IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
THE CANADIAN COUNCIL OF RAILWAY SHOPCRAFT EMPLOYEES AND ALLIED WORKERS REPRESENTING THE INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS
AND IN THE MATTER OF GRIEVANCE OF GRIEVANCE OF P. H. HANSEN
SOLE ARBITRATOR:J. F. W. Weatherill
There appeared on behalf of the Union:
B. Hanson, counsel
And on behalf of the Company:
M. Shannon, counsel
A hearing in this matter was held at Montreal on August 14, 1984.
In this case, the parties have filed separate statements of fact and issue. The union statement is as follows:
UNION’S STATEMENT OF FACT
On June 9, 1983, the Union filed a Step II grievance in accordance with the Collective Agreement between CP Rail and the International Brotherhood of Firemen and Oilers, requesting the reinstatement of employee Hansen.
On June 22, 1983, the Company wrote the Union saying that "the discipline that was assessed Mr. Hansen was fair and I am unable to recommend any change in the decision which has been reached." The letter made no reference to the grievance procedure or the collective agreement.
On July 13, at a meeting, the Union presented new evidence to the Company.
On July 29, the Company advised the Union that after considering the case once more, there was no change in its position.
Following a further exchange of correspondence, the Company subsequently advised the Union that it considered the grievance dropped because of the time limits in Article 8.18 having been exceeded.
It is the position of the Union that the grievance is arbitrable.
The company statement is as follows:
COMPANY STATEMENT OF FACT
On June 22, 1983, the Company dented a Step II grievance requesting reinstatement of P.H. Hansen.
The next step in the grievance procedure is a presentation of the grievance to a Joint Committee of Appeal.
On November 9, 1983, the Company responded to the Union’s request of October 28, 1983 for review of the grievance by the Joint Committee of Appeal by stating in part that the grievance should be considered as dropped since the request was not timely.
COMPANY STATEMENT OF ISSUE
The Company contends that the Union exceeded the 90-day time limit provided in Article 8.18 for requesting a Joint Committee of Appeal and that consequently the grievance most be considered as dropped per Article 8.13.
The Union denies this contention.
There is no substantial dispute as to the facts. The grievor, a Labourer, was hired by the company on September 2, 1973, and was discharged on April 25, 1983, on the ground that he had improperly charged to the company a hotel room used for personal reasons on March 5, 1983. A grievance was filed, and was processed at steps I and II of the grievance procedure. The company’s answer at step II of the grievance procedure, denying the grievance, was made on June 22, 1983.
Under article 8 of the collective agreement, Investigations and Grievance Procedure, the next step open to the union would have been the submission of the matter to a Joint Committee of Appeal. Such a committee, and its procedure, is dealt with in articles 8.17 to 8.22 of the collective agreement, which articles are as follows:
8.17 (a) A Joint Committee shall be constituted to consist of two members representing the Company and two members representing the employees.
(b) The Committee shall meet as may be required. It shall elect a Chairman and Vice-Chairman from its members. The office of Chairman shall be filled at alternative sittings by a representative of the Company and a representative of the employees. While the office of Chairman is being filled by a representative of the Company, the office of Vice-Chairman shall be filled by a representative of the employees and vice versa.
8.18 A grievance not settled at Step II of the grievance procedure may, within ninety calendar days following receipt of the decision under such step, be submitted in waiting by the union and Railway officer designated in such step to the Joint Committee of Appeal for decision in accordance with the following procedure:
(a) Signed copies of a joint application shall be submitted not later than thirty days before the proposed date of the meeting to the Chairman and Vice-Chairman of the Joint Committee of Appeal.
(b) The joint application shall contain a Joint Statement of Issue, with clear and complete reference to the specific provision or provisions of the collective agreement which it is alleged has or have been violated and a Joint Statement of Facts relating to the alleged violation.
(c) In the event the two parties are unable to fully agree in presenting (i) the Statement of Issue and/or (ii) the Statement of Facts, they are required to record jointly the features on which they can agree, and record in the joint submission, but identified as their individual views, those items on which they do not share a common view.
(d) At the hearing, each party shall submit, either orally or in writing, their individual contentions in the case.
8.19 Disputes heard before the Joint Committee of Appeal shall be decided by a majority vote. The decision rendered by the Joint Committee of Appeal shall be accepted as final and binding. The decision of the Joint Committee of Appeal shall not in any case add to, subtract from, modify, rescind or disregard any provisions of this collective agreement, and no dispute or matter on which a decision has been rendered by the Joint Committee may be reopened, except by unanimous consent of the members of such Joint Committee of Appeal.
8.20 Each party hereto shall assume any expense incurred by it in connection with attendance at the hearing of the Joint Committee of Appeal or presenting cases to it.
8.21 Committee or employees shall be granted leave of absence and free transportation for adjustment of differences between the Company and employees.
8.22 The time limits specified in Article 8.18 may be extended by mutual agreement between the proper officer of the Company and the General Chairman.
Where a dispute is not settled at the Joint Committee stage it may then, by article 9.1 of the collective agreement, be referred to arbitration. By article 9.2 the party requesting arbitration must so notify the other party in writing within 60 calendar, days following the date the decision was rendered.
In the instant case, the grievance was not submitted to the Joint Committee of Appeal within ninety calendar days of receipt of the decision at step II. For that reason, the company contends that the grievance must be considered to have been dropped, and that it is not subject to further appeal and is inarbitrable. It is the union’s position that the provisions of article 8.18 (allowing submission to the Joint Committee of Appeal within ninety days of the decision at Step II), are directory only; that there is no Joint Committee of Appeal; that in the circumstances the company is estopped from relying on the provisions of the collective agreement, and that for these reasons the matter is arbitrable.
Before dealing with these contentions, certain other material circumstances should be set out. The provisions of the collective agreement relating to the Joint Committee of Appeal were, it is said, put into the collective agreement by the parties in 1975. It would appear that the Committee therein contemplated has never in fact been created – at least, virtually never before the circumstances of the instant case arose. It is to be noted, however, that until that time there would appear to have been no, or at least very few grievances sought to be processed beyond the step II level by there parties.
With respect to the instant case, while the step II decision was made on June 22, 1903, the union made a further submission to the company on August 16, 1983. While this was not a submission of a sort contemplated by the collective agreement, there was nothing wrong with such an informal approach, and the submission was considered by the company. Its answer on the merits of the submission, denying the claim, was made on October 4, 1983, after the period for submission to the Joint Committee of Appeal had expired. Prior to this, however, on September 1, 1983, while there still remained ample time for the submission of the grievance to a Joint Committee, the company had written to the union in response to the August 16 letter to say that it would consider the matter, and to remind the union of the provisions of article 8.18 of the collective agreement and of the time limits therein. In the concluding paragraph of his letter, the Manager, Labour Relations stated:
While I am willing to discuss any grievance and seek an early satisfactory settlement to both parties, I do not wish to interfere with the various steps of the grievance procedure and want to point out that any submission to a Joint Committee of Appeal through the Canadian Council, in order to comply with the time limits, must be made within the ninety, days following receipt of the Company’s reply at Step II.
In the instant case, the ninety day period following the decision at step II expired on September 20, 1983. Although the union considered what had been said in the company’s letter with respect to a submission to the Joint Committee, it made no reply to that letter. On October 28, 1983, however, the union wrote to the company asking that the matter be submitted to a Joint Committee of Appeal. Later, on November 16, it sought to submit the matter to arbitration. The company consented to submit the matter to arbitration subject to the determination by the arbitrator of the issue of arbitrability.
It is clear from the provisions of the collective agreement that where a grievance has not been settled at step II of the grievance procedure the next step, if it is sought to continue with the grievance, is to submit it to a Joint Committee of Appeal. A substantial and reasonable time limit – ninety days – is set out for the taking of that step. The time limit, in my view, is, like the others set out throughout the grievance procedure, a mandatory one. The provision that a grievance "may" be submitted to the Committee within ninety days is most aptly described, l think, as "permissive", rather than "mandatory" or "directory". To say that a matter "may" be submitted within ninety days is not – in the context of article 8 of the collective agreement, read as a whole – to say that it may equally well be submitted at some later time. The consequence of failure to process grievances within the time limits provided is set out in article 8.13 of the collective agreement, and is that a grievance "not progressed within the time limits specified shall be dropped and shall not be subject to further appeal". This provision applies, I think, to all stages through which the collective agreement contemplates a grievance may be progressed, notwithstanding that article 8.13 itself occurs within the group of provisions dealing particularly with steps I and II of the procedure.
There is, in my view, no ambiguity in article 8.18 as to the procedure to be followed nor as to the time within which it may be invoked. There is no evidence to establish any "latent" ambiguity in this respect: the past practice of the parties was referred to, but this "practice" amounts to nothing more than the fact that the provisions of article 8.18 have rarely, if ever, been sought to be invoked; there is no past practice in the proper sense, and it has not been established that the parties had in fact some real agreement different from that set out in the collective agreement itself.
It was argued that the company is, in the circumstances described, estopped from relying on the provisions of article 8.18.
This is a difficult contention for the union to defend, for it was the union which, by its letter of October 28, 1983, sought to invoke the Committee procedure. The company had, quite properly, reminded the union of the existence of that procedure at a time when it was still possible to comply with its requirements. It had made no representation to the union prior to that, to the effect that it considered article 8.18 to be no longer part of the collective agreement, or that it would not rely on the time limits in that article. It may be that one or both of the parties had, in the past, virtually ignored the existence of articles 8.17 to 8.22, perhaps because there was no occasion to make use of them. They did not, however, simply disappear from the collective agreement for want of being resorted to. This is not a case in which the union can be said to have relied to its detriment on any representations made by the company. There was evidence to the effect that if the union had known the company would rely on the provisions of article 8.18, it would have sought to change or eliminate those provisions. The provision of a grievance procedure, however, can scarcely be said to be a detriment to the union.
It would appear to be precisely because resort to the Joint Committee procedure was rare that the company reminded the union, in timely fashion, of the requirements of that procedure in the instant case. It did not, by words or conduct, induce the union to go out on a limb so that it could cut it off (as the principle behind the notion of estoppel is sometimes explained). On the contrary, it specifically drew the union’s attention to the procedure to be followed. These are not circumstances in which the company is estopped from relying on the provisions of the collective agreement.
It is true that there was, at the material times, no existing Joint Committee of Appeals. The timely invocation of such a Committee pursuant to article 8.18 would, however, clearly place an obligation on both parties to meet the requirements of article 8.18, and to establish a Committee. A party who failed to carry out such obligations would, it would seem clear, be estopped from raising the failure to proceed pursuant to article 8.18 as reason, for the contention that a grievance was not arbitrable. That is, however, not the instant case.
In the instant case, the matter was not proceeded with in accordance with the provisions of the collective agreement and in particular was not submitted to the Joint Committee of Appeals within the time limits set out in the collective agreement. The delay was a substantial one. I have no jurisdiction to grant relief against such failure.
For all of the foregoing reasons, it must be my conclusion that the matter is not arbitrable, and the grievance is accordingly dismissed.
DATED AT TORONTO, this 10th day of September, 1984.
(signed) J. F. W. Weatherill