[1996] OLRB REP. FEBRUARY 178
3595-95-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. Zentil Plumbing & Heating Contracting Ltd., Responding Party
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Brian G. Whitehead, Vince McNeil, Jack Cooney and Armando Rescignio for the applicant; Bill Anderson and Mario Fattore for the responding party.
DECISION OF THE BOARD; February 19, 1996
This is a referral to the Board of a grievance in the construction industry pursuant to section 133 of the Labour Relations Act, 1995 (hereinafter "the Act"). The grievance was referred to the Board for arbitration by the applicant ("hereinafter the union") on January 8, 1996, and came on for hearing on February 6, 1996.
There is no dispute that the responding party, Zentil Plumbing & Heating Contracting Ltd. ("hereinafter the employer") is bound by the terms of the collective agreement between the Metropolitan Plumbing and Heating Contractors Association and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 46 ("hereinafter the collective agreement") for work performed in the high rise portion of the residential sector of the construction industry.
During the course of the hearing, the Board heard the evidence of the grievor, Mr. Armando Rescignio, and of the General Manager of the employer, Mr. Mario Fattore. The parties also agreed on a substantial core of the facts which were presented to the Board. The Board has considered all of the evidence before it and makes the following findings of fact.
The grievor entered into a contract of apprenticeship with the employer on or about June 20, 1989. The terms of the contract required the employer to pay a certain percentage of the journeyman's rate to Mr. Rescignio dependent upon the number of hours worked as an apprentice, commencing at 40% of the journeyman rate, and eventually peaking at 80% of the rate during the grievor's 5th year of apprenticeship. A second, amended contract of apprenticeship was entered into between Mr. Rescignio and the employer in 1992 which had the effect of altering the grievor's rate of pay to 85% of the journeyman's rate during his 5th year of apprenticeship.
Mr. Rescignio received the wages to which he was entitled throughout his apprenticeship until the end of his fourth year of apprenticeship in December, 1993. After that time, the wage which he was paid by the employer was well below the rate to which he was entitled.
In December, 1993 Mr. Rescignio approached Mr. Fattore and enquired regarding the wage increase that he expected to receive entering into his fifth year apprenticeship. Mr. Fattore advised the grievor that times were tough, money was tight~ and that he could not afford to give Mr. Rescignio the increased rate of pay to which he was entitled. The employer did not increase Mr. Rescignio's wage rate at that time. Mr. Rescignio did not approach the union regarding the situation.
Two similar discussions between Mr. Rescignio and Mr. Fattore took place within ten months of the discussion in December, 1993. In or about March, 1994, Mr. Rescignio approached Mr. Fattore for a letter confirming his employment and salary, for the purposes of purchasing a home. At the time, the grievor asked Mr. Fattore about an increase in his wages. Mr. Fattore replied that the work was slow and, although this was a point of contention between Mr. Rescignio and Mr. Fattore in their testimony, on balance I am also satisfied that Mr. Fattore indicated to the grievor that he could "take it or leave it". Ultimately, the grievor did not approach the union regarding the circumstances and continued to work at the lower rate.
The final meeting between the grievor and Mr. Fattore respecting Mr. Rescignio's wage rate occurred during October, 1994. Mr. Rescignio, having returned from his honeymoon, asked Mr. Fattore for work and, upon being advised that he could return to work for the employer, enquired regarding the wage rate. The grievor was advised at that time that he would not be provided with a "raise" to the contract rate, because the employer could not afford to pay the contract rate. Again, although this was disputed between the grievor and Mr. Fattore, I am satisfied, on balance, that Mr. Fattore told Mr. Rescignio that he could hire people "off the street" for one-half of the contract rate. Notwithstanding the employer's unwillingness to pay the proper rate to him, Mr. Rescignio returned to work for the employer, and did not advise the union of the situation.
On or about February 9, 1995, the grievor was laid off. Shortly thereafter, he approached Mr. Jack Cooney, the union's Educational Co-ordinator, and advised him of the circumstances described above. On March 24, 1995, Mr. Cooney wrote to the employer grieving the improper compensation provided to the grievor. One month later, Mr. Fattore responded by asserting that Mr. Rescignio had agreed to the rates paid "due to the economy". The matter was not pursued for over eight months. Ultimately, counsel for the union wrote to the employer on January 5, 1996, advising of the union's intention to refer this grievance to the Board for arbitration.
Mr. Rescignio testified that he did not contact the union respecting his pay differential because he believed, as a result of Mr. Fattore's comments to him, that his employment with the employer would be ended should he grieve. He testified that he thought that the message Mr. Fat-tore was sending was that if he did not like the pay level that was being offered, he could leave, and therefore he concluded that to complain to the union would result in his layoff.
The collective agreement in effect between the parties provides for the submission of grievances and their referral to arbitration. An aggrieved employee is to submit a grievance orally or in writing to his foreman on the job within 48 hours of the occurrence giving rise to the grievance. If a decision satisfactory to the employee is not provided within 48 hours from the submission of the grievance to the foreman, a written submission is to be made to a Joint Conference Board. That Board is required to convene and consider the grievance forthwith, and to give a decision in writing within 4 days of submission of the grievance. If the grievance is not satisfactorily settled by the Joint Conference Board, it may be referred to arbitration within 14 days from the initial submission of the matter to the Joint Conference Board.
There is no dispute that this grievance was both delivered to the employer and referred to arbitration well beyond the time limits contained in the collective agreement. Accordingly, the parties agreed that the Board must initially consider the question of whether the time limits contained in the collective agreement should be extended by the Board, as is permitted by sections 48(16) and 133(3) of the Act. The relevant provisions of the Act read as follows:
(16) 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, despite the expiration of the 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.
(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 subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
Argument was entertained from counsel on the nature and scope of section 48(16) of the Act. During the course of argument, the Board was referred to the following authorities: Sinclair Welding Limited [1981] OLRB Rep. Dec. 1822; The Lummus Company of Canada Limited [1976] OLRB Rep. Jan. 980; Hurlenco Limited [1981] OLRB Rep. June 683; Ontario Hydro [1987] OLRB Rep. April 574; Fernview Construction Limited (Board File 3228-90-G, unreported decision dated April 15, 1991); and Re Bakery Glaco (Ecko Canada Inc.) (1991), 1991 CanLII 13342 (ON LA), 21 L.A.C. (4th) 265.
It is apparent from a plain reading of section 48(16) of the Act that, before the Board may exercise its discretion to extend the time for the taking of any step in the grievance procedure under a collective agreement, it must be established to the satisfaction of the Board that there are reasonable grounds for the extension of the time limits which have not been observed. On the facts of this case, I am not satisfied that reasonable grounds exist for such an extension.
Assuming, without deciding, that Mr. Rescignio's explanation for the delay in approaching the union regarding his rate of pay establishes reasonable grounds for extending the time limits contained in the collective agreement, there is no explanation at all from the applicant regarding the delay in referring the grievance to arbitration. On or about April 24, 1995, the union was in receipt of Mr. Fattore's response to the grievance of the union dated March 24, 1995. It would appear that no further word was heard by the employer from the union or its counsel until January 5, 1996, when counsel wrote to the employer to advise that this proceeding would be launched. Despite the availability of two potential witnesses at the hearing to explain this delay, no testimony was offered by the applicant. There is, accordingly, no explanation, reasonable or otherwise, to account for the 8 1/2 month delay in referring Mr. Rescignio's grievance to arbitration.
In all of the circumstances, I am not satisfied that there are reasonable grounds to extend the time limits contained in the collective agreement for the referral of this grievance to arbitration. Notwithstanding that the employer's breach of the collective agreement was blatant and inexcusable, in the circumstances I am required to dismiss this grievance.