earnings of ironworkers doing second shift work.

2. The issue is quite simple. In addition to payment of base rate wages to a covered employee, the relevant collective agreement provisions require each bound employer to make wel­fare, pension and TIP contributions on that employee's behalf directly to the relevant fund or trust. The amount of each contribution is a specified dollar and cent amount "per hour paid." Each employer must also deduct union dues from the wage payments it makes to each such employee and remit those dues to the appropriate local union. The dues deductions are also a specified number of cents "per hour paid." By contrast, at least one other provision of the collec­tive agreements requires the payment of an amount "per hour worked." The collective agreements all contain the following provision for shift differential:

SHIFT DIFFERENTIAL

Employees required to work shift work on the second shift of a two (2) shift operation shall receive a shift differential of time and one-seventh for normal scheduled shift hours worked.

Hydro has been paying workers one-seventh of their base rate wage in addition to their straight time wages for hours worked on scheduled second shifts. In calculating welfare, pension and TIP contributions (hereafter collectively referred to as "'per hour paid' benefits") and union dues deductions, however, Hydro has treated each hour worked on a scheduled second shift as one "hour paid." It has not applied the shift differential in calculating the amounts of "per hour paid" benefits or union dues deductions. The union says the intent and effect of the shift differential pro­vision was and is that workers on a scheduled second shift should receive eight hours' compensa­tion for every seven hours worked, so that all elements of compensation payable "per hour paid" should have the shift differential applied to them. The issue, then, is whether the "time and one-seventh" shift differential applies only to the base rate wages paid directly to the employee or also to those deductions and other items of compensation which are to be calculated on a "per hour paid" basis.

3. The June 6th grievance was filed after the parties' May 1, 1984 to April 30, 1986 collec­tive agreement had expired. The parties have since concluded a further collective agreement with effect from May 1,1986. The language of that agreement is, they tell us, identical to that of the previous agreement in all respects material to the issues at hand. The parties agree that we should determine those issues under both the most recently expired collective agreement and the current collective agreement. The union asks that we also deal with the alleged violation of all previous agreements, while Hydro takes the position that we have no jurisdiction to arbitrate a grievance with respect to the alleged violation of any agreement prior to the most recently expired one. If we find in the union's favour with respect to the meaning of the provisions in question, the parties agree we should determine the period of time, if any, for which damages are payable and retain jurisdiction to determine the actual amount of those damages if the parties are thereafter unable to resolve that question themselves.

The Meaning of the Provisions In Question

4. Evidence led by Hydro establishes that it has never applied the shift differential to "per hour paid" benefits or union dues deductions at any time in the period since 1978 during which it has been covered by EPSCA's agreements with the union, nor in the two prior years during which Hydro had a direct collective agreement with the union containing a similar shift differential clause. The difference between Hydro's practice and the union's view of Hydro's obligations under the succession of collective agreements in question only became apparent during the negotiation of the now current collective agreement when, in a discussion of shift differential for third shifts, a Hydro participant denied a union participant's statement that the shift differential for second shift hours was being applied by Hydro to its welfare and pension contributions. There is no evidence that either Hydro or the union was aware of the differences in their respective views before then. There is no evidence that the union knew Hydro was not applying the shift differential to calcula­tion of 'per hour paid' benefits payments and union dues deductions, nor that any specific behavior of Hydro's would have led the union to believe that it was doing so.

5. The union officials who testified say the union never suspected there was a problem because it knew other members of EPSCA applied the shift differential in calculating "per hour paid" benefit contributions and union dues deductions, and it assumed Hydro did too. Neither Hydro nor EPSCA challenged these assertions about the practice of other EPSCA members. Counsel for EPSCA led no evidence with respect to any other EPSCA member's practice or understanding of the meaning of the collective agreement.

6. Counsel for the union sought to introduce evidence about the negotiations which led to its 1978 agreement with EPSCA. He said the evidence of the union's spokesperson in those negoti­ations would show that the issue now before us was discussed and resolved in the union's favour at that time. Counsel for EPSCA and Hydro objected, chiefly because the evidence was unexpected and there was a concern that the corresponding EPSCA spokesperson might be unavailable. We ruled that we would hear the union's evidence and make whatever accommodations of the respon­dents might be required by way of adjournment. As matters developed, the respondents were able to address the subject of the negotiations for the 1978 agreement through the evidence of Hydro's current Director of Staff Relations, who had been a Senior Construction Labour Relations Officer for Hydro and Secretary Treasurer of EPSCA at the time.

7. The evidence of the applicant and the respondents established that the notion of giving second shift workers eight hours' pay for seven hours' work predated the union's negotiations with EPSCA and originated in its agreements with Ontario Erectors Association ("the OEA"), under which workers on a second shift worked seven hours per shift but were paid as though they had worked 8 hours at straight time. The shift differential article took on its present form in the union's earlier agreement with Hydro because Hydro wanted eight hours' work performed on each second shift, not seven. The resulting language carried over into the first and subsequent EPSCA agree­ments. The union's negotiations with EPSCA began after OEA members working in the electrical power systems sector joined EPSCA. Each party's witness to the first EPSCA/Ironworker negotia­tions agreed there was general discussion about the union's wish to have practices in its agreements with the OBA carry over into the agreement with EPSCA. The union's witness testified without contradiction that the practice at the time was that OEA members applied both the shift differen­tial and the overtime rate to calculation of "per hour paid" benefits. There is no evidence that the existing OBA practice with respect to the shift differential was expressly mentioned during negoti­ations. Hydro's witness acknowledged that the application of the overtime rate to "per hour paid" benefits was specifically discussed, and that he understood this would be done under the agreement EPSCA made with the union, in conformity with the practice under the union's agreement with the OEA. The overtime provision in the resulting collective agreement, and in each collective agree­ment thereafter, reads, in part, as follows:

OVERTIME RATES

Overtime shall be paid at two (2) times the basic rate for all work performed outside of normal hours

Hydro's witness does not remember specifically discussing application of the shift differential to benefits. He states he would remember if it had been discussed. The union's witness says the union assumed that the overtime and shift premiums would be treated the same. That is not inconsistent with the fact, as we find, that the application of the shift differential to calculation of benefits was not specifically discussed during those negotiations. Indeed, there is no evidence it was specifically discussed at any time before the occasion identified in paragraph 4 of this decision.

8. Counsel for Hydro concedes that effect must be given to the distinction in the collective agreement language between "hours worked" and "hours paid", which implied contemplates that there can be "hours paid" which are not "hours worked." He would have us read "hours paid" as "hours paid for", a method of interpretation adopted in Re Leisure World Nursing Homes Ltd. (1983), 1988 CanLII 9229 (ON LA), 12 L.A.C. (3d) 345 (Langille). He would have us conclude that the shift differential article establishes only a premium base wage rate for second shift hours and that the only "hours paid for" at this rate are the hours actually worked.

9. The collective agreement in question in Re Leisure World Nursing Homes Ltd., supra, provided that part-time employees of the employer nursing home were entitled to 40 cents "per hour paid in addition to their regular hourly rate" in lieu of benefits of the sort received by full-lime employees. The grievor was a part-time employee who had been required to work an eight hour shift on a statutory holiday and "otherwise met the qualifications for holiday pay as set out in the agreement." The award noted the parties' agreement that the grievor was entitled to the holi­day pay which would have been payable had the employee not worked on the holiday, plus pay­ment "at a premium rate" for actually working on the holiday. The award describes the premium rate as "one and a half times the regular rate." The union argued this meant the grievor should be paid as though she had worked 12 hours. The employer argued that an employee who is required to work eight hours on a statutory holiday "is still being paid for only eight hours, but merely at a premium rate of one and a half times the regular rate."

At page 348 of the report of the award, the arbitration board concluded that:

The key words here, in our view, are per hours [sic] paid. Thus, for example, an employee who does not work on a statutory holiday, but who qualifies for eight hours' holiday pay, is entitled to be paid for eight hours and is in fact paid on that basis. Thus, the employee is entitled to 40¢ for each of these eight hours paid, but not worked. Second, an employee who works the statutory holiday is entitled to be paid for eight hours for not working, and also to be paid for eight hours worked. The eight hours worked are paid for at a premium rate, but there are still only eight hours paid for, and thus, the additional entitlement under art. 7.01 is 8 x 40g. While the employee might receive the equivalent of 12 hours' pay, the employee is paid for eight hours (at a premium rate).

The language of the provision by which employees were entitled to "a premium rate" for the hours actually worked on a holiday is not reproduced in the award. If the provision was as the award says -- that workers would be paid a premium of "one and a half times the regular rate" (emphasis add­ed) -- we would have thought the same result could have been arrived at more simply. As the col­lective agreement described the 40 cents "per hour paid" as something to which an employee was entitled to "in addition to their regular hourly rate" and the premium payable was "one and a half times the regular rate", the premium would not apply to the 40 cents payment because it was some­thing "in addition to", and therefore distinct from, "the regular [hourly] rate."

10. While it led to a defensible result in Re Leisure World Nursing Homes Ltd., supra, we do not find the substitution of "hours paid for" for "hours paid" particularly helpful in determining the question before us. From an economic point of view, every amount paid by an employer to or for the benefit of an employee is somehow referable to the fact that the employee actually works or has worked for the employer. From that perspective, the only hours paid for are hours worked, and the careful distinction in the collective agreement between "hours paid" and "hours worked" becomes meaningless if the words "hours paid" are taken to mean "hours paid for". Moreover, the exercise of identifying the hours paid for will not necessarily be determinative of how those hours are to be paid for. Some hours worked attract more compensation than others. It may be that such hours of work are to be paid for by crediting the employee for compensation purposes both with the hours actually worked and with hours not actually worked. It may be that such hours of work are to be paid for by paying a premium or multiple of the compensation payable for other hours. A distinction between extra compensation in the form of a "premium rate" and extra com­pensation in the form of a credit of hours not worked but to be paid for is significant only if the premium rate is applied just to the base rate wage portion of the total "per hour paid" compensa­tion package. Whether that is so must depend on the language used to describe the premium, and that brings us back to the language by which these parties have agreed that their respective mem­bers' rights and obligations would be determined.

11. In their collective agreements, the parties describe the shift differential in question here as "time and one-seventh." The extra compensation for working hours on a second shift is expressed in terms of time, not as a special wage rate and certainly not as a rate applicable only to a portion of the total wage package. Having regard to the language used to describe it, we con­clude that the "time and one-seventh" premium must apply to all amounts calculable on a "per hour paid" basis, not just to the "base rate" wage portion of the compensation package.

12. We are reinforced in this view by a combination of several contextual factors. There is the historic origin of the shift differential article in the requirement under other contracts (with contractors who are now members of EPSCA) of eight hours' pay for seven hours' work. There are the content and structure of the "wage schedules" to and other provisions of the collective agree­ments, which implicitly treat the base rate and the "per hour paid" benefits as elements of one total "wage" package. Indeed, such treatment is explicit in Article 16.5 (first introduced in the 1984-86 agreement), by which the parties agree that employers will implement any changes in wel­fare or pension plan contribution amounts of which the union gives EPSCA notice, subject to the proviso that "... Should the welfare or pension plan contributions change during the term of this Agreement then an adjustment shall be made to the base rate. The total wage package will not be changed." Finally, there is the answer the parties came to when the applicability of the overtime premium to calculation of "per hour paid" benefits was explicitly discussed in 1978: the words "Overtime shall be paid at two (2) times the basic rate for all work performed outside of normal hours" (emphasis added) were then understood to mean and thereafter treated as meaning that workers would receive double the base rate wage and double the "per hour paid" benefits for each hour worked on overtime. In other words, "per hour paid" benefits were part of the "basic rate" to which the overtime premium applied.

13. Having concluded that the union's interpretation is the correct one, we turn to the question of remedy. The union asks that the remedy cover all breaches since May 1978. Hydro argues that the remedy should be prospective only.

Remedial Jurisdiction with Respect to Prior Agreements

14. Hydro argues that we have no jurisdiction to remedy a breach of any collective agreement prior to the one which had just expired when this grievance was referred to us, relying on the award of a board of arbitration in Re Goodyear Canada Inc. (1980), 1980 CanLII 3971 (ON LA), 28 L.A.C. (2d) 196 (M.G. Picher). That award accepted the correctness of this Board's conclusion in Genstar Chemical Limited, [1978] OLRB Rep. Sept. 835 (at paragraph 8) that:

While the time of filing is a factor which may be taken into account by a board of arbitration - in deciding whether to arbitrate a grievance which is not filed within the time limits specified in the grievance procedure - it cannot preclude the establishment of an arbitration board to deal with a grievance arising during the term of a collective agreement.

The award went on to hold that a board of arbitration can have no jurisdiction beyond the collective agreement under which it is constituted; accordingly, a board constituted under a particular collective agreement to deal with an alleged continuing breach of identical provisions of that and earlier collective agreements could only grant a remedy with respect to the period of the collective agreement under which it had been appointed. The award also noted, however, that an arbitration Board would have jurisdiction with respect to the earlier collective agreements if it were also appointed under or in respect of those agreements by the parties or by the Minister of Labour under what is now section 44 of the Act.

15. We do not derive our jurisdiction from an appointment, either by the parties or by the Minister. Our jurisdiction comes from section 124 of the Act, subsection (3) of which gives this Board "exclusive jurisdiction to hear and determine the difference or allegation raised in the griev­ance referred to it" under subsection (1), which provides:

124.-(l) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agree­ment between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.

A grievance referred to the Board under section 124 may relate to the alleged violation of a collec­tive agreement which has expired by the time the referral is made: Misco Insulation Company Limited, [1982] OLRB Rep. Sept. 1343. This Board does not require that there be a separate grievance and referral with respect to each of several distinct breaches of one agreement, nor does it require that separate grievances and referrals be filed with respect to the different collective agreements under which a continuing breach has allegedly occurred. The grievance before us ade­quately identifies the collective agreements under which the union alleges a breach and requests a remedy. Subject to any limitation which the collective agreements themselves may impose (and to the provisions of the Limitations Act, if applicable), we are satisfied we have jurisdiction to enter­tain the grievance with respect to the entire period to which it relates under all of the collective agreements to which it refers: see Sinclair Welding Limited, [1981] OLRB Rep. March 343. (For a similar conclusion with respect to another statutory grievance arbitration tribunal see Re Ontario Public Service Employees Union and The Queen et al. (1985) 1985 CanLII 2245 (ON HCJ), 51 OR. (2d) 474, 20 D.L.R. (4th) 281 (Ont. Div. Ct.).)

Effect of Contractual Time Limit for Delivery of Grievance

16. Counsel for the respondent also argues that the collective agreements themselves restrict our remedial authority, having regard to the emphasized portions of the following extracts from "Grievance Procedure" article of the 1984-86 agreement:

34.1 Grievances within the meaning of the grievance and arbitration procedure shall con­sist only of disputes about the interpretation or application of particular clauses of this Agreement and about alleged violations of this Agreement.... In the interests of expe­diting the procedures, the parties shall process grievances in the following manner:

34.2 PRELIMINARY DISCUSSION

Disputes arising out of the interpretation or alleged violation of this Agreement shall, if possible, be settled by discussion between the employee and/or his steward and the employee's supervisor.

34.3 FIRST STEP

If a dispute cannot be resolved by this method, the Accredited Union Representative for the Union may file a formal grievance on the prescribed form with the Manager of Construction or the Manager of Lines and Stations Construction. Such grievance shall be filed within fifteen (15) working days of the alleged grievous act.

34.6 TIME LIMITS

The time limits as to both documents and procedure set out in the above Sections shall be complied with by the parties to this Agreement provided, however, that the parties may mutually agree in writing in respect to an extension or waiver of any of the time limits imposed. Where no answer is given within the time limits specified in the grievance procedure, the employee concerned, the Union or EPSCA shall be entitled to submit the grievance to the next step of the grievance procedure. Any griev­ance not processed within the time limits specified in the grievance procedure shall be deemed to have been settled and ineligible for arbitration.

[emphasis added]

Counsel for the respondents submits that unless we exercise our discretion under subsection 44(6) of the Act to extend the specified time limit, we have no jurisdiction to grant a remedy with respect to any alleged grievous act which occurred more than 15 working days before the delivery of Hydro of the written grievance now before us, citing St. Joseph's Health Centre Toronto et al. v. Ontario Nurses Association (Ont. Div. Ct., decision dated July 2, 1985, unreported).

17. Counsel for the union argues that the time limits specified in the grievance procedure article, including those relied upon by the respondents, are inapplicable to the proceedings before us, having regard to the opening words of subsection 124(1) and this Board's decisions in Lummus Company of Canada Limited, [1976] OLRB Rep. Jan. 980 and J.H. Lock & Sons Limited, [1986] OLRB Rep. June 731.

18. The argument dealt with in Lummus Company of Canada Limited was that arbitration under section 124 was an alternative to any arbitration procedure provided for (or deemed by sec­tion 44 of the Act to be provided for) in the collective agreement, and that a referral to arbitration would not be timely unless and until any pre-arbitration grievance procedure provided for in the collective agreement had first been followed in a timely fashion and exhausted. The decision does not disclose whether the timeliness problem in the case before it had to do with failure to deliver a written grievance within a time period stipulated by the relevant collective agreement or with a failure to go through the series of meetings normally contemplated by a grievance procedure. The only reference to the parties' collective agreement appears in the second of the following two para­graphs of the decision (which confirmed an earlier ruling of December 31, 1975):

6. The Board in its decision dated December 31, 1975 indicated 'that the plain intent of section 112(a) of the Act [now 124] of the Act is to establish a dispute settling mechanism separate and apart from any grievance and arbitration procedure provided under the terms of the subsisting collective agreement ...". In making this ruling we were compelled by the clear and simple wording of the Legislation. Furthermore our ruling purports to reflect the underlying objective of the Legislation in providing a speedy process for resolving disputes arising out of the interpre­tation of collective agreements negotiated in the construction industry. The statements and find­ings of "The Waisberg Report" confirm this particular perspective of the purpose of the enact­ment, (Volume I at p. 340):

"Arbitration

Both labour and management complained that current grievance and arbitration pro­cedures are not suitable for the construction industry. There is obviously something wrong when we find that in Ontario the construction industry, which employs about 7 percent of the total work force, generates only about I per cent of the arbitrations. The latter figure is based on the study of arbitration awards filed with the Labour, Management Arbitration Commission of the Department of Labour, between 1 Sep­tember 1971 and 1 September 1973. The unions, apparently frustrated by the slowness and expense of the arbitration procedures, have resorted to the use of wildcat strikes and work stoppages. Matters have now reached the stage where mere threats of such activities are sufficient. Decisions are reached on the basis of expedience."

[emphasis added]

7. We are therefore of the opinion that adoption of the respondent's interpretation of section 112(a) would operate to defeat the purpose of the Legislation. For example, the grievance pro­cedure if pursued under the terms of the existing collective agreement between the parties could consume approximately 21 days before exhausted. (See; Articles 24.6 and 24.7). At that time, according to the respondents, the grievor, in the event the dispute is not resolved, may elect to proceed to arbitration under the terms of the collective agreement or file a reference under sec­tion 112(a). If a reference is filed the Board is obliged to hold a hearing fourteen days after receipt thereof. In other words approximately thirty-five days may elapse before the complaint giving rise to the dispute may be heard. On the other hand in adopting the applicant's approach to the Legislation, so long as the other party has received a copy of the written grievance, we arc of the view that the matter may be heard and perhaps resolved within thirty-five days.

19. The following passage from the Lummus decision does refer in the abstract to the prob­lem of untimely delivery of a grievance:

8. What then is the purpose of incorporating section 37(5a) [now 44(6)] as part of the plenary powers of the Board under section 112(a)(3) [now 124(3)] of the Act? In resolving this question the Board has considered with some concern the respondent's submissions with respect to unwarranted delays that may be committed by a grievor in the delivery of its grievance to the other party. The Board is satisfied that the Legislation contemplates the filing of a reference immediately after delivery of the grievance to the other party or at any stage of the grievance procedure if pursued under the terms of the agreement. We do consider it unfortunate that there is no obligation on the complainant to endeavour to effect a settlement of a dispute prior to launching formal proceedings. Nonetheless we are satisfied the Legislation anticipates that the settlement processes may voluntarily transpire thereafter for a period of fourteen days and with the aid of a Labour Relations Officer. We do not hold it consistent with the aims of the Legislation, however, that a grievor may malinger with impunity in bringing its dispute to a resolve. In our opinion, the Board would be duty bound to require a grievor to provide a rea­sonable explanation for any delay in the processing of a grievance before us. In the absence of such explanation and having regard to the prejudice that may have been caused the other party to the dispute, the Board may exercise like powers in disposing of the grievance as an arbitrator under the regular provisions of the Act. What the Board considers a reasonable explanation will obviously depend on the facts and circumstances of the case. One explanation that would most likely find favour with us are delays occasioned by sincere and bonafide attempts to resolve the dispute prior to initiating proceedings under the Act. We anticipate that a grievor seeking relief under section 112(a) [now 124] will conduct itself with dispatch in attempting to resolve its com­plaint. In the event it delays in initiating a grievance or permits a time limit to expire under the grievance procedure contained in a collective agreement once pursued, the Board, in the absence of a reasonable explanation, may take appropriate measures that best suits [sic] the cir­cumstances. This in the last analysis is how the Board conceives its powers with respect to sec­tion 37(5a) [now 44(6)] of the Act.

On a careful reading, it is not at all clear from this passage that the Board in Lummus thought a time limit for delivery of a written grievance (as opposed to a requirement that something be done after delivery and before a reference to arbitration) was rendered nugatory by the opening words of what is now subsection 124(1) of the Act. It is hard to understand why the panel would ulti­mately have answered its own concern about delays in delivery of a written grievance with a ref­erence to its powers under what is now subsection 44(6) of the Act if it thought the opening words of subsection 124(1) eliminated any contractual time limit for the delivery of a written grievance on which powers under subsection 44(6) could be brought to bear.

20. In J. H. Lock & Sons Limited, supra, the Board did have before it a preliminary argu­ment that the grievance referred to it under section 124 was not arbitrable because the grievor had not informed the employer and the union "within 5 days of the violation" as required by the collec­tive agreement. The panel there said:

[W]e note that in Lummus Company Canada Limited and The Ontario Erectors Association, [1976] OLRB Rep. Jan. 980, the Board held that section 124 permits the applicant to refer a grievance to the Board regardless of any provisions in the collective agreement: "the plain intent of section [124] of the Act is to establish a dispute settling mechanism separate and apart from any grievance and arbitration procedure provided under the terms of the subsisting collec­tive agreement On this view, section 44(6) of the Act, which permits the Board to "extend the time for the taking of any step in the grievance procedure under a collective agreement" if it is satisfied that "there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension", and which is incorporated into section 124 of the Act, relates to the timeliness of the filing of a reference after delivery to the other party 'or at any stage of the grievance procedure if pursued under the terms of the agreement'. Here the union has chosen the alternate statutory route and there has been no delay between delivery to the respondent and filing of the grievance. This approach to the effect of section 124 was approved by the Ontario Divisional Court in The Ontario Erectors Association and Sheafer-Townsend Limited v. International Union of Operating Engineers, Local 793, (unreport­ed), dated February 19, 1980. However, even if section 44(6) were intended to refer only to the terms of the collective agreement and the applicant is required to conform to those terms (that is that section 124 provides a supplementary, not alternative, method of grievance resolution). upon consideration of all the material before us, including submissions of the parties, and in par­ticular taking into account the nature of the case, we are satisfied that there are reasonable grounds for extending the time period in section 27:01 of the collective agreement and that this is a proper case for so doing. In any case, since in our view the timing of the violation, if a viola­tion has occurred, is best determined on the evidence adduced on the merits of the case, since the applicant's theory of the case is that Sumka has been subject to dismissal by not being recalled as he had previously been according to the employer's past practice, we would be most reluctant to dismiss the case on preliminary objection on the basis of delay. For all the above reasons, we are not prepared to dismiss the matter at this stage of the proceedings.

It appears that the panel's reference to the effect of section 124 on a contractual time limit for delivery of a grievance was obiter dicta, since it notes that it would not give effect to the employer's timeliness argument as a preliminary matter because the time at which the alleged violation had occurred (and, hence, the factual premise of the preliminary objection) was a matter of then unre­solved dispute.

21. The timeliness issue dealt with by the Board in the decision under review by the Ontario Divisional Court in The Ontario Erectors Association and Sheafer-Townsend Limited v. Interna­tional Union of Operating Engineers, Local 793 (1980), 2 A.C.W.S. (2d) 307, concerned an alleged failure of the grievor union to comply with a collective agreement requirement that there be a sec­ond step meeting of representatives of the union and the employer to discuss a grievance before the grievance could be referred to arbitration. It was in that context that Mr. Justice Osler said this:

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 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 of 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, 1980. 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 112a 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.

The Court's approval was of the reasoning in the paragraph it quoted in the context of issues raised the case then at hand. The Court's decision does not address the proposition that section 124 relieves a grievor from agreed upon consequences of failure to comply with a contractual time limit f r delivery of a written grievance.

22. Having regard to the expedition which section 124 was intended to impose on the griev­ance and arbitration processes in the construction industry and on the parties to those processes, ye are satisfied that the analysis in paragraphs 6 and 7 of the Lummus decision fully support the proposition that the opening words of subsection 124(1) relieve the referring party from compli­ance with any collective agreement requirement that steps be taken after the delivery of the written 8rievance before there can be a referral to arbitration. We are not satisfied, however, that either the need for expedition or the analysis in paragraphs 6 and 7 of Lummus support the proposition that the opening words of subsection 124(1) should be taken to relieve the referring party from the consequences of non-compliance with an agreed time limit for the delivery of a written grievance. There is no inconsistency between a collective agreement's requirement that a written grievance be delivered before its subject matter can be referred to arbitration and the express requirement of subsection 124(2) to the very same effect. There is no inconsistency between the concern for expe­dition reflected in section 124 and the enforcement of the parties' own standards for expedition in delivering a written grievance. We conclude that the opening words of subsection 124(1) do not render a contractual time limit for the initial delivery of a grievance nugatory when the grievance is referred to this Board for arbitration under section 124. If the decision in Lummus holds other­wise, we respectfully decline to follow it.

23. The grievance with which we are concerned here involved the repetitive commission of particular breaches of the subject collective agreements. This is often described as a "continuing breach." It is well established that a party's failure to grieve earlier instances of a "continuing breach" by the other within the time limit specified by their collective agreement will not itself ren­der later repetitions inarbitrable. If the time limit is "mandatory", however, only those repetitions which occurred within the specified time prior to filing of the grievance can be the subject of redress: see Goodyear Canada Inc., supra, at p. 203. By virtue of subsections 124(3) and 44(6) of the Act, this Board has the power to extend the time limit in Article 34.3 and its predecessors, unless the collective agreements in question expressly state that subsection 44(6) does not apply. None of them does.

Extension of Time Limit Under Subsection 44(6)

24. Counsel for the union argues that if the collective agreement time limits would other­wise limit our remedial jurisdiction, as we have concluded they would, we should exercise our power under subsection 44(6) and extend the time limit because the union did not know of the "grievous acts" until shortly before the grievance was filed. It asks that we so extend the time limit in each of the agreements with respect to each of the breaches thereunder as to permit full recovery of all underpayments since May 1, 1978.

25. Counsel for the respondents argues that it is inconceivable that the union did not know how Hydro was calculating "per hour paid" benefit contributions and union dues deductions. He invites us to conclude that the union did know or was "wilfully blind", to deny any extension of time limits and to hold that the union is now estopped from asserting this claim.

26. Consideration of the argument that the union must have known or was wilfully blind must focus on the documentation generated by Hydro when it made its payments. Hydro's pay­ments to workers covered by the relevant agreements are accompanied by a statement in the form of a pay stub. Pay stubs currently in use by Hydro have on them an area marked "Paid Hours." A second shift worker who works 38 hours (a standard work week) will find 38 hours in the "Paid Hours" area (just as a first shift worker would) plus an entry in another area of the stub reflecting the extra wage paid to the worker for second shift work. By way of contrast, any worker who works overtime would find an amount equal to his regular hours plus two times his overtime hours in the "Paid Hours" area of his pay stub. A worker's pay stub does not show the number of second shift hours worked in the pay period (although this could be calculated from the separate shift dif­ferential payment), nor does it show the amounts of Hydro's direct contribution payments on the worker's behalf to the Ironworkers Central Welfare fund, the Ironworkers Ontario Pension Fund and the Ironworkers Trade Improvement Plan. It does show the amount deducted for dues remit­ted to the relevant local union. A second shift worker aware of the union's position that the shift premium is to be applied to union dues deductions could have ascertained, by using a calculator and referring to the collective agreement, that the union dues deduction shown on his pay stub was less than expected by an amount which might be as much as one-fifth of one percent of his gross pay. There is no evidence that any worker ever performed this analysis. We think it very unlikely that any rank and file worker or shop steward ever did perform such a calculation. The argument that the union was on notice because on each second shift there would have been a shop steward who received such pay stubs does not persuade us that the union either knew or was wilfully blind to the fact that Hydro was not applying the shift differential to its calculation of union dues deduc­tions.

27. Hydro's payments to the Ironworkers Central Welfare Fund, the Ironworkers Ontario Pension Fund, the Ironworkers Trade Improvement Plan and the local unions are each accompa­nied by documentation which identifies the workers on whose behalf payments are being made and the amounts of those payments. Dues documentation lists worker names and dues amounts, but does not show how the dues were calculated. Documentation accompanying welfare and pension contributions shows numbers of "Worked Hours" and "Paid Hours" and a dollar amount opposite each worker's name, but does not indicate how "Paid Hours" were calculated. None of the docu­mentation supplied by Hydro with any of its payments shows which workers (if any) were entitled to a shift differential (or an overtime rate) at any time during the period covered by the accompa­nying payment. Neither the worker nor any one of the recipients of "per hours paid" benefit pay­ments made on the worker's behalf could know from application of his personal knowledge to the documentation he received from Hydro whether a shift differential has been applied by Hydro in calculating those payments. The local union would not have known from the documentation it received from Hydro whether the amounts of dues remitted to it had been calculated in accordance with its understanding of the effect of the shift differential article.

28. The collective agreement speaks to the information which an employer must include in a statement accompanying each payment of wages to employees covered by the agreement. The relevant provision does not require that the statement show the amounts of "per hour paid" bene­fit contributions made on the employee's behalf. The collective agreement does not expressly require that any information accompany "per hour paid" benefit or union dues payments. By way of contrast, the provision requiring member employers to make contributions to the Electrical Power Systems Construction Association Fund expressly stipulates that those remittances are to be "in accordance with the standard form of remittance supplied by EPSCA." There is no suggestion that the information which accompanied Hydro's "per hour paid" benefit and union dues pay­ments in any way failed to satisfy any express or implied requirement of any of the collective agree­ments, nor that Hydro has ever been asked for and refused to supply any additional information about those payments. We have no reason to suppose that a request for such information would not have been promptly honoured by Hydro.

29. A local union could have discovered the discrepancy with respect to dues deductions if it had gathered up pay stubs from a sample of members, including second shift workers, made its own calculations of the dues which ought to have deducted with respect to those workers having regard to the number of regular, second shift and overtime hours indicated by the stubs and com­pared the results of its calculation with Hydro's figures. If the various plan administrators had done something similar, they too could have detected the discrepancy with respect to the payments to them on behalf of workers entitled to the second shift differential. There is no evidence that any­one ever performed or attempted to perform an audit of this sort. There is no evidence that Hydro ever reviewed its payroll practices with the union or that the union ever requested such a review. There is no evidence that the union ever asked Hydro how it calculated "per hour paid" benefit contributions or union dues deductions for second shift workers at any time before the discussion mentioned in paragraph 4 above.

30. We do not conclude that the union knew how Hydro was making its calculations. While it seems to have been indifferent both to the possibility that Hydro did not share its interpretation of the collective agreements and to the possibility that Hydro was miscalculating the amounts it was required to pay, we cannot say the union hid from facts which would or should have made it aware of the situation. We would not describe the union as having been "wilfully blind." Whether or not "wilful blindness" or even actual knowledge would be sufficient, without more, to give rise to an estoppel, the doctrine of estoppel on which the respondents sought to rely does not bear application in these circumstances.

31. Counsel for the respondents argued that we ought to deny any remedy with respect to past breaches because of the union's delays in grieving them even if the union did not know of the breaches. In that regard, he relied on the following extracts from the award of Professor Laskin (as he then was) in Re Canadian General Electric Co. (1952), 3 L.A.C. 980 at pp. 982-983:

Is there, then, any basis on which a grievance can justly be declared "stale" or "out of time", and thus subject to rejection without consideration of its merits? And if there is such a basis of rejection, is this case within its limits? In considering the problem it is safe to start with the proposition abstract though it may be, that grievance about an alleged violation of a Collective Agreement should be brought within a reasonable time after the alleged violation has occurred. It should make no difference to the application of this proposition that the grievors were una­ware that they had a right to complain, unless they were in some way misled by the Company. A Collective Agreement is binding on the Union and employees as well as on the employer, and it is a chief function of a Union as a Collective Bargaining Agent for employees to be zealous in asserting rights of employees under a Collective Agreement. Absent bad faith on the part of the employer, a Union which misconceived its rights or those of employees and thereby fails to press them, should not be permitted to make a retroactive claim to re-open, after the lapse of a reasonable time, transaction which have been completed, as, for example, cases of piece-work jobs for which payment has been made and accepted without expression of dissatisfaction.

.The efficient and expeditious conduct of labour relations or, what is much the same thing, the proper administration of a Collective Agreement, requires mutual recognition by the parties of a principle of repose as to all claims under the Agreement not asserted within a reasonable time and involving matters which have, to all outward appearances, been satisfactorily settled between the parties. Unless some such policy is admitted, then, having regard to continuing nature of Collective Agreements there is wide scope for harassing activities by each party with consequent danger of damage to represent relations by dragging up ghosts from the past.

It is apparent from the context in which these remarks were made that the unawareness referred to in the first paragraph of these extracts was not unawareness of the facts which constituted the alleged breach of a collective agreement but, rather, unawareness of a right to complain about facts which were known to the grievors. Concerns of the sort expressed in these extracts are con­cerns which have been met by the adaptation to grievance arbitration of the equitable doctrine of laches. While it may be debated whether it is necessary for the application of that doctrine to find that the grievors have been aware for some time of their right to complain and not just of the facts on which a complaint could be made (compare Re Parking Authority of Toronto (1974), 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2d) 150 (Adell) at p. 158), there can be no question that the grievors must at least be fixed with knowledge of the facts themselves before the conventional doctrine of laches can apply: Re Interna­tional Nickel Company of Canada, L.A.N. September, 1975 (Simmons). It does not appear to us that the doctrine of laches can apply to the case before us.

32. The issue at hand is whether and to what extent we should exercise our power under section 44(6) to extend the collective agreement time limit for delivery of a written grievance with respect to some or all of the breaches which occurred more than 15 working days prior to the actual filing of the grievance now before us or, to put it another way, to determine the period prior to that filing in respect of which a remedy will be granted. Counsel referred in argument to several awards dealing with the exercise of discretion under subsection 44(6). None involved a failure to meet a collective agreement time limit by a grievor who did not know about the subject matter of the grievance within the time limit. None dealt with the extension of a collective agreement time limit beyond the term of the collective agreement under which the act omission complained of was alleged to have occurred. (This question could have been but was not raised by the parties in Sinclair Welding Limited, [1981] OLRB Rep. Dec. 1822). Certainly, none of the awards dealt with a proposed extension under subsection 44(6) which was greater in length than the full term of a col­lective agreement.

33. We note that the grievance procedure provisions we have quoted in paragraph 16 seem premised on an assumption that a "grievous act" can become the subject of a "dispute" immedi­ately upon its occurring. That will be true of the sorts of things one ordinarily thinks of as becom­ing the subject of a grievance. It will not be so, however, if the occurrence of the grievous act is something about which the injured party does not learn, and could not reasonably be expected to learn, when it occurs or within a relatively short time thereafter. If a grievor did not know and could not reasonably be expected to have known of the grievous act within the specified time limit, that is a perfectly reasonably ground for extension of that time limit, subject only to the question whether doing so will cause substantial prejudice to the opposite party. In this case, the union's delay in responding to Hydro's long failure to apply the shift differential in calculating "per hour paid" benefits payments and union dues deductions resulted from the union's lack of actual knowl­edge of that failure. We are satisfied that the period which a remedy ought to cover in these cir­cumstances should extend farther back than 15 working days from the day the written grievance was delivered. The more difficult question is: how far back should the remedy reach? Is the lack of prior knowledge of the factual basis for the grievance, which obviates application of conventional doctrines of estoppel and laches, a complete answer to any proposition that the circumstances war­rant a limit on the period for which recovery is permitted? We think not.

34. Bargaining for a collective agreement involves, among other things, identification of the issues of concern to each party and assessing their relative importance to that party. Some concerns are resolved or abandoned relatively quickly. Other concerns are given more attention. The exi­gencies of the real world force both parties to separate the wheat from the chaff. This dynamic of the bargaining process extends into the administration of the collective agreement which results from it. The grievance process is used to distinguish the important from the unimportant. Disputes about some matters are settled or abandoned early in the process; indeed, some potential disputes may be of so little concern that they do not even become the subject of a grievance. Matters of greater concern receive more attention and are more likely to become the subject of a rights dis­pute at arbitration if not settled. It is up to each party to determine at first instance what weight it wishes to attach to any given issue. Its perception of the other party's view of the significance of that issue will be relevant to that determination. As a result, each party relies on the other's state­ments and behaviour with respect to an issue in making its own decisions and playing its own part in the collective bargaining relationship.

35. In this collective bargaining context, there is an understandable sense of unfairness to one party if the other behaves as though something which happened at an earlier time should be treated as a matter of great concern when, by its own words and conduct at that earlier time, that party had appeared unconcerned about the matter. It is in response to that underlying labour rela­tions rationale, and not from a desire to emulate courts and their treatment of commercial con­tracts, that the doctrines of laches and estoppel have been imported into the arbitration of disputes arising under collective agreements. While the conventional doctrine of laches may be limited in application to circumstances in which a claimant delays in asserting or pursuing a claim after learn­ing of the circumstances which give rise to it, the underlying labour relations rationale has a greater scope. Even if a party did not know of the facts on which its claim is now based at the time they arose, and so may not be said to have behaved as though those facts were of no concern to it at the time, it may be unfair to permit the party to pursue that claim if, at the time those facts occurred, it acted indifferently about the rights on which its claim is now based.

36. The right in question here is the right to have the "time and one-seventh" second shift differential applied in calculation of "per hour paid" benefit contributions and dues deductions with respect to second shift. The union assumed that this right could be implied from the contract language to which it and EPSCA had agreed, and we have found that they were right in that assumption. Nevertheless, the union did not treat the calculation of "per hour paid" benefits or union dues deductions for second shift workers as a matter of sufficient importance to warrant dis­cussion or clarification at the bargaining table when the subject collective agreements were negoti­ated or at any time during the administration of those contracts. It did not require or request that sufficient information be supplied by Hydro with its payments so that Hydro's calculations of "Paid hours" could be checked. It made no effort in over eight years to verify that Hydro's methods of calculation corresponded with its understanding of the requirements of the collective agreements. It did nothing to put Hydro on notice of its understanding of those requirements. We do not sug­gest that the union had a duty to Hydro to do any of those things. The union had the freedom to make its own decisions about the vigilance with which it would scrutinize employers' performance of their obligations under these agreements. Choices made in the exercise of that freedom are not without practical consequences, however. This union chose to act indifferently about the method and accuracy of Hydro's calculation of benefits and dues deductions. Had it given the matter some attention and concern, the parties' differences in interpretation would have surfaced and been adjudicated much earlier and Hydro, through EPSCA, would have had a much earlier opportunity to bargain for a different provision or otherwise take the resultantly settled meaning of these provi­sions into account in negotiations.

37. While it follows from our award that the collective agreement provisions in question have meant what the union thought they meant since May of 1978, and that Hydro has underpaid benefit contributions and dues deductions ever since, it would also follow from a strict application of the contract language agreed to by the union that there could be no recovery of underpayments which occurred more than 15 working days prior to the filing of the union's grievance. Our exercise of the discretion to relieve against that limitation must necessarily look beyond the words of the agreements. Are there reasonable grounds for the extension? Will the opposite party be substan­tially prejudiced by the extension? In the circumstances of this case, the balance between those considerations is a function of the length of the extension. We have already noted our conclusion that some extension is reasonable, having regard to the union's lack of actual knowledge of Hydro's continuing breach. In that respect, the union's was not the only indifference at work here -there was also Hydro's apparent indifference to the way these agreements were being administered by other EPSCA members. Nevertheless, an extension of over 8 years would accord the rights in question a level of concern which is seriously out of proportion to the level of concern about them which the union demonstrated during the period in which the breaches occurred.

38. Taking all these factors into account, we are of the view that the remedy in this matter should only extend to breaches of the current agreement and the most recently expired (1984-86) collective agreement. We hereby extend the time limits in those agreements to the extent necessary to give effect to that view. We direct that Hydro pay to each of the relevant funds and trusts the difference between the amount of "per hour paid" benefit contributions which have been made under those agreements to date and the amounts which ought to have been paid. With respect to union dues, Hydro shall compensate each local union for any loss it may have suffered as a result of having not collected through Hydro the full amount of dues payable through payroll deduction by ironworkers employed by Hydro from and after May 1, 1984. Calculation of compensation for dues underpayments is, of course, subject to each local union's obligation to mitigate by direct col­lection from the workers concerned. We retain jurisdiction to determine the amounts payable if the parties are unable to agree.