Labourers International Union of North America v. Consamar Inc., 1991 CanLII 6201

[1991] OLRB Rep. September 1021

1049-91-G Labourers International Union of North America, Applicant v. Consamar Inc., Respondent v. Pipeline Contractors Association of Canada, Intervener v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America on behalf of Locals 91, 141, 230, 879, 880, 990, 989, Intervener

BEFORE: K. C. O'Neil, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: S. B. D. Wahl and G. Flook for the applicant; Carl Peterson for the respondent; Mike McCreary, Issac Raymond for Teamsters; Barry Brown for Pipe Line Contractors Association of Canada.

DECISION OF THE BOARD; September 10, 1991

1. This is the referral of a grievance to arbitration under section 124 of the Act. It concerns an allegation that the employer failed to implement an assignment of work relating to work as a swamper, or helper, on a field truck in violation of the National Pipeline Collective Agreement which binds the parties. There were two swampers on the job. The work on the first was awarded to the Labourers on January 29, 1991. The same type of work on a second truck is alleged by the applicant to have been awarded improperly to the Teamsters on February 11, 1991. When the matter came on for hearing, several preliminary matters were raised. The first portion of the hearing was involved with hearing argument on the order in which the matters should be heard. The preliminary matters were:

2. The status of the Teamsters as an intervener. The Teamsters sought standing for preliminary matters as well as the merits of the dispute, whether heard as an arbitration or a jurisdictional dispute.

3. The question of whether there should be deferral to the filing of a complaint under section 91 of the Act as the issue is characterized by the employer and the Teamsters as a jurisdictional dispute. Both these parties wished the matter to be dealt with as a jurisdictional dispute. Employer counsel advises the issue has been a contentious one for some time.

4. The timeliness of the grievance.

5. The Teamsters also took the position that the matter was inarbitrable as the Labourers and the Teamsters had agreed to an alternate dispute resolution process in certain policy documents which were not before the Board.

After hearing argument from all those present, without making a finding on the status of the Teamsters, we decided to hear the issue of the timeliness of the grievance first, as it was the only issue that had any potential for resolving the whole matter, which promised to be lengthy (one counsel's estimate was 20 days of hearing) and potentially complex. The Teamsters waived participation in the argument on this issue, while preserving their argument that they have a right to intervene on the other aspects.

Timeliness Issue

2. The parties were able to agree on certain documents and stipulated facts as the factual basis for the argument of the timeliness issue. The following are the stipulated facts:

a. The Labourers' International Union of North America ("the International") was not a party to the "original" proceedings relating to the issue in dispute. [This refers to OLRB File 3258-90-G, a referral under section 124 of a grievance related to the same work assignment by the Labourers' Ontario Provincial District Council ("the District Council") which was dismissed by a decision of the Board (differently constituted) on May 21, 1991. This decision is referred to below as the Surdykowski decision.]

b. G. Flook, LIUNA International Representative, attended at the Ontario Labour Relations Board on the April 23, 1991, hearing day for one half hour at which time the issue of the competence of the Labourers' District Council to forward the grievance to arbitration was introduced at the behest of the Teamsters.

c. The decision of the Board of May 21, 1991 was not sent to LIUNA by the Ontario Labour Relations Board.

d. G. Flook, LIUNA International Representative, attended the LIUNA Ontario Provincial District Council delegates meeting of June 13, 1991. At this meeting he heard that a decision had been rendered in the prior OLRB proceeding and requested a copy. A copy was provided to Mr. Flook by fax from the District Council on June 14, 1991. Flook referred the matter to the attention of E. Mancinelli, LIUNA Sub-Regional Manager, by placing it on his desk on June 14, 1991. Mr. Mancinelli was out of the office at the time. Mancinelli instructed Koskie and Minsky to issue the June 19, letter on June 18, 1991.

e. The second field truck swamper remained on the job until mid April, 1991 and the last man on the job was April 27, 1991.

3. The documents agreed on are as follows:

a. The grievance letter dated June 19, 1991 as follows:

We wish to inform you that we have been retained by the Labourers International Union of North America on its own behalf and on behalf of its Local Unions 491, 493 and 607 and their unemployed members (hereinafter collectively referred to as 'the Union") with respect to the grievance initially filed by the Labourers International Union of North America, Ontario Provincial District Council dated March 6, 1991.

If necessary, on behalf of our client, we hereby adopt, reactivate and/or refile the grievance letter dated March 6, 1991 referred to above, a copy of which is attached.

On January 29, 1991, Consamar Inc. awarded the jurisdiction of the fuel truck swamper to the Labourers International Union of North America. This award was confirmed by letter dated February 15, 1991 (a copy attached). We also include a copy of a letter dated February 18, 1991 from the Labourers' Ontario Provincial District Council which brought this matter to your attention in writing and upon which we shall rely.

Accordingly, the Union grieves that from on or about February II, 1991 and continuing to date, the Employer has violated the operative Labourers' Mainline Pipe Line Agreement for Canada by failing or refusing to employ only members in good standing of the Union for all work covered by the Collective Agreement and specifically the work of the fuel truck swamper being general labourers' work assisting the fuel truck driver at its northern Ontario pipeline job sites contrary to the Collective Agreement, and, without limiting the generality of the foregoing, Articles I, II, III, IV and V thereof.

At all material times there have been and continue to be unemployed members of the Union who are qualified, ready, willing and able to perform the said work for the Employer.

RELIEF REQUESTED

1. A Declaration that the Collective Agreement is binding upon Consamar Inc.

2. A Declaration that the Collective Agreement has been violated by the Employer as hereinbefore set forth.

3. An Order that the Employer employ only members in good standing of the Union for all work covered by the Collective Agreement including all work of the fuel truck swamper being general labourer's work assisting the fuel truck driver at its Northern Ontario Pipeline job sites.

4. An Order of Damages against the Employer in an amount equal to all wages, benefits, contributions, deductions and allowances or remittances pursuant to the Collective Agreement with interest pursuant to the Collective Agreement and at Law.

5. Such further and other relief as may be appropriate in the circumstances.

We wish to inform you that we have been instructed to refer this matter to arbitration before the Ontario Labour Relations Board pursuant to Section 124 of the Labour Relations Act, R.S.O. t980 c. 228 as amended.

b. A letter dated February 15, 1991 to Larry McDonald, International Representative of the Teamsters, from Consamar Inc. which was copied to Flook of LIUNA, confirming the work assignment of the first swamper to the Labourers'.

c. A letter of February 18, 1991 to Consamar Inc. from the Ontario District Council on which Flook was again copied as follows:

At the prejob markup meeting held on December 3rd, 1990, in North Bay, you awarded the fuel truck swamper to the Labourers' Union which is in accordance with our collective agreement and the area practice throughout Ontario, since we first signed collective agreements with the Pipeline Association.

I was informed by Local 491 on the evening of February 13th that the Teamsters were claiming this work, also that the Superintendent on the project was confused and was awaiting instructions from your office.

I called your office at approximately 9:40 a.m. on February 14th, 1991. you confirmed that the work was rightfully assigned to the Labourers' Union and you had no intention of changing the original assignment made to our Union at the prejob meeting held in North Bay and further when the work commenced on the project on or about January 29th, 1991. This was further confirmed by your letter of February 15th, 1991, to the Teamsters Union.

I sincerely hope that you will continue to assign this work to the Labourers' Union. Any deviation will result in a violation of the Collective Agreement and the betrayal of our trust and will leave us no choice but to take whatever action is necessary to obtain damages or otherwise rectify this matter forthwith.

d. The March 6, 1991 grievance brought by the LIUNA District Council which was dismissed by the Surdykowski panel. This was copied to Mancinelli of LIUNA. It clearly concerns the same work assignment as the June 19 grievance before us.

4. Also admitted, over the objection of Mr. Wahl to the effect that it was irrelevant, was a February 19, 1991 letter from Consamar Inc. to Flook confirming the assignment of the second swamper to the Teamsters, and giving its reasoning for so doing.

5. Other documents referred to were the Board's covering letters enclosing the decision of

May 21 and an amendment thereto which were addressed to a number of people, not including the International, and no reference to the International was made in them.

6. The company argues the timeliness objection in three parts. Firstly, it says the time limits are mandatory. Even under section 124, they are a threshold which must be met. The company submits that the matter was clearly out of time, whether you pick February 11th or 19th as the operative date of the assignment. There was no grievance filed by 60 days from the later of those dates, which would have been April 19, 1991. This is argued to be in violation of the time limits in Article XV of the collective agreement, which reads as follows:

GRIEVANCE PROCEDURE

A. Where a difference arises between the Employer and the Union or a Local Union relating to the interpretation, application or administration this Agreement or where an allegation is made that discharge of an employee is unjust or that the Agreement has been otherwise violated, the difference of opinion of dispute, including any question as to whether a matter is arbitrable, shall be resolved without stoppage of work in the following manner.

B. The Job Steward or Business Manager of the Local Union shall attempt to resolve the difference on the job with the Foreman or Superintendent of the Employer.

C. If the difference is not resolved within forty-eight (48) hours of the occurrence, the aggrieved party shall submit the difference and the remedy sought in writing to the Executive Secretary of the Association and the International Representative of the Union within sixty (60) days of occurrence, or in the case of alleged unjust discharge, within ten (10) days of occurrence. Failure to submit the difference in writing within the specified time periods shall result in the matter being deemed to be waived. The foregoing time limitations shall not apply where there has been failure or refusal to remit employer contributions or deductions from employees as provided for in this Agreement.

The company argues, relying on Ontario Hydro, [1987] OLRB Rep. Apr. 574, that the interpretation that should be put on the first three words of section 124 is that they refer to the ability to expedite the matter despite a lengthier grievance procedure, not the ability to ignore the time limits in the collective agreement. Reference was also made to Hurlenco Limited, [1981] OLRB Rep. June 683 where the analysis was done under 44(6) in the presence of an issue similar to that in Ontario Hydro, supra. He asks us to interpret the decision of the Board in The Lummus Company Canada, [1976] OLRB Rep. Jan. 980 in the same light and to do it all in the context of the purpose of section 124 which is expedition. The swamper work was assigned in January and the job was finished in April. Counsel asked us to find as the Board did in Ontario Hydro that there is nothing inconsistent with the purpose of expedition in finding that the parties are confined by mandatory time limits. Rather they dovetail and are complementary. Unlike the union in Ontario Hydro, supra, the International definitely knew of the matter here.

7. Secondly, the company argues, in the alternative, if the Board finds that section 124 gives the Board jurisdiction to ignore the time limits in the collective agreement, there was still undue delay and the grievance should be dismissed on the basis of delay, given the context of the construction industry. The delay here is simply too long, no matter how the matter is characterized.

8. Thirdly, anticipating the union's argument under section 44(6) of the Act, the union has to show that it had reasonable grounds for missing the~ time limits and has not done so. The employer did not argue prejudice, but argues that the jurisprudence is clear that even if there is no prejudice the union must show reasonable grounds for the extension. Counsel says this case is analogous to Re Tend-R-Fresh Plant, 1983 CanLII 4892 (ON LA), 13 L.A.C. (3d) 90, where the union had launched a grievance and processed it through the regular grievance procedure and then made a section 45 application. The Ministry refused to process it because it was untimely. The union then tried to go the regular route under the collective agreement but the grievance was then out of time. The grievance was not allowed to proceed under section 44(6). Counsel also referred to cases referred to in that decision, including Toronto East General Orthopaedic Hospital Inc., 1980 CanLII 3964 (ON LA), 28 L.A.C. (2d) 74. The company did not lull the union into a false sense of security. There was no confusion, no lack of knowledge. The company says that the cases are well established that the case crystallizes on the day of the assignment, which was February 19. Therefore the delay is approximately 90 days even if one accepts the explanation given for May and June. We are asked to conclude there are simply no reasonable grounds in this case.

9. Furthermore, this is not a continuing grievance like in Ontario Hydro, supra. Counsel cited Re United Glass Workers and Dominion Glass, [1973] OR. (2d) 408, for the proposition that the mere fact that the effects continue is not enough to make something a continuing grievance. Counsel also argued that the retro-activity on a matter such as this would be limited to the time limit for filing a grievance under the collective agreement. Here, he says there would be no damages within those time limits because the swamper was gone more than 60 days before the grievance was filed.

10. Union counsel asked us to look at the Ontario Hydro, supra, decision in a different light than employer counsel suggests. He said perhaps the distinction drawn by the Board in that case between a dispute and a grievance can be sustained on the basis that there is a difference in the nature of the grievance procedures between the collective agreement in the Ontario Hydro, supra, decision and the one at issue here, the National Pipeline Agreement. A dispute had no status as a grievance until after the preliminary discussion in the collective agreement considered in Ontario Hydro. There is no such distinction in the Pipeline Agreement; there is no difference in status between what is a "difference" and that which is submitted in writing. Therefore he argues that the distinction in Ontario Hydro should not be applied in this case.

11. Mr. Wahl suggests that section C of the grievance procedure set out above, which contains the 60 day time limit, is satisfied by the wording of the letter of March 6, 1991 which was filed in a timely manner. It went to arbitration and the parties appeared at the Board on April 23, 1991 to deal with it. Mr. Flook was there for half an hour and lent support to the District Council's grievance. Counsel argues that from an agency point of view there is a valid grievance on behalf of the International, particularly since it was copied on the grievance. The decision of the Surdykowski panel dealt with the capacity to refer the grievance. Mr. Wahl says that the issue argued was that only a party to the collective agreement had the power to refer the grievance to arbitration and not whether the March 6 letter was a grievance. In his view everything else in the decision is obiter. He also said there is a distinction to be made between dismissing the proceedings and dismissing the grievance. Insofar as the Surdykowski decision dismisses the grievance, counsel asserts it was without benefit of the argument of counsel in that respect and therefore should not be followed.

12. In the alternative Mr. Wahl argues, should the Board find that the March 6th grievance is not before us, the June 19th letter clearly makes reference to the March 6, 1991 letter.

13. After April 23, 1991, the union argues that the whole matter was sub judice, in the process of being tried by the Board. He says that to suggest that the union was negligent by inaction when the matter was under consideration by the Board is preposterous.

14. As well, union counsel submits that the matter is an all fours with The Lummus Company Canada, supra, that there is a separate grievance arbitration process under the Labour Relations Act. Once it is resorted to, the proceedings under the operative collective agreement are vacated. Therefore, the time limits in the collective agreement are not applicable to this matter due to the opening words of section 124.

15. Further the union argues that the matter is a continuing grievance as mentioned in both the letters of June 19 and March 6. The union reads Dominion Glass, supra, differently than the employer does. It says that all the case decided is that the Board of arbitration had given the collective agreement an interpretation it could reasonably bear and therefore the court ought not to interfere. Mr. Wahl refers to page 410 of the decision for a support for the idea that it was a continuing grievance, as well as Port Colborne General Hospital and O.N.A., 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323. The union submits that each day a teamster performed the swamper work, the matter constituted a new violation. They say not only is Dominion Glass to be read carefully but section 44(6) was enacted after that decision and invites a different conclusion.

16. After the hearing Mr. Wahl mailed the Board a decision of the Nova Scotia Supreme Court, Appeal Division in Re United Brotherhood of Carpenters and Yorkdale Drywall Ltd., 1987 CanLII 5317 (NS SC), 40 D.L.R. (4th) 357. The case finds that the time limit for filing a grievance did not affect the measure of compensation.

17. In any event, the union argues, section 44(6) should be used to extend the time limits to make the June 19, 1991 grievance timely. Counsel referred to Becker Milk 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217, for the criteria that should be looked at. These are: reason for delay, the length of delay and the nature of the grievance. He says this is not comparable to Tend-R-Fresh, supra, which was a question of election of forum and therefore not comparable to the facts of this case. He refers to Re Algoma Contractors Ltd. and USW, 1980 CanLII 4027 (ON LA), 25 L.A.C. (2d) 292 as support for the request to extend the time limits as the arbitration board found the fact was an ongoing problem between the parties to be a reason to extend time limits under section 44(6).

18. The union submits that the length of delay should be counted from June 13, 1991, some five days before the grievance was filed which included a weekend. Once Mr. Flook learned on June 13th that the Board's decision had been released he acted with great dispatch and the grievance was issued very shortly after that. Once the matter is no longer sub judice the union acts immediately. He said that this case was comparable to Falconbridge Nickel Mines, 1981 CanLII 4534 (ON LA), 1 L.A.C. (3d) 158 because in that case the union was allowed to make use of section 44(6) because of the evolving jurisprudence with parties who were a stranger to their collective agreement. Here it is a matter of evolving jurisprudence directly related to the collective agreement in issue - all the more reason to exercise the discretion under section 44(6). An additional consideration is that damages have stopped running as the job is finished.

19. Counsel also relied on Aimco Industries, 1976 CanLII 2103 (ON LA), 12 L.A.C. 258 which applied section

37(5a) [now 44(6)] to relieve against time limits for the initiation of the grievance. The union says that the fact that the work is over does not take away from the fact that within approximately 60 days of June 19th the work was being performed by an employee outside the bargaining unit.

20. As well the company did not object to the timeliness at the outset of the grievance procedure as it should have done. In support for this counsel refers to Falconbridge Nickel, supra, and asks that we find the company has waived this objection.

21. Employer counsel says in reply that this is mainly an attempt to re-argue the Surdykowski decision. The Surdykowski panel's decision disposed of the March 6, 1991 grievance as follows, in paragraph 26 of its May 21, 1991 decision:

We are satisfied that the applicant Labourers' International Union of North America, Ontario Provincial District Council is not a party to the Pipeline Agreement and therefore has no status to either bring the grievance herein or refer it to the Board. The grievance is therefore dismissed.

He strenuously objects to the characterization of the District Council acting as agent for the International. He submits that the Surdykowski decision was clear that there are two separate entities and that the District Council is not a party to the collective agreement. Because of that fact the District Council could not bring the grievance and could not have referred it. Therefore the March 6th letter is not a grievance. Since it is not a grievance, Mr. Peterson argues that we must consider the situation as there being nothing at all between the assignment of the work and June 19th. The March 6th grievance simply had no status.

22. Mr. Peterson says that the sub judice argument has no foundation in law and that the distinction between the situation and the wording in Ontario Hydro, supra, is not one we should act on. He finds that the Pipeline agreement follows the pattern in the Hydro collective agreement quite closely. He suggests that The Lummus Company Canada, sup ra, decision was quite rightly distinguished by the Board in Ontario Hydro and that the issue in Ontario Hydro and the issue here today is not the same as the issue in The Lummus Company Canada. He says Ontario Hydro stands for the proposition that time limits should be binding especially in the construction industry, and that is what we should follow.

23. As to the nature of the grievance, counsel does not agree it is continuing and feels that if discharges are the ones for which the most leeway should be given, this kind of grievance is far down the spectrum and little, if any, leeway should be given. As to Dominion Glass, supra, employer counsel points to page 411 where the Court said a work assignment grievance was not a continuing grievance. There is no evidence that legal counsel was to take care of the matter or that they were waiting for a decision like in Falconbridge, supra. Counsel submits the latest date after which they should have grieved was April 22nd, when the International was told that the earlier grievance would be argued on the basis of no status for the District Council. There is no explanation for their failure to grieve after that. Counsel suggests that the fact there are no damages should impact on our discretion when we consider the nature of the grievance.

24. Should the timeliness objection lead to the dismissal of this grievance? The union submits the employer has waived its right to make the objection by not doing so earlier. Although it may be true that the company should have raised the timeliness objection earlier, we do not have sufficient factual basis before us to find either waiver or estoppel. No evidence was called on this and none of the agreed facts speaks to this aspect of the case. Therefore we will consider the various aspects of the employer's objection. Firstly, we observe that the employer's characterization of the time limits as mandatory was not disputed by the union.

25. We are of the view that is unnecessary to decide whether the matter is a continuing grievance or not. Whether considered as continuing or not, the matter is still untimely under the collective agreement, as the disputed work was finished in mid-April, more than sixty days before the grievance was filed. We say this having considered Mr. Wahl's argument that the March 6 grievance is still before us. The Surdykowski decision clearly dismissed that grievance, which was brought by a different party than the International. Reconsideration of that decision was not sought. Therefore, we consider this grievance to be a different grievance, brought by a separate party and not the same as the March 6 grievance. Nor do we find any merit in the agency argument made by Mr. Wahl on the facts before us.

26. We are therefore left with two questions - whether the time limits are applicable given the wording of section 124 and whether there are reasonable grounds to extend the time limits for filing the grievance pursuant to section 44(6).

27. On the question of the applicability of the time limits of the collective agreement, argument was addressed to the meaning of the wording at the opening of section 124(1) "notwithstanding the grievance and arbitration provisions in a collective agreement", focussing on the proper interpretation and potential conflict between the Board's decisions in Ontario Hydro and The Lummus Company Canada, supra. In the final analysis, given our view of the application of section 44(6) to this matter, it is unnecessary to decide this facet of the argument.

28. Section 44(6) of the Act reads as follows:

44.-

(6) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

It is made applicable to construction industry grievances by section 124(3). The collective agreement in question does not make section 44(6) inapplicable. No prejudice to the employer was argued, so the only question to be answered is whether there are reasonable grounds to extend the time limits.

29. We have looked at the criteria from Becker Milk, supra, in turn. We have taken the approach that all the factors should be weighed as an interrelated group to determine whether as a whole, there are reasonable grounds to extend the time limits. See Greater Niagara General Hospital, supra.

30. The reason for the delay here is most easily described as a mistake as to who the proper grieving party should have been. Although that mistake itself is largely unexplained, once made, the International's waiting for the outcome of the Board's decision is plausible, if not the most prudent course of action. We do not think this conduct was unreasonable. Although this does not, on the other hand, make for reasonable grounds to extend the time limits in and of itself, we do not think it is a bar to the granting of section 44(6) relief given the other circumstances of the case. As well, we have weighed heavily the fact that the period of delay was taken up with action on this issue which involved the employer and the International peripherally. There could have been no mistake in the employer's mind as to whether the matter was a live issue or whether the International was concerned about the matter. This is not the situation of Hurlenco, supra, where no reasons whatsoever were given for the inaction.

31. The length of the delay is a matter of significant concern, particularly given the construction industry and the desire for expedition which is at the root of the reason for the existence of the expedited arbitration process in the construction industry. See The Lummus Company Canada and Ontario Hydro, supra, for a discussion of the Waisberg Report and the rationale for the provisions. We have considered the employer's point that the delay is excessive in the construction industry, and that the grievance should be dismissed for this reason alone. Given the other considerations in this matter we do not find the length of delay warrants dismissal of the grievance. Given the Surdykowski decision, technically nothing existed between February 19 and June 19 and thus the delay can be measured as 60 days beyond that allowed by the collective agreement. However, as the period of delay was actually experienced, the time lost to the International's delay is more realistically measured from the date of the earlier grievance, March 6, to that of the International's grievance, June 19. In the final analysis, we are of the view that this amount of delay can appropriately be dealt with in considering what, if any, remedy is owing the International if the grievance is ultimately successful. We note that the issue of the effect of section 124 on the time limits arose and was resolved in Ontario Hydro, supra, in the context of the effect of delay on the Board's exercise of its remedial power. Further, we are of the view that it does not follow, as argued by the employer, that the matter should not be heard, if no monetary damages would flow for the period of delay. There may be other remedies, or value in a declaration alone, where a labour relations problem would otherwise continue to irritate the relationship between the parties. In any event, we specifically decline to consider at this point what effect any delay would have on such remedy.

32. On the question of the nature of the grievance, it was clear from all the circumstances of the case, that this is a matter that is of larger concern to the parties than this one finished piece of work. It involves the nature of the assignment process as well as the competing interests of the two unions. This type of consideration alone was enough to warrant extension of the time limits in Re Algoma Contractors, supra, and was one of the deciding factors in cases such as Greater Niagara General Hospital, 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 and Falconb ridge Nickel, supra.

33. As well it is a grievance in which there can be honest debate about whether the matter is a continuing grievance, especially if one takes into account the aspect of the grievance concerning dues and other remittances payable over the period in question. See in this regard Re. Port Colborne General Hospital v. O.N.A., supra, and the cases cited therein. If it were to be considered a continuing grievance, the amount of time that the grievance was out of time beyond the time limits in the collective agreement is a matter of a few days.

34. Although there is a theoretical analogy between Tend-R-Fresh, supra, and the facts of our case, there is also an important difference. The grievance which the Board of arbitration was considering in that case was the very same grievance in which it found an election had been made for the expedited procedure. Here we are dealing with a fresh grievance from another party, and not an attempt by the District Council to revive the March 6 grievance. We are not persuaded that we should adopt the reasoning in Tender-R-Fresh as determinative in this matter.

35. When looked at as a whole, the above factors persuade us that there are reasonable grounds to extend the time limits so that the dispute at the basis of this matter can be resolved. In summary, the cause for the delay was not unreasonable, the length of the delay is such that it can be dealt with, if necessary, as a remedial matter, and the nature of the grievance is such that it will likely benefit the relationship between the parties to have it resolved.

36. This panel is not seized of the matter. It is referred to the Registrar for rescheduling to deal with the other preliminary matters and the merits, if necessary.