SHP 329

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers

GRIEVANCE RE BOILERMAKER D. EKOSKY, WESTON SHOPS

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner - Executive Secretary, C.C.R.S.U.

Pierre Watson - System General Chairman (CP), IBB&B

 

 

There appeared on behalf of the Company:

D. J. David Labour Relations Officer, Montreal

R. A. deMontignac Supervisor, Welfare Plans, Montreal

A. Y. deMontigny Supervisor, Personnel & Labour Relations, Mechanical Department, Montreal

D. Johnson Assistant Manager, Office Administration, Industrial Relations, Montreal - Observer

 

A hearing in this matter was held in Montreal on October 4, 1990.

 

AWARD

This dispute concerns the issue of the arbitrability of the grievance of the Brotherhood in respect of a wage claim filed on behalf of Grievor D. Ekosky, employed at Weston Shops in Winnipeg. The facts related by the Union, which may be referred to for the purposes of this issue, establish that on August 14, 1986 Mr. Ekosky became disabled in an automobile accident. He applied for weekly indemnity benefits, on a form signed by his physician which indicated that he would return to work on September 2, 1986. When he returned to work on that date the Company took the position that he needed further medical clearance, as he was previously notified in a registered letter dated August 25, 1986. The grievor denied having received such notification, and in the result management did not allow him to return to work until the further documentation was received. A further written medical certificate was provided by the grievor's physician, and Mr. Ekosky was returned to service on October 1, 1986. It is common ground that he was denied compensation, either in the form of wages or weekly indemnity benefits from September 2 to September 30, in respect of which he grieves.

It does not appear disputed, as a matter of hindsight, that the grievor was in fact physically able to work from and after September 2, 1986. The position of the Company is, of course, that it had no proper medical confirmation of that fact at the time, in consequence of which it denied the grievor's reinstatement until October 1, when the documentation was completed. In the circumstances the grievor, by the characterization of either party, was not entitled to weekly indemnity benefits for the month of September. However, the Disability and Life Insurance Administrative Committee which is a bipartite body, has for some years considered cases similar to those of Mr. Ekosky and has, where it considers the case deserving, approved ex gratia payments equivalent to the amount of weekly indemnity benefits.

The material establishes that the Union progressed a request to the joint committee, at the suggestion of the Company made in a letter of the Manager of Labour Relations dated July 30, 1987. There can be little doubt that the Company's initial contemplation was that the Union would refer the matter to the Administrative Committee as an alternative to proceeding to arbitration with the outstanding grievance.

At a meeting of the administrative committee held on December 9, 1988 in Montreal it was agreed that an ex gratia payment should be made to Mr. Ekosky from and after the time he provided medical information, that is to say from September 18, 1986 until September 30, 1986. It is not disputed, however, that upon learning of the decision the grievor refused to accept those monies, asserting that he remains entitled to full wages for the entire month, and that his grievance remains unresolved.

The position of the Company is that by proceeding before the benefits Administrative Committee the Union effectively waived Mr. Ekosky's grievance for wages. Its representative submits that for many years the consideration of cases by the Committee has been utilized as an alternative to the grievance procedure in cases of this kind, and that, as a general rule, when the Committee approves an ex gratia payment the employee's grievance for wages or indemnity benefits is withdrawn. It argues that the same should operate in the case of Mr. Ekosky, and that the Union is estopped from now proceeding with this grievance.

As a matter of general principle the Arbitrator accepts the validity of the general position put forward by the Company. When a union is progressing a grievance on behalf of an employee, and its officers agree to submit the matter to a benefits Administrative Committee as an alternative, in an effort to settle the grievance, as a general matter they should be bound by the result of the determination of that Committee. In other words, where the actions of both parties indicate that the Union is content to take the matter to a joint committee, as an alternative to the grievance process at a minimum the employer would appear justified in the view that submitting the issue to the Committee would be tantamount to an undertaking to be bound by the Committee's decision, which would terminate the grievance.

The facts in the instant case, however, are not so straightforward. Mr. Watson, one of the Union's System General Chairmen, participated in the deliberations of the Committee as a sitting member. It is not disputed that at the same time he represented the grievor's interest. The representation of Mr. Watson at the arbitration hearing, which the Arbitrator accepts, is that during the course of the Committee's deliberations he made it clear that Mr. Ekosky's claim for wages was not being waived or withdrawn by virtue of the fact that the Union was advancing his case for consideration by the joint committee. In other words, if it could be said that proceeding to the Committee could be presumptively construed as a waiver of the grievance, any such presumption was negated by Mr. Watson's statement to the members of the Committee. Additionally, it does not appear disputed that Mr. Ekosky did not accept the payment ordered by the Committee, which would have amounted to weekly indemnity benefits for a period of some two weeks. The Union's representative indicates that when the cheque was sent to the grievor he simply destroyed it, refusing to accept it as either whole or partial payment of his claim.

In the Arbitrator's view the actions of Mr. Ekosky in declining to accept payment would not, of themselves, be sufficient to overcome the objection of arbitrability raised by the Company. If the evidence disclosed that either Mr. Ekosky or his bargaining agent proceeded before the joint committee in circumstances which would reasonably have led the Company to believe that he was doing so on the understanding that the decision of the joint committee would amount to settlement of his claim, I would be disposed to support the Company's position, notwithstanding Mr. Ekosky's subsequent view of what he got. That, however, is not the turning factor in this case. In my view what is more significant is that at all relevant times the Brotherhood's representative, Mr. Watson, made it clear to the members of the joint committee, including the Employer, that by taking the matter to the Committee neither he nor the grievor was waiving the original claim for wages or withdrawing the grievance which was still outstanding. I do not see how, in that circumstance, the Company can successfully assert an estoppel of the Union.

There may, of course, be reasons for concern at the actions of the Brotherhood. In future cases the Company may question why it should entertain requests for ex gratia payments when it can have no assurance that successful applications will not result in the settlement of outstanding grievances. If the position taken by the Union in this case were taken in all cases it might well undermine the very operation of the joint committee, insofar as the approval of ex gratia payments is concerned. That, however, is a matter for the parties, and not for the Arbitrator.

For all of the foregoing reasons the Arbitrator finds that the grievance of Mr. Ekosky has not been waived or withdrawn by the Union, and that the Company has not established that the Brotherhood is estopped from progressing his claim. The matter is therefore remitted to the parties for further referral to arbitration on its merits.

DATED at Toronto this 16th day of October, 1990.

(sgd) M. G. Picher

Arbitrator