IN THE MATTER OF THE "CANADA LABOUR CODE" R.S.C.
AND IN THE MATTER OF AN ARBITRATION
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL UNION NO. 1574,
IN THE MATTER OF KENNETH W. BERCGREN
Arbitrator : Mr. Dwayne W. Rowe
Counsel : Mr. Timothy S. Preston, Q.C. for NorthwesTel Inc.,
("the Company"), and
Roland S. Boone appearing for Local Union No. 1574
The hearing for this arbitration was held at Whitehorse, Yukon on January 20, 1988.
NorthwesTel Inc., (the Company), and the International Brotherhood of Electrical Workers, Local Union 1574, (the Union) are parties to a collective agreement pursuant to which I am the arbitrator chosen by the parties to resolve the grievance by making a final and binding decision.
The issue arising, by way of preliminary objection by the Company, is whether or not the grievor is out of time in filing his grievance pursuant to the provisions of the collective agreement then in effect.
On February 15, 1985, the grievor was relieved of duties as foreman previously assigned to him by the Company, thereby no longer being entitled to a 5% premium of pay under 20.03 of the agreement.
On October 27, 1986, the grievor filed his grievance complaining of being stripped of his responsibilities as foreman. Such complaint forms part of the materials filed as Exhibit 1 in this hearing.
Mr. Preston argued that the various time limits set out in the collective agreement were to be construed as mandatory. Alternatively, if said time limits were not to be strictly construed, then the delay in submitting the grievance was such that I should not exercise discretion so as to extend the time period and permit the matter to be heard on its merits. Mr. Preston further argued the alleged breach of the agreement was a single breach and not a continuing breach so as to cause abrogation of ordinary time limitations.
Mr. Boone submitted the matter did indeed fall into the category of a continuing breach. Further, he argued the time periods referred to in the various articles of the collective agreement while "fairly mandatory" or as having a "mandatory flavour", still permitted the arbitrator to exercise discretion to allow the matter to proceed on its merits. He pointed out that under Article 24.08 of the collective agreement no award of more than 60 calendar days of retroactive pay was permitted and therefore the "downside" of the Company was restricted and ought to be taken into account in weighing the interests of fairness in denying the grievor the right to have a hearing on the merits.
Article 24 of the agreement deals with matters of time as it relates to grievance procedures. Under 24.01 an employee "may (underlining is mine) with 30 days of the cause of grievance submit such grievance in writing with the employee’s supervisor". Paragraph 24.01 goes on to allow an extension of 5 working days for the filing of the grievance if the grievor was assigned away from headquarters, the 5 working day period to commence on the date of the grievor’s return.
Under paragraph 24.02 the time limits referred to in Step 1 of the grievance procedure "will be automatically extended (underlining is mine) if the aggrieved employee was bona fide absent from work due to illness or any other form of authorized leave. As previously mentioned, paragraph 24.08 restricts retroactive pay to 60 days prior to submission of a grievance at Step 1, retroactive pay to 60 days.
Under paragraph 24.09, "any grievance not progressed within the prescribed time limits shall be considered settled on the basis of the last decision and shall not be subject to further appeal".
While these paragraphs and the entire Article 24 make several references to time, I find that read in total they do not establish mandatory time limits. Obviously, the parties to the collective agreement in establishing a step by step grievance procedure intended such matters to proceed in an orderly and timely fashion. However, in my view the language used by the parties in the agreement is not sufficiently precise to rule out in the appropriate case, relief against strict adherence to a specific period of time.
I have had to benefit of the decision of L. Getz in the case Re Province of British Columbia and British Columbia Nurses’ Union (1982) 5 L.A.C. (3d) 405. The issue there also involved a consideration as to whether or not the grievance could be properly characterized as being of a continuing nature. I agree with the analysis of Mr. Getz and in this case hold the grievance not to be continuing in nature. It is true the effects of the grievance, if valid, would be ongoing but the action leading to the submitting of the grievance must be construed as a single act.
Having held the time periods in Article 24 not to be construed as mandatory, should I exercise my discretion in favour of the grievor and permit him to proceed with his grievance notwithstanding the delay ? The delay was from February 15, 1985, (the date of the reassignment of foreman duties) to October 27, 1986, (the date of grievor’s complaint). There was no concrete explanation of the lengthy delay before me. In my view the ordinary rules as to whether or not to grant relief against time periods are applicable. Usually, the longer delay, the greater is the need for an adequate explanation thereof in order to convince the decision maker to grant relief as an exercise of discretion.
I find the parties to the agreement must have intended references to time periods in Article 24 to have some importance and in some instances the language used suggests the periods were to be regarded as mandatory. Barring an exceptional circumstance and given an adequate explanation of a delay in submitting a grievance, these periods of time must be looked at in context as being of significance. There is clearly, on the part of both signatories to the collective agreement, an intent to structure the grievance process both as to form and to time. While I hold I do have the jurisdiction to extend the time for proceeding with the grievance, I decline for the reasons stated, to exercise that discretion in favour of the grievor and to permit the matter to proceed further.
DATED this 21st day of January, 1988, at Whitehorse, Yukon.
Dwayne W. Rowe, Arbitrator