IN THE MATTER OF AN ARBITRATION
NEWFOUNDLAND DOCKYARD CORPORATION
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS
Re: The arbitrability of grievances of X. Farrell, G. Morey, R. Dwyer, C. Downer, J. Lake and J.W. Leyden
SOLE ARBITRATOR: W. Wayne Thistle
There appeared on behalf of the Union:
Terry Meyer General Chairman
Allan Locke Vice General Chairman
There appeared on behalf of the Company:
R. S. Ivany Human Resources Officer
R. A. Simms Manager Production/Assistant General Manager
L. A. Lomond Human Resources Assistant
A hearing in this matter was held in St. John's on April 11, 1989
AWARD ON THE PRELIMINARY OBJECTION
The following exhibits were taken into evidence:
U1: Union Statement
E2: Corporation Statement
The Union had presented to the Company a series of grievances dealing with such issues as hours of work, layoff, seniority and work jurisdiction. The Company rejected all the grievances at Step II on the ground that they were untimely.
The Company submitted a written brief and a number of exhibits in support of its position concerning arbitrability. This brief states as follows:
Parties to the Dispute
1. The parties before the Arbitrator are:The Newfoundland Dockyard Corporation, hereinafter referred to as "the Company" and The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers hereinafter referred to as "the Brotherhood".
2. The dispute referred to the Arbitrator involves employees covered by Agreement 12.33 between Canadian National Railways and the Brotherhood, which was, by provisions of a Memorandum of Agreement between the Company and the Brotherhood signed at Ottawa, Ontario 30 May 1988, applicable to these employee at the material times as Agreement 4C.
3. Request of T. Meyer, General Chairman of the Brotherhood to Labour Canada for the Ministerial appointment of arbitrators to deal with grievances involving K. Farrell, G. Morey. R. Dwyer, C. Downer, J. Lake and J.N. Leyden.
Statement of Issue
4. The company declined the grievances of K. Farrell, G. Morey, R. Dwyer, C. Downer, J. Lake and J. W. Leyden as being untimely it Step 2 of the Grievance Procedure
5. The Brotherhood applied for the Ministerial appointment of arbitrators which application was subsequently granted by the Minister as recommended by the Director, Arbitration Services for Labour Canada whose understanding, as expressed to the Company, was that the parties had been unable to resolve these grievances and/or agree on the selection of arbitrators to hear them.
6. The company contends that the grievances are not arbitrable as they must properly be regarded as dropped under the terms of Rule 28.11.
7. The company has explained to the Arbitrator the evolution in Labour Relations which resulted from the Canada Labour Relations Board decision of May 30, 1988. At the time of the grievances CN Agreement 12.33 had become Newfoundland Dockyard Corporation Agreement 4C. This was later rewritten by the parties, resulting in extensive renumbering of various rules. The rule references in this brief will be to rule numbering in the original Agreement 12.33, but it is important to note that the actual wording of the relevant rules and the time limits at Steps 1 and 2 remain unchanged from the time of the grievances.
History of Dispute
8. Grievance on behalf of Classified Labourer K. Farrell was filed at Step 1 of the grievance procedure on 11 July 1988 and declined by the Company on 21 July 1988.
(Copies of Step 1 grievance and reply are attached as Exhibits 1 and 2)
9. Grievances on behalf of Dockers, C. Downer, J. Lake and J. W. Leyden were filed at Step 1 of the grievance procedure on 17 August 1988 and declined by the Company on 30 August 1988.
Copies of Step 1 grievances and reply are attached as Exhibits 3 and 41
10. Grievances on behalf of Boilermakers G. Morey and R. Dwyer were filed at Step 1 of the Grievance Procedure on 27 July 1988 and declined by the Company on 1 August 1988.
(Copies of Step 1 grievances and replies are attached as Exhibits 5, 6, 7 and 8)
11. On 17 August 1988 the General Chairman, Mr. T. Meyer, called the Human Resources Officer, Mr R. Ivany, to request that the Company extend the time limits to proceed to Step 2 of the grievance procedure from the 28 calendar days prescribed to 60 calendar days for all grievances which were currently it his level. This request was granted by Mr. Ivany on the understanding that the extension would not apply to grievances whose time limits had already expired. It is consistent with long-established Company practice that expired time limits will not be extended.
12. Mr. Meyer also wrote Mr. M.N. Butt, General Manager, on 17 August referring to the conversation with Mr. Ivany and advised that the grievances of Messrs. Farrell, Morey and Dwyer "are being entered into Step 2 of the agreed grievance procedure for adjustment. Further communication will follow after discussion with Dist. 130."
(Copy of Mr. Meyer's letter of 17 August 1988 is attached as Exhibit 9)
13. On 24 August 1988 Mr. Butt acknowledged Mr. Meyer's conversation with Mr. Ivany and the letter of 17 August 1988 and confirmed extension of the Step 2 time limits to 60 calendar days for the grievances of Messrs. Farrell, Morey and Dwyer. The Company took no further action pending receipt of the further communication, which it understood could take some time in view of the lengthy extensions requested.
(copy of 24 August 1988 letter is attached as Exhibit 10)
14. On this basis the deadline for submissions at Step 2 became 19 September instead of 18 August for the Farrell grievance and 30 September instead of 29 August for the Morey and Dwyer grievances.
15. On 26 September Mr. Meyer telephoned Mr. Ivany requesting a 2-week extension to proceed to Step 2 in respect of the grievances of Messrs. Downer, Lake and Leyden. The Agreement prescribed 28 calendar days from the Company's response at Step 1 which was on August 30. Therefore the request was to establish the deadline at 11 October 1988. Mr. Ivany agreed.
16. On 3 October 1986 Mr. Meyer wrote Mr. Butt indicating that the grievances were being submitted to Step 2. However, he noted that certain details of the grievances were unknown and would be submitted later as "page 2 of grievance dated 03 October 1988." He asked that the Company look into this matter "upon receipt of page 2".
(Copy of Mr. Meyer's letter of 3 October 1988 is attached as Exhibit 11)
17. Nothing further transpired on the Farrell, Morey and Dwyer grievances until 11 October 1988 when Mr. Meyer wrote Mr. Butt to indicate that the Brotherhood was "prepared to proceed to arbitration on the issues concerning the grievances of Morey and Dwyer". On the Farrell grievance he asked for "resolution at your level".
(Copy of Mr. Meyer's letter of 11 October 1988 is attached as Exhibit 12)
18. The Company responded by letter dated 27 October 1988, that in the absence of the "further communication" promised by his letter dated 17 August 1988 the grievances were regarded as being untimely and therefore dropped and not subject to further appeal under terms of Rule 28.11 which reads in part as follows;
A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal ...
(Copy of 27 October 1988 letter is attached as Exhibit 13)
19. There was no further communication between the Company and Brotherhood on the Downer, Lake and Leyden grievances until 3 November 1988 when the Company wrote Mr. Meyer to indicate that, as it had not received the "page 2", it considered these grievances also to have been dropped.
(Copy of 3 November 1988 letter attached as Exhibit 14)
20. On 15 November 1988 Mr. Meyer wrote Mr. Butt advising that the Brotherhood would file a charge of unfair labour practice against the Company. In telephone conversation with Mr Ivany on 22 November Mr. Meyer indicated that he had reconsidered the unfair labour practice charge, but asked that the Company reconsider the time limits rejection. Mr. Ivany declined. No written reply was made.
(Copy of Mr. Meyer's letter of 15 November 1988 is attached as Exhibit 15)
21. There was no further written communication between the Company and Brotherhood on any of the grievances.
22. On 11 January 1989 the Company received Facsimile communication from Mr. G. E. Chartrand, Director, Arbitration Services advising that the Brotherhood had requested the Ministerial appointment of arbitrators to deal with the grievances. Copies of the Brotherhood's letters to Labour Canada were not forwarded to the Company.
(Copy of Facsimile communication is attached as Exhibit 16)
23. The Company replied to Labour Canada on 13 January 1989 indicating that the Company had rejected all of the grievances in question on the basis of failure on the part of the Brotherhood to progress the grievances within the prescribed time limits of the Collective Agreement. The Company further advised that the Brotherhood had not made request to proceed to arbitration on the question of timeliness and therefore considered the Brotherhood's request to Labour Canada to be unjustified.
(Copy of 13 January 1989 letter is attached as Exhibit 17)
24. On 24 January 1989 the Director, Arbitration Services advised the Company and the Brotherhood jointly that he would recommend to the Minister that he effect the appointment of an arbitrator to determine the question of whether the grievances are arbitrable and should he decide that they are, to hear them on their merits.
(Copy of letter of 24 January 1989 is attached as Exhibit 18)
25. On February 13, 1989 the Director, Arbitration Services advised the parties that the Minister has appointed Mr. Wayne Thistle as Arbitrator.
Position of the Company
26. The Company dealt with the grievances and rendered decisions at Step 1 as the Collective Agreement requires.
27. The Company also dealt with the General Chairman in good faith, freely granting the considerable extension of time limits at Step 2 which he requested. The only communications received from the General Chairman, however, were, in effect, notices of intent to appeal at Step 2. In the Farrell, Morey and Dwyer grievances a second communication, providing the essential details of the Brotherhood's position, was promised but never submitted. In the Downer, Lake and Leyden grievances the Company was specifically asked to await "page 2" which also was never submitted.
28. In these circumstances the grievances clearly were not progressed within the time limits and must be identified as dropped and not subject to further appeal by virtue of Rule 26.11
29. Arbitrators are consistent with respect to the importance of time limits. For example in Canadian Railway Office of Arbitration Case No. 1059, copy of which is attached as Exhibit 19, the Arbitrator stated;
Time limits are mandatory: Article 28.3, and while the Union referred to certain circumstances which, it argued, called for `flexibility', it is for the parties jointly to be flexible if they wish. An Arbitrator has no jurisdiction to alter the provisions of the Agreement or to relieve against failure to meet its time limits
30. In Canadian Railway Office of Arbitration Case No. 1233, copy of which is attached as Exhibit 20, the Arbitrator stated;
The litany of CROA cases marshalled before me in the company's brief establishes beyond a doubt that an Arbitrator is bound (just as the parties are) to the mandatory time limits for the presentation of a grievance contained in the collective agreement. An Arbitrator cannot amend, alter or otherwise undermine the parties' intentions as expressed in the language of the collective agreement. His personal views of a party's treatment of a tardy grievance must give way to the parties intentions.
31. The Company respectfully submits therefore that the grievances are not arbitrable.
32. Agreement 12.33 (4C) is clear as to the processes prerequisite to arbitration.
33. Clearly the grievances must first be dealt with at Step 2. Next the party requesting arbitration would have been required to give notice in writing of its intent in accordance with Rule 29.2 which states;
The party requesting arbitration must so notify the other party in writing within sixty (60) calendar days following the date the decision was rendered at the last step of the grievance procedure."
34. It is of interest to note that even in its letter of 11 October 1988, well beyond the expiry of the extended time limits, the Brotherhood still was indicating merely a preparedness to proceed to arbitration on the Morey and her issues. Mr. Meyer apparently still had no wish to do so on the Farrell issue.
33. On the Downer, Lake and Leyden grievances the Company, even up to its letter of 3 November, had no indication from the Brotherhood re arbitration.
36. The Arbitrator is respectfully requested to find that the grievances are not arbitrable.
The Union rejected the argument advanced by the Company and in its own brief set out the reasons in support of a finding that the grievances are properly arbitrable. The Union's brief provided as follows:
HISTORY OF THE DISPUTE
1. This dispute has to do with the failure of the company known as N.F.L.D. Dockyard Inc. at step two of the grievance procedure of wage agreements 12.33 and 12.10 to process grievances because of reasons that they claim are untimely.
2. Downer, Lake and Leyden grievances were entered on 22 June 1988, they were answered at the first level on 12 July 1988 by the company.
3. On 17 Aug. 1988 the company received the next step from Mr. A. Locke, the local chairman located at the drydock. The company replied back to Mr. Locke on 30 Aug. 1988.
4. After an agreed to extension between myself and the company I entered the grievance at my level into the next step of the grievance procedure on 03 October 1988.
5. On 09 Nov. 1988 I received the company communication of 03 Nov. 1988 stateing the grievance was incomplete and that I had requested that the company looked into the matter only upon receipt of page two. This was not the intent and irregardless of how the company had interpreted my letter of 03 Oct. 1988 the fact remains that the grievance was submitted within agreed time limits and in accordance with the agreement in effect at that time.
6. I was informed that the information I was looking for was not obtainable by local chairman Locke, this would have made the additional information requested by company letter to A. Locke dated 30 Aug. 1986 complete. We were unable to obtain this needed information so therefore page two of my letter dated 03 Oct. 1988 could never be presented to the company.
7. Before the company was notified that page two was unobtainable received their letter dated 03 Nov. 1985 dropping the said grievances. It seems that this manoeuvre was done by design to escape the grievance procedure and if it was the company failed to realize the fact that the grievances were submitted within the correct time frames.
8. Being dissatisfied with the company position on the issue I requested assistance from Labour Canada to try and get these grievances processed to arbitration.
9. The Morey grievance was entered on 01 July, 1988 and the company replied back on 11 July 1988. The company received Mr. Lockes next step of the grievance procedure on 27 July 1988 and replied back to him on 01 Aug. 1988, Mr. Locke then sent the grievance to me to be entered at my level to the company.
10. The Dwyer grievance was entered on 01 July 1988 and the company replied back on 11 July 1988. The company then received Mr. Lockes next step on 27 July 1988 and replied beck to him on 01 Aug. 1988, Mr. Locke then sent the grievance to me to be entered at my level to the company.
11. The Farrell grievance was entered on 26 May 1988 and the company replied to Mr. Locke on 24 June 1988. The company received Mr. Lockes next step on 11 July 1985 and replied back on 21 July 1988. Mr. Locke then sent the grievance to me to be entered at my level to the company.
12. On 17 Aug. 1988 I entered into the next step of the grievance procedure on behalf of Morey, Dwyer and Farrell. The company and I agreed after discussion to deal with these three grievances in the same time frame context. There was disruption at this time because of the proposed 4C agreement and how the grievance procedure would be implemented as there were changes in the grievance procedure of wage agreement 12.33 and 12.10 that would be applied to the proposed 4C agreement. I think this added to the company confusion at that time.
13. On 24 Aug. 1988 I received confirmation of the company being in possession of my letter of 17 Aug. 1988 which was clearly under the given time limits of the agreements in effect at that time.
14. I waited for company replies until 11 Oct. 1988 and then wrote to Mr. Butt advising him that we were prepared to proceed to arbitration.
15. On 14 Nov. 1988 and after makeing a telephone call to Mr. Ivaney to find out the status of the said grievances he advised me verbally that the company was no longer entertaining the said grievances. I then followed with a letter to Mr. Butt which was dated 13 Nov. 1988. I then received company communication on 29 Nov. 1988 containing letter dated 27 Oct. 1988, refusing the grievances and not recognizing the fact that the grievances were entered at the correct Step of the grievance procedure on 17 Aug. 1988 which was well within the prescribed time limits. I then requested assistance from Labour Canada to help process these grievances to arbitration.
The brotherhood believes that in order to delay or to avoid arbitration on concerned grievances the company is claiming the grievances as being untimely. He also believe this opposition by the company is just another delaying tactic to try and avoid faceing the inevitable. This type of tactic in our view is unfair and unjust to both the union and the membership.
We respectfully request that the learned arbitrator find for the union known as International Brotherhood of Boilermakers and Blacksmiths, and that he find in favour of the union under the appropriate articles of the respective collective agreements and allow the said grievances to continue in the grievance procedure to final and binding arbitration.
Boilermakers and Blacksmiths
In discussion, after the presentation of the formal briefs the Company denied that it had used any delaying tactics but rather had granted an extension and, when the time limits in that extension ran out, it declined to proceed. The Company indicated that the Union could have requested a further extension but failed to do so.
The Union contended that the Company had been notified of the appeal at Step II and this was submitted within the time limits. The fact that all the information necessary for the grievances was not available does not change compliance with the time limits. At the time in question, there were a lot of issues involving labour board hearings and railway closures and it was difficult to obtain all the facts such as the names of individuals involved in certain grievances and the number of hours of work.
DECISION IN RESPECT OF ARBITRABILITY OF THE DOWNER, LOCKE AND LEYDEN GRIEVANCES
There are a number of factual discrepancies in respect of certain aspects of the Downer, Locke and Leyden grievances. For example, the company has suggested in its written submission that the grievances were filed at step I of the grievance procedure on 17 August, 1988 and declined by the Company on 30 August, 1988. The Company submission made no reference to the actual grievance forms dated June 22, 1988, and received by the Company on June 24, 1988. The Company did, however, acknowledge in its letter of August 30, 1988, that these grievances had been submitted on June 24, 1988.
The Union has claimed in its submission that the grievances were entered on June 22 and answered at the first level on 12 July, 1988. The Union then indicated that on 17 August, 1988 the Company received the next Step from Mr. Locke, the Local Chairman, the Company replied back on August 30, 1988 and the grievance was entered at the level of Mr. Meyer, General Chairman, on October 3, 1988. Mr. Meyer's letter of 17 August, 1988 did indicate he was entering the grievance into Step II for adjustment.
It would appear that the August 17, 1988, letter was intended to enter the grievances at Step II but that the Company did not agree that there were sufficient details to comply with placing it at Step II and their response of August 30, 1988, was for the purpose of obtaining such details. The Union then wrote its letter of October 3 saying it was submitting the said grievances "to the next step of the grievance procedure" for resolution. This can only be interpreted as a second attempt to have the grievances progressed to Step II and it is whether this was successfully accomplished which will determine the arbitrability of the Downer, Locke and Leyden grievances.
The essential question is whether these three grievances are non-arbitrable by virtue of the provisions of Article 28.11 which states as follows:
28.11 A grievance not progressed within the time limits specified shall be dropped and shall not be subject to further appeal. Where, in the case of a grievance based only on a time claim, a decision is not rendered by the designated officer of the Company at Step I or II within the time limits specified in such steps, the time claim will be paid. Payment under such circumstances shall not constitute a precedent, or waiver of the contentions of the Company in that case or in respect of other similar claims."
The actual grievance procedure is set out in Article 28.6 to 28.9 and Article 28.15 which provide as follows:
28.6 Should an employee subject to this Agreement believe he has been unjustly dealt with, or that any of the provisions of this Agreement have been violated, he shall present his alleged grievance to his immediate supervisor for adjustment. If not so adjusted, and he wishes to have the matter progressed, he shall present it in writing to the authorized Local Union Representative(s) within 20 calendar days from the date of the alleged grievance, outlining all pertinent details and the date of the alleged grievance.
28.7 The authorized Local Union Representative(s) may within 35 calendar days from the date of the alleged grievance progress the grievance in writing to either the supervisor, foreman or general foreman, or assistant works manager, outlining all pertinent details and the date of the grievance.
28.8 A written decision will be rendered within 28 calendar days from date of receipt of the grievance and a copy will be furnished to the employee and the authorized Local Union Representative.
28.9 A decision at each step of the grievance procedure shall be rendered in writing within 28 calendar days of receipt of appeal."
28.15 If an authorized Union Representative should consider that a provision of this Agreement has been violated, he may initiate a grievance, which shall be processed in accordance with the foregoing provisions of this Rule 28.
Within twenty-eight (28) calendar days following receipt of the decision under Rule 28.8, the authorized Local Union Representative or General Chairman may appeal the decision in writing to the designated Railway officers as follows:
Line Points: General Chairman to Mechanical Officer.
Main Shops: Local Chairman and/or General Chairman to Works Manager.
Newfoundland Dock Yard:
Local Chairman and/or General Chairman to General Superintendent.
Terra Transport General Chairman to Mechanical Officer.
Within twenty-eight (28) calendar days following receipt of the decision under Step I, the System General Chairman or the General Chairman may appeal the decision in writing to the designated Railway Officer as follows:
Line Points: General Chairman to Vice-President or General Superintendent of Equipment.
Main shops: General Chairman or System General Chairman to Chief of Motive Power and Car Equipment or such other officer as he may designate.
Newfoundland Dock Yard:
General Chairman or System General Chairman to Director Industrial Relations CN Marine or Manager Newfoundland Dock Yard.
Terra Transport General Chairman or System General Chairman to President and General Manager Terra Transport.
NOTE: Each party will notify the other of any changes in designated officers."
The Company's main argument in these three cases is that the Union failed to comply with the time limits, particularly in respect of completing the details required for the submission of the grievance. A review of various pieces of correspondence is of assistance in understanding what transpired.
The correspondence dated August 30, 1988, from Mr. Simms, General Superintendent to Mr. A. Locke, Local Chairman, put forward the Company's position in respect of the details that would be required "... before the claims could be considered."
August 30, 1956
Mr. A. Locke
Local Chairman Boilermakers
40 Cashin Avenue
St. John's, Nfld.
Reference your letter of August 17, 1988 progressing grievances which were submitted June 24, 1988 on behalf of Dockers C. Downer PIN 779280, J. Lake PIN 775877 and J.W. Leyden PIN 776573 claiming payment for time laid-off because labourers were doing painting work.
These grievances do not specify what painting was being done, how many labourers were painting, or even the period of time being claimed. Normally all of these details would have to be determined before the claims could be considered. However, as the Wage Agreement does not provide exclusive rights to Dockers to perform painting work in the Dockyard and as Labourers regularly paint, there appears to be no basis for the claims.
Claims are therefore declined.
For: General Superintendent
On Mr. Meyer's copy of this letter the following note is appended in what appears as his handwriting:
Reply to Company - (past practice) and detailed information will be sent in regards to time being claimed by grievors.
Rec'd from Locke late and must ask for extension on time limits."
Because of a two-week extension which was granted by Mr. Ivany to Mr. Meyer on September 26, 1988, the Union had until October 11, 1988, to complete the filing of the grievance at the level it was then at. In a letter dated October 3, 1988, to Mr. M. Butt, General Manager, Mr. Meyer referenced the extension that had been granted and indicated what action he would be taking:
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers
District No. 30
Canadian Railway Systems
Lutes Rd, R.R. #7
03 October 1988
Mr. M. Butt
Persuent to discussions with R. Ivany and agreement on the extension of time limits on the grievances relating to company reply dated 30 Aug. 1988 signed by R. A. Simms for the General Superintendent and failing resolution, I am submitting the said grievances to the next step of the grievance procedure of wage agreement 12.10 for resolution.
After investigation into the issue, I find it has been past practice that dockers do all painting with regard to the painting workload at the dockyard.
Dockers were on layoff status and the painting workload normally done by them was given to the labours. The details of the said grievance such as what painting was being done, how many labours were involved and the period of time being claimed is not immediatly know, but will shortly follow and will be identified as page 2 of grievances dated 03 Oct. 1988.
Upon receipt of page 2, I ask that you look into this matter as soon as possible.
With best regards:
This letter from the Union clearly acknowledges that the details of the grievance including even the period when the alleged infraction occurred was not yet available. The grievance procedure clearly requires that, to complete the grievance, reference has to be made to "all pertinent details and the date of the grievance." This, of course, would not extend to every detail necessary to complete the claim but it must include such specificity as to allow the Company to be able to respond effectively and with knowledge of the alleged infraction. In Mr. Meyer's letter, he further suggests that the Company should look into this matter "upon receipt of page 2," a clear acknowledgement on his part that he would not expect the Company to be able to respond without the details page 2 was intended to provide.
The next critical correspondence in this chain of events is the letter dated 1988 11 03 from Mr. Butt to Mr. Meyer concluding that the time limits had expired for the receipt of details promised on October 3, 1988, and therefore the grievances would be dropped. Mr. Meyer then wrote Mr. Locke on November 15, 1988, outlining what had transpired:
International Brotherhood of Boilermakers,Iron Ship
Builders, Blacksmiths, Forgers & Helpers
District No. 30
Canadian Railway Systems
Lutes Rd. R.R. #7
15 Nov. 1988
After receiving a communication from the management at N.F.L.D. Dockyard and with reference to our telephone conversation on or about 30 Sept. 1988, concerning the dispute between the dockers, labourers and the company we discussed the grievance you had sent me to he entered into step two of agreement 12.10.
I informed you that I would have to ask for a time limit extension because of the date I had received the said grievance from you. I also advised you there was not enough information in the material you had sent to me and I asked you to get more information such as how many labourers were involved and the amount of time involved in the time claim that you were claiming. You said you would get this required information and send it to me as soon as possible. As I said, I asked the company for the time extension and was granted a two week extension and I stated to the company that when more information was obtained (the information I was waiting for from you) I would give it to the company as page two to complete the said grievance.
I never received this information from you and consequently the company has informed me by registered mail that the time limits have expired and therefore the grievance has been dropped by the company.
Copy of grievance and company communication enclosed.
Please advise lodge 717.
With best regards:
Boilermakers & Blacksmiths
C.N. Atlantic Region
c.c. H. Lavinskas
System General Chairman
In that letter he acknowledged that in the statement of the grievance received from Mr. Locke, "... there was not enough information in the material you had sent to me and I asked you to get more information ...." The two-week extension requested was specifically for the purpose of obtaining this information. When the information was obtained, he would give it to the Company "....as page two to complete the said grievance." (Emphasis added.)
The difficult problem in a case such as this is the weighing of the need to comply with precise requirements in a grievance procedure against the philosophy that undue technicalities should not interfere with the processing of grievances. The parties have not inserted language which would allow an arbitrator much flexibility in interpreting whether non-compliance with certain aspects could be waived at his discretion and the grievances proceed. In fact, as far as time limits are concerned, Article 28.12 limits the right to extend time limits by requiring "mutual agreement between the parties...." There is ample precedent dictating the limits placed on my arbitral discretion. For example, in Canadian Railway Office of Arbitration, Case No. 1233 (April 12, 1984), Arbitrator Kates had to consider the termination of two grievors for having consumed a bottle of beer with their meal. The Union missed the 28-day deadline for the presentation of the written grievances by approximately 11 hours and the Arbitrator concluded as follows:
The litany of CROA cases marshalled before me in the company's brief establishes beyond a doubt that an arbitrator is bound (just as the parties are) to the mandatory time limits for the presentation of a grievance contained in the collective agreement. An arbitrator cannot amend, alter or otherwise undermine the parties' intentions as expressed in the language of the collective agreement. His personal views of a party's treatment of a tardy grievance must give way to the parties' intentions.
In the result, I have to conclude that the Union accepted it had not provided sufficient details of the Downer, Locke and Leyden grievances as to have it satisfactorily progressed to Step II. It sought and was granted a two-week extension to October 11, 1988, for that purpose and it did not provide the information in that time frame. The Company's response was to issue a letter on November 3, 1988, advising that since it had not received the "page 2" it considered the grievances to be dropped. The Union knew what it had to provide within the period of the extension and it failed to do so. There was non-compliance with the time limits and I have no option pursuant to the language of the Agreement other than to conclude that the grievances are to be considered dropped. Consequently, the Downer, Lake and Leyden grievances are non-arbitrable and the Company's preliminary objection is upheld.
DECISION IN RESPECT OF ARBITRABILITY OF THE MOREY, DWYER AND FARRELL GRIEVANCES
The chronology of events in respect to these three grievances indicates that the Morey grievance was entered on July 1, 1988, and the Company replied back on 11 July, 1988. Mr. Morey was claiming overtime rate for June 12, 1988, for his sixth day worked and requesting he be paid at the overtime rate of one and one-half time for Sunday, June 12 as it was his sixth day worked in a row without a lay-over day. The Company received the next step of the grievance procedure on July 27, 1988, and replied on August 1, 1988. This satisfies the time frame for filing a grievance at Step 1 of the procedure. In its response at Step I, the Company's letter simply denied the grievance outlining the reason for having done so:
August 1, 1988
Mr. A. Locke
Vice-General Chairman - Boilermakers
40 Cashin Avenue
St. John's, Nfld.
Dear Mr. Locke:
Reference your letter of July 26, 1988 progressing grievance on behalf of Mr. G. Morey, PIN 776148 claiming overtime rate for Sunday June 12, 1988, his sixth day worked.
As you know, when new jobs are created or additional staff is required the Company does canvase the employees whenever practicable to determine if employees wish to exercise their seniority to claim the new positions. However Agreement 12.33 does not provide for such a canvass, only that eligible employees may claim the positions. Therefore there has been no violation of the Agreement in this regard.
Mr. Morey exercised his seniority to claim a shift which he preferred. Rule 2.3 clearly excludes the payment of overtime rates in such circumstances.
Grievance is declined.
For: General Superintendent
On August 17, 1988, Mr. Meyer wrote Mr. Butt entering the grievances at Step II. His letter stated as follows:
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers
District No. 30
Canadian Railway Systems
Boilermakers & Blacksmiths
C.N. Atlantic Region
17 August 1966
Mr. M. Butt
After discussion with R. Ivany and agreement on the processing of grievances at the N.F.L.D Dockyard.
Failing resolution, I find it necessary to inform you that the grievances I have received at my level from local chairman Locke dated 21-07-88 concerning K. Farrell, P.I.N. 777978, Mr. G. Morey P.I.N. 776148 dated 01-08-88 and R. Dwyer P.I.N. 775975 dated 01-08-88 on the company replyare being entered into step two of the agreed grievance procedure for adjustment. Further communication will follow after discussion with Dist. #30.
I hope you will look into this mater as soon as possible.
With best regards
Lutes Rd. R.R. #7
This letter contained the sentence "Further communication will follow after discussion with Dist. #30" and the Company took this to mean that it did not have to respond until such communication was received. The Company wrote a letter on August 24, 1988, extending the time limits at Step II to 60 calendar days. This letter provided as follows:
August 24, 1988
Mr. T. Meyer
Int. Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths,
Forgers and Helpers
Lutes Road, R.R. No. 7
Please refer to telephone conversation with R. Ivany, 17 August 1988 and your letter of the same date regarding processing of grievances currently at Step 2 of the Grievance Procedure.
This will confirm agreement that the time limits at Step 2 will be extended to 60 calendar days, which ie the same as proposed in the rewrite of Agreement 4C. Time limits for the grievances of Messrs. Farrell, Morey and Dwyer are extended accordingly.
For: M.N. Butt
The interesting thing about this scenario is that the grievance contained the necessary details to allow the Company to decide how to respond to it which in fact it did when it denied the grievance. The record does not indicate any obvious purpose for a "further communication" from the Union nor for an extension of the time limits. The Company in its letter of August 24, 1988, acknowledged the grievances were "currently at Step 11 of the Grievance Procedure." The Company therefore presumably had an obligation to respond within 28 days stating its position on the matter. This did not occur and on October 11, the Union informed Mr. Butt it was prepared to proceed to arbitration on the issues concerning the grievances of Morey and Dwyer. On October 27, 1988, the Company wrote the Union indicating that this grievance was being rejected as being untimely. The letter stated as follows:
1988 10 27
Mr. Terry Meyer
Intl. Association of Boilermakers
Lutes Rd., RR #7
Reference your letter of 11 October 1988 regarding grievances of Messrs. Morey, Dwyer and Farrell.
On 17 August 1988 we agreed to an extension of the time limits at Step II of the grievance procedure to 60 calendar days. This was confirmed in my letter to you of 24 August 1988. As the Step I replies were dated 21 July 1988 and 01 August 1988 the 60 calendar days would commence from these dates. We consider your current letter of 11 October 1988 to be outside the limits of the agreed extensions and, therefore, these claims are rejected as being untimely in accordance with Rule 28.11.
In any event, we do not understand your proposal to proceed to arbitration as you did not progress the grievances at Step II. Your letter of 17 August 1988 only confirmed the agreement to extend Step 11 time limits and indicated that you would be progressing the grievances under Step II. You stated that "further communication will follow after discussion with Dist. #30." We received no further communication.
Furthermore, we consider these grievances to be without merit. The D. Ralph arbitration case is not applicable to the Morey and Dwyer grievances. In the Ralph case. Mr. Ralph's position had been abolished and he had no choice but to exercise his seniority. In the Morey and Dwyer situations new positions were created and there was an exercise of seniority to claim the new positions which is clearly exempt from overtime payment in accordance with Rule 5.14.
In regard to the situation of Classified Labourers promoting to Rigger Helper positions which precipitated the Farrell grievance. As you suggested, Mason Foreman, Mr. A. Osmond and Local Chairmen, Mr. A. Locke have been discussing the possibility of establishing a promotion list which could possibly avoid further problems in this area.
For: M.N. Butt
I cannot accept that the Union had failed "... to progress the grievances at Step II" when in fact its letter of August 17, 1988, did precisely that. The reference to a "further communication" did not relieve the Company from its duty under the procedure to comply with the 28day time limit nor remove the right to refer the matter to arbitration if no response was received. The Union was "prepared" to refer it to arbitration and it would be splitting hairs for me to refuse to accept that this constituted other than a reference to arbitration under Article 29.2.
The Union has complied with the time limits for proceeding with the Morey grievance and I find that the Company's objection cannot be sustained.
The reasoning which was applied to the Morey grievance can apply mutatis mutandis to the Dwyer grievance and, with one exception, to the Farrell grievance. That exception is obvious upon review of the October 11, 1988, letter from Mr. Meyer to Mr. Butt where no reference was made to arbitration and instead a request was made to have a resolution at the level of General Manager. The response from Mr. Butt on October 27, 1988, rejected that grievance because it was untimely. Article 29.2 of the Agreement allows 60 calendar days following the date the decision was rendered at the last stage of the grievance procedure for notification to be given requesting arbitration. Although no specific reference is made to arbitration in Mr. Meyer's letter of November 15, 1988, to Mr Butt, he does indicate that he will be informing Labour Canada of the unfair labour practice occurring at the Dockyard. In the note appended to his correspondence dated August 17, 1988, Mr. Meyer stated "on October 11, 1988, I informed them we were going to arb." These two communications when considered together are sufficient to satisfy the notification requirements of Article 29.2 and the Farrell grievance can also be considered to be arbitrable. It should be noted that, even if I were to have found that the Morey and Dwyer grievances had not been referred to arbitration by the wording of the October 11, 1988, correspondence, I would have been satisfied that the subsequent correspondence of November 15, 1988, accomplished the requirements in the Agreement.
I have accepted the Company's argument in support of its claim that the Downer, Lake and Leyden grievances must fail because they had not been progressed within the time limits. However, in respect of the Farrell, Morey and Dwyer grievances, the facts are different and do not support a conclusion that the Union did not comply with the time limits in the grievance procedure. These three grievances are therefore arbitrable.
DATED AT St. John's, Newfoundland, May 8, 1989
(sgd) W. Wayne Thistle