AND

SOLE ARBITRATOR: J. F. W. Weatherill

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:

The company statement is as follows:

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:

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:

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.

Arbitrator