The Electrical Power Systems Construction Association v. Ontario Allied Construction Trades Council et al., 1990 CanLII 5661

The Electrical Power Systems Construction Association v. Ontario Allied Construction Trades Council et al.

[1990] OLRB Rep. March 243

2225-87-G; 2226-87-G The Electrical Power Systems Construction Association, Applicant v. Ontario Allied Construction Trades Council and Labourers' Interna­tional Union of North America and Walter Fougere, Respondents; The Electrical Power Systems Construction Association, Applicant V. Ontario Allied Construc­tion Trades Council, Donald B. Hickey and International Brotherhood of Team­sters, Chauffeurs, Warehousemen and Helpers of America, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and N. A. Wilson.

APPEARANCES: John C. Field and Sheila Goldsworth for the applicant; A. M. Minsky and John Marchildon for all respondents, together with R. Burns for the respondent Teamsters, Chauffeurs, Warehousemen and Helpers of America, G. Flook for the respondent The Labourers' Interna­tional Union of North America.

DECISION OF THE BOARD; March 27, 1990

1. In these two grievances filed pursuant to section 124 of the Labour Relations Act, the parties characterized as a preliminary issue the question of whether an employer party to a collec­tive agreement (in this case EPSCA on behalf of Ontario Hydro) can seek through arbitration to enforce the rights or obligations it asserts are contained in the collective agreement against individ­ual employees, whom it claims have breached the agreement. They also raise the question of whether delivery of the written grievance "to the other party", within the meaning of section 124(2) of the Act, means delivery upon employees named as respondents in the section 124 appli­cation. The two proceedings were therefore heard together.

2. The Teamsters are hereby added as a respondent to Board File No. 2226-87-G as if they had been initially named as such by the applicant.

3. In Board File No. 2225-87-G (the "Fougere grievance"), EPSCA asserts, on its own behalf and on behalf of Ontario Hydro, that Mr. Fougere failed to return to Ontario Hydro, upon his termination of employment, tools and equipment valued at slightly under $500.00. EPSCA and Ontario Hydro (for ease of reference we will refer to them as the "employer") assert that this con­stitutes a violation of Articles 10, 11, and 26 of the Master Portion of the collective agreement. The employer demands that Fougere either return the items in good condition or make payment for the articles not so returned.

4. In Board File No. 2226-87-G (the "Hickey grievance"), the employer asserts that Don­ald Hickey claimed and received room and board subsistence allowance provided pursuant to the collective agreement, in the total amount of $18,468.50, encompassing the period from October 24, 1983 to June 18, 1986 and that Hickey improperly claimed and received such funds contrary to the provisions of the collective agreement, in particular Article 20 thereof. Amongst other reme­dies, the employer asks that the Board order Hickey to repay this amount to Ontario Hydro.

5. Both applications were filed with the Board on November 10, 1987. The first hearing date was set by the Board for November 25, 1987. At the parties request, that hearing date was adjourned sine die. On three subsequent occasions at the request of either or both of the parties, the Board set additional hearing dates, and the parties again agreed to further adjournments on consent. In the result, this matter was heard by the Board on October 10, 12 and December 11, 1989.

6. This decision deals only with three preliminary issues or objections raised by the respondents. First, the respondents assert that both grievances are inarbitrable and ought to be dis­missed. Second, the respondents assert that the written grievance was not delivered to the individ­ual employees named as respondents contrary to the provisions of section 124(2) of the Act, and accordingly both proceedings must be dismissed. They also assert, in the Hickey grievance, that delivery was not made upon the "accredited representative" of the union, as required by the col­lective agreement, and therefore that grievance must be dismissed. Third, with respect to the Hickey grievance only, the respondents in that proceeding assert that on timeliness grounds the grievance ought to be dismissed, as the applicant has delayed too long in pursuing the matter.

7. The parties agreed on the facts but only for purposes of these preliminary issues. The parties also agreed that the exhibits that formed part of the agreed facts could be taken as exhibits for all purposes in these proceedings, including the merits should matters proceed to that stage.

The Facts

A. The Fougere Grievance

8. The applicant and the respondent Ontario Allied Construction Trades Council (herein­after the "Council") are parties to a collective agreement which was in full force and effect as of the relevant time. There is no dispute that the Labourers and Fougere are bound by the agree­ment. In the Labourers' Appendix to the Master Portion of the agreement can be found Article 10 (Tools) and Article 11 (Protective clothing and equipment). Article 11.3 reads in part, as follows:

The protective clothing and equipment covered in sections 11.1 and 11.2 of this Article that is provided by the Employer shall be charged out to an employee and the employee shall be responsible for the return of such clothing and equipment to his Employer.

Fougere was a member of Local 597 of the Labourers and was employed by Hydro commencing on or about August 20, 1983. On or about July 27, 1987, for reasons unrelated to tools, equipment, or the instant proceeding, Fougere's employment was terminated.

9. Approximately two weeks later, about August 13, 1987, the General Superintendent of Hydro's Darlington Generating Station wrote to Fougere and a representative of Local 597 of the Labourers alleging that Fougere had failed to return specified tools and equipment and demanding that they be returned immediately to Hydro. The letter also advised Fougere that Ontario Hydro, through EPSCA, was in the process of filing a grievance against both the Labourers and Fougere. On the same day, the General Manager of the applicant EPSCA sent a notice of grievance to the representative of Local 597 of the Labourers, setting out the employer's grievance and indicating that the employer considered such to be a violation of Article 26 of the Master Portion of the agreement and Articles 10 and 11 of the Labourers' Appendix. The employer demanded that Fougere either return the items in good condition or make payment for the articles not returned. This letter was copied to the Council.

10. A second step grievance meeting was held on October 9, 1987. The grievance was referred to the Board pursuant to section 124 of the Act on November 10, 1987.

B. The Hickey Grievance

11. Hickey was a member of Local 230 of the Teamsters and was employed by Ontario Hydro commencing on or about May 1, 1982. On or about November 23, 1983, Hickey was work­ing as a Teamster at the Darlington Nuclear Power Generating Station Project and he applied to Ontario Hydro in the manner required by the collective agreement for room and board subsistence allowance. The terms and conditions of Hickey's employment were governed by the provisions of the Master Portion of the collective agreement referred to earlier.

12. Article 19.2 reads in part, as follows:

19.2 The following conditions will apply for employees whose regular residence* is more than 97 radius kilometers from the project:

(a) An Employer may supply either:

(i) 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;

subject to Section 19.2(b), (c) and (d) below.

REV(b) An employee may exercise his option not to stay in a camp or accept room and board. An employee who exercises this option and qualifies for subsistence allowance shall receive a subsistence allowance of $32.00 per day (effective May 1, 1987, $33.00 per day) for each day worked or reported for subject to Sections 19.2(c) and 19.2(d) below.

REV(c) To qualify for subsistence allowance an employee must maintain temporary accom­modation at or near a project. Employees who travel daily to locations beyond 97 radius kilometers from the project will be entitled to $21.00 per day worked or reported for.

REV(d) An employee employed at the Pickering or Darlington Project who qualifies for a subsistence allowance as provided for above shall receive a subsistence allowance of $22.00 per day for each day worked or reported for.

*An employee's "regular residence" is the place where he maintains a self-contained domestic establishment (a dwelling house, apartment or similar place of residence where a person gener­ally sleeps and eats) in which he resides and for which he can show proof of financial commit­ment in accordance with the "Application for Daily Travel/Room and Board Allowance" as agreed to by the parties.

13. In the "Application for Daily Travel/Room and Board Allowance" referred to in Arti­cle 19, the employee is required to fill out certain information. Just above where the employee signs and dates the Application is printed the following:

I declare that I have read and understand this form and that all the foregoing information is true and complete. I understand that a false statement regarding my regular residence may be cause for disciplinary action up to and including termination. My signature acknowledges my receipt of a copy of this application.

14. Hickey received room and board subsistence allowance, eventually totalling $18,468.50, beginning on October 24, 1983. On or about March 27, 1986, Ontario Hydro received information from an anonymous source that the regular residence for Hickey was in Oshawa, Ontario, and not Coe Hill, as claimed in Hickey's application for the subsistence allowance. Ontario Hydro investi­gated this matter over a number of months following receipt of this information. Hickey continued to receive allowance payments until June 18, 1986. The agreed facts do not stipulate whether these payments stopped because Ontario Hydro took action to terminate them, only that they ceased as of this date.

15. On or about January 26, 1987, a meeting was arranged between officials from Ontario Hydro, Hickey and his chief steward, R. Harrison. Harrison was not an "accredited union repre­sentative" of the Teamsters, as described in Article 7. Hickey was advised of Ontario Hydro's claim that he had improperly received $18,468.50 in subsistence allowance, during the time periods noted. Harrison was advised that Ontario Hydro was considering a number of responses, including the delivery of a management grievance.

16. On or about February 27, 1987, a further meeting was held again, between officials from Ontario Hydro and Hickey and Harrison. At the outset of that meeting, a notice of griev­ance, dated February 27, 1987, was delivered by J. Ella, on behalf of Ontario Hydro, to Harrison. That document was addressed to the Teamsters, and stated that it would serve as notice of griev­ance by EPSCA and Ontario Hydro against the Teamsters and Hickey. The letter asserted that Hickey had "illegitimately been in receipt of board allowance monies from Ontario Hydro since November 23, 1983." EPSCA and Hydro demanded that Hickey make immediate restitution of those monies. The letter indicated that the employer would be contacting the union's international representative in order to set up a second step grievance meeting. Also at that meeting, Hickey's employment was terminated, effective that day, on the grounds that he had improperly applied for and received room and board allowance for a prolonged period of time. A notice of termination was provided to Hickey, with copies to R. Burns and R. Harrison of the Teamsters.

17. On May 4, 1987, EPSCA sent a letter to the respondent Council enclosing a copy of the February 27, 1987 grievance. On May 26, 1987, a second step grievance meeting was held, attended by representatives of the Council and the Teamsters.

18. The grievance was referred by the applicant to the Board pursuant to section 124 of the Act on November 10, 1987.

19. Finally, by way of context, the employer had been seeking, in an unrelated matter, recovery from an individual employee of sums alleged owing, through means of court action (see EPSCA [1987] OLRB Rep. Aug. 1079 "Fleming grievance"). The District Court dismissed the employer's claim in August, 1985, on jurisdictional grounds, on the basis that the courts had no jurisdiction to deal with such matters. This decision was upheld by the Divisional Court on March 13, 1986. The Court of Appeal refused leave to appeal on April 28, 1986.

Are these grievances arbitrable?

20. The parties referred to the following sections of the Act:

44.-(1) Every collective agreement shall provide for the final and binding settlement by arbitra­tion, without stoppage of work, of all differences between the parties arising from the interpre­tation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

(10) The decision of an arbitrator or of an arbitration board is binding,

(a) upon the parties; and

(b) in the case of a collective agreement between a trade union and an employers' organization, upon the employers covered by the agreement who are affected by the decision; and

(c) in the case of a collective agreement between a council of trade unions and an employer or an employers' organization, upon the members or affiliates of the council and the employer or the employers covered by the agree­ment, as the case may be, who are affected by the decision; and

(d) upon the employees covered by the agreement who are affected by the decision,

and such parties, employers, trade unions and employees shall do or abstain from doing any­thing required of them by the decision.

50. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

124.-(1) 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.

(2) 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.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and deter­mine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

And they referred to section 3 of the Rights of Labour Act:

3.-(1) Any act done by two or more members of a trade union, if done in contemplation or fur­therance of a trade dispute, is not actionable unless the act would be actionable if done without any agreement or combination.

(2) A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of any of the provisions of this Act or of the Labour Relations Act.

(3) A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of any of the provisions of this Act or of the Labour Relations Act.

(4) Nothing in this Act shall be construed to prevent or otherwise affect the prosecution of a trade union or a member thereof under the Labour Relations Act.

21. We set out now, in abbreviated fashion, the parties' submissions on this issue. The respondents submit that both grievances are inarbitrable as neither the individually named employ­ees, nor the unions, nor the Council are proper respondents to either the grievances or the instant applications.

22. With respect to whether the unions or the Council are proper parties, the respondents note that no violation of the collective agreement has been alleged against them nor any remedy or relief claimed against them. Further, submit the respondents, there is no and can be no suggestion that the Council is liable for any misconduct of Hickey or Fougere, or for that matter for any mis­conduct of its member unions. As no obligation is claimed to have been breached by these parties, and no remedy sought against them, they are not proper respondents and the proceedings ought to be dismissed as against them.

23. With respect to Fougere and Hickey, the respondents assert that there is no authority which holds or permits an individual employee to be grieved against by an employer or made a party respondent against whom a remedy can be obtained pursuant to the provisions of section 124. The respondents note that section 124, while explicit with respect to who can be an applicant, is silent with respect to who can be a respondent. As the respondents put the issue, an individual employee cannot be a proper respondent to a grievance or section 124 proceeding at the instance of the employer. Rather than allowing an employer to initiate arbitration against an individual employee other mechanisms are available and are appropriate. Employers can discipline employ­ees, and if necessary seek compensatory awards in any subsequent arbitration. Employers can also file unfair labour practice complaints pursuant to section 89 of the Labour Relations Act.

24. The respondents concede that employees are bound by the collective agreement through the provisions of section 50 of the Act, and bound by an arbitration board's decision through the provisions of section 44(10) of the Act. However, they submit that the issue of whether employees are so bound is a different matter from the issue before this Board: whether at the instigation of an employer party to the collective agreement the arbitration mechanism is avail­able for enforcing alleged obligations contained therein against individual employees. The respon­dents submit that the foundation of collective bargaining is the bilateral relationship between the employer (or its authorized representative, such as EPSCA) on one hand, and the union (or its authorized representative, such as the Council) on the other hand. To allow these disputes to be arbitrated on the merits would undercut the very rationale for and structure of collective bargain­ing. The respondents note that this is a case of first impression, and argue there is good reason for over forty years of jurisprudence without this question arising for arbitration. They submit this lengthy dormant period reflects the abilities of the bilateral parties to govern their affairs, and demonstrates that there has not been a serious, or even detectable, problem of employers being left without remedies to enforce alleged obligations. If that were the case, argue the respondents, this issue would have been adjudicated long ago. Put colloquially, "if it ain't broke, don't fix it."

25. Apart from the deleterious effect that employer grievances against individual employees would have on the bilateral nature of the collective bargaining relationship, it would unfairly treat individual employees. As the Hickey case demonstrates, assert the respondents, on the same day Hickey was both terminated because of and grieved against with respect to the alleged improper receipt of room and board allowance. This constitutes a double penalty, and ought not to be allowed. The respondents submit that the appropriate procedural mechanism was for Hickey to have been terminated only, and the union then could assess whether a grievance against such dis­charge was appropriate. As the party to the collective agreement, and the representative of the employee, the union was the appropriate party to decide whether to enmesh an individual employee in arbitration, and not the employer. In any arbitration resulting from the union's deci­sion to dispute the termination, the employer would be able to both defend its decision and seek compensation of the money it claimed was misappropriated. Just as an individual employee cannot make the decision as to whether a grievance goes to arbitration, neither should an employer be able to grieve or seek arbitration against an individual employee. The respondents note that arbi­tration is a mechanism which deals with disputes between the parties to the collective agreement, and not the employer and individual employees bound by the agreement. The respondents further submit in this regard that the provisions of section 44(10) of the Act only render employees indi­vidually liable if the arbitration board's orders or directions can first be made against the union party to the collective agreement. They argue that in this circumstance, the provisions of section 44(10) also make employees liable for those arbitration decisions.

26. The respondents refer to the following decisions:

The Electrical Power Systems Construction Association, [1976] O.L.R.B.

Rep. Dec. 825

Heist Industrial Services, 63 C.L.L.C. para. 16,263

Metropolitan Toronto Apartment Builders Association, 1972 CanLII 2016 (ON LA), 1 L.A.C. (2d) 201 (H.D. Brown)

The Lummus Company Canada Limited, and The Ontario Erectors Association, [1976] O.L.R.B. Rep. Jan. 980

J.G. Rivard Limited, [1976] O.L.R.B. Rep. Sept. 540

Canada Elevator Manufacturers Association, [1976] O.L.R.B. Rep. Dec. 816

Ainsworth Electric Co. Limited, [1977] O.L.R.B. Rep. July 399.

J.G. Rivard Limited, [1980] O.L.R.B. Rep. July 1009

Eastern Sheet Metal and Mechanical Contractors, [1981] O.L.R.B. Rep. Jan. 26

Ontario Hydro, [1985] O.L.R.B. Rep. April 582

Ontario Hydro, [1986] O.L.R.B. Rep. Aug. 1137

Ontario Produce Co., Oshawa Foods Division of Oshawa Group Ltd. and Teamsters Union, Local 419, 1986 CanLII 6697 (ON LA), 26 L.A.C. (3d) 159

The Electrical Power Systems Construction Association, (Fleming grievance) [1987] OLRB Rep. Aug. 1079

27. The employer responds by noting that if the respondents are correct, then the employer would in many cases be without any remedy whatsoever. The employer notes that the courts will not entertain litigation involving interpretation of the collective agreement, for such is proscribed by sections 3(3) of the Rights of Labour Act and 44(1) of the Labour Relations Act. (The respon­dents did not dispute this assertion: in this respect, for example, see EPSCA [1987] OLRB Rep. Aug. 1079 "Fleming grievance".)

28. With respect to the appropriateness of naming the Council and the member union(s) as respondents to the section 124 proceedings, the employer argues that as they are agents for the employees, and parties to the collective agreement, they must be part of the section 124 proceed­ing, even though no relief is claimed against them.

29. The employer submits that Articles 29.5 and 30 of the collective agreement give the employer the right to file the instant grievances against individual employees. Article 29.5 reads as follows:

EPSCA OR COUNCIL GRIEVANCES

The processing of EPSCA or Council grievances will begin at the Second Step. EPSCA or the Council may submit either policy or specific grievances. Such policy or specific grievances shall be submitted within thirty (30) days of the alleged grievous act.

30. EPSCA asserts it is specifically given the authority in Article 29.5 to file either policy or specific grievances. There is no limitation found therein with respect to who grievances can be launched against. The employer therefore claims that "specific" grievances can be filed against individual employees, just as unions can grieve on behalf of individual employees. The combined effect of sections 44(10) and 50 of the Labour Relations Act are that both the collective agreement and any arbitration decisions or awards made thereunder are binding on employees. Section 124(3) is explicit that section 44(10) applies to proceedings under section 124. It is clear therefore, submits the applicant employer, that the arbitration board can make orders directly against employees. The employer has named the two individual employees as respondents to the section 124 applica­tions, and therefore the Board has the authority to make a finding that they have breached the agreement and to issue remedial orders against them. The employer argues that fairness and reci­procity demand that if an employee can breach the collective agreement, the employer must be entitled to pursue such a breach through the grievance procedure and arbitration. The status of an individual as a party to the collective agreement cannot be a prerequisite to a remedy, for to so hold would be to deprive the employer of a remedy where the interpretation of the collective agreement is involved. To paraphrase the employer's argument, one does not have to be a party to the collective agreement, though one must be bound by it, in order to be a respondent to a section 124 proceeding.

31. The employer acknowledges that discipline may be both available and appropriate in many circumstances. But it is not always available to an employer. For example, submits the employer, Fougere was terminated from his employment for reasons unrelated to the claim that he took or failed to return tools or equipment. Fougere was no longer an employee at the time disci­pline for the tools dispute would have been contemplated or imposed. Fougere was therefore not an employee whom the employer could have disciplined. The employer could not seek redress in Court as an interpretation and alleged violation of the collective agreement was involved. If the employer cannot file a grievance and take it to arbitration, it is effectively deprived of an opportu­nity to enforce its rights and seek a remedy. Similarly, submits the employer, even if discipline is an available response, it is unfair to limit employer responses to the imposition of discipline. To do so would deprive the employer of an opportunity and mechanism to seek recovery of monies improperly paid. Surely, it argues, whether it can seek recovery of monies is not limited to cases where the party opposite in interest, the union, chooses to file a grievance. The employer argues that it is the Board's function, under section 124, to interpret and apply the collective agreement and to balance the various interests of the parties and there is no reason employers cannot equally avail themselves of this mechanism.

32. The employer referred to the following decisions: Heist Industrial Services, 63 C.L.L.C. para. 16,263 Bennett & Wright Contractors Ltd. (1969), 1969 CanLII 1475 (ON LA), 20 LAC 187 (Godin) Re H. Fine & Sons Ltd. (1984), 1984 CanLII 5166 (ON LA), 15 LAC (3d) 236 (Roach)

Standard Coil Products (Canada) Ltd. (1971), 1971 CanLII 1911 (ON LA), 22 LAC 377 (P.C. Weiler)

Canadian Admiral Corp. (1967), 1967 CanLII 1049 (ON LA), 19 LAC 1 (Arrell)

St. Joseph's Hospital, London (1985), 1985 CanLII 5359 (ON LA), 20 LAC (3d) 390 (Kates)

Ontario Hydro, [1983] OLRB Rep. Sept. 1547

Hamilton Street Railway Co. v. Northcott (1966), 66 CLLC 14,157 (SCC)

Re Samuel Cooper & Co. Ltd. (1973)m 1973 CanLII 461 (ON HCJDC), 35 DLR (3d) 501 (Ont. Div. Ct.)

Shell Canada v. Travailleurs Unis du Petrole, 1980 CanLII 200 (SCC), [1980] 2 S.C.R. 181

33. We are asked to decide, by way of a ruling upon a preliminary objection, whether an employer party to a collective agreement (or in the instant case, EPSCA on its own behalf and on behalf of Ontario Hydro) can use the grievance and arbitration mechanism contained in section 124 of the Act in order to seek enforcement of a collective agreement obligation asserted against an individual employee bound at the relevant time by the collective agreement. We are not, at this stage, asked to decide what the parties have characterized as the merits of the two proceedings, whether any individual obligation under the agreement in fact exists and, if so, whether the individ­ual employee respondents have breached it and whether the employer can obtain a remedy through section 124. Such consideration would involve findings of fact, and analysis and consider­ation of the articles of the collective agreement dealing with the specific rights or obligations. Although the articles dealing with tools and protective clothing and equipment and room and board allowance were before us, and were referred to by the parties, neither party made submis­sions as to the nature and ambit of the obligations, if any, of individual employees under these arti­cles, nor were the facts agreed upon for such purposes. The parties asked that this question, which they termed "the merits", be deferred and the Board agreed to entertain their submissions on this basis.

34. Upon reflection, having had the benefit of the parties' thorough submissions, we con­sider it more appropriate in the circumstances, given the importance and uniqueness of this issue, to hear the entire case and to deal with this issue, if appropriate, after completion of the proceed­ing. Accordingly, we will reserve our decision on this preliminary issue.

Delivery of the Grievance

35. The respondents argue that the delivery of the written grievance "to the other party" within the meaning of subsection 2 of section 124 of the Act is a condition precedent to the Board entertaining a section 124 application. They submit that the "other party" referred to is any party named by the applicant in the section 124 proceeding, which includes the Council, the unions, and the individual employees. They do not dispute that the grievances were properly delivered to the Council. And it is agreed that delivery was made upon the chief steward. They submit that on the facts (as agreed), the written grievances were not delivered to the appropriate representative of the union, the "accredited representative", nor to the individual employees. They do not argue that the method of "delivery" to the employees was inadequate. They argue rather that whatever con­stitutes proper delivery, it must be made upon employees Fougere and Hickey and it was not. Therefore the applications ought to be dismissed as the condition precedents have not been met.

36. Section 124(2) reads:

124.-

(2) 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 addition to the wording of section 124, the respondents rely upon the text of Form 104, the pre­scribed form for the filing of a section 124 application. Form 104 reads as follows:

Use this form for Construction Industry only

Form 104

LABOUR RELATIONS ACT

REFERRAL OF GRIEVANCE TO ARBITRATION UNDER SECTION 124, CONSTRUC­TION INDUSTRY

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Applicant,

and -

Respondent.

The applicant refers a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Ontario Labour Relations Board for final and binding determination.

The applicant states:

1. (a) Address and telephone number of applicant:

(b) Address of applicant for service:

(c) Address and telephone number of respondent:

*2. The name and address of any person(s) or trade unions, other than the respondent, who may be affected by the referral: (use attachments if additional space is required)

3. The parties to this application are parties to whom sections 117 to 136 of the Act apply.

4. A collective agreement, a copy of which is appended hereto, was entered into between the applicant and the respondent on the day of , 19 and is operative from the day of , 19 to the day of , 19

5. The matter referred to be arbitrated (full text of grievance is to be reproduced): (use attachments if additional space is required)

6. The date on which the grievance was delivered to the other party:

7. The replies to the grievance, if any: (use attachments if additional space is required)

8. Other relevant statements: (use attachments if additional space is required)

DATED at , this day of 19

signature

*Other employees who may be affected by a determination under this section are entitled to notice of arbitration proceedings and to be represented by counsel or otherwise at the hearing.

FAILURE TO PROVIDE THE NAMES OF EMPLOYEES WHO MAY BE AFFECTED COULD RESULT IN A POSTPONEMENT OF THE HEARING.

37. We agree that delivery of the written grievance is a condition precedent for this Board to entertain a section 124 proceeding. See for example, Arthur G. McKee & Company of Canada Ltd (supra); Arlington Crane Service Limited [1986] OLRB Rep. April 417.

38. The question before us is whether the written grievance must be delivered to the accredited representative of the union and to the employees named as respondents. Subsection 124(2) merely states delivery must be made "to the other party". There appears to be only one prior Board decision dealing with the meaning of this phrase, the Arlington Crane decision cited above. In that decision, the Board wrote, at page 418 therein:

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.

The dispute with respect to delivery in the Arlington Crane case was whether delivery had to be made to an employer which had not itself signed the collective agreement. The Board decided that such delivery was necessary. That decision does not therefore answer the question before us.

39. The relevant phrase in section 124(2) is capable of different reasonable interpretations. In our view, we ought to give the language an interpretation that promotes sound labour relations and the scheme of the Act, particularly the arbitration provisions set out in section 124.

40. We must first look to the policy enshrined in section 44(1), that all disputes with respect to the interpretation, administration or application of the agreement, or its alleged violation, between the parties, be resolved through arbitration. In the construction industry arbitrations can be launched through section 124. We note that the relevant language in section 124 was present in the Act before the Act was amended to create the province-wide scheme of bargaining for parts of the construction sector. But it must be interpreted having regard to the realities of the province-wide scheme. Under the province-wide scheme, the Board regularly encounters section 124 appli­cations where the "parties" which actually signed the collective agreement (the provincial organi­zations that negotiated the agreements) are not the "parties" against which breaches are alleged or remedies sought. Those "parties" are the employer and union bound by the agreement, but not the "parties" who negotiated and signed it.

41. A primary reason for the legislative requirement in section 124(2) that the application under section 124 can only be made after the written grievance has been delivered "to the other party" is to avoid the commencement of litigation before the "other party" with which the appli­cant has the dispute is made aware of the dispute and has had an opportunity to resolve the matter without resort to arbitration. Arbitration is for the resolution of disputes which the parties in conflict are unable to resolve through negotiation or compromise. In the province-wide bargaining scheme, the provincial bargaining agencies are not primarily responsible for and are sometimes unaware of the administration and application of the agreement at the local level. This administra­tion and application occurs between the employer and the union, and it is a dispute between these "parties" over the interpretation, administration or application of the agreement, or over an alleged violation of the agreement, that initially gives rise to the filing of the grievance. It makes far more labour relations sense to read "other party" as including those entities which are involved at the local level in the application and administration of the applicable collective agreement and are the directly involved collective bargaining "parties" to the dispute. It is the local union which will be in a position to investigate a breach alleged against an employee in the bargaining unit.

42. We find support for this view in the provisions of section 147(3) of the Act, which make the employers and affiliated bargaining agents (the "local union" in the terminology used in this decision) "parties" for purposes of section 124 when applications arising from the province-wide I.C.I. sector are involved. Although the instant grievances do not deal with construction in that sector and the parties before us are not subject to the provisions of section 147(3), the disputes have arisen in a context involving umbrella bargaining agents representing local employers and unions.

43. Where a union files a grievance complaining about a particular employer's behaviour, that employer is for practical purposes the collective bargaining party adverse in interest responsi­ble for the administration and application of the agreement. As in Arlington Crane (supra), we interpret subsection 124(2) as requiring delivery of the written grievance to that "party" before the Board will embark upon a section 124 enquiry. Similarly, where an employer files a grievance com­plaining about an employee's behaviour, as in the instant case, the "party" adverse in interest, responsible for the day-to-day administration and application of the collective agreement, is the local union, the Labourers or the Teamsters as the case may be; that is, the local bargaining agent for the employees in the bargaining unit. It is to them that delivery of the written grievance must be made. This interpretation of section 124(2) ensures that those parties responsible by law for the day-to-day operation of the collective agreement, and with the institutional interest in its proper administration and application, and between which the dispute directly lies, are provided with delivery of the written grievance before the section 124 proceeding is filed.

44. In contrast, we do not read subsection (2) as requiring prior delivery of the written grievance to an individual because he or she is named by an applicant as a respondent in a section 124 application, or because an applicant claims they have violated the agreement and seeks a rem­edy from them. The individual employee has no authority to administer the agreement, nor to rep­resent the employees as bargaining agent. To the contrary, the union upon which prior delivery must be made is legally authorized to act as exclusive agent for the employee with respect to such matters. Little would be served by requiring delivery of the written grievance to the employee as a condition precedent to the section 124 referral to arbitration. The employee is not in a position to deal directly with the employer. He or she cannot settle the dispute as that is a matter between the employer and union, or the provincial bargaining agents.

45. To require that the grievance be delivered to such employees before the filing of the section 124 proceeding would unduly delay the expeditious filing of such proceedings. We are not inclined to give an interpretation to section 124(2) which could seriously impede the filing of sec­tion 124 applications. Individual employees' interests can be and are fully protected in the section 124 proceeding itself. Where an applicant alleges an employee has breached a collective agreement obligation and seeks a remedy against the employee, that employee must have notice of the section 124 proceeding and will have an opportunity to fully participate in that proceeding.

46. We can see no reason why delivery of the written grievance to the chief steward is not delivery upon the union. Delivery to Harrison was sufficient although he was not the "accredited" representative as set out in Article 7 of the collective agreement. The collective agreement does not require that grievances be delivered or given only to an accredited representative. We are satis­fied that the written grievances were delivered to the respective local unions (see paragraphs 9 and 16 supra), and these two applications were properly referred pursuant to section 124.

Timeliness

47. The final objection applies only with respect to the Hickey grievance. The respondents complain that there was undue delay in the processing of this matter by the applicant, and the Board therefore ought to exercise its discretion to decline to enquire further into the Hickey griev­ance. The respondents do not argue that the collective agreement provisions set out mandatory time limits. Rather, they argue that the Board ought to exercise its discretion pursuant to section 124 to decline to inquire further. The applicant argues the Board ought to exercise its discretion by inquiring into the merits.

48. Hickey had been in receipt of the room and board subsistence allowance since Novem­ber 23, 1983. On March 27, 1986, Hydro was apprised by an anonymous source of a potential prob­lem with Hickey's claim and payments of the allowance to him. We note that although Hydro was litigating the Fleming grievance in the courts, attempting to seek recovery of money from individ­ual employees through court process, on March 13, 1986 the Divisional Court upheld the decision of the District Court dismissing the action on the grounds that the court had no jurisdiction. Hydro therefore knew by March 27th that court action was not the appropriate avenue for seeking the type of recovery it sought from Hickey. After receipt of the information on March 27th, Hydro commenced an investigation which took place over a "number of months". There are no facts as to the specific length of the investigation, nor its nature, nor any explanation of why it took whatever length of time it did. Hickey continued to receive the allowance for approximately 3 months until June 18, 1986. Hickey continued to remain an employee of Ontario Hydro. On February 27, 1987, approximately 8 months after he ceased receiving benefits, and 11 months after Hydro first received information suggesting Hickey had not stated his true residence in applying, a meeting took place between the parties, and attended by Hickey. A notice of the grievance and notice of termination of employment were both given to Hickey. A copy of the instant grievance was pro­vided on May 4, 1987 to the Council at the second step grievance meeting. The respondents accept as reasonable the delay that occurred between the filing of the grievance on February 27, 1987, and the conclusion of the second step of the grievance procedure on May 4, 1987. The decision of the Board in EPSCA ("Fleming grievance") cited above, was issued in August 1987. The parties had argued the same arbitrability question in that proceeding but the Board in the result did not rule upon it. The instant section 124 proceeding was filed November 10, 1987, 6 months after the con­clusion of the second step of the grievance procedure. The only explanation for this further 6 month delay was the employer's assertion that it was awaiting the Board's decision in the Fleming grievance.

49. The period between March 27, 1986, when Hydro was made aware of the problem, and February 27, 1987, when it first put the respondents on notice with the notice of termination and the filing of the grievance, constitutes approximately eleven months. We have been provided with no explanation of why the investigation took "a number of months". Nor have we been provided with any explanation of why it took Hydro 11 months, from when it was advised of the problem, to notify the union and Hickey, nor why it took 8 months from when Hickey stopped receiving the allowance until the grievance was filed.

50. This first period of delay therefore consists of between 8 and 11 months. During this period the respondents would have remained unaware of Hydro's intention to file a grievance or otherwise seek recovery of the money Hydro alleges was improperly obtained. The agreed facts stipulate only that Hickey received room and board subsistence allowance from October 24, 1983 to June 18, 1986. They do not indicate the circumstances under which he ceased receiving these allowances in June, 1986, and we do not therefore conclude or infer that he was effectively put on notice at that time of Hydro's intention to pursue recovery of the sums in question. In addition, from the time the grievance was delivered on February 27, 1987 (and counting only the interval that runs from the conclusion of the second step of the grievance procedure on May 4,1987) until the section 124 application was filed was a 6 month delay. No reasonable explanation has been pro­vided for this further delay. Awaiting the Board's decision in the unrelated Fleming grievance was not a justifiable reason for not filing the application at all.

51. Under the scheme of the Act, disputes in the construction industry that come before this Board are to be dealt with quickly. The Legislature has particularly recognized that expedi­tious resolution in this industry is to be encouraged, and this need for expedition is a major reason the legislature gave this Board jurisdiction to hear arbitrations. We need look no further than the provisions of section 124 to observe the legislative directive for expedition; section 124(2) allows parties to apply to the Board immediately after delivery of the written grievance, notwithstanding any restrictions in the collective agreement in this regard, and further, requires the Board to hold a hearing within 14 days of receipt of the section 124 referral. Thus, sound labour relations policy considerations in the construction industry require that, in the absence of special circumstances, parties making referrals to the Board pursuant to section 124 must act expeditiously. To exercise our discretion otherwise would undercut the very purpose of this statutory arbitration scheme.

52. In Ontario Hydro-Darlington [1986] OLRB Rep. July 1014, the Board wrote:

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 LAC. (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] 1 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, [1972] 2 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.

[emphasis added]

53. And in EPSCA (Fleming grievance) (supra), the Board wrote:

54. Section 124 of the A ct provides an alternative route to arbitration for the construction industry. In hearing such grievances, the Board has the authority of an arbitration panel, including the dis­cretion in section 44(6) of the Act to relieve against time limits. While the arbitral jurisprudence on the exercise of that discretion, therefore, is relevant, the Board must also be sensitive to the statu­tory purpose of section 124, namely, to provide an extraordinarily expeditious mechanism for adjudicating grievances in the construction industry: see, for example, The Lummus Company, supra. Not only may the grievance and arbitration process in the collective agreement be bypassed but, in accordance with section 124(2), the hearing shall be convened within fourteen days after receipt of the application.

55. In the Board's view, the delay in this case is considerable and not justified. It is accurate to state that the applicant exercised due diligence with respect to pursuing its claims in the courts and that, throughout, Fleming was aware that the applicant was seeking recovery of the alleged overpayment. Further, there may well have been reasonable grounds for extending the time lim­its in the collective agreement, given the circumstances, had the grievance been filed in October 1984 when the criminal charges were dropped or even in August 1985 following the dismissal of the applicant's civil action. The Board is not indicating that such would have been its decision as the delay was considerable even at those points. In any event, the applicant chose to rely on its rights of appeal within the courts and only when that route was finally exhausted did the appli­cant seek to invoke section 124 of the Act. Indeed, the applicant waited virtually two months after leave to appeal was refused before filing the grievance. In the Board's opinion, there was no reasonable basis for delay in initiating the grievance process, at the very latest, after August 1985, when the court plainly stated its view that the matter involved the interpretation of a col­lective agreement and the courts were not the proper forum for that adjudication. Moreover, the applicant acted on legal advice (although not counsel of record in the instant proceedings) in restricting pursuit of its claims to the courts.

56. The Board, in section 89 complaints, has expressed the view that pursuit of redress in other forums may not constitute reasonable grounds for delay in filing a complaint with the Board: see~ for example, Sheller-Globe, supra. The Board regards this admonition as even more compelling with respect to section 124 grievance referrals. The statutory purpose of providing an extraordi­narily expeditious mechanism to resolve grievances in the construction industry, because of the nature of the construction industry itself, would be negated by an exercise of the Board's discre­tion in section 44(6) where a party had full knowledge of the factual basis for its claim and yet chose to exhaust what it regarded as other avenues for redress before filing a section 124 appli­cation (cf. The Electrical Power Systems Construction Association, supra). Notwithstanding an arbitral discretion to extend time limits so as to resolve the actual dispute between the parties, there are occasions, as in the instant case, where the benefits of an adjudication on the merits are outweighed by competing policy considerations. Thus, the Board declines to exercise its dis­cretion under section 44(6) of the Act to extend the time limit provided in the collective agree­ment. There was no dispute that that limit (in article 34.5) had long since passed.

[emphasis added]

54. We agree with those comments. Given the undue length of the delay, from 8 to 11 months between when the events were known and the grievance filed, and a further 6 months before the instant referral was made, it is incumbent upon the applicant to provide a reasonable explanation for this delay. None has been provided, other than the explanation that the investiga­tion took a "number of months", which we are prepared to infer took the 3 months until Hickey stopped receiving the allowance. The remaining period of delay (without reasonable explanation) therefore totals 14 months: 8 months before the grievance was given to the respondents and the further 6 months between the second step grievance meeting and the filing of the section 124 appli­cation. This unexplained delay is of such length that to entertain this application would undercut the purpose of the scheme under section 124 and the need for the quick resolution of such prob­lems in the construction industry. Accordingly, we decline to inquire further into the Hickey griev­ance and that proceeding is dismissed.

55. The Fougere application will be scheduled for hearing, before the instant panel.