AH - 171

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

CANADIAN PACIFIC LIMITED

 

(the “Company”)

 

 

AND

 

 

CANADIAN PACIFIC POLICE ASSOCIATION

 

(the “Union”)

 

 

IN THE MATTER OF THE GRIEVANCE OF CONSTABLES R.A. SAUNDERS AND M. MAXMENKO

 

 

 

 

SOLE ARBITRATOR:     Mr. C.H. Laberge

 

 

There appeared on behalf of the Company:

                                D.W. Flicker

 

 

And on behalf of the Union:

                                R.M. Skelly

 

 

A hearing in this matter was held at Montreal, Quebec, on the 21st day of February, 1977.

                The two parties having failed to agree on the appointment of an Arbitrator, the Association requested the Minister of Labour of Ottawa to nominate said Arbitrator.  At the Minister’s request I have accepted to act as an Impartial Arbitrator in the above cases and my appointment has been confirmed on November 15th 1976.

 

                The Arbitration hearing took place Monday, February 21st, 1977, in the conference room of the Canadian Pacific, Windsor Station, Montreal.

 

WITNESSES HEARD AND DOCUMENTS SUBMITTED

 

By the Association:

 

Mr. M.J. Doucette, Secretary of the Association.

 

U-1         Documents re:  Mr. Saunders’ grievance.

U-2         Documents re:  Mr. Maxmenko’s grievance.

U-3         Two letters from the Canadian Pacific Police Association to Mr. J.C. Machan, dated July 26th, 1976.

U-4         Letter from Mr. J.C. Machan, Canadian Pacific, to Mr. Doucette, dated August 24th, 1976.

 

Documents of Jurisprudence:

                Superior Court Judgment involving SPANCRETE LIMITED, dated June 26th, 1973

 

By the Company:

 

Mr. M.J. Mickel, Assistant to Chief of Investigation.

 

No document submitted by the Company.

 

Documents submitted jointly by the two parties:

 

A statement of facts signed by Me Skelly for the Association and by Me Flicker for the Company.

 

Copy of the present Collective Labour Agreement.

 

A PRELIMINARY OBJECTION:

 

                Two grievances were made in May 1976, one by Constable R. Saunders dated May 7th, 1976 and the other by Constable M. Maxmenko, dated May 4th, 1976 both from the Toronto area.  In substance, the two grievances are similar and consequently, at step #3 of the grievance procedure, they were treated alike and simultaneously by both parties.

 

                On September 21st , 1976, the Employer (U-1) wrote to the Association and specified in its letter that the application of Article 11.06 would have to be dealt with as a preliminary case if it should go to arbitration.

 

                At the opening of the hearing, on February 21st, 1977, the Counsel for the Association raised immediately a preliminary abjection as to the jurisdiction of the Arbitrator in this case.  The reason for his stand was that the time limits regarding grievance procedure were not adhere to by the Employer and therefore, Article 11.06 of the Agreement should apply automatically.

 

                The question that both parties submit to the Arbitrator is to establish whether or not the Employer has complied with the time limits stated in the Agreement.  Both parties have agreed that this preliminary objection should be decided upon before the Arbitrator proceeds with the merit of the two cases referred above.

THE ISSUE AT STAKE:

 

                The witness of the Association, Mr. Doucette, who is also the secretary of the Association, testified that on July 26th, 1976, he wrote a letter (U-1) addressed to Mr. J.C. Machan, Chief of the Department of Investigation at the Canadian Pacific.  This was step #3 in the grievance procedure and he personally delivered this letter to the Chief’s office in Montreal on the same, July 26th, 1976.

 

                The Company submitted the original letter of Mr. Doucette on which was stamped the date July 27th, 1976, at 8:58 A.M.  Mr. J.M. Mickel, Assistant Chief, stated that the Company procedure is to record the arrival of all documents by stamping each one as it delivered at the office of the Chief of Investigation.

 

                According to Article 11.04 of the grievance procedure, the Chief of the department has twenty-eight days to answer the grievance.  On August 24th, 1976, he wrote his answer (U-4) to the grievance to Mr. Doucette and mailed such letter the very same day.  Mr. Doucette claimed that this letter was received only on the 27th of august at his home address.

 

                The three following articles of the Agreement are relevant to these cases:

 

Article 11.04 - “If the grievance is not settled at Step 2,the Association may appeal the decision in writing, giving the reason for the appeal to the Chief of the Department of Investigation within twenty-eight calendar days following receipt of the decision in Step 2.  The Chief will render a decision within twenty-eight calendar days following his receipt of the appeal.”

 

Article 11.06 - “When a grievance based on a claim for unpaid wages is not progressed by the Association within the prescribed time limits, it shall be considered as dropped.  When the appropriate company officer fails to render a decision with respect to such a claim for unpaid wages within prescribed time limits, the claim will be paid.  The application of this rule shall not constitute an interpretation of the collective agreement.”

 

Article 11.20 - “The time limits as provided in this Article may be extended by mutual agreement.”

 

DECISION

 

                According to the information obtained there has been no mutual agreement as to the extension of the time limits for these two grievances.

 

                Therefore, we must establish according to Article 11.04 if the Chief of Department of Investigation has answered the grievance at step #3 within the twenty-eight days.  Or was the answer given beyond the required period?

 

                Firstly, I have to accept July 26th, 1976, as the date the letter was delivered to the Chief’s office by the Secretary of the Association.  Mr. Doucette testified that he made the delivery personally.  It is possible that the letter was delivered to that office on July 26th, and recorded or stamped only the following morning.

 

                Secondly, I have to accept August 24th, 1976, as the date that the letter of Mr. Machan, the same sate as it was written.

 

                If we determine July 27th, as the first day after the date of delivery of the Association’s letter, we establish that the twenty-eight day falls on august 23rd, 1976.  Consequently, August 24th is beyond the deadline established by the Collective Labour Agreement in Article 11.04.

 

                Furthermore, the Arbitrator has to refer to the two following Articles of the Agreement:

 

Article 11.16 - “The decision of the Arbitrator shall not add to, subtract from, modify, rescind or disregard any provision of this Collective Agreement.”

 

Article 11.06 - “…when the appropriate company officer fails to render a decision with respect to such a claim for unpaid wages within prescribed time limits, the claim will be paid.”

 

                Consequently, the Arbitrator accepts the two (2) grievances and orders the company to pay these two employees the claim recorded in their grievances

 

                Respectfully submitted in Montreal on the 25th day of March, 1977.

 

 

 

 

C.H. Laberge

Arbitrator.