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.

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.

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;

(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.

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;

30. In Canadian Railway Office of Arbitration Case No. 1233, copy of which is attached as Exhibit 20, the Arbitrator stated;

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;

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.

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.

RESPECTFULLY SUBMITTED

Terry Meyer

Atlantic Region

General Chairman

Boilermakers and Blacksmiths